BY AMADO MACASAET

AS it is and so enshrined in the Constitution, the Executive Branch of the government is the most powerful among the three. The need of the hour is to regulate the powers of the President, not to expand them to create more room for abuse.

An entire nation has witnessed the abuses in the form of election fraud, corruption, cheating, and lately, the most heinous, high treason.

In spite of all these "crimes," the President breezed through three attempts at impeachment. She went through them unscathed precisely because of the awesome, tremendous misuse or abuse of her powers.

Before the Supreme Court is an issue that will determine whether the powers of the President may be extended further and at what cost, and for whose benefit.

The most important factors to consider in resolving the issue are the question of morality and the redemption by the Court of its mistake in coming up with an unheard of doctrine of "constructive resignation" that justified the power grab against former President Joseph Estrada who was already in an impeachment trial.

Is it the sentiment of the Court to grant executive privilege to a President who ascended to power twice in ways never heard of, much less sanctioned in democratic society?

President Arroyo took power twice without the mandate of the people. The first term was grabbed from one elected with the biggest majority. The grabbed term was not a mandate of the people. It was a mandate of the Supreme Court.

The second term that started in 2004 was a stolen one. It was not a mandate of the people either. It was a mandate of the Comelec which, instead of ensuring clean and honest elections, helped Gloria Arroyo cheat in the polls.

In a functioning democracy, the sole duty of the Supreme Court is to defend the Constitution. This defense should always be for the benefit of the people or public welfare, which in turn strengthens democratic institutions.

Democracy is by the people, of the people and for the people.

The issue is one of the most ticklish the Court has ever faced as far as the Executive Branch is concerned.

Does a Chief Executive who sits not by mandate of the people deserve more powers than already are enshrined in the Constitution?

The issue does not center mainly on the lack of mandate for the two terms. More important is the ability of the Court to discern whether President Arroyo helps strengthen democratic institutions.

If she does, we may well forget the power grab and the cheating that gave her the second stolen term.

The unanimous vote on Proclamation No. 1017, Calculated Pre-emptive Response, thrown to the garbage heap by the Supreme Court, are but two of the better indications that the tribunal does not believe that the President is enforcing the laws according to the Constitution.

President Arroyo, in invoking executive privilege, has banned officials from appearing before a congressional investigation without her consent.

I consider executive privilege as a necessary tool for the President only when the security of the state is involved.

The security of the state and its people are not served under a president who cheated her way to power after grabbing the first term.

The decision on the Neri executive privilege issue will come by about the end of the month. The tribunal will render a landmark issue, according to Chief Justice Reynato Puno.

Upholding the President's use of the privilege which she has so far successfully used and abused to hide the truth, in fact cover up a crime, could also be a landmark decision that shields the President from accountability and the disclosure of the truth.

It will be a landmark ruling only in the sense that people can always interpret as servility to the Chief Executive.

This does not sit well with the Constitution. As US President Theodore Roosevelt once said: "To announce there must be no criticism of the President, or that we have to stand by the President right or wrong, is not only unpatriotic and servile, but is morally treasonable to the public."

Abuse of executive privilege is a most severe -- in fact fatal -- blow to democracy and its institutions. The President can invoke it to cover a crime, or at least deny the people their right to know and their access to information.

Abuse of executive privilege denies the Senate its investigative powers in aid of legislation. It denies the Senate a more intelligent basis for remedial legislation which would come only from testimonies of witnesses, particularly cabinet officials who are presumed to be more knowledgeable on how the President enforces the laws as required by the Constitution.

There is an analogy between the executive privilege that resigned President Richard M. Nixon insisted on exercising in the Watergate break-in scandal and the present invocation of the privilege by President Arroyo. Nixon refused to surrender the tapes of the Watergate conversations, claiming that he had executive privilege.

But that privilege was not upheld by the US Supreme Court which ruled that the privilege could not be used to hide a crime. Nixon, knowing that he had lost his political support in Congress, resigned in shame because he did not want to face a more certain and shameful impeachment.

It is important to remember that no president has surpassed the incumbent in trying - and many times succeeding - to trample on the sanctity of the Constitution.

This is the president who is asking for more powers in the use of executive privilege. In sum, Gloria Arroyo herself and her dismal performance are the reasons why executive privilege should not be extended to the President in the Neri case.

Romulo Neri, former head of the NEDA, and now acting chairman of the CHED, put his foot down on what he believed, as NEDA director general, an anomalous deal. He refused to approve the ZTE deal, even with the "200 ka rito" offered by Elections chairman Benjamin Abalos. He also said that when he told the President about this, he was told to reject the bribe but give NEDA endorsement just the same.

Neri has been invited by the Senate to testify on what else he knows about the transaction. The President does not want him to honor the invitation precisely because under Executive Order 464, she has to give specific permission to allow cabinet officials to answer summonses of the Senate.

These specific circumstances most unfortunately relate to the denial of the truth about an anomaly or in fact, a criminal act including treason.

Romulo Neri is prevented from appearing before the Senate by this power which the President now obviously invokes. Neri wants to tell the Senate what he knows about the ZTE scandal but he does not want to defy the President.

He might talk only if the Supreme Court rules executive privilege cannot be invoked in his case.

Upholding the President on this case would be a landmark decision for misinterpretation of the Constitution which in turn leads democracy on its way to the grave.

Democracy dies a little every time the truth, or even a lie, is denied the public or the Senate which it uses for enacting remedial legislation.

As it is the President is vested with awesome powers by the Constitution. These powers have been wantonly abused.

Is it the desire of the Supreme Court to uphold executive privilege in the Neri case and encourage her all the more to abuse those powers in violation of the Constitution?

The answer to the question is in the hearts and minds of the members of the Supreme Court.

Is it the sentiment of the Court to grant more powers that the President can abuse?

Reduced to that point, the issue becomes much simpler to resolve. The Constitution must be defended by the Court even at the cost of denying the President the power she can use to hide the truth or cover a crime.

By the way, the Court would help preserve the perception or assumption of its independence if Associate Justice Renato Corona would inhibit himself from the case.

The signature of his wife in a manifesto supporting President Arroyo may cast doubt on his objectivity. That is not predicting how he will vote. But if he supports upholding executive privilege in the Neri case, and the majority so rules, his independence is open to suspicion.