Neri -Digest of Separate Opinions

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NERI V SENATE-SEPARATE OPINIONS GR 180643 LEONARDO-DE CASTRO; March 25, 2008 PUNO, C.J., DISSENTING [SEE ORIG COPY, 1ST PAR. OF HIS DISSENT ON PUNO’S NORTH STAR…] - The doctrine of executive privilege is tension between disclosure and secrecy in a democracy. Its doctrinal recognition in the Philippines finds its origin in the US political and legal system and literature. At the outset, it is worth noting that the provisions of the US Consti say little about government secrecy or public access. In contrast, the 1987 Consti is replete with provisions on government transparency, accountability and disclosure of info. This is a reaction to our years under martial rule when the workings of government were veiled in secrecy. - The boundaries established by the Consti delineating the powers of the 3 branches must be fashioned according to common sense and the necessities of governmental coordination. This Constitutional design requires an internal balancing mechanism by which government powers cannot be abused. We married all these ideas in Angara v. Electoral Commission (1936). - There are 2 requirements for the valid exercise of the legislative power of investigation and contempt of witness for contumacy: 1st, the existence of a legislative purpose, i.e., the inquiry must be in aid of legislation, and 2nd, the pertinency of the question propounded. There is legislative purpose when the subject matter of the inquiry is one over which the legislature can legislate, such as the appropriation of public funds; and the creation, regulation and abolition of government agencies and positions. It is presumed that the facts are sought by inquiry, because the legislative body cannot legislate wisely or effectively in the absence of info respecting the conditions which the

legislation is intended to affect or change. The Court (in Arnault v Nazareno) noted that the investigation gave rise to several bills recommended by the Special Committee and approved by the Senate. So under the first requirement, the dual requirements of authority are that the power exercised by the committee must be both within the authority delegated to it and within the competence of Congress to confer upon the committee. The test of pertinency is whether a question itself is in the ultimate area of investigation; a question is pertinent also if it is a usual and necessary stone in the arch of a bridge over which an investigation must go. In determining pertinency, the court looks to the history of the inquiry as disclosed by the record. Arnault states the rule on pertinency, viz: Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, we think the investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject of course to his Constitutional right against selfincrimination. The inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to the exercise of a power in it vested by the Consti, such as to legislate, or to expel a Member; and every question which the investigator is empowered to coerce a witness to answer must be material or pertinent to the subject matter of the inquiry or investigation. So a witness may not be coerced to answer a question that obviously has no relation to the subject of the inquiry. But from this it does not follow that every question that may be propounded to a witness be material to any proposed or possible legislation. In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation

to any proposed or possible legislation. The reason is, that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the info to be gathered as a result of the investigation, and not by a fraction of such info elicited from a single question. - The US (and Phil.) Consti does not directly mention “executive privilege,” but commentators theorized that the privilege of confidentiality is Constitutionally based, as it relates to the President’s effective discharge of executive powers. The Founders of the American nation acknowledged an implied Constitutional prerogative of Presidential secrecy, a power they believed was at times necessary and proper. [PUNO WILL THEN DISCUSS HISTORY AND SCOPE & CONTEXT OF EXEC. PRIVILEGE IN THE US-PLS. SEE ORIG] - Adjudication on executive privilege in the Philippines is still in its infancy stage, with the Court having had only a few occasions to resolve cases that directly deal with the privilege: Almonte v Vasquez (1995) No military or diplomatic secrets would be disclosed by the production of records pertaining to the personnel of the Economic Intelligence and Investigation Bureau. Nor was there any law making personnel records of the EIIB classified. Thus, the Court concluded that the Ombudsman’s need for the documents outweighed the claim of confidentiality of petitioners. Chavez v PCGG (1998) It was incumbent upon PCGG and its officers, as well as other gov”t representatives, to disclose sufficient public info on any proposed settlement they had decided to take up with the ostensible owners and holders of ill-gotten wealth. Such info, however, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency

