Case Digest Neri v Senate Committee (March)

Neri vs. Senate Committee on Accountability of Public Officers and Investigations Ponente: Leonardo-De Castro, J. Petition for Certiorari assailing the Show Cause Letter (Nov. 22, 2007) and Contempt Order (Jan. 30, 2008) issued by respondent Senate Committee against petitioner Neri (former Director General of NEDA) April 21, 2007 – DOTC entered into a contract with ZTE for the supply of equipment and services for the NBN Project amounting to P16 Billion. The project was to be financed by the People’s Republic of China Petitioner was summoned by respondents to appear and testify in the investigation on the NBN Project on a number of dates, however, he attended only on the Sept. 26 hearing. Sept. 18, 2007 – businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the Project  initially approved as a Build-Operate-Transfer project, but on March 29, 2007, NEDA acquiesced to convert it into a government-to-government project to be financed through a loan from the Chinese government. Sept. 26, 2007 – petitioner testified before respondent Committees for 11 hours. He disclosed that COMELEC Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the project, and he informed President Arroyo about the bribery attempt. When probed further on what they discussed, petitioner refused to answer 3 questions, invoking “executive privilege”: - WON President Arroyo followed up the NBN Project - WON she directed him to prioritize it - WON she directed him to approve Respondents issued a Subpoena Ad Testificandum, requiring petitioner to appear and testify on Nov. 20, 2007. However, a Letter (Nov. 15, 2007) by Executive Secretary Ermita requested respondents to dispense with petitioner’s testimony on the ground of “executive privilege” that covers above questions, maintaining that the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process and for the protection of the public interest – disclosure of information might impair our diplomatic and economic relations with China.

Nov. 22, 2007 – respondents issued the Show Cause Letter requiring him to explain why he should not be cited in contempt. On Nov. 29, petitioner replied that it was not his intention to ignore the hearing and he thought the only remaining questions were those he claimed to be covered by executive privilege. He further requested to be furnished in advance as to what else he needs to clarify. In a letter by his counsel, it was stated that it was upon the order of the President that he did not appear, and that the conversation with the president dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal. Jan. 30, 2008 – respondents found petitioner’s explanations unsatisfactory, and without responding to his reply, issued the Order citing him in contempt and ordering his arrest and detention at the Office of the Senate Sergeant-AtArms until he gives his testimony. The parties were directed to manifest to the Court if they were amenable to the Court’s proposal of allowing petitioner to immediately resume his testimony before the respondents to answer other questions without prejudice to the decisions on the merits of this petition  Senate disagreed. OSG – Motion for Leave to Intervene: - Communications between petitioner and President are covered by the executive privilege. - Petitioner was not summoned by respondent in accordance with the power to inquiries in aid of legislation as laid down in Sec. 21, Art. 6, Constitution and Senate v. Ermita March 6, 2008 – President Arroyo issued Memorandum Ciruclar No. 151, revoking EO 464 and Memorandum Circular N. 108, advising officials and employees to abide by the Consitution, existing laws and jurisprudence (Senate v. Ermita) when they are invited to legislative inquiries in aid of legislation. *Sec. 21, Art. 6 of Constitution – Legislative powers of Congress – relates to the power to conduct inquiries in aid of legislation – aim is to elicit information that may be used for legislation – can compel the appearance of executive officials *Sec. 22, Art. 6 of Constitution – Oversight powers of Congress – relates to the power to conduct a question hour – to obtain information in pursuit of Congress’ oversight function – cannot compel the appearance of executive officials *Principle of Separation of Powers

- executive branch cannot frustrate power of Congress to legislate by refusing to comply with its demands of information - power of judicial review is available – right of Congress to conduct inquiries in aid of legislation is susceptible to abuse  subject to certiorari (Sec. 1, Art. 8, Constitution)

military/state secrets, identity of government informers, information related to pending information and foreign relations. Chavez v. PCGG – secrets regarding military, diplomatic and other security matters. Chavez v. PEA – Presidential conversations, correspondences in closed-door Cabinet meetings

Issues and Ratio:

SC: Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the 3 questions fall under the conversation and correspondence between the President and public officials necessary in her executive and policy decisionmaking process – disclosure might impair diplomatic & economic relations with People’s Republic of China (Presidential Communications Privilege and Executive Privilege on matters relating to Diplomacy or Foreign Relations) - communications relate to a “quintessential and non-delegable power (enter into an executive agreement w/ other countries w/o concurrence w/ Legislature) - communications are received by a close advisor of the President (operational proximity test – petitioner is a member of the cabinet) - no adequate showing of a compelling need that would justify the limitation of the privilege. No categorical explanation from respondents to show a compelling need for the answers to the questions, and veer more towards exercise of legislative oversight function (Sec. 22, Art. 6)

1. WON the communications elicited by the 3

questions are covered by Executive Privilege. (YES. 2 reasons)

*Power of Congress to conduct inquiries in aid of legislation – broad – legislative cannot legislate wisely/effectively in the absence of information respecting the conditions which the legislation is intended to affect/change  compulsory process to enforce it – limitations – validity: done in accordance with the Senate or House duly published rules of procedure and the rights of persons appearing/affected be respected. Such power extends to executive officials and exemption can only be through a valid claim of executive privilege. a. There is a recognized claim of executive privilege despite revocation of EO 464. Concept of executive privilege has constitutional underpinnings. US v. Nixon – public interest: preserve confidentiality of conversations that take place in the President’s performance of his official duties (presidential communications privilege) – President’s generalized interest in confidentiality – provide him and those who assist him with freedom to explore alternatives in the process of shaping policies and making decisions. In Re: Sealed Case – 2 kinds of executive privilege: (1) Presidential communications privilege – communications, documents or other materials that reflect presidential decisionmaking and deliberations which President believes should remain confidential – decision making of the President (separation of powers) (2) Deliberative process privilege – advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated – decision-making of the Executive Officials (common law privilege). The officials covered by the former are those functions that form the core of presidential authority that are “quintessential and non-delegable Presidential power” (commander in chief power, appointment/removal power, power to grant pardons/reprieves, etc) Courts ruled that Executive has a right to withhold documents that might reveal

Respondents: a claim of executive privilege does not guard against a possible disclosure of a crime/wrongdoing (US v Nixon – specific need for evidence in pending criminal trial outweighs President’s interest in confidentiality) SC: information in this case is elicited not in a criminal proceeding but a legislative inquiry. The validity of exectuve privilege depends not only on the ground invoked but also on the procedural setting/context which the claim is made. Respondent: the grant of executive privilege violates constitutional provisions on the right of the people to information on matters of public concern (Sec. 7, Art. 3, Constitution) SC: Petitioner made himself available to them during the Sept. 26 hearing, questioned for 11 hours, and expressly manifested willingness to answer more questions except the 3 covered by executive privilege. People’s right to information is limited by law (RA 6713, Sec. 7; RPC, Art. 229; RA 3019, Sec. 3(k); and Rules of Court, Rule 130, Sec. 24 (e)). The information in this case is classified as confidential wherein there is public interest in its confidentiality. Not every legislative inquiry is an exercise of people’s right to information.

b. The claim of executive privilege is properly invoked. The letter (Nov. 17, 2007) of Executive Secretary Ermita satisfies the requirement for a formal claim of executive privilege (a precise and certain reason for preserving confidentiality). It serves as the formal claim of privilege: “this Office is constrained to invoke the settled doctrine of executive privilege (Secretary v. Ermita), and the Office of the President has advised Sec. Neri accordingly… The information if disclosed might impair diplomatic and economic relations with People’s Republic of China.” The grounds were specific enough so as not to leave respondent in the dark on how the requested information could be classified as privileged. Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of information which the privilege sought to protect – respect to a co-equal department.

