PALACE'S INVOCATION OF EXECUTIVE PRIVILEGE
INCONSISTENT WITH HIGH COURT RULING

Senate Minority Leader Aquilino Q. Pimentel, Jr. (PDP-Laban) today said Malacañang will be defying a judicial ruling on transparency in government transactions if it will insist on preventing officials of the executive branch from attending the Senate hearings and prohibiting them from submitting documents on the National Broadband Network (NBN) project.

Pimentel said the stand of President Gloria Macapagal-Arroyo not to allow her Cabinet members and other officials from testifying in the legislative inquiry and from presenting documents related to the NBN project by invoking executive privilege does not conform to the Supreme Court ruling that there is a necessity to protect national security and the highest interests of the nation.

Commission on Higher Education (CHED) chairman Romulo Neri, former director general of the National Economic and Development Authority (NEDA), has expressed unwillingness to testify further on the President's role in the approval of the $329 million NBN contract to China's ZTE Corporation on the ground that this is covered by executive privilege.

The same reason was given by acting Socio-Economic Planning Secretary Augusto Santos, NEDA director general, for turning down a request of the Senate Blue Ribbon Committee to furnish copies of the minutes of the meetings of NEDA-Investments Coordinating Committee and other documents related to the NBN-ZTE project.

Pimentel said the Supreme Court, in its 2006 decision in the Senate vs. Ermita case, voided the provision of Executive Order 464 that imposes a blanket prohibition on Cabinet members and other executive officials from testifying in congressional without presidential clearance.

He said that in the high court ruling, Justice Conchita Carpio-Morales, held that the invocation by the executive branch of executive privilege to withhold certain information is invalid if it is not asserted and merely implied.

The decision said the executive branch must provide "precise and certain reasons" for invoking executive privilege.

"It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress," Justice Morales ruled.

Pimentel said that United State President Richard Nixon was rebuffed by the Supreme Court when he refused to submit the tapes of his recorded conversations with his White House aides which were subpoenaed by district judge John Sirica and later Leo Jaworski in connection with the investigation of the Watergates scandal.

The US SC decision declared that "neither the doctrine of separation of powers nor the need for confidentiality of high-level communication, without more, can sustain absolute, unqualified presidential privilege of immunity from judicial processes under all circumstances."

The court rejected Nixon's claim that there was need to protect the confidentiality of presidential conversations in the absence of a "claim of need to protect military, diplomatic or sensitive national security secrets."