G.R. No. 180643 September 4, 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.
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but
one that adheres to the Office of the President. It exists to protect
public interest, not to benefit a particular public official. Its
purpose, among others, is to assure that the nation will receive the
benefit of candid, objective and untrammeled communication and exchange
of information between the President and his/her advisers in the process
of shaping or forming policies and arriving at decisions in the
exercise of the functions of the Presidency under the Constitution. The
confidentiality of the President’s conversations and correspondence is
not unique. It is akin to the confidentiality of judicial deliberations.
It possesses the same value as the right to privacy of all citizens and
more, because it is dictated by public interest and the
constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon
to exercise its power of review and arbitrate a hotly, even
acrimoniously, debated dispute between the Court’s co-equal branches of
government. In this task, this Court should neither curb the legitimate
powers of any of the co-equal and coordinate branches of government nor
allow any of them to overstep the boundaries set for it by our
Constitution. The competing interests in the case at bar are the claim
of executive privilege by the President, on the one hand, and the
respondent Senate Committees’ assertion of their power to conduct
legislative inquiries, on the other. The particular facts and
circumstances of the present case, stripped of the politically and
emotionally charged rhetoric from both sides and viewed in the light of
settled constitutional and legal doctrines, plainly lead to the
conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the petition for certiorari
filed by petitioner Romulo L. Neri against the respondent Senate
Committees on Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and Security (collectively the "respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before
respondent Committees and testified for about eleven (11) hours on
matters concerning the National Broadband Project (the "NBN Project"), a
project awarded by the Department of Transportation and Communications
("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner
disclosed that then Commission on Elections ("COMELEC") Chairman
Benjamin Abalos offered him P200 Million in exchange
for his approval of the NBN Project. He further narrated that he
informed President Gloria Macapagal Arroyo ("President Arroyo") of the
bribery attempt and that she instructed him not to accept the bribe.
However, when probed further on President Arroyo and petitioner’s
discussions relating to the NBN Project, petitioner refused to answer,
invoking "executive privilege." To be specific, petitioner refused to
answer questions on: (a) whether or not President Arroyo followed up the
NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c) whether or not she directed him to approve it.6
Respondent Committees persisted in knowing
petitioner’s answers to these three questions by requiring him to appear
and testify once more on November 20, 2007. On November 15, 2007,
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and
requested them to dispense with petitioner’s testimony on the ground of
executive privilege.7 The letter of Executive Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the
foregoing questions fall under conversations and correspondence between
the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA,
G.R. 133250, July 9, 2002). Maintaining the confidentiality of
conversations of the President is necessary in the exercise of her
executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and
correspondences, like the value which we accord deference for the
privacy of all citizens, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. Disclosure of conversations of the
President will have a chilling effect on the President, and will hamper
her in the effective discharge of her duties and responsibilities, if
she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being
invoked is that the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People’s Republic of
China. Given the confidential nature in which these information were
conveyed to the President, he cannot provide the Committee any further
details of these conversations, without disclosing the very thing the
privilege is designed to protect.
In light of the above considerations, this Office is
constrained to invoke the settled doctrine of executive privilege as
refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily
interrogated on the subject in an unprecedented 11-hour hearing, wherein
he has answered all questions propounded to him except the foregoing
questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE / NBN project be dispensed
On November 20, 2007, petitioner did not appear
before respondent Committees upon orders of the President invoking
executive privilege. On November 22, 2007, the respondent Committees
issued the show-cause letter requiring him to explain why he should not
be cited in contempt. On November 29, 2007, in petitioner’s reply to
respondent Committees, he manifested that it was not his intention to
ignore the Senate hearing and that he thought the only remaining
questions were those he claimed to be covered by executive privilege. He
also manifested his willingness to appear and testify should there be
new matters to be taken up. He just requested that he be furnished "in
advance as to what else" he "needs to clarify."
Respondent Committees found petitioner’s explanations
unsatisfactory. Without responding to his request for advance notice of
the matters that he should still clarify, they issued the Order dated
January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and
privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN
Project), citing petitioner in contempt of respondent Committees and
ordering his arrest and detention at the Office of the Senate
Sergeant-at-Arms until such time that he would appear and give his
On the same date, petitioner moved for the reconsideration of the above Order.8
He insisted that he had not shown "any contemptible conduct worthy of
contempt and arrest." He emphasized his willingness to testify on new
matters, but respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for certiorari
he previously filed with this Court on December 7, 2007. According to
him, this should restrain respondent Committees from enforcing the order
dated January 30, 2008 which declared him in contempt and directed his
arrest and detention.
Petitioner then filed his Supplemental Petition for
Certiorari (with Urgent Application for TRO/Preliminary Injunction) on
February 1, 2008. In the Court’s Resolution dated February 4, 2008, the
parties were required to observe the status quo prevailing prior to the
Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications elicited by the three (3) questions were covered by executive privilege; and second,
respondent Committees committed grave abuse of discretion in issuing
the contempt order. Anent the first ground, we considered the subject
communications as falling under the presidential communications privilege because (a) they related to a quintessential and non-delegable power of the President, (b) they were received by a close advisor of the President, and (c)
respondent Committees failed to adequately show a compelling need that
would justify the limitation of the privilege and the unavailability of
the information elsewhere by an appropriate investigating authority. As
to the second ground, we found that respondent Committees committed
grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order, (d)
they violated Section 21, Article VI of the Constitution because their
inquiry was not in accordance with the "duly published rules of
procedure," and (e) they issued the contempt order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following grounds:
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS
NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES
PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY
THEIR OVERSIGHT FUNCTIONS.
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE
CAN BE NO PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS
NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY
THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE,
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT
IN THE DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF
PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE
INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF
THEIR PRIMARY FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO
INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY
AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
CONTRARY TO THIS HONORABLE COURT’S DECISION,
RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE
ASSAILED CONTEMPT ORDER, CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER
ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF
PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT
CONSIDERED THE OSG’S INTERVENTION ON THIS ISSUE WITHOUT GIVING
RESPONDENTS THE OPPORTUNITY TO COMMENT.
E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE.
In his Comment, petitioner charges respondent
Committees with exaggerating and distorting the Decision of this Court.
