Philippines Needs Whistleblower Protection Laws

Gloria Macapagal Arroyo's presidency is characterized by the destructive struggle between Executive Privilege of the President and the Powers of Inquiry and Oversight of the Congress. Ruling on the challenge to Executive Order  No. 464 in Senate v. Ermita the Supreme Court unanimously established and clarified the nature, scope, coverage and application of the Principle of Executive Privilege, an implied power of the Chief Executive under the Constitution.  In comparison the Powers of Inquiry and Oversight of the Congress are explicit, enumerated powers, duties and functions that in a plain reading of the text of the Constitution, needs little if any construction by the SCoRP.

In 1909 then U.S. President and former Governor General of the Philippine Islands, William Howard Taft issued an Executive Order (reminiscent of PGMA's own infamous EO464) which prohibited all U.S. civil service employees from communicating directly with Congress without his permission:

President Taft: "It is hereby ordered that no bureau, office, or division chief, or subordinate in any department of the Government, and no officer of the Army or Navy or Marine Corps stationed in Washington, shall apply to either House of Congress, or to any committee of either House of Congress, or to any Member of Congress, for legislation, or for appropriations, or for congressional action of any kind, except with the consent and knowledge of the head of the department; nor shall any such person respond to any request for information from either House of Congress, or any committee of either House of Congress, or any Member of Congress, except through, or as authorized by, the head of his department."

But in 1912, the U.S. Congress responded with specific laws that bolstered the Congressional Power of Inquiry against such assertions of executive privilege with the 1912 Anti-Gag Law and Whistleblower Protection Laws (PDF) which mandated that "The right of any persons employed in the civil service . . . to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with.”

In the United States Congressional Oversight Manual it states that,

A traditional method of exercising the oversight function, an implied power, is through investigations and inquiries into executive branch operations. Legislators often seek to know how effectively and efficiently programs are working, how well agency officials are responding to legislative directives, and how the public perceives the programs. The investigatory method helps to ensure a more responsible bureaucracy, while supplying Congress with information needed to formulate new legislation.

Amazingly, just like the implied Power of Oversight of Congress, the Executive Privilege of the President is apparently also an implied power under the grander principle of the Separation of Powers in a tripartite government. Neither the US nor Philippine Constitutions even contains the term "executive privilege" --

EXECUTIVE PRIVILEGE: A Missing Clause in the US Constitution? Presidents have claimed the power to withhold information from the courts and Congress, but no clause of the Constitution speaks of such a power, and questions regarding this are contentious and undetermined. The Supreme Court has ruled that presidential communications are protected by a privilege that is "fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution."

Of course, the SCOTUS has decided many cases involving a conflict between Executive Privilege and the right of the Courts to that privileged information if it is evidence in criminal prosecutions of executive department officials, as happened in the celebrated 1974 case United States v. Nixon. However, although there are allegations of criminal wrongdoing in the ZTE NBN deal, the Senate Blue Ribbon Committee is clearly not a Court of law and there is no criminal proceeding there in which his testimony is required as evidence. This could be used to argue that US v. Nixon does not apply exactly to Neri v. Senate. But how DOES it apply, if it does at all?

Last year, during the hearings into cases filed against FG Mike Arroyo and resigned Comelec Chairman Benjamin Abalos, the Ombudsman panel decided to secure official transcripts of the various Senate hearings, thus taking judicial notice of those hearings, at which testimonies were after all rendered under oath. Clearly the Senate hearings have already gathered and produced information that potentially is material and relevant to a criminal proceeding. Indeed, it would not be the first time that an inquiry of the Congress has produced criminal prosecutions as well as evidence.

But U.S. v. Nixon was a case of conflict between the Executive and the Judiciary. The Supreme Court of the United States (SCOTUS) has never decided a case in which the Principle of Executive Privilege of the President is directly pitted against the Powers of Inquiry and Oversight of the Congress--which is precisely the awesome task that now faces the Philippine Supreme Court. in the coming landmark Supreme Court decision, ROMULO NERI v. SENATE of the PHILIPPINES.

There is one parallelism that is significant. Although in the United States the Power of Inquiry and Oversight into Executive branch operations is an implied power, in the 1987 Philippine Constitution it has the force of a full and uncontroverted Constitutional provision empowering not only House and Senate but their Committees:

1987 Article Six Section 21: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.

Moreover, it seems to me there is also basis for whistleblower laws in the related provision:

1987 Article Six Section 22: The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

To make the English Compositional structure of the above provision clear, let me print it like this to make it clear why the Congress could easily pass a Whistleblower Protection Act,

"The heads of departments may,

[1] upon their own initiative,
[2] with the consent of the President, OR
[3] upon the request of either House,

as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments."

In Senate v. Ermita and EO 464 above provision plays a central role, but not as the Constitutional basis for whistleblower protection as I am now suggesting.

In the scales of the Balance of Justice in the case of Romulo Neri are the implied power of Executive Privilege to withhold information from the Judiciary and Congress as against the enumerated power of inquiry of the Congress.

Continuing along this fundamentalist vein, intelligent Filipinos ought to be inquiring further now into the Constitutional basis of such power of inquiry, which does not exist for Executive Privilege except by implication.

There is a simple explanation why SCOTUS has never faced a case like Neri v. Senate. It is simply the historical fact that the US Presidents have steered clear of using executive privilege against the Congress. Part of the reason is that the US Constitution actually grants the Congress broad powers, explicit and implicit, to elicit information from all departments of the government in aid of legislation and oversight of administration--which is the entire process of making and remaking the laws.

1. The power of the purse.

2. The power to organize the executive branch.

3. The power to make all laws for “carrying into Execution” Congress’s own enumerated powers as well as those of the executive.

4. The power to confirm officers of the United States.

5. The power of investigation and inquiry.

6. Impeachment and removal. Impeachment provides Congress with a powerful, ultimate oversight tool to investigate alleged executive and judicial misbehavior, and to eliminate such misbehavior through the convictions and removal from office of the offending individuals.

For me, the overall picture that emerges is that the specific power of inquiry to conduct investigations in aid of legislation is part and parcel of almost anything the Congress does. Without the Power of Inquiry, the Congress cannot accomplish its duty to wisely make AND remake the laws.

The fulcrum  issue for the Philippine Supreme Court's delicate balancing act in the forthcoming historic decision, Neri v. Senate, could be framed as follows:

If the Prayer of Romulo Neri to prohibit the Senate from arresting him for contempt is granted, how would it affect the ability of the Congress and the President to do their respective duties?

The power of inquiry is actually part of a large and interconnected set of powers all related to the Right of Congress to information to do its job of making and remaking all the laws of the land. This suggests to me that in fact, the Power of Inquiry IS the institutionalization of the Public's Right to Know. Press Freedom, which is the power of inquiry of organized commercial journalism, is also based on the Public's Right to Know. But in Congress, the Truth, the whole Truth and nothing but the Truth is required of all statements under oath or affirmation. That stringent requirement does not exist for the Free Press, which is allowed to sell not only the "truth" but also entertainment.

