32 - Neri v. Senate Committee

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DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION ●

ROMULO L. NERI, Petitioner, -versus- SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,

In particular, he refused to answer the questions on ○

1.) Whether or not the President followed up the NBN Project,

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2.) Whether or not she directed him to prioritize it, and

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3.) Whether or not she directed him to approve it.

SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY G.R. No. 180643| March 25, 2008 Ratio: Three elements should be met for a communication to be considered presidential communications privilege. First, the communications relate to a "quintessential and non-delegable power" of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.45 Second, the communications are "received" by a close advisor of the President. Under the "operational proximity" test, petitioner can be considered a close advisor, being a member of President Arroyo's cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

Respondent Committees issued a Subpoena Ad Testificandum to petitioner.

However, Executive Secretary Eduardo Ermita sent a letter to the Committees requesting them to dispense with Neri’s testimony on the ground of executive privilege and that the three (3) questions "fall under conversation and correspondence between the President and public officials" necessary in "her executive and policy decision-making process" and, that "the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China."

Facts: Petitioner Romulo Neri, then Director General of the NEDA, was invited by the respondent Senate Committees to attend their joint investigation on the alleged anomalies in the National Broadband Network (NBN) Project, where the Philippine Government entered a contract with the Chinese firm Zhong Xing Telecommunications Equipment (ZTE).

When petitioner testified before the Senate Committees, he disclosed that then COMELEC Chairman Abalos, brokering for ZTE, offered him P200 million in exchange for his approval of the NBN Project. ●

He informed President Gloria Macapagal-Arroyo about the bribery attempt and that she instructed him not to accept the bribe.

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However, when petitioner was asked the following three questions, he refused to answer, invoking “executive privilege.”

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Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations.

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Neri did not appear before the respondent Committees.

A Show Cause Letter was sent to Neri for his failure to attend the scheduled hearing.

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Neri replied that his nonappearance was upon the order of the President, and that such matters relate to national security and diplomatic matters and the possible loss of confidence of foreign investors.

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Respondents found the explanation unsatisfactory, and later on issued an Order citing Neri in contempt and consequently ordering

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his arrest and detention at the Office of the Senate Sergeant-AtArms until he appears and gives his testimony.

Neri filed the petition asking the Court to nullify both the Show Cause Letter and the Contempt Order for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and stressed that his refusal to answer was anchored on executive privilege in accordance with the ruling in the 2006 landmark case of Senate vs. Ermita.

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● The Senate Committees argued that they did not exceed their authority in issuing the assailed orders because there is no valid justification for Neri’s claim to executive privilege. ●

Also, the refusal of petitioner to answer the three questions violates the people’s right to public information, and that the executive is using the concept of executive privilege as a means to conceal the criminal act of bribery in the highest levels of government.

The Court expounded further on the third element and ruled that Presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. In this case, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law.

Issues: 1. Whether or not the three questions that petitioner Neri refused to answer were covered by executive privilege, making the arrest order issued by the respondent Senate Committees void?

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2. Whether or not the claim of executive privilege is properly invoked?

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Held:

Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article.  In Senate v. Ermita, the Court ruled that the "the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation."

To distinguish if the inquiry is in aid of legislation or in the exercise of oversight function of Congress, it will depend on the content of the questions and the manner the inquiry is conducted.

1. YES. The Court cited the US cases of Nixon, In Re Sealed Case and Judicial Watch, in determining the communications elicited by the three (3) questions are covered by the presidential communications privilege.  ●

delegable power" of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.  Second, the communications are "received" by a close advisor of the President. Under the "operational proximity" test, petitioner can be considered a close advisor, being a member of President Arroyo's cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

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First, the communications relate to a "quintessential and non-

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Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made.

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In United States v. Nixon, the Court held that "demonstrated, specific need for evidence in pending criminal trial" outweighs the President's "generalized interest in confidentiality." ●

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However, the present case does not have the same circumstances with the Nixon case. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.

To properly invoke executive privilege, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter." A formal and proper claim of executive privilege requires a "precise and certain reason" for preserving their confidentiality.57

The Letter dated of Executive Secretary Ermita serves as the formal claim of privilege, where he expressly states that "this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly." ●

The Court ruled that he is referring to the Office of the President.

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The case of Senate v. Ermita only requires that an allegation be made "whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc."

The particular ground must only be specified. The enumeration is not even intended to be comprehensive."58 

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As held further in Senate v. Ermita, 59 the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.

Case Digest: Chavez, F. M. N. M. C.

2. YES.

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