Sei sulla pagina 1di 34

Republic of the Philippines At bar is a petition for certiorari under Rule 65 of the Rules of Court

Supreme Court assailing the show cause Letter[1] dated November 22, 2007 and
Manila contempt Order[2] dated January 30, 2008 concurrently issued by respondent
--- Senate Committees on Accountability of Public Officers and
Investigations,[3] Trade and Commerce,[4] and National Defense and
Security against petitioner Romulo L. Neri,former Director General of the
[5]

EN BANC National Economic and Development Authority (NEDA).

ROMULO L. NERI, G.R. No. 180643 The facts, as culled from the pleadings, are as follows:
Petitioner,
Present: On April 21, 2007, the Department of Transportation and Communication
(DOTC) entered into a contract with Zhong Xing Telecommunications
- versus - PUNO, C.J., Equipment (ZTE) for the supply of equipment and services for the National
QUISUMBING, Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290
YNARES-SANTIAGO, (approximately P16 Billion Pesos). The Project was to be financed by the
SENATE COMMITTEE ON CARPIO, Peoples Republic of China.
ACCOUNTABILITY OF PUBLIC AUSTRIA-
OFFICERS AND MARTINEZ, In connection with this NBN Project, various Resolutions were introduced in
INVESTIGATIONS, SENATE CORONA, the Senate, as follows:
COMMITTEE ON TRADE AND CARPIO MORALES, (1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel,
COMMERCE, AND SENATE AZCUNA, Jr., entitled RESOLUTION DIRECTING THE BLUE
COMMITTEE ON NATIONAL TINGA, RIBBON COMMITTEE AND THE COMMITTEE ON
DEFENSE AND SECURITY, TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF
CHICO-NAZARIO,
Respondents. LEGISLATION, THE CIRCUMSTANCES LEADING TO
VELASCO, JR.,
THE APPROVAL OF THE BROADBAND CONTRACT
NACHURA,
WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS
REYES,
CONCERNED IN GETTING IT CONSUMMATED AND
LEONARDO-DE
TO MAKE RECOMMENDATIONS TO HALE TO THE
CASTRO, and
COURTS OF LAW THE PERSONS RESPONSIBLE FOR
BRION, JJ. ANY ANOMALY IN CONNECTION THEREWITH AND
TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW
Promulgated: AND OTHER PERTINENT LEGISLATIONS.

March 25, 2008 (2) P.S. Res. No. 144, introduced by Senator Mar Roxas,
x---------------------------------------------------------------------------------------------------- entitled RESOLUTION URGING PRESIDENT GLORIA
----------------x MACAPAGAL ARROYO TO DIRECT THE
CANCELLATION OF THE ZTE CONTRACT
DECISION
(3) P.S. Res. No. 129, introduced by Senator Panfilo M.
LEONARDO-DE CASTRO, J.: Lacson, entitled RESOLUTION DIRECTING THE
COMMITTEE ON NATIONAL DEFENSE AND
SECURITY TO CONDUCT AN INQUIRY IN AID OF DEVELOPMENT ASSISTANCE ACT OF 1996, AND
LEGISLATION INTO THE NATIONAL SECURITY FOR OTHER PURPOSES; and
IMPLICATIONS OF AWARDING THE NATIONAL
BROADBAND NETWORK CONTRACT TO THE 3. Senate Bill No. 1317, introduced by Senator Miriam
CHINESE FIRM ZHONG XING Defensor Santiago, entitled AN ACT MANDATING
TELECOMMUNICATIONS EQUIPMENT COMPANY CONCURRENCE TO INTERNATIONAL
LIMITED (ZTE CORPORATION) WITH THE END IN AGREEMENTS AND EXECUTIVE AGREEMENTS.
VIEW OF PROVIDING REMEDIAL LEGISLATION THAT
WILL PROTECT OUR NATIONAL SOVEREIGNTY,
SECURITY AND TERRITORIAL INTEGRITY. Respondent Committees initiated the investigation by sending invitations to
certain personalities and cabinet officials involved
(4) P.S. Res. No. 136, introduced by Senator Miriam in the NBN Project. Petitioner was among those invited. He was summoned
Defensor Santiago, entitled RESOLUTION DIRECTING to appear and testify on September 18, 20, and 26 and October 25,
THE PROPER SENATE COMMITTEE TO CONDUCT AN 2007. However, he attended only the September 26 hearing, claiming he was
INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL out of town during the other dates.
AND ECONOMIC JUSTIFICATION OF THE NATIONAL
BROADBAND NETWORK (NBN) PROJECT OF THE In the September 18, 2007 hearing, businessman Jose de Venecia III testified
NATIONAL GOVERNMENT. that several high executive officials and power brokers were using their
influence to push the approval of the NBN Project by the NEDA. It appeared
At the same time, the investigation was claimed to be relevant to the that the Project was initially approved as a Build-Operate-Transfer (BOT)
consideration of three (3) pending bills in the Senate, to wit: project but, on March 29, 2007, the NEDA acquiesced to convert it into a
government-to-government project, to be financed through a loan from the
1. Senate Bill No. 1793, introduced by Senator Mar Chinese Government.
Roxas, entitled AN ACT SUBJECTING TREATIES,
INTERNATIONAL OR EXECUTIVE AGREEMENTS On September 26, 2007, petitioner testified before respondent Committees for
INVOLVING FUNDING IN THE PROCUREMENT eleven (11) hours. He disclosed that then Commission on Elections
OF INFRASTRUCTURE PROJECTS, GOODS, AND (COMELEC) Chairman Benjamin Abalos offered him P200 Million in
CONSULTING SERVICES TO BE INCLUDED IN THE exchange for his approval of the NBN Project. He further narrated that he
SCOPE AND APPLICATION OF PHILIPPINE informed President Arroyo about the bribery attempt and that she instructed
PROCUREMENT LAWS, AMENDING FOR THE him not to accept the bribe. However, when probed further on what they
PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE discussed about the NBN Project, petitioner refused to answer, invoking
KNOWN AS THE GOVERNMENT PROCUREMENT executive privilege. In particular, he refused to answer the questions
REFORM ACT, AND FOR OTHER PURPOSES; on (a) whether or not President Arroyo followed up the NBN
Project,[6] (b) whether or not she directed him to prioritize
2. Senate Bill No. 1794, introduced by Senator Mar it,[7] and (c) whether or not she directed him to approve.[8]
Roxas, entitled AN ACT IMPOSING SAFEGUARDS
IN CONTRACTING LOANS CLASSIFIED AS Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to
OFFICIAL DEVELOPMENT ASSISTANCE, petitioner, requiring him to appear and testify on November 20, 2007.
AMENDING FOR THE PURPOSE REPUBLIC ACT
NO. 8182, AS AMENDED BY REPUBLIC ACT NO. However, in the Letter dated November 15, 2007, Executive Secretary
8555, OTHERWISE KNOWN AS THE OFFICIAL Eduardo R. Ermita requested respondent Committees to dispense with
petitioners testimony on the ground of executive privilege. The pertinent on the President, and will hamper her in the effective
portion of the letter reads: discharge of her duties and responsibilities, if she is not
protected by the confidentiality of her conversations.
With reference to the subpoena ad testificandum issued to
Secretary Romulo Neri to appear and testify again on 20 The context in which executive privilege is being invoked
November 2007 before the Joint Committees you chair, it is that the information sought to be disclosed might impair
will be recalled that Sec. Neri had already testified and our diplomatic as well as economic relations with the
exhaustively discussed the ZTE / NBN project, including Peoples Republic ofChina. Given the confidential nature in
his conversation with the President thereon last 26 which these information were conveyed to the President,
September 2007. he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the
Asked to elaborate further on his conversation with the privilege is designed to protect.
President, Sec. Neri asked for time to consult with his
superiors in line with the ruling of the Supreme Court In light of the above considerations, this Office is
in Senate v. Ermita, 488 SCRA 1 (2006). constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised
Specifically, Sec. Neri sought guidance on the possible Secretary Neri accordingly.
invocation of executive privilege on the following
questions, to wit: Considering that Sec. Neri has been lengthily interrogated
on the subject in an unprecedented 11-hour hearing,
a) Whether the President followed up the wherein he has answered all questions propounded to him
(NBN) project? except the foregoing questions involving executive
b) Were you dictated to prioritize the ZTE? privilege, we therefore request that his testimony on 20
c) Whether the President said to go ahead and November 2007 on the ZTE / NBN project be dispensed
approve the project after being told about with.
the alleged bribe?

Following the ruling in Senate v. Ermita, the foregoing On November 20, 2007, petitioner did not appear before respondent
questions fall under conversations and correspondence Committees. Thus, on November 22, 2007, the latter issued the show
between the President and public officials which are cause Letter requiring him to explain why he should not be cited in contempt.
considered executive privilege (Almonte v. Vasquez, G.R. The Letter reads:
95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of conversations of Since you have failed to appear in the said hearing, the
the President is necessary in the exercise of her executive Committees on Accountability of Public Officers and
and policy decision making process. The expectation of a Investigations (Blue Ribbon), Trade and Commerce and
President to the confidentiality of her conversations and National Defense and Security require you to show cause
correspondences, like the value which we accord deference why you should not be cited in contempt under Section 6,
for the privacy of all citizens, is the necessity for protection Article 6 of the Rules of the Committee on Accountability
of the public interest in candid, objective, and even blunt or of Public Officers and Investigations (Blue Ribbon).
harsh opinions in Presidential decision-making. Disclosure
of conversations of the President will have a chilling effect
The Senate expects your explanation on or before 2 Respondent Committees found petitioners explanations
December 2007. unsatisfactory. Without responding to his request for advance notice of the
matters that he should still clarify, they issued the Order dated January 30,
On November 29, 2007, petitioner replied to respondent 2008, citing him in contempt of respondent Committees and ordering his
Committees, manifesting that it was not his intention to ignore the Senate arrest and detention at the Office of the Senate Sergeant-At-Arms until such
hearing and that he thought the only remaining questions were those he time that he would appear and give his testimony. The said Order states:
claimed to be covered by executive privilege, thus:
ORDER
It was not my intention to snub the last Senate
hearing. In fact, I have cooperated with the task of the For failure to appear and testify in the Committees
Senate in its inquiry in aid of legislation as shown by my hearing on Tuesday, September 18, 2007; Thursday,
almost 11 hours stay during the hearing on 26 September September 20, 2007; Thursday, October 25, 2007; and
2007. During said hearing, I answered all the questions that Tuesday, November 20, 2007, despite personal notice and
were asked of me, save for those which I thought was Subpoenas Ad Testificandum sent to and received by him,
covered by executive privilege, and which was confirmed which thereby delays, impedes and obstructs, as it has in
by the Executive Secretary in his Letter 15 November 2007. fact delayed, impeded and obstructed the inquiry into the
In good faith, after that exhaustive testimony, I thought that subject reported irregularities, AND for failure to explain
what remained were only the three questions, where the satisfactorily why he should not be cited for contempt (Neri
Executive Secretary claimed executive privilege. Hence, his letter of 29 November 2007), herein attached) ROMULO L.
request that my presence be dispensed with. NERI is hereby cited in contempt of this (sic) Committees
and ordered arrested and detained in the Office of the
Be that as it may, should there be new matters that Senate Sergeant-At-Arms until such time that he will
were not yet taken up during the 26 September appear and give his testimony.
2007 hearing, may I be furnished in advance as to what else
I need to clarify, so that as a resource person, I may The Sergeant-At-Arms is hereby directed to carry
adequately prepare myself. out and implement this Order and make a return hereof
within twenty four (24) hours from its enforcement.
In addition, petitioner submitted a letter prepared by his counsel,
Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non- SO ORDERED.
appearance was upon the order of the President; and (2) his conversation with
President Arroyo dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of the bribery scandal involving On the same date, petitioner moved for the reconsideration of the
high government officials and the possible loss of confidence of foreign above Order.[9] He insisted that he has not shown any contemptible conduct
investors and lenders in the Philippines. The letter ended with a reiteration of worthy of contempt and arrest. He emphasized his willingness to testify on
petitioners request that he be furnished in advance as to what else he needs new matters, however, respondent Committees did not respond to his request
to clarify so that he may adequately prepare for the hearing. for advance notice of questions. He also mentioned the petition
In the interim, on December 7, 2007, petitioner filed with this Court for certiorari he filed on December 7, 2007. According to him, this should
the present petition for certiorari assailing the show restrain respondent Committees from enforcing the show
cause Letter dated November 22, 2007. cause Letter through the issuance of declaration of contempt and arrest.
In view of respondent Committees issuance of the 1.a Did Executive Secretary Ermita correctly invoke
contempt Order, petitioner filed on February 1, 2008 a Supplemental Petition the principle of executive privilege, by order of the
for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking President, to cover (i) conversations of
to restrain the implementation of the said contempt Order. the President in the exercise of her executive and
policy decision-making
On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining and (ii) information, which might impair our
respondent Committees from implementing their contempt diplomatic as well as economic relations with the
Order, (b) requiring the parties to observe the status quo prevailing prior to the Peoples Republic of China?
issuance of the assailed order, and (c) requiring respondent Committees to
file their comment. 1.b. Did petitioner Neri correctly invoke executive
privilege to avoid testifying on his conversations
Petitioner contends that respondent Committees show with the President on the NBN contract on his
cause Letter and contempt Order were issued with grave abuse of discretion assertions that the said conversationsdealt with
amounting to lack or excess ofjurisdiction. He stresses that his conversations delicate and sensitive national security and
with President Arroyo are candid discussions meant to explore options in diplomatic matters relating to the impact of
making policy decisions. According to him, these discussions dwelt on the bribery scandal involving high government
impact of the bribery scandal involving high government officials on the officials and the possible loss of confidence of
countrys diplomatic relations and economic and military affairs and the foreign investors and lenders in the
possible loss of confidence of foreign investors and lenders in Philippines x x x within the principles laid down
the Philippines. He also emphasizes that his claim of executive privilege is in Senate v. Ermita (488 SCRA 1 [2006])?
upon the order of the President and within the parameters laid down in Senate
v. Ermita[10] and United States v. Reynolds.[11] Lastly, he argues that he is 1.c Will the claim of executive privilege in this case
precluded from disclosing communications made violate the following provisions of the
to him in official confidence under Section 7[12] of Republic Act No. 6713, Constitution:
otherwise known as Code of Conduct and Ethical Standards for Public Officials
and Employees, and Section 24[13] (e) of Rule 130 of the Rules of Court. Sec. 28, Art. II (Full public disclosure of all
transactions involving public interest)
Respondent Committees assert the contrary. They argue
that (1) petitioners testimony is material and pertinent in the investigation Sec. 7, Art. III (The right of the people to
conducted in aid of legislation; (2) there is no valid justification for petitioner to information on matters of public concern)
claim executive privilege; (3) there is no abuse of their authority to order
petitioners arrest; and (4) petitioner has not come to court with clean hands. Sec. 1, Art. XI (Public office is a public trust)

In the oral argument held last March 4, 2008, the following issues Sec. 17, Art. VII (The President shall ensure that
were ventilated: the laws be faithfully executed)

1. What communications between the President and and the due process clause and the principle of
petitioner Neri are covered by the principle of separation of powers?
executive privilege?
