INITIAL AGREEMENT
(9th UPDATE) Neri to attend Senate NBN deal hearing
But can’t be asked about conversation with Arroyo
By Tetch Torres
INQUIRER.net, Philippine Daily Inquirer
First Posted 12:50:00 03/04/2008
MANILA, Philippines--Former Socioeconomic and Planning Secretary Romulo Neri will attend the congressional inquiry into the graft-tainted Internet broadband deal but the senators cannot ask him questions about his supposed conversation with President Gloria Macapagal-Arroyo, the Supreme Court said.
This initial agreement was reached Tuesday evening after about nine hours of oral arguments on Neri’s petition to stop the Senate from arresting him after he refused to heed summons to testify at the inquiry into the scrapped $329-million national broadband network (NBN) contract with China’s ZTE Corp., Supreme Court Spokesman Jose Midas Marquez said.
Neri’s lawyer, Antonio Bautista, said the chairman of the Commission on Higher Education would appear before the Senate on Friday.
Marquez said that while Neri could invoke executive privilege to refuse to answer questions from the senators, he could be cited in contempt. The Senate, however, could not arrest Neri because of his pending petition before the high tribunal, he added.
Executive privilege is a constitutionally recognized right of the President to withhold from Congress, the courts and the public any information regarded as vital to the national interest. The material could include conversations and correspondence between the President and her officials on military, diplomatic and other national security issues.
Any contentious invocation of executive privilege would be brought to the Supreme Court, Marquez said.
Senate Majority Floor leader Francis Pangilinan meanwhile said that his colleagues have to be consulted first and they would notify the high tribunal on what they agreed upon within 24 hours.
Sen. Alan Peter Cayetano, chair of the Senate blue ribbon committee, said that he did not want the powers of the Senate to conduct legislative inquiries diminished. “There is already this resistance on the part of the executive department officials to appear in the Senate’s hearings either by invoking legalities or other means,” he said.
He said that under normal circumstances, the Senate may reject an invocation of executive privilege and order the official’s detention until he responded to the questions.
The justices, several senators and Neri’s lawyers met behind closed doors after the hearing where justices earlier said Neri could not invoke the privilege to cover up a crime.
Earlier, the high court, through Chief Justice Reynato Puno and Associate Justice Antonio Carpio, proposed that the Senate drop three questions they planned to ask Neri on a conversation he had with Arroyo on the NBN contract so the CHED chairman would appear at the inquiry.
These questions were: “Did the President follow it [the NBN contract] up with you?; Did the President tell you to prioritize [Chinese firm] ZTE? and; Did the President tell you to approve it?”
Arroyo has been linked to the NBN scandal since Neri disclosed in the only Senate hearing he attended that he had informed the President of the alleged bribe offered him by then Commission on Elections chairman Benjamin Abalos Sr. to endorse the contract awarded to ZTE Corp.
He claimed then that while Arroyo told him to ignore the bribe, she also asked him to look into the NBN contract.
Carpio also said that the executive privilege could not be invoked to cover up a crime.
“Can executive privilege be invoked to hide a crime?” Carpio asked Bautista.
“No,” Bautista acknowledged.
Bautista denied that Neri was covering up a crime, pointing out that Neri had disclosed the bribery attempt allegedly made by Abalos.
What his client did not want to reveal was his “freewheeling” and unstructured conversations with the President about whether to continue with the deal or to modify or scrap the project, and about Chinese lending practices, Bautista said.
“If Neri would be called to disclose these, we will be letting the President rule in a fishbowl,” he said.
Carpio pointed out that it was Bautista himself who “said, ‘Dwell on the impact of bribery scandals.’ This is not even a question but a fact.”
“Bribery is a crime under the Revised Penal Code,” Carpio reminded the lawyer.
“The moment you refer to a crime, it cannot be privileged,” Carpio said.
But Bautista pointed out that Neri and Ms Arroyo only discussed the scandal, not the bribery.
He said the alleged bribery attempt might embroil Chinese officials, which was why forcing Neri to disclose his conversations with the President could affect foreign relations.
“What’s the problem there, even if it cuts through members of the judiciary?” asked Justice Conchita Carpio Morales.
Bautista replied that conversations might endanger diplomatic relations and shame the country.
“Supposing there is bribery involving officials of China, it will embarrass us,” he said.
Carpio pointed out that if indeed there was bribery involved, then the payoff money would be shouldered by Filipino taxpayers since the project would be funded by a loan.
He then asked how the government should balance its interests when it comes to disclosing information about the deal.
“Should we protect diplomatic relations over interests of Filipino taxpayers? In weighing interests, what should the court do, protect Filipino taxpayers or the Chinese officials?” he asked.
Justice Consuelo Ynares Santiago also asked which was more important -- keeping the President’s communication confidential or uncovering anomalies.
Bautista said keeping the President’s communications confidential should take precedence because there were other sources of information to disclose the alleged anomalies, such as witnesses Rodolfo Lozada Jr. and Dante Madriaga.
Puno also asked whether the cancellation of the project had led to any diplomatic row.
When Bautista replied that there were reports of “ruffled feathers” in China, Puno said this was different from a diplomatic row.
