G.R. No. 180643 - ROMULO L. NERI in his capacity as
Chairman of the Commission on Higher Education (CHED) and as former Director
General of the National Economic & Development Authority (NEDA), Petitioner, - versus - SENATE
COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS &
INVESTIGATIONS (BLUE RIBBON), SENATE COMMITTEE ON TRADE & COMMERCE, and
SENATE COMMITTEE ON NATIONAL DEFENSE & SECURITY, Respondents.
Promulgated:
March 25, 2008
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DISSENTING AND CONCURRING OPINION
CARPIO, J.:
The Case
This
Petition,[1] with
supplemental petition,[2] for
certiorari with application for a temporary restraining order, assails the
letter dated 22 November 2007 and the Order dated 30 January 2008 issued by
respondents Senate Committees on Accountability of Public Officers and
Investigation (Blue Ribbon),[3] Trade
and Commerce,[4] and
National Defense and Security[5]
(collectively respondents or Committees).
The 22
November 2007 letter required petitioner Commission on Higher Education
Chairman and former National Economic Development Authority (NEDA) Director
General Romulo L. Neri (petitioner) “to show cause why [he] should not be cited
in contempt” for his failure to attend the Blue Ribbon Committee hearing on 20
November 2007, while the Order issued on 30 January 2008 cited petitioner in
contempt and directed his arrest and detention in the Office of the Senate
Sergeant-At-Arms.
The Antecedent Facts
On 21
April 2007, with President Gloria Macapagal-Arroyo as witness, the Department
of Transportation and Communications, represented by Secretary Leandro R.
Mendoza, and Zhong Xing Telecommunications Equipment Company Limited (ZTE),
represented by its Vice President Yu Yong, signed in Boao, China, a “Contract
for the Supply of Equipment and Services for the National Broadband Network
Project” (NBN Project) worth US$329,481,290. The People's Republic of
After
the signing of the agreement, controversies hounded the NBN Project. There were various reports of alleged
bribery, “overpricing” of US$130 million, payment of “advances” or “kickback
commissions” involving high-ranking government officials, and other anomalies
which included the loss of the contract, collusion among executive officials,
and political pressures against the participants in the NBN Project.[7]
Considering
the serious questions surrounding the NBN Project, respondents called an
investigation, in aid of legislation, on the NBN Project based on resolutions
introduced by Senators Aquilino Q. Pimentel, Sr., Panfilo M. Lacson, Miriam
Defensor Santiago, and Mar Roxas.
Several hearings were conducted, one of which was held on
During
this particular hearing, petitioner testified that then Commission on Elections
Chairman Benjamin Abalos, Sr. (Abalos), the alleged broker in the NBN Project,
offered petitioner P200 million in exchange for NEDA's approval of the
NBN Project. Petitioner further testified that he told President Arroyo of the
bribe attempt by Abalos and that the President instructed him not to accept the
bribe offer.
However,
when respondents asked petitioner what he and President Arroyo discussed
thereafter, petitioner refused to answer, invoking executive privilege. Petitioner claimed executive privilege when
he was asked the following questions:
I.
SEN. PANGILINAN: You mentioned earlier that you mentioned this to the President. Did the President after that discussion over the phone, was this ever raised again, the issue of the 200 ka rito?
MR. NERI: We did not discuss it again, Your Honor.
SEN. PANGILINAN: With the President? But the issue, of course, the NBN deal, was raised again? After that, between you and the President. Pinalow up (followed up) ba niya?
MR. NERI: May I claim the executive privilege, Your Honor, because I think this already involves conversations between me and the President, Your Honor, because this is already confidential in nature.
x x x
II.
SEN. LEGARDA: Has there been any government official higher than you who dictated that the ZTE project be prioritized or given priority? In short, were you dictated upon not to encourage AHI as you’ve previously done...
MR. NERI: As I said, Your Honor...
SEN. LEGARDA: ...but to prefer or prioritize the ZTE?
MR. NERI: Yeah. As the question may involve – as I said a conversation/correspondence between the President and a public official, Your Honor.
SEN. LEGARDA: I’m sorry. Can you say that again?
MR. NERI: As I said, I would like to invoke Sec. 2(a) of EO 464.
x x x
III.
MR. NERI: She said, “Don’t accept it,” Your Honor.
SEN. CAYETANO, (P): And there was something attached to that like... “But pursued with a project or go ahead and approve,” something like that?
MR. NERI: As I said, I claim the right of executive privilege no further discussions on the...
SEN. CAYETANO, (P): Ah, so that’s the part where you invoke your executive privilege, is that the same thing or is this new, this invocation of executive privilege?
My question is, after you had mentioned the 200 million and she said “Don’t accept,” was there any other statement from her as to what to do with the project?
MR. NERI: As I said, it was part of a longer conversation, Your Honor, so...
SEN. CAYETANO, (P). A longer conversation in that same-- part of that conversation on an ongoing day-to-day, week-to-week conversation?
MR. NERI: She calls me regularly, Your Honor, to discuss various matters.
SEN. CAYETANO, (P): But in connection with, “Ma’am, na-offer-an ako ng 200.” -- “Ah, don’t accept, next topic,” ganoon ba yon? Or was there like, “Alam mo, magandang project sana ‘yan, eh bakit naman ganyan.”