2. What is the proper procedure to be followed in
invoking executive privilege?
(3) Respondent Senate Committees gravely abused its
3. Did the Senate Committees gravely abuse their discretion for alleged non-compliance with
discretion in ordering the arrest of petitioner for non- the Subpoena dated November 13, 2007.
compliance with the subpoena?
The Court granted the OSGs motion the next day, March 18, 2008.

After the oral argument, the parties were directed to manifest to the As the foregoing facts unfold, related events transpired.
Court within twenty-four (24) hours if they are amenable to the Courts
proposal of allowing petitioner to immediately resume his testimony before On March 6, 2008, President Arroyo issued Memorandum Circular
the Senate Committees to answer the other questions of the Senators without No. 151, revoking Executive Order No. 464 and Memorandum Circular No.
prejudice to the decision on the merits of this pending petition. It was 108. She advised executive officials and employees to follow and abide by the
understood that petitioner may invoke executive privilege in the course of the Constitution, existing laws and jurisprudence, including, among others, the
Senate Committees proceedings, and if the respondent Committees disagree case of Senate v. Ermita[17] when they are invited to legislative inquiries in aid
thereto, the unanswered questions will be the subject of a supplemental of legislation.
pleading to be resolved along with the three (3) questions At the core of this controversy are the two (2) crucial queries, to wit:
subject of the present petition.[14] At the same time, respondent Committees
were directed to submit several pertinent documents. [15] First, are the communications elicited by the subject three (3)
The Senate did not agree with the proposal for the reasons stated in questions covered by executive privilege?
the Manifestation dated March 5, 2008. As to the required documents, the
Senate and respondent Committees manifested that they would not be able to And second, did respondent Committees commit grave abuse of discretion in
submit the latters Minutes of all meetings and the Minute Book because it has issuing the contempt Order?
never been the historical and traditional legislative practice to keep
them.[16] They instead submitted the Transcript of Stenographic Notes of We grant the petition.
respondent Committees joint public hearings.
At the outset, a glimpse at the landmark case of Senate v.
On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Ermita[18] becomes imperative. Senate draws in bold strokes the distinction
Leave to Intervene and to Admit Attached Memorandum, founded on the between the legislative andoversight powers of the Congress, as embodied
following arguments: under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit:

(1) The communications between petitioner and the SECTION 21. The Senate or the House of
President are covered by the principle of executive Representatives or any of
privilege. its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
(2) Petitioner was not summoned by respondent Senate procedure. The rights of persons appearing in or affected
Committees in accordance with the law-making bodys by such inquiries shall be respected.
power to conduct inquiries in aid of legislation as laid
down in Section 21, Article VI of the Constitution SECTION 22. The heads of department may upon their
and Senate v. Ermita. 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. Written
questions shall be submitted to the President of the Senate consistent with the intent discerned from the deliberations
or the Speaker of the House of Representatives at least three of the Constitutional Commission
days before their scheduled appearance. Interpellations Ultimately, the power of Congress to compel the
shall not be limited to written questions, but may cover appearance of executive officials under section 21 and the
matters related thereto. When the security of the state or the lack of it under Section 22 find their basis in the principle of
public interest so requires and the President so states in separation of powers. While the executive branch is a co-
writing, the appearance shall be conducted in executive equal branch of the legislature, it cannot frustrate the power
session. of Congress to legislate by refusing to comply with its
demands for information. (Emphasis supplied.)
Senate cautions that while the above provisions are closely related
and complementary to each other, they should not be considered as
pertaining to the same power of Congress. Section 21 relates to the power to The availability of the power of judicial review to resolve the issues
conduct inquiries in aid of legislation. Its aim is to elicit information that may raised in this case has also been settled in Senate v. Ermita, when it held:
be used for legislation. On the other hand, Section 22 pertains to the power to
conduct a question hour, the objective of which is to obtain information in As evidenced by the American experience during
pursuit of Congress oversight function.[19] Simply stated, while both powers the so-called McCarthy era, however, the right of Congress
allow Congress or any of its committees to conduct inquiry, to conduct inquiries in aid of legislation is, in theory, no less
their objectives are different. susceptible to abuse than executive or judicial power. It may
thus be subjected to judicial review pursuant to the Courts
This distinction gives birth to another distinction with regard to the certiorari powers under Section 1, Article VIII of the
use of compulsory process. Unlike in Section 21, Congress cannot compel the Constitution.
appearance of executive officials under Section 22. The Courts
pronouncement in Senate v. Ermita[20] is clear:
Hence, this decision.
When Congress merely seeks to be informed on
how department heads are implementing the statutes I
which it has issued, its right to such information is not as The Communications Elicited by the
imperative as that of the President to whom, as Chief Three (3) Questions are Covered by
Executive, such department heads must give a report of Executive Privilege
their performance as a matter of duty. In such instances,
Section 22, in keeping with the separation of powers, states
that Congress may only request their appearance. We start with the basic premises where the parties have conceded.
Nonetheless, when the inquiry in which Congress requires
their appearance is in aid of legislation under Section 21, The power of Congress to conduct inquiries in aid of legislation is
the appearance is mandatory for the same reasons stated broad. This is based on the proposition that a legislative body cannot legislate
in Arnault. wisely or effectively in the absence of information respecting the conditions
which the legislation is intended to affect or change.[21] Inevitably, adjunct
In fine, the oversight function of Congress may thereto is the compulsory process to enforce it. But, the power, broad as it is,
be facilitated by compulsory process only to the extent has limitations. To be valid, it is imperative that it is done in accordance with
that it is performed in pursuit of legislation. This is the Senate or House duly published rules of procedure and that the rights of
the persons appearing in or affected by such inquiries be respected.
In In Re: Sealed Case,[30] the U.S. Court of Appeals delved deeper. It
The power extends even to executive officials and the only way for ruled that there are two (2) kinds of executive privilege; one is
them to be exempted is through a valid claim of executive privilege.[22] This the presidential communicationsprivilege and, the other is
directs us to the consideration of the question -- is there a recognized claim the deliberative process privilege. The former pertains to communications,
of executive privilege despite the revocation of E.O. 464? documents or other materials that reflect presidential decision-making
and deliberations and that the President believes should remain
A- There is a Recognized Claim confidential. The latter includes advisory opinions, recommendations and
of Executive Privilege Despite the deliberations comprising part of a process by which governmental
Revocation of E.O. 464 decisions and policies are formulated.
Accordingly, they are characterized by marked
At this juncture, it must be stressed that the revocation of E.O. 464 does not distinctions. Presidential communications privilege applies to decision-
in any way diminish our concept of executive privilege. This is because this making of the President while, the deliberative process privilege,
concept has Constitutional underpinnings. Unlike the United States which to decision-making of executive officials. The first is rooted in the
has further accorded the concept with statutory status by enacting constitutional principle of separation of power and the Presidents unique
the Freedom of Information Act[23] and theFederal Advisory Committee constitutional
Act,[24] the Philippines has retained its constitutional origination, role; the second on common law privilege. Unlike the deliberative process
occasionally interpreted only by this Court in various cases. The most recent privilege, the presidential communications privilege applies to documents
of these is the case of Senate v. Ermita where this Court declared in their entirety, and covers final and post-decisional materials as well as
unconstitutional substantial portions of E.O. 464. In this regard, it is worthy pre-deliberative ones[31] As a consequence, congressional or judicial negation
to note that Executive Ermitas Letter dated November 15, 2007 limits its of the presidential communications privilege is always subject to greater
bases for the claim of executive privilege to Senate v. Ermita, Almonte v. scrutiny than denial of the deliberative process privilege.
Vasquez,[25] and Chavez v. PEA.[26] There was never a mention of E.O. 464. Turning on who are the officials covered by the presidential
While these cases, especially Senate v. Ermita,[27] have comprehensively communications privilege, In Re: Sealed Case confines the privilege only to
discussed the concept of executive privilege, we deem it imperative to White House Staff that has operational proximity to direct presidential
explore it once more in view of the clamor for this Court to clearly define the decision-making. Thus, the privilege is meant to encompass only those
communications covered by executive privilege. functions that form the core of presidential authority, involving what the
court characterized as quintessential and non-delegable Presidential
The Nixon and post-Watergate cases established the broad contours of power, such as commander-in-chief power, appointment and removal
the presidential communications privilege.[28] In United power, the power to grant pardons and reprieves, the sole-authority to
States v. Nixon, the U.S. Courtrecognized a great public interest in
[29] receive ambassadors and other public officers, the power to negotiate treaties,
preserving the confidentiality of conversations that take place in the etc.[32]
Presidents performance of his official duties. It thus considered
presidential communications as presumptively privileged. Apparently, the The situation in Judicial Watch, Inc. v. Department of Justice[33] tested the In Re:
presumption is founded on the Presidents generalized interest in Sealed Case principles. There, while the presidential decision involved is the
confidentiality. The privilege is said to be necessary to guarantee the candor exercise of the Presidents pardon power, a non-delegable, core-presidential
of presidential advisors and to provide the President and those who assist function, the Deputy Attorney General and the Pardon Attorney were
him with freedom to explore alternatives in the process of shaping policies deemed to be too remote from the President and his
and making decisions and to do so in a way many would be unwilling to senior White House advisors to be protected. The Court conceded that
express except privately.
functionally those officials were performing a task directly related to the
Presidents pardon power, but concluded that an organizational test was more
appropriate for confining the potentially broad sweep that would result v. Ermita, the concept of presidential communications privilege is fully
from the In Re: Sealed Cases functional test. The majority concluded that, the discussed.
lesser protections of the deliberative process privilege would suffice. That
privilege was, however, found insufficient to justify the confidentiality of the As may be gleaned from the above discussion, the claim of executive
4,341 withheld documents. 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
But more specific classifications of communications covered by executive area of military and foreign relations. Under our Constitution, the President
privilege are made in older cases. Courts ruled early that the Executive has a is the repository of the commander-in-
right to withhold documents that might reveal military or state chief,[40] appointing,[41] pardoning,[42] and diplomatic[43] powers. Consistent
secrets,[34] identity of government informers in some with the doctrine of separation of powers, the information relating to these
circumstances,,[35] and information related to pending investigations.[36] An powers may enjoy greater confidentiality than others.
area where the privilege is highly revered is in foreign relations. In United
States v. Curtiss-Wright Export Corp.[37] the U.S. Court, citing President George The above cases, especially, Nixon, In Re Sealed Case and Judicial
Washington, pronounced: Watch, somehow provide the elements of presidential communications
privilege, to wit:
The nature of foreign negotiations requires 1) The protected communication must relate to a
caution, and their success must often depend on secrecy, quintessential and non-delegable presidential
and even when brought to a conclusion, a full disclosure of power.
all the measures, demands, or eventual concessions which
may have been proposed or contemplated would be 2) The communication must be authored or solicited and
extremely impolitic, for this might have a pernicious received by a close advisor of the President or the
influence on future negotiations or produce immediate President himself. The judicial test is that an advisor
inconveniences, perhaps danger and mischief, in relation to must be in operational proximity with the
other powers. The necessity of such caution and secrecy President.
was one cogent reason for vesting the power of making
treaties in the President, with the advice and consent of the 3) The presidential communications privilege remains a
Senate, the principle on which the body was formed qualified privilege that may be overcome by a
confining it to a small number of members. To admit, then, showing of adequate need, such that the
a right in the House of Representatives to demand and to information sought likely contains important
have as a matter of course all the papers respecting a evidence and by the unavailability of the
negotiation with a foreign power would be to establish a information elsewhere by an appropriate
dangerous precedent. investigating authority.[44]

In the case at bar, Executive Secretary Ermita premised his claim of executive
Majority of the above jurisprudence have found their way in our privilege on the ground that the communications elicited by the three (3)
jurisdiction. In Chavez v. PCGG[38], this Court held that there is a governmental questions fall under conversation and correspondence between the President
privilege against public disclosure with respect to state secrets regarding and public officials necessary in her executive and policy decision-making
military, diplomatic and other security matters. In Chavez v. PEA,[39] there is process and, that the information sought to be disclosed might impair our
also a recognition of the confidentiality of Presidential conversations, diplomatic as well as economic relations with the Peoples Republic of
correspondences, and discussions in closed-door Cabinet meetings. In Senate China. Simply put, the bases are presidential communications privilege and
executive privilege on matters relating to diplomacy or foreign relations.
draw the line between an inquiry in aid of legislation and an inquiry in the
Using the above elements, we are convinced that, indeed, the communications exercise of oversight function of Congress. In this regard, much will depend
elicited by the three (3) questions are covered by the presidential on the content of the questions and the manner the inquiry is conducted.
communications privilege.First, the communications relate to a
quintessential and non-delegable power of the President, i.e. the power to Respondent Committees argue that a claim of executive privilege
enter into an executive agreement with other countries. This authority of the does not guard against a possible disclosure of a crime or wrongdoing. We
President to enter into executive agreements without the concurrence of the see no dispute on this. It is settled in United States v.
