Wednesday, February 27, 2008

Executive Privilege, the Case of Romulo Neri and Gloria's Radio Admission


oth the Senate leadership and the Catholic Bishops have joined in the call for President Arroyo to lift Executive Order 464--the gag order on all executive dept officials first imposed in connection with a Senate investigation into the Venable Contract and to stop the testimony of the Garci General Francisco Gudani about election fraud in Mindanao. Today, everyone is waiting with bated breath on how the Supreme Court might rule in the case of Romulo Neri's petition for prohibition against the Senate's arrest warrant for contempt, based on his claim of executive privilege based on EO 464 during that ill-fated Executive Session last year. Unfortunately for Senators, Bishops, and citizens alike, EO464 was already the the subject of a unanimous Supreme Court Decision in 2006, Senate v. Ermita in which the pith of the matter is all in the last paragraph--
WHEREFORE, the petitions are PARTLY GRANTED.
Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), “Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,” are declared VOID. Sections 1 and 2(a) are, however, VALID.
The basic effect of this unanimous decision of the PANGANIBAN COURT can be seen in the following color coded text of EO 464 in which the blue provisions are UPHELD while the red provisions are NULLIFIED:

EXECUTIVE ORDER NO. 464

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

      1. Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
      2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
      3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
      4. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
      5. Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

      1. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
      2. Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;
      3. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;
      4. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
      5. Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)


Going by the headings of EO 464, the Supreme Court upheld the President's right to require permission of her department heads before attending Question Hour hearings in Congress. (Section 1). They also upheld her definition of the Nature and Scope of Executive Privilege (Section 2a) , but struck down her coverage of persons, as opposed to information (Section 2b and 3).

To me, Senate v. Ermita was a "mitigated win" for Ermita and the Palace, and a "mitigated loss" for the Senate and the People. Its unanimity gives it extra force, and the fact that it substantially upheld the most potent portions of EO 464, the difference between "win" and "loss" is unmitigated!

I don't see how the Court could allow the arrest of Romulo Neri when he has substantially complied with the High Court's own requirements on how Executive Privilege is asserted, even if he has not satisfied the Senate, or the Public's Right to Know. For the Court unequivocally declares in its Decision:
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of “executive privilege.”
They may ask him to return just to re-assert Executive Privilege with their Permanent Writ of Prohibition against a pusillanimous Senate...

One development that the Court may or may not take judicial notice of is the apparent admission by the President during a radio interview about corruption ("katiwalian") attendant upon the ZTE deal...
Transcript of Gloria Macapagal Arroyo's Radio Statement

PGMA: “Nasumbong sa akin the night before the signing of the supply contract, pero hindi pa naman kasi...oh that was only one of many signings..so...eh pa paano mo naman makakansel the night before mayroon pang ibang bansang kausap...tinuloy yung signing pero sa unang pagkakataaon kinausap ko na agad yung pangulo ng china para sabihin sa kanya na kailangang kanselahin ang proyekto.”

RADIO ANNOUNCER: Naunawaan naman nila?

PGMA: “Sa umpisa hindi masyado, nagulat pero sa pangalawang paguusap ko sinabi na naintindihan niya, at ah at ah kaibigang kaibigan pa rin tayo kahit na kakanselahin ang proyekto. Eh hindi ko gusto ang katiwalian, ang taong bayan galit sa katiwalian, galit din ako..galit din ako sa katiwalian.”

It must be borne in mind that her husband lay possibly dying from a dissecting aneurysm when the President went to Boao, China for the signing of the ZTE supply contract. She does not say exactly what was told to her the night before the signing, but it's pretty clear that the reason the project had to be cancelled was KATIWALIAN, meaning corruption. The unavoidable conclusion is that what was told to her was about irregularities tainting the contract. Yet she signed the contract.

This is ground, in my opinion for the Court to rule that executive privilege cannot be used to hide possible irregularities or illegal activities by the Executive.

Fr Joaquin Bernas has his own thoughts on The Limits of Executive Privilege.



Ricky Carandang is reporting on a potentially explosive new flashpoint in the continuing saga of Gloria Macapagal Arroyo's slowly unreeling relationship with China. Did the President give away oil and gas exploration rights in the Spratley Islands in exchange for $2 billion a year in concessionary loans till 2010?

