Neri v. Senate Committee on Accountability of Public
Officers and Investigations
Leonardo-De Castro,
J.
G.R. No. 180643
September 4, 2008
Facts:
This case is about
the Senate investigation of anomalies concerning the NBN-ZTE project. During the
hearings, former NEDA head Romulo Neri refused to answer certain questions involving
his conversations with President Arroyo on the ground they are covered by executive
privilege. When the Senate cited him in contempt and ordered his arrest, Neri filed
a case against the Senate with the Supreme Court. On March 25, 2008, the Supreme
Court ruled in favor of Neri and upheld the claim of executive privilege.
What is
“executive privilege”?
It is the right
of the President and high-level executive branch officials to withhold information
from Congress, the courts and the public. It is a privilege of confidentiality which
applies to certain types of information of a sensitive character that would be against
the public interest to disclose. Executive privilege is based on the constitution
because it relates to the President’s effective discharge of executive powers. Its
ultimate end is to promote public interest and no other.
Is executive
privilege absolute?
No. Any claim of
executive privilege must be weighed against other interests recognized by the constitution,
like the state policy of full public disclosure of all transactions involving public
interest, the right of the people to information on matters of public concern, the
accountability of public officers, the power of legislative inquiry, and the judicial
power to secure evidence in deciding cases.
Did the
revocation by the President of E.O. 464 on March 6, 2008 diminish the concept of
executive privilege?
No. Executive privilege may still be invoked despite
the President’s revocation of E.O. 464 because it is based on the constitution.
What events
led to the filing of the case before the Supreme Court?
On April 21, 2007,
the DOTC and Zhing Xing Telecommunications Equipment (ZTE), a corporation owned
by the People’s Republic of China, executed a “Contract for the Supply of Equipment
and Services for the National Broadband Network Project” (NBN-ZTE Contract) worth
US$329,481,290.00 (around PhP 16B). The project sought to provide landline, cellular
and internet services in government offices nationwide and was to be financed through
a loan by China to the Philippines. President Arroyo witnessed the contract signing
in China.
After its signing,
reports of anomalies concerning the project (e.g., bribery, “overpricing” by US$
130M, “kickback commissions” involving top government officials, and loss of the
contract) prompted the Senate, through the Committees on Accountability of Public
Officers and Investigations (Blue Ribbon), Trade and Commerce, and National Defense
and Security, to conduct an inquiry in aid of legislation. The inquiry was based
on a number of Senate resolutions and in connection with pending bills concerning
funding in the procurement of government projects, contracting of loans as development
assistance, and Senate concurrence to executive agreements.
In one of the hearings
held on Sept. 26, 2007, former NEDA Director General Romulo Neri testified that
President Arroyo initially gave instructions for the project to be undertaken on
a Build-Operate-Transfer (BOT) arrangement so the government would not spend money
for it, but eventually the project was awarded to ZTE with a government-to-government
loan from China. He also said that then COMELEC Chairman Benjamin Abalos, the alleged
broker in the project, offered him PhP 200M in exchange for NEDA’s approval of the
project. Neri testified that when he told President Arroyo of the bribe offer, she
told him not to accept it. But Neri refused to answer questions about what he and
the President discussed after that, invoking executive privilege since they concerned
his conversations with the President. The Senate required him to appear again and
testify on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo
Ermita wrote the Senate Committees and asked that Neri’s testimony on November 20,
2007 be dispensed with because he was invoking executive privilege “by Order of
the President” specifically on the following questions:
a.
Whether
the President followed up on 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?
When Neri failed
to appear on November 20, 2007, the Senate required him to show cause why he should
not be cited in contempt. Neri explained that he thought the only remaining questions
were those he claimed to be covered by executive privilege and that should there
be new matters to be taken up, he asked that he be informed in advance of what else
he needs to clarify so he could prepare himself.
On Dec. 7, 2007,
Neri questioned the validity of the Senate’s show cause order before the Supreme
Court. On January 30, 2008, the Senate cited Neri in contempt and ordered his arrest
for his failure to appear in the Senate hearings. On February 1, 2008, Neri asked
the Supreme Court to stop the Senate from implementing its contempt order, which
the Court granted on Feb. 5, 2008. The Supreme Court also required the parties to
observe the status quo prevailing before the issuance of the contempt order.
What reasons
were given for the claim of executive privilege?
Executive Secretary
Ermita said that “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.” Neri further added that his “conversations
with the President dealt with delicate and sensitive national security and diplomatic
matters relating to the impact of the bribery scandal involving high government
officials and the possible loss of confidence of foreign investors and lenders in
the Philippines.”
What issues
were considered by the Supreme Court in resolving the case?
The Supreme Court
said there were two crucial questions at the core of the controversy:
a.
Are the
communications sought to be elicited by the three questions covered by executive
privilege?
b.
Did the
Senate Committees commit grave abuse of discretion in citing Neri in contempt and
ordering his arrest?
