Executive privilege shields President Duterte from inquiries

So, can ex-president Aquino invoke executive privilege when he is brought to court for the Dengvaxia mess?

Joel Ruiz Butuyan wrote in his Inquirer column of March 5: “Malacañang has not explained what the Philippines stands to gain in the President’s pivot to China. Is he using the China card to wangle better terms from Western countries? The substantial decline in foreign direct investments to our country seems to negate this expectation. Or is the President turning to China as a means to neutralize Western criticism of his human rights record? The Duterte administration owes the Filipino people an explanation.”

No congressional committee, no court of law, no one can compel President Rodrigo Duterte to explain his bias towards China. The right of executive privilege shields the President from any investigation or inquiry into his policy, program, action, or decision — thanks to a Supreme Court subservient to the power that be.

Executive privilege is the right of the President and other members of the executive branch of government to keep certain communications confidential because disclosure would be contrary to the interests of the President. Those who are bent on finding out if the advice or opinion given by Executive Secretary Salvador Medialdea to Janet Lim-Napoles’ lawyer Stephen David, who has been seen in Malacañang, was at the prompting of the President, and if the President really upbraided Secretary Aguirre for the exoneration of drug lords or was chastised for letting the exoneration become public knowledge would only be frustrated as the two officials can invoke the executive privilege.

Originally, the right of executive privilege was invoked when the information sought would jeopardize national security, diplomatic relations, or economic stability.

But on March 25, 2008, the Supreme Court ruled that conversation and correspondence between the President and public officials that are integral to the President’s executive and policy decision-making process fall under executive privilege. The ruling was in response to then National Economic and Development Authority Director General Romulo Neri’s invoking executive privilege when asked what then president Gloria Arroyo and he discussed about the National Broadband Network (NBN) project.

In April 2007 Department of Transportation and Communications Secretary Leandro Mendoza and Zhong Xing Telecommunications Equipment (ZTE) Vice-President Yu Yong signed a $ 329- million contract ( ZTE originally offered $130 million for the project) that was supposed to provide landline, cellular, and Internet services in all government offices nationwide. The contract signing, which was done in Boao, China, was witnessed by President Arroyo.

Presidential Spokesperson Ignacio Bunye described Arroyo’s quick trip to Boao thus: “That’s the way things looked like for president Gloria Macapagal-Arroyo in her brief stay in this picturesque coastal town Saturday as she ‘came and went like a thief in the night.’” Witnessing the signing of the contract was so important to her that she left for Boao when her husband Mike was fighting for his life following a high-risk heart surgery.

Shortly after the signing of the contract, coffee shops began to buzz with ugly rumors of alleged bribery, overpricing of $ 130 million, payment of advances or kickback commissions involving high- ranking government officials, and other anomalies which included the loss of the contract, collusion among executive officials, and political pressures against the participants in the NBN Project. The Senate committees on Accountability of Public Officers and Investigation (Blue Ribbon), Trade and Commerce, and National Defense and Security called for an investigation of the project.

In September, Jose “Joey” de Venecia, who was president of Amsterdam Holdings, the company that lost its bid for the NBN project, testified before Senate committees that he was in China with Commission on Elections Chair Benjamin Abalos, who appeared to be brokering the NBN- ZTE deal, and that he heard Abalos “demand money” from ZTE officials. Later that month, Neri was invited by the Senate Blue Ribbon Committee to attend its hearing on the alleged anomalies in the deal.

He testified at the Senate that Abalos and he were discussing the NBN-ZTE project while playing golf when Abalos told him: “Sec, May 200 ka

dito.” Neri took it as a P200million bribe offer in exchange for Neri’s endorsement of the project. Neri further testified that he had informed Arroyo of Abalos’s bribe offer and that Arroyo had told him to reject it.

When asked by senators 1.) whether or not the Ppresident followed up the NBN Project, 2.) whether or not she directed him to prioritize it, and 3.) whether or not she directed him to approve it, Neri, invoking executive privilege, refused to answer. He snubbed subsequent hearings on the matter. When the Senate Committee cited him for contempt, he petitioned the Supreme Court to nullify the contempt order of the Senate.

On March 25, 2008, the Supreme Court, in a 9-6 vote, upheld Neri’s invocation of executive privilege with regard to the three questions. Nine justices found the information sought to be elicited by the three questions as, first, falling under conversation and correspondence between the president and public officials necessary in the president’s executive and policy decision- making process and, second, that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.

The decision was penned by Justice Teresita Leonardode Castro and concurred in by Justices Leonardo Quisumbing, Renato Corona, Dante Tinga, Eduardo Nachura, Ruben Reyes, Nenita Chico- Nazario, Presbitero Velasco, and Arturo Brion. Except for Quisumbing, who was appointed by president Fidel V. Ramos, all the concurring justices were Arroyo appointees to the Court. Brion was not yet an SC justice when the Court heard oral arguments on Neri’s petition.