recommendations or communications during the exploratory stage. At the same time, the Court noted the need to observe the same restrictions on disclosure of info in general, such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified info. Again, the subject info did not fall under Presidential communications. Senate v Ermita (2006) Court again alluded to US v Nixon and also recognized that Presidential communications fall under the mantle of protection of executive privilege in the setting of a legislative inquiry. But since the issue for resolution was the Constitutionality of EO 464 and not whether an actual Presidential communication was covered by the privilege, the Court did not have occasion to rule on the same. [Start of US v Nixon discussion] - US v Nixon came about because of a breakin at the Democratic Nat’l Committee (DNC) headquarters in Watergate Hotel. In the early morning of June 17, 1972, about 4 ½ months before the US Presidential election, police discovered 5 men inside the DNC offices carrying electronic equipment, cameras, and large sums of cash. These men were operating as part of a larger intelligence gathering plan of the Committee to Re-elect the President, Pres Nixon’s campaign organization for the 1972 election. Their mission was to fix a defective bugging device which had been placed a month before on the telephone of the DNC chairperson. Their orders came from the higher officials of the CRP. A subpoena duces tecum was issued requiring Nixon to produce for the grand jury certain tape recordings and documents enumerated in an attached schedule. President Nixon partially complied with the subpoena, but otherwise declined to follow its directives. In a letter to the Court that issued the subpoena, the President advised that the tape recordings sought would not be provided, as he asserted that the President is not subject to the compulsory process of the courts. The Court

ordered the President or any appropriate subordinate official to show cause why the documents and objects described should not be produced as evidence before the grand jury. The Court ruled that it had jurisdiction to decide the issue of privilege, and it had authority to enforce the subpoena duces tecum by way of an order requiring production for inspection in camera. Nixon appealed = Nixon v Sirica. Issue is WON the President may, in his sole discretion, withhold from a grand jury evidence in his possession that is relevant to the grand jury's investigations. Court overruled the President’s invocation of executive privilege covering Presidential communications and upheld the order of the District Court. Grand jury investigation = US v Mitchell (Former Atty. General and head of CRP) The Special Prosecutor filed a motion for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings of President Nixon. The President, claiming executive privilege, moved to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements for a subpoena had been satisfied. The Court then issued an order for an in camera examination of the subpoenaed material. The Special Prosecutor filed in the US Supreme Court a petition for certiorari which upheld the order in US v. Nixon. - For the first time in 1974, the US Supreme Court recognized the Presidential communications privilege and the qualified presumption in its favor in US v. Nixon. The decision cited 2 reasons for the privilege and the qualified presumption: 1) the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making and 2) it is fundamental to

the operation of Government and inextricably rooted in the separation of powers under the Consti. In support of the first reason, the Nixon Court held that a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. It pointed to 2 bases of this need for confidentiality. 1st is common sense and experience. The importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process. The 2nd is the supremacy of each branch in its own sphere of duties under the Consti and the privileges flowing from these duties. As for the second reason, while the Consti diffuses power to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. - The scope of Presidential communications privilege covers communications in the performance of the President’s responsibilities of his office and made in the process of shaping policies and making decisions. - There is a qualified presumption in favor of Presidential privacy. To overcome this, there must be sufficient showing of specific need for the withheld info on the branch of government seeking its disclosure. 2 standards must be met to show the specific need: evidentiary and constitutional. US v Nixon -relevance, admissibility and specificity. In re Sealed Case -there must also be a showing that evidence is not available with

due diligence elsewhere or that the evidence is particularly and apparently useful. The claim of executive privilege must then be balanced with the specific need for disclosure of the communications on the part of the other branch of government. In the “function impairment test”, the Court weighs how the disclosure of the withheld info would impair the President’s ability to perform his constitutional duties more than nondisclosure would impair the other branch’s ability to perform its constitutional functions. - In excising materials that are not relevant or not admissible or covered by executive privilege because of their nature as military or diplomatic secrets, the High Court emphasized the heavy responsibility of the D.C. District Court to ensure that these excised parts of the Presidential communications would be accorded that high degree of respect due the President, considering the singularly unique role under of a President’s communications and activities, related to the performance of duties. A President's communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual. It was necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. Thus, the High Court sternly ordered that until released by the judge to the Special Prosecutor, no in camera material be revealed to anyone, and that the excised material be restored to its privileged status and returned under seal to its lawful custodian. [end of US v Nixon discussion] - Senate v. Ermita: only the President or the Executive Secretary, by order of the President, can invoke executive privilege. Thus, petitioner, himself or through his counsel, cannot expand the grounds invoked by the President through Sec Ermita. In his letter, Sec Ermita invoked only the Presidential communication privilege and, suggested a

