Neri vs. Senate Committee on Accountability of Public Officers and Investigations G.

R 174153

September 4, 2008

Leonardo-De Castro, J

SYLLABUS:

Presidency; Executive Privilege; Separation of Powers; Legislative Inquiries in Aid of Legislation;

There is a recognized presumptive presidential communications privilege; The presidential
communications privilege is fundamental to the operation of government and inextricably rooted
in the separation of powers under the Constitution.— 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, 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, 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), 299 SCRA 744 (1998) and Chavez v. PEA, 384 SCRA 152 (2002).
The Court articulated in these cases that “there are certain types of information which the
government may withhold from the public,” that there is a “governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other national security
matters;” 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.”

FACTS:

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 then informed President Arroyo of the bribery attempt, in which she instructed him not to
accept the bribe. When probed by the senate, Neri refuses to give some more information
regarding the alleged bribery going on behind the NBN Project.

When asked further regarding the conversation between Neri and President Arroyo on matters of
the NBN project, he calls for Executive Privilege. Executive Privilege is the power of the
Government to withhold information from the public, the courts, and the Congress.

The Senate issued a contempt order against Neri and directed his arrest and detention.

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Neri claim’s:

● The President is entitled to the confidentiality of her correspondences. This is necessary

for the protection of the public interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making.

● If the president is not protected by the confidentiality of conversations, it will hamper her
in the effective discharge of her duties and responsibilities. It might also impair our
economic relations with China.

Senate’s defense:

● This is a violation to the people's right to information.

● The Congress has a need to investigate the matter as it is crucial in their legislation of a
potential bill.
● They contend that their Rules of Procedure Governing Inquiries in Aid of Legislation are
beyond the reach of this Court.

ISSUE(S):

Whether or not the Legislative Branch can assert their power to conduct legislative inquiries after
respondent invoked “Executive Privilege”

RULING:
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 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.
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. 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.
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.
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

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will significantly impair the President’s performance of her function. Needless to state this is
assumed, by virtue of the presumption.
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to
the Office of the President. 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.

Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the three
elements needed to be complied with in order for the claim to executive privilege to be valid.
These are: 1.) the protected communication must relate to a quintessential and non-delegable
presidential power; 2.) it must be authored, 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; and, 3.) it 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 present case, Executive Secretary Ermita claimed executive privilege on the argument
that the communications elicited by the three 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.” It is clear then
that the basis of the claim is a matter related to the quintessential and non-delegable presidential
power of diplomacy or foreign relations.

As to the second element, the communications were received by a close advisor of the
President. Under the “operational proximity” test, petitioner Neri can be considered a close
advisor, being a member of the President’s Cabinet.

And as to the third element, 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. Presidential communications are presumptive privilege and
that the presumption can be overcome only by mere showing of public need by the branch seeking
access to such conversations. In the present case, respondent Committees failed to show a
compelling or critical need for the answers to the three questions in the enactment of any law
under Sec. 21, Art. VI. Instead, the questions veer more towards the exercise of the legislative
oversight function under Sec. 22, Art. VI. As ruled in Senate vs. Ermita, “the oversight function of
Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit
of legislation.”

Neri’s refusal to answer based on the claim of executive privilege does not violate the
people’s right to information on matters of public concern simply because Sec. 7, Art. III of the
Constitution itself provides that this right is “subject to such limitations as may be provided by
law.”

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 Note:

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 Congress. 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 Constitution.

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.

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." 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.

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