Thus, I would say that if the Supreme Court hold Press Freedom in the highest regard, it cannot but hold the Congress' Powers of Inquiry and Right to Information in aid of legislation to be at an even higher level of priority.

Finally, the vast enumerated powers of inquiry and oversight of the Congress represents the power of the entire Filipino people to know the truth so they can make and remake the laws for their own benefit and interest. This is to be balanced against the weight of Executive Privilege which belongs strictly speaking to exactly ONE PERSON only.

Notes on Teddy Boy Locsin's "Ruling" on Executive Privilege

Manuel L. Quezon III points us to an opinion written by Rep. Teddy Boy Locsin (Makati) regarding the case of Romulo Neri (published before the decision was handed down). As Teddy Boy was perspicacious enough to enumerate each point and paragraph, I have organized some caveats in the manner of Kurt Godel's Platonic riposte's to Ludwig Wittgenstein...

Notes towards a circumspect ruling on Executive Privilege
By Teodoro L. Locsin, Jr. (Rep., Makati 1st District)

LOCSIN: 1. The issue of executive privilege before the Court arose from an investigation by three joint committees of the Senate; not by the Senate as a committee of the whole, let alone the joint houses of Congress. It is inaccurate then to describe this as a conflict between coequal branches of government but rather between parts of one branch—and at that the smaller rather than the larger representative House—and the President. The House alone, as The Grand Inquest, is empowered to investigate misconduct with a view to impeachment. Never the Senate, which must stand apart so as not to disqualify itself as an impartial court of impeachment.

Caveat 1.1 Senate investigations in aid of legislation are covered by the following provision in the 1987 Constitution:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected."

This ought to dispel any doubt that mere committees of the Senate and the House are fully endowed by the Constitution with the power to conduct inquiries in aid of legislation. This being so, the idea that part of a branch of the government is somehow less than the whole branch is truly hairsplitting, since the power endowed is itself undiminished.

Caveat 1.2 As to the larger number of Members of the House, calling it the "Grand Inquest" does not diminish the fact that the Senate and its committees are equal in every respect to the House of Representatives and its committees with respect to such endowed powers. Perhaps Teddy Boy has already forgotten the lessons of CON-ASS! and the FACT of a bicameral Congress.

Caveat 1.3 The lead committee in this investigation is the Blue Ribbon committee:

Jurisdiction: All matters relating to, including investigation of, malfeasance, misfeasance and nonfeasance in office by officers and employees of the government, its branches, agencies, subdivisions and instrumentalities; implementation of the provision of the Constitution on nepotism; and investigation of any matter of public interest on its own initiative or brought to its attention by any member of the Senate. Rule X, Section 13 (36) .

Caveat 1.4 Regarding the point of Teddy Boy on impeachment, he delivers a double insult, first to the right honorable Senators and their integrity which he dishonorably questions right there and then. Moreover, when the Senate sits as an impeachment court it does indeed sit as the entire Senate, under oath or affirmation. Yet didn't Teddy Boy just lecture us on how these investigations are being conducted by mere committees of the Senate? Surely we cannot discriminate against Senators as possible discoverers of malfeasance, misfeasance or nonfeasance!

Caveat 1.5 And of course there is a jarring dissonance between the honorable House's actual record at investigations in aid of impeachment and the grandiloquent ring to "Grand Inquest" [sic!].

LOCSIN: 2. In what may be the first instance of executive privilege, George Washington reluctantly shared but only with the Senate papers pertaining to the Jay Treaty and explained his refusal to show them to the House by the latter’s failure to indicate an intention to impeach him. The Senate shared with the President, in some but by no means all respects, the conduct of foreign affairs. But before a House Justice committee investigation with a view to impeachment, executive privilege, especially on matters touching on the President’s integrity, can put up only a weak defense. “The political efficacy of presidential assertions of executive privilege is perhaps most limited in the context of congressional impeachment proceedings. It would be a ‘mockery’ indeed, to quote John Quincy Adams, ‘to say that the House should have the power of impeachment extending even to the President…himself, and yet to say that the House had not the power to obtain the evidence and proofs on which their impeachment was based.’ The same could of course be said of the Senate’s power to try impeachments. Indeed, assertions of executive (or other) privilege that unjustifiably thwart impeachment investigations and trials can themselves quite properly become the basis for an article of impeachment.” [Laurence Tribe, American Constitutional Law 3rd Ed, 787.]

Caveat 2.1 That a committee of the Senate such as the Blue Ribbon cannot be properly the SOURCE of such convincing evidence (that even our pusillanimous House would be compelled to impeach the President) is hardly an acceptable conclusion, given the mandate of for example the Blue Ribbon Committee.

Caveat 2.2 If anything the above quote from Laurence Tribe supports a notion I put forward that the Supreme Court should have realized it should not interfere with or prevent the Congress, or any of its Houses, from conducting investigations that have the strong possibility of leading to impeachment of the President. For indeed Art. XI on Public Accountability inerrantly gives Congress the SOLE and EXCLUSIVE jurisdiction over the those 31 impeachable officers of the government in ALL cases of impeachment. The Court does not even have powers of judicial review in all cases of impeachment, yet they are stonewalling the Senate on behalf of the President? I must thank Teddy Boy for bringing it up!

Article XI Sec. 3.(1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

Article XI Sec. 3.(6) The Senate shall have the sole power to try and decide all cases of impeachment.

Caveat 2.3 It is logically inconsistent to insist that the political branch of the government, after being endowed with such supreme judicial powers over the highest officers of the government, should now be expected to avoid performing investigations in aid of legislation and oversight simply because they may be called upon to undertake a case of impeachment. Any argument Teddy Boy cares to make about the Senate in that regard is equally applicable to the House, since one must reasonably demand elemental FAIRNESS from all involved, whether in the House in preparation to initiate, or in the Senate in the process of deciding ALL cases of impeachment. They cannot shirk their duties to make and remake the laws and to perform their oversight functions for fear of putting themselves in the situation abjured by Teddy Boy. I think even George Washington would agree with me! Besides even Teddy Boy grants that in matters of foreign policy the power is shared by the President with the Senate, and in the matter of foreign loans with the Central Bank.

LOCSIN 3. Which, by the way, shows that the House rules on impeachment disallowing continuing amendments of impeachment complaints are mentally dishonest and constitutionally infirm so that the Supreme Court should throw out what the former Speaker of the House himself disdained as “a sham complaint” filed for purposes of inoculating the President from the genuine article.

Caveat 3.1 I agree entirely. Vehemently.

LOCSIN 5. The Senate joint committee is investigating what are thus far unsubstantiated allegations of anomalies—most recently denied by the Senate’s latest witness—in relation to a Chinese loan funded contract between the Republic of the Philippines and the Peoples Republic of China.

