This is a featured post from Rom’s blog, “Smoke”. A reaction to the decision made a few weeks ago by the Supreme Court of The Philippines in which they ruled in favor of Romulo Neri.
The Court ruled:
Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.
All technically correct, of course. However, the first conclusion is premised on the presumption that the Malakanyang’s characterization of the questions as relating to diplomatic relations is accurate. The Court never really discussed why this was so, much less validated the characterization. This makes the first conclusion really shaky since it is based on a premise that has not yet been proven accurate.
The second conclusion is really of no use since it is an undisputed fact that Neri is a close advisor of the Prez. All this conclusion does is bolster the fact that Neri can claim privilege. But that was never at issue. The issue is whether the claim is justified. Again, the justifiability of the claim seems to have been taken for granted.
The third conclusion is the linchpin, and it is based on the fact that
“The case of Senate v. Ermita only requires that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” The particular ground must only be specified. The enumeration is not even intended to be comprehensive.”
In other words, the claim actually need not be justified. In cases where the Senate thinks the claim is unjustified, it can take the case to the SC. But that remedy is, in fact, illusory since, when it receives the case, all the SC will look for is whether the allegation was properly made – it won’t even look into the reasonableness of the claim. For instance, Midas Marquez – the Court’s spokesman – is now emphasizing that the reason the Court ruled for Neri is actually because the Senate was unable to show any compelling need for the information. This line of reasoning implies that if a need was shown, the privilege would have been denied. BUT that implication is contradictory to what the Court itself said when it declared that a mere allegation of privilege, properly made, is all that is needed. How can any enumeration of “compelling need” be validated without measuring those claims against the justifications for keeping the privilege intact? How can you say that the justifications for disclosure are more ‘compelling’ than the justifications for secrecy when the secrecy need not even be justified?
That all looks kinda circular to me.
“Did the President (Gloria Macapagal-Arroyo) follow up with you on the ZTE contract?”
“Did she tell you to prioritize the ZTE contract?”
“Despite knowing the flaws of the contract did she tell you to approve it?”
Why were these questions characterized as falling within executive privilege? Neri’s claim is that “Malacañang was concerned about ‘the impact of the bribery scandal involving high government officials on the country’s diplomatic relations and economic and military affairs, and the possible loss of confidence of foreign investors and lenders in the Philippines.’” Caveat lector, though: Having not read the Supreme Court’s 9-6 decision (anyone with a link to the damned thing, feel free to post it in the comments sections), I’m going to have to assume that 9 justices out of 15 agreed that the responses to those three questions would have undermined diplomatic relations and scared investors away.
But that’s stupid.
The problem is that the application of executive privilege seems to have been granted to specific questions, instead of a class of questions. The implication is that if those specific questions are asked, all the problems with diplomatic relations and such will arise. And since the questions are all yes-no in nature, it’s pretty easy to divine what the answers actually are.
If the answers to those questions had been no, no, and no, there would be no worries about diplomatic relations and investor confidence, and therefore there would have been no basis for invoking executive privilege. Straight no’s would have clearly communicated an image of the President as being tough and principled against corruption. The first two questions – follow ups and prioritization – answered no would indicate that she at least tried to keep her distance from the project; the third question answered no would have indicated that she at least did not give unequivocal approval of a possibly flawed project.
On the other hand, if any one of the answers had been a “YES,” then it would have proven presidential complicity (remember, the assumption underlying those questions is that Neri had already told the President that a bribe had been offered). In that case, diplomatic relations would be the least of the president’s problems.
This makes it very clear to me – and I’m agreeing with a noted blogger on this one – that invoking executive privilege in relation to those three specific questions operates only to conceal a crime. While executive privilege is supposed to guarantee that the Prez doesn’t have to worry about making an unpopular decision – or even a wrong one – it certainly does not operate to conceal a decision made with full appreciation of that decision’s illegality.
I truly do not understand why the Court would make such a transparent ruling. It’s almost as if they ruled in favor of Neri simply to avoid antagonizing the Palace; so, by allowing the invocation of executive privilege on these specific questions, is the Supreme Court in fact sending out the message that there is something that needs to be hidden?
This evokes images of kidnap victims smiling at their abductors while scribbling “help me” messages on whatever they can get their hands on.
Is the Supreme Court asking for help?
(A note about the image: Over at the noted blogger’s stomping grounds, DJB has taken to referring to the SC as SCORP – Supreme Court Of the Republic of the Philippines – definitely a take-off on SCOTUS which is gonadally related to the diarrheic POTUS and the stinky FLOTUS. DJB’s SCORP inspired me to complete the acronym, hence, SCORPION – SCORP Institutionalizes Obstruction of Neri. Sounds like a villain organization right out of Ian Fleming’s lurid imagination.)
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