Second Opinion

I have reproduced hereinbelow former Chief Justice Panganiban’s take on Neri vs. Senate Committees which I find mouthful and relevant.


With Due Respect
Arroyo Supreme Court?
By Artemio V. Panganiban
Philippine Daily Inquirer
Posted 03:12:00 03/30/2008

In the olden days, kings and queens ruled their domains absolutely according to their wiles and whims. They were not bound by pre-agreed rules to guide their actions. They simply imposed their wicked ways on the hapless people.

Constitutional democracy. As time went by, absolute rulers were deposed and new ones democratically selected. The chosen took the place of the kings but their powers were severely limited by constitutions and laws crafted by elected representatives. The rule of law prevailed when the chosen leader ran the country pursuant to the constitution and statutes, no longer by unpredictable wiles and whims.

In our country, the elected ruler who took the place of the king is the president. As in all constitutional democracies, not all the kingly powers are vested on the President. The authority to make laws is with Congress. The Supreme Court reviews executive acts to assure the reign of the rule of law. To further restrict the kingly prerogatives, the Constitution has created several other agencies like the Commission on Elections, the Commission on Audit, and the Ombudsman.

At present, President Macapagal-Arroyo, by her lonesome, commands the armed forces and the police. She spends more than 95 percent of the national budget, controls more than 95 percent of all national employees and supervises all provinces, cities, towns and barangays. Although the Supreme Court, Comelec, COA, and OMB are designed to be independent, the President appoints all their members.
Awesome powers. Indeed, the powers of the president are awesome. She could run the country by herself, without need of the Supreme Court, Congress, Comelec, etc., as ably demonstrated by Ferdinand Marcos. In fact, a repressive and corrupt president could use his or her prerogatives to subdue these agencies and thus enable him or her to rule the nation like the monarchs of old.

This is why the vitality of our democracy is dependent on the courage and competence of these agencies and their members to review and check presidential actions. This is also why there is unease, if not teeth-gnashing, when these agencies, especially the Supreme Court, unreasonably expand executive prerogatives, or inexplicably fail to check abuses.

“Neri vs Senate Committee on Accountability,” promulgated last March 25, is a case in point. I have read the 35-page ponencia of Justice Teresita Leonardo de Castro plus the concurrences of Justices Renato C. Corona (21 pages), Dante O. Tinga (14 pages), Presbitero J. Velasco Jr. (nine pages), Antonio Eduardo B. Nachura (15 pages) and Arturo D. Brion (nine pages), as well as the stirring dissents of Chief Justice Reynato S. Puno (120 pages), Consuelo Ynares-Santiago (seven pages), Antonio T. Carpio (36 pages), and Conchita Carpio Morales (31 pages).

With due respect, I believe that the majority decision failed to check presidential abuse; worse, it imprudently expanded executive privilege to cover wrongdoings.

First, to justify Secretary Romulo Neri’s refusal to answer the three questions linking President Arroyo to the ZTE-NBN mess, the majority considered “conversations that take place in the President’s performance of (her) official duties… presumptively privileged.” It deemed the bare, proof-less claim of Executive Secretary Eduardo Ermita that Neri’s disclosures “might impair our diplomatic as well as economic relations” with China. It faulted the Senate with rank failure to explain a “critical or compelling need for the answers.”

By shifting the burden of proof to the Senate, the nine-member majority reversed the much-acclaimed “Senate vs Ermita,” issued just two years ago, that unanimously placed the duty of proving the need for secrecy on the president. Disclosure is the rule because the Constitution expressly mandates transparency and accountability for all officials.

Second, by giving the “presidential communications privilege” presumptive confidentiality, the majority inexplicably expanded kingly prerogatives. It unreasonably suppressed the truth.

Third, executive privilege is not expressly provided in the Constitution. There is no sentence or clause mentioning the privilege directly. The Supreme Court merely implied it from other presidential powers. In contrast, the power to investigate in aid of legislation is expressly granted by the Constitution to Congress. In a clash between these two prerogatives, the choice is clearly in favor of the express grant.

