Post by atty36252 on Apr 5, 2008 22:31:19 GMT -5
The majority opinion anchors its grant of Romulo Neri’s petition on three findings:
1. The Senate committees did not have the majority vote, and therefore, violated Senate Rules;
2. The Senate did not re-publish its Rules, and therefore, denied Neri due process; and
3. The information to be elicited from Neri is covered by executive privilege.
The majority states that the Committees did not have the majority vote of their members (rebutted by the dissenting opinion of the Chief Justice); by the Rules of the Senate, therefore, the action was infirm. The concurring opinion of Justice Brion even states that:
For his maiden opinion, Justice Brion offers us this labored sophistry that elevates form over substance; for it seeks to inquire whether or not the senators voted as committee members or as plain senators. It conveniently ignores the substance - that two-thirds of the senators agreed as an institution to the action taken.
Even if it be assumed that the senators did not hew closely to the Rules of the Senate, this does not render the action of the body infirm, for it has been held
The Court further held that the Court itself would be guilty of grave abuse of its discretion were it to intrude into legislative affairs, because it thinks that a chamber has disregarded its own rules.
It may be argued that the contempt citation and the arrest order are not, strictly speaking, “legislative acts”, if by that phrase, is understood, the enactment of laws. But the acts are necessary incidents of lawmaking. In the case of McGrain v. Daugherty (273 US 135), the US Supreme Court held that:
Explaining further, the Court in McGrain, citing Anderson v Dunn held that:
It is true, that the contempt citation and the order of arrest affected the rights of Romulo Neri. But the fact of observance or non-observance of the Rules is not what defines due process. The essence of due process, as held in the case of Hon. Renato C. Corona et al. v. United Harbor Pilots Association et al. (G.R. No. 111953 December 12, 1997), is the opportunity to be heard. In that case, the Court held:
That Romulo Neri was given the opportunity to be heard is proven by the notice to him through his counsel. He, however, refused to appear, and it is this disobedience which is the basis for the order of arrest – to punish the disobedience, and to compel his continued appearance in the legislative investigation.
The majority also held that the actions of the Senate were infirm for its failure to publish its Rules on the conduct of inquiries in aid of legislation. The Senate has published the Rules in 1995 and 2006. There has been no amendment of the Rules since. The Constitution only requires the publication of the Rules, not its yearly re-publication.
In concurring with the majority on this issue, Justice Carpio states that “Fair notice is important because the witness may be cited in contempt, and even detained, if he refuses or fails to answer…” citing Watkins v US (354 US 178). He seems to imply that the re-publication of the rules provides the only means of fair notice. But Watkins stated otherwise, when it held that:
Justice Carpio fails to provide the context of his citation. The US Supreme Court found the legislative inquiry vague, because the authorizing resolution stated that:
The Supreme Court of the United States found this vague and insufficient to provide “fair notice” when it observed:
Viewed in its factual context, it can be seen that Watkins cannot support Carpio’s finding that there was a denial of due process in this investigation, considering that “fair notice” was provided in the authorizing resolution. That authorizing resolution is certainly not as vague as the inquiry into “Un-American activites”.
Furthermore, as the Court observed, Neri had been under questioning for eleven hours. It is difficult to believe that Neri still could not determine what was the subject of the inquiry, after having been questioned on the same contract for eleven hours.
Justice Carpio anchors his finding that the Rules need to be re-published on the basis of Arnault v Nazareno (G.R. No. L-3820, July 18, 1950), stating that:
Arnault v. Nazareno cited McGrain v. Daugherty, where the Supreme Court of the United States held that:
On the basis of this doctrine, that the Senate may continue its committees through the recess, Carpio extrapolates the doctrine that the Rules of the Senate are rendered inoperative at the expiration of the terms of twelve senators, and therefore, need to be republished every new Congress.
