Separate opinions in G.R. No. 180643

EN BANC

[ G.R. No. 180643, March 25, 2008 ]

ROMULO L. NERI, PETITIONER, vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, RESPONDENTS.

SEPARATE OPINION


YNARES-SANTIAGO, J.:


The President does not have an unlimited discretionary privilege to withhold information from Congress, the Judiciary or the public, even if the claim is founded on one of the traditional privileges covered by the doctrine on executive privilege. It was clearly stated in Senate v. Ermita[1]that a claim of executive privilege may be valid or not depending on the ground invoked to justify it and the context in which it is made. In this sense, therefore, executive privilege is not absolute.Petitioner justified his non-appearance before the respondent Senate Committees on the ground that the information sought by these committees pertain to conversations he had with the President. These conversations, if disclosed, would allegedly affect our "diplomatic relations and economic and military affairs" and would result to "possible loss of confidence of foreign investors and lenders." Specifically, petitioner assumed that he was being summoned by the Senate Committees for the purpose of responding to three questions which he refused to answer when he testified during the September 26, 2007 Senate hearing. These questions are: (1) whether the President followed up the ZTE-NBN project after petitioner informed her of the P200M bribery attempt allegedly committed by then COMELEC Chairman Benjamin Abalos;[2] (2) whether the President instructed or dictated upon him to prioritize the ZTE-NBN project;[3] and (3) whether the President instructed petitioner to go ahead and approve the project despite being told of the alleged bribery attempt.[4]

First, it was wrong for petitioner to assume that he was being summoned by the Senate Committees only to answer the three questions cited above. It may be true that he had exhaustively testified on the ZTE-NBN project during the September 26, 2007 hearing, however, it is not for him to conclude that the Senate Committees have gathered all the necessary information that they needed. He cannot refuse to appear before the Senate Committees on the assumption that he will testify only on matters that are privileged. The Senate Committees, in the exercise of their constitutionally-mandated functions, can inquire into any matter that is pertinent and relevant to the subject of its investigation.

Indeed, presidential conversations and correspondences have been recognized as presumptively privileged under case law.[5] In US v. Nixon ,[6] the US Supreme Court upheld the privilege by reasoning that a "President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." However, the privilege attached to presidential communications was not regarded as absolute. For while the President's need for complete candor and objectivity from advisers calls for great deference from the courts, a generalized claim of confidentiality, without more, cannot prevail over a specific need for evidence in a pending criminal trial.[7]

Thus, presidential conversations and correspondences are not entirely confidential and the privilege attached to this type of information may yield to other considerations. In US v. Nixon, it was the "fundamental demands of due process of law in the fair administration of criminal justice" that was the overriding consideration which led to the disallowance of the claim of privilege. In the instant case, I submit that the grave implications on public accountability and government transparency justify the rejection of the claim of executive privilege.

The doctrine of executive privilege applies only to certain types of information of a sensitive character that would be against the public interest to divulge. As held in Senate v. Ermita,[8] the doctrine is premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. Considering that the privilege is an exemption from the obligation to disclose information, the necessity for non-disclosure must be of such high degree as to outweigh public interest.

Petitioner miserably failed to demonstrate that the reasons for his non-disclosure far outweigh public interest. He has not sufficiently shown that there is an imperative need to keep confidential his conversations with the President regarding the ZTE-NBN scandal. He failed to show how disclosure of the presidential conversations would affect the country's military, diplomatic and economic affairs, as he so asserted to the Senate Committees and before this Court. In fact, his counsel admitted that no military secrets were involved in the conversations, only military "concerns".[9] Neither did the conversations necessarily refer to diplomatic secrets, but only to "our relationship in general with a friendly foreign power."[10] These generalized claims do not suffice to justify his refusal to disclosure.

Moreover, petitioner's legal consultant, Atty. Paul Lentejas, admitted during the oral arguments that there was nothing legally or morally wrong if the President followed up on the status of the ZTE-NBN project because she is, after all, the chairperson of the NEDA Board. It was likewise admitted that by virtue of her position in the NEDA, the President could justifiably prioritize the ZTE-NBN project. Petitioner could have also pointed out that, as NEDA Director General, he had no authority to approve the project, as that power belonged to the NEDA Board which is headed by the President. [11] Evidently, petitioner had no valid reason not to answer the three questions propounded by the Senators.

Except for generally claiming that to require petitioner to answer the three questions would have a "chilling effect" on the President, in that she would be apprehensive to consult her advisers for fear of being scrutinized by third parties, petitioner has not established any compelling and demonstrable ground for claiming executive privilege. The following exchange between Chief Justice Reynato S. Puno and petitioner's counsel, Atty. Antonio R. Bautista, is enlightening:

CHIEF JUSTICE PUNO:

In the functional test, the t(h)rust is to balance what you said as the benefits versus the harm on the two branches of government making conflicting claims of their powers and privileges. Now, using the functional test, please tell the Court how the Office of the President will be seriously hampered in the performance of its powers and duties, if petitioner Neri would be allowed to appear in the Senate and answer the three questions that he does not want to answer?

ATTY. BAUTISTA:

Your Honor, the effect, the chilling effect on the President, she will be scared to talk to her advisers any longer, because for fear that anything that the conversation that she had with them will be opened to examination and scrutiny by third parties, and that includes Congress. And (interrupted)

CHIEF JUSTICE PUNO:

Let us be more specific. Chilling effect, that is a conclusion. The first question is, whether the President followed up the NBN Project. If that question is asked from petitioner Neri, and he answers the question, will that seriously affect the way the Chief Executive will exercise the powers and privileges of the Office?

ATTY. BAUTISTA:

Well, if the answer to that question were in the affirmative, then it would imply, Your Honor, that the President has some undue interest in the contract.

CHIEF JUSTICE PUNO:

The President may have interest, but not necessarily undue interest.

x x x x

How about the second question, which reads, were you dictated to prioritize the ZTE, again, if this question is asked to petitioner Neri, and responds to it?

ATTY. BAUTISTA:

In the affirmative?

CHIEF JUSTICE PUNO:

I don't know how he will respond.

x x x x

How will that affect the functions of the President, will that debilitate the Office of the President?

ATTY. BAUTISTA:

Very much so, Your Honor.

x x x x

Because there are lists of projects, which have to be-which require financing from abroad. And if the President is known or it's made public that she preferred this one project to the other, then she opens herself to condemnation by those who were favoring the other projects which were not prioritized.

CHIEF JUSTICE PUNO:

Is this not really an important project, one that is supposed to benefit the Filipino people? So if the President says you prioritize this project, why should the heavens fall on the Office of the President?

ATTY. BAUTISTA:

Well, there are also other projects which have, which are supported by a lot of people. Like the Cyber Ed project, the Angat Water Dam project. If she is known that she gave low priority to these other projects, she opens herself to media and public criticism, not only media but also in rallies, Your Honor.

x x x x

CHIEF JUSTICE PUNO:

How about the third question, whether the President said to go ahead and approve the project after being told of the alleged bribe? Again, how will that affect the functions of the President using that balancing test of functions?

ATTY. BAUTISTA:

Well, if the answer is in the affirmative, then it will be shown, number one, that she has undue interest in this thing, because she sits already on the ICC and the Board.

CHIEF JUSTICE PUNO:

Again, when you say undue interest, that is your personal opinion.

ATTY. BAUTISTA:

Yes, Your Honor.[12]

I do not see how public condemnation and criticism can have an adverse effect on the President's performance of her powers and functions as Chief Executive. In a democracy such as ours, it is only to be expected that official action may be met with negative feedback or even outrage from a disapproving public. If at all, the public's opinion, negative or otherwise, should enhance the President's performance of her constitutionally-mandated duties. It is through open discussion and dialogue that the government better responds to the needs of its citizens and the ends of government better achieved.

At this point, it would not be amiss to state that it was petitioner who provided the Senate Committees with information that, prior to the signing of the ZTE-NBN contract, he had told the President of the P200M bribery attempt allegedly perpetrated by Chairman Abalos. As admitted by petitioner's counsel during the oral arguments of this case, the allegation, if proven, would constitute a crime under our penal laws.[13] To allow the details of this alleged crime to be shrouded by a veil of secrecy "would permit criminal conspiracies at the seat of government."[14] Needless to say, the Constitution could never sanction executive privilege as a shield for official wrongdoing.

Finally, in his treatise on Executive Privilege and Congressional Investigatory Power,[15] Professor Bernard Schwartz[16] explained that the exercise of its authority to enact laws is but part of the work of a legislature like the Congress. He further discussed, to wit:

The primary tasks of modern legislative assemblies may be arranged in four classes. First, but not necessarily foremost, is the function of lawmaking. At least equally important is the responsibility of supervising the Executive; the Legislature in this role may be compared to a board of directors of a business corporation which at least theoretically, endeavors to hold "administrative officers to a due accountability for the manner in which they perform their duties." A third legislative office, broad in its implications, involves activities as an organ of public opinion; a lawmaking body may serve as a national forum for the expression, formulation, or molding of opinion. The remaining function, which may be termed membership, concerns internal matters especially the judging of the qualifications and conduct of the delegates to the Legislative Assembly. [17]

I thus vote for the dismissal of the petition.




[1] G.R. No. 169777, April 20, 2006, 488 SCRA 1.

[2] Senate TSN, September 26, 2007, p. 91.

[3] Id. at 114-116.

[4] Id. at 275-276.

[5] See Almonte v. Vasquez, 314 Phil. 150 (1995).

[6] 418 U.S. 683 (1974).

[7] Id.

[8] Senate v. Ermita, supra note 1 at 68.

[9] Senate TSN, September 26, 2007, p. 42.

[10] Id. at 51.

[11] Id. at 321-328.

[12] Id. at 297-304.

[13] Id. at 34.

[14] Executive Privilege, the Congress and the Courts, Norman Dorsen and John H.F. Shattuck, Ohio Law State Journal, Vol. 35 (1974), p. 33.

[15] California Law Review, Vol. 47 (1959), pp. 10-11.

[16] Professor of Law, New York University.

[17] Citing McGeary, The Development of Congressional Investigative Power 23 (1940).





DISSENTING AND CONCURRING OPINION


CARPIO, J.:

The Case

This Petition,[1] with supplemental petition,[2] for certiorari with application for a temporary restraining order, assails the letter dated 22 November 2007 and the Order dated 30 January 2008 issued by respondents Senate Committees on Accountability of Public Officers and Investigation (Blue Ribbon),[3] Trade and Commerce,[4] and National Defense and Security[5] (collectively respondents or Committees).

The 22 November 2007 letter required petitioner Commission on Higher Education Chairman and former National Economic Development Authority (NEDA) Director General Romulo L. Neri (petitioner) "to show cause why [he] should not be cited in contempt" for his failure to attend the Blue Ribbon Committee hearing on 20 November 2007, while the Order issued on 30 January 2008 cited petitioner in contempt and directed his arrest and detention in the Office of the Senate Sergeant-At-Arms.

The Antecedent Facts

On 21 April 2007, with President Gloria Macapagal-Arroyo as witness, the Department of Transportation and Communications, represented by Secretary Leandro R. Mendoza, and Zhong Xing Telecommunications Equipment Company Limited (ZTE), represented by its Vice President Yu Yong, signed in Boao, China, a "Contract for the Supply of Equipment and Services for the National Broadband Network Project" (NBN Project) worth US$329,481,290. The People's Republic of China, through its Export and Import Bank, agreed to extend a loan to the Philippines to finance the NBN Project.[6] The NBN Project was supposed to provide landline, cellular and Internet services in all government offices nationwide.

After the signing of the agreement, controversies hounded the NBN Project. There were various reports of alleged bribery, "overpricing" of US$130 million, payment of "advances" or "kickback commissions" involving high-ranking government officials, and other anomalies which included the loss of the contract, collusion among executive officials, and political pressures against the participants in the NBN Project.[7]

Considering the serious questions surrounding the NBN Project, respondents called an investigation, in aid of legislation, on the NBN Project based on resolutions introduced by Senators Aquilino Q. Pimentel, Sr., Panfilo M. Lacson, Miriam Defensor Santiago, and Mar Roxas. Several hearings were conducted, one of which was held on 26 September 2007 where petitioner testified before respondents.

During this particular hearing, petitioner testified that then Commission on Elections Chairman Benjamin Abalos, Sr. (Abalos), the alleged broker in the NBN Project, offered petitioner P200 million in exchange for NEDA's approval of the NBN Project. Petitioner further testified that he told President Arroyo of the bribe attempt by Abalos and that the President instructed him not to accept the bribe offer.

However, when respondents asked petitioner what he and President Arroyo discussed thereafter, petitioner refused to answer, invoking executive privilege. Petitioner claimed executive privilege when he was asked the following questions:
I.  
 
SEN. PANGILINAN:
You mentioned earlier that you mentioned this to the President. Did the President after that discussion over the phone, was this ever raised again, the issue of the 200 ka rito?
 
MR. NERI:
We did not discuss it again, Your Honor.
 
SEN. PANGILINAN:
With the President? But the issue, of course, the NBN deal, was raised again? After that, between you and the President. Pinalow up (followed up) ba niya?
 
MR. NERI:
May I claim the executive privilege, Your Honor, because I think this already involves conversations between me and the President, Your Honor, because this is already confidential in nature.
 
x x x  
 
II.  
 
SEN. LEGARDA:
Has there been any government official higher than you who dictated that the ZTE project be prioritized or given priority? In short, were you dictated upon not to encourage AHI as you've previously done...
 
MR. NERI:
As I said, Your Honor...
 
SEN. LEGARDA:
...but to prefer or prioritize the ZTE?
 
MR. NERI:
Yeah. As the question may involve - as I said a conversation/correspondence between the President and a public official, Your Honor.
 
SEN. LEGARDA:
I'm sorry. Can you say that again?
 
MR. NERI:
As I said, I would like to invoke Sec. 2(a) of EO 464.
 
x x x  
 
III.  
 
MR. NERI:
She said, "Don't accept it," Your Honor.
 
SEN. CAYETANO, (P):
And there was something attached to that like... "But pursued with a project or go ahead and approve," something like that?
 
MR. NERI:
As I said, I claim the right of executive privilege no further discussions on the...
 
SEN. CAYETANO, (P):
Ah, so that's the part where you invoke your executive privilege, is that the same thing or is this new, this invocation of executive privilege?
 
My question is, after you had mentioned the 200 million and she said "Don't accept," was there any other statement from her as to what to do with the project?
 
MR. NERI:
As I said, it was part of a longer conversation, Your Honor, so...
 
SEN. CAYETANO, (P):
A longer conversation in that same-- part of that conversation on an ongoing day-to-day, week-to-week conversation?
 
MR. NERI:
She calls me regularly, Your Honor, to discuss various matters.
 
SEN. CAYETANO, (P):
But in connection with, "Ma'am, na-offer-an ako ng 200." -- "Ah, don't accept, next topic," ganoon ba yon? Or was there like, "Alam mo, magandang project sana `yan, eh bakit naman ganyan."
 
MR. NERI:
As I said, Your Honor, beyond that I would not want to go any further, Your Honor.
 
SEN. CAYETANO, (P):
I just can't hear you.
 
MR. NERI:
Beyond what I said, Your Honor, I'd like to invoke the right of executive privilege.
On 13 November 2007, the Blue Ribbon Committee issued a subpoena ad testificandum[8] requiring petitioner to appear again before it and testify further on 20 November 2007.

On 15 November 2007, Executive Secretary Eduardo Ermita (Executive Secretary Ermita) addressed a letter (Ermita Letter) to respondent Blue Ribbon Committee Chair Alan Peter S. Cayetano requesting that petitioner's testimony on 20 November 2007 be dispensed with because he was invoking executive privilege "By Order of the President." Executive Secretary Ermita explained:
Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit:

a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after being told about the alleged bribe?

Following the ruling in Senate vs. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v Vazquez, G.R. 95367, 23 May 1995; Chavez v PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, is she is not protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as defined in Senate vs. Ermita, and has advised Secretary Neri accordingly.[9]
Consequently, petitioner did not appear before respondents on 20 November 2007. Petitioner assumed that the only matters on which respondents would question him were exclusively related to his further discussions with the President relating to the NBN Project.

On 22 November 2007, respondents issued the letter requiring petitioner to show cause why he should not be cited in contempt for his failure to appear at the 20 November 2007 hearing.[10] In a letter dated 29 November 2007, petitioner personally replied to respondents, requesting to be furnished in advance new matters, if any, which respondents would like to ask him other than the three questions for which Executive Secretary Ermita had already claimed executive privilege.[11]

On 7 December 2007, petitioner filed the initial Petition for certiorari with a prayer for the issuance of a temporary restraining order to enjoin respondents from citing him in contempt.

On 30 January 2008, respondents issued an order for the arrest of petitioner for his failure to appear at the hearings of the Senate Committees on 18 September 2007, 20 September 2007, 25 October 2007, and 20 November 2007.[12] On the same day, petitioner wrote respondents and Senate President Manny Villar seeking a reconsideration of the issuance of the arrest order.

On 1 February 2008, petitioner filed with this Court a supplemental petition for certiorari with an urgent application for a temporary restraining order or preliminary injunction seeking to nullify the arrest order and to enjoin respondents from implementing such order.

On 5 February 2008, the Court issued a resolution requiring respondents to Comment on the Petition and supplemental petition and to observe the status quo prevailing prior to respondents' Order of 30 January 2008. The Court further resolved to set the Petition for hearing on the merits and on the Status Quo Ante Order on 4 March 2008.

The Court heard the parties in oral arguments on 4 March 2008, on the following issues:
1.
What communications between the President and petitioner Neri are covered by the principle of `executive privilege'?
1.a
Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information, which might impair our diplomatic as well as economic relations with the People's Republic of China?
1.b
Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations "dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines" xxx, within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?
1.c
Will the claim of executive privilege in this case violate the following provisions of the Constitution:
   
Sec. 28, Art II
(Full public disclosure of all transactions involving public interest)
   
Sec. 7, Art. III
(The right of the people to information on matters of public concern)
   
Sec. 1, Art. XI
(Public office is a public trust)
   
Sec. 17, Art. VII
(The President shall ensure that the laws be faithfully executed)
       
and the due process clause and the principle of separation of powers?
2.
What is the proper procedure to be followed in invoking executive privilege?
 
3.
Did the Senate Committees grave[ly] abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena?
After the oral arguments, the Office of the Solicitor General (OSG) filed on 17 March 2008 a Motion for Leave to Intervene and to Admit Attached Memorandum. The OSG argues that petitioner's discussions with the President are covered by executive privilege. The OSG assails the validity of the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation on the ground of lack of publication. On 18 March 2008, the Court granted the OSG's motion to intervene.

In his Petition, petitioner alleges that the invocation of executive privilege is well founded. Petitioner claims that his candid discussions with the President were meant to explore options in crafting policy decisions. Petitioner further argues that the invocation of executive privilege was "timely, upon authority of the President, and within the parameters laid down in Senate v. Ermita and United States v. Reynolds." Petitioner also maintains that his non-appearance at the 20 November 2007 hearing was due to the order of the President herself, invoking executive privilege. Therefore, petitioner asserts that the show cause order was issued with grave abuse of discretion, hence void.

In his supplemental petition, petitioner argues, among others, that the issuance of the arrest order was another grave abuse of discretion because he did not commit any contumacious act. Petitioner contends that Executive Secretary Ermita correctly invoked executive privilege in response to the subpoena issued by respondents for petitioner to testify at the 20 November 2007 hearing. Petitioner also impugns the validity of the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation for lack of publication for the 14th Congress.

Petitioner also alleges that respondents' order of arrest preempted this Court's action on his initial Petition. Petitioner claims that "this order of arrest elides, and side-steps, the President's invocation of executive privilege in behalf of petitioner."

In their Comment, respondents counter that there is no justification for petitioner's invocation of executive privilege. Respondents assert that petitioner's sweeping claim of executive privilege does not authorize his absolute refusal to appear and testify before them. Respondents argue that petitioner failed to overcome the presumption against executive secrecy and in favor of disclosure, as required in Senate v. Ermita.[13]

Respondents also claim that petitioner's justification violates the constitutional and statutory standards for public officers. Respondents further maintain that the grounds invoked by petitioner are mere speculations and presumptions. Likewise, respondents insist that the testimony of petitioner is material and pertinent in aid of legislation. Respondents point out that several bills relating to the inquiry have already been filed in aid of legislation. Respondents also stress that even assuming that petitioner timely invoked executive privilege, this privilege does not extend to criminal activities.

The Issues

The issues raised in this petition may be summarized as follows:

  1. Whether Executive Secretary Ermita correctly invoked executive privilege on the three questions mentioned in his 15 November 2007 letter to the Senate Blue Ribbon Committee;

  2. Whether the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation were duly published; and

  3. Whether the Senate's Order of 30 January 2008 citing petitioner in contempt and directing his arrest is valid.
Discussion
  1. Overview of Executive Privilege

    Executive privilege is the implied constitutional power of the President to withhold information requested by other branches of the government. The Constitution does not expressly grant this power to the President but courts have long recognized implied Presidential powers if "necessary and proper"[14] in carrying out powers and functions expressly granted to the Executive under the Constitution.

    In the United States, executive privilege was first recognized as an implied constitutional power of the President in the 1973 case of United States v. Nixon.[15] U.S. Presidents, however, have asserted executive privilege since the time of the first President, George Washington.[16] In this jurisdiction, several decisions have recognized executive privilege starting with the 1995 case of Almonte v. Vasquez,[17] and the most recent being the 2002 case of Chavez v. Public Estates Authority[18] and the 2006 case of Senate v. Ermita.[19]

    As Commander-in-Chief of the Armed Forces[20] and as Chief Executive,[21] the President is ultimately responsible for military and national security matters affecting the nation. In the discharge of this responsibility, the President may find it necessary to withhold sensitive military and national security secrets from the Legislature or the public.

    As the official in control of the nation's foreign service by virtue of the President's control of all executive departments, bureaus and offices,[22] the President is the chief implementer of the foreign policy relations of the State. The President's role as chief implementer of the State's foreign policy is reinforced by the President's constitutional power to negotiate and enter into treaties and international agreements.[23] In the discharge of this responsibility, the President may find it necessary to refuse disclosure of sensitive diplomatic secrets to the Legislature or the public. Traditionally, states have conducted diplomacy with considerable secrecy. There is every expectation that a state will not imprudently reveal secrets that its allies have shared with it.

    There is also the need to protect the confidentiality of the internal deliberations of the President with his Cabinet and advisers. To encourage candid discussions and thorough exchange of views, the President's communications with his Cabinet and advisers need to be shielded from the glare of publicity. Otherwise, the Cabinet and other presidential advisers may be reluctant to discuss freely with the President policy issues and executive matters knowing that their discussions will be publicly disclosed, thus depriving the President of candid advice.

    Executive privilege, however, is not absolute. The interest of protecting military, national security and diplomatic secrets, as well as Presidential communications, must be weighed against other constitutionally recognized interests. There is the declared state policy of full public disclosure of all transactions involving public interest,[24] the right of the people to information on matters of public concern,[25] the accountability of public officers,[26] the power of legislative inquiry,[27] and the judicial power to secure testimonial and documentary evidence in deciding cases.[28]

    The balancing of interests - between executive privilege on one hand and the other competing constitutionally recognized interests on the other hand - is a function of the courts. The courts will have to decide the issue based on the factual circumstances of each case. This is how conflicts on executive privilege between the Executive and the Legislature,[29] and between the Executive and the Judiciary,[30] have been decided by the courts.