claim of diplomatic secrets privilege. But even assuming arguendo that petitioner Neri can properly invoke the privilege covering “national security” and “military affairs,” still, the records will show that he failed to provide the Court knowledge of the circumstances with which the Court can determine whether there is reasonable danger that his answers to the 3 disputed questions would indeed divulge secrets that would compromise our national security. The Presidential communications privilege attaches to the office of the President; it is used after careful consideration in order to uphold public interest in the confidentiality and effectiveness of Presidential decision-making to benefit the Office of the President. It is not to be used to personally benefit the person occupying the office. - The function impairment test begins with recognition that Presidential communications are presumptively privileged. Senate Committees’ argument that the burden is on petitioner to overcome a presumption against executive privilege cannot be sustained. - Given the qualified presumption in favor of the confidentiality of Presidential communications, the Court should proceed to determine the strength of this presumption as it varies in light of various factors. The more concentrated power is in the President, the greater the need for confidentiality and the stronger the presumption. Other factors to be considered in determining the strength of the presumption of confidentiality of Presidential communications pertain to the nature of the disclosure sought, namely: (1) time of disclosure, whether contemporaneous disclosure or open deliberation, which has a greater chilling effect on rendering candid opinions, as opposed to subsequent disclosure; (2) level of detail, whether full texts or whole conversations or summaries; (3) audience, whether the general public or a select few; (4) certainty of disclosure, whether the info is

made public as a matter of course or upon request ; (5) frequency of disclosure; and (6) form of disclosure, whether live testimony or recorded conversation or affidavit. The type of info should also be considered, whether involving military, diplomatic or national security secrets. - It is self-evident that the 3 assailed questions are pertinent to the subject matter of the legislative investigation being undertaken by the respondent Committees. More than the Arnault standards, the questions to petitioner have direct relation not only to the subject of the inquiry, but also to the pending bills thereat. There is also no effective substitute for the info sought. The 3 questions demand info on how the President herself weighed options and the factors she considered in concluding the NBNZTE Contract. - On one end of the balancing scale is the President’s generalized claim of confidentiality of her communications, and petitioner’s failure to justify a claim that his conversations with the President involve diplomatic, military and national security secrets. Presidential communications enjoy a presumptive privilege but this is weakened by the fact that the subject of the communication involves a contract with a foreign loan. The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank). We also consider the chilling effect which may result from the disclosure of the info sought from petitioner Neri but this is diminished by the nature of the info sought, which is narrow, limited as it is to the 3 questions. We take judicial notice also of the fact that in a Senate inquiry, there are safeguards against an indiscriminate conduct of investigation. On the other end of the balancing scale is the respondent Committees’ specific and demonstrated need for the Presidential communications in reply to the 3 questions.

These questions are pertinent to the subject matter of their investigation, and there is no effective substitute for the info coming from a reply to these questions. In the absence of the info they seek, the Senate Committees’ function of intelligently enacting laws “to remedy what is called ‘dysfunctional procurement system of the government’” and to possibly include “executive agreements for Senate concurrence” to prevent them from being used to circumvent the requirement of public bidding in the existing Government Procurement Reform Act cannot but be seriously impaired. With all these considerations factored into the equation, we have to strike the balance in favor of the respondent Senate Committees and compel petitioner Neri to answer the 3 questions. - As to respondent Committees’ contention that executive privilege cannot be used to hide a wrongdoing: It is after the privilege has been pierced by a demonstrated need that one can discover WON the privilege was used to shield a wrongdoing. We should not put the cart before the horse. [VALIDITY OF CONTEMPT AND ARREST ORDER] - The legislative purpose of the Senate inquiry and pertinence of the questions propounded has sufficiently been shown. It is worth noting that the letter of Sec Ermita merely requested that petitioner’s testimony on Nov 20, 2007 on the NBN Contract be dispensed with, as he had exhaustively testified on the subject matter of the inquiry. Executive privilege was invoked only with respect to the 3 questions Neri refused to answer in his testimony before respondent Committees on Sep 26, 2007. But there is no basis for either petitioner or the Exec Sec to assume that petitioner’s further testimony will be limited to the 3 questions. Needless to state, respondent Committees have good reasons in citing Neri for contempt for failing to appear in the Nov 20 hearing. - Section 18 of the Senate Rules Governing Inquiries in Aid of Legislation provides, viz:

