Business Circuit

Pressure on the Court

Malacañang is expected to exert pressure on the Supreme Court on the executive privilege issue. That does not surprise anybody at all.

The surprise is if the majority of the magistrates succumb to the pressure. Will this be the landmark decision Chief Justice Reynaldo Puno earlier announced?

The issue is an acid test on the independence of the Supreme Court.
The choice of the magistrates is between allowing the President Arroyo to hide the truth and shield herself from a crime or show to one and all that their only job is to defend the Constitution at all costs.

Allowing the President to commit more abuses is trampling upon the Constitution. If the court upholds Malacañang, the presumption of the independence of its members will wane. In fact, it could completely disappear.

The most corrupt president asking for more powers should not be debatable. The request or petition should be denied just like the Court junked Proclamation 1017, CPR, and partly EO 464 the President wants to keep.

Division in the Court

The other landmark event in the Court is the reported division, meaning differences of views and opinions on the issue of executive privilege.

As of last week, Malacañang had allegedly been assured of eight votes in the 14-man Court. However, there is no certainty that one of the eight who is to retire sometime this year will vote in favor of Malacañang.

If he goes to the other side, the voting will be tie at 7-7. If that happens, the Senate can order the arrest of Romulo Neri for not appearing in the investigation.

The clincher here is if Malacañang swears in the replacement of former Associate Justice Angelina Sandoval Gutierrez. (Yesterday, Labor Secretary Arturo Brion was sworn in as the replacement.)

A full Court will vote 8-7 in favor of upholding executive privilege in the Neri case.

The sentiment of the majority of the magistrates in favor of the privilege may be a result of two things. First, in their best lights the President deserves the privilege and should be granted. That’s fine.

Second, their sentiments may be against it but they do not want to accommodate the President or Malacañang. If this is the case, it would have been shown in their votes that their loyalty is to the President and not the Constitution.

The Judiciary’s independence from the Executive thus becomes a myth.

Under the Constitution, the three branches of government - the Executive, Judiciary and Legislative - are co-independent. This is another myth. The practice has never been so.

The Executive, represented by the President, power grabber or cheat, is the most powerful department.

The Judiciary is co-equal with the Executive only in the sense that they may removed from office only by impeachment.

That’s how the Constitution makes sure that the magistrates do not owe anything to anybody, not even to the president who appointed them.

The independence of the jurists of the Court should set in faster than the ink on their appointment papers could dry.

But that is not always the case.

There may be few who swear to the President by the bones of their ancestors that they will always be on her side.

They do not see a crisis of being loyal to the President and defending the Constitution at the same time.

Defending the President when she is wrong is wanton violation of the Constitution. It is immoral and treasonous.

I acknowledge that executive privilege is necessary only when the security of the state is involved.

But then the Senate might have a better appreciation of this matter. It would not even think about asking government officials to divulge anything related to national security.

The duty to preserve the security of the state does not need the exercise of executive privilege. On the other hand, if the privilege is sought for the sole purpose of hiding the truth and shielding a crime, the use of the privilege itself may be considered the bigger crime.

Good, efficient governance requires full disclosure of how the President enforces the law. Since abuses of executive privilege nullify this obligation of the President, we may see the country coming closer and closer to autocracy or one-man rule which encourages more abuses. Upholding the privilege may have the effect of reversing the decision junking Proclamation No. 1017.

There is very little difference between this proclamation and hiding the truth and shielding a crime protected by executive privilege. In fact, the latter could even be more dangerous.

There are few more scandals that the Senate will likely investigate. One of them is the CyberEd project of the Department of Education.

If executive privilege is upheld, the Senate cannot force the secretary of education to testify on the project, like Romulo Neri who saw the dirt in the ZTE deal and balks at talking about it but is prevented by the President who invokes executive privilege.

There is a memorandum of understanding between the Philippines and ZTE International on the development of mining in Diwalwal.

Executive privilege will prevent DTI Secretary Peter S. Favila from telling the Senate what he knows of the project. He signed it on behalf of the government.

In this sense, President Arroyo is seeking to invoke executive privilege to sweep the dirt under the rug.

We have a right to know. That right cannot be denied us if this country must be considered a democracy.

The lesson of the resignation of the governor of New York over what in the Philippines is a simple matter of going to bed with a prostitute is a learning lesson on how democracy should function.

Of course, the governor is not the president of the United States. The lesson here is powerful people should not protected if they abuse their office. This will never happen in the Philippines.