Suppressing Neri’s testimony

MANILA, Philippines — Former Socioeconomic Planning Secretary Romulo L. Neri snubbed the Senate hearing held last week on the controversial $329-million national broadband network (NBN) project. In lieu of his personal appearance, Executive Secretary Eduardo Ermita sent a letter to the Senate Blue Ribbon Committee, justifying Neri’s absence on a nebulous claim of executive privilege.

Let the Court decide. Earlier, Neri boldly testified before the Committee that resigned Commission on Elections Chair Benjamin Abalos offered him a bribe of P200 million. “Sec, may 200 ka rito,” Abalos allegedly whispered to him. When questioned on President Macapagal-Arroyo’s involvement, he clammed up, asserting executive privilege.

“Bring the case to the Supreme Court,” sneered Presidential Legal Counsel Sergio Apostol. By daring the Senate to sue, Apostol probably calculated that the risk of a Supreme Court defeat would be less damaging to GMA than a media feast on Neri’s expectedly damning revelations.

What chance of victory does Malacañang have in the Supreme Court? To answer that question, there is a need to review the requirements for the proper invocation of executive privilege, per the decisions of the Court, especially the latest one, “Senate vs Ermita,” (April 20, 2006) ably written by Justice Conchita Carpio Morales. I will discuss the parameters born of Philippine jurisprudence, and no longer the United States cases that Dean Raul C. Pangalangan already deftly analyzed in his last column.

Congressional right to information. First, Congress—in aid of legislation—has a constitutional right to obtain information from the Executive Branch. On the other hand, executive officials—especially Cabinet members—have the corollary duty to provide the legislature with information to enable it to perform its law-making function wisely. Hence, the congressional power of inquiry is as extensive as the power to legislate. Legislative investigations must always be conducted in accordance with duly published rules of procedure, and respect the constitutional rights of witnesses or resource persons.

Second, the President may withhold information that falls under any of these three categories: (1) state secrets “of such nature that (their) disclosure would subvert crucial military or diplomatic objectives”; (2) informer’s privilege, or “the identity of persons who furnish information on violations of law to officers charged with the enforcement of that law”; and (3) “generic privilege for internal deliberations—by which governmental decisions and policies are formulated,” for example, discussions during closed door Cabinet meetings.

Public interest is paramount. Third, disclosure is the rule and secrecy is the exception. It is not enough that the claim for exemption falls among the aforesaid categories; it must be assessed “in the context it is made”—that is, it must demonstrate the superiority of the public interest that would be served by the grant of the privilege.

Fourth, “in light of the highly exceptional nature of the privilege,” only the President of the Philippines may personally avail of it. “She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is ‘By order of the President’ which means that he personally consulted with her.”

Fifth, executive privilege refers to categories of information, not of officials. The privilege can extend to anyone who knows the secret information. Thus, the testimony of a waiter who served snacks and heard secrets during a closed-door Cabinet meeting may be given the privilege.

Sixth, the legislative invitation or subpoena should indicate the general nature of the inquiry, the possible questions to be asked and the proposed legislation. Similarly, an exemption request, signed by the President or the executive secretary as above described, must state the facts and the reasons why the desired information should be restricted. The justification should contain sufficient details to enable Congress to decide prudently whether to grant the request for secrecy. In case of dispute, the Supreme Court shall judge the validity of the claim.

On the basis of these parameters, it is quite clear that the Palace has not justified its bravado for secrecy. It has not explained what superior public interest would be served by the suppression of Neri’s testimony. Neither has it gone through the process required for the invocation of the privilege.

Palace strategy. I am confident that, if this claim of secrecy in the NBN scandal reaches its dockets, the Supreme Court will decide it promptly and prudently as it did “Senate vs Ermita.” Sad to say, howe ver, that despite the speed and wisdom by which that earlier case had been ruled upon, the legislative inquiries that ignited it: (1) “the so-called fertilizer scam” involving Joc-Joc Bolante; (2) “the NorthRail investigation”; (3) the “Hello Garci” fiasco; and (4) “the Venable contract” remain in limbo, still awaiting definitive Senate action.

To avoid messy problems, it seems the Palace strategy is simply to muddle issues, delay their resolution, divert public attention to new scandals, and tiptoe from crisis to crisis; never mind the erosion of public confidence, never mind public opinion, and damn the public treasury.

So far, the strategy has worked. There has been no sufficient public outrage. Not enough anyway to rattle and shoo away GMA. Kawawa naman tayong mga Pinoy!

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