Sec. 18. Contempt. - The Committee, by a vote of a majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively. Contempt of the Committee shall be deemed contempt of the Senate. Such witness may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself of that contempt. Even assuming arguendo that ex-officio members are counted in the determination of a majority vote, the majority requirement for each of the respondent Senate Committees was still satisfied, as all the ex-officio members signed the Order of arrest. The substantive and procedural requirements for issuing an Order of arrest having been met, the respondent Committees did not abuse their discretion in issuing the Jan 30, 2008 Order of arrest of petitioner. CARPIO-MORALES, DISSENTING EO 464 allowed executive officials not to attend investigations conducted by Congress in aid of legislation by the mere invocation of that Order, without having to explain the specific reasons why the info being requested of them may not be disclosed. But now, because of Senate v Ermita, to justify withholding info which, in their judgment, may be validly kept confidential, executive officials have to obtain from the President, or the Executive Secretary “by order of the President,” a claim of executive privilege which states the grounds or basis. In determining WON the claim of privilege subject of the present petition for certiorari is valid, the Court should not lose sight of the fact

that the same is only part of the broader issue of WON respondent Committees committed grave abuse of discretion in citing petitioner in contempt and ordering his arrest. There should be no doubt at all about its proper resolution. Even assuming arguendo that the claim of privilege is valid, it bears noting that the coverage thereof is clearly limited to the 3 questions. The only way this privilege claim could have validly excused petitioner’s absence at the Nov 20 hearing was if respondent Committees had nothing else to ask him except the 3 questions. Petitioner assumed that this was so, without any valid basis whatsoever. It was merely his inference from his own belief that he had already given an exhaustive testimony during which he answered all the questions of respondent Committees except the 3. As for petitioner’s claim that respondents only have the power of direct contempt: This was raised only in his Letter, not in petitions; Petitioner already conceded to this incidental power; In any case, legislative’s contempt power is sui generis. It is full and complete to deal with any affront committed against or any defiance of legislative authority or dignity, in the exercise of its power to obtain info on which to base intended legislation. Petitioner’s claim that the rules on inquiry in aid of legislation has not been published is inconsequential. (Sabio v Gordon) It was held in Senate v. Ermita that a claim of privilege may be valid or not depending on the ground invoked to justify it and the context in which it is made. “Context” has more to do with the degree of need shown by the person or agency asking for info, than with additional reasons which the Executive may proffer for keeping the same info confidential. Sec. Ermita’s statement that disclosure of the info being asked by respondent Committees might impair our diplomatic and economic relations with China, albeit proffered as the context of his claim of the presidential communications privilege, is a claim of

privilege by itself, it being an invocation of the diplomatic secrets privilege. Thus, 2 kinds of privilege are being invoked. It may be gathered that all 3 questions were directed toward the same end, namely, to determine the reasons why the NBN project, despite the apparent overpricing, ended up being approved by the Executive and financed via a government loan, contrary to the original intention to follow a BOT scheme. The 3 questions should be understood in this light. To assert that certain info falls under a recognized privilege is to allege that disclosure thereof may be harmful to the public interest. It would be impossible for the courts, however, to determine whether a potential harm indeed exists were the Executive allowed to claim the privilege without further explanation. Hence, the ruling in Senate v. Ermita that claims of privilege should state specific reasons for preserving confidentiality. When the privilege being invoked against a subpoena ad testificandum is that for presidential communications, such specificity requirement is not difficult to meet, for it need only be evident from the questions being asked that the info being demanded pertains to conversations between the President and her adviser. In petitioner’s case, the 3 questions posed by respondent Committees clearly require disclosure of his conversations with the President in his capacity as adviser. Requiring the Executive to explain more precisely how this question would involve petitioner’s conversation with the President might compel him to disclose the very thing which the privilege was meant to protect. Compared to claims of the presidential communications privilege, it is more difficult to meet the specificity requirement in claims of the diplomatic secrets privilege, for the Executive must be able to establish a connection between the disclosure of the info being sought with the possible impairment of our diplomatic relations with other nations. It has not been shown how petitioner’s response

