MANILA, Philippines -- Saying the issues concerned could endanger the country’s diplomatic relations, a divided Supreme Court Tuesday blocked the Senate from arresting and forcing Romulo Neri to answer questions on the President’s involvement in the government’s controversial National Broadband Network (NBN) deal with China.

Voting 9-6, the high court ruled that the Senate committed “grave abuse of discretion” in issuing a contempt citation against Neri, former director general of the National Economic and Development Authority, and nullified the arrest order the lawmakers had issued for him.

The high court said only a minority of the members of the Senate blue ribbon committee were present during the deliberations when the committee decided to cite Neri in contempt. This was in violation of the Senate rules, it added, and pointed out that members who did not participate in the deliberation were made to sign the contempt order.

As for the fourth reason, it agreed with the Office of the Solicitor General that the Senate had not published its rules of procedures and, thus, the hearings it had been conducting were procedurally infirm.

The last reason it cited was that the Senate did not first rule on the invocation of executive privilege and then inform Neri about it. What the Senate did was to dismiss his explanation as “unsatisfactory” and ordered him cited for contempt and arrested, it said.

The court said that the Senate had failed to show a “compelling need” for the disclosure of the information it was seeking.

The senators, the tribunal said, also failed to show that the information they were after in their inquiry into the NBN deal with China’s ZTE Corp. to link all government offices via the Internet could not be obtained elsewhere.

“There is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigation authority,” said the decision penned by Justice Teresita de Castro.

Concurring with the decision were Justices Leonardo Quisumbing, Renato Corona, Dante Tinga, Minita Chico Nazario, Presbitero Velasco, Eduardo Antonio Nachura, Ruben Reyes and Arturo Brion, the former labor secretary who was named the 15th member of the tribunal as it deliberated the landmark case.

Chief Justice Reynato Puno dissented, along with Justices Antonio Carpio, Consuelo Ynares Santiago, Alicia Austria Martinez, Conchita Carpio Morales and Adolf Azcuna.

The court said that the information the Senate was seeking from Neri, now chair of the Commission on Higher Education, related to a “quintessential and non-delegatable power.”

Executive agreements

“This authority of the President to enter into executive agreements without the concurrence of the legislature has traditionally been recognized in Philippine jurisprudence,” the court said.

Neri could also invoke executive privilege because as a Cabinet member he was considered a close adviser of the President, the court said, adding that the Senate abused its powers when it cited Neri in contempt and ordered his arrest.

“A fact worth highlighting is that petitioner is not an unwilling witness,” the court said, pointing out that Neri had appeared before the Senate for 11 hours last September.

3 questions

“He refused to answer the three questions because he was ordered by the President to claim executive privilege,” the court pointed out.

During his Senate appearance, Neri refused to say what Ms Arroyo had told him after he informed her that Commission on Elections Chair Benjamin Abalos had offered him a P200-million bribe to endorse the ZTE deal.

In addition, the senators wanted to find out if Ms Arroyo had followed up on the project and if she had directed Neri to make it a priority.

Ouster moves

Subsequent testimony during the Senate hearing implicated Ms Arroyo and her husband in alleged massive kickbacks in the NBN-ZTE deal, which the President scrapped amid an uproar and fresh demands for her resignation.

Senate President Manuel Villar has said that if allegations implicating Ms Arroyo in the deal could be proven, an impeachment case could again be brought against her.

Ms Arroyo’s allies had scuttled three previous impeachment attempts in connection with the “Hello Garci” wiretaps which the opposition said were evidence she stole the 2004 presidential election, a charge she has denied.

Tuesday’s ruling was the President’s first major victory in the Supreme Court whose 15 members included 12 she had appointed. The high court had earlier ruled against her in her effort to gag Cabinet members, on her declaration of a state of national emergency two years ago and on tougher measures against street protesters.

