Neri v. Senate Committee [Sept.

4, 2008]

24 SEP

Neri v. Senate Committee

Action:
A motion for reconsideration of the Decision dated Mar. 25 2008, granting the petition for certiorari
filed by petitioner Romulo Neri against the respondent Senate Committee on Accountability of
Public Officers and Investigations, Trade and Commerce, and National Defense and Security (the
“Committees”).

Fact:
Neri appeared before the Committees and testified for about 11 hours on matters concerning the
NBN Project, a project awarded by the DOTC to ZTE.

Neri disclosed that then Comelec Chairman Benjamin Abalos offered him P200M in exchange for his
approval of the NBN Project. He informed PGMA of the bribery attempt and that she instructed him
not to accept the bribe. However, when probed further on PGMA and his discussions relating to the
NBN Project, Neri refused to answer, invoking “executive privilege.”

Committees persisted in knowing Neri’s answers to (a) w/n PGMA followed up the NBN Project, (b)
w/n she directed him to prioritize it, and (c) w/n she directed him to approve it, required him to
appear and testify once more on Nov. 20 2007. On that day, Neri did not appear upon orders of the
President invoking executive privilege.

On Nov. 22, the Committees issued the show-cause letter requiring him to explain why he should not
be cited in contempt. On Nov. 29, Neri’s replied that he manifested that it was not his intention to
ignore the Senate hearing and that he thought the only remaining questions were those he claimed to
be covered by executive privilege. He also manifested his willingness to appear and testify should
there be new matters to be taken up. He requested that he be furbished “in advance as to what else”
he “needs to clarify.”

Issue:
1. w/n there is a recognized presumptive presidential communications privilege in our legal system
2. w/n there is factual or legal basis to hold that the communications elicited by the 3 questions are
covered by executive privilege
3. w/n Committees have shown that the communications elicited by the 3 questions are critical to the
exercise of their functions
4. w/n Committees committed grave abuse of discretion in issuing the contempt order
Held:
1. Yes. In Almonte v. Vasquez, the Court affirmed that the presidential communications privilege is
fundamental to the operation of government and inextricably rooted in the separation of powers
under the Constitution. The Court articulated that “there are certain types of information which the
government may withhold from the public,” that there is “governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other national security
matters”; and that “the right to information does not extend to matters recognized as ‘privileged
information’ under the separation of powers, by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings.”
2. Yes.
a. Committees contend that the power to secure a foreign loan does not relate to a “quintessential
and non-delegable presidential power,” because the Constitution does not vest it in the President
alone, but also in the Monetary Board. “Quintessential” is defined as the most perfect embodiment of
something, the concentrated essence of substance. “Non-delegable” means that a power or duty
cannot be delegated to another or, even if delegated, the responsibility remains with the obligor. The
power to enter into an executive agreement is in essence an executive power and the final decision in
the exercise of the said executive power is still lodged in the Office of the President even when it has
to secure the prior concurrence of the Monetary Board because it is only a form of check and balance.
b. Committees contend that the application of the “doctrine of operational proximity” for the reason
that “it may be misconstrued to expand the scope of the presidential communications privilege to
communications between those who are “operationally proximate” to the President by who may have
“no direct communications with her.” In the case at bar, the danger is absent because the official
involved here is a member of the Cabinet, thus, properly within the term “advisor” of the President;
in fact, her alter ego and a member of her official family.
c. Committees contend that the Court erred in upholding the President’s invocation, through Exec.
Sec., of executive privilege because
i. Between Committee’s specific and demonstrated need and the President’s generalized interest in
confidentiality, there is a need to strike the balance in favor of the former
o It must be stressed that the President’s claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated Nov. 15 of Exec. Sec. Ermita specified
presidential communications privilege in relation to diplomatic and economic relation with another
sovereign nation as the bases for the claim.
o The privileged character of diplomatic negotiations has been recognized in this jurisdiction that
“information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest.”
ii. In the balancing of interest, the Court disregarded the provisions of the 1987 Constitution on
government transparency, accountability, and disclosure of information
o The constitutional provisions cited by Committees do not espouse an absolute right to information.
It must be emphasized that the assailed Decision did not enjoin the Committees from inquiring into
the NBN Project. All that is expected from them is to respect matters that are covered by executive
privilege.
3. No. Committees contend the information elicited by the 3 questions are necessary in the discharge
of their legislative function, among them,
a. To consider the 3 pending Senate Bills—There is simply a generalized assertion that the
information is pertinent to the exercise of the power to legislate and a broad and non-specific
reference to pending Senate Bills. And it is further expressed by the counsel of Committees that even
without Neri answering the 3 questions, the Senate can still come up with legislations.
b. To curb graft and corruption—The potential culpability of high government officials in a given
government transaction is not a task for the Senate to perform. The role of the Legislature is to make
laws, not to determine anyone’s guilt of a crime or wrongdoing.
4. Yes. Committees contended that the ruling in Senate v. Ermita, requiring invitations or subpoenas
to contain the “possible needed statute which prompted the need for the inquiry” along with “the
usual indication of the subject of inquiry and the questions relative to and in furtherance thereof” is
not provided for by the Constitution and is merely an obiter dictum.
o An unconstrained congressional investigative power, like an unchecked Executive, generates its
own abuses. The requirements set forth in Senate v. Ermita are modest mechanisms that would not
unduly limit Congress’ power. Witnesses should be adequately informed what matters are to be
covered by the inquiry. It will allow them to prepare the pertinent information and documents.
o The language of Sec. 21 Art. 6 of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It should likewise be stressed
that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void.
Onyle those that result in violation of the rights of witnesses should be considered null and void,
considering that the rationale for the publication is to protect the rights of witnesses as expresses in
Sec. 21 Art. 6 of the Constitution.
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
G.R. No. 180643, March 25, 2008
FACTS: On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong Xing
Telecommunications Equipment (ZTE) for the supply of equipment and
services for the National Broadband Network (NBN) Project in the amount of
U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be
financed by the People’s Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the
September 18, 2007 hearing Jose de Venecia III testified that several high
executive officials and power brokers were using their influence to push the
approval of the NBN Project by the NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate Blue
Ribbon. He appeared in one hearing wherein he was interrogated for 11 hrs
and during which he admitted that Abalos of COMELEC tried to bribe him
with P200M in exchange for his approval of the NBN project. He further
narrated that he informed President Arroyo about the bribery attempt and
that she instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN Project,
petitioner refused to answer, invoking “executive privilege”. In particular, he
refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
He later refused to attend the other hearings and Ermita sent a letter to the
senate averring that the communications between GMA and Neri are
privileged and that the jurisprudence laid down in Senate vs Ermita be
applied. He was cited in contempt of respondent committees and an order for
his arrest and detention until such time that he would appear and give his
testimony.

