Presidential secrecy

NOW THAT THE SUPREME COURT HAS resumed its regular sessions after its month-long summer break in May, our people eagerly await the resolution of many pending public interest cases. At least three of them involve presidential secrecy, legally known as executive privilege.

Secrecy of conversations. High on the list is the Senate’s motion for reconsideration of “Neri vs Senate Committee on Accountability” that sealed the lips of former Neda chief Romulo Neri. Because of its high public character, the decision (issued on March 25, 2008) and the plea for reconsideration have been discussed extensively by media. Hence, I will no longer belabor the pros and cons. Suffice it to stress that whatever way the Supreme Court resolves the motion, whether to affirm, to modify or to reverse the judgment, will shape not only the contours of existing jurisprudence but also more critically the public esteem for the Court.

As I wrote in this space last March 30, “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?”

Truly, by the way it rationalizes its ruling on the motion, the Court will define itself and express its choice. By its judgment, the tribunal itself will be judged.

Secrecy of documents. However, “Neri” is not the only pregnant case on executive privilege. Equally riveting is “Roxas vs Ermita” (GR 180030). Here, Senators Mar Roxas and Noynoy Aquino have asked the high tribunal to compel Neda Director General Augusto B. Santos (Romulo Neri’s successor) to submit to the Senate the minutes of the Neda meetings and other pertinent documents that led to the approval of the infamous NBN-ZTE broadband deal.

While the Neri decision upheld the refusal of a Cabinet member from revealing his damning conversation with President Macapagal-Arroyo, the Roxas-Aquino petition seeks the revelation of documents involving the same anomalous NBN-ZTE contract.

In both cases, Executive Secretary Eduardo Ermita invoked executive privilege “without any justification at all why” secrecy, not transparency, should be observed. His invocation was not even addressed to the Senate but merely in his directive to Santos who, in turn, used it to snub the Senate order commanding him to submit the relevant papers.

Justifying their dogged search for truth, petitioners—through counsels Pacifico Agabin and Jose Anselmo Cadiz—argue that the documents are essential to aid them “in intelligently studying” several pending bills involving “the procurement of infrastructure projects, goods and services,” and “imposing safeguards in contracting foreign loans” like the one intended to fund the NBN-ZTE contract.

Several days ago, the Organization of Neda Employees (One) issued a feisty statement calling for the disclosure of “pertinent official documents on NBN.” One lamented, “For months now, with blind allegiance, we have been complying with the gag order and meekly bearing the pain of persecution and harassment from legislators, the media and the general public. Despite knowing that information is key to the public understanding of this institution’s functions and processes, top management has chosen to keep silent and inactive.”

Again, the crucial question is: Will the Court find the courage to enforce the constitutional mandate of transparency and accountability for all public officials? We who have walked its hallowed portals fervently hope that it can brilliantly reason its decision—whatever it may be—so we can proudly continue acclaiming it as the last bastion of democracy in our country.

Secrecy of diplomatic negotiations. Another ripe case involving executive privilege is “Akbayan vs Aquino,” which seeks the Court’s intervention to compel the government to disclose the “behind the scenes” negotiations that led to the conclusion of the Japan-Philippines Economic Partnership Agreement (Jpepa).

Although signed by President Macapagal-Arroyo and then Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland on Sept. 9, 2006 and approved by the Japanese Diet shortly thereafter, the bilateral treaty—together with its annexes totaling about 1,000 pages—is not yet effective because our Senate has not given its concurrence, as required by our Constitution.

Many constitutional, economic and policy issues have been raised against the agreement. Party-list Akbayan claims that our country is disadvantaged because our treaty negotiators allegedly agreed to many Japanese demands that could be known only if the negotiations, including the various offers and counter-offers, are publicly revealed.

On the other hand, the government contends that these conversations constitute diplomatic secrets that are legitimately covered by executive privilege. If these negotiations were revealed and the diplomatic immunities of other states wantonly violated, no nation on earth would thenceforth negotiate with our country. The Philippines would become a pariah in the world. This time, can confidentiality be validly upheld as an exception to our stringent transparency rule? Abangan.

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