    The Judiciary, however, will consider executive privilege only if the issues cannot be resolved on some other legal grounds.[31] In conflicts between the Executive and the Legislature involving executive privilege, the Judiciary encourages negotiation between the Executive and Legislature as the preferred route of conflict resolution.[32] Only if judicial resolution is unavoidable will courts resolve such disputes between the Executive and Legislature.[33]

    Information covered by executive privilege remains confidential even after the expiry of the terms of office of the President, Cabinet members and presidential advisers. Thus, a former President can assert executive privilege.[34] The character of executive privilege attaches to the information and not to the person. Executive privilege is for the benefit of the State and not for the benefit of the office holder. Even death does not extinguish the confidentiality of information covered by executive privilege.

    Executive privilege must be exercised by the President in pursuance of official powers and functions. Executive privilege cannot be invoked to hide a crime because the President is neither empowered nor tasked to conceal a crime.[35] On the contrary, the President has the constitutional duty to enforce criminal laws and cause the prosecution of crimes.[36]

    Executive privilege cannot also be used to hide private matters, like private financial transactions of the President. Private matters are those not undertaken pursuant to the lawful powers and official functions of the Executive. However, like all citizens, the President has a constitutional right to privacy.[37] In conducting inquiries, the Legislature must respect the right to privacy of citizens, including the President's.

    Executive privilege is rooted in the separation of powers.[38] Executive privilege is an implied constitutional power because it is necessary and proper to carry out the express constitutional powers and functions of the Executive free from the encroachment of the other co-equal and co-ordinate branches of government. Executive privilege springs from the supremacy of each branch within its own assigned area of constitutional powers and functions.[39]

    Executive privilege can be invoked only by the President who is the sole Executive in whom is vested all executive power under the Constitution.[40] However, the Executive Secretary can invoke executive privilege "By Order of the President," which means the President personally instructed the Executive Secretary to invoke executive privilege in a particular circumstance.[41]

    Executive privilege must be invoked with specificity sufficient to inform the Legislature and the Judiciary that the matter claimed as privileged refers to military, national security or diplomatic secrets, or to confidential Presidential communications.[42] A claim of executive privilege accompanied by sufficient specificity gives rise to a presumptive executive privilege. A generalized assertion of executive privilege, without external evidence or circumstances indicating that the matter refers to any of the recognized categories of executive privilege, will not give rise to presumptive executive privilege.

    If there is doubt whether presumptive privilege exists, the court may require in camera inspection of so much of the evidence as may be necessary to determine whether the claim of executive privilege is justified.[43] Once presumptive executive privilege is established, the court will then weigh the need for such executive privilege against the need for other constitutionally recognized interests.

    Executive privilege must be invoked after the question is asked by the legislative committee, not before. A witness cannot raise hypothetical questions that the committee may ask, claim executive privilege on such questions, and on that basis refuse to appear before the legislative committee. If the legislative committee furnished in advance the questions to the witness, the witness must bring with him the letter of the President or Executive Secretary invoking executive privilege and stating the reasons for such claim.

    If the legislative committee did not furnish in advance the questions, the witness must first appear before the legislative committee, wait for the question to be asked, and then raise executive privilege. The legislative committee must then give the witness sufficient time to consult the President or Executive Secretary whether the President will claim executive privilege. At the next hearing, the witness can bring with him the letter of the President or Executive Secretary, and if he fails to bring such letter, the witness must answer the question.

    There are other categories of government information which are considered confidential but are not strictly of the same status as those falling under the President's executive privilege. An example of such confidential information is the identity of an informer which is made confidential by contract between the government and the informer.[44] The privilege character of the information is contractual in nature. There are also laws that classify the identity of an informer as confidential.[45] The privilege character of the information is conferred by the Legislature and not by the Executive's implied power of executive privilege under the Constitution.

    There is also the category of government information that is confidential while the deliberative process of agency executives is on-going, but becomes public information once an agency decision or action is taken. Thus, a committee that evaluates bids of government contracts has a right to keep its deliberations and written communications confidential. The purpose of the deliberative process privilege is to give agency executives freedom to discuss competing bids in private without outside pressure. However, once they take a definite action, like deciding the best bid, their deliberations and written communications form part of government records accessible by the public.[46]

    Confidential information under the deliberative process privilege is different from the President's executive privilege. Military, national security, and diplomatic secrets, as well as Presidential communications, remain confidential without time limit. The confidentiality of matters falling under the President's executive privilege remains as long as the need to keep them confidential outweighs the need for public disclosure.

    Then there is the category of government information that must be kept temporarily confidential because to disclose them immediately would frustrate the enforcement of laws. In an entrapment operation of drug pushers, the identity of the undercover police agents, informers and drug suspects may not be disclosed publicly until after the operation is concluded. However, during the trial, the identity of the undercover police agents and informers must be disclosed if their testimony is introduced in evidence.

  2. Overview of Legislative Power of Inquiry

    The Legislature's fundamental function is to enact laws and oversee the implementation of existing laws. The Legislature must exercise this fundamental function consistent with the people's right to information on the need for the enactment of laws and the status of their implementation. The principal tool used by the Legislature in exercising this fundamental function is the power of inquiry which is inherent in every legislative body.[47] Without the power of inquiry, the Legislature cannot discharge its fundamental function and thus becomes inutile.

    The Constitution expressly grants to the "Senate, the House of Representatives or any of its respective committees" the power to "conduct inquiries in aid of legislation."[48] This power of legislative inquiry is so searching and extensive in scope that the inquiry need not result in any potential legislation,[49] and may even end without any predictable legislation.[50] The phrase "inquiries in aid of legislation" refers to inquiries to aid the enactment of laws, inquiries to aid in overseeing the implementation of laws, and even inquiries to expose corruption, inefficiency or waste in executive departments.[51]

    Thus, the Legislature can conduct inquiries not specifically to enact laws, but specifically to oversee the implementation of laws. This is the mandate of various legislative oversight committees which admittedly can conduct inquiries on the status of the implementation of laws. In the exercise of the legislative oversight function, there is always the potential, even if not expressed or predicted, that the oversight committees may discover the need to improve the laws they oversee and thus recommend amendment of the laws. This is sufficient reason for the valid exercise of the power of legislative inquiry. Indeed, the oversight function of the Legislature may at times be as important as its law-making function.[52]

    Aside from the purpose of the inquiry, the Constitution imposes two other limitations on the power of legislative inquiry.[53] One, the rules of procedure for the inquiry must be duly published. Publication of the rules of the inquiry is an essential requirement of due process. Two, the rights of persons appearing before the investigating committees, or affected by such inquiries, must be respected. These rights include the right against self-incrimination,[54] as well as the right to privacy of communications and correspondence of a private nature.[55] The power of legislative inquiry does not reach into the private affairs of citizens.[56]

    Also protected is the right to due process, which means that a witness must be given "fair notice" of the subject of the legislative inquiry. Fair notice is important because the witness may be cited in contempt, and even detained, if he refuses or fails to answer.[57] Moreover, false testimony before a legislative body is a crime.[58] Thus, the witness must be sufficiently informed of the nature of the inquiry so the witness can reasonably prepare for possible questions of the legislative committee. To avoid doubts on whether there is fair notice, the witness must be given in advance the questions pertaining to the basic nature of the inquiry.[59] From these advance questions, the witness can infer other follow-up or relevant questions that the legislative committee may ask in the course of the inquiry.

    The Legislature has the inherent power to enforce by compulsion its power of inquiry.[60] The Legislature can enforce its power of inquiry through its own sergeant-at-arms without the aid of law enforcement officers of the Executive[61] or resort to the courts.[62] The two principal means of enforcing the power of inquiry are for the Legislature to order the arrest of a witness who refuses to appear,[63] and to detain a witness who refuses to answer.[64] A law that makes a crime the refusal to appear before the Legislature does not divest the Legislature of its inherent power to arrest a recalcitrant witness.[65]

    The inherent power of the Legislature to arrest a recalcitrant witness remains despite the constitutional provision that "no warrant of arrest shall issue except upon probable cause to be determined personally by the judge."[66] The power being inherent in the Legislature, essential for self-preservation,[67] and not expressly withdrawn in the Constitution, the power forms part of the "legislative power x x x vested in the Congress."[68] The Legislature asserts this power independently of the Judiciary.[69] A grant of legislative power in the Constitution is a grant of all legislative powers, including inherent powers.[70]

    The Legislature can cite in contempt and order the arrest of a witness who fails to appear pursuant to a subpoena ad testificandum. There is no distinction between direct and indirect contempt of the Legislature because both can be punished motu propio by the Legislature upon failure of the witness to appear or answer. Contempt of the Legislature is different from contempt of court.[71]

  3. Whether Executive Privilege Was Correctly Invoked In this Case

    The Ermita Letter invokes two grounds in claiming executive privilege. First, the answers to the three questions involve confidential conversations of the President with petitioner. Second, the information sought to be disclosed might impair "diplomatic as well as economic" relations with the People's Republic of China.

    However, in his present Petition, which he verified under oath, petitioner declared:
    7.03. Petitioner's discussions with the President were candid discussions mean[t] to explore options in making policy decisions (see Almonte v. Vasquez, 244 SCRA 286 [1995]). These discussions 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. (Emphasis supplied)
    Petitioner categorically admits that his discussions with the President "dwelt on the impact of bribery scandal involving high Government officials." Petitioner's discussions with the President dealt not on simple bribery, but on scandalous bribery involving high Government officials of the Philippines.

    In a letter dated 29 November 2007 to the Chairs of the Committees, petitioner's counsel declared:
    1. His conversations with the President dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high Government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. x x x (Emphasis supplied)
    Petitioner admits, and there can be no dispute about this admission, that his discussions with the President dwelt on a bribery scandal involving high Government officials of the Philippines.

    Executive privilege can never be used to hide a crime or wrongdoing, even if committed by high government officials. Executive privilege applies only to protect official acts and functions of the President, never to conceal illegal acts by anyone, not even those of the President.[72] During the oral arguments on 4 March 2008, counsel for petitioner admitted that executive privilege cannot be invoked to hide a crime. Counsel for petitioner also admitted that petitioner and the President discussed a scandal, and that the "scandal was about bribery." Thus:
    JUSTICE CARPIO:
    Counsel, in your petition, paragraph 7.03, x x x - you are referring to the discussions between Secretary Neri and the President and you state: - ["]This discussion dwelt on the impact of the bribery scandal involving high government officials on the countries diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines.["] You stated the same claim also in your letter of 29 November 2007 to the Senate, is that correct?
     
    ATTY. BAUTISTA:
    That is true, Your Honor.
     
    JUSTICE CARPIO:
    Now, can Executive Privilege be invoked to hide a crime or a wrongdoing on the part of government officials?
     
    ATTY. BAUTISTA:
    Definitely not, Your Honor.
     
    JUSTICE CARPIO:
    x x x Now, you are saying that the discussions between the President and Secretary Neri that you claim[x] to be privilege[ed] refer to bribery scandal involving government officials. So, you are admitting that there is a crime here?
     
    ATTY. BAUTISTA:
    Only the scandal, Your Honor, not the crime.
     
    JUSTICE CARPIO:
    But you are saying bribery, bribery is a crime, correct?
     
    ATTY. BAUTISTA:
    That is true, Your Honor.
     
    JUSTICE CARPIO:
    So, they discuss[ed] about a bribery involving government officials, correct?
     
    ATTY. BAUTISTA:
    The scandal, Your Honor.
     
    JUSTICE CARPIO:
    No, [it] says bribery.
     
    ATTY. BAUTISTA:
    Well, bribery, the scandal was about bribery.
     
    x x x. (Emphasis supplied)
    Petitioner admits in his Petition, and through his counsel in the 15 November 2007 letter to the Senate Blue Ribbon Committee and during the oral arguments, that he discussed with the President a "bribery scandal involving high government officials." This particular discussion of petitioner with the President is not covered by executive privilege. The invocation of executive privilege on the three questions dwelling on a bribery scandal is clearly unjustified and void. Public office is a public trust[73] and not a shield to cover up wrongdoing. Petitioner must answer the three questions asked by the Senate Committees.

    The Ermita Letter merely raises a generalized assertion of executive privilege on diplomatic matters. The bare claim that disclosure "might impair" diplomatic relations with China, without specification of external evidence and circumstances justifying such claim, is insufficent to give rise to any presumptive executive privilege.[74] A claim of executive privilege is presumptively valid if there is specificity in the claim. The claim of impairment of economic relations with China is invalid because impairment of economic relations, involving "foreign investors and lenders in the Philippines," is not a recognized ground for invoking executive privilege.

    The Ermita Letter does not claim impairment of military or national security secrets as grounds for executive privilege. The Ermita Letter only invokes confidential Presidential conversations and impairment of diplomatic and economic relations. However, in his Petition, petitioner declared that his discussions with the President referred to a bribery scandal affecting "diplomatic relations and economic and military affairs." Likewise, in his 29 November 2007 letter to the Senate Committees, counsel for petitioner stated that petitioner's discussions with the President referred to "sensitive national security and diplomatic matters."

    Apparently, petitioner has expanded the grounds on which Executive Secretary Ermita invoked executive privilege on behalf of the President. Petitioner also confuses military secrets with national security secrets. Petitioner's claim of executive privilege not only lacks specificity, it is also imprecise and confusing. In any event, what prevails is the invocation of Executive Secretary Ermita since he is the only one authorized to invoke executive privilege "By Order of the President."[75]

    Thus, the bases for the claim of executive privilege are what the Ermita Letter states, namely, confidential Presidential conversations and impairment of diplomatic and economic relations. However, impairment of economic relations is not even a recognized ground. In short, this Court can only consider confidential Presidential conversations and impairment of diplomatic relations as grounds for the invocation of executive privilege in this petition.

    During the oral arguments, counsel for petitioner failed to correct or remedy the lack of specificity in the invocation of executive privilege by Executive Secretary Ermita. Thus:
    JUSTICE CARPIO:
    Okay, was the DFA involved in the negotiation[s] for the NBN contract?
     
    ATTY. BAUTISTA:[76]
    I do not know, Your Honor.
     
    x x x x x x x x x
     
    CHIEF JUSTICE PUNO:
    Do [you] also know whether there is any aspect of the contract relating to diplomatic relations which was referred to the Department of Foreign Affairs for its comment and study?
     
    ATTY. LANTEJAS:
    As far as I know, Your Honors, there was no referral to the Department of Foreign Affairs, Your Honor.
    While claiming that petitioner's discussions with the President on the NBN Project involved sensitive diplomatic matters, petitioner does not even know if the Department of Foreign Affairs (DFA) was involved in the NBN negotiations. This is incredulous considering that under the Revised Administrative Code, the DFA "shall be the lead agency that shall advise and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations."[77]

    The three questions that Executive Secretary Ermita claims are covered by executive privilege, if answered by petitioner, will not disclose confidential Presidential communications. Neither will answering the questions disclose diplomatic secrets. Counsel for petitioner admitted this during the oral arguments in the following exchange:

    ASSOCIATE JUSTICE CARPIO:
    Going to the first question x x x whether the President followed up the NBN project, is there anything wrong if the President follows up with NEDA the status of projects in government x x x, is there anything morally or legally wrong with that?
     
    ATTY. LANTEJAS:[78]
    There is nothing wrong, Your Honor, because (interrupted)
     
    ASSOCIATE JUSTICE CARPIO:
    That's normal.
     
    ATTY. LANTEJAS:
    That's normal, because the President is the Chairman of the NEDA Board, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    Yes, so there is nothing wrong. So why is Mr. Neri afraid to be asked this question?
     
    ATTY. LANTEJAS:
    I just cannot (interrupted)
     
    ASSOCIATE JUSTICE CARPIO:
    You cannot fathom?
     
    ATTY. LANTEJAS:
    Yes, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    You cannot fathom. The second question, were you dictated to prioritize the ZTE [contract], is it the function of NEDA to prioritize specific contract[s] with private parties? No, yes?
     
    ATTY. LANTEJAS:
    The prioritization, Your Honor, is in the (interrupted).
     
    ASSOCIATE JUSTICE CARPIO:
    Project?
     
    ATTY. LANTEJAS:
    In the procurement of financing from abroad, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    Yes. The NEDA will prioritize a project, housing project, NBN project, the Dam project, but never a specific contract, correct?
     
    ATTY. LANTEJAS:
    Not a contract, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    This question that Secretary Neri is afraid to be asked by the Senate, he can easily answer this, that NEDA does not prioritize contract[s], is that correct?
     
    ATTY. LANTEJAS:
    It is the project, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    So why is he afraid to be asked this question?
     
    ATTY. LANTEJAS:
    I cannot, I cannot fathom. Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    You cannot fathom also?
     
    ATTY. LANTEJAS:
    Yes, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    But is there anything wrong if the President will tell the NEDA Director General, you prioritize this project, is there anything legally or morally wrong with that?
     
    ATTY. LANTEJAS:
    There is nothing wrong with that, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    There is nothing [wrong]. It happens all the time?
     
    ATTY. LANTEJAS:
    The NEDA Board, the Chairman of the NEDA Board, yes, she can.
     
    ASSOCIATE JUSTICE CARPIO:
    [S]he can always tell that?
     
    ATTY. LANTEJAS:
    Yes, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    Okay. Let's go to the third question, whether the President said, to go ahead and approve the project after being told about the alleged bribe. Now, x x x it is not the NEDA Director General that approves the project, correct?
     
    ATTY. LANTEJAS:
    No, no, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    It is the (interrupted)
     
    ATTY. LANTEJAS:
    It is the NEDA Board, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    The NEDA Board headed by the President.
     
    ATTY. LANTEJAS:
    Yes, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    So this question, is not correct also, x x x whether the President said to Secretary Neri to go ahead and approve the project? Secretary Neri does not approve the project, correct?
     
    ATTY. LANTEJAS:
    He's just the Vice Chairman, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    So why is he afraid to be asked this question?
     
    ATTY. LANTEJAS:
    I cannot tell you, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    You cannot fathom also?
     
    ATTY. LANTEJAS:
    Yes, Your Honor.
     
    ASSOCIATE JUSTICE CARPIO:
    You cannot fathom also.
     
    ATTY. LANTEJAS:
    Yes, Your Honor.
    Petitioner's counsel admits that he "cannot fathom" why petitioner refuses to answer the three questions. Petitioner's counsel admits that the three questions, even if answered by petitioner, will not disclose confidential Presidential discussions or diplomatic secrets. The invocation of executive privilege is thus unjustified.

    Of course, it is possible that the follow-up questions to the three questions may call for disclosure of confidential presidential discussions or diplomatic secrets. However, executive privilege cannot be invoked on possible questions that have not been asked by the legislative committee. Executive privilege can only be invoked after the question is asked, not before, because the legislative committee may after all not ask the question. But even if the follow-up questions call for the disclosure of confidential Presidential discussions or diplomatic secrets, still executive privilege cannot be used to cover up a crime.

  4. Whether the Senate's Rules of Procedure on Inquiries Have Been Published

    The Constitution requires that the Legislature publish its rules of procedure on the conduct of legislative inquiries in aid of legislation.[79] There is no dispute that the last publication of the Rules of Procedure of the Senate Governing the Inquiries in Aid of Legislation was on 1 December 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress. There is also no dispute that the Rules of Procedure have not been published in newspapers of general circulation during the current 14th Congress. However, the Rules of Procedure have been published continuously in the website of the Senate since at least the 13th Congress. In addition, the Senate makes the Rules of Procedure available to the public in pamphlet form.

    Petitioner assails the validity of the Rules of Procedure because they have not been duly published for the 14th Congress.[80] Respondents counter that the Senate is a continuing legislative body. Respondents argue that as a continuing body, the Senate does not have to republish the Rules of Procedure because publication of the Rules of Procedure in the 13th Congress dispenses with republication of the Rules of Procedure in subsequent Congresses. The issue then turns on whether the Senate under the 1987 Constitution is a continuing body.

    In Arnault v. Nazareno,[81] decided under the 1935 Constitution, this Court ruled that "the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation." To act as a legislative body, the Senate must have a quorum, which is a majority of its membership.[82] Since the Senate under the 1935 Constitution always had two-thirds of its membership filled up except for vacancies arising from death or resignation, the Senate always maintained a quorum to act as a legislative body. Thus, the Senate under the 1935 Constitution continued to act as a legislative body even after the expiry of the term of one-third of its members. This is the rationale in holding that the Senate under the 1935 Constitution was a continuing legislative body.[83]

    The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a quorum to do business."[84] Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators.

    The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Tañada v. Tuvera[85] ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation,"[86] precluding any other form of publication. Publication in accordance with Tañada is mandatory to comply with the due process requirement because the Rules of Procedure put a person's liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate.

    Due process requires that "fair notice" be given to citizens before rules that put their liberty at risk take effect. The failure of the Senate to publish its Rules of Procedure as required in Section 22, Article VI of the Constitution renders the Rules of Procedure void. Thus, the Senate cannot enforce its Rules of Procedure.

  5. Whether the Senate Committees Validly Ordered the Arrest of Petitioner

    The Senate and its investigating committees have the implied power to cite in contempt and order the arrest of a witness who refuses to appear despite the issuance of a subpoena. The Senate can enforce the power of arrest through its own Sergeant-at-Arms. In the present case, based on the Minutes of Meetings and other documents submitted by respondents, the majority of the regular members of each of the respondent Committees voted to cite petitioner in contempt and order his arrest. However, the Senate's Order of 30 January 2008 citing petitioner in contempt and ordering his arrest is void due to the non-publication of the Rules of Procedure.[87]

    The arrest of a citizen is a deprivation of liberty. The Constitution prohibits deprivation of liberty without due process of law. The Senate or its investigating committees can exercise the implied power to arrest only in accordance with due process which requires publication of the Senate's Rules of Procedure. This Court has required judges to comply strictly with the due process requirements in exercising their express constitutional power to issue warrants of arrest.[88] This Court has voided warrants of arrest issued by judges who failed to comply with due process. This Court can do no less for arrest orders issued by the Senate or its committees in violation of due process.

  6. Conclusion

    In summary, the issues raised in this petition should be resolved as follows:

    1. Executive Secretary Ermita's invocation of executive privilege in his letter of 15 November 2007 to the Senate Committees is void because (1) executive privilege cannot be used to hide a crime; (2) the invocation of executive privilege lacks specificity; and (3) the three questions for which executive privilege is claimed can be answered without disclosing confidential Presidential communications or diplomatic secrets.

    2. The Senate's Rules of Procedure are void for lack of publication; and

    3. The Senate Committees' Order of 30 January 2008 citing petitioner in contempt and directing his arrest is void for lack of published rules governing the conduct of inquiries in aid of legislation.
Accordingly, I DISSENT from the majority opinion's ruling that the three questions are covered by executive privilege. However, I CONCUR with the majority opinion's ruling that the Rules of Procedure are void. Hence, I vote to GRANT the petition in part by (i) declaring void the assailed Order of respondents dated 30 January 2008 citing petitioner Secretary Romulo L. Neri in contempt and directing his arrest, and (ii) ordering respondents to desist from citing in contempt or arresting petitioner until the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation are duly published and have become effective.



[1] Rollo, pp. 3-10. Under Rule 65 of the Rules of Court.

[2] Id. at 26-32.

[3] Headed by Senator Alan Peter S. Cayetano as Chair.

[4] Headed by Senator Mar Roxas as Chair.

[5] Headed by Senator Rodolfo G. Biazon as Chair.