Fourth, the majority agreed with the Senate that executive privilege should not be used to hide a crime or wrongdoing. Well and good. Yet, it still ruled against disclosure on the convoluted argument that “US vs Nixon” involved a “pending criminal action,” while the Neri petition related to a “legislative inquiry.” As I see it, this American case is simply inapplicable. The majority should have relied on the constitutional mandate requiring transparency and accountability of officials. Its decision would have been a great landmark.

An epochal Supreme Court is endearingly named after its chief, like the Davide Court or the Teehankee Court. However, when it unduly legitimizes kingly excesses, it is derisively named after the president it serves, like the Marcos Supreme Court. As a retired chief justice, I would like to believe that the Neri decision is a mere aberration and would not suffice to label the present tribunal as the Arroyo Supreme Court. But then, it must quickly choose what it wants to do. Is it to serve or to check President Arroyo?

The Great Dissenters

In the case of Romulo Neri vs. Senate Committee On Accountability of Public Officers and Investigations, et. al. (G.R. No. 180643, 25 March 2008), six (6) members of the Supreme Court namely Chief Justice Puno and Justices Carpio, Azcuna, Carpio-Morales, Martinez and Ynares-Santiago ruled that the three questions that Neri had refused to answer in the Senate probe are not covered by executive privilege. I do admire these six gallant dissenters who ruled on the strength of their blind loyalty to the Constitution and firm reverence to the doctrines of separation of powers and checks and balances. The minority ruling in effect wanted to uphold and legitimize the constitutional power of the Senate to compel a witness who refuses to heed a subpoena and reject the Executive Department’s resistance to the Senate’s power of inquiry which is coextensive with the power to legislate.







I salute you, Your Honor!

Not yet Rene, not yet!

“No, I ask not for a revolution, but reform. If the young 'uns do not now
condemn the ways of the trapos, we are lost. To think that a number of the barracudas today were used to Spartan lifestyles during the Marcos years, it pains to see how they validate Oscar Wilde's observation that everything can be resisted except temptation. The young 'uns must speak now for the day they see the truth and cease to speak is the day they begin to die. The cruelest lies are often told in silence. Two mistakes are irrevocable, speaking when it is time to be silent and being silent when it is time to speak. Useful clichés.”

Those are the eloquent words of the acerbic Atty. Rene A. V. Saguisag, a bar topnotcher, a former Senator and cabinet member, a human rights lawyer, a thinker, a moralist, a freedom fighter, a journalist, a reformer and an activist.

Get well soon, Senator! The country still needs you.

Dr. Jovito Salonga - Conscience of the Nation

I was in grade one when Dr. Jovito Salonga was almost killed in Plaza Miranda bombing. Next to Ninoy, Dr. Salonga, recipient of 2007 Magsaysay award, is my favorite political figure.

When Supreme Court is faced with serious constitutional issue, Dr. Salonga is always called upon to serve as amicus curiae.

He co-topped the 1944 bar exams (95.3%), the highest score in 31 years besting notable topnotchers like Ferdinand Marcos in 1939 (92.35%), Claudio Tehankee in 1940 (94.35%), Diosdado Macapagal in 1936 (89.85%), Celilia Munoz in 1937 (92.60%), Arturo Tolentino in 1934 (89.65), and Manuel Roxas in 1913 (92%)

He is a rare legal luminary who, in writing and in speaking, makes history. He shapes and generates historical events by his words. He stands virtually alone in that distinction.

My cabalen Chief Justice Panganiban paid tribute to Dr. Salonga, his mentor and former boss, in his PDI column dated August 19, 2007 which I have reproduced below.

Former Senate President Jovito R. Salonga, the country’s oldest living statesman and my personal guru for more than 50 years, launched last Aug. 14 another illuminating, persuasive and life-changing masterpiece. The book’s title, “Not by Power or Wealth Alone,” is its best summation. As an exemplary public servant and brilliant lawyer, he has had a generous share of power and access to wealth in this material world. But in characteristic humility, he declares them thoroughly inadequate to satisfy life and to reform society.