Bautista said that if China would not lend the Philippine government money in the future, that would be a form of a “diplomatic reaction.”
The justices also asked Bautista how Neri’s attendance at the Senate inquiry would affect Arroyo’s performance of her duties.
Puno asked Bautista to “please tell the Court how the Office of the President will be hampered in the performance of its duties if Secretary Neri will attend the Senate hearing?”
The lawyer said there would be a “chilling effect” because the President might no longer talk in confidence to her subordinates if they are compelled to tell the Senate what she tells them.
But Puno said the claim of chilling effect was a conclusion, and the lawyers would have to explain the particular impact on Arroyo.
Puno and Carpio went through each of the three questions the Senate was interested in.
Puno said the first question whether the President followed up on the NBN project, if answered in the affirmative, would only show that she had an interest in the project, but not necessarily “undue” interest as Bautista argued.
Bautista said that if his client answered the question, it would affect the President negatively because of the prevailing “accusatory” atmosphere.
Carpio also wondered whether there was anything “morally or legally wrong” if Arroyo followed up the project with the NEDA.
On the question whether Neri was ordered to prioritize the NBN deal, Bautista said that if Neri answered this, the country could be subjected to criticism from other governments interested in the deal and from the public and lobbyists.
“But the project benefits the people ... If she orders its priority, should heaven fall on the President?” Puno replied.
Carpio also said Neri could have answered that it was not the NEDA which prioritized contracts.
On the question whether the President told Neri to approve the NBN deal with China after being told of the alleged bribe, Carpio said Neri could have answered that he was not the approving party.
Bautista said that if the question was answered with a yes, it could show that the President had undue interest in the project, but Puno said undue interest was just the lawyer’s personal opinion.
Puno also asked Bautista how asking Neri whether Arroyo ordered him to prioritize ZTE would “affect the powers and privileges of the Office of the President.”
Bautista said it would leave the President open to condemnation.
Earlier in the day, Carpio told Bautista that in citing executive privilege, Neri had not established the “military concerns” that would be divulged with his disclosure of the details of his conversation with the President, which he used as basis for his petition to the high court to stop the Senate from having him arrested to compel him to testify.
“You have not established any military connection in the negotiations in the NBN deal. How can we conclude that this will prejudice military secrets?” Carpio asked Bautista.
Carpio said Bautista would have to be “more specific” if they wanted his client’s non-appearance at the Senate to be covered by executive privilege.
Later, Associate Justice Teresita Leonardo De Castro also questioned Bautista why he cited “sensitive national security matters” as part of Neri’s reason for invoking executive privilege when this was not even part of the letter sent by Executive Secretary Eduardo Ermita to the Senate.
Bautista noted that the military, though not part of the negotiations for the contract, would be affected had the contract been effected.
Neri, whom Bautista said was “under the weather” when Puno asked where the former Cabinet secretary was, filed his petition last December 7, 2007 after the Senate ordered his arrest for failing to attend the hearings on the NBN contract.
“I ask because he may be of help to you if members of the court have some questions,” Puno said.
Bautista said that Neri had sent one of his consultants to shed light on the issue.
In his petition, Neri said that his absence in the November 20, 2007 hearing was duly answered by Executive Secretary Ermita, invoking executive privilege “by order of the President.”
Neri said Malacañang was concerned about “the impact of the bribery scandal involving high government officials on the country’s diplomatic relations and economic and military affairs, and the possible loss of confidence of foreign investors and lenders in the Philippines.”
He added that if the Senate would push through with his arrest, it would be a sign of disrespect on the part of the upper chamber for ignoring a co-equal body.
“The gross arbitrariness of respondent’s [Senate’s] order of arrest is patent on its face. This order of arrest eludes, and side-steps, the President’s invocation of executive privilege in behalf of petitioner...Quite clearly, respondent Senate committees would lord it over two co-equal branches of government, to wit, the President and the Supreme Court,” Neri said.
The high court issued a status quo ante, which barred the Senate from arresting Neri pending a ruling on his petition.
The Senate, through its counsel, Dean Pacifico Agabin, admitted there are parts of Neri’s conversation with the President that are confidential. But he also noted that the Senate could go into executive session on Neri’s request.
Pangilinan said they have held executive sessions in the past if the executive branch requested it.
“When there is a sensitive topic that is raised, we will not hesitate to go into executive session,” Pangilinan said.
On the other hand, Senator Manuel Roxas II said it is now up to the Supreme Court to pull the government and country out of the political stalemate resulting from the NBN scandal.
“The government -- the most potent force to bring change to the lives of people -- is locked in a stasis. The three branches of government are now caught in the mess that is the ZTE broadband deal,” he said.
Roxas said he continues to be optimistic the Supreme Court will decide in favor of truth and accountability.
“After hearing all the oral arguments, we hope that the Supreme Court will lift the status quo ante order, which will then lead to Secretary Neri’s appearance before the Senate. Kung ano ang sabihin ng Korte Suprema, iyon ay batas [What the Supreme Court says, that is the law]” he said. With reports from Leila B. Salaverria and Jerome Aning
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