NERI VS.

SENATE COMMITTEE
MARCH 28, 2013 ~ VBDIAZ

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 People’s 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 People’s 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 Arroyo’s 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 petitioner’s 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.
Digest 6:VIRGILIO O. GARCILLANO vs. THE HOUSE OF REPRESENTATIVES
COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY,
NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS
TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS

G.R. No. 170338 December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC
ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS,
respondents.
x----------------------x
G.R. No. 179275 December 23, 2008
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,
vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE
PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.
x----------------------x
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention
x----------------------x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON,
PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors

Facts: During the hype of Arroyo administration, a new controversy arises. During the 2007
election the conversation of President Arroyo and the herein petitioner Virgilio Garciliano,
COMELEC regional director, regarding the desire of the president to have a favourable outcome
in terms of his senatoriables. Such conversation was recorded and was played during the
house of representative investigation. Because of such turn of events, a petition was filed
before the court praying that such playing of the illegally seized communication was in violation
of RA 4200 or the anti-wire tapping law. Also such petition for injunction prays that the Senate
committee be prevented from further conducting such investigation for the basic reason that
there was no proper publication of the senate rules, empowering them to make such
investigation of the unlawfully seized documents.

Issue: Whether or not there was proper publication of the rules as to empower the senate to
further proceed with their investigation?

Held: No, the Supreme Court mentioned the following:

The Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry
without duly published rules of procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides 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 requisite of publication
of the rules is intended to satisfy the basic requirements of due process.Publication is indeed
imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law or rule of which he had no notice whatsoever, not even a constructive
one.What constitutes publication is set forth in Article 2 of the Civil Code, which provides that
"laws shall take effect after 15 days following the completion of their publication either in the
Official Gazette, or in a newspaper of general circulation in the Philippines."

Respondents justify their non-observance of the constitutionally mandated publication by

arguing that the rules have never been amended since 1995 and, despite that, they are
published in booklet form available to anyone for free, and accessible to the public at the
Senate’s internet web page.

The Court does not agree. The absence of any amendment to the rules cannot justify the
Senate’s defiance of the clear and unambiguous language of Section 21, Article VI of the
Constitution. The organic law instructs, without more, that the Senate or its committees may
conduct inquiries in aid of legislation only in accordance with duly published rules of procedure,
and does not make any distinction whether or not these rules have undergone amendments or
revision. The constitutional mandate to publish the said rules prevails over any custom, practice
or tradition followed by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792,otherwise known as the
Electronic Commerce Act of 2000, to support their claim of valid publication through the internet
is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic
document as the functional equivalent of a written document only for evidentiary purposes.In
other words, the law merely recognizes the admissibility in evidence (for their being the original)
of electronic data messages and/or electronic documents.It does not make the internet a
medium for publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of
the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated
cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall
have caused the publication of the rules, because it can do so only "in accordance with its duly
published rules of procedure."

Indeed the inquiry to be conducted by the senate in aid of legislation cannot proceed for the
reason that the rules that they will observe was not properly published as provided by the
Fundamental Law of the land. Such inquiry if allowed without observance of the required
publication will put a person’s life, liberty and property at stake without due process of
law. Also, the further assertion of the senate that they already published such rules through
their web page, in observance of the RA 8792 or the Electronic Commerce Act was only viewed
by the court as matter of evidence and still does not conforme with what the constitution
propounded.
In this regard the high court granted the petition for injunction preventing the senate to conduct
such inquiry in aid of legislation.
s