[6] Respondents' Comment dated 14 February 2008

[7] Id.

[8] Rollo, pp. 15-16.

[9] Id. at 17-18.

[10] Id. at 12-13. The show cause letter reads:
Dear Mr. Neri:

A Subpoena Ad Testificandum has been issued and was duly received and signed by a member of your staff on 15 November 2007.

You were required to appear before the Senate Blue Ribbon hearing at 10:00 a.m. on 20 November 2007 to testify on the Matter of:

P.S. RES. NO. 127 BY SENATOR AQUILINO PIMENTEL, JR. (Resolution Directing The Blue Ribbon Committee and the Committee On Trade And Industry To Investigate, In Aid Of Legislation, The Circumstances Leading To The Approval of the Broadband Contract With The ZTE and The Role Played By The Officials Concerned In Getting It Consummated, and To Make Recommendations To Hale To The Courts of Law, The Persons Responsible For Any Anomaly In Connection Therewith and To Plug Loopholes, If Any, In The BOT Law and Other Pertinent Legislations); P.S. RES. NO. 129 BY SENATOR PANFILO M. LACSON (Resolution Directing The Committee On National Defense And Security To Conduct An Inquiry In Aid Of Legislation Into The National Security Implications Of Awarding The National Broadband Network Contract To The Chinese Firm Zhong Xing Telecommunications Equipment Company Limited [ZTE Corporation], With The End In View Of Providing Remedial Legislation That Will Further Protect Our National Sovereignty And Territorial Integrity); PRIVILEGE SPEECH OF SENATOR PANFILO M. LACSON entitled "LEGACY OF CORRUPTION" delivered on 11 September 2007; P.S. RES. NO. 136 BY SENATOR MIRIAM DEFENSOR SANTIAGO (Resolution Directing The Proper Senate Committee To Conduct An Inquiry, In Aid Of Legislation, On the Legal and Economic Justification Of The National Broadband Network [NBN] Project Of The Government); PRIVILEGE SPEECH OF SENATOR MIRIAM DEFENSOR SANTIAGO entitled "INTERNATIONAL AGREEMENTS IN CONSTITUTIONAL LAW: THE SUSPENDED RP-CHINA (ZTE) LOAN AGREEMENT" delivered on 24 September 2007; P.S. RES NO. 144 BY SENATOR MAR ROXAS (Resolution Urging President Gloria Macapagal Arroyo to direct the Cancellation of the ZTE Contract).

Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.
[11] Id. at 19.

[12] The arrest order reads:
ORDER


For failure to appear and testify in the Committees's hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007 and Tuesday, November 20, 2007, despite personal notice and a Subpoena[s] Ad Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007, herein attached) ROMULO L. NERI is hereby cited in contempt of th[ese] Committees and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until such time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty four (24) hours from its enforcement.

SO ORDERED.
[13] 433 Phil. 506 (2002).

[14] Marcos v. Manglapus, G.R. No. 88211, 15 September 1989, 177 SCRA 668, and 27 October 1989, 178 SCRA 760. In resolving the motion for reconsideration, the Court cited Myers v. United States (272 U.S. 52 [1926]) where Chief Justice William H. Taft (a former U.S. President and Governor-General of the Philippines), writing for the majority, ruled: "The true view of the Executive function is x x x that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as necessary and proper for its exercise." The principle that power can be implied if "necessary and proper" to carry out a power expressly granted in the Constitution is now a well-settled doctrine.

[15] 418 U.S. 683 (1974).

[16] Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW, Vol. 1, p. 784 (3rd Edition).

[17] Supra note 13.

[18] 433 Phil. 506 (2002).

[19] Supra note 13.

[20] Section 18, Article VII, Constitution.

[21] Section 1, Article VII, Constitution.

[22] Section 17, Article VII, Constitution.

[23] Section 21, Article VII, Constitution.

[24] Section 28, Article II, Constitution.

[25] Section 7, Article III, Constitution.

[26] Section 1, Article XI, Constitution.

[27] Section 21, Article VI, Constitution.

[28] Sections 1 and 5, Article VIII, Constitution. See also United States v. Nixon, supra note 15.

[29] Senate v. Ermita, supra note 13.

[30] United States v. Nixon, supra note 15; Clinton v. Jones, 520 U.S. 681 (1997).

[31] Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004).

[32] United States v. AT&T, 551 F.2d 384, 394 (D.C. Cir. 1976). The Court stated: "Before moving on to a decision of such nerve-center constitutional questions, we pause to allow for further efforts at a settlement. x x x This dispute between the legislative and executive branches has at least some elements of the political-question doctrine. A court decision selects a victor, and tends thereafter to tilt the scales. A compromise worked out between the branches is most likely to meet their essential needs and the country's constitutional balance." See also United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977). The Court stated: "The framers, rather than attempting to define and allocate all governmental power in minute detail, relied, we believe, on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. This aspect of constitutional scheme avoids the mischief of polarization of disputes x x x."

[33] Section 1, Article VIII, Constitution.

[34] Nixon v. Administrator of General Services Administration, 433 U.S. 425 (1977).

[35] McGrain v. Daugherty, 273 U.S. 135, 179-180 (1927). The U.S. Supreme Court declared: "Nor do we think it a valid objection to the investigation that it might possibly disclose crime or wrongdoing x x x."

[36] Section 17, Article VII, Constitution.

[37] Nixon v. Administrator of General Services, supra note 34.

[38] United States v. Nixon, supra note 15.

[39] Id.

[40] Section 1, Article VII, Constitution.

[41] Senate v. Ermita, supra note 13.

[42] Id. In Senate v. Ermita, the Court quoted Smith v. Federal Trade Commission (403 F. Supp. 1000 [1975]), thus: "[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby preventing the Court from balancing such harm against plaintiffs' need to determine whether to override any claims of privilege." The Court also quoted U.S. v. Article of Drug (43 F.R.D. 181, 190 [1976]), thus: "Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based must be established."

[43] United States v. Nixon, supra note 15. Professor Lawrence H. Tribe summarizes that "documents defended only by broad claim of confidentiality must be turned over to district court for in camera inspection to assess relevance." Supra note 16, footnote 35 at 775.

[44] Toten v. United States, 92 U.S. 105 (1876).

[45] Republic Act No. 2338. Section 282 of the present Tax Code is now silent on the confidentiality of the identity of the informer.

[46] Section 7, Article III, Constitution; Chavez v. Public Estates Authority, 433 Phil. 506, 531-532 (2002). The Court stated: "Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition."

[47] McGrain v. Daugherty, supra note 35 at 174-175. The U.S. Supreme Court stated: "We are of opinion that the power of inquiry - with process to enforce it - is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American Legislatures before the Constitution was framed and ratified. x x x

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information - which not infrequently is true - recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed."

[48] Section 21, Article VI, Constitution which provides: "The Senate or the House of Representatives or any of its respective committees 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."

[49] McGrain v. Daugherty, supra note 35 at 177. The U.S. Supreme Court stated: "It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice - whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers; specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year."

[50] Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509 (1975). The U.S. Supreme Court declared: "To be a valid legislative inquiry there need be no predictable end result."

[51] Watkins v. United States, 354 U.S. 178, 187 (1957). The U.S. Supreme Court declared: "[T]he power of Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste." (Emphasis supplied)

[52] Supra note 16 at 790-791. Professor Tribe comments thus: "xxx it is important to note an implicit or ancillary power belonging to Congress that is at times every bit as important as the power to which it is supposedly appurtenant. That, of course, is the power of investigation, typically and most dramatically exemplified by hearings, some of them in executive session but most of them in the glare of klieg lights and with the whole nation watching. Such investigations have served an important role in ventilating issues of profound national concern."; Louis Fisher & David Gray Adler, AMERICAN CONSTITUTIONAL LAW, p. 227 (7th Edition). Fisher and Adler write: "Oversight is not subordinate to legislation."

[53] Section 21, Article VI, Constitution.

[54] Section 17, Article III, Constitution.

[55] Section 3(1), Article III, Constitution.

[56] Kilbourn v. Thompson, 103 U.S. 168 (1880).

[57] Watkins v. United States, 354 U.S. 178 (1957).

[58] Article 183, Revised Penal Code.

[59] Watkins v. United States, supra note 57.

[60] Arnault v. Nazareno, 87 Phil. 29 (1950).

[61] McGrain v. Daugherty, supra note 35. See also Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, G.R. No. 72492, 5 November 1987, 155 SCRA 421, which ruled that local government legislative councils have no inherent power to enforce by compulsion their power of inquiry in aid of ordinance-making.

[62] Arnault v. Balagtas, 97 Phil. 358, 370 (1955). The Court stated: "When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity."

[63] Lopez v. De los Reyes, 55 Phil. 170 (1930).

[64] Arnault v. Nazareno, supra note 60.

[65] McGrain v. Daugherty, supra note 35 at 172. The U.S. Supreme Court quoted In re Chapman (166 U.S. 661), thus: "We grant that Congress could not divest itself, or either of its houses, of the essential and inherent power to punish for contempt, in cases to which the power of either house properly extended; x x x."; Lopez v. De los Reyes, supra note 63. The Court stated that "the Philippine Legislature could not divest either of its Houses of the inherent power to punish for contempt."

[66] Section 2, Article III, Constitution.

[67] Lopez v. De los Reyes, supra note 63 at 179-180. The Court declared that the Legislature's "power to punish for contempt rests solely upon the right of self-preservation."; Negros Oriental II Electric Cooperative v. Sangguniang Panlungsod of Dumaguete, supra note 61 at 430. The Court stated: "The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts thereof."

[68] Section 1, Article VI, Constitution.

[69] Lopez v. De los Reyes, supra note 63.

[70] Marcos v. Manglapus, supra note 14.

[71] Lopez v. De los Reyes, supra note 63 at 178. The Court declared: "x x x In the second place, the same act could be made the basis for contempt proceedings and for a criminal prosecution. It has been held that a conviction and sentence of a person, not a member, by the House of Representatives of the United States Congress, for an assault and battery upon a member, is not a bar to a subsequent criminal prosecution by indictment for the offense. (U.S. vs. Houston [1832], 26 Fed. Cas., 379.) In the third place, and most important of all, the argument fails to take cognizance of the purpose of punishment for contempt, and of the distinction between punishment for contempt and punishment for crime. Let us reflect on this last statement for a moment. The implied power to punish for contempt is coercive in nature. The power to punish crimes is punitive in nature. The first is a vindication by the House of its own privileges. The second is a proceeding brought by the State before the courts to punish offenders. The two are distinct, the one from the other."; Arnault v. Balagtas, supra note 62 at 370. The Court declared: "The process by which a contumacious witness is dealt with by the legislature in order to enable it to exercise its legislative power or authority must be distinguished from the judicial process by which offenders are brought to the courts of justice for the meting of the punishment which the criminal law imposes upon them. The former falls exclusively within the legislative authority, the latter within the domain of the courts; because the former is a necessary concomitant of the legislative power or process, while the latter has to do with the enforcement and application of the criminal law."

[72] United States v. Nixon, supra note 15.

[73] Section 1, Article XI, Constitution.

[74] Senate v. Ermita, supra note 13.

[75] Senate v. Ermita, supra note 13.

[76] Atty. Antonio R. Bautista.

[77] Section 2, Chapter 1, Title 1, Book IV, Revised Administrative Code of 1987.

[78] Atty. Paul Lantejas.

[79] Section 22, Article VI, Constitution.

[80] Petitioner's Supplemental Petition dated 1 February 2008 and Petitioner's Memorandum dated 14 March 2008.

[81] Supra note 60.

[82] Section 10(2), Article VI, 1935 Constitution; Section 16(2), Article VI, 1987 Constitution. Both the 1935 and 1987 Constitutions provide that "[A] majority of each House shall constitute a quorum to do business."

[83] See also Attorney General Ex. Rel. Werts v. Rogers, et al, 56 N.J.L. 480, 652 (1844). The Supreme Court of New Jersey declared: "[T]he vitality of the body depends upon the existence of a quorum capable of doing business. That quorum constitutes a senate. Its action is the expression of the will of the senate, and no authority can be found which states any other conclusion. All difficulty and confusion in constitutional construction is avoided by applying the rule x x x that the continuity of the body depends upon the fact that in the senate a majority constitutes a quorum, and, as there is always more than a quorum of qualified senators holding seats in that body, its organic existence is necessarily continuous. x x x The senate of the United States remains a continuous body because two-thirds of its members are always, in contemplation of the constitution, in existence."

[84] Section 16(2), Article VI, Constitution.

[85] 230 Phil. 528 (1986), reiterated in National Electrification Administration, v. Gonzaga, G.R. No. 158761, 4 December 2007; NASECORE v. Energy Regulatory Commission, G.R. No. 163935, 2 February 2006, 481 SCRA 480; Dadole v. Commission on Audit, 441 Phil. 532 (2002).

[86] Section 24, Rules of Procedure Governing Inquiries in Aid of Legislation.

[87] Section 18, on Contempt, of the Rules of Procedure provides: "The Committee, by a vote of a majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively. A contempt of the Committee shall be deemed a contempt of the Senate. Such witness may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself of that contempt."

[88] Allado v. Diokno, G.R. No. 113630, 5 May 1994, 232 SCRA 192; Abdula v. Guiani, 382 Phil. 757 (2000).




CONCURRING OPINION


CORONA, J.:


The ... deal which gave rise to petitioner's examination by a committee of the Senate was one that aroused popular indignation as few cases of graft and corruption have....

All the more necessary it is that we should approach the consideration of this case with circumspection, lest the influence of strong public passions should get the better of our judgment. It is trite to say that public sentiment fades into insignificance before a proper observance of constitutional processes, the maintenance of the constitutional structure, and the protection of individual rights. Only thus can a government of laws, the foundation stone of human liberty, be strengthened and made secure for that very public.[1]

The history of liberty has largely also been a chronicle of the observance of procedural safeguards. [2] The annihilation of liberty, on the other hand, often begins innocently with a relaxation of those safeguards "in the face of plausible-sounding governmental claims of a need to deal with widely frightening and emotion-freighted threats to the good order of society."[3]

With this in mind, I wish to address an aspect of this case distinct from but nonetheless just as important as the burning issue of executive privilege that is engrossing and deeply dividing the nation. This cannot be relegated to the sidelines as the Court settles the raging conflict between the executive and legislative departments.

In the middle of the struggle for power stands petitioner Romulo L. Neri, the man in the eye of the storm. As Citizen Neri, he has rights guaranteed by the Constitution. In other words, in the case of Neri as an individual and as a citizen, liberty is at stake. And individual liberty can never be overlooked, disregarded or taken for granted. Under our fundamental law, the constitution of liberty precedes the constitution of government. Thus, it is the Court's high duty not only to arbitrate the intense tug-of-war between the political branches but, more importantly, to keep the bell of liberty tolling amidst the noise of political turmoil.

FACTUAL BACKDROP

The Senate, through respondent Committees (the Senate Committees on Accountability of Public Officers and Investigations [Blue Ribbon Committee], on Trade and Commerce and on National Defense and Security), began an inquiry into the allegedly anomalous national broadband network (NBN) project. Respondent Committees vowed to pursue the truth behind the NBN project and what they believed to be the allegedly disadvantageous contract between the Republic of the Philippines, represented by the Department of Transportation and Communications, and Zhing Xing Telecommunications Equipment (ZTE). Respondent Committees claimed they wished to overhaul the purported "dysfunctional government procurement system."

In connection with the legislative inquiry, Neri was issued an invitation to attend respondent Committees' proceedings to shed light on the NBN project and explain the government's agreement with ZTE. Neri honored the invitation and attended the hearing on September 26, 2007. For 11 hours, he testified on matters which he personally knew, except on those matters which he believed to be covered by executive privilege.

On November 13, 2007, respondent Committees issued a subpoena ad testificandum to Neri requiring him to appear before them and to testify again on November 20, 2007.

In a letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested Senator Alan Peter S. Cayetano, chairman of respondent Blue Ribbon Committee,[4] to dispense with the testimony of Neri on the ground of executive privilege which he (as Executive Secretary) was invoking "by order of the President."

As he was ordered by the President not to appear before respondent Committees, Neri did not attend the November 20, 2007 hearing. But respondent Committees issued an order dated November 22, 2007 directing Neri to show cause why he should not be cited in contempt under Section 6, Article 6 of the Rules of the Blue Ribbon Committee for his non-appearance in the November 20, 2007 hearing. In response, Neri submitted his explanation in a letter dated November 29, 2007. On December 7, 2007, he filed this petition for certiorari with prayer for the issuance of a temporary restraining order and/or preliminary injunction assailing the November 22, 2007 show cause order for having been issued with grave abuse of discretion.

Neri's explanation and this petition notwithstanding, respondent Committees cited him in contempt in an order dated January 30, 2008. They ordered his arrest and detention until such time that he should appear and testify.

STRICT OBSERVANCE OF RULES OF PROCEDURE GOVERNING LEGISLATIVE INQUIRIES

Section 21, Article VI of the Constitution provides:
Section 21. The Senate or the House of Representatives or any of its respective committees 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. (emphasis supplied)
This recognizes the power of Congress to conduct inquiries in aid of legislation. This power is intimately connected with the express power of legislation and does not even have to be expressly granted.[5] Nonetheless, the drafters of the Constitution saw it fit to include a provision that would clearly spell out this power. The incorporation of the rule on legislative inquiry in the Constitution, however, was not intended to authorize the conduct of such inquiries but to limit them[6] and to forestall possible abuse. On this account, Justice Isagani Cruz commented:
The reason is that in the past this power was much abused by some legislators who used it for illegitimate ends or to browbeat or intimidate witnesses, usually for grandstanding purposes only. There were also times when the subject of the inquiry was purely private in nature and therefore outside the scope of the powers of the Congress.

To correct these excesses, it is now provided that the legislative inquiry must be in aid of legislation, whether it be under consideration already or still to be drafted. Furthermore, the conduct of the investigation must be strictly in conformity with the rules of procedure that must have been published in advance for the information and protection of the witnesses.[7] (emphasis supplied)
Section 21, Article VI regulates the power of Congress to conduct legislative investigations by providing a three-fold limitation: (1) the power must be exercised in aid of legislation; (2) it must be in accordance with the duly published rules of procedure and (3) the rights of persons appearing in or affected by such inquiries shall be respected.

The first limitation ensures that no person can be punished for contumacy as a witness unless his testimony is required in a matter which Congress or any of its committees has jurisdiction to inquire into.[8] This is an essential element of the jurisdiction of the legislative body.[9]

The second limitation means that either House of Congress or any of its committees must follow its duly published rules of procedure. Violation of the rules of procedure by Congress or any of its committees contravenes due process.[10]

The third limitation entails that legislative investigation is circumscribed by the Constitution, particularly by the Bill of Rights. As such, this limitation does not create a new constitutional right. [11] It simply underscores fundamental rights such as the rights against self-incrimination, unreasonable searches and seizures and to demand that Congress observe its own rules as part of due process.[12] Thus, the respected American constitutional scholar Lawrence H. Tribe observed:
Although only loosely restricting the substantive scope of congressional investigations, [Congress is required] to adopt important procedural safeguards in the conduct of its investigations. Because the Bill of Rights limits the lawmaking process as well as the content of resulting legislation, congressional investigators must respect the Fifth Amendment privilege against compelled self-incrimination, the Fourth Amendment prohibition against unreasonable searches and seizures, and the requirement of due process that, if government actors promulgate rules limiting their own conduct, they must comply with such rules.[13] (emphasis supplied)
In this case, the Senate promulgated Rules of Procedure of the Senate Governing Inquiries in Aid of Legislation (Rules of Procedure of the Senate) as well as the Rules of the Committee on Accountability of Public Officers and Investigations (Rules of the Blue Ribbon Committee) pursuant to Section 21, Article VI. These rules of procedure serve as procedural safeguards in legislative investigations. They guarantee that proceedings are orderly, effective and efficient. More importantly, they shield the witnesses appearing before the Senate or its committees from unnecessary, unreasonable or arbitrary action on the part of the inquiring body or its members. Hence, they are the standards upon which the validity of any action undertaken by the Senate or its committees shall be measured.

The rules of procedure are required to be promulgated and published not so much to impose a duty on the witness appearing in a legislative inquiry but to enforce restrictions on Congress regarding the manner it conducts its inquiry. Thus, the Senate or any of its committees are bound to observe the very rules they themselves established to govern their own conduct. Since this obligation is imposed by the Constitution itself, it cannot be ignored, trifled with or violated without transgressing the fundamental law.

In sum, Congress has the inherent power to conduct inquiries in aid of legislation. However, as a condition for the exercise of this power, the Constitution requires Congress to lay down and publish specific and clear rules of procedure. No action which affects the substantial rights of persons appearing in legislative inquiries may be taken unless it is in accordance with duly published rules of procedure. In other words, before substantial rights may be validly affected, Congress or its committees must faithfully follow the relevant rules of procedure relating to it. This will ensure the constitutional intent of respect for the rights of persons appearing in or affected by legislative inquiries. In the absence of a rule of procedure on any matter which is the subject of a legislative inquiry, any action which impinges on substantial rights of persons would be unconstitutional.

ABSENCE OF POWER TO ORDER ARREST

The gravity of the consequences of respondent Committees' order to arrest Neri allegedly for being in contempt cannot be underestimated. It poses a serious threat to his liberty.

The Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee do not state that respondent Committees have the power to issue an order of arrest. Such omission is fatal to respondent Committees' cause. It negates their claim that the order to arrest Neri is valid, lawful and constitutional.

As stated previously, the second constitutional limitation to the power of legislative investigation is the promulgation and publication of rules of procedure that will serve as guidelines in the exercise of that power. Respondent Committees transgressed this constitutional constraint because there is no rule of procedure governing the issuance of an order of arrest.

Under the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee, respondent Committees are authorized only to detain a witness found guilty of contempt. On the other hand, nowhere does the word "arrest" appear in either rules of procedure.

There is a whale of a difference between the power to detain and the power to arrest.

To detain means to hold or keep in custody.[14] On the other hand, to arrest means to seize, capture or to take in custody by authority of law. [15] Thus, the power to detain is the power to keep or maintain custody while the power to arrest is the power to take custody. The power to detain implies that the contumacious witness is in the premises (or custody) of the Senate and that he will be kept therein or in some other designated place. In contrast, the power to arrest presupposes that the subject thereof is not before the Senate or its committees but in some other place outside.

The distinction is not simply a matter of semantics. It is substantial, not conceptual, for it affects the fundamental right to be free from unwarranted governmental restraint.

Since the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee speak only of a power to order the detention of a contumacious witness, it cannot be expanded to include the power to issue an order of arrest. Otherwise, the constitutional intent to limit the exercise of legislative investigations to the procedure established and published by the Senate or its committees will be for naught.

In this connection, respondent Committees cannot rely on Arnault v. Nazareno to justify the order to arrest Neri. Arnault was explicit:
Like the Constitution of the United States, ours does not contain an express provision empowering either of the two Houses of Congress to punish nonmembers for contempt. It may also be noted that whereas in the United States the legislative power is shared between the Congress of the United States, on the one hand, and the respective legislatures of the different States, on the other -- the powers not delegated to the United States by the Constitution nor prohibited by it to States being reserved to the states, respectively, or to the people -- in the Philippines, the legislative power is vested in the Congress of the Philippines alone. It may therefore be said that the Congress of the Philippines has a wider range of legislative field than the Congress of the Unites States or any State Legislature.

Our form of government being patterned after the American system -- the framers of our Constitution having been drawn largely from American institution and practices -- we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our Constitution, as we have done in other cases in the past.

Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. 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 the legislations 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. (McGrain vs. Daugherty, 273 U.S., 135; 71 L. ed., 580; 50 A. L. R., 1.) The fact that the Constitution expressly hives to congress the power to punish its Members for disorderly behaviour, does not by necessary implication exclude the power to punish for contempt any other person. (Anderson vs. Dunn, 6 Wheaton. 204; 5 L ed., 242.)[16] (emphasis supplied)
Arnault was decided under the 1935 Constitution in which Section 21, Article VI of the 1987 Constitution has no counterpart. Since there was no provision on legislative inquiry at that time, Arnault defined and delimited the power "partly by drawing from American precedents and partly by acknowledging the broader legislative power of the Philippine Congress as compared to the U.S. Federal Congress which shares legislative power with the legislatures of the different states of the American union."[17]

Under the 1987 Constitution, however, the power has been expressly subjected to three limitations. Thus, while Congress cannot be deprived of its inherent contempt power (and the corollary power to order the arrest of a contumacious party) in relation to legislative investigations, the power must be wielded subject to constitutional constraints. In this case, the Senate or any of its committees may order the arrest of a contemnor only in accordance with its duly published rules of procedure. In the absence of a provision stating how, why and when arrest may be ordered, no order of arrest may validly be issued.

Nor can respondent Committees seek refuge in Senate v. Ermita.[18] In that case, the Court declared:
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House's duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure.
An action as critical and as significant as an order of arrest must be done strictly in accordance with a specific provision in the duly published rules of procedure. Otherwise, it is constitutionally invalid.

This interpretation does not unduly emasculate the power to conduct legislative investigations. Any evisceration results not from an interpretation which hews closely to the language of the Constitution but rather from the manifest failure to establish rules of procedure on a matter that infringes on the individual's liberty.

LACK OF SANCTION ON REFUSAL OR FAILURE TO OBEY SUBPOENA AD TESTIFICANDUM

Neri was ordered arrested and detained allegedly for contempt because of his refusal or failure to comply with a subpoena ad testificandum. However, a careful reading of the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee shows that they do not provide for a sanction on the refusal or failure to obey a subpoena ad testificandum. Respondent Committees are authorized to detain a person only in the exercise of their contempt power. Section 18 of the Rules of Procedure of the Senate and Section 6, Article 6 of the Rules of the Blue Ribbon Committee respectively provide:
Sec. 18. Contempt

The Committee, by a vote of a majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively. A contempt of the Committee shall be deemed a contempt of the Senate. Such witness may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself on that contempt. (emphasis supplied)

-- ∞ -- -- ∞ -- -- ∞ --

SECTION 6. Contempt - (a) The Committee, by a vote of a majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee, including refusal to produce documents pursuant to a subpoena duces tecum, or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively. A contempt of the Committee shall be deemed a contempt of the Senate. Such witness may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself on that contempt.

(b) A report of the detention of any person for contempt shall be submitted by the Sergeant-at-Arms to the Committee and the Senate. (emphasis supplied)
The absence of a provision penalizing refusal or failure to comply with a subpoena ad testificandum should be interpreted against respondent Committees. Neri cannot be punished for contempt for lack of, again, the requisite published rules of procedure.

This deficiency becomes all the more pronounced when compared to Section 9, Rule 21 of the Rules of Court:
SEC. 9. Contempt. - Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.
The contempt provision of Rule 21 expressly penalizes the unwarranted failure to obey a subpoena (whether ad testificandum or duces tecum) as contempt of court. In contrast, the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee cover only the following acts of a witness before it: disobedience of any committee order including refusal to produce documents pursuant to a subpoena duces tecum, refusal to be sworn or to testify or to answer a proper question and giving of false or evasive testimony.

LIMITED SCOPE OF POWER TO PUNISH FOR CONTEMPT

In relation to legislative investigations, the contempt power of Congress or its committees is recognized as an essential and appropriate auxiliary to the legislative function.[19] However, the power to punish for contempt is not limitless. It must be used sparingly with caution, restraint, judiciousness, deliberation and due regard to the provisions of the law and the constitutional rights of the individual.[20] Strict compliance with procedural guidelines governing the contempt power is mandatory[21]

Pursuant to the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee, the proper subject of the contempt power is "any witness before" the concerned committee(s) of the Senate. This means that the witness must be in attendance or physically present at the legislative inquiry. It is in this context (and this context alone) that the respective provisions of the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee speak of the witness's disobedience of any committee order, refusal to be sworn or to testify or to answer a proper question and giving of false or evasive testimony. Likewise, it is only in accordance with such premise that a witness may be ordered detained.

In this case, Neri was not before the respondent Committees. That was why respondent Committees ordered his arrest. Indeed, the subpoena ad testificandum issued to Neri commanded him to appear and testify before the Blue Ribbon Committee on November 20, 2007. The December 2, 2007 show cause order was issued because he "failed to appear" in the November 20, 2007 hearing while the January 30, 2008 arrest order was issued on account of his "failure to appear and testify."

Respondent Committees try to downplay the nature of their contempt power as "coercive, not punitive." However, the language of the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee indicates otherwise. The respective provisions on contempt identically state that respondent Committees "may punish for contempt." Thus, the contempt power of respondent Committees is meant as a punishment, not merely as an instrument of coercion. And something which inflicts a punishment or penalty is punitive.[22]

Moreover, while the contempt power of the legislature is sui generis,[23] it is analogous to that exercised by courts of justice.[24] As a rule, proceedings against a purported contemnor are commonly treated as criminal in nature.[25] This being so, the order holding Neri in contempt for his alleged failure or refusal to obey a subpoena ad testificandum notwithstanding the absence of duly promulgated rules of procedure on that matter was tantamount to an ex post facto act.

The power to declare a person in contempt has serious implications on the rights of the supposed contemnor, particularly on his liberty. Thus, when a committee rule relates to a matter of such importance, it must be strictly observed.[26]

A FINAL WORD

The hands that wield the power of legislative investigations are powerful. Section 21, Article VI of the Constitution cushions the impact by providing substantive as well as procedural limitations. Unfortunately, in Machiavellian fashion, respondent Committees disregarded the procedural safeguards purportedly in the name of truth and good governance. In so doing, they dealt a devious blow not only on Neri but also on our cherished traditions of liberty.

Accordingly, I vote to GRANT the petition.



[1] Arnault v. Nazareno, 87 Phil. 29 (1950), Justice Pedro Tuason, dissenting.

[2] McNabb v. United States, 318 U.S. 332 (1943).

[3] Amsterdam, Anthony G., Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 354 (1973).

[4] The lead committee in the joint legislative inquiry.

[5] Cruz, Isagani A., PHILIPPINE POLITICAL LAW, 2002 edition, Central Lawbook Publishing Co., Inc., p. 163.

[6] Id.

[7] Id., pp. 163-164.

[8] Arnault v. Nazareno, supra note 1.

[9] Bernas S.J., Joaquin G., The 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 2003 edition, Rex Bookstore, Inc., p. 737.

[10] Id., p. 740.

[11] Id.

[12] Id., pp. 740-741.

[13] Tribe, LAWRENCE H., I AMERICAN CONSTITUTIONAL LAW 794-795 (2000).

[14] Webster's Third New International Dictionary, 1993 edition, p. 616.

[15] Id., p. 121.

[16] Id. The principle was further explained in Arnault v. Balagtas (97 Phil. 358 [1955]):
The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information or, which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity . (emphasis supplied)
[17] Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, G.R. No. L-72492, 05 November 1987, 155 SCRA 421.

[18] G.R. Nos. 169777/169659/169660/169667/169834/171246, 20 April 2006.

[19] Arnault v. Nazareno, supra; Senate v. Ermita, supra.

[20] Regalado v. Go, G.R. No. 167988, February 6, 2007.

[21] Id.

[22] See Black's Law Dictionary, 4th edition, p. 1399.

[23] Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, supra.

[24] Anderson v. Dunn, 19. U.S. [6 Wheat.] 204 (1821) cited in Sabio v. Gordon, G.R. Nos. 174340/ 174318/174177, 17 October 2006.

[25] Regalado v. Go, supra.

[26] Yellin v. United States, 374 U.S. 109; Gojack v. United States, 384 U.S. 702 (1966).






DISSENTING OPINION


CARPIO MORALES, J.:


Executive Order No. 464[1] (E.O. 464) practically became a dead letter upon the promulgation of Senate v. Ermita,[2] and was formally interred by Memorandum Circular No. 151.[3] Its ashes have since fertilized the legal landscape on presidential secrecy.

E.O. 464 allowed executive officials not to attend investigations conducted by Congress in aid of legislation by the mere invocation of that Order, without having to explain the specific reasons why the information being requested of them may not be disclosed. When, however, the Court in Senate v. Ermita[4] interpreted Section 1 of that Order as applying only to the "question period" and Section 2(a) as merely a non-binding expression of opinion, and invalidated Sections 2(b) and 3 for they allowed executive officials not to attend legislative investigations without need of an explicit claim of executive privilege, E.O. 464 became powerless as a shield against investigations in aid of legislation.

Thenceforth, to justify withholding information which, in their judgment, may be validly kept confidential, executive officials have to obtain from the President, or the Executive Secretary "by order of the President," a claim of executive privilege which states the grounds on which it is based.

The present petition for certiorari involves one such claim of executive privilege, the validity of which claim the Court is now called upon to determine.

Since September 2007, respondents Senate Committees on Accountability of Public Officers and Investigations (Blue Ribbon), on Trade and Commerce, and on National Defense and Security (Senate Committees) have been holding investigatory hearings, in aid of legislation, on the National Broadband Network (NBN) - Zhong Xing Telecommunications Equipment Ltd.[5] (ZTE) Contract.

On September 26, 2007, petitioner, Romulo Neri, former Director General of the National Economic and Development Authority, testified before the Senate Committees, during which he, invoking executive privilege, refused to answer questions on what he and the President discussed on the NBN-ZTE Project after the President told him not to accept what he perceived to have been a bribe offer from former COMELEC Chairman Benjamin Abalos.

Asked by senators on whether he had a written order from the President to invoke executive privilege, petitioner answered that one was being prepared. The hearing ended without him divulging any further information on his conversations with the President following his disclosure of the perceived bribe offer of Chairman Abalos.

Respondent Senate Committees then issued a subpoena ad testificandum dated November 13, 2007 for petitioner to appear in another hearing to be held on November 20, 2007 (November 20 hearing). In a November 15, 2007 letter, however, Executive Secretary Eduardo Ermita (Sec. Ermita), by order of the President, formally invoked executive privilege with respect to the following questions (the three questions) addressed to petitioner:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project after being told about the alleged bribe?[6]
Sec. Ermita then asked that petitioner's testimony be dispensed with, given that he had answered all questions propounded to him except the three questions which, so he claimed, involved executive privilege.

Petitioner having failed to appear on the November 20, 2007 hearing, the Senate Blue Ribbon Committee issued a Show Cause Order of November 22, 2007 for him to explain why he should not be cited for contempt. Petitioner personally replied via November 29, 2007 letter to the Senate Committees.

On December 7, 2007, petitioner filed the present petition for certiorari to nullify the Show Cause Order, praying for injunctive reliefs to restrain the Senate Committees from citing him in contempt. The Senate Committees thereafter issued an Order dated January 30, 2008 citing petitioner in contempt and ordering his arrest for his failure to appear, not only in the November 20 hearing, but also in three earlier Senate hearings to which he was also invited.[7]

On February 1, 2008, petitioner filed a Supplemental Petition for Certiorari to nullify the Senate's January 30, 2008 Order and prayed for urgent injunctive reliefs to restrain his impending arrest.

This Court issued a status quo ante order on February 5, 2008.

In his petition, petitioner alleges that his discussions with the President were "candid discussions meant to explore options in making policy decisions," citing Almonte v. Vasquez,[8] and "dwelt on the impact of the bribery scandal involving high [g]overnment 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."[9]

In sum, petitioner avers that the timely invocation of executive privilege upon the authority of the President was well within the parameters laid down in Senate v. Ermita.[10]

In determining whether the claim of privilege subject of the present petition for certiorari is valid, the Court should not lose sight of the fact that the same is only part of the broader issue of whether respondent Senate Committees committed grave abuse of discretion in citing petitioner in contempt and ordering his arrest.

As to that broader issue, there should be no doubt at all about its proper resolution. Even assuming arguendo that the claim of privilege is valid, it bears noting that the coverage thereof is clearly limited to the three questions. Thus limited, the only way this privilege claim could have validly excused petitioner's not showing up at the November 20 hearing was if respondent Committees had nothing else to ask him except the three questions. Petitioner assumed that this was so, but without any valid basis whatsoever. It was merely his inference from his own belief that he had already given an exhaustive testimony during which he answered all the questions of respondent Committees except the three.[11]

Petitioner harps on the fact that the September 26, 2007 hearing (September 26 hearing) lasted some 11 hours which length of hearing Sec. Ermita describes as "unprecedented,"[12] when actually petitioner was not the only resource person who attended that hearing, having been joined by Department of Transportation and Communications (DOTC) Secretary. Leandro Mendoza, Chairman Abalos, DOTC Assistant Secretary Lorenzo Formoso III, Vice Governor Rolex Suplico, Jose de Venecia III, Jarius Bondoc, and R.P. Sales.[13] And even if petitioner were the only resource person for the entire November 20 hearing, he would still have had no basis to believe that the only questions the senators were to ask him would all involve his conversations with the President. Surely, it could not have escaped his notice that the questions asked him during the September 26 hearing were wide ranging, from his professional opinion on the projected economic benefits of the NBN project to the role of the NEDA in the approval of projects of that nature.

Thus, insofar as petitioner can still provide respondent Committees with pertinent information on matters not involving his conversations with the President, he is depriving them of such information without a claim of privilege to back up his action. Following the ruling in Senate v. Ermita that "[w]hen Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege," petitioner had no legal basis for failing to appear in the November 20 hearing. He should have appeared in the hearing and refused to answer the three questions as they were asked. On that score alone, the petition should be dismissed.

Petitioner, however, claims that the power of respondent Committees to punish witnesses is limited to "direct contempt" for acts committed while present before these committees, and not for "indirect contempt," citing Section 18 of their Rules of Procedure Governing Inquiries in Aid of Legislation which seemingly limits the contempt power of the Senate to witnesses who are "before it."[14] It bears noting that petitioner raised this claim only in its January 30, 2007 letter to the Senate but not in its main and supplemental petitions before the Court. In fact, petitioner concedes to this incidental power to punish for contempt.[15]

At all events, the sui generis nature of the legislature's contempt power precludes such point of comparison with the judiciary's contempt power. The former is broad enough, nay, "full and complete" to deal with any affront committed against or any defiance of legislative authority or dignity, in the exercise of its power to obtain information on which to base intended legislation.

In another vein, petitioner claims that the Rules of Procedure Governing Inquiries in Aid of Legislation has not been published. Suffice it to state that the same argument was raised by the PCGG Commissioners who were petitioners in Sabio v. Gordon,[16] and the Court considered the same as inconsequential in light of the more significant issue calling for resolution therein, namely, whether Section 4(b) of E.O. No. 1 was repealed by the 1987 Constitution. The argument deserves the same scant consideration in the present case.

While it is clear that petitioner may validly be cited in contempt without any grave abuse of discretion on respondents' part - and this petition consequently dismissed on that ground - the Court cannot evade the question of whether the claim of privilege subject of this case is valid. The issue in this case does not have to do simply with the absence or presence of petitioner in respondents' hearings, but with the scope of the questions that may be validly asked of him.

The President does not want petitioner to answer the three questions on the ground of executive privilege. Respecting the specific basis for the privilege, Sec. Ermita states that the same questions "fall under conversations and correspondence between the President and public officials which are considered executive privilege."

Sec. Ermita goes on to state that "the context in which the privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China." Evidently, this statement was occasioned by the ruling in Senate v. Ermita that a claim of privilege may be valid or not depending on the ground invoked to justify it and the context in which it is made.

What was meant by "context" in Senate v. Ermita has more to do with the degree of need shown by the person or agency asking for information, than with additional reasons which the Executive may proffer for keeping the same information confidential Sec. Ermita apparently understood "context" in the latter sense and proceeded to point out circumstances that reinforced the claim of privilege.

Sec. Ermita's statement that disclosure of the information being asked by respondent Committees might impair our diplomatic and economic relations with China, albeit proffered as the context of his claim of the presidential communications privilege, is actually a claim of privilege by itself, it being an invocation of the diplomatic secrets privilege.

The two claims must be assessed separately, they being grounded on different public interest considerations. Underlying the presidential communications privilege is the public interest in enhancing the quality of presidential decision-making. As the Court held in the same case of Senate v. Ermita, "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." The diplomatic secrets privilege, on the other hand, has a different objective - to preserve our diplomatic relations with other countries.

Petitioner even asserts in his petition that his conversations with the President also involve military matters. This allegation, however, is too remote from the reasons actually stated by Sec. Ermita in his letter to be even considered as a basis for the claim of privilege. Evidently, it is an afterthought, either of petitioner or his counsel, which need not be seriously entertained.

Thus, two kinds of privilege are being claimed as basis to withhold the same information - the presidential communications privilege and the diplomatic secrets privilege. To sustain these claims of privilege, it must be evident from the implications of the questions, in the setting in which they are asked, that a responsive answer to these questions or an explanation of why they cannot be answered might be dangerous because injurious disclosure could result.[17] Whether the questions asked by respondent may lead to an injurious disclosure cannot, however, be determined without first having an accurate understanding of the questions themselves. For this purpose, these questions must be read in the context of the exchanges in the September 26 hearing, as recorded in the official transcript thereof.

Before petitioner invoked executive privilege in that hearing, he testified that Chairman Abalos offered him a bribe in relation to the NBN project while they were playing golf sometime in January or February of 2007.[18] Petitioner stated thus:
MR. NERI But we had a nice golf game. The Chairman was very charming, you know, and - but there was something that he said that surprised me and he said that, "Sec, may 200 ka dito." I believe we were in a golf cart. He was driving, I was seated beside him so medyo nabigla ako but since he was our host, I chose to ignore it.

THE SENATE PRESIDENT Ano'ng sinabi mo noong sabihin niyang 200?

MR. NERI As I said, and I guess I was too shocked to say anything, but I informed my NEDA staff that perhaps they should be careful in assessing this project viability and maybe be careful with the costings because I told them what happened, I mean, what was said to me.(Emphasis supplied)
Upon further questioning, petitioner shortly thereafter testified that he reported to the President what he perceived as Chairman Abalos' bribe offer, to wit:
SEN. LACSON. You were shocked, you said.

MR. NERI. Yeah, I guess, I guess.

SEN. LACSON. Bakit kayo na-shock?

MR. NERI. Well, I [am] not used to being offered.

SEN. LACSON. Bribed?

MR. NERI. Yeah. Second is, medyo malaki.

SEN. LACSON. In other words, at that point it was clear to you that you were being offered bribe money in the amount of 200 million, kasi malaki, sabi niyo?

MR. NERI. I said no amount was put, but I guess given the magnitude of the project, siguro naman hindi P200 or P200,00, (sic) so...

SEN. LACSON. Dahil cabinet official kayo, eh.

MR. NERI. I guess. But I - you know...

SEN. LACSON. Did you report this attempted bribe offer to the President?

MR. NERI. I mentioned it to the President, Your Honor.

SEN. LACSON. What did she tell you?

MR. NERI. She told me, "Don't accept it."

SEN. LACSON. And then, that's it?

MR. NERI. Yeah, because we had other things to discuss during that time.

SEN. LACSON. And then after the President told you, "Do not accept it," what did she do? How did you report it to the President? In the same context that it was offered to you?

MR. NERI. I remember it was over the phone, Your Honor.

SEN. LACSON. Hindi nga. Papaano ninyo ni-report, "Inoperan (offer) ako ng bribe na P200 million ni Chairman Abalos" or what? How did you report it to her?

MR. NERI. Well, as I said, "Chairman Abalos offered me 200 million for this."

SEN. LACSON. Okay. That clear?

x x x x

MR. NERI. I think so, Your Honor.

SEN. LACSON. And after she told, "Do not accept it," what did she do?

MR. NERI. I don't know anymore, Your Honor, but I understand PAGC investigated it or - I was not privy to any action of PAGC.

SEN. LACSON. You are not privy to any recommendations submitted by PAGC?

MR. NERI. No, Your Honor.

SEN. LACSON. How did she react, was she shocked also like you or was it just casually responded to as, "Don't accept it."

MR. NERI. It was over the phone, Your Honor, so I cannot see her facial expression.

SEN. LACSON. Did it have something to do with your change of heart, so to speak - your attitude towards the NBN project as proposed by ZTE?

MR. NERI. Can you clarify, Your Honor, I don't understand the change of heart?

SEN. LACSON. Because, on March 26 and even on November 21, as early as November 21, 2006, during the NEDA Board Cabinet Meeting, you were in agreement with the President that it should be pay as you use and not take or pay. There should be no government subsidy and it should be BOT or BOO or any similar scheme and you were in agreement, you were not arguing. The President was not arguing with you, you were not arguing with the President, so you were in agreement and all of a sudden nauwi tayo doon sa lahat ng - ang proposal all in violation of the President's guidelines and in violation of what you thought of the project.

MR. NERI. Well, we defer to the implementing agency's choice as to how to implement the project.

SEN. LACSON. Ah, so you defer to the DOTC.

MR. NERI. Basically, Your Honor, because they are the ones who can now contract out the project and in the process of contracting, they can also decide how to finance it.

SEN. LACSON. In other words, NEDA performed a ministerial job?

MR. NERI. No, Your Honor. Basically NEDA's job is to determine the viability. And as I said, after determining the viability, NEDA tells agency, "Go ahead and . . ."

SEN. LACSON. But it did not occur to you that you were violating the specific guidelines of the President on the scheme?

MR. NERI. I am not privy to the changes anymore, Mr. Chair, Your Honors.[19]
When he was asked whether he and the President had further discussions on the NBN project after he reported to her the alleged bribe offer, petitioner began invoking executive privilege, thus:
SEN. PANGILINAN. You mentioned that you mentioned this to the President. Did the President after that discussion over the phone, was this ever raised again, the issue of the 200 ka rito?

MR. NERI. We did not discuss it again, Your Honor.

SEN. PANGILINAN. With the President? But the issue of course, the NBN deal, was raised again? After that, between you and the President. Pinalow up (followed up) ba niya?

MR. NERI. May I claim executive privilege, Your Honor, because I think this already involves conversations between me and the President, Your Honor, because this is already confidential in nature.

x x x x

SEN. PANGILINAN. Well, you can assert it. But whether we will accept it or not is up to us, and then we can probably discuss it... However, I will tackle that at a later time.[20] (Emphasis and underscoring supplied)
Although petitioner answered many other questions subsequent to his invocation of the privilege, he kept on invoking the privilege whenever, in his judgment, the questions touched on his further conversations with the President on the NBN project. Hereunder is the exchange of Senator Legarda and petitioner, quoted extensively so as to provide the context of petitioner's invocation of executive privilege in this particular instance:
SEN. LEGARDA. And when you expressed that support to AHI, does this mean the exclusion of all other proponents on the broadband project?

MR. NERI. Not at all, Your Honor. In effect, I'm telling him [Jose De Venecia III], "I think it's a great idea, please proceed." But as I said, Your Honor, we never process private sector . . .

SEN. LEGARDA. Suppliers contracts.