He avers that there is nothing in it that prohibits respondent
Committees from investigating the NBN Project or asking him additional
questions. According to petitioner, the Court merely applied the rule on
executive privilege to the facts of the case. He further submits the
following contentions: first, the assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v. Ermita; second,
respondent Committees failed to overcome the presumption of executive
privilege because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they admitted
that they could dispense with petitioner’s testimony if certain NEDA
documents would be given to them; third, the requirement
of specificity applies only to the privilege for State, military and
diplomatic secrets, not to the necessarily broad and all-encompassing
presidential communications privilege; fourth, there is no right to pry into the President’s thought processes or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth,
the requirement for a witness to be furnished advance copy of questions
comports with due process and the constitutional mandate that the
rights of witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1)
there is no categorical pronouncement from the Court that the assailed
Orders were issued by respondent Committees pursuant to their oversight
function; hence, there is no reason for them "to make much" of the
distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the three (3)
questions are covered by executive privilege, because all the elements
of the presidential communications privilege are present; (4) the subpoena ad testificandum issued by respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6) respondent Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees’ objection to the
Resolution dated March 18, 2008 (granting the Office of the Solicitor
General’s Motion for Leave to Intervene and to Admit Attached
Memorandum) only after the promulgation of the Decision in this case is
foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:
(1) whether or not there is a recognized presumptive presidential communications privilege in our legal system;
(2) whether or not there is factual or legal
basis to hold that the communications elicited by the three (3)
questions are covered by executive privilege;
(3) whether or not respondent Committees have
shown that the communications elicited by the three (3) questions are
critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order.
We shall discuss these issues seriatim.
There Is a Recognized Presumptive Presidential Communications Privilege
Respondent Committees ardently argue that the Court’s
declaration that presidential communications are presumptively
privileged reverses the "presumption" laid down in Senate v. Ermita11
that "inclines heavily against executive secrecy and in favor of
disclosure." Respondent Committees then claim that the Court erred in
relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of the presidential communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita,13
the case relied upon by respondent Committees, reiterated this concept.
There, the Court enumerated the cases in which the claim of executive
privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v. PEA.15
The Court articulated in these cases that "there are certain types of
information which the government may withhold from the public,16"
that there is a "governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and other
national security matters";17 and that "the
right to information does not extend to matters recognized as
‘privileged information’ under the separation of powers, by which the
Court meant Presidential conversations, correspondences, and discussions
in closed-door Cabinet meetings."18
Respondent Committees’ observation that this Court’s
Decision reversed the "presumption that inclines heavily against
executive secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly held that
in order to arrive at the true intent and meaning of a decision, no
specific portion thereof should be isolated and resorted to, but the
decision must be considered in its entirety.19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita,
which declared void Sections 2(b) and 3 of Executive Order (E.O.) No.
464, Series of 2005. The pertinent portion of the decision in the said
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisprudence, a clear principle emerges. Executive privilege, whether
asserted against Congress, the courts, or the public, is recognized only
in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground invoked to justify
it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted
paragraph in Senate v. Ermita refers to the "exemption" being claimed by
the executive officials mentioned in Section 2(b) of E.O. No. 464,
solely by virtue of their positions in the Executive Branch. This means
that when an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke executive privilege given by the President
to said executive official, such that the presumption in this situation
inclines heavily against executive secrecy and in favor of disclosure.
Senate v. Ermita20 expounds on the premise of the foregoing ruling in this wise:
Section 2(b) in relation to Section 3 virtually
provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the
President’s authority 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 provisions thus allow the President to authorize
claims of privilege by mere silence.
Such presumptive authorization, however, is
contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to
information the confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of the executive
branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity,
be kept confidential in pursuit of the public interest. The privilege
being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such
high degree as to outweigh the public interest in enforcing that
obligation in a particular case.
In light of this highly exceptional nature of the
privilege, the Court finds it essential to limit to the President the
power to invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case the
Executive Secretary must state that the authority is "By order of the
President", which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the
highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power.
There is even less reason to uphold such authorization in the instant
case where the authorization is not explicit but by mere silence.
Section 3, in relation to Section 2(b), is further invalid on this
The constitutional infirmity found in the blanket
authorization to invoke executive privilege granted by the President to
executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this
In this case, it was the President herself, through
Executive Secretary Ermita, who invoked executive privilege on a
specific matter involving an executive agreement between the Philippines
and China, which was the subject of the three (3) questions propounded
to petitioner Neri in the course of the Senate Committees’
investigation. Thus, the factual setting of this case markedly differs
from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in Senate v. Ermita,21 to wit:
The phrase "executive privilege" is not new in this jurisdiction.
It has been used even prior to the promulgation of the 1986
Constitution. Being of American origin, it is best understood in light
of how it has been defined and used in the legal literature of the
Schwart defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress.
Similarly, Rozell defines it as "the right of the President and
high-level executive branch officers to withhold information from
Congress, the courts, and ultimately the public." x x x In this
jurisdiction, the doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez. Almonte used the term in reference to the
same privilege subject of Nixon. It quoted the following portion of the
Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations,
for example, he 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 policies and making decisions and to do so in a way
many would be unwilling to express except privately. These are
the considerations 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 x x x " (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication," which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita
adverted to in the Motion for Reconsideration of respondent Committees,
referring to the non-existence of a "presumptive authorization" of an
executive official, to mean that the "presumption" in favor of executive
privilege "inclines heavily against executive secrecy and in favor of
disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction.
Senate v. Ermita22
expounds on the constitutional underpinning of the relationship between
the Executive Department and the Legislative Department to explain why
there should be no implied authorization or presumptive authorization to
invoke executive privilege by the President’s subordinate officials, as
When Congress exercises its power of inquiry, the
only way for department heads to exempt themselves therefrom is by a
valid claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted from this power - the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment.
It is based on he being the highest official of the executive branch,
and the due respect accorded to a co-equal branch of governments which
is sanctioned by a long-standing custom. (Underscoring supplied)
Thus, if what is involved is the presumptive
privilege of presidential communications when invoked by the President
on a matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given preference
or priority, in the absence of proof of a compelling or critical need
for disclosure by the one assailing such presumption. Any construction
to the contrary will render meaningless the presumption accorded by
settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications."23
There Are Factual and Legal Bases to Hold that the Communications Elicited by the Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications
elicited by the three (3) questions are not covered by executive
privilege because the elements of the presidential communications privilege are not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential power."
First, respondent Committees
contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the
Constitution does not vest it in the President alone, but also in the
Monetary Board which is required to give its prior concurrence and to
report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence
of another entity does not make such power less executive.
"Quintessential" is defined as the most perfect embodiment of something,
the concentrated essence of substance.24
On the other hand, "non-delegable" means that a power or duty cannot be
delegated to another or, even if delegated, the responsibility remains
with the obligor.25
The power to enter into an executive agreement is in essence an
executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally
been recognized in Philippine jurisprudence.26
Now, the fact that the President has to secure the prior concurrence of
the Monetary Board, which shall submit to Congress a complete report of
its decision before contracting or guaranteeing foreign loans, does not
diminish the executive nature of the power.
