Puno: 3 questions pertinent to NBN probe

DISSENTING OPINION

By Leila Salaverria
Philippine Daily Inquirer
First Posted 01:53:00 03/26/2008

MANILA, Philippines—Chief Justice Reynato Puno Tuesday said that Senate questions on President Gloria Macapagal-Arroyo's actions in connection with alleged irregularities in the scuttled $329-million National Broadband Network (NBN) deal were not covered by executive privilege.

In his 120-page dissenting opinion, Puno said the Senate had validly cited Romulo Neri, former director general of the National Economic and Development Authority, in contempt for refusing to answer three questions on the project with China's ZTE Corp.

The questions were whether Ms Arroyo had followed up on the NBN project after she was told of a bribe offer, whether Neri was directed to give it priority and whether she had ordered him to approve the deal after she was told about the bribery.

Puno also said it was "self-evident" that the three questions were pertinent to the Senate inquiry.

This was because the questions were directly related to pending bills and to the inquiry, which dealt with possible anomalies in the build-operate-transfer (BOT) law and other laws and had national security implications.

Puno also said there was no effective substitute for the information that the Senate was seeking.

"The three questions demand information on how the President herself weighed options and the factors she considered in concluding the NBN-ZTE contract," he said.

The first question referred to the importance of the project to the Chief Executive herself, Puno noted.

Seriously impaired

He added that the second question was intended to determine the factors Ms Arroyo considered in opting for ZTE, and pointed out that she initially wanted the BOT arrangement.

He also said there was no other substitute as well for the third question.

The Constitution explicitly provides that officials from coequal branches of government who appear in congressional inquiries carry with them the protective cover of individual rights, as well as the shield of executive privilege, Puno said.

But he said that while the branches of government were independent and had their own powers, they were "fashioned to work interdependently."

"When there is abuse of power by any of the branches, there is no victor, for a distortion of power works to the detriment of the whole government, which is constitutionally designed to function as an organic whole," he said.

Puno said the Senate would be hampered in fulfilling its responsibilities if it failed to get the information it was seeking from Neri, which was why he should be compelled to answer the three questions.

"In the absence of the information they seek, the Senate committees' function of intelligently enacting laws to remedy what has been called the 'dysfunctional procurement system of the government' and to possibly include 'executive agreements for Senate concurrence' to prevent them from being used to circumvent the requirement of public bidding in the existing Government Procurement Reform Act cannot but be seriously impaired," he said.

Beyond court's purview

Puno also said it was not within the court's jurisdiction to tackle the Senate's motive for conducting the investigation and asking the questions. Neri had said the motive was to establish the President's culpability in the alleged anomalies.

'Chilling effect'

"The short answer to petitioner's argument is that the motive of respondent Senate committees in conducting their investigation and propounding their questions is beyond the purview of the Court's power of judicial review," Puno said.

"So long as the questions are pertinent and there is no effective substitute for the information sought, the respondent Senate committees should be deemed to have hurdled the evidentiary standards to prove the specific need for the information sought," he said.

Quoting extensively from the March 4 oral arguments on Neri's petition, Puno said the invocation of executive privilege was only based on a "general claim of a chilling effect on the President's performance of her functions if the three questions are answered."

He said the claim was not supported by specific proof. He also pointed out that invocation of the President's privilege was weakened by the fact that the issue at stake concerns a foreign loan.

"The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank)," Puno said.

Puno said that whether a wrongdoing, shielded by executive privilege, had been committed should be determined in a proper forum and backed up by evidence.

"The presidential communications privilege can be pierced by a showing of a specific need of the party seeking the presidential information in order to perform its functions mandated by the Constitution," he said.

"It is after the privilege has been pierced by this demonstrated need that one can discover if the privilege was used to shield a wrongdoing, or if there was no wrongdoing after all. We should not put the cart before the horse," he said.

Puno also said it was important for courts to exert effort at negotiation and accommodation because they were necessary to avoid constitutional crises. This was an apparent defense of the tribunal's earlier proposal that Neri appear at the Senate but would not be asked the three questions still pending before the court. The Senate rejected the proposal.

Collision to be avoided

"The lesson is that collisions in the exercise of constitutional powers should be avoided in view of their destabilizing effect," he said.

Puno, in voting that the arrest order for Neri was valid, also said the Senate was a continuing body and did not republish its rules especially when these had not been changed.

"We are dealing with internal rules of a coequal branch of government and unless they clearly violate the Constitution, prudence dictates we should be wary of striking them down," he said.