Post by atty36252 on Oct 2, 2007 7:31:04 GMT -5
Romulo Neri claims executive privilege in withholding information about communications between him and the president regarding the NBN deal. There are two types of questions that the Senate may ask. One is legal, and the other, economic in nature:
1. What information, if any, did the president have regarding attempts to bribe Neri, and
2. What information shaped the decision to approve the NBN deal.
If the questioning would center around bribery attempts, then that question is not covered by the privilege. It is not the function of the Chief Executive to commit an offense, aid and abet in the commission of an offense, or conceal knowledge of the commission of an offense. There can, therefore, be no valid claim of executive privilege when Neri is asked about the President’s knowledge, nor of her instructions, regarding the bribery attempt.
A personal privilege may also not be claimed, because Neri is not a lawyer, so there is no lawyer-client privilege to invoke. Even if Neri were a lawyer, the privilege is not available, for "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." (Clark v. United States, 289 U.S. 1)
Neither is there any basis for claiming executive privilege, if the discussion involved the merits of the NBN deal itself. As an agreement between two nations, the NBN deal is an international agreement. This classification is further bolstered by the fact that there is a loan agreement to back up the deal.
It being an international agreement, it requires concurrence by the Senate, to become effective, for the Constitution provides that:
Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
The Supreme Court has interpreted the above provision as follows:
“This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective" [Bayan v. Zamora, G.R. No. 138570 (2000)].
It is true, that in the case of Chavez v PEA, the Supreme Court held that:
“.... Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power.”
But that pronouncement protects the independence of each branch, in the exercise of power granted solely to one branch. It does not contemplate the situation here, where the power (to enter into international agreements) is jointly exercised – by the president when the international agreement is forged, and by the Senate, which makes the agreement effective with its concurrence.
The executive branch, therefore, has the duty to submit the agreement to the Senate, and the Senate has the duty to study it to determine whether or not to concur, or withhold concurrence.
The executive seeks to shield itself with the fact that the Supreme Court has already issued a TRO, and argues that the matter is sub judice. But the Court will only determine whether or not the deal is legal. If declared legal, the determination of whether or not it is in the national interest to push through with the deal rests with the Senate. There is, therefore, no conflict between the Supreme Court’s function of determining legality, and the Senate’s duty to determine if the deal is in the national interest. Each branch wields a different power; that power is wielded to resolve a different issue.
Finally, the executive’s privilege in keeping communications with her advisers confidential, is a privilege implied from the principle of separation of powers [US v. Nixon 418 US 683 (1974)]. The requirement that an international agreement be submitted to the Senate for concurrence is an express command of the Constitution. It is elementary, that what is express prevails over what is implied.
Another red herring is being foisted by the Administration to shift attention from the real issue. Was the president involved in this shady deal?