The inviolate doctrine of separation of powers among
the legislative, executive and judicial branches of government by no
means prescribes absolute autonomy in the discharge by each branch of
that part of the governmental power assigned to it by the sovereign
people. There is the corollary doctrine of checks and balances, which
has been carefully calibrated by the Constitution to temper the official
acts of each of these three branches. Thus, by analogy, the fact that
certain legislative acts require action from the President for their
validity does not render such acts less legislative in nature. A good
example is the power to pass a law. Article VI, Section 27 of the
Constitution mandates that every bill passed by Congress shall, before
it becomes a law, be presented to the President who shall approve or
veto the same. The fact that the approval or vetoing of the bill is
lodged with the President does not render the power to pass law
executive in nature. This is because the power to pass law is generally a
quintessential and non-delegable power of the Legislature. In the same
vein, the executive power to enter or not to enter into a contract to
secure foreign loans does not become less executive in nature because of
conditions laid down in the Constitution. The final decision in the
exercise of the said executive power is still lodged in the Office of
B. The "doctrine of operational proximity" was
laid down precisely to limit the scope of the presidential
communications privilege but, in any case, it is not conclusive.
Second, respondent Committees
also seek reconsideration of the application of the "doctrine of
operational proximity" for the reason that "it maybe misconstrued to
expand the scope of the presidential communications privilege to
communications between those who are ‘operationally proximate’ to the
President but who may have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case27precisely
to limit the scope of the presidential communications privilege. The
U.S. court was aware of the dangers that a limitless extension of the
privilege risks and, therefore, carefully cabined its reach by
explicitly confining it to White House staff, and not to staffs of the
agencies, and then only to White House staff that has "operational
proximity" to direct presidential decision-making, thus:
We are aware that such an extension, unless carefully
circumscribed to accomplish the purposes of the privilege, could pose a
significant risk of expanding to a large swath of the executive branch a
privilege that is bottomed on a recognition of the unique role of the
President. In order to limit this risk, the presidential communications
privilege should be construed as narrowly as is consistent with ensuring
that the confidentiality of the President’s decision-making process is
adequately protected. Not every person who plays a role in the
development of presidential advice, no matter how remote and removed
from the President, can qualify for the privilege. In particular, the
privilege should not extend to staff outside the White House in
executive branch agencies. Instead, the privilege should apply only
to communications authored or solicited and received by those members of
an immediate White House advisor’s staff who have broad and significant
responsibility for investigation and formulating the advice to be given
the President on the particular matter to which the communications
relate. Only communications at that level are close enough to the
President to be revelatory of his deliberations or to pose a risk to the
candor of his advisers. See AAPS, 997 F.2d at 910 (it is
"operational proximity" to the President that matters in determining
whether "[t]he President’s confidentiality interests" is implicated). (Emphasis supplied)
In the case at bar, the danger of expanding the
privilege "to a large swath of the executive branch" (a fear apparently
entertained by respondents) is absent because the official involved here
is a member of the Cabinet, thus, properly within the term "advisor" of
the President; in fact, her alter ego and a member of her official
family. Nevertheless, in circumstances in which the official involved is
far too remote, this Court also mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of Justice.28
This goes to show that the operational proximity test used in the
Decision is not considered conclusive in every case. In determining
which test to use, the main consideration is to limit the availability
of executive privilege only to officials who stand proximate to the
President, not only by reason of their function, but also by reason of
their positions in the Executive’s organizational structure. Thus,
respondent Committees’ fear that the scope of the privilege would be
unnecessarily expanded with the use of the operational proximity test is
C. The President’s claim of executive privilege
is not merely based on a generalized interest; and in balancing
respondent Committees’ and the President’s clashing interests, the Court
did not disregard the 1987 Constitutional provisions on government
transparency, accountability and disclosure of information.
Third, respondent Committees
claim that the Court erred in upholding the President’s invocation,
through the Executive Secretary, of executive privilege because (a)
between respondent Committees’ specific and demonstrated need and the
President’s generalized interest in confidentiality, there is a need to
strike the balance in favor of the former; and (b) in the balancing of
interest, the Court disregarded the provisions of the 1987 Philippine
Constitution on government transparency, accountability and disclosure
of information, specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the President’s claim of
executive privilege is not merely founded on her generalized interest in
confidentiality. The Letter dated November 15, 2007 of Executive
Secretary Ermita specified presidential communications privilege in relation to diplomatic and economic relations with another sovereign nation as the bases for the claim. Thus, the Letter stated:
The context in which executive privilege is being
invoked is that the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People’s Republic of
China. Given the confidential nature in which this information were
conveyed to the President, he cannot provide the Committee any further
details of these conversations, without disclosing the very thing the
privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that
Congress must not require the Executive to state the reasons for the
claim with such particularity as to compel disclosure of the information
which the privilege is meant to protect. This is a matter of respect
for a coordinate and co-equal department.
It is easy to discern the danger that goes with the
disclosure of the President’s communication with her advisor. The NBN
Project involves a foreign country as a party to the agreement. It was
actually a product of the meeting of minds between officials of the
Philippines and China. Whatever the President says about the agreement -
particularly while official negotiations are ongoing - are matters
which China will surely view with particular interest. There is danger
in such kind of exposure. It could adversely affect our diplomatic as
well as economic relations with the People’s Republic of China. We
reiterate the importance of secrecy in matters involving foreign
negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution,
and their success must often depend on secrecy, and even when brought to
a conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or contemplated would
be extremely impolitic, for this might have a pernicious influence on
future negotiations or produce immediate inconveniences, perhaps danger
and mischief, in relation to other powers. The necessity of such caution
and secrecy was one cogent reason for vesting the power of making
treaties in the President, with the advice and consent of the Senate,
the principle on which the body was formed confining it to a small
number of members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course all the
papers respecting a negotiation with a foreign power would be to
establish a dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations. In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations
has been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v. PCGG
held that "information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest." Even earlier,
the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners
were seeking information from the President’s representatives on the
state of the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature.
Although much has been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson
have clearly analyzed and justified the practice. In the words of Mr.