LOCSIN 6. The contract was not consummated, nothing yet was performed by the Chinese nor did any loan funds pass from them; needless to say no repayment should be forthcoming from us. (Which is why the CyberEd project should never be implemented with China because a reimbursement of possible bribes could be effected through overpayments.) On top of which, the NBN-ZTE contract has been suspended if not revoked. (Though it’s hard to say that; for hope springs eternal in the hearts of would-be malefactors.)

LOCSIN 7. This then is an investigation in aid of legislation into something that did not happen, presumably so that amendatory legislation can be introduced to ensure that it never does.

Caveat 7.1 This is the most underwhelming attempt at reductio ad absurdum from Teddy Boy I've ever seen. And excuse me, one thing happened not controverted except by the accused, who resigned his post, is the ATTEMPTED BRIBERY of Romulo Neri by Ben Abalos.

LOCSIN 8. The leading case of US v. Nixon involved an actual break-in, a consummated crime, and a criminal trial where the accused sought the waiver of executive privilege to gain access to evidence vital to their defense. What was at stake in Nixon was the liberty of the accused; what is at stake in this or any other congressional investigation in aid of legislation or oversight, for that matter, where executive privilege is invoked, is an inherent and necessary power of the President to deny requests for information. Particularly in this case from a mere Senate joint committee. The Senate joint committee cannot invoke US v. Nixon because there is no parity between a request by a defendant in an ongoing criminal case for privileged information essential to his defense and a request from the Senate for privileged information that can have only the thinnest relevance to its mandate to investigate in aid of legislation which can proceed without it.

Caveat 8.1 I agree that "there is no parity between a request by a defendant in an ongoing criminal case for privileged information essential to his defense and a request from the Senate for privileged information that can have only the thinnest relevance to its mandate to investigate in aid of legislation which can proceed without it."

Unless of course the privileged information has the the most solid relevance and connection to a possible case of impeachment, in which case there would still be no parity because it would seem the Senate's right to the information would be GREATER THAN OR EQUAL to that of the Judiciary in the situation tackled by US v. Nixon. The overarching principle is that information and evidence cannot be denied to the PROPER FORUM that would bring to justice any criminal wrong doer. In US v. Nixon the Judiciary is plainly the proper forum in a criminal case. In what would've been an historic extension of that brilliant piece of US jurisprudence, SCORP ought to have ruled that since the Senate is the proper forum for trying and impeached official, the principle applies!

LOCSIN 9. There have been no allegations or averments in the Senate, not even by its most emotional witnesses, of Senate investigating body nor by any of its most emotional witnesses, of actual damage to the government, to the public or to any individual person whatsoever, and not only in this jurisdiction. Even the Chinese deny the bribes for the undone deal, not that the Senate nor Congress nor even the Judiciary could or should do anything about it. Some of us may have gained but none of us lost.

10. Executive privilege here is challenged by the Senate joint committee on the ground that it is being used to conceal a crime but cites no jurisprudence on that precise point in any jurisdiction. The ground itself begs the question whether any crime has been committed when the senators are precisely asking questions and demanding answers on precisely that point. The senators don’t know and yet they aver that executive privilege cannot be invoked in this case to conceal a crime about which, they say, they are being kept in the dark by the very president they suspect of it. A vicious circle so to speak.

Part of the clumsy attempt at reductio ad absurdum, though here I think Teddy Boy invites us to follow him in chasing HIS tail around in a vicious circle. No thanks. The whole point of an investigation is to discover wrong doing. That it has not yet been discovered is no reason to prevent the investigation, which is a vicious, or perhaps, mischievous piece of advice. The attempted bribery of Romulo Neri WAS a crime and indicates higher ups did worse things.

TO BE CONTINUED...I AM HAVING JUST TOO MUCH FUN FOR ONE POST...

Justice Renato Corona Rules Philippine Senate Is MACHIAVELLIAN

G.R. No. 180643 – ROMULO L. NERI versus Senate Committees on ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, TRADE and COMMERCE and NATIONAL DEFENSE AND SECURITY

In the Concurring Opinion of Associate Justice Renato Corona one finds the following:

A Final Word The hands that wield the power of legislative investigations are powerful. Section 21, Article VI of the Constitution cushions the impact by providing substantive as well as procedural limitations. Unfortunately, in Machiavellian fashion, respondent Committees disregarded the procedural safeguards purportedly in the name of truth and good governance. In so doing, they dealt a devious blow not only on Neri but also on our cherished traditions of liberty.

CAVEAT:
The most perspicacious and charitable reading of Mr. Justice Renato Corona's concurring opinion does not yield a single iota of evidence or shred of logic to justify the use of such CONTUMACIOUS language against the Philippine Senate, in my own hambog opinion. I suppose it is to be expected considering Corona was a mere functionary and footstool in Vice President Gloria Macapagal Arroyo PICC office staff in 2001 when Erap was overthrown in the Edsa Dos coup d'etat and she appointed him to the High Court on April 12, 2002, one of the youngest ever in Philippine Supreme Court history.

But he's got to be qualified since he graduated from the same school as the First Gent after which look at his outstanding achievements (at the Supreme Court Website) here and abroad:

His competence in the field of law is recognized in the Philippines and abroad. In 2006, he was conferred the degree of Doctor of Laws honoris causa by the University of Batangas for his “legal scholarship, professional integrity and judicial independence.” In 2007, he was again honored with another Doctor of Laws honoris causa degree, this time by the University of Cebu. He has lectured in and presented scholarly papers before several international law conferences and seminars, the latest of which were the 9th General Assembly of the Asean Law Association in Bangkok, Thailand and the interregional meeting of a multidisciplinary group of experts on the role of sanctions in ensuring better respect for international humanitarian law, sponsored by the International Committee of the Red Cross in Geneva, Switzerland.

"Legal scholarship, professional integrity, judicial independence."

It's must be true, folks. Lookit. The University of Batangas and Cebu vouch for it. So do the Asean Law Assn in Bangkok , Thailand, a group of humanitarians and the Red Cross in Geneva, Switzerland.

But here is a truly admirable fact about Justice Corona. He is still in school!

A legal scholar at heart, he served as a member of the faculty of the Ateneo Law School for 17 years, teaching Commercial Law, Taxation and Corporation Law, the same subjects that became the focus of his many articles and columns in several newspapers. He also wrote for the Ateneo Law Journal. Justice Corona is currently finishing his doctoral studies in civil law at the University of Santo Tomas where he was given the award of Most Outstanding Graduate School Student.

Now, there's true legal scholar for you. Already an Associate Justice of the Supreme Court, but still avidly pursuing erudition and truth...and...Most Outstanding Graduate School Student of 2007 at the University of Sto. Tomas!

The Fallacious Heart of Neri v. Senate is a False Distinction About the Powers of Legislation and Oversight

Anyone who understands English Grammar and Composition will be able to see very easily the gaping logical flaw in the just announced Supreme Court Decision on executive privilege versus the Power of Inquiry of the Congress.