McGrain, however, was deciding the issue of continuing authority of the committees, not the continued effectivity of the Rules. The same is true for Arnault, which relied on McGrain. Arnault only decided the issue of whether or not the Senate may empower its committees beyond its session. It did not pass upon the effectivity of the Senate Rules.
On the continued effectivity of the Rules, the same Hind’s precedents also states that:
Seen in context, therefore, Hind’s precedents support the stand of the senators, that a new Congress may adopt the Rules of the prior Congress. There is no need for a re-publication, because the people have already been apprised by the earlier publication of the adopted Rules.
Hind’s precedents also quotes the case of US v. Ballin, where the US Supreme Court held that:
The same US v Ballin was quoted in the Joker Arroyo case, cited above.
The majority, in holding that the lack of re-publication is a failure to inform the public not only exalts form over substance; it prefers the slogan to the fact; and upholds a rite instead of a right.
Even if be assumed that the failure to re-publish the Rules renders them inoperative, the Rules are not the only source of the power to cite in contempt. The power to cite in contempt has been held to be inherent in the power to legislate. On this score, the US Supreme Court, in McGrain held:
The process adverted to in that case, was a warrant of attachment (arrest) commanding the Sergeant at Arms of the Senate to take the recusant witness into custody.
Justice Corona, although acknowledging the Senate’s inherent power to cite a witness in contempt, asserts that this does not include the power to arrest a recusant witness. The opinion states that:
The opinion quotes from Arnault, which liberally quoted from McGrain. McGrain, however cited In re Chapman, where the inherent power to cite in contempt was sought to be limited by a statute – the Act of 1857. The court in Chapman held that:
It is clear, therefore, that the Senate’s inherent power may not be limited, by even its own Rules. It bears noting that the limiting provision cited by Justice Corona is a mere Senate Rule. If, as in the case of Chapman, a law (enacted by both Houses) cannot limit the inherent powers of the legislature, then with more reason may a mere Senate Rule not be capable of limiting the said power.
Justice Corona furthers states that
Justice Corona would seek to convince the reader that the Court itself has limited its power by the issuance, and observance of its own Rules of Court. The power to compel obedience, however, is inherent in the judicial power, and has been exercised by the Court even in the absence of express provisions in the Rules of Court.
In a direct appeal to the Supreme Court from the RTC, where it was defended by the Public Attorney’s Office, this writer appeared pro bono for the defendant. The stenographer took almost a year to transcribe the stenographic notes of the hearings in the RTC. This prompted the Supreme Court, motu propio, to order the NBI to arrest the stenographer, and detain her until she shall have finished transcribing the stenographic notes.
The above instance proves that the inherent power to compel obedience by arrest and detention has been exercised, even by the Supreme Court, in the absence of express provisions in the Rules of Court. That is the very nature of inherent power. There is no need for any law or rule granting the power to exercise said power to compel obedience.
The only limit to the exercise of inherent power is the right of an individual to due process, which, as discussed above, only requires the opportunity to be heard.
Justice Chico-Nazario, true to her Sandiganbayan experience, offers this contribution:
In the case of McGrain,, the district court held that:
The US Supreme Court, however, disagreed, and upheld the investigation because the subject matter was one in which legislation could be had.
Claim of executive privilege.
The majority required the Senate to prove a compelling need to the continued questioning of Romulo Neri, liberally quoting Nixon v Sirica where it required the Senate to prove a compelling need for the information. The majority, again, fails to provide context. In the case of Nixon v Sirica, the US Senate was requesting copies of the tapes of President Nixon’s conversations. The request was denied because the House already had the tapes. It is for that reason that there was no compelling need to order the obedience of the executive. The majority conveniently omits the following:
The Executive Secretary invoked military secrets to justify the claim of executive privilege. The Philippine military, as Tiya Dely will inform anyone, has no secrets. Our planes were designed before the Chief Justice graduated from law school. Our Sikorsky choppers were built when Guriang and Bill Clinton were in Georgetown U; when they were, as she claims, in the state of MU (matriculating undergraduates). Our naval vessels are older than the Navy itself.