to any of the 3 questions may be potentially injurious to our diplomatic relations with China. Even assuming that the 3 questions were answered in the negative – meaning that the President did not follow up on the NBN project, did not dictate upon petitioner to prioritize the ZTE, and did not instruct him to approve the NBN project – it is not clear how our diplomatic relations with China can be impaired by the disclosure thereof, especially given that the supply contract with ZTE was, in fact, eventually approved by the President. If, on the other hand, the answers to the 3 questions are in the affirmative, it would be even more difficult to see how our relations with China can be impaired by their disclosure. A claim of privilege, even a legitimate one, may be overcome when the entity asking for info is able to show that the public interest in the disclosure thereof is greater than that in upholding the privilege. Given the implications of the query on the 3 questions, it would be unreasonable to expect respondent Committees to merely hypothesize on the alternative responses and come up with legislation on that basis. This is a situation where at least a credible, if not precise, reconstruction of what really happened is necessary for the intelligent crafting of the intended legislation. Why is it that, after petitioner reported the alleged bribe to the President, things proceeded as if nothing was reported? Respondent Senate Committees are certainly acting within their rights in trying to find out the reasons for such a turn of events. If it was in pursuit of the public interest, respondents surely have a right to know what this interest was so that it may be taken into account in determining whether the laws on government procurement, BOT, ODA and other similar matters should be amended and, if so, in what respects. It is hard to see how the impairment of the public interest in candid opinions in presidential decision-making can, in this case, outweigh the immense good that can

be achieved by well-crafted legislation reforming the procurement process. YNARES-SANTIAGO, DISSENTING The President does not have an unlimited discretionary privilege to withhold info from Congress, the Judiciary or the public, even if the claim is founded on one of the traditional privileges covered by the doctrine on executive privilege. The doctrine of executive privilege applies only to certain types of info of a sensitive character that would be against the public interest to divulge. As held in Senate v. Ermita, the doctrine is premised on the fact that certain info must, as a matter of necessity, be kept confidential in pursuit of the public interest. Considering that the privilege is an exemption from the obligation to disclose info, the necessity for non-disclosure must be of such high degree as to outweigh public interest. I do not see how public condemnation and criticism can have an adverse effect on the President’s performance of her powers and functions as Chief Executive. In a democracy such as ours, it is only to be expected that official action may be met with negative feedback or even outrage from a disapproving public. If at all, the public’s opinion, negative or otherwise, should enhance the President’s performance of her Constitutionally-mandated duties. It is through open discussion and dialogue that the government better responds to the needs of its citizens and the ends of government better achieved. CARPIO, DISSENTING AND CONCURRING - Info covered by executive privilege remains confidential even after the expiry of the terms of office of the President, Cabinet members and presidential advisers. Thus, a former President can assert executive privilege. Executive privilege attaches to the info and not to the person. Executive privilege is for the benefit of the State and not for the benefit of the office holder. Even death does not