The court also differentiated Neri’s petition from the famous Watergate case in the United States involving former President Richard Nixon, in which the US Supreme Court ruled that executive privilege could not be invoked to cover up criminal activity.

The Philippine tribunal said that in the US case, there was a pending criminal proceeding and Nixon never invoked the need to protect military, diplomatic or sensitive national security secrets.

“In the present case, Executive Secretary Eduardo Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets,” it said.

No need to state reasons

The court said executive privilege had been properly invoked. “With regard to the existence of ‘precise and certain reason,’ we find the grounds relied upon” by Ermita specific enough so as not to leave the committees “in the dark on how the requested information could be classified as privilege,’” it said.

The court pointed out that a previous ruling on Executive Order No. 464, which prevented officials from testifying before Congress without the President’s permission, only required that the information sought involved military or diplomatic secrets, closed-door Cabinet meetings and the like.

The tribunal also said the executive could not be compelled to state the reason for invoking the privilege lest it lead to the discovery of the secret.

“At any rate, as held further in Senate v. Ermita, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and coequal department,” it said.

Because Neri had appeared before the Senate, the court threw out the Senate’s argument that allowing Neri to claim executive privilege was a violation of the people’s constitutional right to information on matters of public concern.

Neri appearance

“We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available during the Sept. 26 hearing, where he was questioned for 11 hours. Not only that, he expressly manifested his willingness to answer more questions from the senators, with the exception only of those covered by his claim of executive privilege,” the tribunal said.

Such right to information is not absolute as well and is limited by laws and the rules of court, it added.

The court said the people’s right to information was not equal to Congress’ right to obtain information in aid of legislation. It said that when lawmakers exercise their power, they “cannot claim that every legislative inquiry is an exercise of the people’s right to information,” it said.

The court listed five reasons the Senate’s contempt order against Neri constituted an abuse of power, among them, that the claim of executive privilege, the Senate had failed to inform Malacañang of the legislation that was to result from the hearing and only a few senators were present when the decision to cite him was made.

It also said the Senate should have exercised restraint in citing Neri in contempt because Neri was not an ordinary witness and held a high position in a coequal branch of government.

Compromise solution

The court defended its offer of a compromise solution which sought to allow Neri to resume his testimony but refrain from answering the controversial questions while the tribunal deliberated on them.

“The court did so only to test a tool that other jurisdictions find to be effective in settling similar cases, to avoid a piecemeal consideration of the questions for review, and to avert a constitutional crisis between the executive and legislative branches of government,” it said.

The Senate rejected the compromise solution.

In his 120-page dissenting opinion, Puno said neither Neri nor Ermita explained how diplomatic secrets would be exposed at the expense of national interest if Neri answered the three questions.

Neri, in particular, “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 said.

The chief justice said invoking privileged communication cannot outweigh the need of the Senate for the information, particularly the answers to the three questions.

"Indisputably, these questions are pertinent to the subject matter of their investigation and there is no effective substitute for the information coming from a reply to these questions. In the absence of the information they seek, the Senate Committees' function of intelligently enacting laws…cannot but be seriously impaired. With all these considerations factored into the equation, we have to strike the balance in favor of the respondent Senate Committees and compel petitioner Neri to answer the three disputed questions," Puno said.

Malacañang welcomed the court’s decision.

“We respect the decision of the Supreme Court,” Press Secretary Ignacio Bunye said in a statement.

“We hope that, looking forward, the Senate and the executive can work out mutually acceptable rules on appearances in Senate inquiries in aid of legislation, which will guarantee the rights of resource persons and parties affected by congressional hearings, as stipulated by the Constitution,” he said.

Deputy presidential spokesman Anthony Golez said the Supreme Court reinforced the independence and co-equality of the three branches of government even as he dispelled speculation Arroyo had influenced the tribunal’s ruling.

He called such an idea “dangerous” and showed disrespect for the high court, “which is against the law.” With reports from Tetch Torres and Maila Ager.INQUIRER.net