PERRYSCOPE

A 'rubberized' Supreme Court
PERRY DIAZ

Finally, President Gloria Macapagal Arroyo has achieved every totalitarian's dream --absolute power. And she didn't even have to declare martial law. The late dictator Ferdinand Marcos would have been awed at the way Arroyo acquired wealth and power.

Arroyo and her "royal family" must now be celebrating at the prospect of staying in power beyond 2010. Why not?

After the 9-6 Supreme Court decision upholding Romulo Neri's right to invoke "executive privilege," nobody would now be in a position to block Arroyo from doing what she pleases to accomplish including changing the constitution so she could remain in power indefinitely.

The Supreme Court's controversial decision has brought to the forefront of debate the issue of "judicial independence." Never in its 107-year history had the Supreme Court made a decision that has generated apprehension among jurists, politicians, and the public that the High Court's independence has been compromised.

While the decision specifically addressed Neri's petition, it has set a precedence which would allow Arroyo to rule in total secrecy, all in the name of "executive privilege." As Sterling Seagrave, in his book "Gold Warriors," said, "Secrecy is power. Power corrupts. Secret power corrupts secretly."

In his petition, Neri sought guidance on the possible invocation of executive privilege on three hypothetical questions which he might be asked by the Senate Blue Ribbon Committee in its investigation of the $329-million ZTE-NBN scandal: 1) Whether President Arroyo followed up the ZTE-NBN project; 2) Whether Neri was dictated by Arroyo to prioritize the project; and 3) Whether Neri was told by President Arroyo to go ahead and approve the project after being told about the alleged bribe offer.

The gist of the majority decision penned by Associate Justice Teresita J. de Castro is that "the Executive has a right to withhold documents that might reveal military or state secrets, identity of government informers in some circumstances, and information related to pending investigations."

Chief Justice Reynato Puno, who penned the dissenting opinion, proved that the three questions were pertinent to the Senate inquiry. He said, "The three assailed questions seek information on how and why the NBN-ZTE contract -- an international agreement embodying a foreign loan for the undertaking of the NBN Project -- was consummated."

In a separate opinion, Associate Justice Antonio Carpio said, "Executive privilege cannot be invoked to hide a crime because the President is neither empowered nor tasked to conceal a crime.

On the contrary, the President has the constitutional duty to enforce criminal laws and cause the prosecution of crimes." Further, he said, "Executive privilege must be invoked with specificity sufficient to inform the Legislature and the Judiciary that the matter claimed as privileged refers to military, national security or diplomatic secrets, or to confidential Presidential communications."

And in direct reference to Neri's petition, Justice Carpio said, "Executive privilege must be invoked after the question is asked by the legislative committee, not before. A witness cannot raise hypothetical questions that the committee may ask, claim executive privilege on such questions, and on that basis refuse to appear before the legislative committee."

In regard to the bribery issue, Justice Carpio said that Neri "categorically admits that his discussions with the President 'dwelt on the impact of bribery scandal involving high Government officials.' Petitioner's discussions with the President dealt not on simple bribery, but on scandalous bribery involving high Government officials of the Philippines."

Justice Carpio concluded, "Executive privilege can never be used to hide a crime or wrongdoing, even if committed by high government officials. Executive privilege applies only to protect official acts and functions of the President, never to conceal illegal acts by anyone, not even those of the President. Public office is a public trust and not a shield to cover up wrongdoing."

But regardless of Justice Carpio's brilliant and concise legal opinion, nine of the 15 justices favored the convoluted opinion penned by Justice de Castro. Many people are of the belief that Arroyo's appointment of Justice Arturo Brion to fill a vacancy on the High Court tilted the High Court in favor of Neri's petition. Critics said that Justice Brion should not have participated in the final vote on Neri's petition.

First of all, he was a former cabinet member -- and a political appointee as well -- of Arroyo's government; thus, he may be privy to a lot of "secrets" that Neri and Arroyo wanted to hide from Senate inquiry and public scrutiny. Secondly, he did not participate in the High Court's hearing on Neri's petition. And thirdly, his appointment to the Supreme Court was perceived by a lot of people that he was appointed by Arroyo to stack the deck in favor of Neri's petition.

In addition to Justice Brion, another justice's participation in the vote was questioned.
Associate Justice Presbiterio Velasco Jr. is said to have been a "golf mate" of Neri. According to whistleblower Rodolfo "Jun" Lozada, the two frequently played golf together at Wack Wack Golf and Country Club where the ZTE-NBN "commissions" -- or kickbacks -- were allegedly discussed by the "Greedy Group." Justice Velasco admitted that he played golf with Neri only once but claimed that Neri "is but an acquaintance."

But what remains a mystery is that nobody filed a motion to inhibit Justices Brion and Velasco from participating in the final vote, although it was reported that Senate lawyers have been preparing to file such motion. Makes one to wonder if the Senators had succumbed to pressure to not rock the boat. Has the long tentacles of Arroyo finally gripped the Senators -- particularly the "presidentiables" -- into submission?

With nine Supreme Court justices due to retire next year, Arroyo will have a grand -- and timely -- opportunity to appoint "political justices," the likes of Justice Brion. As Justice Carpio -- who graduated cum laude and valedictorian at U.P. in 1975, and placed sixth in the Bar -- said in 2006 after he penned the 8-7 decision which dismissed the petition for a people's initiative to amend the constitution, "the most important qualification of a judge is independence, not brilliance." Indeed, the 9-6 decision upholding Neri's petition may be the precursor of a "rubberized" Supreme Court, where decisions would be conveniently stamped to satisfy Arroyo's political and personal agenda. (PerryDiaz@gmail. com)