"A complicated negotiation …cannot be carried
through without many, many private talks and discussion, man to man;
many tentative suggestions and proposals. Delegates from other
countries come and tell you in confidence of their troubles at home and
of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances… If these reports… should become public… who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284)
x x x x
There is frequent criticism of the secrecy in
which negotiation with foreign powers on nearly all subjects is
concerned. This, it is claimed, is incompatible with the substance of
democracy. As expressed by one writer, "It can be said that there is
no more rigid system of silence anywhere in the world." (E.J. Young,
Looking Behind the Censorship, J. B. Lipincott Co., 1938) President
Wilson in starting his efforts for the conclusion of the World War
declared that we must have "open covenants, openly arrived at." He
quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible. In
the moment that negotiations are started, pressure groups attempt to
"muscle in." An ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides would quickly lead to a widespread propaganda to block the negotiations. After
a treaty has been drafted and its terms are fully published, there is
ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the President is the sole organ of the nation in its negotiations with foreign countries,viz:
"x x x In this vast external realm, with its
important, complicated, delicate and manifold problems, the President
alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the
Senate cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the House of
Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613… (Emphasis supplied; underscoring in the original)
Considering that the information sought through the
three (3) questions subject of this Petition involves the President’s
dealings with a foreign nation, with more reason, this Court is wary of
approving the view that Congress may peremptorily inquire into not only
official, documented acts of the President but even her confidential and
informal discussions with her close advisors on the pretext that said
questions serve some vague legislative need. Regardless of who is in
office, this Court can easily foresee unwanted consequences of
subjecting a Chief Executive to unrestricted congressional inquiries
done with increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of intense
and unchecked legislative incursion into the core of the President’s
decision-making process, which inevitably would involve her
conversations with a member of her Cabinet.
With respect to respondent Committees’ invocation of
constitutional prescriptions regarding the right of the people to
information and public accountability and transparency, the Court finds
nothing in these arguments to support respondent Committees’ case.
There is no debate as to the importance of the
constitutional right of the people to information and the constitutional
policies on public accountability and transparency. These are the twin
postulates vital to the effective functioning of a democratic
government. The citizenry can become prey to the whims and caprices of
those to whom the power has been delegated if they are denied access to
information. And the policies on public accountability and democratic
government would certainly be mere empty words if access to such
information of public concern is denied.
In the case at bar, this Court, in upholding
executive privilege with respect to three (3) specific questions, did
not in any way curb the public’s right to information or diminish the
importance of public accountability and transparency.
This Court did not rule that the Senate has no power
to investigate the NBN Project in aid of legislation. There is nothing
in the assailed Decision that prohibits respondent Committees from
inquiring into the NBN Project. They could continue the investigation
and even call petitioner Neri to testify again. He himself has
repeatedly expressed his willingness to do so. Our Decision merely
excludes from the scope of respondents’ investigation the three (3)
questions that elicit answers covered by executive privilege and rules
that petitioner cannot be compelled to appear before respondents to
answer the said questions. We have discussed the reasons why these
answers are covered by executive privilege. That there is a recognized
public interest in the confidentiality of such information is a
recognized principle in other democratic States. To put it simply, the
right to information is not an absolute right.
Indeed, the constitutional provisions cited by
respondent Committees do not espouse an absolute right to information.
By their wording, the intention of the Framers to subject such right to
the regulation of the law is unmistakable. The highlighted portions of
the following provisions show the obvious limitations on the right to
Article III, Sec. 7. 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
records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40
it was stated that there are no specific laws prescribing the exact
limitations within which the right may be exercised or the correlative
state duty may be obliged. Nonetheless, it enumerated the recognized
restrictions to such rights, among them: (1) national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4)
other confidential information. National security matters include state
secrets regarding military and diplomatic matters, as well as
information on inter-government exchanges prior to the conclusion of
treaties and executive agreements. It was further held that even
where there is no need to protect such state secrets, they must be
"examined in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly in aid of legislation,
not the people’s right to public information. This is the reason why we
stressed in the assailed Decision the distinction between these two
rights. As laid down in Senate v. Ermita, "the demand of a
citizen for the production of documents pursuant to his right to
information does not have the same obligatory force as a subpoena duces tecum
issued by Congress" and "neither does the right to information grant a
citizen the power to exact testimony from government officials." As
pointed out, these rights belong to Congress, not to the individual
citizen. It is worth mentioning at this juncture that the parties here
are respondent Committees and petitioner Neri and that there was no
prior request for information on the part of any individual citizen.
This Court will not be swayed by attempts to blur the distinctions
between the Legislature's right to information in a legitimate
legislative inquiry and the public's right to information.
For clarity, it must be emphasized that the
assailed Decision did not enjoin respondent Committees from inquiring
into the NBN Project. All that is expected from them is to respect
matters that are covered by executive privilege.
Respondent Committees Failed to Show That the Communications Elicited by the Three Questions Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent
Committees devote an unusually lengthy discussion on the purported
legislative nature of their entire inquiry, as opposed to an oversight
At the outset, it must be clarified that the Decision
did not pass upon the nature of respondent Committees’ inquiry into the
NBN Project. To reiterate, this Court recognizes respondent Committees’
power to investigate the NBN Project in aid of legislation. However,
this Court cannot uphold the view that when a constitutionally
guaranteed privilege or right is validly invoked by a witness in the
course of a legislative investigation, the legislative purpose of
respondent Committees’ questions can be sufficiently supported by the
expedient of mentioning statutes and/or pending bills to which their
inquiry as a whole may have relevance. The jurisprudential test laid
down by this Court in past decisions on executive privilege is that the
presumption of privilege can only be overturned by a showing of compelling need for disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no
adequate showing of a compelling need that would justify the limitation
of the privilege and of the unavailability of the information elsewhere
by an appropriate investigating authority." In the Motion for
Reconsideration, respondent Committees argue that the information
elicited by the three (3) questions are necessary in the discharge of
their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents’ assertions.
In U.S. v. Nixon, the U.S. Court held that
executive privilege is subject to balancing against other interests and
it is necessary to resolve the competing interests in a manner that
would preserve the essential functions of each branch. There, the Court
weighed between presidential privilege and the legitimate claims of the
judicial process. In giving more weight to the latter, the Court ruled
that the President's generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal
The Nixon Court ruled that an absolute and
unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal
prosecutions. The said Court further ratiocinated, through its ruling
extensively quoted in the Honorable Chief Justice Puno's dissenting
opinion, as follows:
"... this presumptive privilege must be considered in
light of our historic commitment to the rule of law. This is nowhere
more profoundly manifest than in our view that 'the twofold aim (of
criminal justice) is that guild shall not escape or innocence suffer.'
Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have
elected to employ an adversary system of criminal justice in which the
parties contest all issues before a court of law. The need to develop
all relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be defeated if
judgments were to be founded on a partial or speculative presentation of
the facts. The very integrity of the judicial system and public
confidence in the system depend on 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 function of courts that compulsory
process be available for the production of evidence needed either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a
criminal trial similarly has constitutional dimensions. The Sixth
Amendment explicitly confers upon every defendant in a criminal trial
the right 'to be confronted with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the
general privilege of confidentiality of Presidential communications in
performance of the President's responsibilities against the inroads of
such a privilege on the fair administration of criminal justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably
relevant in a criminal trial would cut deeply into the guarantee of due
process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional
need for production of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a particular criminal
case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communication will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting
privilege as to subpoenaed materials sought for use in a criminal trial
is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a
court’s need for facts in order to adjudge liability in a criminal case
but rather with the Senate’s need for information in relation to its
legislative functions. This leads us to consider once again just how
critical is the subject information in the discharge of respondent
Committees’ functions. The burden to show this is on the respondent
Committees, since they seek to intrude into the sphere of competence of
the President in order to gather information which, according to said
respondents, would "aid" them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need
has come to depend, therefore, entirely on whether the subpoenaed
materials are critical to the performance of its legislative functions.
