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NEri vs. Senate

NEri vs. Senate

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Published by: Jamil143 on Aug 31, 2010
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Primer on the Supreme Court Decision inNeri vs. Senate Committee and its Implications
IN GENERAL:
What is the case of Neri vs. Senate Committee?
 This case is about the Senate investigation of anomaliesconcerning the NBN-ZTE project. During the hearings,former NEDA head Romulo Neri refused to answer certain questions involving his conversations withPresident Arroyo on the ground they are covered byexecutive privilege. When the Senate cited him incontempt and ordered his arrest, Neri filed a caseagainst the Senate with the Supreme Court. On March25, 2008, the Supreme Court ruled in favor of Neri andupheld the claim of executive privilege.
What 
is ³execu 
ive privilege´? 
 
It is the right of the President and high-level executivebranch officials to withhold information from Congress,the courts and the public. It is a privilege of confidentiality which applies to certain types of information of a sensitive character that would beagainst the public interest to disclose. Executiveprivilege is based on the constitution because it relatesto the President¶s effective discharge of executivepowers. Its ultimate end is to promote public interest andno other.
Is execu 
ive privilege
ab
solu 
e? 
 
No. Any claim of executive privilege must be weighedagainst other interests recognized by the constitution,like the state policy of full public disclosure of alltransactions involving public interest, the right of thepeople to information on matters of public concern, theaccountability of public officers, the power of legislativeinquiry, and the judicial power to secure evidence indeciding cases.
D
id 
th
e revoc 
at 
ion
by 
 
th
e Presiden
of E.O. 464 on
a
rc 
h
6, 2008 diminis
h
 
th
e concep
of execu 
ive privilege? 
 
No. Executive privilege may still be invoked despite thePresident¶s revocation of E.O. 464 because it is basedon the constitution.
ON THE CONTENTS OF THE SUPREME COURT DECISION:
What 
even
s led 
o
th
e filing of 
th
e c 
a
se
b
efore
th
eSupreme Cour 
 On April 21, 2007, the DOTC and
Z
hing XingTelecommunications Equipment (
Z
TE),
a corporationowned by the People¶s Republic of China, executed a³Contract for the Supply of Equipment and Services for the National Broadband Network Project´ (NBN-ZTEContract) worth
US$329,481,290.00 (around PhP 16B).
The project sought to provide landline, cellular andinternet services in government offices nationwide andwas to be financed through a loan by China to thePhilippines. President Arroyo witnessed the contractsigning in China. After its signing, reports of anomalies concerning theproject (e.g., bribery, ³overpricing´ by US$ 130M,³kickback commissions´ involving top governmentofficials, and loss of the contract) prompted the Senate,through the Committees on Accountability of PublicOfficers and Investigations (Blue Ribbon), Trade andCommerce, and National Defense and Security, toconduct an inquiry in aid of legislation.The inquiry was based on a number of Senateresolutions and inconnection with pending bills concerning funding in theprocurement of government projects, contracting of loans as development assistance, and Senateconcurrence to executive agreements.In one of the hearings held on Sept. 26, 2007, former NEDA Director General Romulo Neri testified thatPresident Arroyo initially gave instructions for the projectto 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 witha government-to-government loan from China. He alsosaid that then COMELEC Chairman Benjamin Abalos,the alleged broker in the project, offered him PhP 200Min exchange for NEDA¶s approval of the project.Neri testified that when he told President Arroyo of thebribe offer, she told him not to accept it. But Neri refusedto answer questions about what he and the Presidentdiscussed after that, invoking executive privilege sincethey concerned his conversations with the President.The Senate required him to appear again and testify onNovember 20, 2007. On November 15, 2007, ExecutiveSecretary Eduardo Ermita wrote the Senate Committeesand asked that Neri¶s testimony on November 20, 2007be dispensed with because he was invoking executiveprivilege ³by Order of the President´ specifically on thefollowingquestions:
a
.
 
Wh
e
th
er 
th
e Presiden
followed up on
th
e NBN  projec 
b
.
ere
ou dic 
tat 
ed 
o priori 
ize
th
e ZTE? c.
Wh
e
th
er 
th
e Presiden
s
a
id 
o go
ah
e
a
a
nd 
a
 pprove
th
e projec 
 
a
er 
b
eing 
old 
ab
ou 
 
th
e
a
lleged 
b
ri 
b
e? 
 