The main decision and the concurring and dissenting opinions in the landmark case of Romulo Neri versus Senate Committees are here at the Supreme Court Website. From the disposing portion in the main ponencia (Justice Leonardo de Castro), I wish to identify the pure, fallacious heart of this infamous decision as the following passage in GR No. 180643 --

The false distinction in the post title is redbolded below:

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita[18] becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation, its aim is to elicit information that may be used for legislation, while Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court’s pronouncement in Senate v. Ermita[20] is clear:

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held:

As evidenced by the American experience during the so-called “McCarthy era,” however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the Constitution.

Hence, this decision.

MY REBUTTAL:
Definition: The Power to Legislate is the power to MAKE NEW LAWS and RE-MAKE OLD LAWS.
Example: The main piece of legislation for which the Congress is responsible is the National Budget, which it MAKES and RE-MAKES every year.

Thesis: Section 21, which mentions Congressional power to conduct "inquiries in aid of legislation" when applied to the National Budget clearly involves two functions of the Congress if it is to successfully enact the budget: (1) it must gather all information for any new items in the budget; and (2) it must perform oversight of administration, by requiring of the Executive Departments a full accounting of how they spent the last budget and why the new budget is justified. Thus Section 21, with all its enforcement processes applies to the UNITARY POWER OF LEGISLATION (to make and remake the laws) which would be frustrated if information is denied it that is necessary (1) to make new laws (inquiry in aid of NEW legislation) OR (2) to REMAKE old laws (oversight so as to remake OLD legislation) If we do not accept this, then the entire OVERSIGHT process called the Budgetary hearings becomes non-compulsory for Executive Dept. officials. Thus I claim, as the US Congressional Oversight Manual itself proclaims, that OVERSIGHT inquiries ARE inquiries in aid of legislation with equal process to enforce as inquiries in aid of new legislation.

Claim: Section 22 is an irrelevant appendix left over from when the 1986 Constitutional Commission almost established a unicameral Parliament requiring the "question hour" therein in mentioned, which question hour has NEVER been conducted by the Congress in 21 years because it is not part of the Republican Presidential system with a bicameral Congress! [Please See Update 1 below. Hat tip: MLQ3) Nothing whatsoever would be affected by completely ignoring it. The Powers of Oversight DO NOT rest in this one provision, but in DOZENS of enumerated provisions detailing the various powers of Congress to extract information of all kinds from the executive, as detailed more clear-headedly in the documents listed below which inspired this whole chain of reasoning at Philippine Commentary and is required reading for all commentators on this important issue.

Having disposed of the PREMISES of the Main Decision in Neri v. Senate, I conclude that the decision is based on a false dichotomization of the Power of Inquiry and is therefore a decision that is morally and logically NULL and VOID. The Congress must ignore it if it is to do its DUTY of making and re-making the laws.

References:

UNITED STATES CONGRESSIONAL OVERSIGHT MANUAL

Whistleblower Protection: A Tale of Reform versus Power

On the Constitutional Grounds For a Whistle Blower Protection Law
(A Philippine Commentary that makes the same rebuttal, only longer.)

It only remains to demonstrate that the ZTE NBN deal involves the suppression of evidence in a potential case of impeachment, in which case the SOLE and EXCLUSIVE power to initiate and to decide belongs entirely to the Congress. Although Executive Privilege covers confidential communications of the President and her men, that is only so if REGULARITY of those conversations (along with their candid nature) is unquestioned.

But I have to leave something for tomorrow...hehe!

I am so glad the Supreme IS as shallow as I feared and has no arguments that have not already been considered here at Philippine Commentarty during the last two years of considering this whole matter starting with Senate v. Ermita.

CLICK THE VARIOUS LABELS BELOW FOR MORE ARTICLES rebutting the SCORP's false distinctions on the Powers of Legislation.

UPDATE 1: See MLQ3's comment in the thread about Joker Arroyo's appearance at a Question Hour in the House (1988 or 1989?). Apparently the House Rule XVII covers Question Hours in the Lower House. But I could not find the phrase "Question Hour" in the Rules of the Senate or the Senate Rules on Inquiries in Aid of Legislation. I stand corrected that the Congress has "never" done a Question Hour, since the House has done it at least once.

An important question around which the validity of much in Neri v. Senate depends, is in what sense we might regard the current Senate investigation as being covered by Section 22 Question Hour provision.

UPDATE 2: Let me re-state my formulation of the FALSE DISTINCTION in Neri v. Senate, which states that:

Section 21 relates to the power to conduct inquiries in aid of legislation, its aim is to elicit information that may be used for legislation, while Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.

The OBJECTIVES are NOT different, unless we claim that the making of new laws is in any sense different from-- the remaking of old laws. The single unitary objective of both is to gather information necessary for LEGISLATION. If we agree that legislation means making and remaking the laws, then Section 22 truly is superfluous. The further distinction the Supreme Court makes is insipid and equally vacuous: that the Congress has compulsory process only for making laws and not for conducting oversight of administration so it can remake the laws as necessitated by what information it discovers.

Supreme Court Rules 9-6 In Favor of Romulo Neri Against Philippine Senate

Both ABSCBN and GMA-TV News are reporting in Manila that the Supreme Court has ruled 9-6 in favor of Romulo Neri's petition to PROHIBIT the Senate of the Philippines from arresting him for contempt for refusing to answer three questions involving testimonial evidence he could give on President Arroyo's complicity in the scandalous ZTE NBN deal with China.

Philippine Commentary on February 6 was (modesty aside)--Supreme Court Will Rule That Executive Privilege Covers What Neri and Lozada Know

Okay, here are all fourteen of my Philippine Commentaries on Executive Privilege
since the first one reacting to Senate v. Ermita
King Solomon Just Cut the Baby in Half (April, 2006)

and the latest one just this morning before the announcement:

Judicial Review is the Wrong Fulcrum to Balance Executive Privilege and Congress Oversight of Administration (March, 2008)

My Two Centavos Worth:

The Philippine Congress should immediately pass comprehensive whistle-blower protection laws for all persons in the Civil Service in order to obsolete the Supreme Court's gag rules in Senate v. Ermita and Neri v. Senate which are brazen subjugations to Judicial Review and Executive Privilege of the Power of Inquiry of Congress in aid of legislation and the legislatures integral duty of oversight of administration. I cannot imagine a more compleat and disastrous demolition of the Separtion of Powers and a curtailment of the Public’s Very Right to Know what their government is doing than this 9-6 decision of the Supreme Court. We are now under an effective Dictatorship of Judicial and Executive Privilege in which the principle of Checks and Balances is no more. The cuckolding of the Congress which begun in 2001 has once again been affirmed and practiced by Unelected Judges appointed by an illegitimate chief executive. Forget not: the Executive has only two impeachable officials, whilst the Supreme Court has fifteen. That's a lot of Privilege!

WHAT NEXT?

