NERI VS.

SENATE COMMITTEE
MARCH 28, 2013 ~ VBDIAZ
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 Peoples 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 Peoples
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 Arroyos 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 petitioners 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.