DISSENTING JUSTICES
Carpio: Neri talked of bribery
By Leila Salaverria
Philippine Daily Inquirer
First Posted 01:49:00 03/27/2008
MANILA, Philippines—Justice Antonio Carpio has insisted that former Socioeconomic Planning Secretary Romulo Neri had discussed a bribery scandal with President Gloria Macapagal-Arroyo and could not properly invoke executive privilege to cover up the alleged crime.
Carpio was one of six justices who disagreed with the majority in the 15-member Supreme Court that upheld on Tuesday Neri’s claim he could not be questioned on his conversations with Ms Arroyo in the Senate inquiry into the scrapped $329-million National Broadband Network (NBN) project with China’s ZTE Corp.
Nine justices said Neri may rightly remain silent on three follow-up questions by Senate probers after he told Ms Arroyo that former Elections Chair Benjamin Abalos had allegedly offered him a P200-million bribe to endorse the NBN project to hook up government offices nationwide via the Internet. The questions were:
1. Whether the President followed up on the NBN deal.
2. Whether Neri was dictated to prioritize the project.
3. Whether Ms Arroyo gave the go-ahead to Neri to approve the deal in spite of the alleged bribery.
“The invocation of executive privilege on the three questions dwelling on a bribery scandal is clearly unjustified and void. Public office is a public trust and not a shield to cover up wrongdoing. Petitioner must answer the three questions asked by the Senate committees,” Carpio said.
The Supreme Court, voting 9-6, ruled that Neri could not be forced to answer the questions because he had correctly invoked executive privilege. The tribunal nullified the Senate order citing Neri in contempt and ordering his arrest that had prompted him to go to court.
The decision gave Ms Arroyo her first major success in the Supreme Court.
The tribunal had dealt Ms Arroyo a series of setbacks over the past two years in landmark cases involving her crackdown on street protesters in the midst of claims she stole the 2004 presidential election, her declaration of a national state of emergency and her attempt to gag Malacañang and security officials.
Testimony before the Senate has implicated Ms Arroyo and her husband in alleged massive kickbacks in the NBN-ZTE deal, prompting her to cancel the project in the wake of widespread public indignation. The scandal has revived calls for Ms Arroyo’s resignation.
Bribery is a crime
Senate President Manuel Villar has said that Ms Arroyo could be impeached if it could be proven that she allowed the NBN-ZTE contract to proceed even after she came to know that there was bribery involved.
In another dissenting opinion, Justice Consuelo Ynares Santiago said it was Neri himself who informed the Senate during his Sept. 26 appearance that he had told the President of the bribery attempt by Abalos, who has resigned as Commission on Elections chair.
Neri’s counsel had also admitted that if the claim was proven, it would constitute a crime.
“To allow the details of this alleged crime to be shrouded by a veil of secrecy would permit criminal conspiracies at the seat of government. Needless to say, the Constitution could never sanction executive privilege as a shield for official wrongdoing,” Santiago said.
Acting within rights
Justice Conchita Carpio Morales, also dissenting, said Neri should answer the three questions because the context in which they were asked showed that the answers were intended to help enact legislation.
“This is a situation where at least a credible, if not precise, reconstruction of what really happened is necessary for the intelligent crafting of the intended legislation. Why is it that after the petitioner reported the alleged bribe to the President, things proceeded as if nothing was reported? Respondent Senate committees are certainly acting within their rights in trying to find out the reasons for such a turn of events,” she said.
If the public interest is considered, the Senate has a right to know what this is so that this could be taken into account in determining whether the laws on government procurement and the like should be amended, Morales said.
3 interdependent branches
Chief Justice Reynato Puno was among the six justices who dissented. While the powers of the three branches of government are interdependent, Puno said, they have been “fashioned to work interdependently.”
“When there is abuse of power by any of the branches, there is no victor, for a distortion of power works to the detriment of the whole government, which is constitutionally designed to function as an organic whole.”
In his dissenting opinion posted on the court website late Tuesday night, Carpio said Executive Secretary Eduardo Ermita’s letter permitting Neri to invoke executive privilege only made a general, instead of a specific, claim that the answers to the questions would impact on diplomatic matters.
“The bare claim that disclosure ‘might impair’ diplomatic relations with China, without specification of external evidence and circumstances justifying such claim, is insufficient to give rise to any presumptive executive privilege,” he said.
Incredulous
Carpio also said Neri did not even know if the Department of Foreign Affairs was involved in the NBN negotiations.
“This is incredulous considering that under the Revised Administrative Code, the DFA ‘shall be the lead agency that shall advise and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations,’” he added.
Carpio shot down as well the statement that the country’s economic relations with China would be impaired, saying such an impairment that involved foreign investors and lenders was not a valid ground for invoking executive privilege.
Ermita also did not claim military or national security secrets as his reason for the invocation, and only cited the confidentiality of presidential conversations and impairment of economic and diplomatic relations, Carpio said.
Expanded grounds
Carpio said Neri, by claiming that his discussions with Ms Arroyo referred to a bribery scandal that affected diplomatic relations and economic and military affairs, expanded the grounds that Ermita had cited.
Carpio said that if Neri answered the three questions, he would not disclose confidential presidential communications, as his counsel admitted during the oral arguments.
Carpio conceded that follow-up questions could call for the disclosure of confidential presidential discussions and diplomatic secrets. But he said executive privilege could only be invoked after the questions were asked.
But he maintained that the privilege may not be used to shield wrongdoing.
“Executive privilege can only be invoked after the question is asked, not before, because the legislative committee may after all not ask the question. But even if the follow-up questions call for the disclosure of confidential presidential discussions or diplomatic secrets, still executive privilege cannot be used to cover up a crime,” he said.
Arrest order invalid
Carpio agreed with the majority that the Senate cannot enforce its Rules of Procedure because it failed to publish this, adding that the Senate is not a continuing body.
Thus, he said, Neri’s citation for contempt and the arrest order issued against him were invalid.
Santiago also said Neri had erroneously assumed that the Senate summoned him to answer only the three questions.
She said that even if he had testified exhaustively during one of the hearings, he was not in the position to conclude that the senators had already obtained from him all the data that they needed.
“He cannot refuse to appear before the Senate committees on the assumption that he will testify only on matters that are privileged. The Senate committees, in the exercise of their constitutionally mandated functions, can inquire into any matter that is pertinent and relevant to the subject of its investigation,” Santiago said.
She also said Neri failed to show that his reason for not answering the questions far outweighed public interest.
Chilling effect
“He failed to show how disclosure of the presidential conversations would affect the country’s military, diplomatic and economic affairs,” she said.
She also disputed the supposed “chilling effect” that the disclosure of the President’s conversation with Neri would produce. She said criticism or outrage was not unusual in a democracy.
“I do not see how the public condemnation and criticism can have an adverse effect on the President’s performance of her powers and functions as Chief Executive ... If at all, the public’s opinion, negative or otherwise, should enhance the President’s performance of her constitutionally mandated duties,” Santiago said.
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