MR. NERI. Yeah, we do not.

SEN. LEGARDA. Okay, very clear.

Also in the letter of Chairman Ramon Sales, who is present here today, of the Commission of Information and Communications Technology [CICT] dated December 8, 2006 addressed to NEDA, he categorically stated and I quote: "That he cannot opine on the capability of the proponent" - referring to AHI which you had encouraged or supported earlier, two months earlier, to undertake the project referring to the broadband network financially and technically as AHI has not identified strategic partners. Do you confirm receipt of this letter?

MR. NERI. I believe so, Your Honor. I remember that letter.

x x x x

SEN. LEGARDA. In what way did this opinion of the CICT affect your endorsement or encouragement of AHI?

MR. NERI. I'm not sure. I think I encouraged him first before the CICT letter.

SEN. LEGARDA. Yes, that is a chronology.

MR. NERI. Yeah. So by that time, we left it already to the line agencies to decide. So it is not for us anymore to say which supplier is better than one over the other.

SEN. LEGARDA. Did you ever endorse any proponent of the broadband network, Secretary Neri?

MR. NERI. No, Your Honor. When I say "endorse", not formally choosing one over another. We do not do that.

SEN. LEGARDA. Do you believe in the Broadband Network Project of the Philippines, of the Philippine government regardless of supplier?

MR. NERI. The broadband is very important, Your Honor. Because as I said earlier, if you look at the statistics in our broadband cost, Philippines is $20 per megabits per second as against...

SEN. LEGARDA. Yes, you have stated that earlier.

x x x x

SEN. LEGARDA. But no proponent for the local broadband networks had submitted any possible bid or any proposal to the NEDA?

MR. NERI. None that we know of, Your Honor.

SEN. LEGARDA. None that you know of. Now, earlier you were in favor of a BOT but eventually changed your mind when the NEDA endorsed the ZTE project. May we know, since NEDA is a collegial body, whether there was any voting into this project and whether you were outvoted?

MR. NERI. Because we always defer to the line agencies as to the manner of implementation of the project.

SEN. LEGARDA. Has there been any government official higher than you who dictated that the ZTE project be prioritized or given priority? In short, were you dictated upon not to encourage AHI as you've previously done . . .

MR. NERI. As I said, Your Honor . . .

SEN. LEGARDA. . . . but to prefer or prioritize the ZTE?

MR. NERI. Yeah. As the question may involve - as I said a conversation/correspondence between the President and a public official, Your Honor.

SEN. LEGARDA. I'm sorry. Can you say that again?

MR. NERI. As I said, I would like to invoke Sec. 2(a) of EO 464.

SEN. LEGARDA. I was not even referring to a conversation between you and the President. Are you saying then that the prioritization of ZTE was involved during your conversation with the President?

MR. NERI. As I said, I cannot comment on that, Your Honor.

SEN. LEGARDA. Yes, but I was not referring to any conversation between you and the President but you brought it up now upon my questioning on whether there was any government official who had instructed you to favor the ZTE. We put two and two together and it is therefore assumed that the answer to the question is conveyed in your conversation with the President to which you are invoking that executive privilege.

MR. NERI. There is no higher public official than me than the President, Mr. Chair, Your Honor.

SEN. LEGARDA. There's no higher official than you? It has to be the vice president . . .

MR. NERI. In other words, when we talk about higher officials, I guess we are referring to the President, Your Honor.

SEN. LEGARDA. So, you're invoking executive privilege and therefore, that answer to that question is left hanging, whether there was any official who gave instructions to prioritize the ZTE over other proponents of the NBN project. And you're saying now that there was no voting among the NEDA and in fact . . .

MR. NERI. Mr. Chair, Your Honor, we don't vote. We don't vote on the manner of implementation. We vote on whether the project is deemed viable or not.

SEN. LEGARDA. Yes, but were you overruled over your preference for a BOT project?

MR. NERI. As I said Your Honor, this is a consensus of the NEDA Board, NEDA ICC. Our consensus was that the project is viable. We leave it to the line agency to implement. My own personal preference here will not matter anymore because it's a line agency . . .

SEN. LEGARDA. But did you actually discuss this with the President and told her not to approve this project or not to proceed with this project? Did you discourage the President from pursuing this project?

MR. NERI. As I said, Mr. Chair, this covers conversations with the President.[21] (Emphasis and underscoring supplied)
Again, petitioner invoked executive privilege when Senator Pia Cayetano asked him what else the President told him besides instructing him not to accept the alleged bribe offer.
MR. NERI. She said "Don't accept it," Your Honor.

SEN. CAYETANO, (P). And was there something attached to that like . . . "But pursued with a project (sic) or go ahead and approve," something like that?

MR. NERI. As I said, I claim the right of executive privilege on further discussions on the . . .

SEN. CAYETANO, (P). Ah, so that's the part where you invoke your executive privilege, is that the same thing or is this new, this invocation of executive privilege?

My question is, after you had mentioned the 200 million and she said "Don't accept," was there any other statement from her as to what to do with the project?

MR. NERI. As I said, it was part of a longer conversation, Your Honor, so . . .

SEN. CAYETANO, (P). A longer conversation in that same - part of that conversation on an ongoing day-to-day, week-to-week conversation?

MR. NERI. She calls me regularly, Your Honor, to discuss various matters.

SEN. CAYETANO. But in connection with, "Ma'am na-offer-an ako ng 200." - Ah, don't accept, next topic," ganoon ba `yon? Or was there like, "Alam mo, magandang project sana `yan, eh pero bakit naman ganyan."

MR. NERI. As I said, Your Honor, beyond that I would not want to go any further, Your Honor.[22] (Emphasis and underscoring supplied)
Petitioner thereafter answered other questions on which he did not invoke executive privilege. However, when asked about whether he advised the President not to proceed with the NBN project in light of the alleged bribe offer, petitioner again invoked the privilege.
SEN. LACSON. x x x

Would not an offer of 200 which you later on interpreted as a 200 milion-peso bribe offer from Chairman Abalos in relation to the NBN project not posit the view that it was an outright overpriced contract?

MR. NERI. We cannot determine our pricing, Your Honor. The NEDA staff tried very, very hard . . .

SEN. LACSON. Even with an offer of 200 million, you would not think it was overpriced?

MR. NERI. That's right, Your Honor. It's possible that they take it out of their pockets. And I had a NEDA staff checked the internet for possible overpricing. The national interest issue in this case, Your Honor, is determined by the economic rate of return. And the economic rate of return was determined at 29.6%. It is very high. Meaning that the project has its benefits despite any potential overpricing, Your Honor.

SEN. LACSON. Did you not at least warn the President that it could be a potential stinking deal considering that it was attended by bribe offer?

MR. NERI. For that, Your Honor, I'd like to . . .

VOICE. Executive privilege.

SEN. LACSON. Executive privilege.

MR. NERI. That's right, Your Honor.[23](Emphasis and underscoring supplied)
A similar concern, it bears noting, was expressed by Senator Roxas, as Chairman of respondent Committee on Trade and Commerce, when he asked the following question to petitioner:
THE CHAIRMAN (SEN. ROXAS). Oh, sige, okay. Ngayon, I don't want to repeat anymore the debate as to the executive privilege that is still pending so I will set that aside. But my question is, since that time, since February of 2007, through the NEDA meetings, at least there were two in 2007, March 26 and March 29, when this was approved, did this subject of the bribe ever come up again? Hindi ka ba nagtaka na ni-report mo it okay Pangulo, sinabihan ka na huwag mong tanggapin, tama naman iyong utos na iyon, huwag mong tanggapin, at matapos noon, wala nang na-take up and noong lumitaw muli itong NBN-ZTE, hindi ka ba nagkamot ng ulo, "What happened, bakit buhay pa rin ito, bakit hindi pa rin - naimbestigahan ito o ano bang nangyari rito," since you reported this first hand experience of yours to the President.
From the foregoing excerpts of the September 26 hearing, it may be gleaned that the three questions fairly represent the questions actually posed by the senators respecting which petitioner invoked executive privilege.

Moreover, the same excerpts adequately provide the necessary backdrop for understanding the thrust of the three questions. While only the third question - Whether the President said to go ahead and approve the project after being told about the alleged bribe? - mentions the perceived bribe offer, it is clear from the context that the first question of whether the President followed up the NBN project was also asked in relation to the same alleged bribe. What Senator Pangilinan wanted to know was whether petitioner and the President had further discussions on the NBN project after petitioner informed her about the alleged bribe.

The second question - Were you dictated to prioritize the ZTE? - which was asked by Senator Legarda, was evidently aimed towards uncovering the reason why, in spite of the Executive's initial plan to implement the NBN project on a Build Operate and Transfer (BOT) basis, it ended up being financed via a foreign loan, with the ZTE as the chosen supplier. This was also the concern of Senator Lacson when he asked petitioner whether the bribe offer had anything to do with the change in the scheme of implementation from BOT to a foreign loan taken by the Philippine government.

Indeed, it may be gathered that all three questions were directed toward the same end, namely, to determine the reasons why the NBN project, despite the apparent overpricing, ended up being approved by the Executive and financed via a government loan, contrary to the original intention to follow a BOT scheme. The three questions should be understood in this light.

Having a clearer understanding of what information was being sought by respondent Committees, the assessment of the invocation of executive privilege is in order.

As earlier discussed, there are actually two kinds of privilege being claimed herein - the presidential communications and diplomatic secrets privilege.

The general criteria for evaluating claims of privilege have been laid down in Senate v. Ermita, to wit: "In determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting."

To assert that certain information falls under a recognized privilege is to allege that disclosure thereof may be harmful to the public interest. It would be impossible for the courts, however, to determine whether a potential harm indeed exists were the Executive allowed to claim the privilege without further explanation. Hence, the ruling in the same case of Senate v. Ermita that claims of privilege should state specific reasons for preserving confidentiality.

When the privilege being invoked against a subpoena ad testificandum is that for presidential communications, such specificity requirement is not difficult to meet, for it need only be evident from the questions being asked that the information being demanded pertains to conversations between the President and her adviser. In petitioner's case, the three questions posed by respondent Committees clearly require disclosure of his conversations with the President in his capacity as adviser. This is obvious from Senator Pangilinan's question as to whether the President followed up on the issue of the NBN project - meaning, whether there were further discussions on the subject between the President and petitioner. Likewise, both Senator Legarda's query on whether petitioner discouraged the President from pursuing the project, and Senator Pia Cayetano's question on whether the President directed petitioner to approve the project even after being told of the alleged bribe, manifestly pertain to his conversations with the President.

While Senator Legarda's question - "Has there been any government official higher than you who dictated that the ZTE project be prioritized or given priority?" - does not necessarily require disclosure of petitioner's conversations with the President, petitioner has interpreted the same to mean "Has the President dictated you to prioritize the ZTE project?" The invocation of privilege is thus limited to this more specific question. Limited in this manner, requiring the Executive to explain more precisely how this question would involve petitioner's conversation with the President might compel him to disclose the very thing which the privilege was meant to protect. The reasons already provided must thus be considered sufficiently precise.

Compared to claims of the presidential communications privilege, it is more difficult to meet the specificity requirement in claims of the diplomatic secrets privilege, for the Executive must be able to establish a connection between the disclosure of the information being sought with the possible impairment of our diplomatic relations with other nations.

The claim of privilege for diplomatic secrets subject of this case fails to establish this connection. It has not been shown how petitioner's response to any of the three questions may be potentially injurious to our diplomatic relations with China. Even assuming that the three questions were answered in the negative - meaning that the President did not follow up on the NBN project, did not dictate upon petitioner to prioritize the ZTE, and did not instruct him to approve the NBN project - it is not clear how our diplomatic relations with China can be impaired by the disclosure thereof, especially given that the supply contract with ZTE was, in fact, eventually approved by the President. If, on the other hand, the answers to the three questions are in the affirmative, it would be even more difficult to see how our relations with China can be impaired by their disclosure.

The second criterion laid down in Senate v. Ermita, namely, whether the privilege should be honored in the given procedural setting, need only be applied, in petitioner's case, to the claim of privilege based on presidential communications, the claim of privilege based on diplomatic secrets having been already ruled out in the immediately foregoing discussion.

A claim of privilege, even a legitimate one, may be overcome when the entity asking for information is able to show that the public interest in the disclosure thereof is greater than that in upholding the privilege. The weighing of interests that courts must undertake in such cases was discussed by the Court in Senate v. Ermita, to wit:
That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.

The leading case on executive privilege in the United States is U.S. v. Nixon, decided in 1974. In issue in that case was the validity of President Nixon's claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the President's general interest in the confidentiality of his conversations and correspondences. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President's powers. The Court, nonetheless, rejected the President's claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare. Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washington's refusal to turn over treaty negotiations records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue. However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case [Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725; May 23, 1974.] decided in the same year as Nixon, recognized the President's privilege over his conversations against a congressional subpoena. Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena.[24] (Emphasis and underscoring supplied)
In determining whether, in a given case, the public interest in favor of disclosure outweighs the public interest in confidentiality, courts often examine the showing of need proffered by the party seeking information. A discussion of what this showing of need entails is thus in order.

The case of Nixon v. Sirica,[25] decided by the United States Court of Appeals for the District of Columbia, involved a claim of the presidential communications privilege by President Nixon against a subpoena duces tecum issued by the grand jury - an agency roughly analogous to the Ombudsman in this jurisdiction. The grand jury subpoena called on the President to produce tape recordings of certain identified meetings and telephone conversations that had taken place between him and his advisers. The Court held thus:
The President's privilege cannot, therefore, be deemed absolute. We think the Burr case makes clear that application of Executive privilege depends on a weighing of the public interest protected by the privilege against the public interests that would be served by disclosure in a particular case. We direct our attention, however, solely to the circumstances here. With the possible exception of material on one tape, the President does not assert that the subpoenaed items involve military or state secrets; nor is the asserted privilege directed to the particular kinds of information that the tapes contain. Instead, the President asserts that the tapes should be deemed privileged because of the great public interest in maintaining the confidentiality of conversations that take place in the President's performance of his official duties. This privilege, intended to protect the effectiveness of the executive decision-making process, is analogous to that between a congressman and his aides under the Speech and Debate Clause; to that among judges, and between judges and their law clerks; and similar to that contained in the fifth exemption to the Freedom of Information Act.

x x x x

We recognize this great public interest, and agree with the District Court that such conversations are presumptively privileged. But we think that this presumption of privilege premised on the public interest in confidentiality must fail in the face of the uniquely powerful showing made by the Special Prosecutor in this case. The function of the grand jury, mandated by the Fifth Amendment for the institution of federal criminal prosecutions for capital or other serious crimes, is not only to indict persons when there is probable cause to believe they have committed crime, but also to protect persons from prosecution when probable cause does not exist. As we have noted, the Special Prosecutor has made a strong showing that the subpoenaed tapes contain evidence peculiarly necessary to the carrying out of this vital function - evidence for which no effective substitute is available. The grand jury here is not engaged in a general fishing expedition, nor does it seek in any way to investigate the wisdom of the President's discharge of his discretionary duties. On the contrary, the grand jury seeks evidence that may well be conclusive to its decisions in on-going investigations that are entirely within the proper scope of its authority. x x x (Emphasis and underscoring supplied)
While Sirica involved a conflict between the Executive and the grand jury, not between the Executive and Congress, the same court later applied the same balancing approach, even explicitly citing the Sirica decision, in a controversy involving the President and a Senate committee over executive privilege.

In Senate Select Committee on Presidential Campaign Activities v. Nixon,[26] the case that was referred to in the Senate v. Ermita ruling quoted earlier, the party seeking information was a Select Committee of the U.S. Senate which was formed "to determine . . . the necessity or desirability of new congressional legislation to safeguard the electoral process by which the President of the United States is chosen." Similar to what transpired in Sirica, the Select Committee issued a subpoena duces tecum addressed to President Nixon for the production of tape recordings of his conversations with one of his aides, in which they discussed alleged criminal acts occurring in connection with the presidential election of 1972. The Court of Appeals for the District of Columbia ruled thus:
The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those upon whom he directly relies in the performance of his duties could continue to work under a general assurance that their deliberations would remain confidential. So long as the presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of government -- a showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President's deliberations -- we believed in Nixon v. Sirica, and continue to believe, that the effective functioning of the presidential office will not be impaired. Contrary, therefore, to the apparent understanding of the District Court, we think that Nixon v. Sirica requires a showing of the order made by the grand jury before a generalized claim of confidentiality can be said to fail, and before the President's obligation to respond to the subpoena is carried forward into an obligation to submit subpoenaed materials to the Court, together with particularized claims that the Court will weigh against whatever public interests disclosure might serve. The presumption against any judicially compelled intrusion into presidential confidentiality, and the showing requisite to its defeat, hold with at least equal force here.

Particularly in light of events that have occurred since this litigation was begun and, indeed, since the District Court issued its decision, we find that the Select Committee has failed to make the requisite showing. x x x (Emphasis and underscoring supplied)
Thus, a government agency that seeks to overcome a claim of the presidential communications privilege must be able to demonstrate that access to records of presidential conversations, or to testimony pertaining thereto, is vital to the responsible performance of that agency's official functions.

Parenthetically, the presumption in favor of confidentiality only takes effect after the Executive has first established that the information being sought is covered by a recognized privilege. The burden is initially with the Executive to provide precise and certain reasons for upholding his claim of privilege, in keeping with the more general presumption in favor of transparency. Once it is able to show that the information being sought is covered by a recognized privilege, the burden shifts to the party seeking information, who may still overcome the privilege by a strong showing of need.

Turning now to the present controversy, respondent Committees must be held to have made a strong showing of need, one that certainly suffices to overcome the claim of privilege in this case.

Respondents assert that there is an urgent need for remedial legislation to regulate the obtention and negotiation of official development assisted (ODA) projects because these have become a rich source of "commissions" secretly pocketed by high executive officials. They claim that the information which they are trying to elicit from petitioner relative to the NBN project is essential and crucial to the enactment of proposed amendments to the Government Procurement Reform Act (R.A. No. 9184) and the Official Development Assistance Act (R.A. No. 8182), so that Congress will know how to plug the loopholes in these statutes and thus prevent a drain on the public treasury.

That the crafting of such remedial legislation is at least one of the objectives of respondent Committees, if not its primary one, is borne out by the existence of the following pending bills in the Senate, to wit: (1) Senate Bill (S.B.) No. 1793, AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES, AND (2) S.B. NO. 1794, AN ACT IMPOSING SAFEGUARDS IN CONTRACTING LOANS AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES.

Also worthy of note is the following statement of Senator Roxas during the September 26 hearing that the reform of the procurement process was the chief objective of the investigations, thus:
THE CHAIRMAN (SEN. ROXAS). No, no, I'm not talking about - I'm not taking sides here whether it's AHI or ZTE or what. I'm looking at the approval process by government because that approval process which is the most important element of these entire hearings because it is that same approval process that billions and billions of government money are going through, `no. So, we want to tighten that up. We want to make sure that what we discussed here in this very hall which is to raise VAT to 12 percent and to cover with VAT electricity and petrol is not just put to waste by approval process that is very loose and that basically has no checks and balances. (Underscoring supplied)
If the three questions were understood apart from their context, a case can perhaps be made that petitioner's responses, whatever they may be, would not be crucial to the intelligent crafting of the legislation intended in this case. As earlier discussed, however, it may be perceived from the context that they are all attempts to elicit information as to why the NBN project, despite the apparent overpricing, ended up being approved by the Executive and financed via a government loan, contrary to the original intention to follow a BOT scheme. This is the fundamental query encompassing the three questions.

This query is not answerable by a simple yes or no. Given its implications, it would be unreasonable to expect respondent Committees to merely hypothesize on the alternative responses and come up with legislation on that basis. This is a situation where at least a credible, if not precise, reconstruction of what really happened is necessary for the intelligent crafting of the intended legislation. Why is it that, after petitioner reported the alleged bribe to the President, things proceeded as if nothing was reported? Respondent Senate Committees are certainly acting within their rights in trying to find out the reasons for such a turn of events. If it was in pursuit of the public interest, respondents surely have a right to know what this interest was so that it may be taken into account in determining whether the laws on government procurement, BOT, ODA and other similar matters should be amended and, if so, in what respects.

It is certainly reasonable for respondents to believe that the information which they seek may be provided by petitioner. This is all the more so now that petitioner, contrary to his earlier testimony before the respondent Committees that he had no further discussions with the President on the issue of the bribe offer, has admitted in his petition that he had other discussions with the President regarding "the bribery scandal involving high Government officials." These are the very same discussions which he now refuses to divulge to respondents on the ground of executive privilege.

Apropos is this Court's pronouncement in Sabio v. Gordon:[27]
Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in the millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporation, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG's efficacy x x x (Emphasis and underscoring supplied)
If, in a case where the intended remedial legislation has not yet been specifically identified, the Court was able to determine that a testimony is vital to a legislative inquiry on alleged anomalies - so vital, in fact, as to warrant compulsory process - a fortiori should the Court consider herein petitioner's testimony as vital to the legislative inquiry subject of this case where there are already pending bills touching on the matter under investigation.

Thus, the claim of privilege in this case should not be honored with respect to the fundamental query mentioned above. Nonetheless, petitioner's conversations with the President on all other matters on the NBN project should still be generally privileged. On matters not having to do with the apparent overpricing of the NBN project and the alleged bribe offer, respondents no longer have a showing of need sufficient to overcome the p
rivilege. The intrusion into these conversations pursuant to this opinion would thus be a limited one. In that light, it is hard to see how the impairment of the public interest in candid opinions in presidential decision-making can, in this case, outweigh the immense good that can be achieved by well-crafted legislation reforming the procurement process.

The conclusion that respondent Committees have a sufficient need for petitioner's testimony is further supported by the fact that the information is apparently unavailable anywhere else. Unlike in the Senate Select case, the House of Representatives in the present case is not in possession of the same information nor conducting any investigation parallel to that of the respondent Committees. These were the considerations for the court's ruling against the senate committee in the Senate Select case.

Still, there is another reason for considering respondents' showing of need as adequate to overcome the claim of privilege in this case.

Notably, both parties unqualifiedly conceded to the truism laid down in the Senate Select case that "the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing."

While the U.S. Court in that case proceeded to qualify its statement by saying that
under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment,
I submit that it would be unwise to infer therefrom that, in the assessment of claims of privilege, indications that the privilege is being used to shield officials from investigation is immaterial. Otherwise, what would then be the point of stating that "[a] claim of privilege may not be used to shield executive officials and employees from investigations by the proper government institutions into possible criminal wrongdoing"?

At the very least, such indications should have the effect of severely weakening the presumption that the confidentiality of presidential communications in a given case is supported by public interest. Accordingly, the burden on the agency to overcome the privilege being asserted becomes less, which means that judicial standards for what counts as a "sufficient showing of need" become less stringent.

Finally, the following statement of Dorsen and Shattuck is instructive:
x x x there should be no executive privilege when the Congress has already acquired substantial evidence that the information requested concerns criminal wrong-doing by executive officials or presidential aides. There is obviously an overriding policy justification for this position, since the opposite view would permit criminal conspiracies at the seat of government to be shrouded by a veil of an advice privilege. While the risk of abusive congressional inquiry exists, as the McCarthy experience demonstrates, the requirement of "substantial evidence" of criminal wrong-doing should guard against improper use of the investigative power.[28]
When, as in this case, Congress has gathered evidence that a government transaction is attended by corruption, and the information being withheld on the basis of executive privilege has the potential of revealing whether the Executive merely tolerated the same, or worse, is responsible therefor, it should be sufficient for Congress to show - for overcoming the privilege - that its inquiry is in aid of legislation.

