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LEGISLATURE

NERI v. Senate
G.R. # 180643 | 25 Mar. 2008 (Main Decision); 4 Sept. 2008 (MR Decision) | J. Leonardo-De Castro

Petitioner: Romulo 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

Doctrine:
The elements of presidential communications privilege, to wit:
(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; and
(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.

A formal and proper claim of executive privilege requires a "precise and certain reason" for preserving
their confidentiality.

NATURE
Petition for certiorari under Rule 65 assailing the show-cause letter and contempt order issued by the
respondent Senate Committees against petitioner Neri, former NEDA Director General

CASE SUMMARY
Petitioner Neri appeared before the respondent Senate Committees and testified on matters concerning
the NBN Project wherein he disclosed of an attempted bribery attempt by then COMELEC Chairman
Abalos and that this attempt was made known to PGMA, who instructed him not to accept the bribe.
However, petitioner refused to answer further questions relating to his discussions with PGMA relating to
the NBN project, invoking executive privilege. After not appearing on subsequent hearings, he was cited
in contempt and was ordered to be arrested and detained.

Petitioner filed a petition assailing the Order which the Supreme Court granted. Respondent filed an MR.
The SC dismissed the MR and held that the communications elicited by the three questions are covered
by executive privilege, and that the respondents committed grave abuse of discretion in issuing the
contempt order.

FACTS
 On Sept. 26, 2007, Neri appeared before respondent Committees and testified on matters concerning
the National Broadband Project (NBN Project) awarded by the DOTC to Zhong Xing
Telecommunications Equipment (ZTE).
o Petitioner disclosed that then COMELEC Chairman Abalos offered him P200 million in
exchange for his approval of the NBN Project.
o He further narrated that he informed President GMA of the bribery attempt and that she
instructed him not to accept the bribe.
o However, when probed further on his discussions with PGMA relating to the NBN Project,
petitioner refused to answer, invoking executive privilege

 Petitioner refused to answer these three questions:

(1) Whether the President followed up with Neri on the (NBN) project?
(2) Whether the President dictated Neri to prioritize the ZTE?

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(3) Whether the President told Neri to go ahead and approve the project after being told about
the alleged bribe?
 Respondent Committees persisted in knowing petitioner’s answers by requiring him to appear and
testify again.
o Executive Secretary Ermita wrote to respondents and requested them to dispense with
petitioner’s testimony on the ground of executive privilege.

 On the date of hearing, petitioner did not appear before respondent Committees upon orders of the
President invoking executive privilege.

 Petitioner was cited in contempt of respondent Committees and his arrest and detention was ordered
(on Jan. 30, 2008) until such time that he would appear and give his testimony.

 Petitioner filed the petition for certiorari asking the Supreme 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 2006 case of Senate v. Ermita.

 For their 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.

MAIN DECISION
ISSUES + HELD
ISSUE #1: W/N the communications elicited are covered by executive privilege - YES

Senate v. Ermita draws in bold strokes the distinction between the legislative (Section 21, Art VI) and
oversight (Section 22, Art VI) powers of Congress
 This case cautions that while the provisions are closely-related, they should not be considered as
pertaining to the same power
 Section 21 is the power to conduct inquiries in aid of legislation (Congress cannot legislate wisely
in the absence of information respecting the conditions which the legislation is intended to affect
or change)
 Section 22 is the power to conduct a question hour in pursuit of Congress’ oversight function
 Thus, unlike in Section 21, Congress cannot compel the appearance of executive officials under
Section 22
 To quote Senate v. Ermita, “Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in which Congress
requires their appearance is 'in aid of legislation' under Section 21, the appearance is mandatory
for the same reasons stated in Arnault. In fine, the oversight function of Congress may be
facilitated by compulsory process only to the extent that it is performed in pursuit of legislation….”

