NERI VS.

SENATE COMMITTEE
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
G.R. No. 180643, March 25, 2008
FACTS: On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong Xing
Telecommunications Equipment (ZTE) for the supply of equipment
and services for the National Broadband Network (NBN) Project in
the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos).
The Project was to be financed by the Peoples Republic of China.
The Senate passed various resolutions relative to the NBN deal. In
the September 18, 2007 hearing Jose de Venecia III testified that
several high executive officials and power brokers were using their
influence to push the approval of the NBN Project by the NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate
Blue Ribbon. He appeared in one hearing wherein he was
interrogated for 11 hrs and during which he admitted that Abalos of
COMELEC tried to bribe him with P200M in exchange for his approval
of the NBN project. He further narrated that he informed President
Arroyo about the bribery attempt and that she instructed him not to
accept the bribe.
However, when probed further on what they discussed about the
NBN Project, petitioner refused to answer, invoking executive
privilege. In particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.

He later refused to attend the other hearings and Ermita sent a

letter to the senate averring that the communications between GMA
and Neri are privileged and that the jurisprudence laid down in
Senate vs Ermita be applied. He was cited in contempt of
respondent committees and an order for his arrest and detention
until such time that he would appear and give his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions
covered by executive privilege?
HELD:
The communications are covered by executive privilege
The revocation of EO 464 (advised executive officials and employees
to follow and abide by the Constitution, existing laws and
jurisprudence, including, among others, the case of Senate v. Ermita
when they are invited to legislative inquiries in aid of legislation.),
does not in any way diminish the concept of executive privilege. This
is because this concept has Constitutional underpinnings.
The claim of executive privilege is highly recognized in cases where
the subject of inquiry relates to a power textually committed by the
Constitution to the President, such as the area of military and
foreign relations. Under our Constitution, the President is the
repository of the commander-in-chief, appointing, pardoning, and
diplomatic powers. Consistent with the doctrine of separation of
powers, the information relating to these powers may enjoy greater
confidentiality than others.
Several jurisprudence cited provide the elements of presidential
communications privilege:
1) The protected communication must relate to a quintessential

and non-delegable presidential power.

2) The communication must be authored or solicited and received
by a close advisor of the President or the President himself. The
judicial test is that an advisor must be in operational proximity
with the President.
3) The presidential communications privilege remains a qualified
privilege that may be overcome by a showing of adequate need,
such that the information sought likely contains important
evidence and by the unavailability of the information elsewhere by
an appropriate investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of
executive privilege on the ground that the communications elicited
by the three (3) questions fall under conversation and
correspondence between the President and public officials
necessary in her executive and policy decision-making process
and, that the information sought to be disclosed might impair our
diplomatic as well as economic relations with the Peoples Republic
of China. Simply put, the bases are presidential communications
privilege and executive privilege on matters relating to diplomacy or
foreign relations.
Using the above elements, we are convinced that, indeed, the
communications elicited by the three (3) questions are covered by
the presidential communications privilege. First, the communications
relate to a quintessential and non-delegable power of the
President, i.e. the power to enter into an executive agreement with
other countries. This authority of the President to enter into
executive agreements without the concurrence of the Legislature
has traditionally been recognized in Philippine jurisprudence.

Second, the communications are received by a close advisor of the

President. Under the operational proximity test, petitioner can be
considered a close advisor, being a member of President Arroyos
cabinet. And third, 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.
Respondent Committees further contend that the grant of
petitioners claim of executive privilege violates the constitutional
provisions on the right of the people to information on matters of
public concern.50 We might have agreed with such contention if
petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing, where
he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the
Senators, with the exception only of those covered by his claim of
executive privilege.
The right to public information, like any other right, is subject to
limitation. Section 7 of Article III provides:
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 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.