Practised what he preached. Dr. Salonga, a Protestant, has spoken before many congregations, Catholic and Muslim included. He was always eloquent, spoke with the tremolo of infectious conviction, and left his audience with thoughts and reflections that led to action. But that is not all. True, he preached powerfully; but equally true, he practised even more stringently what he preached.

Believing that the Marcos dictatorship plundered not only the public treasury but also the people’s values, he sponsored the enactment of the Ethical Standards Law. Remarkably, in his personal conduct, he went even beyond the requirements of this law or of any known code of ethics.

For instance, when he and his law partners, Sedfrey A. Ordoñez (who became solicitor general, secretary of justice, and ambassador to the United Nations) and Pedro L. Yap (who was elevated to be chief justice of the Philippines), were recruited to public office by President Corazon C. Aquino in 1986, he was not satisfied with taking a leave from his prestigious law firm as demanded by law and ethics; he went all the way and dissolved permanently his law partnership.

In serving a government swept to office by legendary people power, he opted to forego the luxuries that wealth could buy to be able to demonstrate the virtues that power and wealth alone could not bring. He chose to live simply so that others may simply live.

Indeed, he is a living model of his teachings. He is a dedicated husband, a caring father, a faithful friend and a devoted man of God. Never compromising his principles in exchange for friendship, kinship, relationship, power or wealth, he lives an almost ascetic life. He does not smoke, drink, or gamble. Money, worldly pleasures, titles and honors hold no fascination for him.

Outstanding and humble. To say that Dr. Salonga is outstanding is to say something ordinary about him. He topped the bar examinations, topped his doctoral class in Yale University and topped the senatorial elections three times, a record unequaled in this nation’s history. Yet he remains humble and child-like, as our Lord Jesus Christ counseled all His disciples to be. No wonder, he had been selected as one of the seven Ramon Magsaysay awardees this year.

Even when I was his assistant in his law firm in the early ’60s, he was never allured by possessions, positions or propositions. He never quibbled over attorney’s fees; did not bill even his wealthiest clients like Don Eugenio Lopez Sr., leaving to them the problem of how to compensate him. Money had very little meaning for him then, and less so now.

Many of the essays, homilies and speeches included in the book had been written some 35 years ago, after his life was almost snuffed out by that bombing in Plaza Miranda, Manila on Aug. 21, 1971. In it are chronicled his pains, struggles and hopes. But like our Lord Jesus Christ, his faith grew stronger as his physical self felt weaker.

Sprightly at 87. On June 22, 2007, Dr. Salonga celebrated his 87th birthday. Yet, despite his advanced age and despite the many tiny pieces of shrapnel that are still imbedded in his frail body as a result of that grenade blast in Plaza Miranda, he is still sprightly. More important, his intellect and his interest in public welfare are still as sharp as when he was 40. Let me give just two recent proofs of this assertion:

1. Peeved at the Commission on Elections’ refusal to reveal the names of the party-list nominees in the last elections, he sued the poll body for violating the people’s constitutional right to public information; the result: a unanimous Supreme Court decision (in Rosales vs Comelec), promptly promulgated on May 4, 2007, commanding the Comelec to follow his demand; and

2. Alarmed that President Macapagal-Arroyo violated the Constitution in appointing to the Supreme Court someone who was not a natural-born citizen, he again sued; the result: again, a unanimous Supreme Court decision (in Kilosbayan vs Ermita), promptly issued on July 3, 2007, enjoining Gregory Ong from accepting his appointment to the Supreme Court, precisely because of his lack of natural-born citizenship.

Many times during his prayers and moments of solitude, he has asked our Lord why his life had been spared, and why he had been gifted with longevity when he was one of the most injured during that deadly Plaza Miranda blast.

I dare say that our Good Lord had granted him a long and purposeful life, because He wanted him to be the conscience of the nation; to be its fearless anchor during stormy seas of political upheavals; and to be the indefatigable teacher and model of the young and not-so-young who aspire to lead this country.