Legislature has traditionally been recognized in Philippine Nixon[48] that demonstrated, specific need for evidence in pending criminal
jurisprudence.[45] Second,the communications are received by a close advisor trial outweighs the Presidents generalized interest in
of the President. Under the operational proximity test, petitioner can be confidentiality.However, the present cases distinction with the Nixon case is
considered a close advisor, being a member of President Arroyos very evident. In Nixon, there is a pending criminal proceeding
cabinet. And third, there is no adequate showing of a compelling need that where the information is requested and it is the demands of due process of
would justify the limitation of the privilege and of the unavailability of the law and the fair administration of criminal justice that the information be
information elsewhere by an appropriate investigating authority. disclosed. This is the reason why the U.S. Court was quick to limit the scope
The third element deserves a lengthy discussion. of its decision. It stressed that it is not concerned here with the balance
between the Presidents generalized interest in confidentiality x x x and
United States v. Nixon held that a claim of executive privilege is congressional demands for information. Unlike in Nixon, the information
subject to balancing against other interest. In other words, confidentiality in here is elicited, not in a criminal proceeding, but in a legislative inquiry. In
executive privilege is not absolutely protected by the Constitution. The U.S. this regard, Senate v. Ermita stressed that the validity of the claim of executive
Court held: privilege depends not only on the ground invoked but, also, on
the procedural setting or the context in which the claim is
[N]either the doctrine of separation of powers, nor the need made. Furthermore, in Nixon,the President did not interpose any claim of
for confidentiality of high-level communications, without need to protect military, diplomatic or sensitive national security secrets. In
more, can sustain an absolute, unqualified Presidential the present case, Executive Secretary Ermita categorically claims executive
privilege of immunity from judicial process under all privilege on the grounds of presidential communications privilege in
circumstances. relation to her executive and policy decision-making process and diplomatic
secrets.
The foregoing is consistent with the earlier case of Nixon v. Sirica,[46] where it
was held that presidential communications are presumptively privileged The respondent Committees should cautiously tread into the
and that the presumption can be overcome only by mere showing of public investigation of matters which may present a conflict of interest that may
need by the branch seeking access to conversations. The courts are enjoined provide a ground to inhibit the Senators participating in the inquiry if later on
to resolve the competing interests of the political branches of the government an impeachment proceeding is initiated on the same subject matter of the
in the manner that preserves the essential functions of each Branch.[47] Here, present Senate inquiry. Pertinently, in Senate Select Committee on Presidential
the record is bereft of any categorical explanation from respondent Campaign Activities v. Nixon,[49] it was held that since an impeachment
Committees to show a compelling or citical proceeding had been initiated by a House Committee, the Senate Select
need for the answers to the three (3) questions in the enactment of a Committees immediate oversight need for five presidential tapes should give
law. Instead, the questions veer more towards the exercise of the legislative way to the House Judiciary Committee which has the constitutional authority
oversight function under Section 22 of Article VI rather than Section 21 of the to inquire into presidential impeachment. The Court expounded on this issue
same Article. Senate v. Ermita ruled that the the oversight function of in this wise:
Congress may be facilitated by compulsory process only to the extent that
it is performed in pursuit of legislation. It is conceded that it is difficult to
It is true, of course, that the Executive cannot, any Committee's constituent resolution. Since passage of that
more than the other branches of government, invoke a resolution, the House Committee on the Judiciary has
general confidentiality privilege to shield its officials and begun an inquiry into presidential impeachment. The
employees from investigations by the proper governmental investigative authority of the Judiciary Committee with
institutions into possible criminal wrongdoing. The respect to presidential conduct has an express
Congress learned this as to its own privileges in Gravel v. constitutional source. x x x We have been shown no
United States, as did the judicial branch, in a sense, in Clark evidence indicating that Congress itself attaches any
v. United States, and the executive branch itself in Nixon v. particular value to this interest. In these circumstances,
Sirica. But under Nixon v. Sirica, the showing required to we think the need for the tapes premised solely on an
overcome the presumption favoring confidentiality asserted power to investigate and inform cannot justify
turned, not on the nature of the presidential conduct that enforcement of the Committee's subpoena.
the subpoenaed material might reveal, but, instead, on the The sufficiency of the Committee's showing of
nature and appropriateness of the function in the need has come to depend, therefore, entirely on whether
performance of which the material was sought, and the the subpoenaed materials are critical to the performance of
degree to which the material was necessary to its its legislative functions. There is a clear difference between
fulfillment. Here also our task requires and our decision Congress' legislative tasks and the responsibility of a grand
implies no judgment whatever concerning possible jury, or any institution engaged in like functions. While
presidential involvement in culpable activity. On the fact-finding by a legislative committee is undeniably a
contrary, we think the sufficiency of the Committee's part of its task, legislative judgments normally depend
showing must depend solely on whether the subpoenaed more on the predicted consequences of proposed
evidence is demonstrably critical to the responsible legislative actions and their political acceptability, than
fulfillment of the Committee's functions. on precise reconstruction of past events; Congress
In its initial briefs here, the Committee argued that frequently legislates on the basis of conflicting information
it has shown exactly this. It contended that resolution, on provided in its hearings. In contrast, the responsibility of
the basis of the subpoenaed tapes, of the conflicts in the the grand jury turns entirely on its ability to determine
testimony before it would aid in a determination whether whether there is probable cause to believe that certain
legislative involvement in political campaigns is necessary named individuals did or did not commit specific crimes.
and could help engender the public support needed for If, for example, as in Nixon v. Sirica, one of those crimes is
basic reforms in our electoral system.Moreover, Congress perjury concerning the content of certain conversations, the
has, according to the Committee, power to oversee the grand jury's need for the most precise evidence, the exact
operations of the executive branch, to investigate instances text of oral statements recorded in their original form, is
of possible corruption and malfeasance in office, and to undeniable. We see no comparable need in the legislative
expose the results of its investigations to public view. The process, at least not in the circumstances of this
Committee says that with respect to Watergate-related case. Indeed, whatever force there might once have been in
matters, this power has been delegated to it by the Senate, the Committee's argument that the subpoenaed materials
and that to exercise its power responsibly, it must have are necessary to its legislative judgments has been
access to the subpoenaed tapes. substantially undermined by subsequent events.
We turn first to the latter contention. In the (Emphasis supplied)
circumstances of this case, we need neither deny that the
Congress may have, quite apart from its legislative
responsibilities, a general oversight power, nor explore
what the lawful reach of that power might be under the
Respondent Committees further contend that the grant of petitioners of public concern. For one, the demand of a citizen for the
claim of executive privilege violates the constitutional provisions on the right production of documents pursuant to his right to
of the people to information on matters of public concern.[50] We might have information does not have the same obligatory force as
agreed with such contention if petitioner did not appear before them at a subpoena duces tecum issued by Congress. Neither does the
all. But petitioner made himself available to them during the September 26 right to information grant a citizen the power to exact
hearing, where he was questioned for eleven (11) hours. Not only that, he testimony from government officials. These powers belong
expressly manifested his willingness to answer more questions from the only to Congress, not to an individual citizen.
Senators, with the exception only of those covered by his claim of executive
privilege. Thus, while Congress is composed of representatives
elected by the people, it does not follow, except in a
The right to public information, like any other right, is subject to highly qualified sense, that in every exercise of its power
limitation. Section 7 of Article III provides: of inquiry, the people are exercising their right to
information.
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 The members of respondent Committees should not invoke as justification in
acts, transactions, or decisions, as well as to government their exercise of power a right properly belonging to the people in general.
research data used as basis for policy development, shall be This is because when they discharge their power, they do so as public officials
afforded the citizen, subject to such limitations as may be and members of Congress. Be that as it may, the right to information must be
provided by law. balanced with and should give way, in appropriate cases, to constitutional
precepts particularly those pertaining to delicate interplay of executive-
legislative powers and privileges which is the subject of careful review by
The provision itself expressly provides the limitation, i.e. as may be numerous decided cases.
provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No.
6713,[51] Article 229[52] of the Revised Penal Code, Section 3 (k)[53] of R.A. No. B- The Claim of Executive Privilege
3019, and Section 24(e)[54] of Rule 130 of the Rules of Court. These are in is Properly Invoked
addition to what our body of jurisprudence classifies as confidential[55] and
what our Constitution considers as belonging to the larger concept of We now proceed to the issue -- whether the claim is properly
executive privilege. Clearly, there is a recognized public interest in the invoked by the President. Jurisprudence teaches that for the claim to be
confidentiality of certain information. We find the information subject of this properly invoked, there must be a formal claim of privilege, lodged by the
case belonging to such kind. head of the department which has control over the matter.[56] A formal and
proper claim of executive privilege requires a precise and certain reason for
More than anything else, though, the right of Congress or any of its preserving their confidentiality.[57]
Committees to obtain information in aid of legislation cannot be equated with
the peoples right to public information. The former cannot claim that
every legislative inquiry is an exercise of the peoples right to information. The The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies
distinction between such rights is laid down in Senate v. Ermita: the requirement. It serves as the formal claim of privilege. There, he expressly
states that this Office is constrained to invoke the settled doctrine of
There are, it bears noting, clear distinctions between the executive privilege as refined in Senate v. Ermita, and has advised Secretary
right of Congress to information which underlies the power Neri accordingly. Obviously, he is referring to the Office of the President.
of inquiry and the right of people to information on matters
That is more than enough compliance. In Senate v. Ermita, a less categorical It must be reiterated that when respondent Committees issued the
letter was even adjudged to be sufficient. show cause Letter dated November 22, 2007, petitioner replied
immediately, manifesting that it was not his intention to ignore the Senate
With regard to the existence of precise and certain reason, we find the hearing and that he thought the only remaining questions were the three (3)
grounds relied upon by Executive Secretary Ermita specific enough so as questions he claimed to be covered by executive privilege. In addition thereto,
not to leave respondent Committees in the dark on how the requested he submitted Atty. Bautistas letter, stating that his non-appearance was upon
information could be classified as privileged. The case of Senate v. the order of the President and specifying the reasons why his conversations
Ermita only requires that an allegation be made whether the information with President Arroyo are covered by executive privilege. Both
demanded involves military or diplomatic secrets, closed-door Cabinet correspondences include an expression of his willingness to testify again,
meetings, etc. The particular ground must only be specified. The enumeration provided he be furnished in advance copies of the questions. Without
is not even intended to be comprehensive.[58] The following statement of responding to his request for advance list of questions, respondent
grounds satisfies the requirement: Committees issued the Order dated January 30, 2008, citing him in contempt
of respondent Committees and ordering his arrest and detention at the Office
The context in which executive privilege is being invoked of the Senate Sergeant-At-Arms until such time that he would appear and give
is that the information sought to be disclosed might impair his testimony.Thereupon, petitioner filed a motion for reconsideration,
our diplomatic as well as economic relations with the informing respondent Committees that he had filed the present petition
Peoples Republic ofChina. Given the confidential nature in for certiorari.
which these information were conveyed to the President,
he cannot provide the Committee any further details of Respondent Committees committed grave abuse of discretion in issuing the
these conversations, without disclosing the very thing the contempt Order in view of five (5) reasons.
privilege is designed to protect.
First, there being a legitimate claim of executive privilege, the issuance of the
At any rate, as held further in Senate v. Ermita, [59] the Congress must not contempt Order suffers from constitutional infirmity.
require the executive to state the reasons for the claim with such particularity Second, respondent Committees did not comply with the requirement laid
as to compel disclosure of the information which the privilege is meant to down in Senate v. Ermita that the invitations should contain the possible
protect. This is a matter of respect to a coordinate and co-equal department. 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
II furtherance thereof. Compliance with this requirement is imperative, both
Respondent Committees Committed under Sections 21 and 22 of Article VI of the Constitution. This must be so to
Grave Abuse of Discretion in Issuing the ensure that the rights of both persons appearing in or affected by such
Contempt Order inquiry are respected as mandated by said Section 21 and by virtue of the
express language of Section 22. Unfortunately, despite petitioners repeated
demands, respondent Committees did not send him an advance list of
Grave abuse of discretion means such capricious and whimsical questions.
exercise of judgment as is equivalent to lack of jurisdiction, or, in other words Third, a reading of the transcript of respondent Committees January 30,
where the power is exercised in an arbitrary or despotic manner by reason of 2008 proceeding reveals that only a minority of the members of the Senate
passion or personal hostility and it must be so patent and gross as to amount Blue Ribbon Committee was present during the deliberation. [61] Section 18 of
to an evasion of positive duty or to a virtual refusal to perform the duty the Rules of Procedure Governing Inquiries in Aid of Legislation provides that:
enjoined or to act at all in contemplation of law.[60]
The Committee, by a vote of majority of all its
members, may punish for contempt any witness before it
who disobeys any order of the Committee or refuses to be
sworn or to testify or to answer proper questions by the So my suggestion, Mr. Chairman, is the Blue
Committee or any of its members. Ribbon Committee should not forget its the lead committee
here, and therefore, the will of the lead committee prevails
over all the other, you, know reservations that other
Clearly, the needed vote is a majority of all the members of the Committee. committees might have who are only secondary or even
Apparently, members who did not actually participate in the deliberation tertiary committees, Mr. Chairman.
were made to sign thecontempt Order. Thus, there is a cloud of doubt as to
the validity of the contempt Order dated January 30, 2008. We quote the THE CHAIRMAN (SEN. CAYETANO,
pertinent portion of the transcript, thus: A.) Thank you very much to the Minority Leader. And I
agree with the wisdom of his statements. I was merely
THE CHAIRMAN (SEN. CAYETANO, A). For mentioning that under Section 6 of the Rules of the
clarification. x x x The Chair will call either a caucus or Committee and under Section 6, The Committee by a vote
will ask the Committee on Rules if there is a problem. of a majority of all its members may punish for contempt
Meaning, if we do not have the sufficient numbers. But if any witness before it who disobeys any order of the
we have a sufficient number, we will just hold a caucus Committee.
to be able to implement that right away becauseAgain,
our Rules provide that any one held in contempt and So the Blue Ribbon Committee is more than willing to take
ordered arrested, need the concurrence of a majority of all that responsibility. But we only have six members here
members of the said committee and we have three today, I am the seventh as chair and so we have not met
committees conducting this. that number.So I am merely stating that, sir, that when we
will prepare the documentation, if a majority of all
So thank you very much to the members members sign and I am following the Sabio v. Gordon rule
SEN. PIMENTEL. Mr. Chairman. wherein I do believe, if I am not mistaken, Chairman
Gordon prepared the documentation and then either in
THE CHAIRMAN (SEN. CAYETANO,A). May I caucus or in session asked the other members to sign. And
recognize the Minority Leader and give him the floor, once the signatures are obtained, solely for the purpose that
Senator Pimentel. Secretary Neri or Mr. Lozada will not be able to legally
question our subpoena as being insufficient in accordance
SEN. PIMENTEL. Mr. Chairman, there is no with law.
problem, I think, with consulting the other committees.