How did
the Supreme Court resolve these issues?
The Supreme Court
first recognized the power of Congress to conduct inquiries in aid of legislation.
The Court said that the power extends even to executive officials and the only way
for them to be exempted is through a valid claim of executive privilege.
On the first question,
the Supreme Court said that the communications sought to be elicited by the three
questions are covered by the presidential communications privilege, which is one
type of executive privilege. Hence, the Senate cannot compel Neri to answer the
three questions.
On the second question,
the Supreme Court said that the Senate Committees committed grave abuse of discretion
in citing Neri in contempt. Hence, the Senate order citing Neri in contempt and
ordering his arrest was not valid.
What are
the types of executive privilege?
a.
state secrets
(regarding military, diplomatic and other security matters)
b.
identity
of government informers
c.
information
related to pending investigations
d.
presidential
communications
e.
deliberative
process
In what
cases is the claim of executive privilege highly recognized?
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 commander-in-chief,
appointing, pardoning, and diplomatic powers of the President. Information relating
to these powers may enjoy greater confidentiality than others.
What specifically
are the executive privileges relating to deliberations or communications of the
President and other government officials?
These are the presidential communications privilege and
the deliberative process privilege.
How are
the presidential communications privilege and the deliberative process privilege
distinguished?
The presidential communications privilege applies
to decision-making of the President. It pertains to “communications, documents or
other materials that reflect presidential decision-making and deliberations and
that the President believes should remain confidential”.
The deliberative process privilege applies to
decision-making of executive officials. It includes “advisory opinions, recommendations
and deliberations comprising part of a process by which governmental decisions and
policies are formulated.”
Unlike the deliberative
process privilege, the presidential communications privilege applies to documents
in their entirety, and covers final and post-decisional materials as well as pre-deliberative
ones.
Moreover, congressional
or judicial negation of the presidential communications privilege is always subject
to greater scrutiny than denial of the deliberative process privilege.
What is
the type of executive privilege claimed in this case?
The type of executive
privilege claimed in this case is the presidential communications privilege.
Is there
a presumption in favor of presidential communications?
Yes. Presidential
communications are “presumptively privileged”. The presumption is based on the President’s
generalized interest in confidentiality. The privilege is necessary to guarantee
the candor of presidential advisors and to provide the President and those who assist
him with freedom 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 presumption
can be overcome only by mere showing of public need by the branch seeking access
to presidential communications.
Who are
covered by the presidential communications privilege?
Aside from the
President, the presidential communications privilege covers senior presidential
advisors or Malacañang staff who have “operational proximity” to direct presidential
decision-making.
What are
the elements of the presidential communications privilege?
The following are
the elements of the presidential communications privilege:
a.
The protected
communication must relate to a “quintessential and non-delegable presidential power”.
b.
The communication
must be authored or “solicited and received” by a close advisor of the President
or the President himself. The advisor must be in “operational proximity” with the
President.
c.
The privilege
is a qualified privilege that may be overcome by a showing of adequate or compelling
need that would justify the limitation of the privilege and that the information
sought is unavailable elsewhere by an appropriate investigating agency.
What are
examples of “quintessential and non-delegable presidential powers” which are covered
by the presidential communications privilege?
The privilege covers
only those functions which form the core of presidential authority. These are functions
which involve “quintessential and non-delegable
presidential powers” such as the powers of the president as commander-in-chief
(i.e., to call out the armed forces to suppress violence, to declare martial law,
or to suspend the privilege of the writ of habeas corpus), the power to appoint
officials and remove them, the power to grant pardons and reprieves, the power to
receive ambassadors, and the power to negotiate treaties and to enter into execute
agreements.
Are the
elements of the presidential communications privilege present in this case?
Yes. The communications
elicited by the three questions are covered by the presidential communications privilege
because:
a.
First, the
communications relate to the power of the President to enter into an executive agreement
with other countries.
b.
Second,
the communications are received by Neri, who as a Cabinet member can be considered
a close advisor of the President.
c.
Third, the
Senate Committees have not adequately shown a compelling need for the answers to
the three questions in the enactment of a law and of the unavailability of the information
elsewhere by an appropriate investigating authority.
Does the
grant of the claim of executive privilege violate the right of the people to information
on matters of public concern?
No, for the following
reasons:
a.
Neri appeared
before the Senate on Sept. 26, 2007 and was questioned for 11 hours. He also expressed
his willingness to answer more questions from the Senators, except the three questions.
b.
The right
to information is subject to limitation, such as executive privilege.
c.
The right
of Congress to obtain information in aid of legislation cannot be equated with the
people’s right to information. Congress cannot claim that every legislative inquiry
is an exercise of the people’s right to information.
Was the
claim of executive privilege properly invoked by the President in this case?