There is a clear difference between Congress' legislative tasks and the
responsibility of a grand jury, or any institution engaged in like
functions. While fact-finding by a legislative committee is
undeniably a part of its task, legislative judgments normally depend
more on the predicted consequences of proposed legislative actions and
their political acceptability, than on precise reconstruction of past
events; Congress frequently legislates on the basis of conflicting
information provided in its hearings. In contrast, the responsibility of
the grand jury turns entirely on its ability to determine whether there
is probable cause to believe that certain named individuals did or did
not commit specific crimes. If, for example, as in Nixon v. Sirica, one
of those crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most precise evidence, the
exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case.
Indeed, whatever force there might once have been in the Committee's
argument that the subpoenaed materials are necessary to its legislative
judgments has been substantially undermined by subsequent events.
Clearly, the need for hard facts in crafting
legislation cannot be equated with the compelling or demonstratively
critical and specific need for facts which 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) separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in
resolving the conflicting claims between the Executive and the
Legislative Branches is the recognized existence of the presumptive
presidential communications privilege. This is conceded even in the
Dissenting Opinion of the Honorable Chief Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield
the conclusion that it bestowed a qualified presumption in favor of the
Presidential communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential
communications puts the burden on the respondent Senate Committees to
overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions
subject of this case, to enable them to craft legislation. Here, there
is simply a generalized assertion that the information is
pertinent to the exercise of the power to legislate and a broad and
non-specific reference to pending Senate bills. It is not clear what
matters relating to these bills could not be determined without the said
information sought by the three (3) questions. As correctly pointed out
by the Honorable Justice Dante O. Tinga in his Separate Concurring
…If respondents are operating under the premise
that the president and/or her executive officials have committed
wrongdoings that need to be corrected or prevented from recurring by
remedial legislation, the answer to those three questions will not
necessarily bolster or inhibit respondents from proceeding with such
legislation. They could easily presume the worst of the president in
enacting such legislation.
For sure, a factual basis for situations covered by
bills is not critically needed before legislatives bodies can come up
with relevant legislation unlike in the adjudication of cases by courts
of law. Interestingly, during the Oral Argument before this Court, the
counsel for respondent Committees impliedly admitted that the Senate
could still come up with legislations even without petitioner answering
the three (3) questions. In other words, the information being elicited
is not so critical after all. Thus:
CHIEF JUSTICE PUNO
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
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
For instance, with respect to the proposed Bill of
Senator Miriam Santiago, she would like to indorse a Bill to include
Executive Agreements had been used as a device to the circumventing the
CHIEF JUSTICE PUNO
But the question is just following it up.
I believe that may be the initial question, Your
Honor, because if we look at this problem in its factual setting as
counsel for petitioner has observed, there are intimations of a bribery
scandal involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated
to prioritize this ZTE, is that critical to the lawmaking function of
the Senate? Will it result to the failure of the Senate to cobble a Bill
without this question?
I think it is critical to lay the factual foundations
for a proposed amendment to the Procurement Law, Your Honor, because
the petitioner had already testified that he 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 contract would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President
said to go ahead and approve the project after being told about the
alleged bribe. How critical is that to the lawmaking function of the
Senate? And the question is may they craft a Bill a remedial law without
forcing petitioner Neri to answer this question?
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a proposed Bill should have some basis in fact.42
The failure of the counsel for respondent Committees
to pinpoint the specific need for the information sought or how the
withholding of the information sought will hinder the accomplishment of
their legislative purpose is very evident in the above oral exchanges.
Due to the failure of the respondent Committees to successfully
discharge this burden, the presumption in favor of confidentiality of
presidential communication stands. The implication of the said
presumption, like any other, is to dispense with the burden of proof as
to whether the disclosure will significantly impair the President’s
performance of her function. Needless to state this is assumed, by
virtue of the presumption.
Anent respondent Committees’ bewailing that they
would have to "speculate" regarding the questions covered by the
privilege, this does not evince a compelling need for the information
sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon43
held that while fact-finding by a legislative committee is undeniably a
part of its task, legislative judgments normally depend more on the
predicted consequences of proposed legislative actions and their
political acceptability than on a precise reconstruction of past events.
It added that, normally, Congress legislates on the basis of
conflicting information provided in its hearings. We cannot subscribe to
the respondent Committees’ self-defeating proposition that without the
answers to the three (3) questions objected to as privileged, the
distinguished members of the respondent Committees cannot intelligently
Anent the function to curb graft and corruption, it
must be stressed that respondent Committees’ need for information in the
exercise of this function is not as compelling as in instances when the
purpose of the inquiry is legislative in nature. This is because
curbing graft and corruption is merely an oversight function of
And if this is the primary objective of respondent Committees in asking
the three (3) questions covered by privilege, it may even contradict
their claim that their purpose is legislative in nature and not
oversight. In any event, whether or not investigating graft and
corruption is a legislative or oversight function of Congress,
respondent Committees’ investigation cannot transgress bounds set by the
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution.
Moreover, as held in a recent case, "the political question doctrine
neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been
given to this Court. It cannot abdicate that obligation mandated by the
1987 Constitution, although said provision by no means does away with
the applicability of the principle in appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really ‘in aid of legislation’ because it
is not related to a purpose within the jurisdiction of Congress, since
the aim of the investigation is to find out whether or not the relatives
of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No.
3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within the province of the courts rather than of the Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the President.48
While it may be a worthy endeavor to investigate the potential
culpability of high government officials, including the President, in a
given government transaction, it is simply not a task for the Senate to
perform. The role of the Legislature is to make laws, not to determine
anyone’s guilt of a crime or wrongdoing. Our Constitution has not
bestowed upon the Legislature the latter role. Just as the Judiciary
cannot legislate, neither can the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation
and a "search for truth," which in respondent Committees’ view appears
to be equated with the search for persons responsible for "anomalies" in
No matter how noble the intentions of respondent
Committees are, they cannot assume the power reposed upon our
prosecutorial bodies and courts. The determination of who is/are liable
for a crime or illegal activity, the investigation of the role played by
each official, the determination of who should be haled to court for
prosecution and the task of coming up with conclusions and finding of
facts regarding anomalies, especially the determination of criminal
guilt, are not functions of the Senate. Congress is neither a law
enforcement nor a trial agency. Moreover, it bears stressing that no
inquiry is an end in itself; it must be related to, and in furtherance
of, a legitimate task of the Congress, i.e. legislation. Investigations
conducted solely to gather incriminatory evidence and "punish" those
investigated are indefensible. There is no Congressional power to expose
for the sake of exposure.49 In this regard, the pronouncement in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations.
