BY EVANGELINE DE VERA

VOTING 9-6, the Supreme Court yesterday ruled that acting Higher Education chair Romulo Neri correctly invoked executive privilege in refusing to answer three questions asked by the Senate in connection with its inquiry into the allegedly corrupt $329 million national broadband network project awarded to the China’s ZTE Corp.

The tribunal thus granted the petition of Neri that the Senate be stopped from compelling him to testify on what he said were confidential matters, saying doing so would be detrimental to the country’s diplomatic relations with China.

Penned by Associate Justice Teresita Leonardo-de Castro, the SC ruling gave weight to the argument of Neri’s lawyer Antonio Bautista that his conversations with the President "dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the country."

The ruling said presidential communications are considered "presumptively privileged," and founded on the President’s generalized interest in confidentiality.

"This privilege is said to be necessary to guarantee the candor of presidential advisors and to provide ‘the President and those who assist him... with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately,’" the Court said.

It added that Congress cannot require the Executive to state the reasons for the claim of executive privilege with such particularity as to compel disclosure of the information which the privilege is meant to protect, as a matter of respect to a coordinate and co-equal department.

The Court added that there is a cloud of doubt as to the validity of the contempt order dated Jan. 30, 2008 as members of the respondent committees who did not actually participate in the deliberation were made to sign the contempt order.

The decision is also anchored on technicalities ensuing from the failure of the Senate to publish its rules on legislative inquiries after the opening of the 14th Congress.

Concurring with De Castro that the three questions are covered by privileged communications are Associate Justices Leonardo Quisumbing, Renato Corona, Dante Tinga, Minita Chico-Nazario, Presbiterio Velasco, Antonio Eduardo Nachura, Ruben Reyes and Arturo Brion.

Brion, who was appointed to the high court last week, was not yet a member of the tribunal when it held oral arguments on the case last March 4. He also wrote a separate opinion explaining his vote to concur with the majority.

Dissenting were Chief Justice Reynato Puno and Associate Justices Consuelo Ynares-Santiago, Ma. Alicia Austria-Martinez, Conchita Carpio-Morales, Adolfo Azcuna and Antonio Carpio.

Carpio, however, joined the majority in ruling that the Senate gravely abused its discretion in citing Neri in contempt and in issuing the warrant for his arrest.

Except for Quisumbing, all the justices in the majority were appointed by President Arroyo. Of those dissenting, Martinez, Morales, Azcuna and Carpio were appointees of Arroyo.

NERI IS PLEASED

Neri said he was "pleased" by the ruling.

He did not elaborate, adding he will let his lawyers see first the full text of the SC ruling.

Court spokesman Jose Midas Marquez said the ruling does not preclude the Senate from proceeding with its legislative inquiry on the ZTE-NBN deal, but senators may no longer ask the three questions which Neri claimed are covered by executive privilege.

Executive privilege is a recognized right of the President to withhold from Congress, the courts and the public any information if this is vital to the national interest. The information includes conversations and correspondence between the President and her officials pertaining to the military, diplomatic, and other national security issues.

The questions proposed by Senators were: whether President Arroyo followed up the NBN-ZTE project with Neri; whether Neri was dictated to prioritize the NBN-ZTE project; and, whether the President told him to go ahead and approve the project after being told about the alleged bribe.

Marquez said the Senate cannot cite any person appearing before it in contempt until it passes its rules. He said the ban not only covers Neri but, in effect, also covers other witnesses appearing before the Senate.

"This means that Neri can’t be cited for contempt, nor can he be arrested unless sufficient rules are published. The Court is not saying that the Senate is without powers to hold hearing provided that the questions are not covered by executive privilege," he said in a press briefing.

Marquez said that it is up to Neri if he wants to voluntarily disclose that information in a public hearing or during an executive session.

GOOD REASONS

In his 120-page dissenting opinion, Puno said the Senate committees on Accountability of Public Officers and Investigations (Blue Ribbon), on National Defense and Security, and on Trade and Commerce did not abuse their discretion in issuing the Jan. 30, 2008 order of arrest of Neri.

Puno said that based on the composition of the committees in the determination of majority vote, the majority requirement for each of the respondent committees was satisfied, thus the substantive and procedural requirements for issuing an order of arrest have been met.

He said the Senate committees have good reasons in citing Neri for contempt for failing to appear in the Nov. 20, 2007 hearing, and that there is no basis for either Neri or the executive secretary to assume that petitioner’s further testimony will be limited only on the three disputed questions.

"When there is abuse of power by any of the branches, there is no victor, for a distortion of power works to the detriment of the whole government, which is constitutionally designed to function as an organic whole," said Puno.

REASONABLE DANGER

Puno said that even assuming that petitioner can properly invoke the privilege covering national security and military affairs, still, "the records will show that (Neri) failed to provide the Court knowledge of the circumstances with which the Court can determine whether there is reasonable danger that his answers to the three disputed questions would indeed divulge secrets that would compromise our national security."

Puno also made comparisons of the case with that of former US President Richard Nixon in invoking executive privilege in refusing to turn over tapes and documents relating to the Watergate scandal.

He said that the presidential communications privilege cannot be used to personally benefit the Office of the President.

At the end of the oral arguments last March 4, SC members proposed a compromise where Neri would again attend the Senate hearings and testify on the ZTE bribery scandal, provided that the Senators would not ask him the three questions.

The proposal was made so the Senate could exhaust all questions with regard to the NBN-ZTE controversy. The questions that Neri would refuse to answer on the ground of executive privilege would have to be set aside and be brought back to the Supreme Court through a supplemental petition for determination whether executive privilege was validly invoked.

Had the parties agreed to the compromise, the arrest warrant and citation for contempt on Neri would be lifted, and the Senate would continue with its questioning of the Cabinet official.