This calls to mind the joke attributed to the Russian physicist Andrei Sakharov.
KGB catches a Russian diplomat passing military information to the Americans.
KGB: Why are you passing our military secrets to the Americans?
Diplomat: So what? Our technology is twenty years behind the West.
KGB: Precisely. That's the secret.
If at all, what the Philippines has, are secrets of military personnel - General Garcia's stash of cash , the Houdini acts caused by General Palparan (making people disappear), the vote manufacturing of General Esperon.
From the claim of military secrets, the Executive Secretary makes the additional claim that the contract with ZTE, may reveal diplomatic secrets. To claim that a contract with a company with stocks traded internationally is a diplomatic secret is a leap of logic worthy of Bob Beamon (world record holder in the long jump).
The sheer chutzpah (kapalmuks in Tagalog slang) of the claim that a corrupt deal involves military and/or diplomatic secrets could have been exposed for the lie that it is, if the Supreme Court had only hewn close to precedent. Jurisprudence instructs us that when information is sought and a claim of executive privilege is made, the Court must examine the information in chambers and make a determination. That was the procedure followed in the case of New York Times v US and Washington Post v US (http://cases.justia.com/us-court-of-appeals/F2/446/1327), which involved the Pentagon Papers. This procedure was also followed in the recent case of Wen Ho Lee (http://ftp.fas.org/irp/ops/ci/index.html) – a case touted by the prosecutors as involving “the crown jewels of the nuclear program”. In both cases, the district court examined the information sought, and on the basis of its determination, ruled on the issue of privilege.
In the case of the Pentagon Papers, the district court, as upheld by the US Supreme Court, ruled that there was no military privilege, and allowed the New York Times and the Washington Post to publish the contents of the Pentagon Papers.
In the case of Wen Ho Lee, the district court allowed Wen Ho Lee’s lawyers access to the alleged “crown jewels of the nuclear program”. The allegation of national security secrets later folded up, and the US government was forced to settle with Wen Ho Lee.
In this case, as Justice Carpio opines, the very answers of Neri’s lawyer indicate that the alleged executive privilege is actually evidence of bribery. Is that why it was not examined? Was the majority scared of the truth? What is so scary about finding out that the president is a crook? Haven’t we been there before? Hasn’t the ponente seen this in the Sandiganbayan when she presided over the Erap case?
The contrived legal reasoning and the illogic of the factual findings on which the legal principles are founded, lend credence to the public perception that the majority raped the Constitution. That rape was perpetrated through the textual abuse of the body the Constitution - to yield the finding that the Senate caused the textual harassment of Romulo Neri.
Can this decision restore the public’s confidence in the Supreme Court? This is what they call in basketball a Hail Mary shot.
1. The Senate committees did not have the majority vote, and therefore, violated Senate Rules;
2. The Senate did not re-publish its Rules, and therefore, denied Neri due process; and
3. The information to be elicited from Neri is covered by executive privilege.
The majority states that the Committees did not have the majority vote of their members (rebutted by the dissenting opinion of the Chief Justice); by the Rules of the Senate, therefore, the action was infirm. The concurring opinion of Justice Brion even states that:
The Order of arrest, however, was issued in the names of the three participating committees, and was signed by the sixteen (16) senators as committee members, either regular or ex-oficio, and not as senators acting in plenary.
For his maiden opinion, Justice Brion offers us this labored sophistry that elevates form over substance; for it seeks to inquire whether or not the senators voted as committee members or as plain senators. It conveniently ignores the substance - that two-thirds of the senators agreed as an institution to the action taken.
Even if it be assumed that the senators did not hew closely to the Rules of the Senate, this does not render the action of the body infirm, for it has been held
"At any rate, courts have declared that 'the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting them.' And it has been said that 'Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body.' Consequently, 'mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a particular measure” (Joker Arroyo, et al. v Jose De Venecia, et al. G.R. No. 127255 August 14, 1997).