In light of all the foregoing, I vote to DISMISS the petition.


[1] ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES.

[2] G.R. No. 169777, April 20, 2006, 488 SCRA 1.

[3] Issued on March 6, 2008.

[4] Supra note 2.

[5] ZTE is a corporation owned by the Government of the People's Republic of China.

[6] Sec. Ermita's November 15, 2007 letter.

[7] Hearings on September 18 and 20, and October 25, 2007.

[8] 244 SCRA 286 (1995).

[9] Petition for Certiorari, p. 8.

[10] Supra note 2.

[11] In his November 29, 2007 letter to Senator Alan Peter Cayetano, petitioner stated: "In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive [S]ecretary claimed executive privilege."

[12] Letter of November 15, 2007.

[13] Senate TSN of September 27, 2007 hearing.

[14] Section 18. The Committee, by a vote of a majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively. A contempt of the Committee shall be deemed a contempt of the Senate. Such witnesses may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself of that contempt.

[15] TSN of the March 4, 2008 Oral Arguments at the Supreme Court, p. 13.

[16] G.R. No. 174340, October 17, 2006, 504 SCRA 704.

[17] Senate v. Ermita, supra note 2 at 67.

[18] TSN, September 26 hearing, p. 42.

[19] TSN of September 26, 2007 Senate Hearing, pp. 43-46.

[20] Id. at 91-92.

[21] Id. at 110-117.

[22] Id. at 276-277.

[23] Id. at 414-415.

[24] Supra note 2 at 47-49.

[25] 487 F.2d 725; October 12, 1973.

[26] 498 F.2d 725; May 23, 1974.

[27] Supra note 16.

[28] Norman Dorsen & John H.F. Shattuck, EXECUTIVE PRIVILEGE, THE CONGRESS AND THE COURTS 35 OHIO ST. L.J. 1, 32 (1974).





SEPARATE CONCURRING OPINION


Tinga, J.:

The determination of this petition must rest in part on the constitutional character and purpose of the legislative inquiry function of Congress, as delineated in Section 21, Article VI of the Constitution. That such function is constitutionally vested in and plenary to the legislature[1] is indubitable. Yet the mere existence of the function does not mean that it is insusceptible to appreciable limitations.

The purpose of legislative inquiry is constitutionally and jurisprudentially linked to the function of legislation, i.e., the task of formulating laws. The method of enacting sensible laws necessarily requires a legislature that is well-informed of the factual background behind the intended legislation. It is for such purpose, morally or politically neutral as it may be, that the function exists as a constitutional principle.

Given the wide publicity some legislative inquiries are able to attract, especially when they call attention to wrongdoings on the part of government officials or private individuals, there is somehow a public perception that legislative inquiries are primarily vital in their truth-seeking faculty. Perhaps the legislators who function as inquisitors feel ennobled by that perception as well. Can this purpose, which admittedly is neither morally nor politically neutral, be accommodated in the constitutional function of legislative inquiries? Facially yes, since the goal of legislative oversight is integrally wedded to the function of legislative inquiries. In aiming to create effective laws, it is necessary for our lawmakers to identify the flaws in our present statutes. To the extent that such flaws are linked to the malperformance of public officials, the resultant public exposure and embarrassment of such officials retain relevance to the legislative oversight and inquiry process.

Yet all the righteous, divinely-inspired fulminations that find expression in the legislative inquiry cannot bestow on that process a higher or different purpose than that intended by the Constitution. Contrary as it may be to the public expectation, legislative inquiries do not share the same goals as the criminal trial or the impeachment process. The orientation of legislative inquiries may be remedial in nature, yet they cannot be punitive in the sense that they cannot result in legally binding deprivation of a person's life, liberty or property. No doubt that a legislative inquiry conducted under the glare of klieg lights can end up destroying one's life, livelihood or public reputation - as many suspected American leftists discovered when they were caught in the dragnet of persecution during the McCarthy era - yet such unfortunate results should only incidentally obtain as a result of an inquiry aimed not at specific persons, but at the framework of the laws of the land.

It is vital to draw the distinction between legislative inquiries and the other legal processes, such as impeachment or criminal trials, that are oriented towards imposing sanctions in the name of the State. As the latter processes embody the avenue of the State to impose punishment, the Constitution establishes elaborate procedural safeguards, also subsumed under the principles of due process and equal protection, to assure a fair proceeding before sanction is levied. In contrast, since the end result of a legislative inquiry is not constitutionally intended to be legally detrimental to persons subject of or participatory to the inquiry, the procedural safeguards attached to it are more lenient. The Constitution does require that "[t]he rights of persons appearing in or affected by such inquiries shall be respected", but such expression is less definitive than the rights assured to persons subject to criminal procedure. For example, there is no explicit constitutional assurance that persons appearing before legislative inquiries are entitled to counsel, though Congress in its wisdom may impose such a requirement.

Then there are the bald realities that a legislative inquiry is legally animated not by any recognizable legislative function to seek out the truth, but the existence of a political majority that desires to constitute the inquiry. In the same manner that it is the legislative majority rule that breathes life to, prolongs or shortens deliberation of legislation, or simply dictates the legislative path, the same nakedly political considerations drive the life, length and breadth of legislative inquiries. Investigations are viable avenues for legislators to exploit the headlines of the day for political capital, whether they may concern rising oil prices, the particular diplomatic ties with one or some nations, or the spectacle of Filipina actresses making entertainment trips to Brunei. For as long as that political majority exists, only the innate good sense of our legislators may inhibit the inquiry, and certainly it is beyond the province of the courts to prevent Congress from conducting inquiries on any or all matters.

Thus, it may be conceded that a legislative inquiry is not constrained by the same strictures that bind the criminal investigation process for the benefit of an accused, and that such laxer standards may operate to the detriment of persons appearing in or affected by legislative inquiries. Yet this relative laxity is set off by the recognition of the constitutional limitations on legislative inquiries even to the extent of affirming that it cannot embody official State expression of moral outrage, or of the State's punitive functions. As compared to the State processes that encapsulate the moral virtues of truth and justice, the legislative process, including the inquiry function, is ultimately agnostic. There can be no enforceable demand that a legislative inquiry seek out the truth, or be an implement of justice, in the same way that the legislature cannot be judicially compelled to enact just or truth-responsive laws. The courts cannot sanction the legislative branch for simply being morally dense, even at the expense of appearing morally dense itself.

A different judicial attitude should obtain in analyzing State functions allocated towards the investigation of crimes and, concurrently, the determination of the truth, for the ultimate purpose of laying down the full force of the law. For such purpose, the courts may not be morally neutral, since the very purpose of the criminal justice system is to enforce the paragon virtues of equal justice, truth, and fair retribution. We are impelled to assume that the prosecutors and judges proceed from rectitude, fair-mindedness and impartiality; and necessarily must be quick to condemn if they instead act upon socio-political motives or tainted considerations.

In view of the differing constitutive purposes and constitutional considerations between legislative inquiries and criminal trials, there can be differing applicable standards that the courts may appreciate between these two processes. In the case at bar, if the question involved were a claim of executive privilege invoked against a criminal investigation, my analysis would be vastly different. If what was involved was a criminal investigation, attendant as that function is to the right of the State to punish wrongdoing, then any claim of executive privilege designed to countermand the investigation could easily be quashed. After all, our democracy is founded on the consensual rule of a civilian president who is not above the law, rather than a monarch who, by divine right, is the law himself.

But if the claim of executive privilege is invoked against a legislative inquiry, run by a body that bears vastly different attributes from those tasked with conducting criminal inquiries and one which is, quite frankly, politically animated by constitutional design, then the claim deserves greater deference. After all, such claim at that instance cannot result in evasion of wrongdoers from punishment by the State. At most, it would retard the ability of Congress to acquire information that may be necessary for it to enact informed legislation. It is against such constitutional purpose of Congress that the claim of executive privilege should be tested.

To recall, the respondent Senate committees had asked petitioner Neri three questions which he declined to answer, invoking executive privilege, during his testimony on 26 September 2007. The three questions were: (1) whether the President followed up on the NBN project; (2) whether the petitioner was dictated upon to prioritize ZTE; and (3) whether the president said go ahead and approve the project after being told about the bribe attempt by former COMELEC Chairman Benjamin Abalos.

Inescapably, all three questions pertain to the content of the conversations of the president with petitioner Neri, who then was the Chairman of the National Economic Development Authority. They involve a government contract, the negotiation, review and approval of which was related to the official functions of petitioner Neri and the president.

In Senate v. Ermita, the Court stated, as a general proposition, that "the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive privilege and in favor of disclosure."[2] The pronouncement was necessary in Ermita, which involved a wrongheaded attempt by the President to shield executive officials from testifying before Congress with a blanket claim of executive privilege, irrespective of context. However, when the claim is rooted in a conversation with the president and an executive official relating to their official functions, should the presumption against executive privilege apply? After all, not just six years ago, the Court, through Justice Carpio, acknowledged that "Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential."[3]

In the United States, perhaps the leading case on executive privilege is U.S. v. Nixon, [4] where the claim was posed against the enforcement of a judicial subpoena to produce tapes of conversations with then-President Richard Nixon, issued after seven individuals were indicted as criminal conspirators in relation to the Watergate scandal. Manifestly, Nixon pertained to an invocation of executive privilege to evade compliance with a judicial order issued in a criminal proceeding, and not, as in this case, in a legislative inquiry; indeed, the U.S. Supreme Court firmly moored its ruling against President Nixon on the character of the criminal investigation. Still, the U.S. Supreme Court acknowledged that there was "a presumptive privilege for Presidential communications," such being "fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."[5] That point, which the parties in Nixon acceded to without contest, was justified, thus:
The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications.[6]
The existence of a presumption is hardly a foolproof shelter for the president since it can be overturned, as was done in Nixon. Still, it would be highly useful for the Court to acknowledge that the presumption exists. Otherwise, the traditional exercise of functions by all three branches of government will falter. If the president is denied the presumption of confidentiality of his communications and correspondence, there is no reason to extend such presumption of confidentiality to executive sessions conducted by Congress, or to judicial deliberations of this Court and all other lower courts. After all, the three branches of government are co-equals.

Thus, at bar, the conversations between the president and petitioner Neri should enjoy the presumptive privilege, on the same level as any other official conversation or correspondence between the president and her executive officials. They enjoy the same presumptive privilege as the conversations or correspondence between the members of this Court who used to work for the executive branch of government and the presidents under whom they served.

The presumptive privilege attaching to presidential conversations or correspondences falls under what the Court, in Ermita, had characterized as "generic privilege," which covers the internal deliberations within the government, including "intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."[7] In such a case, the privilege attaches not because of the content of the correspondence, but because of the process under which such correspondence has come into existence. In contrast, there are varieties of executive privilege that pertain to the specific content of the information. Most striking of these is the so-called "state secrets privilege" which is predicated on the ground that "the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives."[8] The state secrets privilege is undoubtedly content-based in character, such that there would be no way of assessing whether the information is indeed of such crucial character unless one is actually familiar with the information.

Petitioner Neri also cites diplomatic and state secrets as basis for the claim of executive privilege, alluding for example to the alleged adverse impact of disclosure on national security and on our diplomatic relations with China. The argument hews closely to the state secrets privilege. The problem for petitioner Neri though is that unless he informs this Court the contents of his questioned conversations with the president, the Court would have no basis to accept his claim that diplomatic and state secrets would indeed be compromised by divulging the same in a public Senate hearing.

Indeed, if the claim of executive privilege is predicated on the particular content of the information, such as the state secrets privilege, which the claimant refuses to divulge, there is no way to assess the validity of the claim unless the court judging the case becomes privy to such information. If the claimant fails or refuses to divulge such information, I submit that the courts may not pronounce such information as privileged on content-based grounds, such as the state secrets privilege. Otherwise, there simply would be no way to dispute such claim of executive privilege. All the claimant would need to do is to invoke the state secrets privilege even if no state secret is at all involved, and the court would then have no way of ascertaining whether the claim has been validly raised, absent judicial disclosure of such information.

Still, just because the claim of executive privilege in this case is invoked as to the contents of presidential conversations with executive officials, we must consider the presumptive privilege extant and favorable to petitioner Neri. There is now need for respondents to demonstrate that this presumptive privilege is outweighed by the constituent functions of its own subject legislative inquiries.

How do we assess whether respondents have been able to overcome the presumptive privilege? If the test is simply the need to divulge "the truth," then the presumption will always be defeated, without any consideration to the valid concerns that gave rise to the presumption in the first place. A more sophisticated approach is called for.

In Nixon, the U.S. Supreme Court weighed the presumptive privilege against the aims of the criminal justice system, since the claim was invoked in a criminal proceeding:
We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. [9]
By the same measure, the present claim of executive privilege should be tested against the function of the legislative inquiry, which is to acquire insight and information for the purpose of legislation. Simply put, would the divulgence of the sought-after information impede or prevent the Senate from enacting legislation?

I submit, with respect to the three questions asked of petitioner Neri, that the Senate will not be impeded from crafting and enacting any legislation it may link to the present inquiries should the privilege be upheld. There is no demonstration on the part of respondents that legislation will be rendered necessary or unnecessary should petitioner Neri refuse to answer those questions. If respondents are operating under the premise that the president and/or her executive officials have committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation, the answers to those three questions will not necessarily bolster or inhibit respondents from proceeding with such legislation. They could easily presume the worst of the president in enacting such legislation .

Likewise material to my mind is the well-reported fact that the subject NBN-ZTE contract has since been scuttled by the president. If this contract were still in existence and binding, there comes a greater legislative purpose in scrutinizing the deal since Congress has sufficient capability to enact legislation or utilize the power of appropriations to affect the contract's enforcement. Under such circumstances, which do not obtain at present, the case for rejecting the presumptive privilege would be more persuasive.

Let me supply a contrasting theoretical example. Congress has a well-founded suspicion that the president and the executive officials have not been candid about the state of the economy and have manipulated official records in order to reflect an inaccurate economic picture. Congress, in passing economic legislation, must necessarily be informed of the accurate economic realities in order to pass laws that are truly responsive to the state of the economy. In such a case, the right of Congress to particular information related to the economic state of affairs, as a means of passing appropriate legislation, will supersede the presumptive privilege. Thus, whatever conversations or correspondences the president may have had with executive officials regarding the true state of the economy will not be sheltered by executive privilege in the face of a duly constituted legislative inquiry.

But at bar, respondents failed to demonstrate how the refusal of petitioner Neri to answer the three subject questions would hamper its ability to legislate. As such, the general presumptive privilege that attaches to the conversations of the president with executive officials supersedes the right of respondents to such information for the purpose of its legislative inquiry.

The assailed Show-Cause Order, premised as it is on an improper rejection of the claim of executive privilege, must thus be invalidated. This does not mean that petitioner Neri should be accordingly exempted from further appearing before the respondents, but that he may not be compelled to answer those three questions or similar variants thereof concerning his conversations with the president.

My position would have been vastly different had the three questions arisen in the context of a criminal inquiry or an impeachment proceeding. Because the constitutive purposes of such proceedings are to ascertain the true set of facts for the purpose of prosecuting criminal or impeachment trials, such purposes would outweigh the generic, presumptive privilege that attaches to presidential conversations. In such instance, if it is still desired to invoke the privilege, there would be no choice but to compel the claimant to adduce before a court the precise information asserted as privileged, so that such court can decide whether the content of such conversation justifies the privilege.

I vote to GRANT the petition and the supplemental petition, and concur in the ponencia of Mme. Justice Teresita L. De Castro.



[1] See Arnault v. Nazareno, 87 Phil. 29, 45 (1950); Senate v. Ermita, G.R. 169777, 20 April 2006, 488 SCRA 1, 42.

[2] Senate v. Ermita, G.R. No. 169777, 20 April 2006, 488 SCRA 1, 51.

[3]Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).

[4]418 U.S. 683 (1974).

[5]Id. at 708.

[6]Ibid.

[7]Senate v. Ermita, G.R. No. 169777, 20 April 2006, 488 SCRA 1, 46; citing I L. Tribe, AMERICAN CONSTITUTIONAL LAW (3rd ed., 2000), at 770-771.

[8]Ibid.

[9]Supra note 4 at 709.





CONCURRING OPINION


CHICO-NAZARIO, J.:

I express my concurrence in the majority opinion as written by my colleague Justice Teresita J. Leonardo-De Castro. In addition to the ratiocination already presented therein, I still wish to stress particular points which convinced me that the Petition for Certiorari of petitioner Romulo L. Neri should be granted.

Once again, this Court finds itself in the same position it held just two years ago in the landmark case of Senate of the Philippines v. Ermita,[1] standing judge over a dispute between the Executive and Legislative branches of the Government.

Even the antecedent facts giving rise to the present Petition seem familiar. They involve the conflict between, on one hand, the right of the Senate to compel the appearance and testimony of executive officials in hearings in aid of legislation; and, on the other, the right of the President and the executive officials she so authorizes to invoke executive privilege to protect and keep certain information confidential.

In Ermita, cabinet members and military officials declined to appear before the Senate for hearings held in aid of legislation, invoking Executive Order No. 464 issued by President on "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation under the Constitution, and for other Purposes," which basically made it mandatory for them to obtain the President's permission prior to attending said hearings. Without the President's permission, they will not go.

In the Petition at bar, petitioner Neri, by virtue of his position as the former Director General of the National Economic Development Authority, testified on 26 September 2007 in an 11-hour hearing conducted by the respondent Senate Committees on the alleged anomalies in the award of the National Broadband Network (NBN) Project to Zhing Xing Telecommunications Equipment (ZTE). During said hearing, he already invoked executive privilege when he refused to answer three specific questions propounded to him:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project after being told about the alleged bribe?
He failed to return and face further inquiry before the respondent Senate Committees in the hearing set for 20 November 2007. Executive Secretary Eduardo A. Ermita and Atty. Antonio R. Bautista, as petitioner Neri's counsel, sent separate letters to the respondent Senate Committees consistently asserting that petitioner Neri's non-appearance at the hearing was upon the President's order; and his conversations with the President on the NBN Project, the apparent subject of further inquiry by the respondent Senate Committees, were covered by executive privilege since they involved national security and diplomatic matters. Respondent Senate Committees found unsatisfactory petitioner Neri's explanation for his non-attendance at the hearing, thus, in an Order dated 30 January 2008, cited him for contempt and directed his arrest and detention in the Office of the Senate Sergeant-At-Arms "until such time that he will appear and give his testimony."

Faced with either disobeying the President's order or being arrested by the Senate, petitioner Neri sought relief from this Court by filing a Petition for Certiorari and a Supplemental Petition for Certiorari, under Rule 65 of the Rules of Court, alleging grave abuse of discretion on the part of the respondent Senate Committees for first issuing a show cause Order, dated 22 November 2007, against petitioner Neri for his failure to attend the 20 November 2007 hearing; and subsequently issuing the contempt and arrest Order, dated 30 January 2008 against petitioner Neri after finding his explanation unsatisfactory.

This Court shall not shirk from its duty, impressed upon it by no less than the Constitution, to exercise its judicial power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."[2] It was clearly intended by the framers of the Constitution that the judiciary be the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction.[3] And when the Judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments, but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them.[4]

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[5]

Considering the factual background of the Petition at bar, respondent Senate Committees did commit grave abuse of discretion in issuing the assailed Orders for having done so without basis, with undue haste, and in violation of due process.

Our republican system of Government is composed of three independent and co-equal branches, the Executive, Legislative, and Judiciary. One of the fundamental tenets underlying our constitutional system is the principle of separation of powers, pursuant to which the powers of government are mainly divided into three classes, each of which is assigned to a given branch of the service. The main characteristic of said principle is not, however, this allocation of powers among said branches of the service, but the fact that: 1) each department is independent of the others and supreme within its own sphere; and 2) the powers vested in one department cannot be given or delegated, either by the same or by Act of Congress, to any other department.[6]

The fundamental power of the Senate, as one of the Houses of the Legislative Branch, is to make laws, and within this sphere, it is supreme. Hence, this Court had long before upheld the power of inquiry of the Legislature in aid of legislation. In Arnault v. Nazareno,[7] this Court pronounced:
Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. 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 the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently 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. (McGrain vs. Daugherty, 273 U. S., 135; 71 L. ed., 580; 50 A. L. R., 1.) The fact that the Constitution expressly gives to Congress the power to punish its Members for disorderly behaviour, does not by necessary implication exclude the power to punish for contempt any other person. (Anderson vs. Dunn, 6 Wheaton, 204; 5 L. ed., 242.)[8]
In the same case, the Court also qualified the extent of the Legislature's power of inquiry:
But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.)

Since, as we have noted, the Congress of the Philippines has a wider range of legislative field than either the Congress of the United States or a State Legislature, we think it is correct to say that the field of inquiry into which it may enter is also wider. It would be difficult to define any limits by which the subject matter of its inquiry can be bounded. It is not necessary for us to do so in this case. Suffice it to say that it must be coextensive with the range of the legislative power.[9]
In the Petition at bar, the Senate relies on its power of inquiry as embodied in Article VI, Section 21 of the Constitution, which reads:
Section 21. The Senate or House of Representatives or any of its respective committees 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.
In citing petitioner Neri in contempt and ordering his arrest, however, the respondent Senate Committees had overstepped the boundaries of its appointed sphere, for it persists to acquire information that is covered by executive privilege and beyond its jurisdiction to inquire.

Simply put, executive privilege is "the power of the Government to withhold information from the public, the courts, and the Congress." It is also defined as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public."[10] It must be stressed that executive privilege is a right vested in the President which she may validly exercise within her sphere of executive power. The President can validly invoke executive privilege to keep information from the public and even from co-equal branches of the Government, i.e., the Legislature and the Judiciary.

In Chavez v. Public Estates Authority,[11] this Court recognized that:
The right to information, however, does not extend to matters recognized as privileged information under the separation of powers. The right does not also apply to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused, which courts have long recognized as confidential. The right may also be subject to other limitations that Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case. (Emphasis ours.)
A more extensive explanation for the rationale behind the executive privilege can be found in United States v. Nixon,[12] to wit:
The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.

x x x x

Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article. Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any `ordinary individual.' It is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. x x x (Emphasis ours.)
It is clear from the foregoing that executive privilege is not meant to personally protect the President, but is inherent in her position to serve, ultimately, the public interest. It is not an evil thing that must be thwarted at every turn. Just as acts of the Legislature enjoy the presumption of validity, so must also the acts of the President. Just all other public officers are afforded the presumption of regularity in the exercise of their official functions, then what more the President, the highest Executive official of the land. Hence, when the President claims that certain information is covered by executive privilege, then rightfully, said information must be presumptively privileged.[13]

Respondent Senate Committees cite the statement made by this Court in Ermita that "the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure."[14] However, said declaration must be taken in the context of Ermita where EO No. 464 placed under the protection of executive privilege virtually all conversations, correspondences, and information of all executive and military officials, unless otherwise ordered by the President. Ermita firmly established that public disclosure is still the general rule while executive privilege is the exemption therefrom. But when the President does invoke executive privilege as regards certain information, the same must be deemed presumptively privileged.

