Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
554
EN BANC
G.R. No. 180643, March 25, 2008
ROMULO L. NERI, PETITIONER, vs. SENATE
COMMITTEE ON ACCOUNTABILITY OF PUBLIC
OFFICERS AND INVESTIGATIONS, SENATE
COMMITTEE ON TRADE AND COMMERCE, AND
SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, RESPONDENTS.
DECISION
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the
Rules of Court assailing the show cause Letter[1] dated
November 22, 2007 and 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[5] against petitioner Romulo L. Neri,
former Director General of the National Economic and
Development Authority (NEDA).
SO ORDERED.
On the same date, petitioner moved for the
reconsideration of the above Order.[9] He insisted that he
has not shown "any contemptible conduct worthy of
contempt and arrest." He emphasized his willingness to
testify on new matters, however, respondent Committees
did not respond to his request for advance notice of
questions. He also mentioned the petition for certiorari he
filed on December 7, 2007. According to him, this should
restrain respondent Committees from enforcing the show
cause Letter "through the issuance of declaration of
contempt" and arrest.
The Senate did not agree with the proposal for the reasons
stated in the Manifestation dated March 5, 2008. As to the
required documents, the Senate and respondent
Committees manifested that they would not be able to
submit the latter's "Minutes of all meetings" and the
"Minute Book" because it has never been the "historical
and traditional legislative practice to keep them."[16] They
instead submitted the Transcript of Stenographic Notes of
respondent Committees' joint public hearings.
II
SO ORDERED.
[1]
Rollo, pp. 12-14.
Serv. 141.
DISSENTING OPINION
PUNO, C.J.:
IN RE: P.S. Res. Nos. 127, 129, 136 & 144; and
Privilege Speeches of Senators Lacson and Santiago
(all on the ZTE-NBN Project)
x----------------------------------------------x
ORDER
SO ORDERED.
(Signed) (Signed)
(Sgd.) ALAN PETER (Sgd.) MAR ROXAS
S. CAYETANO
Chairman Chairman
Committee on Committee on
Accountability of Tradeand
Public Officers & and Commerce
Investigations
(Blue Ribbon)
(Signed)
(Sgd.) RODOLFO G. BIAZON
Chairman
Committee on National Defense & Security
(Signed)
(Sgd.) PIA S. MIRIAM
CAYETANO** DEFENSOR
SANTIAGO*
(Signed)
JUAN PONCE (Sgd.) FRANCIS G.
ENRILE** ESCUDERO**
(Signed)
RICHARD J. (Sgd.) GREGORIO
GORDON** B. HONASAN*
JUAN MIGUEL F. JOKER P. ARROYO*
ZUBIRI*
RAMON B. MANUEL M.
REVILLA, JR.** LAPID**
(Signed) (Signed)
(Sgd.) BENIGNO C. (Sgd.) PANFILO M.
AQUINO III* LACSON*
(Signed) (Signed)
LOREN B. (Sgd.) M. A.
LEGARDA* MADRIGAL**
ANTONIO F. EDGARDO J.
TRILLANES* ANGARA***
(Signed)
(Sgd.) AQUILINO Q. PIMENTEL, JR.***
Approved:
(Signed)
(Sgd.) MANNY VILLAR
Senate President
* Member, Committees on Accountability of
Public Officers & Investigations (Blue
Ribbon) and National Defense & Security
** Member, Committees on Accountability
of Public Officers & Investigations (Blue
Ribbon), Trade & Commerce and National
Defense & Security
*** Member, Committee on National
Defense & Security
Ex Officio
(Signed) (Signed)
(Sgd.) AQUILINO Q. (Sgd.) FRANCIS
PIMENTEL, JR. "Kiko" N.
PANGILINAN
Minority Leader Majority Leader
(Signed)
(Sgd.) JINGGOY EJERCITO ESTRADA
President Pro Temporare[36]
A. U.S. v. Nixon
1. Background Proceedings
b. Separation of Powers
The Nixon Court used separation of powers as the
second ground why presidential communications enjoy a
privilege and qualified presumption. It explained that
while the Constitution divides power among the three
coequal branches of government and affords
independence to each branch in its own sphere, it
does not intend these powers to be exercised with
absolute independence. It held, viz: "In designing the
structure of our Government and dividing and allocating
the sovereign power among three coequal branches, the
Framers of the Constitution sought to provide a
comprehensive system, but the separate powers were
not intended to operate with absolute independence.