Four other Arroyo appointees to the Court — Justices Antonio Carpio, Conchita Carpio-Morales, Adolf Azcuna, and Alicia Austria-Martinez — dissented with the majority as did Justice Consuelo YnaresSantiago, an appointee of president Joseph Estrada, and Chief Justice Reynato Puno, who was named to the Court by president Fidel Ramos but named Chief Justice by Arroyo.

In Justice Ynares- Santiago’s opinion, the executive privilege doctrine applies only to information if divulged would be against the public interest. She wrote that Neri failed to show how disclosure of his conversations with Arroyo would affect the country’s military, diplomatic, and economic affairs as he asserted before senators. The deal was with a company, not with the Chinese government.

Justice Carpio- Morales’ position was that executive privilege cannot be invoked when “Congress has gathered evidence that a government transaction is attended by corruption.” Justice Carpio also argued that executive privilege cannot be used to hide a crime. Chief Justice Puno held that while branches of government are independent of each other, they work interdependently as the whole government is constitutionally designed to function as an organic whole.

There is a clause in the decision that says that the president and officials of the executive branch of government can invoke executive privilege during their term of office and afterwards.

So, former president Benigno Aquino and former Health secretary Janet Garin can invoke executive privilege when the Volunteers Against Crime and Corruption bring them to court for the Dengvaxia mess as, first, whatever the two officials discussed was part of the president’s executive and policy decisionmaking process and second, as it might impair our diplomatic as well as our economic relations with France, home of Sanofi, the Dengvaxia supplier.

Several recent events in the Philippines energy sector which when implemented, might mean an extended and long-term penitence for electricity consumers nationwide.

One is the planned expanded “environmental rights” to be put in the draft Constitution by Retired Chief Justice and Consultative Committee (ConCom) Chairman Reynato Puno. Two, the Energy Regulatory Commission ( ERC) meeting with anti- coal groups Sanlakas and Philippine Movement for Climate Justice ( PMCJ) with the ERC saying that it will “explore the possibility of incorporating environmental policies into its relevant upcoming policies...”

The ConCom chairman’s plan will open up a floodgate of endless environmental militance. It will be harder for companies to put up new airports and expressways, new malls and commercial districts, new factories and industrial zones, new universities and residential condos, new coal or gas plants because militants and environmental lobbyists can easily assert that the area is “reserved” for nature. But they can easily lobby to put up expansive “green” solar plants, wind farms, etc.

Chairman Puno said the expanded environmental rights will cover “Right to clean air and clean water, right to a healthy environment and ecology…”

If that is the case, government should prohibit candles and gensets in cases of brownouts. Gensets are noisy and run on diesel and hence, very polluting. Candles often cause fires. People should rely only on intermittent wind-solar as much as possible. If the wind does not blow and if the sun does not shine, people will be then left to endure brownouts.

Chairman Puno also said that there will be “stronger writ of kalikasan in the bill of rights so that it may not be subject to withdrawal or revision by the Congress or the Supreme Court.”

This is related to the second event as there are many anticoal groups which also hate any brownouts that coal plants precisely want to prevent.

While I was the incumbent Chair of the Governance Commission for GOCCs (GCG), I had a short conversation with Securities and Exchange Commission (SEC) Chair Teresa J. Herbosa who encouraged me to institute within the GOCC Sector the system of independent directors, which she found to be foremost feature of corporate governance reforms in the private sector.

In the “publicly held corporations” ( PHCs), independent directors are elected in order to represent the public interests, as distinguished from the regular directors who represent primarily the stockholders’ interest. I had thought deeply on the issue, and eventually came out with the conclusion that in the public corporate sector, the institution of the system of independent directors would by duplicative, if not a surplusage, for the following reasons:

Firstly, unlike private corporations which are set-up to represent private interests, essentially profitmaximization for the benefit of the stockholders, all GOCCs, even the ones created as stock corporations under the Corporation Code, primarily have a “public interests” purpose for their establishment, or are expected to achieve the public ends which the government seeks to achieve. The owner of all GOCCs is essentially the government, which does not seek maximization of profits as its goal in setting-up a GOCC (it can create more income through its taxing powers).

Consequently, all the members of the governing boards of GOCCs take on their role to pursue the public purpose for which the entities were formed which is to pursue the full benefits to the members of the public for whose benefit the entities are established — which is fully in accordance with the Stakeholder Theory.

“Matter is energy ... Energy is light ... We are all light beings.” — Albert Einstein