2. WON respondent Committees committed grave abuse of discretion in issuing the Contempt Order. YES. 5 reasons: - There was a legitimate claim of executive privilege therefore the Order suffers from constitutional infirmity - Committees did not comply with the requirement (Senate v. Ermita) that the invitations should contain the “possible needed statute which prompted the inquiry”, “the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof”. Compliance is imperative, both under Sec. 21 and 22 of Art. 6 of Constitution, to ensure rights of persons appearing and affected by the inquiry are respected. - It is revealed in the transcript that the proceeding on Jan. 30, 2008 had only a minority of the members of the Senate Blue Ribbon Committee present during the deliberation (7 only). Sec. 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that a vote of majority of its members may punish any witness for contempt. Members who did not actually participate in the deliberation were made to sign the contempt Order, and its validity is doubted. Sen. Pimentel insisted that the quorum of the committee was only 2 and that the will of the lead committee prevails over all the other. - The Court finds merit in the argument of the OSG that respondent violated Sec. 21, Art. 6 of the Constitution requiring that the inquiry be in accordance with the “duly published rules of procedure”, which the respondents failed to meet therefore its hearings were procedurally

infirm. - Respondents’ issuance of the contempt Order were arbitrary and precipitate because it did not pass upon the claim of executive privilege and inform the petitioner of their ruling, curtly dismissed his explanation as unsatisfactory and simultaneously issued the Order. Petitioner was not an unwilling witness and manifested his willingness to testify. Respondents denied him due process of law. Court was also accused of attempting to abandon its constitutional duty when it required parties to consider a proposal that would lead to a possible compromise  it was only to test a tool that other jurisdictions find to be effective in settling similar cases to avoid a piecemeal consideration of the questions for review. Much of this spirit of compromise is reflected in the generality of language foundi n the Constitution (US v. American Tel. & Tel Co.). Judgment: Petition Granted. Contempt Order Nullified. Dissent: Puno, J. - The principle of separation of powers is not absolute –a hermetic sealing off of the 3 branches of government from one another would preclude the establishment of a nation capable of governing itself effectively. - System of checks and balances – the power of congressional oversight – to enhance its understanding of and influence over implementation of legislation it has enacted  review/investigation of executive branch action by legislature’s corollary power of investigation. Standard justification: presumed need for new/remedial legislation (investigations in aid of legislation) - Legislative power of investigation includes power of contempt or process to enforce (Arnault v. Nazareno) – incidental to/implied in legislative function –cannot legislate wisely/effectively in the absence of information respecting the conditions which the legislation is intended to affect/change - 2 requirements for the valid exercise of power of investigation and contempt of witness for contumacy: existence of a legislative purpose (in aid of legislation) and pertinency of the question propounded. - Validity of the claim of executive privilege depends on the ground invoked to justify it and the context in which it is made. - Presidential communications are presumptively privileged. To overcome the presumption, there must be sufficient showing/demonstration of specific need for the withheld information. 2 standards: evidentiary and constitutional.

- Function Impairment Test – the Court weighs how the disclosure of the withheld information would impair the President’s ability to perform his constitutional duties more than nondisclosure would impair other branch’s ability to perform its constitutional functions. - The SC cannot assess the validity of the claim of the Executive Secretary because paucity of explanation on on how diplomatic secrets will be exposed at the expense of our national interest if petitioner answers disputed questions. SC cannot determine whether there is reasonable danger if petitioner answers – Court cannot engage in guesswork. - It is self-evident that the assailed questions are pertinent to the subject matter of legislative investigation and have direct relation to the subject and pending Senate bills. - Petitioner: respondents were seeking to establish the culpability of the President or the anomalies in the NBN-ZTE Contract. SC: motive of the Senate Committees in conducting their investigation is beyond the purview of the Court’s power of judicial review – questions are pertinent and there is no effective substitute for the information sought. - Senate Rules of Procedure Governing Inquiries in Aid of Legislation is assailed as invalid for failure to be republished – not a continuing body – membership changes every 3 years (election)  Senators have traditionally considered the Senate as a continuing body despite the change of part of its membership after an election – does not cease its labor, Committees continue their work. By tradition, custom and practice, the Senate does not republish its rules especially when the same has not undergone any material change. Existing rules which have already undergone publication should be deemed adopted and continued regardless of election of new members. Internal rules – respect for co-equal branch. - Respondent Senate Committees have good reasons in citing Neri for contempt for failing to appear on Nov. 20 hearing. There is no basis for petitioner and Executive Secretary to assume that petitioner’s further testimony will be limited only ton the 3 disputed questions.