Time & Circumstances: Senate

(DRAFT)

art. VII of the impeachment charge questions the manner in which a TRO was issued in favor of the former president GMA.

i find the following excerpt on the rule of law elucidating with regard to its due execution:

" My second sub-rule is that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. Most modern commentators would not share to the full Dicey’s hostility to the exercise of official discretions. In the immigration field, for example, judges have routinely and gratefully invited the Secretary of State to exercise his discretion to grant leave to enter or remain to applicants who do not meet the tests for entry laid down in the immigration rules but whose personal history or circumstances demand sympathetic consideration. But the essential truth of Dicey’s insight stands. The broader and more looselytextured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law.25 This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification. These are requirements which our law, in my opinion, almost always satisfies, because discretion imports a choice between two possible decisions and orders, and usually the scope for choice is very restricted. The grant of a civil injunction, it is always said, is discretionary. But if a clear violation of legal right is shown, and there is a clear risk of repetition injurious to the victim for which damages will not compensate, and there is no undertaking by the lawbreaker to desist, the trial judge ordinarily has no choice. His discretion can only, usually, be exercised one way. A second, very familiar, example is found in section 78(1) of the Police and Criminal Evidence Act 1984, which provides:

“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

The use of the word “may” is relied on as conferring a discretion. But what the subsection does, I suggest, is to require an exercise of judgment, which may be difficult to make but which will determine the outcome: if the statutory condition is judged to be satisfied, the judge must refuse to allow the evidence to be given; if it is not, the subsection does not authorise the judge to exclude the evidence. For my third illustrative example I return to the immigration field. If an official were to grant leave to enter or remain to a person who did not meet the tests laid down in the immigration rules, but whose case presented no exceptional features whatever suggesting the need for special treatment, such decision would be incapable of rational justification and could not be defended as an exercise of discretion. There is in truth no such thing as an unfettered discretion, judicial or official, and that is what the rule of law requires."

granting that there was sufficient compliance with the requirements...primordial executive concerns through the Department of Justice should not have been easily dismissed. After all, situational realities, real dangers, possible adverse results are things which are well within the executive branch's' domain of certainty-determination. not the courts' which by nature is insulated from the ever changing realities of day to day-realities which are deemed- from moment to moment- uncertain.

reference:
lord bingham on the rule of law

This is a case digest from a young collegiala by the pen-name SwityCake@phBAR. I'm posting it here in full and will go through it and add comments in the process.

From: switycake
To: raj
Posted: Fri Apr 04, 2008 3:20 pm
Subject: neri vs senate cmtes Quote message
Case Digest for Neri vs. Senate

FACTS:

A petition for certiorari1 was filed by petitioner Neri assailing the “show cause letter” dated November 22, 2007 and a subsequent order to cite petitioner in contempt more than a month later, January 30, 2008. Both documents were filed by the Senate Committees headed by the Senate Committee on Accountability of Public Officers and Investigations otherwise known as the Blue Ribbon Committee.

The antecedent events occurred previous to the issuance of the order and facts that have been culled up during the investigation are as follows:

The Department of Transportation and Communication (DOTC) entered into a contract with Zhing Xing Telecommunications Equipment (ZTE) on April 21, 2007 for the purpose of supplying equipment and services of a National Broadband Network (NBN) Project.

The full consideration amount of US$329,481,290 (Php 16 Billion) is to be financed by the People’s Republic of China.

In conjunction with the investigation, several resolutions to fill in legislative deficiencies were filed in Procurement law and executive-diplomatic treatises and agreements.

Simultaneously, this investigation resulted into the proposal of three pending bills in the Senate. Senate Bill No, 1793 was filed to subject treaties or executive agreements involving funding of projects to the scope of RA 9184 or the Government Procurement Reform Act.

Another bill was filed to impose safeguards in contracting loans classified as Official Development Assistance (ODA), and finally, a bill requiring concurrence to international and executive agreements.

The Senate Committees initiated the investigation by inviting officials and persons involved in the specified project. Secretary Romulo L. Neri was one of those invited to the hearings. On three occasions the Petitioner was invited, he only appeared once.