Necessarily, it is the President who can make the initial determination of what information is covered by the executive privilege because only she and the executive officials involved are privy to the information. Although the President and/or her authorized executive official are obliged to clearly state the grounds for invoking executive privilege, they are not required to state the reasons for the claim with such particularity as to compel the disclosure of the information which the privilege is meant to protect.[15] The President, through petitioner Neri, claims that the conversation between the two of them as regards the NBN Project is privileged for it involves matters that may affect diplomatic and economic relations of the country with China. These are valid grounds rendered even more credible in light of the fact that the NBN Project is funded by a loan extended by the Chinese Government to our Government and awarded to ZTE, a Chinese firm. The respondent Senate Committees' demand for a deeper or more substantial justification for the claim of executive privilege could well lead to the revelation of the very same details or information meant to be protected by the privilege, hence, rendering the same useless. Furthermore, since the information the respondent Senate Committees seek is presumptively privileged, the burden is upon them to overcome the same by contrary evidence.

Also in support of my position that the respondent Senate Committees acted beyond their legislative jurisdiction is their continued avowal of "search for the truth." While the search for the truth is truly a noble aspiration, respondent Senate Committees must bear in mind that their inquiry and investigative powers should remain focused on the primary purpose of legislation.

Respondent Senate Committees present three pending Senate bills for which the investigative hearings are being held:
  1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled "An Act Subjecting Treaties, International or Executive Agreements Involving Funding in the Procurement of Infrastructure Projects, Goods, and Consulting Services to be Included in the Scope and Application of Philippine Procurement Laws, Amending for the Purpose Republic Act No. 9184, Otherwise Known as the Government Procurement Reform Act, and for Other Purposes."

  2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled "An Act Imposing Safeguards in Contracting Loans Classified as Official Development Assistance, Amending for the Purpose Republic Act No. 8182, as Amended by Republic Act No. 8555, Otherwise Known as the Official Development Assistance Act of 1996, and for Other Purposes."

  3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled "An Act Mandating Concurrence to International Agreements and Executive Agreements."
Consistent with the requirement laid down in Ermita, petitioner Neri attended the 26 September 2007 investigative hearing on the afore-mentioned Senate bills, even though he was obviously ill that day, answered all the other questions of the Senators regarding the NBN Project including the attempted bribery upon him, except the three questions for which he invoked executive privilege by order of the President. Respondent Senate Committees failed to establish that petitioner Neri's answers to these three questions are indispensable, or that they are not available from any other source, or that the absence thereof frustrates the power of the Senate to legislate.

Respondent Senate Committees lightly brushed aside petitioner Neri's claim of executive privilege with a general statement that such is an unsatisfactory reason for not attending the 20 November 2007 hearing. It likewise precipitately issued the contempt and arrest Order against petitioner Neri for missing only one hearing, the 20 November 2007, despite the explanation given by petitioner Neri, through Executive Secretary Ermita and counsel Atty. Bautista, for his non-appearance at said hearing, and the expression by petitioner Neri of his willingness to return before respondent Senate Committees if he would be furnished with the other questions they would still ask him. Petitioner Neri's request for advance copy of the questions was not unreasonable considering that in Ermita, this Court required:
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance.[16] (Emphasis ours.)
Yet the respondent Senate Committees unexplainably failed to comply therewith.

Another point militating against the issuance of the contempt and arrest Order is its issuance even without quorum and the required number of votes in the respondent Senate Committees. During oral arguments, Senator Francis N. Pangilinan asserted that whatever infirmities at the committee level were cured by the 2/3 votes of the entire Senate favoring the issuance of the contempt and arrest Order against petitioner Neri, since the committee is a mere agent of the entire chamber.[17] In their Memorandum, respondent Senate Committees no longer addressed said issue contending that petitioner Neri never assailed the procedure by which the contempt and arrest Order was issued. While this Court may not rule on an issue not raised in the Petition, it may take note of the apparent lack of clear and established rules for the issuance by the Senate of a contempt and arrest Order against a recalcitrant witness in hearings conducted in aid of legislation. Senators may very well be familiar with the practice or tradition of voting in such cases, but not necessarily the witness against whom the contempt and arrest Order may be issued and who shall suffer the loss of his liberty. Procedural due process requires that said witness be informed of the rules governing his appearance and testimony before the Senate Committees, including the possible issuance of a contempt and arrest Order against him, because only then can he be aware of any deviation from the established procedure and of any recourse available to him.

Finally, much has been said about this Court not allowing the executive privilege to be used to conceal a criminal act. While there are numerous suspicions and allegations of crimes committed by public officers in the NBN Project, these remain such until the determination by the appropriate authorities. Respondent Senate Committees are definitely without jurisdiction to determine that a crime was committed by the public officers involved in the NBN Project, for such authority is vested by the Constitution in the Ombudsman. Again, it must be emphasized, that the Senate's power of inquiry shall be used to obtain information in aid of legislation, and not to gather evidence of a crime, which is evidently a prosecutorial, not a legislative, function.

In view of the foregoing, and in the exercise of this Court's power of judicial review, I vote to GRANT the Petition and DECLARE the Order dated 30 January 2008 of the respondent Senate Committees null and void for having been issued in grave abuse of discretion amounting to lack or excess of jurisdiction.



[1] G.R. No. 169777, 20 April 2006, 488 SCRA 1.

[2] Article VIII, Section 1.

[3] Tañada v. Angara , G.R. No. 118295, 2 May 1997, 272 SCRA 18, 48.

[4] In re: Wenceslao Laureta, G.R. No. 68635, 12 March 1987, 148 SCRA 382, 419, citing Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

[5] Id.

[6] See the Concurring Opinion of J. Concepcion in Guevara v. Inocentes, 123 Phil. 200, 217-218 (1966).

[7] 87 Phil. 29 (1950).

[8] Id. at 45.

[9] Id. at 45-46.

[10] Senate of the Philippines v. Ermita, supra note 1 at 45, citing B. SCHWARTZ, EXECUTIVE PRIVILEGE AND CONGRESSIONAL INVESTIGATORY POWER, 47 Cal. L. Rev. 3, and M. ROZELL, Executive Privilege and the Modern Presidents: In Nixon's Shadow (83 Minn. L. Rev. 1069).

[11] 433 Phil. 506, 534 (2002).

[12] 418 US 1039, 1063-1068 (1974).

[13] Id.

[14] Senate of the Philippines v. Ermita, supra note 1 at 51.

[15] Id. at 66.

[16] Id. at 69.

[17] TSN, 4 March 2008, pp. 706-709.





S E P A R A T E C O N C U R R I N G O P I N I O N


VELASCO, JR., J.:

This case turns on the privileged nature of what the petitioner, as then NEDA Director-General, discussed with the President regarding the scuttled ZTE-NBN contract juxtaposed with the authority of respondents Senate committees to look, in aid of legislation, into what was discussed.

On September 26, 2007, petitioner, on invitation of the respondents, testified on the ZTE-NBN contract and the bribe dangled in connection thereto. When queried on what he discussed with the President after he divulged the bribe offer, petitioner declined to disclose details of their conversations which he deemed privileged. Anticipating to be asked on the same subject and on order of the President invoking executive privilege, petitioner sent regrets on his inability to appear in the November 20, 2007 hearing. Respondents then asked the petitioner to explain why he should not be cited for contempt. Explain petitioner did, with a request that he be furnished in advance with questionnaires should respondents desire to touch on new matters. The contempt threat, which would eventually be carried out with the issuance of an arrest order, is cast against a backdrop that saw petitioner staying for 11 straight hours with the investigation committees and answering all their questions, save those he deemed covered by executive privilege.

Congressional investigations to elicit information in aid of legislation are valid exercise of legislative power, just as the claim of executive privilege is a valid exercise of executive power. In the Philippine setting, the term "executive privilege" means the power of the President to withhold certain types information from the courts, the Congress, and ultimately the public.[1] Apart from diplomatic and military secrets and the identity of government informers, another type of information covered by executive privilege relates to information about internal deliberations comprising the process by which government decisions are reached or policies formulated.[2] U.S. v. Nixon explains the basis for the privilege in the following wise:
The expectation of a President to the confidentiality of his conversation and correspondences, like the claim of confidentiality of judicial deliberations x x x has all the values to which we accord deference for the privacy of all citizens. x x x A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express privately. These are the considerations justifying a presumptive privilege for Presidential communications.[3]
Authorities are agreed that executive privilege is rooted on the doctrine of separation of powers, a basic postulate that forbids one branch of government to exercise powers belonging to another co-equal branch; or for one branch to interfere with the other's performance of its constitutionally-assigned functions. It is partly in recognition of the doctrine that "presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court x x x or executive sessions of either house of Congress x x x cannot be pried open by a co-equal branch of government."[4] And as the Court aptly observed in Gudani v. Senga, [5] the fact that the executive branch is an equal branch to the legislative creates a "wrinkle" to any basic rule that persons summoned to testify before Congress must do so.

So, was the eventual issuance of the assailed citation and arrest order justified when the duly subpoenaed petitioner declined to appear before the respondents' hearing through a claim of executive privilege "By Order of the President"? I turn to the extent and limits of the legislative power of inquiry in aid of legislation.

What was once an implicit authority of Congress and its committees to conduct hearings in aid of legislation--with the concomitant power necessary and proper for its effective discharge[6]--is now explicit in the 1987 Constitution.[7] And this power of inquiry carries with it the authority to exact information on matters which Congress is competent to legislate, subject only to constitutional restrictions.[8] The Court, in Arnault v. Nazareno,[9] acknowledged that once an inquiry is established to be within the jurisdiction of a legislative body to make, the investigation committee has the power to require the witness to answer any question pertinent to the subject of the inquiry and punish a recalcitrant or unwilling witness for contempt. But Bengson v. Senate Blue Ribbon Committee[10] made it abundantly clear that the power of Congress to conduct inquiries in aid of legislation is not "absolute or unlimited."

Section 21, Article VI of the Constitution providing:
The Senate or the House of Representatives or any of its respective committees 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.
establishes what we tagged in Senate v. Ermita (Ermita) as "crucial safeguards" that circumscribe the legislative power of inquiry. The provision thus requires the inquiry to: (1) properly be in aid of legislation, else, the investigating committee acts beyond its power; without a valid legislative purpose, a congressional committee is without authority to use the compulsory process otherwise available in the conduct inquiry in aid of legislation;[11] (2) be done in accordance with duly published rules of procedure, irresistibly implying the constitutional infirmity of an inquiry conducted without or in violation of such published rules; and (3) respect the rights of persons invited or subpoenaed to testify, such as their right against self-incrimination and to be treated in accordance with the norms individuals of good will observe.

The Communications between Petitioner
and the President are Covered by Executive Privilege;
the Privilege was Properly Claimed by and for Petitioner

Executive Secretary Ermita, in line with Ermita, duly invoked, by order of the President, executive privilege, noting, in a letter[12] to the Chairperson of the Blue Ribbon Committee that the following questions:
(1) Whether the President followed up the (NBN) project?
(2) Were you dictated to prioritize the ZTE? and
(3) Whether the President said to go ahead and approve the project after being told about the alleged bribe?
previously addressed to petitioner Neri, but left unanswered, "[fall] under conversations and correspondence between the President and public officials which are considered executive privilege." And explaining in some detail the confidential nature of the conversations, Sec. Ermita's letter further said:
The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, [Sec. Neri] cannot provide the Committee any further details of these conversations without disclosing the very thing the privilege is designed to protect.
The information the petitioner sought to keep undisclosed regarding the ZTE-NBN project dealt with high-level presidential communications with a subordinate over a matter involving a foreign power. Allowing such information to be extracted in an open-ended Senate committee investigation after an 11-hour grilling Neri was subjected to is tantamount to allowing a substantial, and unreasonable, incursion into the President's recognized right to confidentiality and to candidly interact with her advisers, a right falling under the aegis of executive privilege. The concept and assertion of executive privilege are after all intended, following the Ermita precedent, to protect a basic interest of the President, that is, the necessity that she receives candid and unfettered advice from his subordinates and that the latter be able to communicate freely and openly with her and with each other.

Respondents, in their Comment and during the oral arguments, stressed, and correctly so, that executive privilege cannot validly be invoked to conceal a crime, the point apparently being that the President knew of, or worse, was a player in the alleged ZTE-NBN bribery drama. It ought to be pointed out, however, that it is a bit presumptuous to suppose that what President and the petitioner discussed was about a crime. And would not executive privilege be reduced into a meaningless concept if, to preempt its application, any congressional committee raises, if convenient, the crime angle?

In Ermita, the Court, citing US case law,[13] outlined the steps to follow in claiming executive privilege. Foremost of these are: (1) it must be clearly asserted, which petitioner did, and by the Government to which the privilege belongs; (2) there must be a formal claim of privilege, lodged by the head of the department having control over the matter; and 3) the statement of the claim must be specific and the claim must state the reasons for withholding the information. Save for some broad statements about the need to protect military, diplomatic, and national security secrets, all the requirements respecting the proper manner of making the claim have satisfactorily been met. As we explained in Ermita, the Senate cannot require the executive to state the reasons for the claim with such particularity as to veritably compel disclosure of the information which the privilege is designed to protect in the first place.

It may be stated at this juncture that respondents committees have certain obligations to comply with before they can exact faithful compliance from a summoned official claiming executive privilege over the matter subject of inquiry. Again, Ermita has laid out the requirements to be met under that given scenario. They are, to me, not mere suggestions but mandatory prescriptions envisaged as they are to protect the rights of persons appearing or affected by the congressional inquiries. These requirements are: First, the invitation or subpoena shall indicate the possible questions to be asked; second, such invitation or subpoena shall state the proposed statute which prompted the need for the inquiry; and third, that the official concerned must be given reasonable time to apprise the President or the Executive Secretary of the possible need for invoking executive privilege. For the purpose of the first requirement, it would be sufficient if the person invited or subpoenaed is, at least, reasonably apprised and guided by the particular topics to be covered as to enable him to properly prepare. The questions need not be couched in precise details or listed down to exclude all others.

Annex "B" of the Petition, or the subpoena ad testificandum dated November 13, 2007 addressed to the petitioner literally makes no reference to any intended legislation. It did not also accord him with a fair notice of the questions likely to be asked. As it were, the subpoena contained nothing more than a command for the petitioner to appear before the Blue Ribbon Committee at a stated date, then and there to "testify on what [he] know[s] relative to the subject matter under inquiry." And lest it be overlooked, it is not clear from Annex "B" what matters relating to a proposed bill, if there be any, cannot be addressed without information as to the specifics of the conversation between the President and the petitioner.

In net effect, the subpoena thus issued is legally defective, issued as it were in breach of what to me are mandatory requirements. Accordingly, the non-compliance with the subpoena is, under the premises, justifiable. Similarly, respondent committees are precluded from imposing sanctions against the person, petitioner in this instance, thus subpoenaed should the latter opt not to comply with the subpoena.

Grave Abuse of Discretion tainted the issuance of the Order of Arrest

The perceived obstructive defiance of the subpoena (Annex "B", Petition) triggered the issuance of the assailed contempt and arrest order. It behooves the Court to now strike the said order down, not only because its existence is the by-product of or traceable to, a legally infirm subpoena, but also because the Senate Rules of Procedure Governing Inquiries in Aid of Legislation does not authorize the arrest of unwilling or reluctant witness not before it. Surely, respondents cannot look to Sec. 18 of the rules of procedure governing legislative inquiries as the arrest-enabling provision since it only speaks of contempt in the first place. Sec. 18 reads:
Sec. 18. Contempt. The Committee, by a majority vote of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members xxx Such witness may be ordered by the Committee to be detained in such place at it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents or to be sworn or to testify, or otherwise purge himself of that contempt.
I may even go further Internal rules of procedure cannot plausibly be the source of the power to issue an arrest order and, as has been the practice, for the security unit of the Senate to enforce the order. There must, I submit, be a law for the purpose and where the security unit is given the enforcing authority. The power to issue an order of arrest power is such an awesome, overreaching prerogative that the Constitution, no less, even sets strict conditions before a warrant of arrest will issue against a suspected criminal.[14]

The Court is very much aware that Sec. 3(c) of the Rules of the Senate empowers the Senate President to "sign x x x orders of arrest." It cannot be overemphasized, however, that the order for the petitioner's arrest was a joint committee action which naturally ought to be governed by the Rules of Procedure Governing Inquiries in Aid of Legislation, not the Rules of the Senate. It would be a sad commentary if Senate committees can choose to ignore or apply their very own rules when convenient, given that violation of these rules would be an offense against due process.[15]

But conceding for the nonce the authority of the respondents to order an arrest, as an incident to its contempt power, to be effected by their own organic security complement, the assailed order would still be invalid, the same not having been approved by the required majority vote of the respective members of each of the three investigating committees. Respondents veritably admitted the deficiency in votes when they failed to document or otherwise prove--despite a commitment to do so during the oral arguments--the due approval of the order of citation and arrest. And unable to comply with a promised undertaking, they offer the lame excuse that the matter of approval of the citation and arrest order is a non-issue.

Philippine jurisprudence remains unclear on what Congress may do should a witness refuse to obey a subpoena. Fr. Bernas has stated the observation, however, that there is American jurisprudence which recognizes the power of Congress to punish for contempt one who refuses to comply with a subpoena issued by a congressional investigating body, albeit the practice seems to be that the Congress asks a court to directly order compliance with a subpoena.[16]

Conclusion

In sum, petitioner had not acted in a manner to warrant contempt, arrest and detention. Far from it. He appeared before respondents committees in the hearing of September 26, 2007 which, to repeat, lasted for 11 hours where he answered all the questions not requiring, in response, divulging confidential matters. Proper procedures were followed in claiming executive privilege, as outlined in Ermita. In due time, he replied to the show-cause order the respondents issued.

Considering the circumstances, as discussed, under which it was issued, the assailed January 30, 2008 order should be struck down as having been issued in grave abuse of discretion.

I, therefore, vote to grant the petition.



[1] Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1.

[2] Id.

[3] 418 U.S. 683 (1974); cited in Almonte v. Vasquez, G.R. No. 95367, May 23, 1995, 244 SCRA 286.

[4] Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152, 188-189.

[5] G.R. No. 170165, August 15, 2006, 498 SCRA 671.

[6] Sabio v. Gordon, G.R. No. 174340, October 17, 2006, 504 SCRA 704; citing McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct.

[7] Art. VI, Sec. 21.

[8] Briggs v. MacKellar, 2 Abb. Pr. 30 (N.Y.) 1864), cited in Sabio v. Gordon, supra.

[9] 87 Phil. 29 (1950).

[10] G.R. No. 89914, November 20, 1991; 203 SCRA 767, citing Arnault.

[11] Bengson v. Senate Blue Ribbon Committee, supra.

[12] Sec. Ermita's letter dated Nov. 15, 2007 to Sen. Alan Peter Cayetano, Annex "C," Petition.

[13] U.S. v. Reynolds, 345 U.S 1, 73 S. Ct. 528.

[14] Art. III, Sec. 2 of the Constitution provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched or the persons and things to be seized.

[15] Bernas, The 1987 Constitution of the Philippines: A Commentary (2003), p. 740

[16] J.G. Bernas, "Sounding Board: Shielding the President." Philippine Daily Inquirer, February 11, 2008.



SEPARATE CONCURRING OPINION


NACHURA, J.:

I concur in the comprehensive and well-reasoned ponencia of Justice Leonardo-De Castro.

However, I wish to add a few thoughts on the matter of executive privilege, specifically on the area of the presumptive privilege of confidentiality enjoyed by the President relative to Presidential conversations and correspondences necessary for shaping policies and decision-making.

I

U.S. v. Nixon,[1] the leading case on executive privilege in the United States, acknowledges a constitutionally-recognized "presumptive privilege" on the confidentiality of presidential communications. The rationale for such privilege is expressed in the following disquisition:
The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens, and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping polices and making decisions and to do so in a way many would be unwilling to express except privately. These are the consideration justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. [2]
However, it is simply a generalized privilege of confidentiality and does not enjoy the same degree of unqualified acceptance as the governmental privilege against public disclosure of state secrets regarding military, diplomatic and other national security matters. Further, it must be formally claimed or asserted by the appropriate executive official. As held in U.S. v. Reynolds: [3]
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by the officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.
In the Philippines, we ruled in Senate v. Ermita,[4] that it is only the President, or the Executive Secretary "by order of the President," who may invoke executive privilege.

Because the foundation of the privilege is the protection of the public interest, any demand for disclosure of information or materials over which the privilege has been invoked must, likewise, be anchored on the public interest. Accordingly, judicial recognition of the validity of the claimed privilege depends upon "a weighing of the public interest protected by the privilege against the public interest that would be served by disclosure in a particular case."[5] While a "demonstrated specific need" for material may prevail over a generalized assertion of privilege, whoever seeks the disclosure must make "a showing of necessity sufficient to outweigh the adverse effects the production would engender."[6]

It is in light of these principles that, in the case at bench, we are called upon to strike a balance between two clashing public interests: the one espoused by the Executive Department, and the other asserted by the respondents Senate Committees.

More specifically, the controversy on this particular issue has boiled down to whether this presumptive (executive) privilege may be validly invoked - and whether the invocation was procedurally proper - over the following questions which the petitioner refused to answer when he appeared at the hearing conducted by the respondents:
  1. Whether the President followed-up the NBN project?

  2. Were you dictated (by the President) to prioritize the ZTE (proposal)?

  3. Whether the President said to go ahead and approve the project after being told about the alleged bribe (offer)?[7]
Executive Secretary Ermita articulated the position taken by the executive department in this wise:
Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision-making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for the protection of the public interest in candid, objective, and even blunt harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, [the petitioner] cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.[8]
On the other hand, the respondents contended that in the exercise of their power to conduct inquiries in aid of legislation under Section 21, Article VI of the Constitution, they are entitled to the disclosure of the information sought from the petitioner. In opposition to the claim of executive privilege, they also raised the general constitutional principles of full public disclosure of all transactions involving public interest,[9] the right of the people to information on matters of public concern,[10] public office is a public trust,[11] the President's duty to faithfully execute the laws,[12] and the due process clause.[13] Finally, they cited the postulate that executive privilege cannot be resorted to in order to shield criminal activity or wrongdoing.

A survey of relevant jurisprudence is useful. Almonte v. Vasquez,[14] Chavez v. PCGG,[15] and Chavez v. Public Estates Authority[16] acknowledged the right of government to withhold certain types of information from the public. In the Chavez cases, there was already recognition of "privileged information" arising from "separation of powers," commonly understood to include Presidential conversations, correspondences and discussions in closed-door Cabinet meetings. But it was in Senate v. Ermita that the matter of the President's presumptive privilege was explicitly discussed.

However, foreign jurisprudence, notably American decisions from which this Court had repeatedly drawn its conclusions, still appear to be the more insightful. For the case at bench, they should provide this Court the proper perspective to deal with the problem at hand.

First, in U.S. v. Nixon, it is abundantly clear that when the general privilege of confidentiality of Presidential communications notably made in the performance of the President's duties and responsibilities is ranged against the requirements in the fair administration of criminal justice, executive privilege must yield. According to the U.S. Supreme Court, the right to the production of evidence at a criminal trial has constitutional dimensions. The high tribunal declared:
The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of criminal prosecution.

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal case.[17]
However, in almost the same breath, the U.S. Court aired the caveat that this ruling is "not concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets."[18]

Indeed, with respect to civil cases, this admonition was reiterated and clarified in a subsequent decision involving the Vice-President of the United States.