Yes. For the claim
to be properly invoked, there must be a formal claim by the President stating the
“precise and certain reason” for preserving confidentiality. The grounds relied
upon by Executive Secretary Ermita are specific enough, since what is required is
only 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, and the following statement of grounds by Executive Secretary
Ermita satisfies the requirement: “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.”
What reasons
were given by the Supreme Court in holding that it was wrong for the Senate to cite
Neri in contempt and order his arrest?
a.
There was
a legitimate claim of executive privilege.
b.
The Senate’s
invitations to Neri did not include the possible needed statute which prompted the
inquiry, the subject of inquiry, and the questions to be asked.
c.
The contempt
order lacked the required number of votes.
d.
The Senate’s
rules of procedure on inquiries in aid of
a.
legislation
were not duly published.
e.
The contempt
order is arbitrary and precipitate because the Senate did not first rule on the
claim of executive privilege and instead dismissed Neri’s explanation as unsatisfactory.
Who has
the burden of showing whether or not a claim of executive privilege is valid?
Executive privilege
is in derogation of the search for truth. However, the decision recognized Presidential
communications as presumptively privileged. Hence, the party seeking disclosure
of the information has the burden of overcoming the presumption in favor of the
confidentiality of Presidential communications.
This presumption
is inconsistent with the Court’s earlier statement in Senate vs. Ermita (April 20, 2006) that “the presumption inclines heavily
against executive secrecy and in favor of disclosure”. It is also inconsistent with
constitutional provisions on transparency in governance and accountability of public
officers, and the right of the people to information on matters of public concern.
Does the
decision expand the coverage of executive privilege?
Yes, the decision
expands the coverage of executive privilege in at least two ways:
a.
The decision
explained that the presidential communications privilege covers communications authored
or “solicited and received” by a close advisor of the President or the President
himself. This means that the privilege applies not only to communications that directly
involve the President, but also to communications involving the President’s close
advisors, i.e., those in “operational proximity”
with the President. There is no definition of “operational proximity”, so it is
not clear how far down the chain of command the privilege extends. This expansion
of the coverage of the privilege means that information in many areas of the executive
branch will become “sequestered” from public view.
b.
The decision
also stated that the presidential communications privilege applies to documents
in their entirety, and covers final and post-decisional materials as well as pre-deliberative
ones. This means that the privilege protects not only the deliberative or advice
portions of documents, i.e., communications made in the process of arriving at presidential
decisions, but also factual material or information concerning decisions already
reached by the President.
How will
the decision affect other investigations?
The decision makes
it easy for the President to invoke executive privilege, since what is required
is only that an allegation be made “whether the information demanded involves military
or diplomatic secrets, closed-door Cabinet meetings, etc.” This in effect will enable
the use of executive privilege to hide misconduct or crime. According to Fr. Bernas,
S.J., the implication of the ruling is that once the “presidential communications
privilege” is invoked, no evidence is needed to support it even if there are valid
reasons for disclosing the information sought. “This would revolutionize the doctrine
in a manner that can affect all other investigations. This can, for instance, hamper
effective use of the … writ of amparo and writ of habeas data. It can also cripple
efforts to battle official corruption ….”
In particular,
what is the effect of the decision on the Senate’s power to conduct inquiries in
aid of legislation?
The decision severely
limits the Senate’s power of legislative inquiry and its ability to investigate
government anomalies in aid of legislation. The decision encroaches upon matters
internal to the Senate as an institution separate from and co-equal to other branches
of government.
The decision, for
instance, requires the Senate to give its questions in advance of its hearings.
But this is a requirement applicable only to the question hour and not to inquiries
in aid of legislation. Moreover, it is impractical, since follow-up questions of
Senators will be difficult to anticipate.
The decision also
requires the Senate to publish its rules of procedure on legislative inquiries every
three years. But the Senate traditionally considered as a continuing body. Senate
committees continue to work even during senatorial elections. By tradition and practice,
the Senate does not re-publish its rules. To require publication of its rules every
three years is unnecessary and inconsistent with its tradition and practice.
Did the
Supreme Court ruling establish a doctrine on executive privilege?
No. Although the
vote is 9 – 6 in favor of upholding the claim of executive privilege, two of the
nine Justices concurred merely in the result, while one Justice argued not on the
basis of executive privilege. Hence, only six out of the nine Justices explained
their votes in favor of the claim of executive privilege. Six out of a total of
15 Justices do not establish a doctrine.
Can the
Senate continue with its investigations despite the Supreme Court ruling?
The decision does
not stop the Senate from continuing with its investigations and from undertaking
other inquiries, although the government has already declared that officials will
not appear unless the Senate rules are first published. Should Neri (and other officials)
appear, the Senate can ask him questions other than the three questions. But Neri
may again invoke executive privilege on other questions, which could result in another
case before the Supreme Court, and the cycle may be repeated again and again. Such
a situation, particularly where there appears to be a pattern of concealment in
government activities, will ultimately be harmful to public interest.
