External and internal justice

The decision in the Neri vs. Senate Committee etc. et. al. (G.R. 180643, March 25, 2008), is as controversial as the Pacquiao-Marquez bout. It could really have gone either way, and doubts would still be raised as to its correctness and legality under existing laws and jurisprudence as applied to the facts obtaining in the case.

After reading the decision, it can not be said with absolute certainty however that the nine Supreme Court (SC) Justices acted injudiciously, imprudently or baselessly when they declared as covered by “presidential communications privilege” the answers to be elicited by the questions on (a) whether or not President Arroyo followed up the NBN project, (b) whether or not she directed him to prioritize it and (c) whether or not she directed him to approve it. Much more so could ten of them have been injudicious and imprudent in granting Neri’s petition to nullify the Senate Committees’ order citing him in contempt and directing his arrest and detention. It was apparently a judgment call on how they saw the legal bout and we could not begrudge them for it.

The nine justices believed that Neri’s conversations with the President are “candid discussions meant to explore options in making policy decisions and dwelt on the impact of the bribery scandal involving high government officials on the country’s diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines”. Such belief perhaps was formed not so much by the force of Neri’s arguments or influenced by a sense of “utang na loob” to the appointing power, but by the Senate’s own fault in the handling of the investigation. In other words Neri won because the justices perceived that his position is the lesser of two evils. As in the Pacquiao-Marquez bout, the judges perceived Pacquiao as the winner because Marquez landed on the canvass in the third round.

Admittedly, Neri’s answers to those three questions could have contributed a lot to the search for truth regarding the alleged corrupt acts committed by several high executive officials and power brokers in the approval of the deal. But at least some facts have already been established by the SC in this case that brought us nearer the truth.

Thus the SC found that on April 21, 2007, the Department of Transportation and Communications (DOTC) entered into a contract with Zhing Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of US $329,481,290 (approximately P16 billion) to be financed by the People’s Republic of China; that on September 26, 2007, Neri testified for 11 hours and disclosed: that then COMELEC Chairman Benjamin Abalos offered him P200 million in exchange for his approval of the NBN project; that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe; that originally the project was under a Build Operate Transfer (BOT) or any similar scheme, but when the contract was signed it was already by means of a loan from China although he was not privy to the changes anymore; that he had further discussions with the President regarding the bribery scandal involving high Government officials but could not divulge them anymore on the ground that they are covered by executive privilege.

If these facts are woven into the publicly known and openly admitted events such as: (a) the President’s subsequent cancellation of the contract five months later despite the repeated avowals of DOTC that the contract is valid and legal; (b) the resignation of COMELEC Chairman Benjamin Abalos in the aftermath of Neri’s revelation; and (c) the President’s own announcement on radio that she cancelled it because “ayoko ng katiwalian” which she allegedly learned only when she was about to leave for China to witness the contract signing, then the conclusion is quite clear and indubitable that some “katiwalian” amounting to a crime or violation of the Anti-Graft Law has been committed by the named officials and other brokers still to be positively identified.

And this is the vulnerable aspect of the decision. It has apparently allowed the use of executive privilege to shield a criminal wrong doing. It has put more weight on the public interest to be served by the privilege than on the public interest to be served by prosecuting a possible crime. It still recognizes executive privilege when the Congress has already acquired substantial evidence that the information requested concerns criminal wrongdoing by public officials and other influential persons. In its decision, the SC deflected this particular argument by simply pointing out that the information sought to be elicited here is not in a pending criminal proceeding but in a legislative inquiry, and since there is no pending criminal case yet, the President’s generalized interest in confidentiality should still prevail. Following this rule, there could never be a criminal proceeding precisely because the use of the privilege would shield wrongdoers and prevent their criminal indictment.

But as has been said time and again, the SC has spoken and we should respect its decision for we are governed by the rule of law. This may be correct. “Law” here refers to “man-made rules and methods by which society compels or restrains actions of its members; the general rule of external human action enforced by a sovereign political authority”. Conformity of our actions to this law serves the ends of what we call external justice only.

There is however a broader all embracing law that treats of what is right and wrong or distinguishes between good and evil. If our will and actions conform to this law we have what is known as internal justice.

Hence internal justice is the object of morality while external justice is the object of jurisprudence or the science of giving a wise interpretation to man made laws and making a just application of them in all cases as they arise. Obviously internal justice is more important in the search for truth because our duty here is dictated by conscience unlike external justice where the duty is dictated by imperfect human laws. A combination of both internal and external justice is of course the best.

Note: Books containing compilation of my articles on Labor Law and Criminal Law Vols. I and II) are now available. Call tel 7249445.

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