Since Congress may only investigate into the areas in which it may
potentially legislate or appropriate, it cannot inquire into matters
which are within the exclusive province of one of the other branches of
the government. Lacking the judicial power given to the Judiciary, it
cannot inquire into matters that are exclusively the concern of the
Judiciary. Neither can it supplant the Executive in what exclusively
belongs to the Executive. (Emphasis supplied.)
At this juncture, it is important to stress that
complaints relating to the NBN Project have already been filed against
President Arroyo and other personalities before the Office of the
Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to
investigate any act or omission of any public official, employee,
office or agency when such act or omission appears to be illegal,
unjust, improper, or inefficient."51
The Office of the Ombudsman is the body properly equipped by the
Constitution and our laws to preliminarily determine whether or not the
allegations of anomaly are true and who are liable therefor. The same
holds true for our courts upon which the Constitution reposes the duty
to determine criminal guilt with finality. Indeed, the rules of
procedure in the Office of the Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information
related to a possible crime in the course of their investigation, they
have the constitutional duty to refer the matter to the appropriate
agency or branch of government. Thus, the Legislature’s need for
information in an investigation of graft and corruption cannot be deemed
compelling enough to pierce the confidentiality of information validly
covered by executive privilege. As discussed above, the Legislature can
still legislate on graft and corruption even without the information
covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their
rejection of petitioner’s claim of executive privilege on the ground
that there is no privilege when the information sought might involve a
crime or illegal activity, despite the absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the presumption favoring confidentiality turned, not
on the nature of the presidential conduct that the subpoenaed material
might reveal, but, instead, on the nature and appropriateness of the
function in the performance of which the material was sought, and the
degree to which the material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon
does not apply to the case at bar because, unlike in the said case, no
impeachment proceeding has been initiated at present. The Court is not
persuaded. While it is true that no impeachment proceeding has been
initiated, however, complaints relating to the NBN Project have already
been filed against President Arroyo and other personalities before the
Office of the Ombudsman. As the Court has said earlier, the
prosecutorial and judicial arms of government are the bodies equipped
and mandated by the Constitution and our laws to determine whether or
not the allegations of anomaly in the NBN Project are true and, if so,
who should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are
not subject to the exacting standards of evidence essential to arrive at
accurate factual findings to which to apply the law. Hence, Section 10
of the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation provides that "technical rules of evidence applicable to
judicial proceedings which do not affect substantive rights need not be
observed by the Committee." Court rules which prohibit leading,
hypothetical, or repetitive questions or questions calling for a hearsay
answer, to name a few, do not apply to a legislative inquiry. Every
person, from the highest public official to the most ordinary citizen,
has the right to be presumed innocent until proven guilty in proper
proceedings by a competent court or body.
Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege
having been fully discussed in the preceding pages, we see no reason to
discuss it once again.
Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita,
requiring invitations or subpoenas to contain the "possible 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 furtherance thereof" is not provided for by the Constitution and is
merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements.
An unconstrained congressional investigative power,
like an unchecked Executive, generates its own abuses. Consequently,
claims that the investigative power of Congress has been abused (or has
the potential for abuse) have been raised many times.53
Constant exposure to congressional subpoena takes its toll on the
ability of the Executive to function effectively. The requirements set
forth in Senate v. Ermita are modest mechanisms that would not
unduly limit Congress’ power. The legislative inquiry must be confined
to permissible areas and thus, prevent the "roving commissions" referred
to in the U.S. case, Kilbourn v. Thompson.54
Likewise, witnesses have their constitutional right to due process.
They should be adequately informed what matters are to be covered by the
inquiry. It will also allow them to prepare the pertinent information
and documents. To our mind, these requirements concede too little
political costs or burdens on the part of Congress when viewed vis-à-vis
the immensity of its power of inquiry. The logic of these requirements
is well articulated in the study conducted by William P. Marshall,55 to wit:
A second concern that might be addressed is that the
current system allows committees to continually investigate the
Executive without constraint. One process solution addressing this concern is to require each investigation be tied to a clearly stated purpose.At
present, the charters of some congressional committees are so broad
that virtually any matter involving the Executive can be construed to
fall within their province. Accordingly, investigations can proceed
without articulation of specific need or purpose. A requirement for a
more precise charge in order to begin an inquiry should immediately work
to limit the initial scope of the investigation and should also serve
to contain the investigation once it is instituted. Additionally, to
the extent clear statements of rules cause legislatures to pause and
seriously consider the constitutional implications of proposed courses
of action in other areas, they would serve that goal in the context of
congressional investigations as well.
The key to this reform is in its details. A
system that allows a standing committee to simply articulate its reasons
to investigate pro forma does no more than imposes minimal drafting
burdens. Rather, the system must be designed in a manner that imposes
actual burdens on the committee to articulate its need for investigation
and allows for meaningful debate about the merits of proceeding with
the investigation.(Emphasis supplied)
Clearly, petitioner’s request to be furnished an
advance copy of questions is a reasonable demand that should have been
granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum
dated November 13, 2007 made no specific reference to any pending Senate
bill. It did not also inform petitioner of the questions to be asked.
As it were, the subpoena merely commanded him to "testify on what he
knows relative to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation
(the "Rules") are beyond the reach of this Court. While it is true that
this Court must refrain from reviewing the internal processes of
Congress, as a co-equal branch of government, however, when a
constitutional requirement exists, the Court has the duty to look into
Congress’ compliance therewith. We cannot turn a blind eye to possible
violations of the Constitution simply out of courtesy. In this regard,
the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of
expression, all deny to the courts the power to inquire into allegations
that, in enacting a law, a House of Congress failed to comply with its
own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution empowers each House to determine its rules of proceedings. It
may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between
the mode or method of proceeding established by the rule and the result
which is sought to be attained."
In the present case, the Court’s exercise of its
power of judicial review is warranted because there appears to be a
clear abuse of the power of contempt on the part of respondent
Committees. Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all
its members, may punish for contempt any witness before it who disobey
any order of the Committee or refuses to be sworn or to testify or to
answer proper questions by the Committee or any of its members." (Emphasis supplied)
In the assailed Decision, we said that there is a
cloud of doubt as to the validity of the contempt order because during
the deliberation of the three (3) respondent Committees, only seven (7)
Senators were present. This number could hardly fulfill the majority
requirement needed by respondent Committee on Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were present.57
These facts prompted us to quote in the Decision the exchanges between
Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the
former raised the issue of lack of the required majority to deliberate
and vote on the contempt order.