The Court further held that the Court itself would be guilty of grave abuse of its discretion were it to intrude into legislative affairs, because it thinks that a chamber has disregarded its own rules.
It would be an unwarranted invasion of the prerogative of a coequal department for this Court either to set aside a legislative action as void because the Court thinks the Senate (House) has disregarded its own rules of procedure, or to allow those defeated in the political arena to seek a rematch in the judicial forum when petitioners can find their remedy in that department itself. The Court has not been invested with a roving commission to inquire into complaints, real or imagined, of legislative skullduggery. It would be acting in excess of its power and would itself be guilty of grave abuse of its discretion were it to do so (Joker Arroyo, et al. v Jose De Venecia, et al. G.R. No. 127255 August 14, 1997).
It may be argued that the contempt citation and the arrest order are not, strictly speaking, “legislative acts”, if by that phrase, is understood, the enactment of laws. But the acts are necessary incidents of lawmaking. In the case of McGrain v. Daugherty (273 US 135), the US Supreme Court held that:
We are of opinion that the power of inquiry -- with process to enforce it -- is an essential and appropriate auxiliary to the legislative function.
Explaining further, the Court in McGrain, citing Anderson v Dunn held that:
The question there was whether, under the Constitution, the House of Representatives has power to attach and punish a person other than a member for contempt of its authority -- in fact, an attempt to bribe one of its members. The Court regarded the power as essential to the effective exertion of other powers expressly granted, and therefore as implied. The argument advanced to the contrary was that, as the Constitution expressly grants to each house power to punish or expel its own members and says nothing about punishing others, the implication or inference, if any, is that power to punish one who is not a member is neither given nor intended. The Court answered this by saying: "There is not in the whole of that admirable instrument, a grant of powers which does not draw after it others not expressed but vital to their exercise, not substantive and independent, indeed, but auxiliary and subordinate."
It is true, that the contempt citation and the order of arrest affected the rights of Romulo Neri. But the fact of observance or non-observance of the Rules is not what defines due process. The essence of due process, as held in the case of Hon. Renato C. Corona et al. v. United Harbor Pilots Association et al. (G.R. No. 111953 December 12, 1997), is the opportunity to be heard. In that case, the Court held:
"(a)s long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of."
That Romulo Neri was given the opportunity to be heard is proven by the notice to him through his counsel. He, however, refused to appear, and it is this disobedience which is the basis for the order of arrest – to punish the disobedience, and to compel his continued appearance in the legislative investigation.
The majority also held that the actions of the Senate were infirm for its failure to publish its Rules on the conduct of inquiries in aid of legislation. The Senate has published the Rules in 1995 and 2006. There has been no amendment of the Rules since. The Constitution only requires the publication of the Rules, not its yearly re-publication.
In concurring with the majority on this issue, Justice Carpio states that “Fair notice is important because the witness may be cited in contempt, and even detained, if he refuses or fails to answer…” citing Watkins v US (354 US 178). He seems to imply that the re-publication of the rules provides the only means of fair notice. But Watkins stated otherwise, when it held that:
There are several sources that can outline the "question under inquiry" in such a way that the rules against vagueness are satisfied. The authorizing resolution, the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might sometimes make the topic clear.
Justice Carpio fails to provide the context of his citation. The US Supreme Court found the legislative inquiry vague, because the authorizing resolution stated that:
The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.
The Supreme Court of the United States found this vague and insufficient to provide “fair notice” when it observed:
“It would be difficult to imagine a less explicit authorizing resolution. Who can define the meaning of "un-American"? What is that single, solitary "principle of the form of government as guaranteed by our Constitution"?
