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Senate Committee
April 3, 2008 in CuRReNT IsSues
Primer on the Supreme Court Decision in
Neri vs. Senate Committee and its Implications
IN GENERAL:
What events led to the filing of the case before the Supreme Court?
On April 21, 2007, the DOTC and Zhing Xing Telecommunications
Equipment (ZTE), a corporation owned by the People’s Republic of
China, executed a “Contract for the Supply of Equipment and Services
for the National Broadband Network Project” (NBN-ZTE Contract) worth
US$329,481,290.00 (around PhP 16B). The project sought to provide
landline, cellular and internet services in government offices
nationwide and was to be financed through a loan by China to the
Philippines. President Arroyo witnessed the contract signing in
China.
In one of the hearings held on Sept. 26, 2007, former NEDA Director
General Romulo Neri testified that President Arroyo initially gave
instructions for the project to be undertaken on a Build-Operate-
Transfer (BOT) arrangement so the government would not spend money
for it, but eventually the project was awarded to ZTE with a
government-to-government loan from China. He also said that then
COMELEC Chairman Benjamin Abalos, the alleged broker in the project,
offered him PhP 200M in exchange for NEDA’s approval of the project.
Neri testified that when he told President Arroyo of the bribe offer,
she told him not to accept it. But Neri refused to answer questions
about what he and the President discussed after that, invoking
executive privilege since they concerned his conversations with the
President. The Senate required him to appear again and testify on
November 20, 2007. On November 15, 2007, Executive Secretary Eduardo
Ermita wrote the Senate Committees and asked that Neri’s testimony on
November 20, 2007 be dispensed with because he was invoking executive
privilege “by Order of the President” specifically on the following
questions:
When Neri failed to appear on November 20, 2007, the Senate required
him to show cause why he should not be cited in contempt. Neri
explained that he thought the only remaining questions were those he
claimed to be covered by executive privilege and that should there be
new matters to be taken up, he asked that he be informed in advance
of what else he needs to clarify so he could prepare himself.
On Dec. 7, 2007, Neri questioned the validity of the Senate’s show
cause order before the Supreme Court. On January 30, 2008, the
Senate cited Neri in contempt and ordered his arrest for his failure
to appear in the Senate hearings. On February 1, 2008, Neri asked the
Supreme Court to stop the Senate from implementing its contempt
order, which the Court granted on Feb. 5, 2008. The Supreme Court
also required the parties to observe the status quo prevailing before
the issuance of the contempt order.
The Supreme Court said there were two crucial questions at the core
of the controversy:
On the first question, the Supreme Court said that the communications
sought to be elicited by the three questions are covered by the
presidential communications privilege, which is one type of executive
privilege. Hence, the Senate cannot compel Neri to answer the three
questions.
On the second question, the Supreme Court said that the Senate
Committees committed grave abuse of discretion in citing Neri in
contempt. Hence, the Senate order citing Neri in contempt and
ordering his arrest was not valid.
The privilege covers only those functions which form the core of
presidential authority. These are functions which
involve “quintessential and non-delegable presidential powers” such
as the powers of the president as commander-in-chief (i.e., to call
out the armed forces to suppress violence, to declare martial law, or
to suspend the privilege of the writ of habeas corpus), the power to
appoint officials and remove them, the power to grant pardons and
reprieves, the power to receive ambassadors, and the power to
negotiate treaties and to enter into execute agreements.
Does the grant of the claim of executive privilege violate the right
of the people to information on matters of public concern?
a. Neri appeared before the Senate on Sept. 26, 2007 and was
questioned for 11 hours. He also expressed his willingness to answer
more questions from the Senators, except the three questions.
b. The right to information is subject to limitation, such as
executive privilege.
c. The right of Congress to obtain information in aid of
legislation cannot be equated with the people’s right to
information. Congress cannot claim that every legislative inquiry is
an exercise of the people’s right to information.
What reasons were given by the Supreme Court in holding that it was
wrong for the Senate to cite Neri in contempt and order his arrest?
The decision, for instance, requires the Senate to give its questions
in advance of its hearings. But this is a requirement applicable
only to the question hour and not to inquiries in aid of
legislation. Moreover, it is impractical, since follow-up questions
of Senators will be difficult to anticipate.
Can the Senate continue with its investigations despite the Supreme
Court ruling?
The decision does not stop the Senate from continuing with its
investigations and from undertaking other inquiries, although the
government has already declared that officials will not appear unless
the Senate rules are first published. Should Neri (and other
officials) appear, the Senate can ask him questions other than the
three questions. But Neri may again invoke executive privilege on
other questions, which could result in another case before the
Supreme Court, and the cycle may be repeated again and again. Such a
situation, particularly where there appears to be a pattern of
concealment in government activities, will ultimately be harmful to
public interest.
Prepared by:
ATTY. CARLOS P. MEDINA, JR.
Ateneo Human Rights Center
March 30, 2008
Source: http://aryamarya.wordpress.com/2008/04/03/primer-on-the-sc-decision-in-neri-vs-senate-
committee/