On executive privilege
 US v. Nixon recognized a great public interest in preserving the confidentiality of conversations
that take place in the President’s performance of official functions
 In Re Sealed Case ruled that there are two types of privilege: (1) presidential communications
privilege, which pertains to materials that reflect presidential decision making and deliberations;
and (2) deliberative process privilege, which pertains to advisory opinions, recommendations, and
deliberations of executive officials
 In Re Sealed Case also discussed the characteristics of executive privilege, thus: (1) it must
relate to a quintessential and non-delegable power of the President; (2) communication must be
authored or solicited and received by a close advisor of the President or the President

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themselves, with the test being that of operational proximity; and (3) this may be overcome by a
showing of adequate need
 Applying the same to this case,
o Quintessential and non-delegable- the power to enter into executive agreement with
other countries is a quintessential power
o Operational proximity- Petitioner Neri is a close advisor since Cabinet member
o Adequate showing of a compelling need that would justify the limitation of the privilege-
no showing; thus privilege is upheld
 In Nixon v. Siraca, the focus was the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to which the material was
necessary to its fulfillment
 In any case, legislative judgments normally depend more on the predicted consequences, rather
than on precise reconstruction of past events

On whether the claim of executive privilege was properly invoked

 Formal claim of privilege was lodged in the 17 November 2007 Letter by the head of the
department which has control over the matter
 That the information sought to be disclosed might impair our diplomatic as well as economic
relations with the People's Republic of China is a precise and certain reason

ISSUE # 2: W/N responders committed GAD in issuing the Contempt Order - YES

First, there is a legitimate claim of executive privilege

Second, respondents did not comply with the requirement laid down in Senate v. Ermita that invitations
should contain the possible needed statute which prompted the inquiry
 This is a requirement under both Sections 21 and 22

Third, a reading of the transcript reveals that only a minority was present
 In order to punish a person with contempt, majority vote is necessary

Fourth, respondents violated Section 21 which requires that inquiry be in accordance with duly published
rules of procedure
 Since senatorial elections are held every three years for ½ of the senators, the composition of the
senate changes by the end of each term
 Each senate must enact a different set of rules as it may deem fit
 Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted
by the 14th Senate, are therefore, procedurally infirm

Fifth, issuance of the contempt Order is arbitrary and precipitate since they did not pass upon the claim of
executive privilege but instead dismissed the explanation as unsatisfactory

In this present crusade to “search for truth,” we should turn to the fundamental constitutional principles
which underlie our government: Legislature enacts the law, Judiciary interprets it, and Executive
implements it

DISPOSITIVE: Wherefore, the petition is hereby granted. The subject Order dated January 30, 2008,
citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and
detention, is hereby nullified. So ordered.

SEPARATE OPINION
Carpio, J. (Dissenting and Concurring)

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Executive privilege is the implied constitutional power of the President to withhold information requested
by other branches of government to protect confidentiality of internal deliberations and to encourage
candid discussions.
 Executive privilege is not absolute
 It must be weighed against other constitutionally recognized interests, i.e. (1) policy of full public
disclosure, (2) right to information, (3) accountability of public officers, (4) power of legislative
inquiry, (5) power of court to secure evidence
 Information covered by privilege remains even after the expiry of terms; it attaches to the
information and not to the person/position
 Executive privilege can be invoked only by the president, or by the Executive Secretary “by the
order of the president”
 A claim of executive privilege accompanied by sufficient specificity gives rise to a presumptive
executive privilege; while a generalized assertion of executive privilege will not give rise to
presumptive executive privilege
o The Ermita Letter merely raises a generalized assertion of executive privilege on
diplomatic matters, without specification of external evidence and circumstances
justifying such claim, and is thus insufficient to give rise to any presumptive executive
privilege
o The claim of impairment of economic relations is invalid because this is not a recognized
ground for invoking executive privilege
 Executive privilege cannot be used to conceal illegal acts
o Its invocation with respect to a bribery scandal is unjustified
 Executive privilege must be invoked after the question is asked, not before
o The 3 questions, when answered, do not disclose confidential discussions
o If follow up questions will disclose secrets, executive privilege may be claimed then

The power of inquiry is inherent in every legislative body.