But I am of the opinion that the Blue Ribbon Committee SEN. PIMENTEL. Mr. Chairman, the caution that the chair
is the lead committee, and therefore, it should have is suggesting is very well-taken. But Id like to advert to the
preference in enforcing its own decisions. Meaning to fact that the quorum of the committee is only two as far as
say, it is not something that is subject to consultation with I remember.Any two-member senators attending a Senate
other committees. I am not sure that is the right committee hearing provide that quorum, and therefore
interpretation. I think that once we decide here, we there is more than a quorum demanded by our Rules as far
enforce what we decide, because otherwise, before we
as we are concerned now, and acting as Blue Ribbon
know it, our determination is watered down by delay and,
Committee, as Senator Enrile pointed out. In any event, the
you know, the so-called consultation that inevitably will
signatures that will follow by the additional members will
have to take place if we follow the premise that has been
only tend to strengthen the determination of this
explained.
Committee to put its foot forward put down on what is may thus enact a different set of rules as it may deem
happening in this country, Mr. Chairman, because it really fit. Not having published its Rules of Procedure, the
looks terrible if the primary Committee of the Senate, which subject hearings in aid of legislation conducted by the
is the Blue Ribbon Committee, cannot even sanction people 14thSenate, are therefore, procedurally infirm.
who openly defy, you know, the summons of this
Committee. I know that the Chair is going through an
agonizing moment here. I know that.But nonetheless, I And fifth, respondent Committees issuance of the contempt Order is
think we have to uphold, you know, the institution that we arbitrary and precipitate. It must be pointed out that respondent Committees
are representing because the alternative will be a disaster did not first pass upon the claim of executive privilege and inform petitioner
for all of us, Mr. Chairman. So having said that, Id like to of their ruling. Instead, they curtly dismissed his explanation as unsatisfactory
reiterate my point. and simultaneously issued the Order citing him in contempt and ordering his
immediate arrest and detention.
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I
agree 100 percent with the intentions of the Minority A fact worth highlighting is that petitioner is not an unwilling witness. He
Leader. But let me very respectfully disagree with the manifested several times his readiness to testify before respondent
legal requirements.Because, yes, we can have a hearing if Committees. He refused to answer the three (3) questions because he was
we are only two but both under Section 18 of the Rules of ordered by the President to claim executive privilege. It behooves respondent
the Senate and under Section 6 of the Rules of the Blue Committees to first rule on the claim of executive privilege and inform
Ribbon Committee, there is a need for a majority of all petitioner of their finding thereon, instead of peremptorily dismissing his
members if it is a case of contempt and arrest. So, I am explanation as unsatisfactory. Undoubtedly,
simply trying to avoid the court rebuking the Committee, respondent Committees actions constitute graveabuse of discretion for
which will instead of strengthening will weaken us. But I being arbitrary and for denying petitioner due process of law. The same
do agree, Mr. Minority Leader, that we should push for this quality afflicted their conduct when they (a) disregarded petitioners motion
and show the executive branch that the well-decided the for reconsideration alleging that he had filed the present petition before this
issue has been decided upon the Sabio versus Gordon Court and (b) ignored petitioners repeated request for an advance list of
case. And its very clear that we are all allowed to call questions, if there be any aside from the three (3) questions as to which he
witnesses. And if they refure or they disobey not only can claimed to be covered by executive privilege.
we cite them in contempt and have them arrested. x x x [62]
Even the courts are repeatedly advised to exercise the power of
contempt judiciously and sparingly with utmost self-restraint with the end in
Fourth, we find merit in the argument of the OSG that respondent view of utilizing the same for correction and preservation of the dignity of the
Committees likewise violated Section 21 of Article VI of the Constitution, court, not for retaliation or vindication.[63] Respondent Committees should
requiring that the inquiry be in accordance with the duly published rules of have exercised the same restraint, after all petitioner is not even an ordinary
procedure. We quote the OSGs explanation: witness. He holds a high position in a co-equal branch of government.
The phrase duly published rules of procedure requires the
Senate of every Congress to publish its rules of procedure In this regard, it is important to mention that many incidents of
governing inquiries in aid of legislation because every judicial review could have been avoided if powers are discharged with
Senate is distinct from the one before it or after it. Since circumspection and deference. Concomitant with the doctrine of separation
Senatorial elections are held every three (3) years for one- of powers is the mandate to observe respect to a co-equal branch of the
half of the Senates membership, the composition of the government.
Senate also changes by the end of each term. Each Senate
One last word. some accident of immediate and overwhelming
interestappeals to the feelings and distorts the judgment.
The Court was accused of attempting to abandon its constitutional duty when These immediate interests exercise a kind of hydraulic
it required the parties to consider a proposal that would lead to a possible pressure which makes what previously was clear seem
compromise. The accusation is far from the truth. The Court did so, only to doubtful, and before which even well settled principles of
test a tool that other jurisdictions find to be effective in settling similar cases, law will bend.[66]
to avoid a piecemeal consideration of the questions for review and to avert a
constitutional crisis between the executive and legislative branches of
government. In this present crusade to search for truth, we should turn to the
fundamental constitutional principles which underlie our tripartite system of
In United States v. American Tel. & Tel Co.,[64] the court refrained from government, where the Legislature enacts the law, the Judiciary
deciding the case because of its desire to avoid a resolution that might disturb interprets it and the Executive implements it. They are considered
the balance of power between the two branches and inaccurately reflect their separate, co-equal, coordinate and supreme within their respective spheres
true needs. Instead, it remanded the record to the District Court for but, imbued with a system of checks and balances to prevent
further proceedings during which the parties are required to negotiate a unwarranted exercise of power. The Courts mandate is to preserve
settlement. In the subsequent case of United States v. American Tel. &Tel these constitutional principles at all times to keep the political branches of
Co.,[65] it was held that much of this spirit of compromise is reflected in the government within constitutional bounds in the exercise of their respective
generality of language found in the Constitution. It proceeded to state: powers and prerogatives, even if it be in the search for truth. This is the only
way we can preserve the stability of our democratic institutions and
Under this view, the coordinate branches do not exist in an uphold the Rule of Law.
exclusively adversary relationship to one another when a
conflict in authority arises. Rather each branch should take WHEREFORE, the petition is hereby GRANTED. The subject Order
cognizance of an implicit constitutional mandate to seek dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the
optimal accommodation through a realistic evaluation of Senate Committees and directing his arrest and detention, is hereby nullified.
the needs of the conflicting branches in the particular fact
situation.

It thereafter concluded that: The Separation of Powers often


impairs efficiency, in terms of dispatch and the immediate functioning of
government. It is the long-term staying power of government that is
enhanced by the mutual accommodation required by the separation of
powers.

In rendering this decision, the Court emphasizes once more that the
basic principles of constitutional law cannot be subordinated to the needs of
a particular situation. Asmagistrates, our mandate is to rule
objectively and dispassionately, always mindful of Mr. Justice Holmes
warning on the dangers inherent in cases of this nature, thus:
Republic of the Philippines Accountability of Public Officers and Investigations,1 Trade and
SUPREME COURT Commerce,2 and National Defense and Security (collectively the "respondent
Manila Committees").3
EN BANC A brief review of the facts is imperative.
G.R. No. 180643 September 4, 2008 On September 26, 2007, petitioner appeared before respondent Committees
ROMULO L. NERI, petitioner, and testified for about eleven (11) hours on matters concerning the National
vs. Broadband Project (the "NBN Project"), a project awarded by the
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS Department of Transportation and Communications ("DOTC") to Zhong
AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then
COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered
AND SECURITY, respondents. him P200 Million in exchange for his approval of the NBN Project. He
RESOLUTION further narrated that he informed President Gloria Macapagal Arroyo
LEONARDO-DE CASTRO, J.: ("President Arroyo") of the bribery attempt and that she instructed him not
Executive privilege is not a personal privilege, but one that adheres to the to accept the bribe. However, when probed further on President Arroyo and
Office of the President. It exists to protect public interest, not to benefit a petitioners discussions relating to the NBN Project, petitioner refused to
particular public official. Its purpose, among others, is to assure that the answer, invoking "executive privilege." To be specific, petitioner refused to
nation will receive the benefit of candid, objective and untrammeled answer questions on: (a) whether or not President Arroyo followed up the
communication and exchange of information between the President and NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c)
his/her advisers in the process of shaping or forming policies and arriving whether or not she directed him to approve it.6
at decisions in the exercise of the functions of the Presidency under the Respondent Committees persisted in knowing petitioners answers to these
Constitution. The confidentiality of the Presidents conversations and three questions by requiring him to appear and testify once more on
correspondence is not unique. It is akin to the confidentiality of judicial November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R.
deliberations. It possesses the same value as the right to privacy of all Ermita wrote to respondent Committees and requested them to dispense
citizens and more, because it is dictated by public interest and the with petitioners testimony on the ground of executive privilege. 7 The letter
constitutionally ordained separation of governmental powers. of Executive Secretary Ermita pertinently stated:
In these proceedings, this Court has been called upon to exercise its power Following the ruling in Senate v. Ermita, the foregoing questions fall
of review and arbitrate a hotly, even acrimoniously, debated dispute under conversations and correspondence between the President
between the Courts co-equal branches of government. In this task, this and public officials which are considered executive privilege
Court should neither curb the legitimate powers of any of the co-equal and (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R.
coordinate branches of government nor allow any of them to overstep the 133250, July 9, 2002). Maintaining the confidentiality of
boundaries set for it by our Constitution. The competing interests in the case conversations of the President is necessary in the exercise of her
at bar are the claim of executive privilege by the President, on the one hand, executive and policy decision making process. The expectation of a
and the respondent Senate Committees assertion of their power to conduct President to the confidentiality of her conversations and
legislative inquiries, on the other. The particular facts and circumstances of correspondences, like the value which we accord deference for the
the present case, stripped of the politically and emotionally charged rhetoric privacy of all citizens, is the necessity for protection of the public
from both sides and viewed in the light of settled constitutional and legal interest in candid, objective, and even blunt or harsh opinions in
doctrines, plainly lead to the conclusion that the claim of executive privilege Presidential decision-making. Disclosure of conversations of the
must be upheld. President will have a chilling effect on the President, and will
Assailed in this motion for reconsideration is our Decision dated March 25, hamper her in the effective discharge of her duties and
2008 (the "Decision"), granting the petition for certiorari filed by petitioner responsibilities, if she is not protected by the confidentiality of her
Romulo L. Neri against the respondent Senate Committees on conversations.
The context in which executive privilege is being invoked is that January 30, 2008 which declared him in contempt and directed his arrest and
the information sought to be disclosed might impair our diplomatic detention.
as well as economic relations with the Peoples Republic of China. Petitioner then filed his Supplemental Petition for Certiorari (with Urgent
Given the confidential nature in which these information were Application for TRO/Preliminary Injunction) on February 1, 2008. In the
conveyed to the President, he cannot provide the Committee any Courts Resolution dated February 4, 2008, the parties were required to
further details of these conversations, without disclosing the very observe the status quo prevailing prior to the Order dated January 30, 2008.
thing the privilege is designed to protect. On March 25, 2008, the Court granted his petition for certiorari on two
In light of the above considerations, this Office is constrained to grounds: first, the communications elicited by the three (3) questions were
invoke the settled doctrine of executive privilege as refined covered by executive privilege; and second, respondent Committees
in Senate v. Ermita, and has advised Secretary Neri accordingly. committed grave abuse of discretion in issuing the contempt order. Anent
Considering that Sec. Neri has been lengthily interrogated on the the first ground, we considered the subject communications as falling under
subject in an unprecedented 11-hour hearing, wherein he has the presidential communications privilege because (a) they related to a
answered all questions propounded to him except the foregoing quintessential and non-delegable power of the President, (b) they were
questions involving executive privilege, we therefore request that received by a close advisor of the President, and (c) respondent Committees
his testimony on 20 November 2007 on the ZTE / NBN project be failed to adequately show a compelling need that would justify the
dispensed with. limitation of the privilege and the unavailability of the information
On November 20, 2007, petitioner did not appear before respondent elsewhere by an appropriate investigating authority. As to the second
Committees upon orders of the President invoking executive privilege. On ground, we found that respondent Committees committed grave abuse of
November 22, 2007, the respondent Committees issued the show-cause letter discretion in issuing the contempt order because (a) there was a valid claim
requiring him to explain why he should not be cited in contempt. On of executive privilege, (b) their invitations to petitioner did not contain the
November 29, 2007, in petitioners reply to respondent Committees, he questions relevant to the inquiry, (c) there was a cloud of doubt as to the
manifested that it was not his intention to ignore the Senate hearing and that regularity of the proceeding that led to their issuance of the contempt order,
he thought the only remaining questions were those he claimed to be (d) they violated Section 21, Article VI of the Constitution because their
covered by executive privilege. He also manifested his willingness to appear inquiry was not in accordance with the "duly published rules of procedure,"
and testify should there be new matters to be taken up. He just requested and (e) they issued the contempt order arbitrarily and precipitately.
that he be furnished "in advance as to what else" he "needs to clarify." On April 8, 2008, respondent Committees filed the present motion for
Respondent Committees found petitioners explanations unsatisfactory. reconsideration, anchored on the following grounds:
Without responding to his request for advance notice of the matters that he I
should still clarify, they issued the Order dated January 30, 2008; In Re: P.S. CONTRARY TO THIS HONORABLE COURTS DECISION,
Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE
Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of ISSUED BY RESPONDENT COMMITTEES PURSUANT TO
respondent Committees and ordering his arrest and detention at the Office THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT
of the Senate Sergeant-at-Arms until such time that he would appear and MERELY THEIR OVERSIGHT FUNCTIONS.
give his testimony. II
On the same date, petitioner moved for the reconsideration of the above CONTRARY TO THIS HONORABLE COURTS DECISION,
Order.8 He insisted that he had not shown "any contemptible conduct THERE CAN BE NO PRESUMPTION THAT THE
worthy of contempt and arrest." He emphasized his willingness to testify on INFORMATION WITHHELD IN THE INSTANT CASE IS
new matters, but respondent Committees did not respond to his request for PRIVILEGED.
advance notice of questions. He also mentioned the petition for certiorari he III
previously filed with this Court on December 7, 2007. According to him, this CONTRARY TO THIS HONORABLE COURTS DECISION,
should restrain respondent Committees from enforcing the order dated THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT
THE COMMUNICATIONS ELICITED BY THE SUBJECT In his Comment, petitioner charges respondent Committees with
THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE exaggerating and distorting the Decision of this Court. He avers that there is
PRIVILEGE, CONSIDERING THAT: nothing in it that prohibits respondent Committees from investigating the
A. THERE IS NO SHOWING THAT THE MATTERS FOR NBN Project or asking him additional questions. According to petitioner, the
WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE Court merely applied the rule on executive privilege to the facts of the case.
