Issuance of Arrest Warrants for Sec. Neri and Mr. Lozada a legitimate exercise of the Senate’s
constitutional powers: Compelling the of FG Mike Arroyo on pain of contempt also urged
The Senate issuance of a warrant of arrest for Sec. Romulo Neri and Mr. Rodolfo Lozada is a legitimate exercise of
its constitutional power to conduct inquiries in aid of legislation as declared by the Supreme Court in Arnault vs. Nazareno
and the EO 464 decisions in Bayan Muna vs. Ermita [GR No. 169659] and Drilon vs. Ermita [GR No. 169777]. The NUPL,
however, urges the Senate to go beyond Sec. Neri and Mr. Lozada and compel the attendance of Mr. Mike Arroyo who is
the key player in the scandal having been the subject of the testimonies of Mr. Benjamin Abalos and Mr. Joey de Venecia III.
The issuance of the warrants is not simply ‘politics as usual’ as Pres. Arroyo would want us to believe. The NUPL condemns
the continuing attempts of Pres. Gloria Arroyo to thwart the Senate investigation on the ZTE deal by preempting the
testimony of her subordinates and intentionally disregarding Supreme Court decisions on the use of executive privilege.
The Senate has the power to conduct investigations and compel attendance from witnesses as outlined in Arnault
vs. Nazareno [87 Phil. 29 (1950):
“ In other words, the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting
the conditions which legislation is intended to affect or change; and where the legislative body does not itself possess
the requisite information — which is not frequently true — recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are often unavailing, and also that information which
is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is
needed. x x x ..”
Since Congress is granted the power to investigate and compel attendance, it must pursue the investigation of the
ZTE deal especially since the cancellation of the contract already constitutes prima facie evidence of fraud and not mere
‘politics as usual’.
Executive Privilege is not shield for the commission of a crime
Mr. Lozada cannot avoid from appearing before the Senate on the ground that he was ordered to go abroad on an
official trip. It does not protect him, and the officials who ordered him to go abroad, from being held in contempt as it is an
open defiance to the Senate’s summons. The use of executive privilege is also not availing as explained by the Supreme
Court in its EO 464 decision in Bayan Muna and Drilon:
“when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the
appearance is mandatory x x x While the executive branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing to comply with its demands for information.”
Since Mr. Lozada has not claimed protection under executive privilege, he is deemed liable for his flight
since Congress is not bound by his mere refusal as declared in the EO 464 Decision:
“Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry,
unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive
Secretary.” x x x
“Resort to any means then by which officials of the executive branch could refuse to divulge information cannot
be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much greater value – our right as a people to
take part in government.”
In fact, even if such a claim is presented to the Senate Mr. Lozada and even Sec. Neri have to appear before the
Senate since it is the Senate which will ultimately decides whether a claim to executive privilege is valid. The assertion of
Sen. Juan Enrile that Sec. Neri cannot be arrested because of the mere claim to executive privilege is without legal or
constitutional basis. Should the Senate find the claim unjustifiable for its failure to state the specific reason and ground for
such claim, Mr. Lozada and Sec. Neri can not claim executive privileges as declared in Bayan Muna and Drilon:
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely
invokes E.O. 464, coupled with an announcement that the President has not given her consent. 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. In fine, Section 3 and
Section 2(b) of E.O. 464 must be invalidated. x x x
The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter
of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an
exemption from the obligation to disclose information, in this case to Congress, the necessity must be of
such high degree as to outweigh the public interest in enforcing that obligation in a particular case.
x x x “ Certainly, Congress has the right to know why the executive considers the requested information
privileged”.
It is, therefore, Congress which has the final decision on whether the claim is valid especially since the issue also
involves the peoples’ constitutional right to information. It is President Arroyo and not the Senate who should go to the
Supreme Court and ask for a Temporary Restraining Order [TRO] should she want to preempt testimonies of her
subordinate. Despite the pending Supreme Court petition by Sec. Neri, absent any TRO issued by the Court, Sec. Neri, Mr.
Lozada and even Mr. Mike Arroyo can be compelled to testify. NUPL urges the Senate to categorically and expressly
declare invalid Pres. Arroyo’s claim to executive privilege in the ZTE investigation since the privilege cannot be used to
cover up a crime [see Arnault vs Nazareno and US vs. Nixon].
Preempting the testimony of subordinates is a crime
The refusal of executive officials to appear before the Senate constitutes a crime under Philippine laws. It
constitutes another impeachable offense for Pres. Arroyo for culpable violation of the Constitution as it violates Art. 233 of
the Revised Penal Code:
Art. 233. The penalties of arresto mayor …to prision correccional, and perpetual disqualification…shall be
imposed upon a public officer who, upon demand from competent authority, shall fail to lend his cooperation
towards the administration of justice or other public service…
Considering the huge amount of public funds involved in the ZTE contract and the cancellation of the contract,
public interest and the people’s welfare demand the disclosure of the story behind the contract. The cancellation of the ZTE
contract only stresses the imperative for disclosure of information. NUPL demands that the Executive Branch desist from
hindering the Senates investigation on the ZTE deal especially since it precisely involves the Office of the President. NUPL
also urges the Senate to fully implement the warrants issued against Sec. Neri and Mr. Lozada and at the same time also
compel the attendance of Mr. Arroyo. NUPL calls on the people not to allow corrupt officials to avoid accountability through
the misuse of their public office. NUPL also condemns Pres. Arroyo’s disregard of the Constitution she has sworn to uphold
when she took her oath and the total unaccountability and impunity with which executive officials have arrogantly violated
the laws using ‘executive privilege’ to cover up charges of fraud and corruption.
Reference Person
Date
: Atty. Neri Javier Colmenares [Secretary General]
: January 31, 2008
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