On another occasion the Respondent Committees invited Jose De Venecia, III who revealed that there were high officials pushing for the project. The project was originally to be realized manifested on a Build-Operate-Transfer (BOT) basis but soon, the witness found out it was converted into a government-to-government project. The aforesaid project involved the Republic of the Philippines and People’s Republic of China and is to be financed by a grant of loan by the latter.

Petitioner Neri who testified on September 26, 2007 disclosed that Commission on Elections (COMELEC) Commissioner Benjamin Abalos offered him a P200 million bribe to prioritize the project. That particular hearing lasted eleven hours. Neri, according to his testimony, immediately informed President Arroyo of the attempt him but he was instructed by her not to accept it.

However, when Neri was probed to elaborate on the matters pertaining to the NBN deal with the President, he refused to answer the question on the ground of executive privilege.

He refused to answer the following questions:

Whether or not the President followed up the NBN Project.
Whether or not she directed him to prioritize it.
Whether or not she directed him to approve.
Adamant as they could be, the respondent summoned the petitioner once again on November 20, 2007. However, Executive Secretary Ermita wrote on November 15, 2007 to dispense with Neri’s testimony as this was covered by executive privilege.

On the appointed date of the inquiry, petitioner did not appear in the proceedings. As a consequence, the Senate issued a show cause letter demanding that Neri to explain why he failed to appear before them and why he should not be cited in contempt.

The Petitioner replied that it was not his intention to snub the hearings and that he thought he was going to be asked the three remaining questions covered by executive privilege.

Moreover, with the assistance of counsel, Atty. Antonio R. Bautista, the Petitioner claimed that his non-appearance was upon order of the President and his conversation with her involved delicate national security and matters contingent to the impact of high ranking officials embroiled in bribery which probably results to loss of investor confidence in the country.

The Petitioner also requested that he be furnished with other questions in advance so he may adequately prepare himself.

When Senate’s inquiry was in recess, Petitioner filed a petition for Certiorari berating the show cause letter.

Meanwhile, Respondents found Neri’s explanation unsatisfactory and moved to cite him in contempt and to order the sergeant-at-arms to arrest and detain him at the Senate until such time he speaks up on the matter. Neri moved for the reconsideration of the above order. He alleged that he did not display a demeanor worthy of contempt and arrest. He reiterated that he was willing to accommodate any endeavor to shed light into the issue, provided he be furnished with questions in advance, a request which respondents did not heed.

On February 5, 2008 the Supreme Court issued a Status Quo Ante Order 2(a) enjoining respondents from implementing their contempt order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the contempt order and (c) requiring respondents to file their comment3.

Petitioner asserts that both the show cause letter and contempt order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Again, petitioner underscores that any conversation or correspondence between cabinet members and the President are confidential since discussions involved the impact of exploring options in making policy decisions.

While Petitioner claims that the parameters have been laid down in Senate vs. Ermita, respondents insist the contrary. They argue that Neri’s testimony is substantial in the investigation in aid of legislation, that there is no valid justification for petitioner to claim executive privilege, that there was no abuse in discretion when respondent ordered the arrest of petitioner and that petitioner has not come to court with clean hands.

It was further ventilated by the respondent that the claim of executive privilege in this case will prejudice the right to public information clause, that the President ensure that he faithfully execute laws, that public office is a public trust, full public disclosure of all transaction of public interest, due process clause and the principle of separation of powers.

ISSUES:

Are the communications elicited by the subject three questions covered by executive privilege?
Did respondent Committees commit grave abuse of discretion in issuing the contempt Order?
DISCUSSION:

The court used Senate vs. Ermita as a sort of a yardstick in deciding this case. Senate makes a distinction between legislative and oversight powers of Congress quoting Sections 214 and 225 of Article VI of the Constitution.

The Senate describes that Section 21 relates that the power to inquire in aid of legislation is to gather information and improve lapses in legislation, while Section 22 pertains to the power of Congress to call for a question hour as it exercises its oversight power. The purported power is to ascertain that the executive branch does not arbitrarily exercise abuse of power.

In circumspect, the above distinctions as the court ruled gives birth to the interpretation of these two provisions. As respondents invoked Section 22, Article VI Congress cannot compel the appearance of executive officials. The court quoted Senate vs. Ermita on this matter.

