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Supreme
Court justices found loopholes in the petition of former Socio-Economic
Planning director-general Romulo Neri to prevent the Senate
from arresting him, raising the likelihood that the status
quo order earlier issued by the high tribunal will be lifted.
This
means Neri will be compelled to attend the Senate hearings.
Lawyers
for Neri succumbed to the arguments raised by the magistrates
that he had wrongly invoked executive privilege to avoid testifying
in the Senate and that the former NEDA secretary failed to
exhaust other remedies to stop the arrest warrant issued to
him by the Senate.
On
cross examination by Justice Antonio Carpio, counsel for Neri
Paul Lentejas merely said he "could not fathom"
why Neri refuses to answer three questions posed by the Senate
in connection with the overpriced $329-million National Broadband
Network-ZTE project.
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.
On
the first question, Carpio said it is not morally or legally
wrong for the President to follow up the broadband project
with Neri since that is the normal function between an executive
and a subordinate. "There is nothing wrong [with that].
So why is Neri afraid?"
On
the second question, since the primary function of NEDA is
to prioritize the procurement or financing of a project but
not a specific commercial contract, Neri could easily tell
Senate probers that the President has no specific instruction
on the NBN-ZTE project, Carpio argued.
On
the third question, Carpio said that Neri could easily justify
that he was not told by the President "to go ahead"
with the project since the final say actually belongs to the
NEDA board with the President as chair.
In
all these three questions, Carpio wondered why Neri invoked
executive privilege. Lentejas could only reply: "I could
not fathom (Neri's refusal)."
PUNO'S
COMPROMISE
Neri
has argued before the Senate that the three questions were
covered by executive privilege, which is a constitutional
right of the President to withhold information to congressional
or judicial bodies that involves military secrets, diplomatic
matters and internal discussions between the President and
members of the Cabinet.
Chief
Justice Reynato Puno Jr., using the "functional test"
which employs the benefits-versus-harm doctrine, asked lawyer
Antonio Bautista "how the operations of the Office of
the President will be hampered in the performance of duties"
if Neri is allowed to testify in the Senate and reply to the
three questions.
Bautista
said it is his opinion that Neri in being forced to answer
the Senate questions "could imply that the President
has undue interests in the project." But Puno stressed
that Bautista's argument were merely based on personal impression.
Puno
pointed out that the degree of presumption of executive privilege
is "strongest" with the President, which "gets
weaker and weaker" in cases where the President shares
power. For instance, Puno said the power to conduct foreign
relations with other countries is also shared by the Senate
while the power to enter into contracts or foreign loans,
is shared with other branches of government.
In
such two cases, the presumption of invoking executive privilege
"gets weaker and weaker, Puno said, implying that Neri
may acted in excess when he invoked executive privilege on
the NBN-ZTE contract.
But
Puno offered a compromise to the Senate whereby Neri would
be allowed to testify but without being asked the three questions
on whether the President followed up the NBN-ZTE project with
Neri; whether he was dictated by the President to prioritize
the NBN-ZTE project; and whether he was told by the President
to go ahead with the project after being told of the alleged
bribe offer.
Puno
suggested that the Senate finish the hearings on the ZTE after
which the SC can come up with a resolution in case there are
other questions Neri was unable to answer.
Sen.
Alan Peter Cayetano, an ambush interview, said he will consult
with other senators.
We
asked a former High Court justice about this compromise and
he said that "it is not for the Supreme Court to say
that."
WHAT
MILITARY SECRET?
Carpio,
for his part, questioned the argument raised by Bautista that
the information covered by Neri's testimony involved military
secrets and diplomatic matters when the Armed Forces of the
Philippines and the Department of Foreign Affairs were not
part of the negotiations in the broadband contract.
Carpio
added that the petition of Neri referred to a "bribery
scandal," which possibly involved the commission of a
crime which is not covered by executive privilege.
Bautista
conceded that a "crime is not covered by executive privilege"
but stressed the petition merely spoke on a scandal.
On
questioning by Justice Minita Chico-Nazario, Bautista admitted
that the Chinese government did not file any diplomatic protests
when the NBN-ZTE project was cancelled.
Justice
Ruben Reyes noted that Neri has failed to exhaust all possible
administrative remedies before running to the Tribunal, noting
that he could have first questioned the Senate arrest warrant
in the Senate. Short of admonishing Neri and his counsels,
Reyes said "the Court cannot solve all the problems of
the country" and that the "case would not have reached
the SC" had Neri sought a compromise with the Senate.
CLOSE
CALL
Aside
from determining whether Neri correctly invoked confidentiality
to avoid testifying in the Senate, the SC also sought to define
executive privilege in the context of the constitutional provisions
of full public disclosure, right to information of the public
and public office as a public trust.
On
these aspects, Neri's lawyers opened themselves to more loopholes.
Under
questioning by Justice Adolfo Azcuna, Bautista agreed with
the magistrate that "in case of doubt, transparency is
favored over non-disclosure."
Asked
by Justice Consuelo Ynares-Santiago whether he believes that
the present Senate inquiry on the NBN-ZTE project was in connection
with its legislative function, Bautista replied in the affirmative.
We
earlier reported that the vote in the Supreme Court will be
a close call. Sources privy to the deliberations told abs-cbnNEWS.com/Newsbreak
that the 14 justices appear to be split. The swing vote is
expected to come from a newly appointed justice.
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