When asked about such voting during the March 4, 2008
hearing before this Court, Senator Francis Pangilinan stated that any
defect in the committee voting had been cured because two-thirds of the
Senators effectively signed for the Senate in plenary session.58
Obviously the deliberation of the respondent
Committees that led to the issuance of the contempt order is flawed.
Instead of being submitted to a full debate by all the members of the
respondent Committees, the contempt order was prepared and thereafter
presented to the other members for signing. As a result, the contempt
order which was issued on January 30, 2008 was not a faithful
representation of the proceedings that took place on said date. Records
clearly show that not all of those who signed the contempt order were
present during the January 30, 2008 deliberation when the matter was
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of
person appearing in or affected by such inquiries shall be respected.(Emphasis supplied)
All the limitations embodied in the foregoing
provision form part of the witness’ settled expectation. If the
limitations are not observed, the witness’ settled expectation is
shattered. Here, how could there be a majority vote when the members in
attendance are not enough to arrive at such majority? Petitioner has the
right to expect that he can be cited in contempt only through a
majority vote in a proceeding in which the matter has been fully
deliberated upon. There is a greater measure of protection for the
witness when the concerns and objections of the members are fully
articulated in such proceeding. We do not believe that respondent
Committees have the discretion to set aside their rules anytime they
wish. This is especially true here where what is involved is the
contempt power. It must be stressed that the Rules are not
promulgated for their benefit. More than anybody else, it is the witness
who has the highest stake in the proper observance of the Rules.
Having touched the subject of the Rules, we
now proceed to respondent Committees’ fourth argument. Respondent
Committees argue that the Senate does not have to publish its Rules
because the same was published in 1995 and in 2006. Further, they claim
that the Senate is a continuing body; thus, it is not required to
republish the Rules, unless the same is repealed or amended.
On the nature of the Senate as a "continuing body,"
this Court sees fit to issue a clarification. Certainly, there is no
debate that the Senate as an institution is "continuing", as it
is not dissolved as an entity with each national election or change in
the composition of its members. However, in the conduct of its
day-to-day business the Senate of each Congress acts separately and
independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:
RULE XLIV UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied)
Undeniably from the foregoing, all pending matters
and proceedings, i.e. unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered terminated
upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress 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 readily apparent
considering that the Senate of the succeeding Congress (which will
typically have a different composition as that of the previous Congress)
should not be bound by the acts and deliberations of the Senate of
which they had no part. If the Senate is a continuing body even with
respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a
matter of course, continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an
institution and of the opposite nature of the conduct of its business is
reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main
rules of procedure) states:
RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in
which the Senators elected in the preceding elections shall begin their
term of office, the President may endorse the Rules to the appropriate
committee for amendment or revision.
The Rules may also be amended by means of a motion
which should be presented at least one day before its consideration, and
the vote of the majority of the Senators present in the session shall
be required for its approval. (emphasis supplied)
RULE LII DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on
the date of their adoption and shall remain in force until they are
amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes
into account the new composition of the Senate after an election and the
possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined
that its main rules are intended to be valid from the date of their
adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation."59
The latter does not explicitly provide for the continued effectivity of
such rules until they are amended or repealed. In view of the
difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into
the next Congress. The Senate of the next Congress may easily adopt
different rules for its legislative inquiries which come within the rule
on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure
is categorical. It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or otherwise make the
published rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or repealed to
sufficiently put public on notice.
If it was the intention of the Senate for its present
rules on legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same language it had used in
its main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be
stressed that not all orders issued or proceedings conducted pursuant
to the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and
void, considering that the rationale for the publication is to protect
the rights of witnesses as expressed in Section 21, Article VI of the
Constitution. Sans such violation, orders and proceedings are considered valid and effective.
Respondent Committees’ last argument is that their
issuance of the contempt order is not precipitate or arbitrary. Taking
into account the totality of circumstances, we find no merit in their
As we have stressed before, petitioner is not an
unwilling witness, and contrary to the assertion of respondent
Committees, petitioner did not assume that they no longer had any other
questions for him. He repeatedly manifested his willingness to attend
subsequent hearings and respond to new matters. His only request was
that he be furnished a copy of the new questions in advance to enable
him to adequately prepare as a resource person. He did not attend the
November 20, 2007 hearing because Executive Secretary Ermita requested
respondent Committees to dispense with his testimony on the ground of
executive privilege. Note that petitioner is an executive official under
the direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by his superior? Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing.
On the part of respondent Committees, this Court
observes their haste and impatience. Instead of ruling on Executive
Secretary Ermita’s claim of executive privilege, they curtly dismissed
it as unsatisfactory and ordered the arrest of petitioner. They could
have informed petitioner of their ruling and given him time to decide
whether to accede or file a motion for reconsideration. After all, he is
not just an ordinary witness; he is a high- 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 contempt order,
despite the absence of the majority of the members of the respondent
Committees, and their subsequent disregard of petitioner’s 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 their internal 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 Legislature’s all-encompassing, awesome power of
investigation? It is a power, like any other, that is susceptible to
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.
WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is hereby DENIED.
Footnotes 1 Chaired by Hon. Senator Alan Peter S. Cayetano. 2 Chaired by Hon. Senator Manuel A. Roxas II. 3 Chaired by Hon. Senator Rodolfo G. Biazon. 4 Transcript of the September 26, 2007 Hearing of the respondent Committees, pp. 91-92. 5 Id., pp. 114-115. 6 Id., pp. 276-277. 7 See Letter dated November 15, 2007. 8 See Letter dated January 30, 2008. 9G.R. No. 95367, May 23, 1995, 244 SCRA 286. 10 433 Phil. 506 (2002) 11G.R. No. 169777, April 20, 2006, 488 SCRA 1. 12 Supra., note 9. 13 Supra., note 11. 14G.R. No. 130716, December 9, 1998, 299 SCRA 744. 15 Supra., note 10. 16 Almonte v. Vasquez, supra., note 9. 17 Chavez v. PCGG, supra., note 14. 18 Senate v. Ermita, supra., note 11. 19
Telefunken Semiconductors Employees Union -FFW v. Court of Appeals,
G.R. Nos. 143013-14, December 18, 2000, 348 SCRA 565,587; Valderama v.
