Arroyo Supreme Court?

MANILA, Philippines—In the olden days, kings and queens ruled their domains absolutely according to their wiles and whims. They were not bound by pre-agreed rules to guide their actions. They simply imposed their wicked ways on the hapless people.

Constitutional democracy. As time went by, absolute rulers were deposed and new ones democratically selected. The chosen took the place of the kings but their powers were severely limited by constitutions and laws crafted by elected representatives. The rule of law prevailed when the chosen leader ran the country pursuant to the constitution and statutes, no longer by unpredictable wiles and whims.

In our country, the elected ruler who took the place of the king is the president. As in all constitutional democracies, not all the kingly powers are vested on the President. The authority to make laws is with Congress. The Supreme Court reviews executive acts to assure the reign of the rule of law. To further restrict the kingly prerogatives, the Constitution has created several other agencies like the Commission on Elections, the Commission on Audit, and the Ombudsman.

At present, President Macapagal-Arroyo, by her lonesome, commands the armed forces and the police. She spends more than 95 percent of the national budget, controls more than 95 percent of all national employees and supervises all provinces, cities, towns and barangays. Although the Supreme Court, Comelec, COA, and OMB are designed to be independent, the President appoints all their members.

Awesome powers. Indeed, the powers of the president are awesome. She could run the country by herself, without need of the Supreme Court, Congress, Comelec, etc., as ably demonstrated by Ferdinand Marcos. In fact, a repressive and corrupt president could use his or her prerogatives to subdue these agencies and thus enable him or her to rule the nation like the monarchs of old.

This is why the vitality of our democracy is dependent on the courage and competence of these agencies and their members to review and check presidential actions. This is also why there is unease, if not teeth-gnashing, when these agencies, especially the Supreme Court, unreasonably expand executive prerogatives, or inexplicably fail to check abuses.

“Neri vs Senate Committee on Accountability,” promulgated last March 25, is a case in point. I have read the 35-page ponencia of Justice Teresita Leonardo de Castro plus the concurrences of Justices Renato C. Corona (21 pages), Dante O. Tinga (14 pages), Presbitero J. Velasco Jr. (nine pages), Antonio Eduardo B. Nachura (15 pages) and Arturo D. Brion (nine pages), as well as the stirring dissents of Chief Justice Reynato S. Puno (120 pages), Consuelo Ynares-Santiago (seven pages), Antonio T. Carpio (36 pages), and Conchita Carpio Morales (31 pages).

With due respect, I believe that the majority decision failed to check presidential abuse; worse, it imprudently expanded executive privilege to cover wrongdoings.

First, to justify Secretary Romulo Neri’s refusal to answer the three questions linking President Arroyo to the ZTE-NBN mess, the majority considered “conversations that take place in the President’s performance of (her) official duties—presumptively privileged.” It deemed the bare, proof-less claim of Executive Secretary Eduardo Ermita that Neri’s disclosures “might impair our diplomatic as well as economic relations” with China. It faulted the Senate with rank failure to explain a “critical or compelling need for the answers.”

By shifting the burden of proof to the Senate, the nine-member majority reversed the much-acclaimed “Senate vs Ermita,” issued just two years ago, that unanimously placed the duty of proving the need for secrecy on the president. Disclosure is the rule because the Constitution expressly mandates transparency and accountability for all officials.

Second, by giving the “presidential communications privilege” presumptive confidentiality, the majority inexplicably expanded kingly prerogatives. It unreasonably suppressed the truth.

Third, executive privilege is not expressly provided in the Constitution. There is no sentence or clause mentioning the privilege directly. The Supreme Court merely implied it from other presidential powers. In contrast, the power to investigate in aid of legislation is expressly granted by the Constitution to Congress. In a clash between these two prerogatives, the choice is clearly in favor of the express grant.

Fourth, the majority agreed with the Senate that executive privilege should not be used to hide a crime or wrongdoing. Well and good. Yet, it still ruled against disclosure on the convoluted argument that “US vs Nixon” involved a “pending criminal action,” while the Neri petition related to a “legislative inquiry.” As I see it, this American case is simply inapplicable. The majority should have relied on the constitutional mandate requiring transparency and accountability of officials. Its decision would have been a great landmark.

An epochal Supreme Court is endearingly named after its chief, like the Davide Court or the Teehankee Court. However, when it unduly legitimizes kingly excesses, it is derisively named after the president it serves, like the Marcos Supreme Court. As a retired chief justice, I would like to believe that the Neri decision is a mere aberration and would not suffice to label the present tribunal as the Arroyo Supreme Court. But then, it must quickly choose what it wants to do. Is it to serve or to check President Arroyo?

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