 The Constitution grants Congress the power to conduct inquiries which can be so searching and
extensive in scope that it need not result in any potential legislation
 The term “inquiries in aid of legislation” pertains to: (1) inquiries to aid enactment of laws, (2)
inquiries in overseeing the implementation of laws, and (3) inquiries to expose corruption,
inefficiency, or waste
 The oversight function may be as important as the law-making function
 Aside from the purpose of the inquiry, the Constitution imposes two limitations on this power: (1)
rules of procedure must be duly published, and (2) rights of persons must be respected, i.e.
against self-incrimination, to privacy, and to due process
 The Legislature, for self-preservation, can cite in contempt and order arrest/detention of
witnesses who fail to testify/appear

On Publication of Rules
 Arnault v. Nazareno held that the Senate is a continuing body since 2/3 always continues into the
next Congress
 This is no longer true under the 1987 Constitution
 Thus, the Rules must be republished
 Failure to publish the Rules as required in Section 22 renders the Rules void and unenforceable
 Consequently, the Order is void

Conclusion
 The invocation of executive privilege is void because (1) it cannot be used to hide a crime, (2) it
lacks specificity, and (3) the 3 questions can be answered without disclosing confidential
Presidential communications
 Senate Rules are void for lack of publication
 Senate Committee’s Order is void for lack of published rules

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MR DECISION
ISSUES + HELD
ISSUE #1: W/N there is a recognized presumptive presidential communications privilege in our
legal system – YES

Respondents: The 25 March Decision reversed the “presumption that inclines heavily against executive
secrecy and in favour of disclosure” established in Senate v. Ermita

Court: Senate v. Ermita was misinterpreted

 The sentence in Senate v. Ermita is this: “Indeed, the extraordinary character of the exemptions
indicates that the presumption inclines heavily against executive secrecy & in favour of
disclosure”
 But if the decision is taken as a whole, what it really means is this that when an executive official
claims to be exempt from disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official
 In other words, just because a person is an executive department head, doesn’t mean they can
automatically be exempted from disclosure by virtue of executive privilege
 However, if the presumptive privilege of presidential communication is invoked by the President
on a matter within the domain of the executive, as it was in this case, the same should be
recognized

ISSUE #2: W/N there is basis to hold the communications covered by executive privilege – YES

Respondents: Elements of the presidential communications privilege are not present

Court: Elements are present; privilege applies

Quintessential and non-delegable

 Respondents: Not quintessential and non-delegable, since Constitution does not vest the power
to secure foreign loans in the President alone, but also in the Monetary Board (prior approval)
and Congress (reporting)
 Court: The fact that the power is subject to concurrence of another entity does not make it less
executive

Operational Proximity
 Respondents: Doctrine of operational proximity might be misconstrued to expand the scope of the
privilege between those who are operationally proximate to the President but who may have no
direct communications with her
 Court: This doctrine was laid down in In Re Sealed Case precisely to limit the scope
 Court: Official involved here is a member of the Cabinet; an alter-ego of the President and a
member of her official family
 Court: How proximate an official stands to the President will always depend on the (1) functions
and (2) the positions in the Executive’s organizational structure

Balancing of Interests
 Respondents: There is a need to balance respondents’ specific and demonstrated need and the
President’s generalized interest in confidentiality
 Court: The claim of privilege is not merely founded on a generalized interest in confidentiality, but
is invoked in relation to “diplomatic and economic relations”
 Court: Congress must not require Executive to state the reasons for the claim with such
particularity that will already compel the disclosure of the information; this is a matter of respect
for a co-equal branch
 Court: Akbayan v. Aquino upheld the privilege character of diplomatic negotiations

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People’s Right to Information

 Right to information is not absolute
 25 March Decision does not prohibit people from inquiring into the Project, but merely excludes
from inquiry the 3 questions covered by privilege
 Besides, the right involved in this case is respondents’ right to obtain information in aid of
legislation, not the right to information