The latest Google Earth imagery of the Spratleys contain imagery of both permanent structures and what are tantalizingly labeled "Chinese warships?"












A previous Philippine Commentary on this topic was China's Greater East-Asia Co-Prosperity Sphere

10 comments:

pian said...

If we get rid of GMA because of this corruption scandal, then our country’s caretaker would be transferred to someone who was voted into office for the simple reason that he’s popular with the masses and nothing else. There’s a need to legitimize our democratic system first to minimize the risk.

blackshama said...

Pian

You have a typical middle to upper class aversion for whom the "masses" elect.

Popularity is part and parcel of a democracy. Barack Obama seems to be headed into the same popularity game as Noli de Castro. But I don't think you are condescending about the American "masa" as to our own.

The electoral process is legit since it is mandated by the constitution and it happens as what the conctitution says. We may have concerns whether who was elected was elected legitimately. But that is another story.

Our political development as a people is on track. One good thing about the ZTE-NBN La affaire Lozada is that people have realized that the Coryist and cleric mediated formula for people power will not solve our problems. The masa to a large extent have realized that more fundamental structural changes to our political and social systems are necessary.

Unfortunately we don't have somebody with the genius of a Lenin to grab the opportunity. (Forget Joma Sison! or Trillanes! They are just as fossilized as our people power ideologues!) Those who have read revolutionary history know that Lenin wasn't really a bright fellow as Trotsky was. Lenin knew he was lucky.

The attitude of aversion we in the educated classes have long shown is the reason why the middle class can kick out the corrupt today and have another corrupt replacement the next day.The middle classes rarely if ever consolidate their hold on power. The irony is that the middle classes are really the seedbeds of reform.

blackshama said...

DJB

What Our Glorious Queen said on air is so sooooo George W Bush. Bush has got into interview knots when asked about whether there was WMD in Saddam's Iraq.

Richard said...

"blackshama said...

DJB

What Our Glorious Queen said on air is so sooooo George W Bush. Bush has got into interview knots when asked about whether there was WMD in Saddam's Iraq.
4:54 PM, February 28, 2008"

So you are claiming that she is cut from the same cloth as GWB? Why don't you look around google a bit? She's a Clinton through and through. The truth hurts, doesn't it my friend?

Amadeo said...

"Barack Obama seems to be headed into the same popularity game as Noli de Castro."

While essentially true, the followers and/or the primaries constituents of Obama however are not typically the "masa" of US society. They are comparatively the more educated, younger, and are up there income-wise, among the Democrats of course. Clinton has more of the "masa" in the minority groups and even in the majority ethnic group.

blackshama said...

Richard

Richard

She is has been tailored for the same cut of cloth as GWB. That's what happens if you are President. You are accountable only to yourself and to the electorate come election time.

If she were Premier then she would be accountable to Parliament 24 hours a day. Statements like what she made on air would make interesting viewing during Question Hour.

I really don't care if Gloria is like Hillary. Hillary may have learned a few pointers from Our Glorious Sovereign. Students of history know that power does something to a woman! And women have similar characteristics when they are in charge. I won't be politically correct here. Women seem to apply this power in an extreme way. Take for example Elizabeth I, Mary I, Maggie Thatcher,Chandrika Kumaratunga, Elizabeth II (even with Bagehot Constitutional limitations to her powers,she can make or break someone's reputation)

Amadeo

As I have said earlier, America would elect an atheist as long as he is male,over a woman even if she were a Senator.

mbw said...

Blackshama at 4:49 PM, February 28, 2008

Well said!

pian said...

TO BLACKSHAMA
Obama may be popular, but he gained that popularity thru eloquent speeches, so he still struggled to prove to the people why he deserved the presidency. In our case, the VP didn’t have to prove why he deserved to be VP. He’s simply popular with the masses.

pian said...

