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Published by Jaime Gamiao

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Published by: Jaime Gamiao on Oct 24, 2012
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Primer on the SC Decision in Neri vs.Senate Committee
April 3, 2008 in CuRReNT IsSues 
Primer on the Supreme Court Decision inNeri vs. Senate Committee and its Implications
What is the case of Neri vs. Senate Committee?This case is about the Senate investigation of anomalies concerningthe NBN-ZTE project. During the hearings, former NEDA head Romulo Neri refused to answer certain questions involving his conversationswith President Arroyo on the ground they are covered by executive privilege. When the Senate cited him in contempt and ordered hisarrest, Neri filed a case against the Senate with the Supreme Court.On March 25, 2008, the Supreme Court ruled in favor of Neri andupheld the claim of executive privilege.
What is “executive privilege”?
It is the right of the President and high-level executive branchofficials to withhold information from Congress, the courts and the public. It is a privilege of confidentiality which applies tocertain types of information of a sensitive character that would beagainst the public interest to disclose. Executive privilege is based on the constitution because it relates to the President’seffective discharge of executive powers. Its ultimate end is to promote public interest and no other.
 Is executive privilege absolute?
 No. Any claim of executive privilege must be weighed against other interests recognized by the constitution, like the state policy of full public disclosure of all transactions involving public interest,the right of the people to information on matters of public concern,the accountability of public officers, the power of legislativeinquiry, and the judicial power to secure evidence in deciding cases.
 Did the revocation by the President of E.O. 464 on March 6, 2008diminish the concept of executive privilege?
 No. Executive privilege may still be invoked despite the President’srevocation of E.O. 464 because it is based on the constitution.
What events led to the filing of the case before the Supreme Court?
On April 21, 2007, the DOTC and Zhing Xing TelecommunicationsEquipment (ZTE), a corporation owned by the People’s Republic of China, executed a “Contract for the Supply of Equipment and Servicesfor the National Broadband Network Project” (NBN-ZTE Contract) worthUS$329,481,290.00 (around PhP 16B). The project sought to providelandline, cellular and internet services in government officesnationwide and was to be financed through a loan by China to thePhilippines. President Arroyo witnessed the contract signing inChina.After its signing, reports of anomalies concerning the project (e.g., bribery, “overpricing” by US$ 130M, “kickback commissions” involvingtop government officials, and loss of the contract) prompted theSenate, through the Committees on Accountability of Public Officersand Investigations (Blue Ribbon), Trade and Commerce, and NationalDefense and Security, to conduct an inquiry in aid of legislation.The inquiry was based on a number of Senate resolutions and inconnection with pending bills concerning funding in the procurementof government projects, contracting of loans as developmentassistance, and Senate concurrence to executive agreements.In one of the hearings held on Sept. 26, 2007, former NEDA Director General Romulo Neri testified that President Arroyo initially gaveinstructions for the project to be undertaken on a Build-Operate-Transfer (BOT) arrangement so the government would not spend moneyfor it, but eventually the project was awarded to ZTE with agovernment-to-government loan from China. He also said that thenCOMELEC Chairman Benjamin Abalos, the alleged broker in the project,offered him PhP 200M in exchange for NEDA’s approval of the project. Neri testified that when he told President Arroyo of the bribe offer,she told him not to accept it. But Neri refused to answer questionsabout what he and the President discussed after that, invokingexecutive privilege since they concerned his conversations with thePresident. The Senate required him to appear again and testify on November 20, 2007. On November 15, 2007, Executive Secretary EduardoErmita wrote the Senate Committees and asked that Neri’s testimony on November 20, 2007 be dispensed with because he was invoking executive privilege “by Order of the President” specifically on the followingquestions:a. Whether the President followed up on the NBN project? b. Were you dictated to prioritize the ZTE?c. Whether the President said to go ahead and approve the project after being told about the alleged bribe?When Neri failed to appear on November 20, 2007, the Senate requiredhim to show cause why he should not be cited in contempt. Neriexplained that he thought the only remaining questions were those heclaimed to be covered by executive privilege and that should there benew matters to be taken up, he asked that he be informed in advanceof what else he needs to clarify so he could prepare himself.
On Dec. 7, 2007, Neri questioned the validity of the Senate’s showcause order before the Supreme Court. On January 30, 2008, theSenate cited Neri in contempt and ordered his arrest for his failureto appear in the Senate hearings. On February 1, 2008, Neri asked theSupreme Court to stop the Senate from implementing its contemptorder, which the Court granted on Feb. 5, 2008. The Supreme Courtalso required the parties to observe the status quo prevailing beforethe issuance of the contempt order.What reasons were given for the claim of executive privilege?Executive Secretary Ermita said that “the context in which executive privilege is being invoked is that the information sought to bedisclosed might impair our diplomatic as well as economic relationswith the People’s Republic of China.” Neri further added thathis “conversations with the President dealt with delicate andsensitive national security and diplomatic matters relating to theimpact of the bribery scandal involving high government officials andthe possible loss of confidence of foreign investors and lenders inthe Philippines.”
What issues were considered by the Supreme Court in resolving thecase?
The Supreme Court said there were two crucial questions at the coreof the controversy:a. Are the communications sought to be elicited by the threequestions covered by executive privilege? b. Did the Senate Committees commit grave abuse of discretion inciting Neri in contempt and ordering his arrest?How did the Supreme Court resolve these issues?The Supreme Court first recognized the power of Congress to conductinquiries in aid of legislation. The Court said that the power extends even to executive officials and the only way for them to beexempted is through a valid claim of executive privilege.On the first question, the Supreme Court said that the communicationssought to be elicited by the three questions are covered by the presidential communications privilege, which is one type of executive privilege. Hence, the Senate cannot compel Neri to answer the threequestions.On the second question, the Supreme Court said that the SenateCommittees committed grave abuse of discretion in citing Neri incontempt. Hence, the Senate order citing Neri in contempt andordering his arrest was not valid.What are the types of executive privilege?

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