Viewed in its factual context, it can be seen that Watkins cannot support Carpio’s finding that there was a denial of due process in this investigation, considering that “fair notice” was provided in the authorizing resolution. That authorizing resolution is certainly not as vague as the inquiry into “Un-American activites”.
Furthermore, as the Court observed, Neri had been under questioning for eleven hours. It is difficult to believe that Neri still could not determine what was the subject of the inquiry, after having been questioned on the same contract for eleven hours.
Justice Carpio anchors his finding that the Rules need to be re-published on the basis of Arnault v Nazareno (G.R. No. L-3820, July 18, 1950), stating that:
The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to “constitute a quorum to do business.” Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators.
Arnault v. Nazareno cited McGrain v. Daugherty, where the Supreme Court of the United States held that:
Mr. Hinds, in his collection of precedents, says: "The Senate, as a continuing body, may continue its committees through the recess following the expiration of a Congress." And, after quoting the above statement from Jefferson's Manuel, he says: "The Senate, however, being a continuing body, gives authority to its committees during the recess after the expiration of a Congress."
On the basis of this doctrine, that the Senate may continue its committees through the recess, Carpio extrapolates the doctrine that the Rules of the Senate are rendered inoperative at the expiration of the terms of twelve senators, and therefore, need to be republished every new Congress.
McGrain, however, was deciding the issue of continuing authority of the committees, not the continued effectivity of the Rules. The same is true for Arnault, which relied on McGrain. Arnault only decided the issue of whether or not the Senate may empower its committees beyond its session. It did not pass upon the effectivity of the Senate Rules.
On the continued effectivity of the Rules, the same Hind’s precedents also states that:
§ 6742. Each House has usually adopted the rules of its predecessor, sometimes with additions or changes, thus building up what has become in fact a permanent system.—According to the practice of the House for the whole of its existence, except a brief period, a system of rules is adopted when each new House organizes for the Congress in which its term falls. While in theory these rules are new in each Congress, yet in fact the essential portions of the system.
(http://www.gpo.gov/congress/house/precedents/hinds/vol5.html -Chapter 141)
Seen in context, therefore, Hind’s precedents support the stand of the senators, that a new Congress may adopt the Rules of the prior Congress. There is no need for a re-publication, because the people have already been apprised by the earlier publication of the adopted Rules.
Hind’s precedents also quotes the case of US v. Ballin, where the US Supreme Court held that:
"The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."
The same US v Ballin was quoted in the Joker Arroyo case, cited above.
The majority, in holding that the lack of re-publication is a failure to inform the public not only exalts form over substance; it prefers the slogan to the fact; and upholds a rite instead of a right.
Even if be assumed that the failure to re-publish the Rules renders them inoperative, the Rules are not the only source of the power to cite in contempt. The power to cite in contempt has been held to be inherent in the power to legislate. On this score, the US Supreme Court, in McGrain held:
We are of opinion that the power of inquiry -- with process to enforce it -- is an essential and appropriate auxiliary to the legislative function.
The process adverted to in that case, was a warrant of attachment (arrest) commanding the Sergeant at Arms of the Senate to take the recusant witness into custody.
Justice Corona, although acknowledging the Senate’s inherent power to cite a witness in contempt, asserts that this does not include the power to arrest a recusant witness. The opinion states that:
Under the 1987 Constitution, however, the power has been expressly subjected to three limitations. Thus, while Congress cannot be deprived of its inherent contempt power (and the corollary power to order the arrest of a contumacious party) in relation to legislative investigations, the power must be wielded subject to constitutional constraints. In this case, the Senate or any of its committees may order the arrest of a contemnor only in accordance with its duly published rules of procedure. In the absence of a provision stating how, why and when arrest may be ordered, no order of arrest may validly be issued.
