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02 Neri vs Senate Committee on Accountability, G.R. No.

180643, March 25, 2008


The National Broadband Network (NBN) Project was funded by a Chinese Company via contract.
Secretary Neri testified, during an 11-hour legislative inquiry, that there was an attempt to bribe him in
exchange for approval of the NBN Project. He reported attempt to President Arroyo, and the rejected
said bribe. However, when probed further he refused to answer the following questions: (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.

Neri’s appearance was once again required by respondent Committee. Neri did not appear. He
was sent a show cause letter. Neri then explained in a letter that the Executive secretary confirmed
executive privilege regarding the three questions. He also expressed his willingness to testify on new
matters provided that he is given advance notice of questions. Unsatisfied with the answer, Respondent
Committees issued a contempt Order against Neri. Hence this petition for certiorari assailing the
contempt Order.


1) Whether or not the communications elicited by the subject three questions covered by executive
privilege? Yes

2) Whether or not respondent Committees committed grave abuse of discretion in issuing the contempt
Order? Yes

Ruling: Petition is granted.

1) The legislative and oversight power of the Congress are embodied under Section 21 and 22,
respectively, of Article VI of the constitution.

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.

Section 22. The heads of department may upon their own initiative, with the consent of the
President, or upon the request of either House, or as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their departments. XXX When the
security of the state or the public interest so requires and the President so states in writing, the
appearance shall be conducted in executive session.

Accordingly, the power of Congress to conduct inquiries in aid of legislation is limited by the
following: (a) done in accordance with the Senate or House duly published rules of procedure; (b) rights
of the persons appearing in or affected by such inquiries be respected.
(a) The Senate failed to publish their Rules of Procedure; hence, the subject hearings in aid of
legislation conducted by the 14th Senate are therefore procedurally infirm.

(b) There are two types of executive privilege: the presidential communications privilege and
the deliberative process privilege. The former pertains to the decision-making of the President while the
latter that of executive officials.

The elements of presidential communications provided are: 1) The protected communication

must relate to a quintessential and non-delegatable 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.

Here, the diplomatic power of the President is quintessential and non-delegatable. Furthermore,
Neri, a cabinet member, is under operational proximity with the president. Finally, there is no adequate
showing of compelling need for the information and unavailability of information elsewhere.

Furthermore, executive privilege regarding military, diplomatic and other security matters is
well-established in jurisprudence.

2) Respondent Committees committed grave abuse of discretion in issuing the contempt order.
Respondent Committees did not comply with the requirement laid down in Senate vs Ermita that the
subject and questions relative to the inquiry should be given with the invitations. Furthermore, only a
minority of the members of the Senate Blue Ribbon Committee were present in the deliberation to hold
Neri in contempt. Finally, the contempt Order was precipitate. Respondents did not first pass upon the
claim of executive privilege and inform petitioner of their ruling; instead, they curtly dismissed his
explanation as unsatisfactory and simultaneously issued the contempt Order.