STATE SECRETS. He further submits the following contentions: first, the assailed Decision did
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE not reverse the presumption against executive secrecy laid down in Senate v.
COURT IN THE DECISION IS APPLIED, THERE IS NO Ermita; second, respondent Committees failed to overcome the presumption
SHOWING THAT THE ELEMENTS OF PRESIDENTIAL of executive privilege because it appears that they could legislate even
COMMUNICATIONS PRIVILEGE ARE PRESENT. without the communications elicited by the three (3) questions, and they
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF admitted that they could dispense with petitioners testimony if certain
A COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF NEDA documents would be given to them; third, the requirement of
THE INFORMATION SOUGHT. specificity applies only to the privilege for State, military and diplomatic
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN secrets, not to the necessarily broad and all-encompassing presidential
THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE communications privilege; fourth, there is no right to pry into the
RESPONDENTS PERFORMANCE OF THEIR PRIMARY Presidents thought processes or exploratory exchanges; fifth, petitioner is
FUNCTION TO ENACT LAWS. not covering up or hiding anything illegal; sixth, the Court has the power
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE and duty to annul the Senate Rules; seventh, the Senate is not a continuing
TO INFORMATION, AND THE CONSTITUTIONAL POLICIES body, thus the failure of the present Senate to publish its Rules of Procedure
ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on
OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE. them; eighth, the requirement for a witness to be furnished advance copy of
IV questions comports with due process and the constitutional mandate that
CONTRARY TO THIS HONORABLE COURTS DECISION, the rights of witnesses be respected; and ninth, neither petitioner nor
RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF respondent has the final say on the matter of executive privilege, only the
DISCRETION IN ISSUING THE ASSAILED CONTEMPT
Court.
ORDER, CONSIDERING THAT:
For its part, the Office of the Solicitor General maintains that: (1) there is no
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE
categorical pronouncement from the Court that the assailed Orders were
PRIVILEGE IN THE INSTANT CASE.
issued by respondent Committees pursuant to their oversight function;
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED
hence, there is no reason for them "to make much" of the distinction between
REQUIREMENTS LAID DOWN INSENATE V. ERMITA.
Sections 21 and 22, Article VI of the Constitution; (2) presidential
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER
communications enjoy a presumptive privilege against disclosure as earlier
IN ACCORDANCE WITH THEIR INTERNAL RULES.
held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3)
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS
the communications elicited by the three (3) questions are covered by
UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION
executive privilege, because all the elements of the presidential
REQUIRING THAT ITS RULES OF PROCEDURE BE DULY
PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE communications privilege are present; (4) the subpoena ad
COURT CONSIDERED THE OSGS INTERVENTION ON THIS testificandum issued by respondent Committees to petitioner is fatally
ISSUE WITHOUT GIVING RESPONDENTS THE defective under existing law and jurisprudence; (5) the failure of the present
OPPORTUNITY TO COMMENT. Senate to publish its Rules renders the same void; and (6) respondent
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER Committees arbitrarily issued the contempt order.
IS NOT ARBITRARY OR PRECIPITATE. Incidentally, respondent Committees objection to the Resolution dated
March 18, 2008 (granting the Office of the Solicitor Generals Motion for
Leave to Intervene and to Admit Attached Memorandum) only after the conversations, correspondences, and discussions in closed-door Cabinet
promulgation of the Decision in this case is foreclosed by its untimeliness. meetings."18
The core issues that arise from the foregoing respective contentions of the Respondent Committees observation that this Courts Decision reversed the
opposing parties are as follows: "presumption that inclines heavily against executive secrecy and in favor of
(1) whether or not there is a recognized presumptive presidential disclosure" arises from a piecemeal interpretation of the said Decision. The
communications privilege in our legal system; Court has repeatedly held that in order to arrive at the true intent and
(2) whether or not there is factual or legal basis to hold that the meaning of a decision, no specific portion thereof should be isolated and
communications elicited by the three (3) questions are covered by resorted to, but the decision must be considered in its entirety. 19
executive privilege; Note that the aforesaid presumption is made in the context of the
(3) whether or not respondent Committees have shown that the circumstances obtaining in Senate v. Ermita, which declared void Sections
communications elicited by the three (3) questions are critical to the 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent
exercise of their functions; and portion of the decision in the said case reads:
(4) whether or not respondent Committees committed grave abuse From the above discussion on the meaning and scope of executive
of discretion in issuing the contempt order. privilege, both in the United States and in this jurisprudence, a
We shall discuss these issues seriatim. clear principle emerges. Executive privilege, whether asserted
I against Congress, the courts, or the public, is recognized only in
There Is a Recognized Presumptive relation to certain types of information of a sensitive character. While
Presidential Communications Privilege executive privilege is a constitutional concept, a claim thereof may
Respondent Committees ardently argue that the Courts declaration that be valid or not depending on the ground invoked to justify it and
presidential communications are presumptively privileged reverses the the context in which it is made. Noticeably absent is any
"presumption" laid down in Senate v. Ermita11 that "inclines heavily against recognition that executive officials are exempt from the duty to
executive secrecy and in favor of disclosure." Respondent Committees then disclose information by the mere fact of being executive officials.
claim that the Court erred in relying on the doctrine in Nixon. Indeed, the extraordinary character of the exemptions indicates
Respondent Committees argue as if this were the first time the presumption that the presumption inclines heavily against executive secrecy
in favor of thepresidential communications privilege is mentioned and and in favor of disclosure. (Emphasis and underscoring supplied)
adopted in our legal system. That is far from the truth. The Court, in the Obviously, the last sentence of the above-quoted paragraph in Senate v.
earlier case of Almonte v. Vasquez,12 affirmed that the presidential Ermita refers to the "exemption" being claimed by the executive officials
communications privilege is fundamental to the operation of government mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions
and inextricably rooted in the separation of powers under the Constitution. in the Executive Branch. This means that when an executive official, who is
Even Senate v. Ermita,13 the case relied upon by respondent Committees, one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be
reiterated this concept. There, the Court enumerated the cases in which the exempt from disclosure, there can be no presumption of authorization to
claim of executive privilege was recognized, among them Almonte v. invoke executive privilege given by the President to said executive official,
Chavez, Chavez v. Presidential Commission on Good Government such that the presumption in this situation inclines heavily against executive
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that secrecy and in favor of disclosure.
"there are certain types of information which the government may withhold Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this
from the public,16" that there is a "governmental privilege against public wise:
disclosure with respect to state secrets regarding military, diplomatic and Section 2(b) in relation to Section 3 virtually provides that, once the
other national security matters";17 and that "the right to information does head of office determines that a certain information is privileged,
not extend to matters recognized as privileged information under the such determination is presumed to bear the Presidents authority
separation of powers, by which the Court meant Presidential and has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the
President that it is allowing the appearance of such official. These Executive privilege
provisions thus allow the President to authorize claims of privilege The phrase "executive privilege" is not new in this jurisdiction. It
by mere silence. has been used even prior to the promulgation of the 1986
Such presumptive authorization, however, is contrary to the Constitution. Being of American origin, it is best understood in
exceptional nature of the privilege. Executive privilege, as already light of how it has been defined and used in the legal literature of
discussed, is recognized with respect to information the the United States.
confidential nature of which is crucial to the fulfillment of the Schwart defines executive privilege as "the power of the
unique role and responsibilities of the executive branch, or in those Government to withhold information from the public, the courts,
instances where exemption from disclosure is necessary to the and the Congress. Similarly, Rozell defines it as "the right of the
discharge of highly important executive responsibilities. The doctrine President and high-level executive branch officers to withhold
of executive privilege is thus premised on the fact that certain information from Congress, the courts, and ultimately the public." x
information must, as a matter of necessity, be kept confidential in x x In this jurisdiction, the doctrine of executive privilege was
pursuit of the public interest. The privilege being, by definition, an recognized by this Court in Almonte v. Vasquez. Almonte used the
exemption from the obligation to disclose information, in this case term in reference to the same privilege subject of Nixon. It quoted
to Congress, the necessity must be of such high degree as to the following portion of the Nixon decision which explains the
outweigh the public interest in enforcing that obligation in a basis for the privilege:
particular case. "The expectation of a President to the confidentiality of his
In light of this highly exceptional nature of the privilege, the Court conversations and correspondences, like the claim of
finds it essential to limit to the President the power to invoke the confidentiality of judicial deliberations, for example, he has all
privilege. She may of course authorize the Executive Secretary to the values to which we accord deference for the privacy of all
invoke the privilege on her behalf, in which case the Executive citizens and, added to those values, is the necessity for protection of
Secretary must state that the authority is "By order of the the public interest in candid, objective, and even blunt or harsh
President", which means that he personally consulted with her. The opinions in Presidential decision-making. A President and those who
privilege being an extraordinary power, it must be wielded only by assist him must be free to explore alternatives in the process of shaping
the highest official in the executive hierarchy. In other words, the policies and making decisions and to do so in a way many would be
President may not authorize her subordinates to exercise such unwilling to express except privately. These are the considerations
power. There is even less reason to uphold such authorization in justifying a presumptive privilege for Presidential
the instant case where the authorization is not explicit but by mere communications. The privilege is fundamental to the operation
silence. Section 3, in relation to Section 2(b), is further invalid on of government and inextricably rooted in the separation of
this score. powers under the Constitution x x x " (Emphasis and italics
The constitutional infirmity found in the blanket authorization to invoke supplied)
executive privilege granted by the President to executive officials in Sec. 2(b) Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege
of E.O. No. 464 does not obtain in this case. for Presidential communication," which was recognized early on in Almonte
In this case, it was the President herself, through Executive Secretary Ermita, v. Vasquez. To construe the passage inSenate v. Ermita adverted to in the
who invoked executive privilege on a specific matter involving an executive Motion for Reconsideration of respondent Committees, referring to the non-
agreement between the Philippines and China, which was the subject of the existence of a "presumptive authorization" of an executive official, to mean
three (3) questions propounded to petitioner Neri in the course of the Senate that the "presumption" in favor of executive privilege "inclines heavily
Committees investigation. Thus, the factual setting of this case markedly against executive secrecy and in favor of disclosure" is to distort the ruling in
differs from that passed upon in Senate v. Ermita. the Senate v. Ermita and make the same engage in self-contradiction.
Moreover, contrary to the claim of respondents, the Decision in this present Senate v. Ermita22 expounds on the constitutional underpinning of the
case hews closely to the ruling in Senate v. Ermita,21 to wit: relationship between the Executive Department and the Legislative
Department to explain why there should be no implied authorization or substance.24 On the other hand, "non-delegable" means that a power or duty
presumptive authorization to invoke executive privilege by the Presidents cannot be delegated to another or, even if delegated, the responsibility
subordinate officials, as follows: remains with the obligor.25 The power to enter into an executive agreement
When Congress exercises its power of inquiry, the only way for is in essence an executive power. This authority of the President to enter into
department heads to exempt themselves therefrom is by a valid executive agreements without the concurrence of the Legislature has
claim of privilege. They are not exempt by the mere fact that they traditionally been recognized in Philippine jurisprudence. 26 Now, the fact
are department heads. Only one executive official may be exempted that the President has to secure the prior concurrence of the Monetary
from this power - the President on whom executive power is Board, which shall submit to Congress a complete report of its decision
vested, hence, beyond the reach of Congress except through the before contracting or guaranteeing foreign loans, does not diminish the
power of impeachment. It is based on he being the highest official executive nature of the power.
of the executive branch, and the due respect accorded to a co-equal The inviolate doctrine of separation of powers among the legislative,
branch of governments which is sanctioned by a long-standing executive and judicial branches of government by no means prescribes
custom. (Underscoring supplied) absolute autonomy in the discharge by each branch of that part of the
Thus, if what is involved is the presumptive privilege of presidential governmental power assigned to it by the sovereign people. There is the
communications when invoked by the President on a matter clearly within corollary doctrine of checks and balances, which has been carefully
the domain of the Executive, the said presumption dictates that the same be calibrated by the Constitution to temper the official acts of each of these
recognized and be given preference or priority, in the absence of proof of a three branches. Thus, by analogy, the fact that certain legislative acts require
compelling or critical need for disclosure by the one assailing such action from the President for their validity does not render such acts less
presumption. Any construction to the contrary will render meaningless the legislative in nature. A good example is the power to pass a law. Article VI,
presumption accorded by settled jurisprudence in favor of executive Section 27 of the Constitution mandates that every bill passed by Congress
privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the shall, before it becomes a law, be presented to the President who shall
considerations justifying a presumptive privilege for Presidential approve or veto the same. The fact that the approval or vetoing of the bill is
communications."23 lodged with the President does not render the power to pass law executive
II in nature. This is because the power to pass law is generally a quintessential
There Are Factual and Legal Bases to and non-delegable power of the Legislature. In the same vein, the executive
Hold that the Communications Elicited by the power to enter or not to enter into a contract to secure foreign loans does not
Three (3) Questions Are Covered by Executive Privilege become less executive in nature because of conditions laid down in the
Respondent Committees claim that the communications elicited by the three Constitution. The final decision in the exercise of the said executive power is
(3) questions are not covered by executive privilege because the elements of still lodged in the Office of the President.
the presidential communications privilegeare not present. B. The "doctrine of operational proximity" was laid down precisely to limit
A. The power to enter into an executive agreement is a "quintessential and the scope of the presidential communications privilege but, in any case, it is
non-delegable presidential power." not conclusive.
First, respondent Committees contend that the power to secure a foreign Second, respondent Committees also seek reconsideration of the application
loan does not relate to a "quintessential and non-delegable presidential of the "doctrine of operational proximity" for the reason that "it maybe
power," because the Constitution does not vest it in the President alone, but misconstrued to expand the scope of the presidential communications
also in the Monetary Board which is required to give its prior concurrence privilege to communications between those who are operationally
and to report to Congress. proximate to the President but who may have "no direct communications
This argument is unpersuasive. with her."