UNITED STATES CONGRESSIONAL OVERSIGHT MANUAL

Whistleblower Protection: A Tale of Reform versus Power

On the Constitutional Grounds For a Whistle Blower Protection Law

Judicial Review is the Wrong Fulcrum to Balance Executive Privilege and Congress Oversight of Administration

Is it conceivable that the Supreme Court must rule on every single controversial question that Congress might want to pose to Executive Branch officials from here till Doomsday? Does it have the power to prevent ANY citizen from going to Congress before the fact, to speak on any matter within the Rules of the House or Senate?
I should say NOT! For that will only mean the complete CUCKOLDING of the Congress that was started by Hilario Davide Jr. in the Edsa 2 coup d'etat and be an historic blow to Freedom of Speech and Public's right to know.

It would be the placing of a bone in the throat of every whistle blower in the government if a full-blown Supreme Court ruling be required whenever some government official--Cabinet minister or lowly policeman or clerk--should want to exercise his or her sworn duty to uphold the law and expose or allege criminal wrong doing within their areas of personal knowledge and competence. Of course they are subject to all the normal restrictions against perjury, false testimony or mere innuendo. But that does not, in my opinion, empower even the Supreme Court to impose such PRIOR RESTRAINT by requiring judicial review before the testimony.

In the final analysis, the unanimous Supreme Court decision Senate v. Ermita, proclaims JUDICIAL REVIEW to be the final fulcrum for deciding whether or not Congress may ask some question, even before it actually does, or whether some person may truthfully and voluntarily answer such question with material and relevant personal knowledge even without the permission of the President.

Senate v. Ermita is the new gag rule to replace EO464 and Circular 108 that has made the Supreme Court, in effect, the Enforcer of Executive Privilege! The imposition of Judicial Review on whistle blowing is in fact a form of PRIOR RESTRAINT on freedom of speech and the Public's right to information about its own government. But the Judicial Activists of the Philippine Supreme Court have painted themselves into an entirely untenable corner with this, as has become from the instant case of Neri v. Senate, in which they are now engaged in a task that I am sure many of them realize they ought not to be undertaking at all!
I think it is the sacred right and duty of every citizen, even of government officials high and low, to divulge information that can amount to evidence about criminal wrong doing to the Congress. It degrades the Freedom of Speech of citizens for to Supreme Court to impose the necessity of judicial review upon their voluntary and honest exposure of waste, inefficiency, graft and corruption, just because they happen to be government employees who come into contact with "privileged information."

I believe that the Supreme Court deprives Filipinos in the Civil Service of the important right to WATCH OVER that government from within, and prevents them from doing their duty to blow the whistle against evil doing whenever they honestly perceive it to exist and are personally willingly to undertake the dangerous process of testifying to Congress and the Public about it.

Senate v. Ermita places the Supreme Court far above both Legislature and Executive in the matter of the validity and regularity of their exclusive prerogatives and ensures a perpetual state of gridlock between them that cannot efficiently or competently be broken by Judiciary already saddled with a MILLION CASE backlog.

THE PHILIPPINE CONGRESS SHOULD IMMEDIATELY PASS COMPREHENSIVE WHISTLE-BLOWER PROTECTION LAWS FOR ALL PERSONS IN THE CIVIL AND MILITARY SERVICES IN ORDER TO OBSOLETE THE SUPREME COURT'S BLUNDEROUS GAG RULE AND USURPATION OF THE POWER OF INQUIRY OF CONGRESS.

Where do I get such strange ideas?

UNITED STATES CONGRESSIONAL OVERSIGHT MANUAL
Whistleblower Protection: A Tale of Reform versus Power

On the Constitutional Grounds for a Whistleblower Protection Law in the Philippines

At stake in the Just Balance of Interests in the present case of Neri v. Senate are Executive Privilege of the President and the Powers of Inquiry and Oversight of the Congress. In Senate v. Ermita the Supreme Court unanimously established and clarified the nature, scope, coverage and application of the Principle of Executive Privilege, an implied power of the Chief Executive under the Constitution. But the Powers of Inquiry and Oversight of the Congress appear to be explicit, enumerated powers, rights and functions in a plain reading of the text of the Constitution, needing little of the Court's further construction or explanation.

In 1909 then U.S. President and former Governor General of the Philippine Islands, William Howard Taft issued an Executive Order very reminiscent of EO464 which prohibited all civil service employees from communicating directly with Congress without his permission:

President Taft: "It is hereby ordered that no bureau, office, or division chief, or subordinate in any department of the Government, and no officer of the Army or Navy or Marine Corps stationed in Washington, shall apply to either House of Congress, or to any committee of either House of Congress, or to any Member of Congress, for legislation, or for appropriations, or for congressional action of any kind, except with the consent and knowledge of the head of the department; nor shall any such person respond to any request for information from either House of Congress, or any committee of either House of Congress, or any Member of Congress, except through, or as authorized by, the head of his department."

In 1912, the U.S. Congress responded with specific laws that bolstered the Congressional Power of Inquiry against such assertions of executive privilege with the 1912 Anti-Gag Law and Whistleblower Protection Laws (PDF) which mandated that "The right of any persons employed in the civil service . . . to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with.”

In the United States Congressional Oversight Manual it states that,

A traditional method of exercising the oversight function, an implied power, is through investigations and inquiries into executive branch operations. Legislators often seek to know how effectively and efficiently programs are working, how well agency officials are responding to legislative directives, and how the public
perceives the programs. The investigatory method helps to ensure a more responsible bureaucracy, while supplying Congress with information needed to formulate new legislation.

Amazingly, just like the implied Power of Oversight of Congress, the Executive Privilege of the President is apparently also an implied power under the grander principle of the Separation of Powers in a tripartite government. Neither the US nor Philippine Constitutions even contains the term "executive privilege" --

EXECUTIVE PRIVILEGE: A Missing Clause in the US Constitution? Presidents have claimed the power to withhold information from the courts and Congress, but no clause of the Constitution speaks of such a power, and questions regarding this are contentious and undetermined. The Supreme Court has ruled that presidential communications are protected by a privilege that is "fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution."

Of course, the SCOTUS has decided many cases involving a conflict between Executive Privilege and the right of the Courts to that privileged information if it is evidence in criminal prosecutions of executive department officials, as happened in the celebrated 1974 case United States v. Nixon. However, although there are allegations of criminal wrongdoing in the ZTE NBN deal, the Senate Blue Ribbon Committee is clearly not a Court of law and there is no criminal proceeding there in which his testimony is required as evidence. This could be used to argue that US v. Nixon does not apply exactly to Neri v. Senate. But how DOES it apply, if it does at all?

Last week, during the hearings into cases filed against FG Mike Arroyo and resigned Comelec Chairman Benjamin Abalos, the Ombudsman panel decided to secure official transcripts of the various Senate hearings, thus taking judicial notice of those hearings, at which testimonies were after all rendered under oath. Clearly the Senate hearings have already gathered and produced information that potentially is material and relevant to a criminal proceeding. Indeed, it would not be the first time that an inquiry of the Congress has produced criminal prosecutions as well as evidence.