`While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate
the dispersed powers into a workable government. It
enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.'"
(emphasis supplied)[130]
5 Demonstrable Specific
. Need
for Disclosure Will
Overcome
the Qualified
Presumption
Must be Determined
SEN. LACSON. So, how did it occur to you, ano ang dating
sa inyo noong naguusap kayo ng NBN project, may
ibubulong sa inyo iyong chairman (Abalos) na kalaro ninyo
ng golf, "Sec, may 200 ka rito." Anong pumasok sa isip
ninyo noon?
MR. NERI. I said no amount was put, but I guess given the
magnitude of the project, siguro naman hindi P200 or
P200,000, so...
SEN. LACSON. And then after the President told you, "Do
not accept it," what did she do? How did you report it to
the President? In the same context it was offered to you?
SEN. CAYETANO, (P). ...I was told that you testified, that
you had mentioned to her that there was P200 something
offer. I guess it wasn't clear how many zeroes were
attached to the 200. And I don't know if you were asked or
if you had indicated her response to this. I know there was
something like "Don't accept." And can you just for my
information, repeat.
constitutional functions
of the President and the
Senate using the
function impairment test
ATTY. AGABIN
ATTY. AGABIN
Now, you seek this approach, let me ask you the same
question that I asked to the other counsel, Atty. Bautista.
Reading the letter of Secretary Ermita it would seem that
the Office of the President is invoking the doctrine of
Executive Privilege only on not (sic) three questions.
ATTY. AGABIN
So, can you tell the Court how critical are these questions
to the lawmaking function of the Senate. For instance,
question Number 1, whether the President followed
up the NBN project. According to the other counsel, this
question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered,
Your Honor.
ATTY. AGABIN
Why?
ATTY. AGABIN
ATTY. AGABIN
ATTY. AGABIN
ATTY. AGABIN
ATTY. AGABIN
ATTY. AGABIN
ATTY. AGABIN
ATTY. BAUTISTA:
ATTY. BAUTISTA:
ATTY. BAUTISTA:
ATTY. BAUTISTA:
ATTY. BAUTISTA:
In the affirmative?
Yes.
ATTY. BAUTISTA:
Why? Why?
ATTY. BAUTISTA:
ATTY. BAUTISTA:
Well, there are also other projects which have, which are
supported by a lot of people. Like the Cyber Ed project,
the Angat Water Dam project. If she is known that she
gave low priority to these other projects, she opens
herself to media and public criticism, not only media
but also in rallies, Your Honor.
ATTY. BAUTISTA:
ATTY. BAUTISTA:
ATTY. BAUTISTA:
ATTY. BAUTISTA:
But in the climate, present climate of public opinion as
whipped up by people that will be the impression, Your
Honor. She does not operate in a vacuum. She has to take
into account what is going on.
ATTY. BAUTISTA:
SO ORDERED.
Epilogue
SEN. LACSON. And then after the President told you, "Do
not accept it," what did she do? How did you report it to
the President? In the same context it was offered to you?
MR. NERI. Yes, Your Honor, it's being prepared now. (p.
278)
[25]
"Ensuring Observance of the Principle of Separation of
Powers, Adherence to the Rule on Executive Privilege and
Respect for the Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes."
SUBPOENA AD TESTIFICANDUM
(Signed) (Signed)
ALAN PETER S. (Sgd.) MAR ROXAS
CAYETANO
Chairman Chairman
Committee on Committee on Trade
Accountability of and Commerce
Public Officers &
Investigations
(Blue Ribbon)
(Signed)
(Sgd.) RODOLFO G. BIAZON
Chairman
Committee on National Defense & Security
Approved:
(Signed)
(Sgd.) MANNY VILLAR
Senate President
[29]
Letter of Executive Secretary Eduardo R. Ermita to
Senator Alan Peter Cayetano as Chairman of the
Committee on Accountability of Public Officers and
Investigations dated November 15, 2007; Petition, Annex
C.
[30]
Ibid.