The opinion quotes from Arnault, which liberally quoted from McGrain. McGrain, however cited In re Chapman, where the inherent power to cite in contempt was sought to be limited by a statute – the Act of 1857. The court in Chapman held that:
"We grant that Congress could not divest itself, or either of its houses, of the essential and inherent power to punish for contempt in cases to which the power of either house properly extended;”
It is clear, therefore, that the Senate’s inherent power may not be limited, by even its own Rules. It bears noting that the limiting provision cited by Justice Corona is a mere Senate Rule. If, as in the case of Chapman, a law (enacted by both Houses) cannot limit the inherent powers of the legislature, then with more reason may a mere Senate Rule not be capable of limiting the said power.
Justice Corona furthers states that
“The absence of a provision penalizing refusal or failure to comply with a subpoena ad testificandum should be interpreted against respondent Committees. Neri cannot be punished for contempt for lack of, again, the requisite published rules of procedure.
This deficiency becomes all the more pronounced when compared to Section 9, Rule 21 of the Rules of Court:
SEC. 9. Contempt. – Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.
The contempt provision of Rule 21 expressly penalizes the unwarranted failure to obey a subpoena (whether ad testificandum or duces tecum) as contempt of court. In contrast, the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee cover only the following acts of a witness before it: disobedience of any committee order including refusal to produce documents pursuant to a subpoena duces tecum, refusal to be sworn or to testify or to answer a proper question and giving of false or evasive testimony.
Justice Corona would seek to convince the reader that the Court itself has limited its power by the issuance, and observance of its own Rules of Court. The power to compel obedience, however, is inherent in the judicial power, and has been exercised by the Court even in the absence of express provisions in the Rules of Court.
In a direct appeal to the Supreme Court from the RTC, where it was defended by the Public Attorney’s Office, this writer appeared pro bono for the defendant. The stenographer took almost a year to transcribe the stenographic notes of the hearings in the RTC. This prompted the Supreme Court, motu propio, to order the NBI to arrest the stenographer, and detain her until she shall have finished transcribing the stenographic notes.
The above instance proves that the inherent power to compel obedience by arrest and detention has been exercised, even by the Supreme Court, in the absence of express provisions in the Rules of Court. That is the very nature of inherent power. There is no need for any law or rule granting the power to exercise said power to compel obedience.
The only limit to the exercise of inherent power is the right of an individual to due process, which, as discussed above, only requires the opportunity to be heard.
Justice Chico-Nazario, true to her Sandiganbayan experience, offers this contribution:
Finally, much has been said about this Court not allowing the executive privilege to be used to conceal a criminal act. While there are numerous suspicions and allegations of crimes committed by public officers in the NBN Project, these remain such until the determination by the appropriate authorities. Respondent Senate Committees are definitely without jurisdiction to determine that a crime was committed by the public officers involved in the NBN Project, for such authority is vested by the Constitution in the Ombudsman. Again, it must be emphasized, that the Senate’s power of inquiry shall be used to obtain information in aid of legislation, and not to gather evidence of a crime, which is evidently a prosecutorial, not a legislative, function.
In the case of McGrain,, the district court held that:
But, whether so or not, the Senate's action is invalid and absolutely void in that, in ordering and conducting the investigation, it is exercising the judicial function, and power to exercise that function, in such a case as we have here, has not been conferred upon it expressly or by fair implication. What it is proposing to do is to determine the guilt of the Attorney General of the shortcomings and wrongdoings set forth in the resolutions. It is 'to hear, adjudge, and condemn.' It so doing, it is exercising the judicial function. . . ."
"What the Senate is engaged in doing is not investigating the Attorney General's office; it is investigating the former Attorney General. What it has done is to put him on trial before it. In so doing, it is exercising the judicial function. This it has no power to do."
The US Supreme Court, however, disagreed, and upheld the investigation because the subject matter was one in which legislation could be had.
Claim of executive privilege.