ISSUE #3: W/N respondents have shown that the communications elicited are critical to the
exercise of their functions – NO

The presumption of privilege can only be overturned by a showing of compelling need for disclosure
 The Court recognizes respondents’ power to investigate in aid of legislation; but it cannot uphold
the view that when a constitutionally guaranteed privilege or right is validly invoked in the course
of the investigation, the legislative purpose can be supported by expedient mentioning of
statutes/pending bills to which their inquiry may have relevance.
 In US v Nixon, the privilege was not upheld because the need for information was in a criminal
case, thus “the allowance of privilege to withhold evidence that is demonstrably relevant in a
criminal trial would cut deeply into the guarantee of due process of law and gravely impair the
basic function of the courts”

The burden to show that the information is critical in the discharge of functions is on respondents
 The need for hard facts in crafting legislation is not the same with that for adjudicating
controversies
 The presumption in favor of Presidential communications puts the burden on the respondent to
overturn the presumption by demonstrating their specific need
 Here, only a generalized assertion that the information is pertinent was made
 Counsel failed to point to the specific need for the information, or how non-disclosure will hinder
the exercise of functions; thus the privilege prevails

On claim that disclosure is for curbing graft and corruption

 This refers to an oversight function of Congress and may even contradict their claim that their
purpose is legislative in nature
 Congress cannot assume the power reposed in prosecutorial bodies and the courts

On involvement of crime/illegality in the disclosure

Nixon v. Siriaca: “the showing required to overcome the presumption favoring confidentiality turned not on
the nature of the presidential conduct that the material might reveal but on the nature and
appropriateness of the function in the performance of which the material was sought, and the degree to
which the material was necessary”

ISSUE #4: W/N respondents committed GAD in issuing the contempt order - YES

On claim of executive privilege

 Respondents: no legitimate claim of privilege
 Court: upholds executive privilege

On requirements laid down in Senate v. Ermita

 Respondents: Requirements in Senate v. Ermita requiring subpoenas to include the subject of the
inquiry and why the inquiry is being made are not in the Constitution and are only obiter dictum
 Court: Constant exposure to congressional subpoena takes a toll on the ability of the Executive to
perform
 Court: To address this, each investigation should be tied to a clearly stated purpose; and the
burden is on the committee to articulate its need for investigation

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 The subpoena issued merely commanded Neri to “testify on matters what he knows relative to
the subject matter in inquiry”

On Internal Rules
 Respondents: Internal Rules beyond the reach of the Court
 Court: When a Constitutional requirement exists, the Court has duty to look at compliance
 Court: Judicial review is warranted because there appears to be a clear abuse of the contempt
power (contempt should be exercised by a vote of majority of all its members; the fact that it was
subsequently approved by 2/3 of the Senate when they were in session didn’t validate it)

On Publication of Rules
 Respondents: No need to republish the Rules since (1) it was already published before, and (2)
Senate is a continuing body
 Court: Senate as an institution is continuing, but the Senate of each Congress acts separately
and independently from the ones before it
 Court: The dichotomy of the continuity of the Senate as an institution and of the opposite nature
of the conduct of its business is reflected in the Rules of the Senate
 Court: Respondents have determined that its rules are intended to be valid until they are
amended or repealed; but the rules do not explicitly provide for a continued effectivity
 Court: It cannot be presumed that the Rules on legislative inquiries would continue into the next
Congress
 Court: The language of Section 21 is categorical that inquiry may be conducted with the duly
published rules; it is incumbent upon the Congress to publish these rules or otherwise make the
rules state clearly that they shall be effective in subsequent Congresses
 Court: Not all orders/proceedings conducted pursuant to the Rules are void, but only those that
result in the violation of the rights of witnesses considering that the rationale for the publication is
to protect these rights

On arbitrariness
 The contempt order was issued with haste
 Petitioner Neri was not even an unwilling witness

DISPOSITIVE: Wherefore, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is
hereby denied.

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