[31]
Petition, Annex A. The letter reads, viz :
22 November 2007
(Signed) (Signed)
(Sgd.) ALAN PETER (Sgd.) MAR ROXAS
S. CAYETANO
Chairman Chairman
Committee on Committee on Trade
Accountability of and Commerce
Public Officers &
Investigations
(Blue Ribbon)
(Signed)
Sec. 17, Art. VII (The President shall ensure that the laws
be faithfully executed)
Congress and the States, 4th ed. (1977), p. 20. See also
Gross, The Legislative Struggle (1953), pp. 136-137.
footnotes omitted.
[69]
Wollam v. United States (1957, CA9 Or) 244 F2d 212.
46.
[71]
87 Phil. 29 (1950), p. 48.
Years After: The Good, the Bad and the Ugly -An
Exploration of Executive Privilege," 14 Northern Illinois
University Law Review (Fall, 1993) 251, 261-262, citing
Kaiser Aluminum & Chemical Co. v. United States, 157 F.
Supp. 939 (Ct. Cl. 1958), 946.
[76]
418 US 613 (1974).
[77]
Rozell, M., "Restoring Balance to the Debate Over
Executive Privilege: A Response to Berger," Symposium:
Executive Privilege and the Clinton Presidency," 8 William
and Mary Bill of Rights Journal (April 2000) 541, 557
citing Letter from George Washington to James Madison
(May 5, 1789), in 30 The Writings of George Washington,
1745-1799, at 311 (John Fitzpatrick ed., 1931-1944).
1572.
481, 484 (2d Cir. 1988); United States v. Winner, 641 F.2d
825, 831 (10th Cir. 1981); Black v. Sheraton Corp. of Am.,
564 F.2d 531, 545 (D.C. Cir. 1977).
G.R. No. 95367 May 23, 1995, 244 SCRA 286 (1995).
[181]
Corruption"; Comment, p. 5.
Chairpersons:
Members:
4. Cayetano, Pia
5. Escudero, Francis
6. Honasan II, Gregorio Gringo
7. Aquino III, Benigno
8. Lacson, Panfilo
9. Legarda, Loren
10. Madrigal, M.A.
11. Pimentel, Jr., Aquilino
Ex-Officio Members:
Senate President:
SEPARATE OPINION
YNARES-SANTIAGO, J.:
ATTY. BAUTISTA:
ATTY. BAUTISTA:
xxxx
ATTY. BAUTISTA:
In the affirmative?
xxxx
ATTY. BAUTISTA:
xxxx
ATTY. BAUTISTA:
Well, there are also other projects which have, which are
supported by a lot of people. Like the Cyber Ed project,
the Angat Water Dam project. If she is known that she
gave low priority to these other projects, she opens herself
to media and public criticism, not only media but also in
rallies, Your Honor.
xxxx
ATTY. BAUTISTA:
ATTY. BAUTISTA:
CARPIO, J.:
The Case
The Issues
The issues raised in this petition may be summarized as
follows:
xxxxxxxxx
CHIEF Do [you] also know whether there is any
JUSTICE aspect of the contract relating to diplomatic
PUNO: relations which was referred to the
Department of Foreign Affairs for its
comment and study?
ATTY. As far as I know, Your Honors, there was no
LANTEJAS: referral to the Department of Foreign
Affairs, Your Honor.
While claiming that petitioner's discussions with the
President on the NBN Project involved sensitive
diplomatic matters, petitioner does not even know if
the Department of Foreign Affairs (DFA) was involved
in the NBN negotiations. This is incredulous
considering that under the Revised Administrative
Code, the DFA "shall be the lead agency that shall
advise and assist the President in planning,
organizing, directing, coordinating and evaluating the
total national effort in the field of foreign relations." [77]
6. Conclusion
[1]
Rollo, pp. 3-10. Under Rule 65 of the Rules of Court.
[2]
Id. at 26-32.
[3]
Headed by Senator Alan Peter S. Cayetano as Chair.
[4]
Headed by Senator Mar Roxas as Chair.
[5]
Headed by Senator Rodolfo G. Biazon as Chair.
[6]
Respondents' Comment dated 14 February 2008
[7]
Id.
[8]
Rollo, pp. 15-16.
[9]
Id. at 17-18.
SO ORDERED.
[13]
433 Phil. 506 (2002).
34.
[38]
United States v. Nixon, supra note 15.
[39]
Id.
[40]
Section 1, Article VII, Constitution.