The fact that a power is subject to the concurrence of another entity does not It must be stressed that the doctrine of "operational proximity" was laid
make such power less executive. "Quintessential" is defined as the most down in In re: Sealed Case27precisely to limit the scope of the presidential
perfect embodiment of something, the concentrated essence of communications privilege. The U.S. court was aware of the dangers that a
limitless extension of the privilege risks and, therefore, carefully cabined its the scope of the privilege would be unnecessarily expanded with the use of
reach by explicitly confining it to White House staff, and not to staffs of the the operational proximity test is unfounded.
agencies, and then only to White House staff that has "operational C. The Presidents claim of executive privilege is not merely based on a
proximity" to direct presidential decision-making, thus: generalized interest; and in balancing respondent Committees and the
We are aware that such an extension, unless carefully Presidents clashing interests, the Court did not disregard the 1987
circumscribed to accomplish the purposes of the privilege, could Constitutional provisions on government transparency, accountability and
pose a significant risk of expanding to a large swath of the disclosure of information.
executive branch a privilege that is bottomed on a recognition of Third, respondent Committees claim that the Court erred in upholding the
the unique role of the President. In order to limit this risk, the Presidents invocation, through the Executive Secretary, of executive
presidential communications privilege should be construed as privilege because (a) between respondent Committees specific and
narrowly as is consistent with ensuring that the confidentiality of demonstrated need and the Presidents generalized interest in
the Presidents decision-making process is adequately confidentiality, there is a need to strike the balance in favor of the former;
protected. Not every person who plays a role in the development and (b) in the balancing of interest, the Court disregarded the provisions of
of presidential advice, no matter how remote and removed from the 1987 Philippine Constitution on government transparency,
the President, can qualify for the privilege. In particular, the accountability and disclosure of information, specifically, Article III, Section
privilege should not extend to staff outside the White House in 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI,
executive branch agencies. Instead, the privilege should apply Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and
only to communications authored or solicited and received by 22.37
those members of an immediate White House advisors staff who It must be stressed that the Presidents claim of executive privilege is not
have broad and significant responsibility for investigation and merely founded on her generalized interest in confidentiality. The Letter
formulating the advice to be given the President on the particular dated November 15, 2007 of Executive Secretary Ermita
matter to which the communications relate. Only communications specified presidential communications privilege in relation to diplomatic
at that level are close enough to the President to be revelatory of and economic relations with another sovereign nation as the bases for the
his deliberations or to pose a risk to the candor of his claim. Thus, the Letter stated:
advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" The context in which executive privilege is being invoked is that
to the President that matters in determining whether "[t]he the information sought to be disclosed might impair our
Presidents confidentiality interests" is implicated).(Emphasis diplomatic as well as economic relations with the Peoples
supplied) Republic of China. Given the confidential nature in which this
In the case at bar, the danger of expanding the privilege "to a large swath of information were conveyed to the President, he cannot provide the
the executive branch" (a fear apparently entertained by respondents) is Committee any further details of these conversations, without
absent because the official involved here is a member of the Cabinet, thus, disclosing the very thing the privilege is designed to
properly within the term "advisor" of the President; in fact, her alter ego and protect. (emphasis supplied)
a member of her official family. Nevertheless, in circumstances in which the Even in Senate v. Ermita, it was held that Congress must not require the
official involved is far too remote, this Court also mentioned in the Decision Executive to state the reasons for the claim with such particularity as to
the organizational test laid down in Judicial Watch, Inc. v. Department of compel disclosure of the information which the privilege is meant to protect.
Justice.28 This goes to show that the operational proximity test used in the This is a matter of respect for a coordinate and co-equal department.
Decision is not considered conclusive in every case. In determining which It is easy to discern the danger that goes with the disclosure of the
test to use, the main consideration is to limit the availability of executive Presidents communication with her advisor. The NBN Project involves a
privilege only to officials who stand proximate to the President, not only by foreign country as a party to the agreement. It was actually a product of the
reason of their function, but also by reason of their positions in the meeting of minds between officials of the Philippines and China. Whatever
Executives organizational structure. Thus, respondent Committees fear that the President says about the agreement - particularly while official
negotiations are ongoing - are matters which China will surely view with constitutional provisions of freedom of speech or of the press nor of
particular interest. There is danger in such kind of exposure. It could the freedom of access to information." The Resolution went on to
adversely affect our diplomatic as well as economic relations with the state, thus:
Peoples Republic of China. We reiterate the importance of secrecy in The nature of diplomacy requires centralization of
matters involving foreign negotiations as stated in United States v. Curtiss- authority and expedition of decision which are inherent
Wright Export Corp., 38 thus: in executive action. Another essential characteristic of
The nature of foreign negotiations requires caution, and their diplomacy is its confidential nature. Although much has
success must often depend on secrecy, and even when brought to a been said about "open" and "secret" diplomacy, with
conclusion, a full disclosure of all the measures, demands, or disparagement of the latter, Secretaries of State Hughes
eventual concessions which may have been proposed or and Stimson have clearly analyzed and justified the
contemplated would be extremely impolitic, for this might have a practice. In the words of Mr. Stimson:
pernicious influence on future negotiations or produce immediate "A complicated negotiation cannot be carried
inconveniences, perhaps danger and mischief, in relation to other through without many, many private talks and
powers. The necessity of such caution and secrecy was one cogent discussion, man to man; many tentative
reason for vesting the power of making treaties in the President, suggestions and proposals. Delegates from
with the advice and consent of the Senate, the principle on which other countries come and tell you in confidence
the body was formed confining it to a small number of members. of their troubles at home and of their
To admit, then, a right in the House of Representatives to demand differences with other countries and with other
and to have as a matter of course all the papers respecting a delegates; they tell you of what they would do
negotiation with a foreign power would be to establish a dangerous under certain circumstances and would not do
precedent. under other circumstances If these reports
should become public who would ever
US jurisprudence clearly guards against the dangers of allowing Congress
trust American Delegations in another
access to all papers relating to a negotiation with a foreign power. In this
conference? (United States Department of State,
jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas
Press Releases, June 7, 1930, pp. 282-284)
G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations.
In Akbayan, the Court stated: xxxx
There is frequent criticism of the secrecy in which
Privileged character of diplomatic negotiations
negotiation with foreign powers on nearly all subjects is
The privileged character of diplomatic negotiations has been
concerned. This, it is claimed, is incompatible with the
recognized in this jurisdiction. In discussing valid limitations on
substance of democracy. As expressed by one writer, "It
the right to information, the Court in Chavez v. PCGG held that
can be said that there is no more rigid system of silence
"information on inter-government exchanges prior to the
anywhere in the world." (E.J. Young, Looking Behind the
conclusion of treaties and executive agreements may be subject to
Censorship, J. B. Lipincott Co., 1938) President Wilson in
reasonable safeguards for the sake of national interest." Even
starting his efforts for the conclusion of the World War
earlier, the same privilege was upheld in Peoples Movement for Press
declared that we must have "open covenants, openly
Freedom (PMPF) v. Manglapus wherein the Court discussed the
arrived at." He quickly abandoned his thought.
reasons for the privilege in more precise terms.
No one who has studied the question believes that such a
In PMPF v. Manglapus, the therein petitioners were seeking
method of publicity is possible.In the moment that
information from the Presidents representatives on the state of the
negotiations are started, pressure groups attempt to
then on-going negotiations of the RP-US Military Bases Agreement.
"muscle in." An ill-timed speech by one of the parties or
The Court denied the petition, stressing that "secrecy of
a frank declaration of the concession which are
negotiations with foreign countries is not violative of the exacted or offered on both sides would quickly lead to a
widespread propaganda to block the negotiations. After accountability and transparency. These are the twin postulates vital to the
a treaty has been drafted and its terms are fully effective functioning of a democratic government. The citizenry can become
published, there is ample opportunity for discussion prey to the whims and caprices of those to whom the power has been
before it is approved. (The New American Government delegated if they are denied access to information. And the policies on
and Its Works, James T. Young, 4th Edition, p. 194) public accountability and democratic government would certainly be mere
(Emphasis and underscoring supplied) empty words if access to such information of public concern is denied.
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. In the case at bar, this Court, in upholding executive privilege with respect
v. Curtiss-Wright Export Corp. that the President is the sole organ of to three (3) specific questions, did not in any way curb the publics right to
the nation in its negotiations with foreign countries,viz: information or diminish the importance of public accountability and
"x x x In this vast external realm, with its important, transparency.
complicated, delicate and manifold problems, the This Court did not rule that the Senate has no power to investigate the NBN
President alone has the power to speak or listen as a Project in aid of legislation. There is nothing in the assailed Decision that
representative of the nation. He makes treaties with the prohibits respondent Committees from inquiring into the NBN Project. They
advice and consent of the Senate; but he alone negotiates. could continue the investigation and even call petitioner Neri to testify
Into the field of negotiation the Senate cannot intrude; and again. He himself has repeatedly expressed his willingness to do so. Our
Congress itself is powerless to invade it. As Marshall said Decision merely excludes from the scope of respondents investigation the
in his great arguments of March 7, 1800, in the House of three (3) questions that elicit answers covered by executive privilege and
Representatives, "The President is the sole organ of the rules that petitioner cannot be compelled to appear before respondents to
nation in its external relations, and its sole answer the said questions. We have discussed the reasons why these
representative with foreign nations." Annals, 6th Cong., answers are covered by executive privilege. That there is a recognized public
col. 613 (Emphasis supplied; underscoring in the interest in the confidentiality of such information is a recognized principle in
original) other democratic States. To put it simply, the right to information is not an
Considering that the information sought through the three (3) questions absolute right.
subject of this Petition involves the Presidents dealings with a foreign Indeed, the constitutional provisions cited by respondent Committees do not
nation, with more reason, this Court is wary of approving the view that espouse an absolute right to information. By their wording, the intention of
Congress may peremptorily inquire into not only official, documented acts the Framers to subject such right to the regulation of the law is
of the President but even her confidential and informal discussions with her unmistakable. The highlighted portions of the following provisions show the
close advisors on the pretext that said questions serve some vague legislative obvious limitations on the right to information, thus:
need. Regardless of who is in office, this Court can easily foresee unwanted Article III, Sec. 7. The right of the people to information on matters
consequences of subjecting a Chief Executive to unrestricted congressional of public concern shall be recognized. Access to official records,
inquiries done with increased frequency and great publicity. No Executive and to documents, and papers pertaining to official records, and to
can effectively discharge constitutional functions in the face of intense and documents, and papers pertaining to official acts, transactions, or
unchecked legislative incursion into the core of the Presidents decision- decisions, as well as to government research data used as basis for
making process, which inevitably would involve her conversations with a policy development, shall be afforded the citizen, subject to such
member of her Cabinet. limitations as may be provided by law.
With respect to respondent Committees invocation of constitutional Article II, Sec. 28. Subject to reasonable conditions prescribed by
prescriptions regarding the right of the people to information and public law, the State adopts and implements a policy of full public
accountability and transparency, the Court finds nothing in these arguments disclosure of all its transactions involving public interest.(Emphasis
to support respondent Committees case. supplied)
There is no debate as to the importance of the constitutional right of the In Chavez v. Presidential Commission on Good Government,40 it was stated that
people to information and the constitutional policies on public there are no specific laws prescribing the exact limitations within which the
right may be exercised or the correlative state duty may be obliged. legislative purpose of respondent Committees questions can be sufficiently
Nonetheless, it enumerated the recognized restrictions to such rights, among supported by the expedient of mentioning statutes and/or pending bills to
them: (1) national security matters, (2) trade secrets and banking which their inquiry as a whole may have relevance. The jurisprudential test
transactions, (3) criminal matters, and (4) other confidential information. laid down by this Court in past decisions on executive privilege is that the
National security matters include state secrets regarding military and presumption of privilege can only be overturned by a showing of
diplomatic matters, as well as information on inter-government exchanges compelling need for disclosure of the information covered by executive
prior to the conclusion of treaties and executive agreements. It was further privilege.
held that even where there is no need to protect such state secrets, they In the Decision, the majority held that "there is no adequate showing of a
must be "examined in strict confidence and given scrupulous protection." compelling need that would justify the limitation of the privilege and of the
Incidentally, the right primarily involved here is the right of respondent unavailability of the information elsewhere by an appropriate investigating
Committees to obtain information allegedly in aid of legislation, not the authority." In the Motion for Reconsideration, respondent Committees argue
peoples right to public information. This is the reason why we stressed in that the information elicited by the three (3) questions are necessary in the
the assailed Decision the distinction between these two rights. As laid down discharge of their legislative functions, among them, (a) to consider the three
in Senate v. Ermita, "the demand of a citizen for the production of documents (3) pending Senate Bills, and (b) to curb graft and corruption.
pursuant to his right to information does not have the same obligatory force We remain unpersuaded by respondents assertions.
as a subpoena duces tecum issued by Congress" and "neither does the right to In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to
information grant a citizen the power to exact testimony from government balancing against other interests and it is necessary to resolve the competing
officials." As pointed out, these rights belong to Congress, not to the interests in a manner that would preserve the essential functions of each
individual citizen. It is worth mentioning at this juncture that the parties branch. There, the Court weighed between presidential privilege and the
here are respondent Committees and petitioner Neri and that there was no legitimate claims of the judicial process. In giving more weight to the latter,
prior request for information on the part of any individual citizen. This the Court ruled that the President's generalized assertion of privilege must
Court will not be swayed by attempts to blur the distinctions between the yield to the demonstrated, specific need for evidence in a pending criminal
Legislature's right to information in a legitimate legislative inquiry and the trial.
public's right to information. The Nixon Court ruled that an absolute and unqualified privilege would
For clarity, it must be emphasized that the assailed Decision did not stand in the way of the primary constitutional duty of the Judicial Branch to
enjoin respondent Committees from inquiring into the NBN Project. All do justice in criminal prosecutions. The said Court further ratiocinated,
that is expected from them is to respect matters that are covered by through its ruling extensively quoted in the Honorable Chief Justice Puno's
executive privilege. dissenting opinion, as follows:
III. "... this presumptive privilege must be considered in light of our
Respondent Committees Failed to Show That historic commitment to the rule of law. This is nowhere more
the Communications Elicited by the Three Questions profoundly manifest than in our view that 'the twofold aim (of
Are Critical to the Exercise of their Functions criminal justice) is that guild shall not escape or innocence suffer.'