The majority required the Senate to prove a compelling need to the continued questioning of Romulo Neri, liberally quoting Nixon v Sirica where it required the Senate to prove a compelling need for the information. The majority, again, fails to provide context. In the case of Nixon v Sirica, the US Senate was requesting copies of the tapes of President Nixon’s conversations. The request was denied because the House already had the tapes. It is for that reason that there was no compelling need to order the obedience of the executive. The majority conveniently omits the following:
Moreover, so far as these subpoenaed tapes are concerned, the investigative objectives of the two committees substantially overlap: both are apparently seeking to determine, among other things, the extent, if any, of presidential involvement in the Watergate 'break-in' and alleged 'cover-up.' And, in fact, the Judiciary Committee now has in its possession copies of each of the tapes subpoenaed by the Select Committee. Thus, the Select Committee's immediate oversight need for the subpoenaed tapes is, from a congressional perspective, merely cumulative (Select Committee on Presidential Campaign Activities v Nixon 498 F.2d 725
The Executive Secretary invoked military secrets to justify the claim of executive privilege. The Philippine military, as Tiya Dely will inform anyone, has no secrets. Our planes were designed before the Chief Justice graduated from law school. Our Sikorsky choppers were built when Guriang and Bill Clinton were in Georgetown U; when they were, as she claims, in the state of MU (matriculating undergraduates). Our naval vessels are older than the Navy itself.
This calls to mind the joke attributed to the Russian physicist Andrei Sakharov.
KGB catches a Russian diplomat passing military information to the Americans.
KGB: Why are you passing our military secrets to the Americans?
Diplomat: So what? Our technology is twenty years behind the West.
KGB: Precisely. That's the secret.
If at all, what the Philippines has, are secrets of military personnel - General Garcia's stash of cash , the Houdini acts caused by General Palparan (making people disappear), the vote manufacturing of General Esperon.
From the claim of military secrets, the Executive Secretary makes the additional claim that the contract with ZTE, may reveal diplomatic secrets. To claim that a contract with a company with stocks traded internationally is a diplomatic secret is a leap of logic worthy of Bob Beamon (world record holder in the long jump).
The sheer chutzpah (kapalmuks in Tagalog slang) of the claim that a corrupt deal involves military and/or diplomatic secrets could have been exposed for the lie that it is, if the Supreme Court had only hewn close to precedent. Jurisprudence instructs us that when information is sought and a claim of executive privilege is made, the Court must examine the information in chambers and make a determination. That was the procedure followed in the case of New York Times v US and Washington Post v US (http://cases.justia.com/us-court-of-appeals/F2/446/1327), which involved the Pentagon Papers. This procedure was also followed in the recent case of Wen Ho Lee (http://ftp.fas.org/irp/ops/ci/index.html) – a case touted by the prosecutors as involving “the crown jewels of the nuclear program”. In both cases, the district court examined the information sought, and on the basis of its determination, ruled on the issue of privilege.
In the case of the Pentagon Papers, the district court, as upheld by the US Supreme Court, ruled that there was no military privilege, and allowed the New York Times and the Washington Post to publish the contents of the Pentagon Papers.
In the case of Wen Ho Lee, the district court allowed Wen Ho Lee’s lawyers access to the alleged “crown jewels of the nuclear program”. The allegation of national security secrets later folded up, and the US government was forced to settle with Wen Ho Lee.
In this case, as Justice Carpio opines, the very answers of Neri’s lawyer indicate that the alleged executive privilege is actually evidence of bribery. Is that why it was not examined? Was the majority scared of the truth? What is so scary about finding out that the president is a crook? Haven’t we been there before? Hasn’t the ponente seen this in the Sandiganbayan when she presided over the Erap case?
The contrived legal reasoning and the illogic of the factual findings on which the legal principles are founded, lend credence to the public perception that the majority raped the Constitution. That rape was perpetrated through the textual abuse of the body the Constitution - to yield the finding that the Senate caused the textual harassment of Romulo Neri.
Can this decision restore the public’s confidence in the Supreme Court? This is what they call in basketball a Hail Mary shot.