The following are further elucidated by the court:

That the three questions are covered by executive privilege.
The power to investigate in the light of question hour may be broad but possesses limitations. To be valid it must be done in accordance to published rules of procedure of either houses and that rights of persons appearing be respected.
That in spite of the revocation of E.O 464, the executive privilege remains to due to its constitutional juncture.
The court makes distinction between the case at bar and the Nixon case. The latter involves a criminal prosecution and the former a congressional inquiry. The judicial department has to the power to compel persons to unveil confidential information in the administration of justice while the legislative has not even if it is a search for truth. An investigation in aid of legislation is not a judicial process to prosecute officials. Therefore, the privilege was properly invoked.
Petitioner did not act worthy of any contempt as he even subjected himself to an eleven-hour questioning.
The issue on the right to public information is subject to limitation as provided by law6.
The Senate failed to furnish petitioner his request of providing him questions in advance and include a publication its revised rules thus invalidating the contempt order.
The court further ruled that the right of the citizen of information is not equated with Senate’s power to summon officials or persons to an inquiry, vice versa.
Claim of executive privilege is properly invoked because the formal requisites mandate that it is the head of the department that initiates it and that it should be done in writing. It should also involve highly confidential information such as military secrets and diplomatic treatises to qualify for the privilege.
The Senate committed a grave abuse of discretion because besides a valid claim of executive privilege, they curtly disregarded petitioner’s reasons for abstaining from the inquiry. The responded still went ahead with the contempt order thus denying the petitioner due process of law.
With regard to the respondent’s allegation that the court abandoned its sacred duty to maintain the doctrine of separation of powers and check and balances in government, it simply proposed a negotiation as an alternate venue for settling controversies and avoid the cumbersome process of judicial review. It simply tried to avert a constitutional crisis looming in the horizon.
Respondent committee should have exercised the same restraint, after all, the petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. This is concomitant with the doctrine of separation of powers and the mandate to observe respect to a co-equal branch of government.
RULING:

WHEREFORE, the petition is hereby GRANTED. The subject Ordered January 30, 2008, citing Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified.

1 An extraordinary writ issued by a superior court (as the Supreme Court) to call up the records of a particular case from an inferior judicial body. The Supreme Court may also use certiorari to review a decision by the highest court when there is a question as to validity of any treaty or statute on constitutional grounds.

2 An order directing parties to rescind or annul any contract or act and restore parties as if there was no act at all.

3 An expression of an opinion about a remark to a judge or prosecutor about evidence.

4 The Senate or House of Representatives or any of its respective committee may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

5 The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

6 Section 17, Article III – The right of information on matter of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

_________________
Fiat justitia, ruat coelum
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COMMENTS on the Digest:
1. As a rule of thumb, case digests must be limited to the space of a single piece of yellow pad paper.
2. There is no need for footnotes and the use of elaborate sentences. They are meant to be used by those who are in the legal profession for the purpose of a quickglance.
3. It must be compressed. For example, on the paragraph in the Decision portion that goes.."WHEREFORE, the petition is hereby GRANTED. The subject Ordered....", it would be sufficient to write, "Petition was approved"or"Petition GRANTED." Stating therein the 'rationale' and the 'basis' in law or statute, administrative act, ordinance and regulation. Also the basis in 'equity.'
4. Define the body distinctively. Facts, Issues, then Decision. They should be numbered if there are several contents in each category.
5. Use your own words. Try not to be part of the 'copy-paste battalion.'
Not bad for a start. Amazing in fact. Like they say... "the next is always the best", SATISFACTORY!

Further COMMENTS:
It is unmistakable that the SC has committed a fallacy of argument by attacking the legitimacy of the conduct of the Senate Committee. Under Aristotelian lines it provides;

Attack Fallacies: The best form of defense is sometimes thought to be attack. When an argument is failing, many people will go on the offensive, seeking to destroy the other person's confidence rather than their argument.

Poisoning the Well: Discrediting the person before they speak.

For lack of a better argument. It resorts to saying that the Senate Rules needs to be published. The Senate has spoken by saying that being a continuing body there was no need to re-publish its already long published rules. Only the preceding amendments to its rules needs to be published.

It appears that we have come full circle. What we have now is a Supreme Court that is virtually under trial.

A motion for reconsideration in this instance therefore is to give the court a chance to correct itself.