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The
Supreme Court handed down yesterday its en banc decision in
the case of ROMULO NERI vs. SENATE COMMITTEE ON ACCOUNTABILITY
OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON
TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE
AND SECURITY (G.R. No. 180643) penned by Associate Justice
Teresita J. Leonardo de Castro.
In
this landmark decision, the High Tribunal upheld the doctrine
of executive in favoring Neri's refusal to answer three questions
propounded on him by senators relative to his conversations
with President Arroyo about the anomalous National Broadband
Network (NBN) contract with Chinese firm, ZTE Corporation.
But
opposition senators claimed that the High Tribunal's ruling
did not only castrate Congress' power of legislative inquiry
but also has the effect of covering up a crime and opens the
door for possible abuse of the doctrine in other Senate inquiries.
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The
SC, voting 9-6, ruled that the three questions that Neri had
refused to answer in the Senate probe were covered by executive
privilege since they concerned diplomatic matters.
The
three questions are: 1) whether the President followed up
the NBN-ZTE project with Neri; 2) whether Neri was dictated
by the President to prioritize the NBN-ZTE project; and 3)
whether he was told by the President to go ahead with the
project after being told of the alleged bribe offer.
Citing
US jurisprudence, the High Tribunal enumerated in this case
the elements of presidential communications privilege a.k.a
executive privilege, namely: (a) the protected communication
must relate to a "quintessential and non-delegable presidential
power." (b) the communication must be authored or "solicited
and received" by a close advisor of the President or
the President himself. The judicial test is that an advisor
must be in "operational proximity" with the President
and (c) the presidential communications privilege remains
a qualified privilege that may be overcome by a showing of
adequate need, such that the information sought "likely
contains important evidence" and by the unavailability
of the information elsewhere by an appropriate investigating
authority.
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The
SC also ruled, 10 to 5, that the arrest warrant issued against
him was invalid since the Senate has not published its rules.
Sen.
Aquilino Pimentel Jr. the High Tribunal committed a "factual
error" in finding that the arrest warrant was not valid
since it failed to publish its rules when the present Congress
opened. He said that unlike members of the House of Representatives
whose term ends every three years, Pimental said "the
Senate is a continuing body since one-half of the members
continue to exist" every change in Congress.
The
Senate is going to file a motion for reconsideration to reverse
the ruling, pointing out that the voting was not lopsided.
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Aside
from the ponente, the eight other justices who concurred with
the majority opinion Associate Justices Leonardo A. Quisumbing,
Antonio T. Carpio, Renato C. Corona, Dante O. Tinga, Presbitero
J. Velasco Jr., Minita V. Chico-Nazario, Ruben T. Reyes, Eduardo
Antonio Nachura and as expeted, the newly-appointed Associate
Justice Arturo D. Brion.
Chief
Justice Reynato Puno led the justices who dissented from the
decision. The five other dissenting magistrates include Associate
Justices Consuelo Ynares-Santiago, Antonio T. Carpio, Ma.
Alicia Austria-Martinez,Conchita Carpio Morales and Adolfo
S. Azcuna.
With
the SC's 9-6 vote, the Senate only has to convince two justices
to change their position to gain a favorable ruling.
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