Below is a transcript of a supposedly wiretapped conversation between Joey and Jun I got from a website. Judge for yourself if Jun Lozada is indeed deserving to be treated a hero, but of course after ascertaining if this is genuine.
usapang udifuta
________________________________________
TRACK 3...

http://www.patriots4truth.blogspot.com

Joey (allegedly, Joey de Venecia): Hey Jun.
Jun (allegedly, Jun Lozada): Hey Joey.
Joey: Jun, can you hear me?
Jun: Yeah. Go ahead.
Joey: Yeah, where are you to put Chair (Abalos)?
Jun: Ang formula ko doon is kuha ako ng points dun sa 130.
Joey: Uh-huh…
Jun: Di ba? Kasi saan ko pa kukunin di ba? (laughs) Itong mga …
Joey: Kaya lang pare, we need to get some… at least from… something from them, di ba?
Jun: Yeah.. from both sides. P*t@ng!na…
Joey: Pare.. start from the thing.. Because he’s the gatekeeper of the votes. P*ta. I can understand, but not that amount.
Jun: Oh yeah. that’s too big, right. That’s too big.
Joey: Pare, let’s develop a plan to talk to him.
Jun: Yeah, yeah, yeah. So…
Joey: And you know what he told me, between you and I. When we were in Hong Kong… in Shenzen. Don’t quote me ha. Sabi niya kasi, marami akong…... Tinanong ko bakit ba ang laki-laki? Singkwenta.. Sabi niya marami ako kelangan bigyan. Pati yung NEDA. He said the word NEDA ha. P*t@ngina. For your information pare.
Jun: Information? I would understand that… He’d like to look at…
Joey: Maybe, wait, you can quote me and say, sabi ni Joey meron daw… sabi mo sa kanya may NEDA dun. (laughs) Di ba? He told me pare. (laughs)
Jun: Sige, sige…
Joey: P*t@ng!na, baka magwala na naman yung… (laughs)
Jun: For some reason, I have this chemistry with him. Sabi ko Chair… In fact, sabi niya, Jun, ikaw na mag-referee bukas ha. Sabi niya, I want you to be there. Ikaw na mag-referee, ikaw na magsabi kung papaano. Sige po Sir, ako na ang mag-aano sa ano… (laughs)
Joey: Well anyway, so that’s where I’m looking at right now. .. ought to get you.. And then, uh, think of a strategy for Ben (Abalos?), and if you need me to back you up, I’ll be there.
Jun: Hey Joey, regarding this Chinese embassy thing. I think I struck a motherload no? I’ll put them in Roxas Boulevard. P*t@ng!na, di ba?
Joey: In the Reformation? (Reclamation)
Jun: No, p*t@ng!na, that’s not prime. We’ll put them in the CCP complex.
Joey: Yup, got it.
Jun: P*t@ng!na. Yeah, that’s, wala.. I can ??? that ??? agreement. (I can swing that gddam deal pare)
Joey: You mean, owned by the Central Bank?
Jun: Yeah! Can you imagine? P*t@ng!na, same stature as the American embassy, better pa, di ba? The Japanese Embassy is in Roxas Boulevard. The American embassy is there. So p*ta, I just arrived that we put the Chinese embassy right in the midst of it all, di ba? Joey: Yes, yes, of course. That’s ??? to hear. That’s foresight. (That’s perfect)
Jun: … don’t mention my name. I think he knows me well.
Joey: Gaano kalaki, pare?
Jun: P*t@ng!na, as much as 15 hectares. (laughs)
Joey: P*t@ng!na. Tapos siguro kumuha rin tayo dun. Pero we need 10 finances. (10 financers)
Jun: No, no, no, no. P*t@ng!na. I cannot just tell you all the things that I’ve been asked to do. But that one I think, I can ??? for ourselves.
Joey: I’ll talk to the…
Jun: Talk to him right away.

Anonymous said...

From http://www.quezon.ph/?p=1701 of Manuel L. Quezon III

In light of the above, something John Mangun wrote on April 25, 2005 in "The Philippines and China: A Bad Match" now makes perfect sense:

Malacañang refuses to accept and deal with the fact that China invaded, occupied, and stole Philippine territory in the South China Sea. The Spratleys may be worthless outcroppings or the gateway to boundless treasure. It does not matter. Those atolls and islands are Filipino property as much as the ground on which the President walks each day. China’s conduct and treatment of the Philippines shows their inconsistency and lack of honesty in their conduct of foreign relations.

To view China and Japan similarly in our economic relations is a disaster for the nation. Madame President, listen well: China is a business COMPETITOR; Japan is a buying CUSTOMER. Fifteen years ago, ninety percent of all Christmas ornaments and decorations sold in the United States were imported from the Philippines. Now that ninety percent comes from China. The same trend occurred with Philippine garments and shoes.