Neri vs. Senate Committee on Accountability of Public Officers G.R. No.

180643, March 25,

2008

Petitioner: Romulo L. Neri

Respondents: Senate Committee on Accountability of Public Officers and Investigations, Senate

Committee on Trade and Commerce, and Senate Committee on National Defense and Security

Facts:

Petitioner Romulo Neri, then Director General of the National Economic and Development
Authority (NEDA), was invited by the respondent Senate Committees to attend their joint
investigation on the alleged anomalies in the National Broadband Network (NBN) Project. This
project was contracted by the Philippine Government with the Chinese firm Zhong Xing
Telecommunications Equipment (ZTE), which involved the amount of US$329,481,290. When
he testified before the Senate Committees, he disclosed that then Commission on Elections
Chairman Benjamin Abalos, brokering for ZTE, offered him P200 million in exchange for his
approval of the NBN Project. He further narrated that he informed President Gloria Macapagal-
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 1.)
whether or not the President followed up the NBN Project, 2.) whether or not she directed him to
prioritize it, and 3.) whether or not she directed him to approve it.

Later on, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring

him to appear and testify on 20 November 2007. However, Executive Secretary Eduardo Ermita
sent a letter dated 15 November to the Committees requesting them to dispense with Neri’s
testimony on the ground of executive privilege. Ermita invoked the privilege on the ground that
“the information sought to be disclosed might impair our diplomatic as well as economic
relations with the People’s Republic of China,” and given the confidential nature in which these
information were conveyed to the President, Neri “cannot provide the Committee any further
details of these conversations, without disclosing the very thing the privilege is designed to
protect.” Thus, on 20 November, Neri did not appear before the respondent Committees.

On 22 November, respondents issued a Show Cause Letter to Neri requiring him to show cause
why he should not be cited for contempt for his failure to attend the scheduled hearing on 20
November. On 29 November, Neri replied to the Show Cause Letter and explained that he did
not intend to snub the Senate hearing, and requested that if there be new matters that were not
yet taken up during his first appearance, he be informed in advance so he can prepare himself.
He added that his non-appearance was upon the order of the President, and that his
conversation with her dealt with delicate and sensitive national security and diplomatic matters
relating to the impact of the bribery scandal involving high government officials and the possible
loss of confidence of foreign investors and lenders in the Philippines. Respondents found the
explanation unsatisfactory, and later on issued an Order citing Neri in contempt and
consequently ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms
until he appears and gives his testimony.

Neri filed the petition asking the Court to nullify both the Show Cause Letter and the Contempt
Order for having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction, and stressed that his refusal to answer the three questions was anchored on a valid
claim to executive privilege in accordance with the ruling in the landmark case of Senate vs.
Ermita (G.R. No. 169777, 20 April 2006). For its part, the Senate Committees argued that they
did not exceed their authority in issuing the assailed orders because there is no valid
justification for Neri’s claim to executive privilege. In addition, they claimed that the refusal of
petitioner to answer the three questions violates the people’s right to public information, and that
the executive is using the concept of executive privilege as a means to conceal the criminal act
of bribery in the highest levels of government.

Issue:

Whether or not the three questions that petitioner Neri refused to answer were covered by
executive privilege, making the arrest order issued by the respondent Senate Committees void.

Discussion:

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.”

Held:

The divided Supreme Court (voting 9-6) was convinced that the three questions are covered by
presidential communications privilege, and that this privilege has been validly claimed by the
executive department, enough to shield petitioner Neri from any arrest order the Senate may
issue against him for not answering such questions.

The petition was granted. The subject Order dated January 30, 2008, citing petitioner in
contempt of the Senate Committee and directing his arrest and detention was nullified.