In their Motion for Reconsideration, respondent Committees devote an Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have
unusually lengthy discussion on the purported legislative nature of their elected to employ an adversary system of criminal justice in which
entire inquiry, as opposed to an oversight inquiry. the parties contest all issues before a court of law. The need to
At the outset, it must be clarified that the Decision did not pass upon the develop all relevant facts in the adversary system is both
nature of respondent Committees inquiry into the NBN Project. To reiterate, fundamental and comprehensive. The ends of criminal justice
this Court recognizes respondent Committees power to investigate the would be defeated if judgments were to be founded on a partial
NBN Project in aid of legislation. However, this Court cannot uphold the or speculative presentation of the facts. The very integrity of the
view that when a constitutionally guaranteed privilege or right is validly judicial system and public confidence in the system depend on
invoked by a witness in the course of a legislative investigation, the full disclosure of all the facts, within the framework of the rules
of evidence. To ensure that justice is done, it is imperative to the assertion of privilege must yield to the demonstrated, specific
function of courts that compulsory process be available for the need for evidence in a pending criminal trial. (emphasis supplied)
production of evidence needed either by the prosecution or by the In the case at bar, we are not confronted with a courts need for facts in order
defense. to adjudge liability in a criminal case but rather with the Senates need for
xxx xxx xxx information in relation to its legislative functions. This leads us to consider
The right to the production of all evidence at a criminal trial once again just how critical is the subject information in the discharge of
similarly has constitutional dimensions. The Sixth Amendment respondent Committees functions. The burden to show this is on the
explicitly confers upon every defendant in a criminal trial theright respondent Committees, since they seek to intrude into the sphere of
'to be confronted with the witness against him' and 'to have competence of the President in order to gather information which, according
compulsory process for obtaining witnesses in his favor.' to said respondents, would "aid" them in crafting legislation.
Moreover, the Fifth Amendment also guarantees that no person Senate Select Committee on Presidential Campaign Activities v.
shall be deprived of liberty without due process of law. It is Nixon41 expounded on the nature of a legislative inquiry in aid of legislation
the manifest duty of the courts to vindicate those guarantees, and in this wise:
to accomplish that it is essential that all relevant and admissible The sufficiency of the Committee's showing of need has come to
evidence be produced. depend, therefore, entirely on whether the subpoenaed materials
In this case we must weigh the importance of the general are critical to the performance of its legislative functions. There is a
privilege of confidentiality of Presidential communications in clear difference between Congress' legislative tasks and the
performance of the President's responsibilities against the responsibility of a grand jury, or any institution engaged in like
inroads of such a privilege on the fair administration of criminal functions. While fact-finding by a legislative committee is
justice. (emphasis supplied) undeniably a part of its task, legislative judgments normally
xxx xxx xxx depend more on the predicted consequences of proposed
...the allowance of the privilege to withhold evidence that legislative actions and their political acceptability, than on
is demonstrably relevant in a criminal trial would cut deeply into precise reconstruction of past events; Congress frequently
the guarantee of due process of law and gravely impair the basic legislates on the basis of conflicting information provided in its
function of the courts. A President's acknowledged need for hearings. In contrast, the responsibility of the grand jury turns
confidentiality in the communications of his office is general in entirely on its ability to determine whether there is probable cause
nature, whereas theconstitutional need for production of relevant to believe that certain named individuals did or did not commit
evidence in a criminal proceeding is specific and central to the specific crimes. If, for example, as in Nixon v. Sirica, one of those
fair adjudication of a particular criminal case in the crimes is perjury concerning the content of certain conversations,
administration of justice. Without access to specific facts a criminal the grand jury's need for the most precise evidence, the exact text of
prosecution may betotally frustrated. The President's broad oral statements recorded in their original form, is undeniable. We
interest in confidentiality of communication willnot be see no comparable need in the legislative process, at least not in
vitiated by disclosure of a limited number of conversations the circumstances of this case. Indeed, whatever force there might
preliminarily shown to have some bearing on the pending once have been in the Committee's argument that the subpoenaed
criminal cases. materials are necessary to its legislative judgments has been
We conclude that when the ground for asserting privilege as to substantially undermined by subsequent events. (Emphasis
subpoenaed materials sought for use in a criminal trial is based supplied)
only on the generalized interest in confidentiality, it cannot Clearly, the need for hard facts in crafting legislation cannot be equated with
prevail over the fundamental demands of due process of law in the compelling or demonstratively critical and specific need for facts which
the fair administration of criminal justice. The generalized is so essential to the judicial power to adjudicate actual controversies. Also,
the bare standard of "pertinency" set in Arnault cannot be lightly applied to
the instant case, which unlike Arnault involves a conflict between two (2) without petitioner answering the three (3) questions. In other words, the
separate, co-equal and coordinate Branches of the Government. information being elicited is not so critical after all. Thus:
Whatever test we may apply, the starting point in resolving the conflicting CHIEF JUSTICE PUNO
claims between the Executive and the Legislative Branches is the recognized So can you tell the Court how critical are these questions
existence of the presumptive presidential communications privilege. This is to the lawmaking function of the Senate. For instance,
conceded even in the Dissenting Opinion of the Honorable Chief Justice question Number 1 whether the President followed up the
Puno, which states: NBN project. According to the other counsel this question
A hard look at Senate v. Ermita ought to yield the conclusion that has already been asked, is that correct?
it bestowed a qualified presumption in favor of the Presidential ATTY. AGABIN
communications privilege. As shown in the previous Well, the question has been asked but it was not
discussion, U.S. v. Nixon, as well as the other related Nixon answered, Your Honor.
cases Sirica and Senate Select Committee on Presidential CHIEF JUSTICE PUNO
Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, Yes. But my question is how critical is this to the
as well as subsequent cases all recognize that there is a lawmaking function of the Senate?
presumptive privilege in favor of Presidential communications. ATTY. AGABIN
The Almonte case quoted U.S. v. Nixon and recognized a I believe it is critical, Your Honor.
presumption in favor of confidentiality of Presidential CHIEF JUSTICE PUNO
communications. Why?
The presumption in favor of Presidential communications puts the burden ATTY. AGABIN
on the respondent Senate Committees to overturn the presumption by For instance, with respect to the proposed Bill of Senator
demonstrating their specific need for the information to be elicited by the Miriam Santiago, she would like to indorse a Bill to
answers to the three (3) questions subject of this case, to enable them to craft include Executive Agreements had been used as a device
legislation. Here, there is simply a generalized assertion that the information to the circumventing the Procurement Law.
is pertinent to the exercise of the power to legislate and a broad and non- CHIEF JUSTICE PUNO
specific reference to pending Senate bills. It is not clear what matters relating But the question is just following it up.
to these bills could not be determined without the said information sought ATTY. AGABIN
by the three (3) questions. As correctly pointed out by the Honorable Justice I believe that may be the initial question, Your Honor,
Dante O. Tinga in his Separate Concurring Opinion: because if we look at this problem in its factual setting as
If respondents are operating under the premise that the counsel for petitioner has observed, there are intimations
president and/or her executive officials have committed of a bribery scandal involving high government officials.
wrongdoings that need to be corrected or prevented from
CHIEF JUSTICE PUNO
recurring by remedial legislation, the answer to those three
Again, about the second question, were you dictated to
questions will not necessarily bolster or inhibit respondents from
prioritize this ZTE, is that critical to the lawmaking
proceeding with such legislation. They could easily presume the
function of the Senate? Will it result to the failure of the
worst of the president in enacting such legislation.
Senate to cobble a Bill without this question?
For sure, a factual basis for situations covered by bills is not critically needed
ATTY. AGABIN
before legislatives bodies can come up with relevant legislation unlike in the
I think it is critical to lay the factual foundations for a
adjudication of cases by courts of law. Interestingly, during the Oral
proposed amendment to the Procurement Law, Your
Argument before this Court, the counsel for respondent Committees
Honor, because the petitioner had already testified that he
impliedly admitted that the Senate could still come up with legislations even
was offered a P200 Million bribe, so if he was offered a
P200 Million bribe it is possible that other government
officials who had something to do with the approval of the Anent the function to curb graft and corruption, it must be stressed that
contract would be offered the same amount of bribes. respondent Committees need for information in the exercise of this function
CHIEF JUSTICE PUNO is not as compelling as in instances when the purpose of the inquiry is
Again, that is speculative. legislative in nature. This is because curbing graft and corruption is merely
ATTY. AGABIN an oversight function of Congress.44 And if this is the primary objective of
That is why they want to continue with the investigation, respondent Committees in asking the three (3) questions covered by
Your Honor. privilege, it may even contradict their claim that their purpose is legislative
CHIEF JUSTICE PUNO in nature and not oversight. In any event, whether or not investigating graft
How about the third question, whether the President said and corruption is a legislative or oversight function of Congress, respondent
to go ahead and approve the project after being told about Committees investigation cannot transgress bounds set by the Constitution.
the alleged bribe. How critical is that to the lawmaking In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
function of the Senate? And the question is may they craft The "allocation of constitutional boundaries" is a task that this
a Bill a remedial law without forcing petitioner Neri to Court must perform under the Constitution. Moreover, as held in
answer this question? a recent case, "the political question doctrine neither interposes an
ATTY. AGABIN obstacle to judicial determination of the rival claims. The
Well, they can craft it, Your Honor, based on mere jurisdiction to delimit constitutional boundaries has been given to
speculation. And sound legislation requires that a this Court. It cannot abdicate that obligation mandated by the 1987
proposed Bill should have some basis in fact.42 Constitution, although said provision by no means does away with
The failure of the counsel for respondent Committees to pinpoint the specific the applicability of the principle in appropriate cases. 46 (Emphasis
need for the information sought or how the withholding of the information supplied)
sought will hinder the accomplishment of their legislative purpose is very There, the Court further ratiocinated that "the contemplated inquiry by
evident in the above oral exchanges. Due to the failure of the respondent respondent Committee is not really in aid of legislation because it is not
Committees to successfully discharge this burden, the presumption in favor related to a purpose within the jurisdiction of Congress, since the aim of
of confidentiality of presidential communication stands. The implication of the investigation is to find out whether or not the relatives of the
the said presumption, like any other, is to dispense with the burden of proof President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019,
as to whether the disclosure will significantly impair the Presidents the Anti-Graft and Corrupt Practices Act, a matter that appears more
performance of her function. Needless to state this is assumed, by virtue of within the province of the courts rather than of the
the presumption. Legislature."47 (Emphasis and underscoring supplied)
Anent respondent Committees bewailing that they would have to The general thrust and the tenor of the three (3) questions is to trace the
"speculate" regarding the questions covered by the privilege, this does not alleged bribery to the Office of the President.48 While it may be a worthy
evince a compelling need for the information sought. Indeed,Senate Select endeavor to investigate the potential culpability of high government
Committee on Presidential Campaign Activities v. Nixon43 held that while fact- officials, including the President, in a given government transaction, it is
finding by a legislative committee is undeniably a part of its task, legislative simply not a task for the Senate to perform. The role of the Legislature is to
judgments normally depend more on the predicted consequences of make laws, not to determine anyones guilt of a crime or wrongdoing. Our
proposed legislative actions and their political acceptability than on a precise Constitution has not bestowed upon the Legislature the latter role. Just as
reconstruction of past events. It added that, normally, Congress legislates on the Judiciary cannot legislate, neither can the Legislature adjudicate or
the basis of conflicting information provided in its hearings. We cannot prosecute.
subscribe to the respondent Committees self-defeating proposition that Respondent Committees claim that they are conducting an inquiry in aid of
without the answers to the three (3) questions objected to as privileged, the legislation and a "search for truth," which in respondent Committees view
distinguished members of the respondent Committees cannot intelligently appears to be equated with the search for persons responsible for
craft legislation. "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they confidentiality of information validly covered by executive privilege. As
cannot assume the power reposed upon our prosecutorial bodies and courts. discussed above, the Legislature can still legislate on graft and corruption
The determination of who is/are liable for a crime or illegal activity, the even without the information covered by the three (3) questions subject of
investigation of the role played by each official, the determination of who the petition.
should be haled to court for prosecution and the task of coming up with Corollarily, respondent Committees justify their rejection of petitioners
conclusions and finding of facts regarding anomalies, especially the claim of executive privilege on the ground that there is no privilege when
determination of criminal guilt, are not functions of the Senate. Congress is the information sought might involve a crime or illegal activity, despite the
neither a law enforcement nor a trial agency. Moreover, it bears stressing absence of an administrative or judicial determination to that effect.
that no inquiry is an end in itself; it must be related to, and in furtherance of, Significantly, however, in Nixon v. Sirica,52 the showing required to
a legitimate task of the Congress, i.e. legislation. Investigations conducted overcome the presumption favoring confidentiality turned, not on the
solely to gather incriminatory evidence and "punish" those investigated are nature of the presidential conduct that the subpoenaed material might
indefensible. There is no Congressional power to expose for the sake of reveal, but, instead, on the nature and appropriateness of the function in
exposure.49In this regard, the pronouncement in Barenblatt v. United the performance of which the material was sought, and the degree to
States50 is instructive, thus: which the material was necessary to its fulfillment.
Broad as it is, the power is not, however, without limitations. Respondent Committees assert that Senate Select Committee on Presidential
Since Congress may only investigate into the areas in which it may Campaign Activities v. Nixon does not apply to the case at bar because, unlike
potentially legislate or appropriate, it cannot inquire into matters in the said case, no impeachment proceeding has been initiated at present.
which are within the exclusive province of one of the other The Court is not persuaded. While it is true that no impeachment
branches of the government. Lacking the judicial power given to proceeding has been initiated, however, complaints relating to the NBN
the Judiciary, it cannot inquire into matters that are exclusively the Project have already been filed against President Arroyo and other
concern of the Judiciary. Neither can it supplant the Executive in personalities before the Office of the Ombudsman. As the Court has said
what exclusively belongs to the Executive. (Emphasis supplied.) earlier, the prosecutorial and judicial arms of government are the bodies
At this juncture, it is important to stress that complaints relating to the NBN equipped and mandated by the Constitution and our laws to determine
Project have already been filed against President Arroyo and other whether or not the allegations of anomaly in the NBN Project are true and, if
personalities before the Office of the Ombudsman. Under our Constitution, so, who should be prosecuted and penalized for criminal conduct.
it is the Ombudsman who has the duty "to investigate any act or omission Legislative inquiries, unlike court proceedings, are not subject to the
of any public official, employee, office or agency when such act or exacting standards of evidence essential to arrive at accurate factual findings
omission appears to be illegal, unjust, improper, or inefficient."51 The to which to apply the law. Hence, Section 10 of the Senate Rules of
Office of the Ombudsman is the body properly equipped by the Procedure Governing Inquiries in Aid of Legislation provides that "technical
Constitution and our laws to preliminarily determine whether or not the rules of evidence applicable to judicial proceedings which do not affect
allegations of anomaly are true and who are liable therefor. The same holds substantive rights need not be observed by the Committee." Court rules
true for our courts upon which the Constitution reposes the duty to which prohibit leading, hypothetical, or repetitive questions or questions
determine criminal guilt with finality. Indeed, the rules of procedure in the calling for a hearsay answer, to name a few, do not apply to a legislative
Office of the Ombudsman and the courts are well-defined and ensure that inquiry. Every person, from the highest public official to the most ordinary
the constitutionally guaranteed rights of all persons, parties and witnesses citizen, has the right to be presumed innocent until proven guilty in proper
alike, are protected and safeguarded. proceedings by a competent court or body.