But U.S. v. Nixon was a case of conflict between the Executive and the Judiciary. The Supreme Court of the United States (SCOTUS) has never decided a case in which the Principle of Executive Privilege of the President is directly pitted against the Powers of Inquiry and Oversight of the Congress--which is precisely the awesome task that now faces the Philippine Supreme Court. in the coming landmark Supreme Court decision, ROMULO NERI v. SENATE of the PHILIPPINES.

There is one parallelism that is significant. Although in the United States the Power of Inquiry and Oversight into Executive branch operations is an implied power, in the 1987 Philippine Constitution it has the force of a full and uncontroverted Constitutional provision empowering not only House and Senate but their Committees:

1987 Article Six Section 21: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.

Moreover, it seems to me there is also basis for whistleblower laws in the related provision:

1987 Article Six Section 22: The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

To make the English Compositional structure of the above provision clear, let me print it like this to make it clear why the Congress could easily pass a Whistleblower Protection Act,

"The heads of departments may,

[1] upon their own initiative,
[2] with the consent of the President, OR
[3] upon the request of either House,

as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments."

In Senate v. Ermita and EO 464 above provision plays a central role, but not as the Constitutional basis for whistleblower protection as I am now suggesting.

In the scales of the Balance of Justice in the case of Romulo neri are the implied power of Executive Privilege to withhold information from the Judiciary and Congress as against the enumerated power of inquiry of the Congress.

Continuing along this fundamentalist vein, intelligent Filipinos ought to be inquiring further now into the Constitutional basis of such power of inquiry, which does not exist for Executive Privilege except by implication.

There is a simple explanation why SCOTUS has never faced a case like Neri v. Senate. It is simply the historical fact that the US Presidents have steered clear of using executive privilege against the Congress. Part of the reason is that the US Constitution actually grants the Congress broad powers, explicit and implicit, to elicit information from all departments of the government in aid of legislation and oversight of administration--which is the entire process of making and remaking the laws.

1. The power of the purse.

2. The power to organize the executive branch.

3. The power to make all laws for “carrying into Execution” Congress’s own enumerated powers as well as those of the executive.

4. The power to confirm officers of the United States.

5. The power of investigation and inquiry.

6. Impeachment and removal. Impeachment provides Congress with a powerful, ultimate oversight tool to investigate alleged executive and judicial misbehavior, and to eliminate such misbehavior through the convictions and removal from office of the offending individuals.

For me, the overall picture that emerges is that the specific power of inquiry to conduct investigations in aid of legislation is part and parcel of almost anything the Congress does. Without the Power of Inquiry, the Congress cannot accomplish its duty to wisely make AND remake the laws.

The FULCRUM issue for the Philippine Supreme Court's delicate balancing act in the forthcoming historic decision, Neri v. Senate, could be framed as follows:

If the Prayer of Romulo Neri to prohibit the Senate from arresting him for contempt is granted, how would it affect the ability of the Congress and the President to do their respective duties?

The power of inquiry is actually part of a large and interconnected set of powers all related to the Right of Congress to information to do its job of making and remaking all the laws of the land. This suggests to me that in fact, the Power of Inquiry IS the institutionalization of the Public's Right to Know. Press Freedom, which is the power of inquiry of organized commercial journalism, is also based on the Public's Right to Know. But in Congress, the Truth, the whole Truth and nothing but the Truth is required of all statements under oath or affirmation. That stringent requirement does not exist for the Free Press, which is allowed to sell not only the "truth" but also entertainment.

Thus, I would say that if the Supreme Court hold Press Freedom in the highest regard, it cannot but hold the Congress' Powers of Inquiry and Right to Information in aid of legislation to be at an even higher level of priority.

Finally, the vast enumerated powers of inquiry and oversight of the Congress represents the power of the entire Filipino people to know the truth so they can make and remake the laws for their own benefit and interest. This is to be balanced against the weight of Executive Privilege which belongs strictly speaking to exactly ONE PERSON only.

The Thing About King Solomon and the Public's Right to Know

In the First Book Kings of Christianity's Old Testament the story is told of King Solomon's Judgment. Two women bring before him a single baby boy. Both claim it is their baby. When King Solomon asks for a sword in order to split the baby in half, that they may share him equally, one woman is terrified and says no, the other agrees and perhaps thinks the first arrogant, for disrespecting the King. Guess who gets the Baby?

Last Tuesday, the Supreme Court offered to the Senate and the Palace "a compromise agreement" in which Romulo Neri would once more attend Senate sessions investigating the ZTE National Broadband Network deal with China, but would not have to answer three specific questions. Last night, the Senate has unanimously rejected the offer, with President Manny Villar declaring the principle of the Senate's powers of inquiry in aid of legislation and oversight, to be the transcendental issue. Meanwhile the other headline is that the Palace slams the Senate's arrogance for rejected SC offer. Press Sec. Ignacio Bunye said, "Frankly, we did not expect the arrogance by which the Senate slammed the compromise proposal of no less than the Chief Justice."

The analogy is sure to confuse some people so let me explain a bit of it, because it is not exact in the sense that we do not yet know IF the Supreme Court will indeed rule with Solomonic wisdom or continue with the cuckolding of the Senate that the Court began in 2001. Clearly the two women are Senate and PGMA, who, like the false mother in the Bible, wanted to accept the compromise agreement and thinks the Senate arrogant, who happens to be the real mother.

But who or what is the Baby? Several Philippine Commentaries tackled that question and related others:

King Solomon Just Cut the Baby in Half -- my analysis of the decision Senate v. Ermita
in July 2006.

How the Supreme Court Upheld the Half of EO464 the Palace really needs discusses how the Supreme Court decision upheld both Section 1 of EO464 , which is PGMA's definition of the nature and scope of executive privilege, and Section 2a, which referred to the nonexistent Question Hour in the Constitution, but which was used to introduce a false dichotomy between "in aid of legislation" and "oversight" (to be discussed in a future Commentary).

More under the categories of executive privilege, EO464 and Separation of Powers.
It is clear from these discussions by the way, that Abolishing EO 464 would not abolish Executive Privilege since it is now Senate v. Ermita itself that defines Executive Privilege. The Palace no longer need EO 464, which the Catholic bishops and the Senate have demanded be revoked. Uselessly, it turns out as the Palace has already done so.

Now I claim that the "Baby" in this case is really something we have been arguing about for the last few years: the Public's Right to Know.

Now it is revealed that this particular right is officially exercised by and belongs to most preciously, NOT to the Mass Media or Press, but the Congress!

Proof of this is exactly how King Solomon also extracted the knowledge of who really owns the ba by. By courageously rejecting the Supreme Court's offer to cut in half Congress' Right to Know which is the true essence of the Public's Right to Know, the Senate proves the assertion.

Now all that remains of the analogy is whether the Supreme Court is King Solomon or King Rat.

---

UPDATES:
Uh-oh, another China deal is on the radar screen --- (Southrail) contract is missing!