[41]
Senate v. Ermita, supra note 13.
Id. In Senate v. Ermita, the Court quoted Smith v.
[42]
Aid of Legislation.
CONCURRING OPINION
CORONA, J.:
-- ∞ -- -- ∞ -- -- ∞ --
A FINAL WORD
Tuason, dissenting.
[2]
McNabb v. United States, 318 U.S. 332 (1943).
edition, p. 616.
[15]
Id., p. 121.
[16]
Id. The principle was further explained in Arnault v.
Balagtas (97 Phil. 358 [1955]):
The principle that Congress or any of its bodies has
the power to punish recalcitrant witnesses is
founded upon reason and policy. Said power must be
considered implied or incidental to the exercise of
legislative power. How could a legislative body obtain
the knowledge and information or, which to base intended
legislation if it cannot require and compel the disclosure of
such knowledge and information, if it is impotent to punish
a defiance of its power and authority? When the framers of
the Constitution adopted the principle of separation of
powers, making each branch supreme within the realm of
its respective authority, it must have intended each
department's authority to be full and complete,
independently of the other's authority or power. And how
could the authority and power become complete if for
every act of refusal, every act of defiance, every act of
contumacy against it, the legislative body must resort to
the judicial department for the appropriate remedy,
because it is impotent by itself to punish or deal therewith,
with the affronts committed against its authority or dignity
. (emphasis supplied)
[17]
Negros Oriental II Electric Cooperative, Inc. v.
Sangguniang Panlungsod of Dumaguete, G.R. No. L-72492,
05 November 1987, 155 SCRA 421.
G.R. Nos.
[18]
169777/169659/169660/169667/169834/171246, 20 April
2006.
[19]
Arnault v. Nazareno, supra; Senate v. Ermita, supra.
[20]
Regalado v. Go, G.R. No. 167988, February 6, 2007.
[21]
Id.
[22]
See Black's Law Dictionary, 4th edition, p. 1399.
DISSENTING OPINION
CARPIO MORALES, J.:
SEN. LACSON. And then after the President told you, "Do
not accept it," what did she do? How did you report it to
the President? In the same context that it was offered to
you?
MR. NERI. I remember it was over the phone, Your Honor.
xxxx
SEN. LACSON. And after she told, "Do not accept it," what
did she do?
SEN. LACSON. How did she react, was she shocked also
like you or was it just casually responded to as, "Don't
accept it."
xxxx
xxxx
xxxx
MR. NERI. That's right, Your Honor. It's possible that they
take it out of their pockets. And I had a NEDA staff
checked the internet for possible overpricing. The national
interest issue in this case, Your Honor, is determined by
the economic rate of return. And the economic rate of
return was determined at 29.6%. It is very high. Meaning
that the project has its benefits despite any potential
overpricing, Your Honor.
xxxx
2007.
[8]
244 SCRA 286 (1995).
[9]
Petition for Certiorari, p. 8.
[10]
Supra note 2.
Tinga, J.:
[1]
See Arnault v. Nazareno, 87 Phil. 29, 45 (1950); Senate
v. Ermita, G.R. 169777, 20 April 2006, 488 SCRA 1, 42.
SCRA 1, 51.
(2002).
[4]
418 U.S. 683 (1974).
[5]
Id. at 708.
[6]
Ibid.
CONCURRING OPINION
CHICO-NAZARIO, J.:
This Court shall not shirk from its duty, impressed upon it
by no less than the Constitution, to exercise its judicial
power "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of
the Government."[2] It was clearly intended by the framers
of the Constitution that the judiciary be the final arbiter on
the question of whether or not a branch of government or
any of its officials has acted without jurisdiction or in
excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction. [3]
And when the Judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the
other departments, but only asserts the solemn and sacred
obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and
to establish for the parties in an actual controversy the
rights which the instrument secures and guarantees to
them.[4]
xxxx
Marshall's statement cannot be read to mean in any sense
that a President is above the law, but relates to the
singularly unique role under Art. II of a President's
communications and activities, related to the performance
of duties under that Article. Moreover, a President's
communications and activities encompass a vastly wider
range of sensitive material than would be true of any
`ordinary individual.' It is therefore necessary in the
public interest to afford Presidential confidentiality the
greatest protection consistent with the fair administration
of justice. The need for confidentiality even as to idle
conversations with associates in which casual reference
might be made concerning political leaders within the
country or foreign statesmen is too obvious to call for
further treatment. x x x (Emphasis ours.)
