CARMEN PEDROSA: WE DON'T HAVE THE LUXURY OF TIME
MANILA, APRIL 12, 2008 (STAR) FROM A DISTANCE By Carmen N. Pedrosa - As expected the Supreme Court decision on Neri vs. Senate Committees raised a howl among the senators and their supporters. As critics rightly pointed out, it favored the executive and has tilted the balance of power between the presidency and legislature, weakening the latter’s oversight powers.
But that is to be expected. Had the decision gone the other way around, then it would have favored the Senate and it would also have tilted the balance of power in its favor. The consequence would be an executive hamstrung by a powerful Senate bent on making the government fail in their quest of electoral victory. It may sound trite but it does come down to something akin to the toss of a coin because both sides have advanced justifiable positions.
Therefore the more important consideration is not which body of government was favored by the Neri decision. The broader and overarching principle is how it affects governance at this point in time. What is the need of the moment? With competing principles, we still have to consider question of context. How do we govern this ungovernable country with the kind of challenges it faces today?
Moreover, even such a laudable principle of check and balance in democratic governance is never static. Since we borrow most of our concepts from the American Constitution, it would be instructive to look at how it coped with its own troubled history of check and balance in governance. It may sound obtuse and philosophical but concepts in governance principles such as the check and balance will have to take a back seat when it comes to a more primordial need of getting things done especially in these perilous times.
Check and balance is a good concept but it is not absolute, Indeed, it ought to be dynamic and best serves public interest when it is weighed against a context. When America’s founding fathers drew up the Constitution at the time, check and balance was designed as a protection against tyranny. This is the thinking we have followed in drawing up our own Constitution. But I daresay that even the American founding fathers did not foresee the challenges of governance in modern times.
Times change. The need of the hour requires flexibility that is underpinned by accepting the dynamism of ideas, and that includes even as desirable as the principle of check and balance. It is true that what was intended to protect against tyranny at the time of drawing up a Constitution can become a liability. In these times, the Neri decision can also be said to be more desirable for governance because in effect it breaks down the paralyzing gridlock of a ‘balance’ of power.
The ruling may have reinforced executive power at this time, but it has a limited specificity that can be changed anytime, should other needs prevail at some future time.
Critics may criticize the majority vote but it is good to be reminded that it was the result of a democratic decision making through a vote. Moreover the corollary of such reasoning is, should we perhaps abide by the minority vote? Will it make it more democratic then?
I would be more inclined to frame the debate on the Neri decision with the perspective on the contemporary needs of the country. Which is more important — do we run a country or do we quibble on a concept of check and balance? We face such formidable problems, the food crisis among them, and the Senate investigations and its power cannot be more important. In this sense the Supreme Court decision is infused with more common sense as far as public interest is concerned than if the court had decided in favor of the Senate. It must also be remembered that before the decision, Chief Justice Reynato Puno had offered a compromise solution which would have upheld the Senate’s power of oversight. It would have enforced its right to compel Secretary Neri to attend the hearings. At the same time it would preserve the executive privilege as an instrument for governance. There would have been any number of ways through which the senators could have questioned the witness to elicit the answers they desire. Or they may not have.
It was an opportunity missed because the Senate had refused any compromise. Is it not as guilty of tending towards authoritarianism?
As pointed out by Puno, the Neri decision is the first time the court had to confront the issue of a “claim to use executive privilege” during a legislative inquiry “in aid of legislation.”
Having been intransigent the Senate cannot now cry over spilled milk that they did not get what they want. As for public interest the question boils down again to how to govern this country. Does the decision help to avoid gridlock and help the executive to implement programs and govern the country? I think it will be true to say that the Neri decision strengthens the polity against gridlock.
It is plain to people that we do not have the luxury of delay. Delay is what would have been promoted by a decision favoring the Senate. It has been said by constitutional experts that where there is no agreement on policy, then ‘the people’s business’ isn’t being done.
On the question of whether answering those questions would have been harmful to our relations with China, unfortunately that cannot be ascertained until and unless Neri answered the questions. That would have defeated the very purpose of keeping the confidentiality of the conversations with the President.
It happens that the majority decision and I believe many other Filipinos agree that “confidential information about international relations, or of information from overseas sources is a delicate question.” In other words, the leaking of confidential information, regardless of its contents or nature, could jeopardize Philippine international relations not only on matters relating to China but to any other country. The Philippines would be seen as an unreliable confidante. In the government’s estimate the breach of confidence would be more damaging than the sensitive information desired by the Senate investigators.
Chief News Editor: Sol Jose Vanzi
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