extinguish the confidentiality of info covered by executive privilege. - Executive privilege must be exercised by the President in pursuance of official powers and functions. Executive privilege cannot be invoked to hide a crime because the President is neither empowered nor tasked to conceal a crime. On the contrary, the President has the constitutional duty to enforce criminal laws and cause the prosecution of crimes. - Executive privilege cannot also be used to hide private matters, like private financial transactions of the President. Private matters are those not undertaken pursuant to the lawful powers and official functions of the Executive. However, like all citizens, the President has a constitutional right to privacy. In conducting inquiries, the Legislature must respect the right to privacy of citizens, including the President’s. - Executive privilege must be invoked after the question is asked by the legislative committee, not before. A witness cannot raise hypothetical questions that the committee may ask, claim executive privilege on such questions, and on that basis refuse to appear before the legislative committee. If the legislative committee furnished in advance the questions to the witness, the witness must bring with him the letter of the President or Executive Secretary invoking executive privilege and stating the reasons for such claim. If the legislative committee did not furnish in advance the questions, the witness must first appear before the legislative committee, wait for the question to be asked, and then raise executive privilege. The legislative committee must then give the witness sufficient time to consult the President or Executive Secretary whether the President will claim executive privilege. At the next hearing, the witness can bring with him the letter of the President or Executive Secretary, and if he fails to bring such letter, the witness must answer the question.

- The Legislature can conduct inquiries not specifically to enact laws, but specifically to oversee the implementation of laws. This is the mandate of various legislative oversight committees which admittedly can conduct inquiries on the status of the implementation of laws. In the exercise of the legislative oversight function, there is always the potential, even if not expressed or predicted, that the oversight committees may discover the need to improve the laws they oversee and thus recommend amendment of the laws. This is sufficient reason for the valid exercise of the power of legislative inquiry. Indeed, the oversight function of the Legislature may at times be as important as its law-making function. - The inherent power of the Legislature to arrest a recalcitrant witness remains despite the constitutional provision that “no warrant of arrest shall issue except upon probable cause to be determined personally by the judge.” The power being inherent in the Legislature, essential for self-preservation, and not expressly withdrawn in the Constitution, the power forms part of the legislative power vested in the Congress. The Legislature asserts this power independently of the Judiciary. A grant of legislative power in the Constitution is a grant of all legislative powers, including inherent powers. The Legislature can cite in contempt and order the arrest of a witness who fails to appear pursuant to a subpoena ad testificandum. There is no distinction between direct and indirect contempt of the Legislature because both can be punished motu propio by the Legislature upon failure of the witness to appear or answer. Contempt of the Legislature is different from contempt of court. - The 3 questions that Executive Secretary Ermita claims are covered by executive privilege, if answered by petitioner, will not disclose confidential Presidential communications. Neither will answering the questions disclose diplomatic secrets. Counsel

for petitioner admitted this during the oral arguments. - The present Senate has 24 members, 12 of whom are elected every 3 yrs for a term of 6 yrs each. Thus, the term of 12 Senators expires every 3 yrs, leaving less than a majority of Senators to continue into the next Congress. The 1987 Consti, like the 1935, requires a majority of Senators to “constitute a quorum to do business.” Applying the same reasoning in Arnault, the Senate under the 1987 Consti is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of 12 Senators. Publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Tañada v. Tuvera ruling. The Rules of Procedure even provide that the rules “shall take effect 7 days after publication in 2 newspapers of general circulation,” precluding any other form of publication. Due process requires that “fair notice” be given to citizens before rules that put their liberty at risk take effect. The failure of the Senate to publish its Rules of Procedure as required in Sec 22, Art VI, Consti renders the Rules of Procedure void. The Contempt and Arrest Order is, therefore also void. CORONA, CONCURRING - Publishing rules of procedure is an obligation imposed by the Constitution itself, it cannot be ignored, trifled with or violated without transgressing the fundamental law. - Under the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee, respondent Committees are authorized only to detain a witness found guilty of contempt. On the other hand, nowhere does the word “arrest” appear in either rules of procedure.