When Neri failed to appear on November 20, 2007, theSenate required him to show cause why he should notbe cited in contempt. Neri explained that he thought theonly remaining questions were those he claimed to becovered by executive privilege and that should there benew matters to be taken up, he asked that he be
 
informed in advance of what else he needs to clarify sohe could prepare himself.On Dec. 7, 2007, Neri questioned the validity of theSenate¶s show cause order before the Supreme Court.On January 30, 2008, the Senate cited Neri in contemptand ordered his arrest for his failure to appear in theSenate hearings. On February 1, 2008, Neri asked theSupreme Court to stop the Senate from implementing itscontempt order, which the Court granted on Feb. 5,2008. The Supreme Court also required the parties toobserve the status quo prevailing beforethe issuance of the contempt order.
What 
re
a
sons were given for 
th
e cl 
a
im of execu 
ive privilege? 
 Executive Secretary Ermita said that ³the context inwhich executive privilege is being invoked is that theinformation sought to be disclosed might impair our diplomatic as well as economic relations with thePeople¶s Republic of China.´ Neri further added that his³conversations with the President dealt with delicate andsensitive national security and diplomatic mattersrelating to the impact of the bribery scandal involvinghigh government officials and the possible loss of confidence of foreign investors and lenders in thePhilippines.´
What 
issues were considered 
by 
 
th
e Supreme Cour 
 in resolving 
th
e c 
a
se? 
 
The Supreme Court said there were two crucialquestions at the core of the controversy:a. Are the communications sought to be elicited by thethreequestions covered by executive privilege?b. Did the Senate Committees commit grave abuse of discretion in citing Neri in contempt and ordering hisarrest?How did the Supreme Court resolve these issues?The Supreme Court first recognized the power of Congress to conduct inquiries in aid of legislation. TheCourt said that the power extends even to executiveofficials and the only way for them to be exempted isthrough a valid claim of executive privilege.On the first question, the Supreme Court said that thecommunications sought to be elicited by the threequestions are covered by the presidentialcommunications privilege, which is one type of executiveprivilege. Hence, the Senate cannot compel Neri toanswer the three questions.On the second question, the Supreme Court said thatthe Senate Committees committed grave abuse of discretion in citing Neri in contempt. Hence, the Senateorder citing Neri in contempt and ordering his arrest wasnot valid.
What 
 
a
re
th
e
ty 
 pes of execu 
ive privilege? 
 a. state secrets (regarding military, diplomatic and other security matters)b. identity of government informersc. information related to pending investigationsd. presidential communicationse. deliberative process
In w 
hat 
a
ses is
th
e cl 
a
im of execu 
ive privilege
h
ig 
h
recognized? 
 The claim of executive privilege is highly recognized incases where the subject of inquiry relates to a power textually committed by the constitution to the President,such as the commander-in-chief, appointing, pardoning,and diplomatic powers of the President. Informationrelating to these powers may enjoy greater confidentiality than others.
What 
specific 
a
ll 
 
a
re
th
e execu 
ive privilegesrel 
at 
ing 
o deli 
b
er 
at 
ions or communic 
at 
ions of 
th
ePresiden
 
a
nd o
th
er governmen
offici 
a
ls? 
 
These are the presidential communications privilege andthe deliberative process privilege.
ow 
a
re
th
e presiden
a
l communic 
at 
ions privilege
a
nd 
th
e deli 
b
er 
at 
ive process privilegedis
inguis
h
ed? 
 The presidential communications privilege applies todecision-making of the President. It pertains to³communications, documents or other materials thatreflect presidential decision-making and deliberationsand that the President believes should remainconfidential´.The deliberative process privilege applies to decision-making of executive officials. It includes ³advisoryopinions, recommendations and deliberationscomprising part of a process by which governmentaldecisions and policies are formulated.´Unlike the deliberative process privilege, the presidentialcommunications privilege applies to documents in their entirety, and covers final and post-decisional materialsas well as pre- deliberative ones.Moreover, congressional or judicial negation of thepresidential communications privilege is always subjectto greater scrutiny than denial of the deliberative processprivilege.
What 
is
th
e
ty 
 pe of execu 
ive privilege cl 
a
imed in
th
is c 
a
se? 
The type of executive privilege claimed in this case is thepresidential communications privilege.
 
