ANALYSIS
Neri decision a rollback of Philippine democracy
By Amando Doronila
Philippine Daily Inquirer
First Posted 06:14:00 04/07/2008
MANILA, Philippines—The Supreme Court decision in the case of Neri v Senate Committees is truly a landmark in more ways than one.
It tilted the delicate balance of power between the presidency and the legislature in the exercise by Congress of its oversight powers to check executive abuses in favor of expanding presidential powers.
This represents a rollback of democratic check and balance.
In its narrowest sense, the decision issued on March 25 upheld the refusal of former Socioeconomic Planning Secretary Romulo Neri to answer in a Senate inquiry three key questions relating to President Gloria Macapagal-Arroyo’s intervention in the corruption-ridden National Broadband Network (NBN) project with China’s ZTE Corp.
The repercussions have not been confined to this issue, which boils down to the accountability of the President to be transparent to the sovereign people in disclosing information about secret and controversial transactions under legislative investigation in order to deserve their continued trust.
No high court decision in recent years has reinforced presidential powers more than the Neri decision at the expense of curtailing the scope of legislative inquiry and contracting the people’s political liberties, in particular access to information essential to the exercise of informed judgments on political and social issues.
Instrument of censorship
In effect, the decision has made the court virtually an instrument of censorship and of aiding the already all-too-powerful executive to evade transparency in governance.
The decision signified an unsettling development as the court put the weight of its judicial authority and its prestige behind the executive’s claims it needed to conduct its affairs in secrecy, beyond public scrutiny.
The tilt has left a disequilibrium in the balance of power among the three government departments against the background of the increasingly authoritarian tendencies of the Arroyo administration following the disclosure of the so-called Garci tapes on the 2004 presidential election results tally.
Decision portentous
The Neri decision is particularly portentous in the light of the fact that it marked Ms Arroyo’s first significant victory in the court.
The tribunal had struck Ms Arroyo down on a series of decisions involving curtailment of political liberties and relating to her declaration of national emergency in 2005, the crackdown on protest groups, warrantless arrests of journalists and political opponents accused of alleged conspiracies to overthrow her government, and directives to gag Cabinet members and executive department officials during legislative inquiries into corruption cases.
The 9-6 decision on the Neri case was one of the closest since Ms Arroyo took office in 2001.
Court packing
No doubt, the President benefited from court packing. Although all but three of the 15 members of the court when it handed down the decision were appointed by Ms. Arroyo, this is not a definitive explanation of the shift of a more sympathetic mood toward the President.
Two of the six justices who wrote dissenting opinions were Arroyo appointees, including Chief Justice Renato Puno.
Senate power clipped
By encircling the three key questions that Neri refused to answer as covered by executive privilege, the court declared these issues no man’s land, thereby restricting the scope of legislative inquiry and curtailing its constitutional powers to conduct an unfettered investigation “in aid of legislation.”
As pointed out by Puno, who has come out in recent months with judicial measures to curb abuses against human rights by security authorities, the Neri decision marked the first time the court faced an issue involving the “claim to use executive privilege” during a legislative inquiry “in aid of legislation.”
Puno has said there had been no specific jurisprudence in Philippine law regarding the issue.
The ruling reinforced executive power at a time when it needs to be checked, when it shows an increasing tendency to invoke state security to clamp down on political liberties of opposition and civil-society groups whose calls for regime change were often tagged as extra-constitutional plots to overthrow the administration.
The court’s shift toward fortifying state power in the name of ensuring national security and political stability comes at the expense of weakening countervailing constitutional institutions, principally the legislature.
Lethal combination
The consortium between the executive and the Supreme Court in cementing the doctrine of the primacy of an all-powerful executive in a democratic state is a lethal combination with antidemocratic consequences.
It leads to severe imbalance in the distribution of powers.
The legitimacy given by the high court condoning evasion of accountability of the executive for its excesses and controversial transactions and shielding it from pervasive legislative inquiry results in the cover-up of corruption.
Judicial legitimacy does not compensate for the electoral legitimacy of a political leadership that has brought this crisis of legitimacy upon itself by interfering in the tally of the 2004 election.
It has also brought upon itself the charges of cover-up in the NBN-ZTE deal over the refusal of Neri to answer the three questions about his conversations with the President on the bribery attempts.
The court is expected to take the side of the public, with the aid of the Senate inquiry, to pry open the forbidden secrets of Neri’s conversations with the President rather than be part of a conspiracy of silence.
Tragedy of Senate
The tragedy of the Senate is that it does not appear to have generated a ground swell of public sympathy for having its investigative powers clipped by the court. The public is all too familiar with the abuses committed by the Senate in the course of its investigations in the name of “aid to legislation.”
The public dissatisfaction stems from the sense of loss of access to information leading to the bottom of the NBN deal. The public fears a gang-up on transparency by the executive and a compliant Supreme Court more than they are revolted by the Senate’s abuses of its investigations and of persons appearing in its inquiry.
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