There is a of a difference between the power to detain and the power to arrest. To detain means to hold or keep in custody. On the other hand, to arrest means to seize, capture or to take in custody by authority of law. Thus, the power to detain is the power to keep or maintain custody while the power to arrest is the power to take custody. The power to detain implies that the contumacious witness is in the premises (or custody) of the Senate and that he will be kept therein or in some other designated place. In contrast, the power to arrest presupposes that the subject thereof is not before the Senate or its committees but in some other place outside. The distinction is not simply a matter of semantics. It is substantial, not conceptual, for it affects the fundamental right to be free from unwarranted governmental restraint. - Neri was ordered arrested and detained allegedly for contempt because of his refusal or failure to comply with a subpoena ad testificandum. However, the Rules of Senate and the Blue Ribbon Committee show that they do not provide for a sanction on the refusal or failure to obey a subpoena ad testificandum. - Also, the proper subject of the contempt power is “any witness before” the concerned committee(s) of the Senate. The witness must be in attendance or physically present at the legislative inquiry. It is in this context (and this context alone) that the respective provisions of the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee speak of the witness’s disobedience of any committee order, refusal to be sworn or to testify or to answer a proper question and giving of false or evasive testimony. Likewise, it is only in accordance with such premise that a witness may be ordered detained. In this case, Neri was not before the respondent Committees. That was why respondent Committees ordered his arrest. CHICO-NAZARIO, CONCURRING

- Executive privilege is not meant to personally protect the President, but is inherent in her position to serve, ultimately, the public interest. It is not an evil thing that must be thwarted at every turn. Just as acts of the Legislature enjoy the presumption of validity, so must also the acts of the President. Just as all other public officers are afforded the presumption of regularity in the exercise of their official functions, then what more the President, the highest Executive official of the land. - Respondent Committees cite the statement made by this Court in Ermita that “the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.” However, said declaration must be taken in the context of Ermita where EO 464 placed under the protection of executive privilege virtually all conversations, correspondences, and info of all executive and military officials, unless otherwise ordered by the President. Ermita firmly established that public disclosure is still the general rule while executive privilege is the exemption therefrom. But when the President does invoke executive privilege as regards certain info, the same must be deemed presumptively privileged. - While the search for the truth is truly a noble aspiration, respondent Senate Committees must bear in mind that their inquiry and investigative powers should remain focused on the primary purpose of legislation. - Another point militating against the issuance of the contempt and arrest Order is its issuance even without quorum and the required number of votes in the respondent Committees. During oral arguments, Senator Pangilinan asserted that whatever infirmities at the committee level were cured by the 2/3 votes of the entire Senate favoring the issuance of the contempt and arrest Order against petitioner Neri, since the committee is a mere agent of the entire chamber.

TINGA, CONCURRING - Given the wide publicity some legislative inquiries are able to attract, especially when they call attention to wrongdoings on the part of government officials or private individuals, there is somehow a public perception that legislative inquiries are primarily vital in their truth-seeking faculty. Perhaps the legislators who function as inquisitors feel ennobled by that perception as well. Can this purpose, which admittedly is neither morally nor politically neutral, be accommodated in the constitutional function of legislative inquiries? Facially yes, since the goal of legislative oversight is integrally wedded to the function of legislative inquiries. In aiming to create effective laws, it is necessary for our lawmakers to identify the flaws in our present statutes. To the extent that such flaws are linked to the malperformance of public officials, the resultant public exposure and embarrassment of such officials retain relevance to the legislative oversight and inquiry process. Yet all the righteous, divinely-inspired fulminations that find expression in the legislative inquiry cannot bestow on that process a higher or different purpose than that intended by the Constitution. Contrary as it may be to the public expectation, legislative inquiries do not share the same goals as the criminal trial or the impeachment process. The orientation of legislative inquiries may be remedial in nature, yet they cannot be punitive in the sense that they cannot result in legally binding deprivation of a person’s life, liberty or property. No doubt that a legislative inquiry conducted under the glare of klieg lights can end up destroying one’s life, livelihood or public reputation – as many suspected American leftists discovered when they were caught in the dragnet of persecution during the McCarthy era – yet such unfortunate results should only incidentally obtain as a result of an inquiry aimed not at specific persons, but at the framework of the laws of the land.

It is vital to draw the distinction between legislative inquiries and the other legal processes, such as impeachment or criminal trials, that are oriented towards imposing sanctions in the name of the State. [I BELIEVE NA NA-EXHAUST NA NG IBANG JUSTICES VIRTUALLY LAHAT NG MAY SENSE PANG SABIHIN. SO JUST TO COMPLETE THE ROLL…] VELASCO, CONCURRING NACHURA, CONCURRING BRION, CONCURRING

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