Is
th
ere
a
presump
ion in f 
a
vor of presiden
a
communic 
at 
ions? 
 Yes. Presidential communications are ³presumptivelyprivileged´.The presumption is based on the President¶sgeneralized interest in confidentiality. The privilege isnecessary to guarantee the candor of presidentialadvisors and to provide the President and those whoassist him with freedom to explore alternatives in theprocess of shaping policies and making decisions and todo so in a way many would be unwilling to expressexcept privately.The presumption can be overcome only by mereshowing of public needby the branch seeking access topresidential communications.
Wh
o
a
re covered 
by 
 
th
e presiden
a
communic 
at 
ions privilege? 
 
 Aside from the President, the presidentialcommunications privilege covers senior presidentialadvisors or Malacanang staff who have ³operationalproximity´ to direct presidential decision-making.
What 
 
a
re
th
e elemen
s of 
th
e presiden
a
communic 
at 
ions privilege? 
The following are the elements of the presidentialcommunicationsprivilege:
 
a. The protected communication must relate to a³quintessentialand non-delegable presidential power´.b. The communication must be authored or ³solicitedand received´ by a close advisor of the President or thePresident himself. The advisor must be in ³operationalproximity´ with the President.c. The privilege is a qualified privilege that may beovercome by a showing of adequate or compelling needthat would justify the limitation of the privilege and thatthe information sought is unavailable elsewhere by anappropriate investigating agency.
What 
 
a
re ex 
a
mples of ³quin
essen
a
a
nd non- deleg 
ab
le presiden
a
l powers´ w 
h
ic 
h
 
a
re covered 
by 
 
th
e presiden
a
l communic 
at 
ions privilege? 
 
The privilege covers only those functions which form thecore of presidential authority. These are functions which involve³quintessential and non-delegable presidential powers´such as the powers of the president as commander-in-chief (i.e., to callout the armed forces to suppress violence, to declaremartial law, or to suspend the privilege of the writ of habeas corpus), the power to appoint officials andremove them, the power to grant pardons and reprieves,the power to receive ambassadors, and the power tonegotiate treaties and to enter into execute agreements.
 Are
th
e elemen
s of 
th
e presiden
a
l communic 
at 
ions privilege presen
in
th
is c 
a
se? 
 
Yes. The communications elicited by the three questionsare covered by the presidential communications privilegebecause:a. First, the communications relate to the power of thePresident to enter into an executive agreement withother countries.b. Second, the communications are received by Neri,who as aCabinet member can be considered a close advisor of the President.c. Third, the Senate Committees have not adequatelyshown acompelling need for the answers to the three questionsin theenactment of a law and of the unavailability of theinformationelsewhere by an appropriate investigating authority.
D
oes
th
e gr 
a
n
of 
th
e cl 
a
im of execu 
ive privilegeviol 
at 
e
th
e rig 
ht 
of 
th
e people
o inform
at 
ion onm
att 
ers of pu 
b
lic concern? 
No, for the following reasons:a. Neri appeared before the Senate on Sept. 26, 2007and wasquestioned for 11 hours. He also expressed hiswillingness to answer more questions from the Senators,except the three questions.b. The right to information is subject to limitation, such asexecutive privilege.c. The right of Congress to obtain information in aid of legislation cannot be equated with the people¶s right toinformation. Congress cannot claim that every legislativeinquiry isan exercise of the people¶s right to information.
Was
the cl 
aim
of execut 
iv 
e pr 
ivi 
lege properly 
inv 
oked by thePre
si 
de
n
in
th
is
as
e?
Yes. For the claim to be properly invoked, there must bea formalclaim by the President stating the ³precise and certainreason´ for preserving confidentiality. The grounds relied upon byExecutiveSecretary Ermita are specific enough, since what isrequired is only that an allegation be made ³whether theinformation demanded involves military or diplomaticsecrets, closed-door Cabinet meetings, etc.´The particular ground must only be specified, and thefollowingstatement of grounds by Executive Secretary Ermitasatisfies therequirement: ³The context in which executive privilege isbeing

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