It is clear from the foregoing that executive privilege is
not meant to personally protect the President, but is
inherent in her position to serve, ultimately, the public
interest. It is not an evil thing that must be thwarted at
every turn. Just as acts of the Legislature enjoy the
presumption of validity, so must also the acts of the
President. Just all other public officers are afforded the
presumption of regularity in the exercise of their official
functions, then what more the President, the highest
Executive official of the land. Hence, when the President
claims that certain information is covered by executive
privilege, then rightfully, said information must be
presumptively privileged.[13]
Finally, much has been said about this Court not allowing
the executive privilege to be used to conceal a criminal
act. While there are numerous suspicions and allegations
of crimes committed by public officers in the NBN Project,
these remain such until the determination by the
appropriate authorities. Respondent Senate Committees
are definitely without jurisdiction to determine that a
crime was committed by the public officers involved in the
NBN Project, for such authority is vested by the
Constitution in the Ombudsman. Again, it must be
emphasized, that the Senate's power of inquiry shall be
used to obtain information in aid of legislation, and not to
gather evidence of a crime, which is evidently a
prosecutorial, not a legislative, function.
[1]
G.R. No. 169777, 20 April 2006, 488 SCRA 1.
[2]
Article VIII, Section 1.
SEPARATECONCURRINGOPINION
The Court is very much aware that Sec. 3(c) of the Rules
of the Senate empowers the Senate President to "sign x x
x orders of arrest." It cannot be overemphasized, however,
that the order for the petitioner's arrest was a joint
committee action which naturally ought to be governed by
the Rules of Procedure Governing Inquiries in Aid of
Legislation, not the Rules of the Senate. It would be a sad
commentary if Senate committees can choose to ignore or
apply their very own rules when convenient, given that
violation of these rules would be an offense against due
process.[15]
Conclusion
SCRA 1.
[2]
Id.
NACHURA, J.:
I
U.S. v. Nixon,[1] the leading case on executive privilege in
the United States, acknowledges a constitutionally-
recognized "presumptive privilege" on the confidentiality
of presidential communications. The rationale for such
privilege is expressed in the following disquisition:
The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has
all the values to which we accord deference for the privacy
of all citizens, and, added to those values, is the necessity
for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decision-
making. A President and those who assist him must be
free to explore alternatives in the process of shaping
polices and making decisions and to do so in a way many
would be unwilling to express except privately. These are
the consideration justifying a presumptive privilege for
Presidential communications. The privilege is fundamental
to the operation of government and inextricably rooted in
the separation of powers under the Constitution. [2]
However, it is simply a generalized privilege of
confidentiality and does not enjoy the same degree of
unqualified acceptance as the governmental privilege
against public disclosure of state secrets regarding
military, diplomatic and other national security matters.
Further, it must be formally claimed or asserted by the
appropriate executive official. As held in U.S. v. Reynolds:
[3]
xxxx
II
On the procedure for the invocation of the privilege, it is
the respondents' position that when the President decides
to claim this presumptive privilege, there arises the
concomitant duty on her part to express the reason/s
therefor with specificity. From the vantage point of
respondents, it appears that the burden of showing the
propriety of the claim of privilege devolves upon whoever
invokes it, even if the corresponding obligation on the part
of whoever demands disclosure to prove necessity of
access to the information desired has not been met.
[1]
418 U.S. 683; 41 L. Ed. 2d 1039 (1973).
Petition.
[27]
U.S. v. Nixon, supra.
[28]
G.R. No. 89914, November 20, 1991, 203 SCRA 767.
SEPARATECONCURRINGOPINION
BRION, J.
The Senate did not formally reply to the Ermita letter and
instead sent its "show cause" order of November 22, 2007
for Neri to explain why he should not be cited for
contempt for his absence on November 20, 2007.[7]Neri
himself and his counsel replied to the "show cause" order,
further explaining his non-attendance and offering to
attend for examination on other non-privileged matters. [8]
On top of this reply, he came to this Court on December 7,
2007 via the present petition for a definitive judicial
ruling.
2008.
[18]
See: U.S. v. Nixon, 418 U.S. 683 (1974).