Should respondent Committees uncover information related to a possible IV
crime in the course of their investigation, they have the constitutional duty Respondent Committees Committed Grave
to refer the matter to the appropriate agency or branch of government. Thus, Abuse of Discretion in Issuing the Contempt Order
the Legislatures need for information in an investigation of graft and Respondent Committees insist that they did not commit grave abuse of
corruption cannot be deemed compelling enough to pierce the discretion in issuing the contempt order because (1) there is no legitimate
claim of executive privilege; (2) they did not violate the requirements laid purpose. A requirement for a more precise charge in order to begin
down in Senate v. Ermita; (3) they issued the contempt order in accordance an inquiry should immediately work to limit the initial scope of the
with their internal Rules; (4) they did not violate the requirement under investigation and should also serve to contain the investigation
Article VI, Section 21 of the Constitution requiring the publication of once it is instituted.Additionally, to the extent clear statements of
their Rules; and (5) their issuance of the contempt order is not arbitrary or rules cause legislatures to pause and seriously consider the
precipitate. constitutional implications of proposed courses of action in other
We reaffirm our earlier ruling. areas, they would serve that goal in the context of congressional
The legitimacy of the claim of executive privilege having been fully investigations as well.
discussed in the preceding pages, we see no reason to discuss it once again. The key to this reform is in its details. A system that allows a
Respondent Committees second argument rests on the view that the ruling standing committee to simply articulate its reasons to investigate
in Senate v. Ermita, requiring invitations or subpoenas to contain the pro forma does no more than imposes minimal drafting burdens.
"possible needed statute which prompted the need for the inquiry" along Rather, the system must be designed in a manner that imposes
with the "usual indication of the subject of inquiry and the questions relative actual burdens on the committee to articulate its need for
to and in furtherance thereof" is not provided for by the Constitution and is investigation and allows for meaningful debate about the merits
of proceeding with the investigation.(Emphasis supplied)
merely an obiter dictum.
Clearly, petitioners request to be furnished an advance copy of questions is
On the contrary, the Court sees the rationale and necessity of compliance
a reasonable demand that should have been granted by respondent
with these requirements.
Committees.
An unconstrained congressional investigative power, like an unchecked
Executive, generates its own abuses. Consequently, claims that the Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007
made no specific reference to any pending Senate bill. It did not also inform
investigative power of Congress has been abused (or has the potential for
petitioner of the questions to be asked. As it were, the subpoena merely
abuse) have been raised many times.53 Constant exposure to congressional
commanded him to "testify on what he knows relative to the subject matter
subpoena takes its toll on the ability of the Executive to function effectively.
under inquiry."
The requirements set forth in Senate v. Ermita are modest mechanisms that
would not unduly limit Congress power. The legislative inquiry must be Anent the third argument, respondent Committees contend that their Rules
confined to permissible areas and thus, prevent the "roving commissions" of Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond
referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have the reach of this Court. While it is true that this Court must refrain from
their constitutional right to due process. They should be adequately reviewing the internal processes of Congress, as a co-equal branch of
informed what matters are to be covered by the inquiry. It will also allow government, however, when a constitutional requirement exists, the Court
them to prepare the pertinent information and documents. To our mind, has the duty to look into Congress compliance therewith. We cannot turn a
these requirements concede too little political costs or burdens on the part of blind eye to possible violations of the Constitution simply out of courtesy. In
Congress when viewed vis--vis the immensity of its power of inquiry. The this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening,
logic of these requirements is well articulated in the study conducted by thus:
William P. Marshall,55 to wit: "Cases both here and abroad, in varying forms of expression, all
A second concern that might be addressed is that the current deny to the courts the power to inquire into allegations that, in
system allows committees to continually investigate the Executive enacting a law, a House of Congress failed to comply with its own
without constraint. One process solution addressing this concern rules, in the absence of showing that there was a violation of a
is to require each investigation be tied to a clearly stated constitutional provision or the rights of private individuals.
purpose. At present, the charters of some congressional committees United States v. Ballin, Joseph & Co., the rule was stated thus: The
are so broad that virtually any matter involving the Executive can Constitution empowers each House to determine its rules of
be construed to fall within their province. Accordingly, proceedings. It may not by its rules ignore constitutional
investigations can proceed without articulation of specific need or restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceeding accordance with its duly published rules of procedure. The rights
established by the rule and the result which is sought to be of person appearing in or affected by such inquiries shall be
attained." respected. (Emphasis supplied)
In the present case, the Courts exercise of its power of judicial review is All the limitations embodied in the foregoing provision form part of the
warranted because there appears to be a clear abuse of the power of witness settled expectation. If the limitations are not observed, the witness
contempt on the part of respondent Committees. Section 18 of the Rules settled expectation is shattered. Here, how could there be a majority vote
provides that: when the members in attendance are not enough to arrive at such majority?
"The Committee, by a vote of majority of all its members, may Petitioner has the right to expect that he can be cited in contempt only
punish for contempt any witness before it who disobey any order through a majority vote in a proceeding in which the matter has been fully
of the Committee or refuses to be sworn or to testify or to answer deliberated upon. There is a greater measure of protection for the witness
proper questions by the Committee or any of its when the concerns and objections of the members are fully articulated in
members." (Emphasis supplied) such proceeding. We do not believe that respondent Committees have the
In the assailed Decision, we said that there is a cloud of doubt as to the discretion to set aside their rules anytime they wish. This is especially true
validity of the contempt order because during the deliberation of the three here where what is involved is the contempt power. It must be stressed that
(3) respondent Committees, only seven (7) Senators were present. This the Rules are not promulgated for their benefit. More than anybody else, it is
number could hardly fulfill the majority requirement needed by the witness who has the highest stake in the proper observance of the Rules.
respondentCommittee on Accountability of Public Officers and Having touched the subject of the Rules, we now proceed to respondent
Investigations which has a membership of seventeen (17) Senators and Committees fourth argument. Respondent Committees argue that the
respondent Committee on National Defense and Security which has a Senate does not have to publish its Rules because the same was published in
membership of eighteen (18) Senators. With respect to respondent Committee 1995 and in 2006. Further, they claim that the Senate is a continuing body;
on Trade and Commerce which has a membership of nine (9) Senators, only thus, it is not required to republish the Rules, unless the same is repealed or
three (3) members were present.57These facts prompted us to quote in the amended.
Decision the exchanges between Senators Alan Peter Cayetano and Aquilino On the nature of the Senate as a "continuing body," this Court sees fit to
Pimentel, Jr. whereby the former raised the issue of lack of the required issue a clarification. Certainly, there is no debate that the Senate as an
majority to deliberate and vote on the contempt order. institution is "continuing", as it is not dissolved as an entity with each
When asked about such voting during the March 4, 2008 hearing before this national election or change in the composition of its members. However, in
Court, Senator Francis Pangilinan stated that any defect in the committee the conduct of its day-to-day business the Senate of each Congress acts
voting had been cured because two-thirds of the Senators effectively signed separately and independently of the Senate of the Congress before it. The
for the Senate in plenary session.58 Rules of the Senate itself confirms this when it states:
Obviously the deliberation of the respondent Committees that led to the RULE XLIV
issuance of the contempt order is flawed. Instead of being submitted to a full UNFINISHED BUSINESS
debate by all the members of the respondent Committees, the contempt SEC. 123. Unfinished business at the end of the session shall be
order was prepared and thereafter presented to the other members for taken up at the next session in the same status.
signing. As a result, the contempt order which was issued on January 30, All pending matters and proceedings shall terminate upon the
2008 was not a faithful representation of the proceedings that took place on expiration of one (1) Congress, but may be taken by the succeeding
said date. Records clearly show that not all of those who signed the Congress as if present for the first time. (emphasis supplied)
contempt order were present during the January 30, 2008 deliberation when Undeniably from the foregoing, all pending matters and proceedings, i.e.
the matter was taken up. unpassed bills and even legislative investigations, of the Senate of a
Section 21, Article VI of the Constitution states that: particular Congress are considered terminated upon the expiration of that
The Senate or the House of Representatives or any of its respective Congress and it is merely optional on the Senate of the succeeding Congress
committees may conduct inquiries in aid of legislation in to take up such unfinished matters, not in the same status, but as if
presented for the first time. The logic and practicality of such a rule is The language of Section 21, Article VI of the Constitution requiring that the
readily apparent considering that the Senate of the succeeding Congress inquiry be conducted in accordance with the duly published rules of
(which will typically have a different composition as that of the previous procedure is categorical. It is incumbent upon the Senate to publish the rules
Congress) should not be bound by the acts and deliberations of the Senate of for its legislative inquiries in each Congress or otherwise make the
which they had no part. If the Senate is a continuing body even with respect published rules clearly state that the same shall be effective in subsequent
to the conduct of its business, then pending matters will not be deemed Congresses or until they are amended or repealed to sufficiently put public
terminated with the expiration of one Congress but will, as a matter of on notice.
course, continue into the next Congress with the same status. If it was the intention of the Senate for its present rules on legislative
This dichotomy of the continuity of the Senate as an institution and of the inquiries to be effective even in the next Congress, it could have easily
opposite nature of the conduct of its business is reflected in its Rules. The adopted the same language it had used in its main rules regarding
Rules of the Senate (i.e. the Senates main rules of procedure) states: effectivity.
RULE LI Lest the Court be misconstrued, it should likewise be stressed that not all
AMENDMENTS TO, OR REVISIONS OF, THE RULES orders issued or proceedings conducted pursuant to the subject Rules are
SEC. 136. At the start of each session in which the Senators elected null and void. Only those that result in violation of the rights of witnesses
in the preceding elections shall begin their term of office, the should be considered null and void, considering that the rationale for the
President may endorse the Rules to the appropriate committee for publication is to protect the rights of witnesses as expressed in Section 21,
amendment or revision. Article VI of the Constitution. Sans such violation, orders and proceedings
The Rules may also be amended by means of a motion which are considered valid and effective.
should be presented at least one day before its consideration, and Respondent Committees last argument is that their issuance of the
the vote of the majority of the Senators present in the session shall contempt order is not precipitate or arbitrary. Taking into account the
be required for its approval. (emphasis supplied) totality of circumstances, we find no merit in their argument.
RULE LII As we have stressed before, petitioner is not an unwilling witness, and
DATE OF TAKING EFFECT contrary to the assertion of respondent Committees, petitioner did not
SEC. 137. These Rules shall take effect on the date of their adoption assume that they no longer had any other questions for him. He repeatedly
and shall remain in force until they are amended or repealed. manifested his willingness to attend subsequent hearings and respond to
(emphasis supplied) new matters. His only request was that he be furnished a copy of the new
Section 136 of the Senate Rules quoted above takes into account the new questions in advance to enable him to adequately prepare as a resource
composition of the Senate after an election and the possibility of the person. He did not attend the November 20, 2007 hearing because Executive
amendment or revision of the Rules at the start of eachsession in which the Secretary Ermita requested respondent Committees to dispense with his
newly elected Senators shall begin their term. testimony on the ground of executive privilege. Note that petitioner is an
However, it is evident that the Senate has determined that its main rules are executive official under the direct control and supervision of the Chief
intended to be valid from the date of their adoption until they are amended Executive. Why punish petitioner for contempt when he was merely directed by his
or repealed. Such language is conspicuously absent from the Rules. superior? Besides, save for the three (3) questions, he was very cooperative
The Rules simply state "(t)hese Rules shall take effect seven (7) days after during the September 26, 2007 hearing.
publication in two (2) newspapers of general circulation."59 The latter does On the part of respondent Committees, this Court observes their haste and
not explicitly provide for the continued effectivity of such rules until they impatience. Instead of ruling on Executive Secretary Ermitas claim of
are amended or repealed. In view of the difference in the language of the executive privilege, they curtly dismissed it as unsatisfactory and ordered
two sets of Senate rules, it cannot be presumed that the Rules (on legislative the arrest of petitioner. They could have informed petitioner of their ruling
inquiries) would continue into the next Congress. The Senate of the next and given him time to decide whether to accede or file a motion for
Congress may easily adopt different rules for its legislative inquiries which reconsideration. After all, he is not just an ordinary witness; he is a high-
come within the rule on unfinished business. ranking official in a co-equal branch of government. He is an alter ego of the
President. The same haste and impatience marked the issuance of the WHEREFORE, respondent Committees Motion for Reconsideration dated
contempt order, despite the absence of the majority of the members of the April 8, 2008 is herebyDENIED.
respondent Committees, and their subsequent disregard of petitioners
motion for reconsideration alleging the pendency of his petition
for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive
and the Legislature are political branches of government. In a free and
democratic society, the interests of these branches inevitably clash, but each
must treat the other with official courtesy and respect. This Court
wholeheartedly concurs with the proposition that it is imperative for the
continued health of our democratic institutions that we preserve the
constitutionally mandated checks and balances among the different
branches of government.
In the present case, it is respondent Committees contention that their
determination on the validity of executive privilege should be binding on
the Executive and the Courts. It is their assertion that theirinternal
procedures and deliberations cannot be inquired into by this Court
supposedly in accordance with the principle of respect between co-equal
branches of government. Interestingly, it is a courtesy that they appear to be
unwilling to extend to the Executive (on the matter of executive privilege) or
this Court (on the matter of judicial review). It moves this Court to wonder:
In respondent Committees paradigm of checks and balances, what are the
checks to the Legislatures all-encompassing, awesome power of
investigation? It is a power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees well-
intentioned efforts to ferret out corruption, even in the highest echelons of
government, such lofty intentions do not validate or accord to Congress
powers denied to it by the Constitution and granted instead to the other
branches of government.
There is no question that any story of government malfeasance deserves an
inquiry into its veracity. As respondent Committees contend, this is founded
on the constitutional command of transparency and public accountability.
The recent clamor for a "search for truth" by the general public, the religious
community and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power. However, the
best venue for this noble undertaking is not in the political branches of
government. The customary partisanship and the absence of generally
accepted rules on evidence are too great an obstacle in arriving at the truth
or achieving justice that meets the test of the constitutional guarantee of due
process of law. We believe the people deserve a more exacting "search for
truth" than the process here in question, if that is its objective.