NLRC, G.R. No. 98239, April 25,1996, 256 SCRA 466, 472 citing Policarpio
v. P.V.B. and Associated Ins. & Surety Co., Inc., 106 Phil. 125,
131 (1959). 20 Supra, note 11 at pp. 68-69 21 Id., at pp. 45-46 22 Id., at p. 58 23 Id., at p. 50 24 Webster Encyclopedic Unabridged Dictionary, Gramercy Books 1994, p. 1181. 25 Business Dictionary, http://www.businessdictionary.com/definition/non-delegable-duty.html 26
Usaffe Veterans Association, Inc. v. Treasurer of the Philippines, et
al. (105 Phil. 1030, 1038); See also Commissioner of Internal Revenue v.
John Gotamco & Sons, Inc. G.R. No. L-31092, February 27, 1987,148
SCRA 36, 39. 27 No. 96-3124, June 17, 1997, 121 F.3d 729,326 U.S. App. D.C. 276. 28 365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid. Serv.141. 29
Article III, Sec. 7. 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 records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law. 30 Article II, Sec. 24. The State recognizes the vital role of communication and information in nation-building. 31
Article II, Sec. 28. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public disclosure
of all its transactions involving public interest. 32
Article XI, Sec. 1. Public office is a public trust. Public officers
and employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives. 33
Article XVI, Sec. 10. The State shall provide the policy environment
for the full development of Filipino capability and the emergence of
communications structures suitable to the needs and aspirations of the
nation and the balanced flow of information into, out of, and across the
country, in accordance with a policy that respects the freedom of
speech and of the press. 34
Article VII, Sec. 20. The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject to such limitations as
may be provided by law. The Monetary Board shall, within thirty days
from the end of every quarter of the calendar year, submit to Congress a
complete report of its decisions on applications for loans to be
contracted or guaranteed by the Government or government-controlled
corporations which would have the effect of increasing the foreign debt,
and containing other matters as may be provided by law. 35
Article XII, Sec. 9. The Congress may establish an independent economic
and planning agency headed by the President, which shall, after
consultations with the appropriate public agencies, various private
sectors, and local government units, recommend to Congress, and
implement continuing integrated and coordinated programs and policies
for national development. Until the Congress provides otherwise, the
National Economic and Development Authority shall function as the
independent planning agency of the government. 36
Article XII, Sec. 21. Foreign loans may only be incurred in accordance
with law and the regulation of the monetary authority. Information on
foreign loans obtained or guaranteed by the Government shall be made
available to the public. 37
Article XII, Sec. 22. Acts which circumvent or negate any of the
provisions of this Article shall be considered inimical to the national
interest and subject to criminal and civil sanctions, as may be provided
by law. 38 14 F. Supp. 230, 299 U.S. 304 (1936). 39 G.R. No. 170516, promulgated July 16, 2008. 40 Supra note 14. 41Senate Select Committee on Presidential CampaignActivities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). 42 TSN, Oral Argument, March 4, 2008, pp. 417 - 422. 43Supra, note 41 at pp. 725, 731-32. 44Senate Select Committee on Presidential CampaignActivities v. Nixon
held that Congress’ "asserted power to investigate and inform" was,
standing alone, insufficient to overcome a claim of privilege and so
refused to enforce the congressional subpoena. Id. 45G.R. No. 89914, November 20, 1991, 203 SCRA 767. 46 Id., at p. 776. 47 Id., at p. 783. 48 The dialogue between petitioner and Senator Lacson is a good illustration, thus:
SEN. LACSON. Did you report the attempted bribe offer to the President?
MR. NERI. I mentioned it to the President, Your Honor.
SEN. LACSON: What did she tell you?
MR. NERI. She told me, ‘Don’t accept it."
SEN. LACSON. And then, that’s it?
MR. NERI. Yeah, because we had other things to discuss during that time.
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.
SEN. LACSON. Hindi nga. Papaano ninyo ni-report, ‘Inoperan (offer) ako ng bribe na P200 million ni Chairman Abalos or what? How did you report it to her?
MR.NERI. Well, I said, ‘Chairman Abalos offered me 200 million for this.’
SEN. LACSON. Okay. That clear?
MR. NERI. I’m sorry.
SEN. LACSON. That clear?
MR. NERI. I think so, Your Honor.
SEN. LACSON. And after she told you. ‘Do not accept it,’ what did she do?
MR. NERI. I don’t know anymore, Your Honor, but I understand PAGC investigated it or-I was not privy to any action of PAGC.
SEN. LACSON. You are not privy to any recommendation submitted by PAGC? MR. NERI. No, Your Honor.
SEN. LACSON. How did she react, was she shocked also like you or was it just casually responded to as, "Don’t accept."
MR. NERI. It was over the phone, Your Honor, so I cannot see her facial expression.
SEN. LACSON. Did it have something to do with your change of heart so
to speak - your attitude towards the NBN project as proposed by ZTE?
MR. NERI. Can you clarify, Your Honor, I don’t understand the change of heart.
SEN. LACSON. Because, on March 26 and even on November 21, as early
as November 21, 2006 during the NEDA Board Cabinet Meeting, you were in
agreement with the President that it should be "pay as you use" and not
take or pay. There should be no government subsidy and it should be BOT
or BOO or any similar scheme and you were in agreement, you were not
arguing. The President was not arguing with you, you were not arguing
with the President, so you were in agreement and all of a sudden nauwi
tayo doon sa lahat ng --- and proposal all in violation of the
President’s Guidelines and in violation of what you thought of the
MR. NERI. Well, we defer to the implementing agency’s choice as to how to implement the project.49 Watkins v. United States, 354 U.S. 178 (1957). 50 360 U.A. 109, 3 L Ed. 2d 1115, 69 S CT 1081 (1959). 51 Article XI, Section 13, par.1 of the Constitution. 52 487 F. 2d 700. 53
Professor Christopher Schroeder (then with the Clinton Justice
Department), for example, labeled some of Congress’s investigations as
no more than "vendetta oversight" or "oversight that seems primarily
interested in bringing someone down, usually someone close to the
President or perhaps the President himself." Theodore Olson (the former
Solicitor General in the Bush Justice Department), in turn, has argued
that oversight has been used improperly by Congress to influence
decision making of executive branch officials in a way that undercuts
the President’s power to assure that laws are faithfully executed.
(Marshall, The Limits on Congress’ Authority to Investigate the
President, Marshall-Illinois.Doc, November 24, 2004.) 54 103 U.S. 168 (1880). 55 Kenan Professor of Law, University of North Carolina. 56G.R. No. 127255, August 14, 1997, 277 SCRA 268. 57 Transcript of the January 30, 2008 proceedings pp. 5-7. 58 TSN, March 4, 2008, at pp. 529-530. 59 Section 24, Rules of Procedure Governing Inquiries in Aid of Legislation.