ISSUE:
Are the communications elicited by the subject three (3) questions covered by
executive privilege?
HELD:
The communications are covered by executive privilege

The revocation of EO 464 (advised executive officials and employees to follow

and abide by the Constitution, existing laws and jurisprudence, including,
among others, the case of Senate v. Ermita when they are invited to legislative
inquiries in aid of legislation.), does not in any way diminish the concept of
executive privilege. This is because this concept has Constitutional
underpinnings.

The claim of executive privilege is highly recognized in cases where the subject
of inquiry relates to a power textually committed by the Constitution to the
President, such as the area of military and foreign relations. Under our
Constitution, the President is the repository of the commander-in-chief,
appointing, pardoning, and diplomatic powers. Consistent with the doctrine of
separation of powers, the information relating to these powers may enjoy
greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential
communications privilege:
1) The protected communication must relate to a “quintessential and non-
delegable presidential power.”
2) The communication must be authored or “solicited and received” by a close
advisor of the President or the President himself. The judicial test is that an
advisor must be in “operational proximity” with the President.

3) The presidential communications privilege remains a qualified privilege

that may be overcome by a showing of adequate need, such that the
information sought “likely contains important evidence” and by the
unavailability of the information elsewhere by an appropriate investigating
authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive
privilege on the ground that the communications elicited by 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.”
Simply put, the bases are presidential communications privilege and executive
privilege on matters relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications
elicited by the three (3) questions are covered by the 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.
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 further contend that the grant of petitioner’s claim of

executive privilege violates the constitutional provisions on the right of the
people to information on matters of public concern.50 We might have agreed
with such contention if petitioner did not appear before them at all. But
petitioner made himself available to them during the September 26 hearing,
where he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the Senators, with
the exception only of those covered by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation.
Section 7 of Article III provides:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.