Why the Senate Should Demand a Written Ruling from the Supreme Court on Neri Petition

UPDATE: There is no moral or legal reason why the Supreme Court should be allowed to play politics with the case of Romulo Neri and Executive Privilege. It would only prove what cuckolded institution the Senate has become since 2001, if they decide to take such a reported deal. Neri attends but doesn't have to answer? What's that but consuelo de bobo supernales? They should demand instead a firm and definitive ruling from the Court on whether they are ready to stand by their own declarations in Senate v. Ermita that Executive Privilege cannot cover criminal activity and only applies to "regular" activities of the Executive, not brazen irregularities.

As predicted (with very little clairvoyance required, really) the Supreme Court has upheld the basic tenets of its own unanimous decision in Senate v. Ermita. Today's PDI headline on yesterday's hearing of Romulo Neri petition for prohibition against arrest for contempt by the Senate is:

Neri to attend Senate NBN deal hearing
But can’t be asked about conversation with Arroyo

(Philippine Commentary is proud to recommend its related products under these labels: executive privilege, EO464, and Separation of Powers.)

The most important upshot of yesterday's oral arguments at Padre Faura were:

(1) Romulo will attend Friday's Senate hearing, but may again invoke Executive Privilege. But the Senate may not ask him three specific questions:

Earlier, the high court, through Chief Justice Reynato Puno and Associate Justice Antonio Carpio, proposed that the Senate drop three questions they planned to ask Neri on a conversation he had with Arroyo on the NBN contract so the CHED chairman would appear at the inquiry.

These questions were:

“Did the President follow it [the NBN contract] up with you?

Did the President tell you to prioritize [Chinese firm] ZTE?

Did the President tell you to approve it?”

(2) The Senate is not allowed to arrest Romulo Neri until the Almighty Supreme Court decides to rule on his case formally, which they really don't have to do until the coast is clear or something becomes moot and academic.

So the status quo ante obtains! The cuckolding of the Congress, in particular the Senate, continues under the regime of Judicial Supremacy established by People Power in 2001 and enforced by rulings like Estrada v. Desierto, the Davide Impeachment Initiation Rule and Senate v. Ermita.

Updates all day as more details come out on last night's backroom midnight agreement at which the Senate was given kamotes as consuelo de bobo.

ddddd

The Statement of former Cabinet Members follows:

Government Should Serve the Truth
We are former senior government officials who have served the government in the administrations of Presidents Marcos, Aquino, Ramos, Estrada and Arroyo. Today we see how the institutions of government are being manipulated, weakened, and corrupted. We are committed to help rebuild and strengthen the government institutions in which we worked to serve the public good rather than personal and partisan interests.

Our people can only trust a government that governs with truth. We grant government so much power over our lives, resources and shared future because it governs with truth. When there are serious doubts about government’s adherence to truth in matters of vital public interest, no real peace or substantive unity is possible until such doubts are resolved. We cannot move on without the truth.

We are now in the midst of great disturbance because we doubt the truth behind the NBN-ZTE deal. President Gloria Macapagal-Arroyo had belatedly cancelled the contract because of reported “anomalies”. Hence, most Filipinos reasonably conclude that corruption tainted this deal. For several months now at the hearings of the Senate investigation, we have all seen disturbing glimpses of the truth about alleged corruption that attended the NBN-ZTE deal. We are outraged by what we have seen thus far.

The President said recently: “Ang taumbayan galit sa katiwalian. Ganoon din ako, galit din ako sa katiwalian.” We affirm the first sentence. We ask that the second sentence be demonstrated in action. Having belatedly cancelled the contract to show her supposed anger with reported corruption in this deal, the President must now follow through with actions to determine the actual “anomalies” and establish responsibility for these. Otherwise, canceling the contract could be interpreted as an effort to cover up corruption rather than to pin it down and root it out.
Government should serve the truth and the President should act immediately and decisively to enable the truth to emerge.

The most credible forum thus far to establish the truth behind the NBN-ZTE controversy is the Senate investigation that has persevered in seeking facts and witnesses. The Senate is a functioning democratic institution that can help the people recognize the truth about this divisive matter. We thus call on the President to cooperate fully with the Senate and stop denigrating it so that its investigation can be completed as soon as possible. In particular, we ask the President to lead in showing government’s commitment to the truth by taking the following actions which can reasonably be done within one week:

• First, order acting Chair Romulo Neri to resume his testimony before the Senate investigation without any restrictions or limitations;

• Second, order the release and delivery to the Senate of all public records pertaining to the NBN-ZTE deal, starting with the minutes of the NEDA Board meetings on the project;

• Third, suspend DOTC Secretary Leandro Mendoza and Assistant Secretary Lorenzo Formoso, as the DOTC was the lead agency for this project;

• Fourth, suspend DENR Secretary Lito Atienza, PNP Director General Avelino Razon, Deputy Executive Secretary Manuel Gaite, Deputy NAIA Chief Angel Atutubo, Senior Supt. Paul Mascarinas and all those involved in the attempt to prevent Senate witness Jun Lozada from testifying; and

• Fifth, order a halt on any further attempts by such agencies as the DOJ, DENR, NBI and BIR to harass Senate witness Jun Lozada and those who are testifying in behalf of the truth.

The Filipino people can make democratic institutions work to fight corruption by even the most powerful people in our midst. We can do this based on the power of reason and the power of the people’s communal action. We deserve a government that governs with truth.

The President must demonstrate her commitment to the truth through these actions within one week as more and more of our people make their judgment. She must do these or be condemned as complicit with, and in fact, as being at the center of, the lies surrounding the NBN-ZTE deal.
The President must do these or the people will make their judgment and act on the basis of their conviction.

Signed by:

1. Florencio Abad (Former Secretary, Department of Education)
2. Tomas Africa, (Former Administrator, National Statistics Office)
3. Roberto Ansaldo (Former Undersecretary, Department of Agriculture)
4. Senen Bacani (Former Secretary, Department of Agriculture)
5. Angelito Banayo (Former Secretary, Political Affairs)
6. Romeo Bernardo (Former Undersecretary, Department of Finance)
7. Emilia Boncodin (Former Secretary, Department of Budget and Management)
8. Gerardo Bulatao (Former Undersecretary, Department of Agrarian Reform)
9. Clifford Burkley (Former Undersecretary, Department of Social Welfare and Development)
10. Sostenes Campillo, Jr. (Former Undersecretary, Department of Tourism)
11. Isagani Cruz (Former Undersecretary, Department of Education)
12. Jose Cuisia, Jr. (Former Governor, Central Bank of the Philippines)
13. Col. Guillermo Cunanan (Ret.) (Former General Manager, Manila International Airport)
14. Karina Constantino-David (Former Chair, Civil Service Commission)
15. Teresita Quintos Deles (Former Presidential Adviser on the Peace Process)
16. Edgardo Del Fonso (Former Head, Power Sector Assets and Liabilities Management)
17. Benjamin Diokno (Former Secretary, Department of Budget and Management)
18. Quintin Doromal, Sr. (Former Commissioner, Presidential Commission on Good Governance)
19. Franklin Drilon (Former Executive Secretary)
20. Narcisa Escaler (Former Ambassador to the United Nations)
21. Evangeline Escobillo (Former Commissioner, Insurance Commission)
22. Jesus Estanislao (Former Secretary, Department of Finance)
23. Victoria Garchitorena (Former Head, Presidential Management Staff)
24. Jose Luis Gascon (Former Undersecretary, Department of Education)
25. Marietta Goco (Former Chair, Presidential Commission to Fight Poverty)
26. Jose Antonio Gonzalez (Former Secretary, Department of Tourism)
27. Milwida Guevara (Former Undersecretary, Department of Finance)
28. Cielito Habito (Former Director-General, National Economic Development Authority)
29. Edilberto de Jesus Jr. (Former Secretary, Department of Education)
30. Lina Laigo (Former Secretary, Department of Social Welfare and Development)
31. Ernest Leung (Former Secretary, Department of Finance)
32. Josefina Lichauco (Former Secretary, Department of Transportation and Communications)
33. Narzalina Lim (Former Secretary, Department of Tourism)
34. Juan Miguel Luz (Former Undersecretary, Department of Education)
35. Jose Molano Jr. (Former Executive Director, Commission on Filipinos Overseas)
36. Vitaliano Nañagas (Former Chair, Development Bank of the Philippines)
37. Conrado Navarro (Former Undersecretary, Department of Agrarian Reform)
38. Imelda Nicolas (Former Lead Convenor, National Anti-Poverty Commission)
39. Vicente Paterno (Former Minister, Ministry of Trade and Industry)
40. Pete Prado (Former Secretary, Department of Transportation and Communications)
41. Cesar Purisima (Former Secretary, Department of Finance)
42. Victor Ramos (Former Secretary, Department of Environment and Natural Resources)
43. Amina Rasul (Former Presidential Advisor on Youth Affairs and Concurrent Chair, National Youth Commission)
44. Rodolfo Reyes (Former Press Secretary)
45. Walfrido Reyes (Former Undersecretary, Department of Tourism)
46. Alberto Romualdez Jr. (Former Secretary, Department of Health)
47. Albert del Rosario (Former Ambassador to the United States of America)
48. Francisco del Rosario (Former Chair, Development Bank of the Philippines)
49. Ramon del Rosario (Former Secretary, Department of Finance)
50. Melito Salazar (Former Member of the Monetary Board, Bangko Sentral ng Pilipinas)
51. Antonio Salvador (Former Undersecretary, Office of the Presidential Adviser on the Peace Process)
52. Leticia Ramos-Shahani (Former Undersecretary, Department of Foreign Affairs)
53. Cesar Sarino (Former Secretary, Department of Interior and Local Government)
54. Juan Santos (Former Secretary, Department of Trade and Industry)
55. Corazon Juliano-Soliman (Former Secretary, Department of Social Welfare and Development)
56. Hector Soliman (Former Undersecretary, Department of Agrarian Reform)
57. Mario Taguiwalo (Former Undersecretary, Department of Health)
58. Jaime Galvez Tan (Former Secretary, Department of Health)
59. Ricardo Tan (Former Head, Philippine Deposit Insurance Commission)
60. Wigberto Tañada (Former Commissioner, Bureau of Customs)
61. V. Bruce Tolentino (Former Undersecretary, Department of Agriculture)
62. Veronica Villavicencio (Former Lead Convenor, National Anti-Poverty Commission)
63. Deogracias Vistan (Former President, Land Bank of the Philippines)

---

Speaking of bloodsuckers, Zamboanga Journal has a neat post on vampire bats in Mindanao.

Abolishing EO464 Would Not Abolish Executive Privilege or the Right Against Self-incrimination

Because those principles are actually contained in the Constitution and have now been unanimously reaffirmed, clarified, perfected and cast in stone by the Supreme Court decision, Senate v. Ermita. The President can revoke her own EO464 but not the High Court's GR 169777!

A PARENT OF A MINOR CHILD can issue an order requiring that child to always seek permission before playing with friends. Lifting such an order, would not however imply the abolition of the well-founded parental rights upon which the order was based.

So in fact, the President could abolish EO 464, and make a big show of sucking up to the good Shepherds of the Flock, but it would certainly not abolish the principles declared by the Supreme Court for this and all future Presidents on the proper appreciation and application of Executive Privilege. She could abolish EO464, but is duty bound to abide by Senate v. Ermita, which only PERFECTS EO 464!

In their recent Pastoral Letter, the Catholic Bishops Conference of the Philippines make six strong demands:

For this reason, we strongly:

1. Condemn the continuing culture of corruption from the top to the bottom of our social and political ladder;

2. Urge the President and all the branches of government to take the lead in combating corruption wherever it is found;

3. Recommend the abolition of EO 464 so that those who might have knowledge of any corruption in branches of government, may be free to testify before the appropriate investigating bodies;

4. Ask the President to allow her subordinates to reveal any corrupt acts, particularly about the ZTE-NBN deal, without being obstructed in their testimony no matter who is involved;

5. Appeal to our senators and the ombudsman to use their distinct and different powers of inquiry into alleged corruption cases not for their own interests but for the common good;

6. Call on media to be a positive resource of seeking the truth and combating corruption by objective reporting without bias and partiality, selective and tendentious reporting of facts;

The Bishops demand No. 3 that President Arroyo ABOLISH THE GAG RULE Executive Order No. 464 from the CBCP has been met by a suggestion from the Palace to "dialogue" with the Bishops in order to explain certain things to them.

First, that the Supreme Court in Senate v. Ermita UNANIMOUSLY upheld Section (1) of EO 464 which enunciates the broad classes of INFORMATION that are potentially covered by Executive Privilege.

Second, that the Supreme Court upheld the right of the President in Section 2(a) of EO 464 to require Department Heads (cabinet ministers) to seek her permission before attending any Congress hearing not properly in aid of legislation, or in an Question Hour.

Third, that the Supreme Court merely struck down Sections 2(b) and (3) of EO464 when in clarified that the Principle of Executive Privilege extends to classes of confidential information and not PERSONS.

Fourth, as I said in first reacting to Senate v. Ermita, King Solomon Cut the Baby in Half! The Palace got a slightly mitigated win, while the Opposition has to consider it a mitigated loss! This despite the mystifyingly fulsome praise that the Supreme Court got from the Media when the decision was first promulgated in 2006.

Indeed, I think that the historical significance of the unanimous Decision, Senate v. Ermita is that it is a TUTORIAL on Executive Privilege -- its nature, scope and application as a fundamental power inherent in the Separation of Powers of the Constitution.

The Supreme Court also interpreted the meaning of two key Constitutional provisions that empower Congress with its legislative and oversight powers:

[30] Sec. 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

[31] Sec. 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

These provisions are related to the demand No. 4 of the Bishops in their Pastoral Letter, in which they strongly demand that the President's subordinates testify about corrupt acts "no matter who is involved." This sounds of course like a demand for SELF-INCRIMINATION. Hardly a reasonable things even coming form the good Bishops.