In Cheney v. U.S. District Court for the District of Columbia,[19] where the United States District Court for the District of Columbia entered orders permitting discovery against Vice-President Cheney, other federal officials and members of the National Energy Policy Development Group (NEPDG) on the basis of the allegation of a public interest organization and environmental group that NEPDG was subject to procedural and disclosure requirements of the Federal Advisory Committee Act (FACA), the U.S. Supreme Court stressed the disparity between criminal and civil judicial proceedings in so far as the need for invocation of executive privilege with sufficient specificity is concerned. In reversing the Court of Appeals, the U.S. Supreme Court declared:
The Court of Appeals dismissed these separation of powers concerns. Relying on United States v. Nixon, it held that even though respondents' discovery requests are overbroad and "go well beyond FACA's requirements," the Vice-President and his former colleagues on the NEPDG "shall bear the burden" of invoking privilege with narrow specificity and objecting to the discovery requests with "detailed precision." In its view, this result was required by Nixon's rejection of an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances". x x x

The analysis, however, overlooks fundamental differences in the two cases. Nixon involves the proper balance between the Executive's interest in the confidentiality of its communication and the "constitutional need for production of relevant evidence in a criminal proceeding." The Court's decision was explicit that it was "not ... concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation ... We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials."

The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. x x x In light of the "fundamental" and "comprehensive" need for "every man's evidence" in the criminal justice system, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth." The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to the production of relevant evidence in civil proceedings does not have the same "constitutional dimensions."[20]
As to the conflict between the confidentiality interest invoked by the President and congressional demands for information in a legislative investigation, there is a close parallel between the instant case and Senate Select Committee on Presidential Campaign Activities v. Nixon.[21]

In that case, the Senate Committee was created by resolution of the Senate to investigate "illegal, improper or unethical activities" occurring in connection with the presidential campaign and election of 1972, and "to determine ... the necessity or desirability of new congressional legislation to safeguard the electoral process by which the President of the United States is chosen." In testimony before the Committee, Alexander Butterfield, a former Deputy Assistant to the President, stated that certain presidential conversations, presumably including those which Mr. Dean and others had previously testified to, had been recorded on electronic tapes. The Committee thereupon attempted informally to obtain certain tapes and other materials from the President. When these efforts proved unsuccessful, the Committee issued the subpoena subject of the case.[22]

Refusing to apply Nixon v. Sirica,[23] the U.S. appellate court's ratiocination is instructive:
We concluded that presidential conversations are presumptively privileged, even from the limited intrusion represented by in camera examination of the conversations by a court. The presumption can be overcome only by an appropriate showing of public need by the party seeking access to the conversations. In Nixon v. Sirica, such a showing was made by the Special Prosecutor: we think that this presumption of privilege premised on the public interest in confidentiality must fall in the face of the uniquely powerful showing by the Special Prosecutor. x x x As we have noted, the Special Prosecutor has made a strong showing that the subpoenaed tapes contain evidence peculiarly necessary to the carrying out of this vital function - evidence for which no effective substitute is available. The grand jury here is not engaged in a general fishing expedition, nor does it seek in any way to investigate the wisdom of the President's discharge of his discretionary duties. On the contrary, the grand jury seeks evidence that may well be conclusive to its decisions in on-going investigations that are entirely within the proper scope of this authority.[24]
The Court then denied the prayer of the Select Committee in this wise:
We find that the Select Committee has failed to make the requisite showing. In its papers below and in its initial briefs to this Court, the Committee stated that it seeks the materials in question in order to resolve particular conflicts in the voluminous testimony it has heard, conflicts relating to "the extent of malfeasance in the executive branch," and, most importantly, the possible involvement of the President himself. The Committee has argued that the testimony before it makes out "a prima facie case that the President and his closest associates have been involved in criminal conduct," that the "materials bear on that involvement," and that these facts alone must defeat any presumption of privilege that might otherwise prevail.

It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigation by the proper governmental institutions into possible criminal wrongdoing. x x x But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.

x x x x

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress's legislative tasks and the responsibility of a grand jury, or an institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least, not in the circumstances of this case.[25]
Applying the foregoing decisions to the case at bench, it is my view that the respondents' need for disclosure of the information sought from the petitioner does not at all approximate the "constitutional dimensions" involved in criminal proceedings. While it is true that the Senate Committees, when engaged in inquiries in aid of legislation, derive their power from the Constitution, this is not a situation analogous to that in Nixon, where the court's ability to fulfill its constitutional mandate to resolve a case or controversy within its jurisdiction hinged on the availability of certain indispensable information. Rather, as in Senate Select Committee, this is a situation where Senate Committees insist on obtaining information from the petitioner, without at all any convincing showing how and why the desired information "is demonstrably critical to the responsible fulfillment of the Committees' functions." Indeed, respondents have not adequately explained how petitioner's answers to the three questions are crucial to the task of crafting the intended legislation given the inescapable fact that numerous other persons, from the ranks of government and the private sector, had been called to and had already testified at the respondent's hearings.

My own legislative experience echoes the perceptive observation of Senate Select Committee:
While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings.
It is not uncommon for some legislative measures to be fashioned on the strength of certain assumptions that may have no solid factual precedents. In any event, the respondents have not demonstrated that the information sought is unqualifiedly necessary for a legitimate legislative purpose, or that the intended legislation would be stillborn without petitioner's responses to the three questions. The respondents have likewise failed to show that the information needed for legislation cannot be obtained from sources other than the petitioner. In fine, the presumption was not successfully rebutted.

II

On the procedure for the invocation of the privilege, it is the respondents' position that when the President decides to claim this presumptive privilege, there arises the concomitant duty on her part to express the reason/s therefor with specificity. From the vantage point of respondents, it appears that the burden of showing the propriety of the claim of privilege devolves upon whoever invokes it, even if the corresponding obligation on the part of whoever demands disclosure to prove necessity of access to the information desired has not been met.

My own view of the process is quite the opposite. When the President invokes the privilege, announcing the reasons therefor - in this case, the possible rupture of diplomatic and economic relations with the People's Republic of China, and the chilling effect that disclosure of confidential information will have on the President's policy- and decision-making responsibilities[26] -- then the presumptive privilege attaches. At this point, the burden to overcome the presumption rests on the shoulders of whoever demands disclosure - in this case, the Senate Committees - and to discharge this burden requires a showing that the public interest will be better served by the revelation of the information.

In Nixon, the criminal subpoenas were required to comply with the exacting standards of relevancy, admissibility and specificity. As declared by the U.S. Supreme Court:
Upon invocation of the claim of privilege by the President to whom subpoena duces tecum had been directed, it was the duty of the district court to treat the subpoenaed material as presumptively privileged and to require the special prosecutor to demonstrate that the presidential material was essential to justice of the pending criminal case.[27]
Thus, the Court addressed the issue of executive privilege only after it was satisfied that the special prosecutor had adequately met these demanding requirements.

In Nixon v. Sirica, the Court found that the Special Prosecutor had made a uniquely powerful showing that the subpoenaed tapes contain evidence peculiarly necessary to carrying out the vital functions of the grand jury - evidence for which no effective substitute was available. In that light, the presumptive privilege had to yield.

In the present controversy, no such standards were set, and none was observed.

In lieu of a showing of a specific necessity for disclosure, the respondent Committees continue to insist on the primacy of its power of legislative inquiry, upon a claim that to uphold the presumptive privilege is an impermissible infringement of the legislative power, and to permit the withholding of the desired information will result in the emasculation of the Senate as a legislative body. Of course, this is accompanied by the invocation of the general constitutional principles of transparency, right to information, due process, public office is a public trust, among others, and the unbending adherence to the pronouncement in Senate v. Ermita that: "A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted."

But if U.S. v. Nixon is to be our anchor, then we must concede that the requirements of necessity and specificity are demanded not only of he who claims the presumptive privilege, but also of the one who desires disclosure. And to our mind, the respondents have fallen short of these requirements.

Then, there is the undeniable imperative that executive privilege cannot be used to shield criminal activity or wrongdoing. Again, we must draw reason from extant jurisprudence. Senate Select Committee explicates the point which the respondents are missing:
But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.
It is the function of the respondents to investigate criminal activity; this is a responsibility of other agencies, such as the Office of the Ombudsman. This Court may even take judicial notice of the fact that the Ombudsman, upon a request of the President, has already commenced a criminal investigation into the subject of the legislative inquiry, the NBN deal. Presumably, the Ombudsman has already summoned the petitioner to give testimony therein, and by analogy with Nixon v. Sirica, petitioner cannot withhold information in that investigation by invoking executive privilege.

Finally, it should not escape this Court that on oral argument, the respondents were asked if they had complied with the following guidelines suggested in Senate v. Ermita, as a way of avoiding the pitfalls in Bengzon v. Senate Blue Ribbon Committee:[28]
One possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statements in its invitations, along with the usual indication of the subject of the inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.
In reply, the respondents admitted that they did not. This admission has cast a shadow on the regularity of the inquiry such that even the main argument of respondents could fall.

In light of the foregoing, I vote to GRANT the petition.



[1] 418 U.S. 683; 41 L. Ed. 2d 1039 (1973).

[2] U.S. v. Nixon, supra., cited in Almonte v. Vasquez, 314 Phil. 150 (1995).

[3] 345 U.S. 1, 73 S. Ct. 528 (1953).

[4] Supra.

[5] Black v. Sheraton Corporation of America, 564 f. 2D 531, 184 U.S. App. D.C. 46, 23 Fed. R. Serv. 2d 1490, citing Nixon v. Sirica, 159 U.S. APP. D.C., at 74, 487 F. 2d, at 716.

[6] Black v. Sheraton Corporation of America, supra.

[7] Letter dated November 15, 2007, of Executive Secretary Eduardo R. Ermita to Senate Blue Ribbon Committee Chairman Alan Peter Cayetano; Annex "C", Petition. Parenthetically, events occurring after the start of the legislative inquiry, such as the cancellation of the NBN contract and the Presidential directive for the Ombudsman to conduct its own investigation into the possible criminal liability of persons concerned, for non-issues in this case.

[8] Id.

[9] Philippine Constitution, Art. II, Sec. 26.

[10] Philippine Constitution, Art. III, Sec. 7.

[11] Philippine Constitution, Art. XI, Sec. 1.

[12] Philippine Constitution, Art. VII, Sec. 17.

[13] Philippine Constitution, Art. III, Sec. 1.

[14] 314 Phil. 150 (1995).

[15] 360 Phil. 133 (1998).

[16] 433 Phil. 506 (2002).

[17] U.S. v. Nixon, supra.

[18] Underscoring supplied.

[19] 542 U.S. 367, 124 S. Ct. 2576 (2004).

[20] Id.

[21] 498 F. 2d 725, 162 U.S. Appl. D.C. 183.

[22] Senate Select Committee v. Nixon, supra.

[23] 159 U.S. App. D.C. 58, 487 F. 2d 700.

[24] Senate Select Committee, supra.

[25] Id.

[26] See letter of Executive Secretary Ermita, Annex "C," Petition.

[27] U.S. v. Nixon, supra.

[28] G.R. No. 89914, November 20, 1991, 203 SCRA 767.




S E P A R A T E C O N C U R R I N G O P I N I O N


BRION, J.

I vote to grant the petition from the prism of two striking features of this case.

First, this case involves a frontal clash between the two great branches of government - the Executive and the Legislature. Caught in between, although identified with the Executive, is the petitioner Romulo L. Neri ("Neri" or "petitioner"). I point this out because in this frontal clash the law expressly recognizes the man in the middle - Neri - as an individual whose rights have to be respected and who should therefore be given sufficient focus as an individual in this Court's consideration of the issues.

The second point relates to the breadth of the issues raised. Because of the frontal clash, the question of the proper parameters for the use of "executive privilege" has been raised by the parties. The factual situation, however, only involves the petitioner's three (3) cited (and the possibly related follow up) questions and puts into issue only the privileged status of conversations and correspondence between the President and Neri in the exercise of executive and policy decision making. At least two (2) Justices[1] strongly implied that the Court can provide a more comprehensive ruling on the executive privilege issue if the petitioner would be allowed to appear at the Senate to answer questions, subject to his right to invoke executive privilege in answering further questions and to the Court's ruling on all the questions claimed to be covered by executive privilege. Unfortunately, the Senate did not positively respond to these suggestions; hence, the narrow issues confronting Us in this case.

Tension between the Executive and the Senate, without doubt, has been building up since the issuance of Executive Order 464 which this Court struck down in part in Our decision in Senate v. Ermita.[2] Our decision, however, did not totally ease the tension and was evidently still there when petitioner Neri was invited to the Senate in September 2007, leading to a series of events (more fully described below) that culminated in the Senate Committees' issuance of a citation for contempt and an arrest order for Neri.

Under the terms of the present petition, the direct issue raised is whether the Senate acted with grave abuse of discretion in ordering the arrest of Neri considering the processes that led to the order of arrest and the substantive conclusion that no valid claim to executive privilege had been made.

On the processes aspect, I conclude that the Senate processes were attended by fatal infirmities that should invalidate the contempt citation and the order of arrest. Even allowing for the attendant tension, the inter-branch lack of cooperation, and Neri's admitted absences, the Senate Committees' arrest order was a misplaced move from the strictly legal point of view and one that was out of proportion to the attendant circumstances under the standards of common human experience.

This view proceeds from no less than the 1987 Constitution that expressly provides that "The rights of persons appearing in or affected by such inquiries shall be respected".[3] Interestingly, this Section as a whole seeks to strengthen the hand of the Legislature in the exercise of inquiries in aid of legislation. In so doing, however, it makes the above reservation for the individual who may be at the receiving end of legislative might. What these "rights" are the Section does not expressly say, but these rights are recognized by jurisprudence and cannot be other than those provided under the Bill of Rights - the constitutional provisions that level the individual's playing field as against the government and its inherent and express powers.[4]

Thus, Neri cannot be deprived of his liberty without due process of law, as provided under Article III Section 1 of the Bill of Rights. Short of actual denial of liberty, Neri should - as a matter of constitutional right - likewise be protected from the humiliation that he so feared in a congressional investigation.[5] All these rights should be guaranteed to him without need of distinguishing and hairsplitting between coercive and punitive contempt.

The petitioner's travails started when he was summoned to appear before the Senate Committees in relation with the inquiry into the ZTE-NBN Project for the supply of telecommunication equipment and services. He did not appear at the first hearing on September 18, 2007 and on October 25, 2007, but he showed up and testified at the hearing of September 26, 2007. This hearing took all of eleven (11) hours and ended in an executive session that was cut short because of Neri's deteriorated physical condition.

For the hearing of November 20, 2007, the Senate Committees issued Neri a subpoena ad testificandum to formally compel his attendance. In response, Neri referred the matter to the President who ordered him to invoke executive privilege. Executive Secretary Ermita implemented the presidential directive by writing the Senate a letter claiming executive privilege for the President and asking that the presence of Neri be dispensed with since he had been examined extensively in the hearing of September 26, 2007.[6]

The Senate did not formally reply to the Ermita letter and instead sent its "show cause" order of November 22, 2007 for Neri to explain why he should not be cited for contempt for his absence on November 20, 2007.[7]Neri himself and his counsel replied to the "show cause" order, further explaining his non-attendance and offering to attend for examination on other non-privileged matters.[8] On top of this reply, he came to this Court on December 7, 2007 via the present petition for a definitive judicial ruling.

The Senate Committees chose to disregard these explanations and the claim of executive privilege, and instead issued the currently disputed Order (dated January 30, 2008) citing Neri "in contempt of this (sic) Committees". . ."(f)or failure to appear and testify in the Committees's (sic) hearings on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007 and Tuesday, November 20, 2007. . .".[9]

Even from a strictly layman's perspective, I cannot see how arrest and imprisonment can be justified for one who has complied with the most essential Senate requirements, i.e., to testify and to explain his failure to attend. Neri did comply with the Senate's orders to attend and testify; underwent hours of grilling before the Senate Committees; did submit explanations for the times when he could not comply; and committed to attend future hearings on matters that are not privileged. To further ensure that he is properly guided, Neri sought judicial intervention by recourse to this Court through the present petition.

Under these circumstances, his arrest cannot but be highly unfair. This is particularly true if, as suggested during the oral arguments, there were middle ground moves that would have avoided an arrest order had there been more inter-branch cooperation between the contending great branches of government - a condition that is largely out of Neri's control and capacity to bring about.

From a legal perspective, I see no indication from the given facts of this case, of the defiance that merited the condemnation of Congress and the support of this Court for the congressional arrest order in Arnault v. Nazareno[10]. I also do not see how Neri could validly be cited for contempt and ordered arrested for all his absences[11] after having been formally asked to explain only one absence, namely, that of November 20, 2007.[12] I likewise cannot help but note that the arrest order strongly suggests a lack of inter-branch courtesy, this time by the Senate as against this Court whose formal intervention Neri has sought. I note too that the arrest order runs counter to the respondents' open manifestation on oral arguments that the Senate itself wanted the issue of Neri's attendance resolved through the petition that Senator MAR Roxas himself brought before this Court.[13]

That the Senate committees engaged in shortcuts in ordering the arrest of Neri is evident from the record of the arrest order. The interpellations by Justices Tinga and Velasco of Senators Rodolfo G. Biazon (Chair of the Committee on National Defense and Security) and Francis N. Pangilinan (Senate Majority Leader) yielded the information that none of the participating Committees (National Defense and Security, Blue Ribbon, and Trade and Commerce) registered enough votes to approve the citation of contempt and the arrest order.[14] An examination of the Order dated 30 January 2008[15] shows that only Senators Alan Peter Cayetano, Aquino III, Legarda, Honasan and Lacson (of 17 regular members) signed for the Blue Ribbon Committee; only Senators Roxas, Pia Cayetano, Escudero and Madrigal for the Trade and Commerce Committee (that has 9 regular members); and only Senators Biazon, and Pimentel signed for the National Defense and Security Committee (that has 19 regular members). Senate President Manny Villar, Senator Aquilino Pimentel as Minority Floor Leader, Senator Francis Pangilinan as Majority Floor Leader, and Senator Jinggoy Ejercito Estrada as President Pro Tempore, all signed as ex-officio members of the Senate standing committees but their votes, according to Senator Biazon's testimony, do not count in the approval of committee action.

Asked about these numbers, Senator Pangilinan as Majority Floor Leader could only state that any defect in the committee voting had been cured because the sixteen (16) senators who voted, or two-thirds of the Senate, effectively signed for the Senate in plenary session.[16] The Order of arrest, however, was issued in the names of the three participating committees, and was signed by the sixteen (16) senators as committee members, either regular or ex-oficio, and not as senators acting in plenary. Furthermore, Section 18 of the Rules Governing Inquiries in Aid of Legislation, does not authorize the committees to issue a warrant of arrest against a witness who fails to obey a subpoena ad testificandum. This power is vested solely by Rule III Section 3 of the Rules of the Senate on the Senate President. While Senate President Manny Villar did sign the arrest order together with the members of the three (3) participating committees, there still appeared no valid basis for his action for lack of effective and valid supporting committee action authorizing the order of arrest; the signatures of the sixteen (16) senators were mere unintended results of their respective participation in the investigating committees, and did not reflect their intent to sign as senators in plenary session. The contempt citation and order of arrest therefore do not have any basis in effective committee and Senate actions and cannot thus stand as valid.

Thus, in more ways than one, the rights of petitioner Neri - the individual - were grossly violated by Senate action in contravention of the constitutional guarantee for respect of individual rights in inquiries in aid of legislation. If only for these proven violations, We should grant Neri's petition.

The Senate Committees' apparent conclusion that the questions - both the expressly cited and the related follow-ups - are not covered by executive privilege appears to miss the point of the letter of Secretary Ermita when he claimed the privilege for conversations and correspondence of the President in the exercise of her executive and policy decision making. Although Secretary Ermita stated that the information might impair diplomatic as well as economic relations with the People's Republic of China, the thrust of the claimed privilege is not so much the "content" of the conversation or correspondence, but the fact of conversation in the course of executive and policy decision making. In other words, it is not necessary for the conversation or correspondence to contain diplomatic, trade or military secret as these matters are covered by their own reasons for confidential treatment. What is material or critical is the fact of conversation or correspondence in the course of official policy or decision making; privilege is recognized to afford the President and her executives the widest latitude in terms of freedom from present and future embarrassment in their discussions of policies and decisions. This narrow exception to the rule on disclosure and transparency ultimately redounds to the public interest in terms of the quality and timeliness of executive policies and decisions and, in this sense, is not anathema to other constitutional guarantees relating to the people's right to know and public accountability. Like police and other inherent powers of government, it may seemingly give the government a strong hand but in the end is best for the common good.

Significantly, this type of privilege is not for the Executive to enjoy alone. All the great branches of government are entitled to this treatment for their own decision and policy making conversations and correspondence. It is unthinkable that the disclosure of internal debates and deliberations of the Supreme Court or the executive sessions of either Houses of Congress can be compelled at will by outside parties. We need not cite foreign authorities for this proposition as We have so ruled in Chavez vs. Public Estates Authority.[17]

Thus, these types of Presidential conversations are presumed privileged once it is established that they refer to official policy or decision making.[18] The operative words for the presumption to arise are "official policy or decision making". To be sure, the presumption is not absolute as the purpose is not to shield the President from any and all types of inquiries. Where a higher purpose requiring disclosure is present and cited in the proper proceeding, then the privilege must fall and disclosure can be compelled. As the oral arguments on the case showed, all parties are agreed that the privilege cannot be used to shield crime as disclosure will then serve the higher purpose of bringing injustice to light.

Concretely applied to the case of Neri, the privilege presumptively applied after Neri claimed, with the authority of the President, that his phone conversation with her related to the handling of "delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines". The key word in this statement is "impact" in the economic policy sense (as Neri was then the head of NEDA), not the fact of bribery which, as a crime, the President must discuss with the police, law enforcers and prosecutors, not with her economic team members.

Unless and until it can therefore be shown in the proper proceeding that the Presidential conversation related to her involvement in, knowledge of or complicity in a crime, or where the inquiry occurs in the setting of official law enforcement or prosecution, then the mantle of privilege must remain so that disclosure cannot be compelled. This conclusion is dictated by the requirement of order in the delineation of boundaries and allocation of governmental responsibilities. The "proper" proceeding is not necessarily in an inquiry in aid of legislation since the purpose of bringing crime to light is served in proceedings before the proper police, prosecutory or judicial body, not in the halls of congress in the course of investigating the effects of or the need for current or future legislation.

In these lights, I reiterate my vote to grant the petition.



[1] Chief Justice Reynato S. Puno (at pages 431-436) and Justice Antonio T. Carpio (at page 441-448), TSN, March 4, 2008.

[2] G.R. No. 169777, April 20, 2006

[3] Article VIII, Section 21, Philippine Constitution.

[4] See: Bengzon, et al., vs. The Senate Blue Ribbon Committee, G.R. No. 89914, Nov. 20, 1991.

[5] TSN, March 4, 2008, at pages 188-190..

[6] Annex "C" to the Petition dated December 7, 2007.

[7] Annex "A" to the Petition.

[8] Annexes "D" and "D-1" to the Petition.

[9] Annex "A" of the Supplemental Petition for Certiorari dated January 30, 2008.

[10] G.R. No. L-3828, July 18, 1950.

[11] Supra, at Note 7.

[12] Supra, at Note 9.

[13] TSN, March 4, 2007, at page 334.

[14] TSN, March 4, 2008, at pages 490 - 519.

[15] Supra, at Note 9.

[16] TSN, March 4, 2008, at page 529-530.

[17] Chavez v. Public Estates Authority, G.R. 133250, July 9, 2008.

[18] See: U.S. v. Nixon, 418 U.S. 683 (1974).

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