MR. NERI: As I said, Your Honor, beyond that I would not want to go any further, Your Honor.
SEN. CAYETANO, (P): I just can’t hear you.
MR. NERI: Beyond what I said, Your Honor, I’d like to invoke the right of executive privilege.
On 13
November 2007, the Blue Ribbon Committee issued a subpoena ad testificandum[8]
requiring petitioner to appear again before it and testify further on 20
November 2007.
On 15
November 2007, Executive Secretary Eduardo Ermita (Executive Secretary Ermita)
addressed a letter (Ermita Letter) to respondent Blue Ribbon Committee Chair
Alan Peter S. Cayetano requesting that petitioner’s testimony on 20 November
2007 be dispensed with because he was invoking executive privilege “By Order of
the President.” Executive Secretary
Ermita explained:
Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project after being told about the alleged bribe?
Following the ruling in Senate vs. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v Vazquez, G.R. 95367, 23 May 1995; Chavez v PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, is she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as defined in Senate vs. Ermita, and has advised Secretary Neri accordingly.[9]
Consequently,
petitioner did not appear before respondents on 20 November 2007. Petitioner
assumed that the only matters on which respondents would question him were
exclusively related to his further discussions with the President relating to
the NBN Project.
On 22
November 2007, respondents issued the letter requiring petitioner to show cause
why he should not be cited in contempt for his failure to appear at the 20
November 2007 hearing.[10] In a letter dated 29 November 2007,
petitioner personally replied to respondents, requesting to be furnished in
advance new matters, if any, which respondents would like to ask him other than
the three questions for which Executive Secretary Ermita had already claimed
executive privilege.[11]
On 7
December 2007, petitioner filed the initial Petition for certiorari with a
prayer for the issuance of a temporary restraining order to enjoin respondents
from citing him in contempt.
On 30
January 2008, respondents issued an order for the arrest of petitioner for his
failure to appear at the hearings of the Senate Committees on 18 September
2007, 20 September 2007, 25 October 2007, and 20 November 2007.[12] On the same day, petitioner wrote respondents
and Senate President Manny Villar seeking a reconsideration of the issuance of
the arrest order.
On 1
February 2008, petitioner filed with this Court a supplemental petition for
certiorari with an urgent application for a temporary restraining order or
preliminary injunction seeking to nullify the arrest order and to enjoin
respondents from implementing such order.
On 5
February 2008, the Court issued a resolution requiring respondents to Comment
on the Petition and supplemental petition and to observe the status quo
prevailing prior to respondents' Order of 30 January 2008. The Court further resolved to set the
Petition for hearing on the merits and on the Status Quo Ante Order on 4 March
2008.
The
Court heard the parties in oral arguments on 4 March 2008, on the following
issues:
1. What communications between the President and petitioner Neri are covered by the principle of ‘executive privilege’?
1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information, which might impair our diplomatic as well as economic relations with the People’s Republic of China?
1.b Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations “dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines” xxx, within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?
1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution:
Sec. 28, Art II (Full public disclosure of all transactions involving public interest)
Sec. 7, Art. III (The right of the people to information on matters of public concern)
Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed)
and the due process clause and the principle of separation of powers?
2. What is the proper procedure to be followed in invoking executive privilege?
3. Did the Senate Committees grave[ly] abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena?
After the oral arguments, the Office of
the Solicitor General (OSG) filed on 17 March 2008 a Motion for Leave to
Intervene and to Admit Attached Memorandum.
The OSG argues that petitioner’s discussions with the President are
covered by executive privilege. The OSG
assails the validity of the Senate’s Rules
of Procedure Governing Inquiries in Aid of Legislation on the ground of
lack of publication. On 18 March 2008,
the Court granted the OSG’s motion to intervene.
In his
Petition, petitioner alleges that the invocation of executive privilege is well
founded. Petitioner claims that his
candid discussions with the President were meant to explore options in crafting
policy decisions. Petitioner further
argues that the invocation of executive privilege was “timely, upon authority
of the President, and within the parameters laid down in Senate v. Ermita and United
States v. Reynolds.” Petitioner also
maintains that his non-appearance at the 20 November 2007 hearing was due to
the order of the President herself, invoking executive privilege. Therefore, petitioner asserts that the show
cause order was issued with grave abuse of discretion, hence void.
In his
supplemental petition, petitioner argues, among others, that the issuance of
the arrest order was another grave abuse of discretion because he did not
commit any contumacious act. Petitioner
contends that Executive Secretary Ermita correctly invoked executive privilege
in response to the subpoena issued by respondents for petitioner to testify at
the 20 November 2007 hearing. Petitioner
also impugns the validity of the Senate’s Rules
of Procedure Governing Inquiries in Aid of Legislation for lack of publication
for the 14th Congress.
Petitioner
also alleges that respondents' order of arrest preempted this Court's action on
his initial Petition. Petitioner claims
that “this order of arrest elides, and side-steps, the President's invocation
of executive privilege in behalf of petitioner.”
In
their Comment, respondents counter that there is no justification for
petitioner's invocation of executive privilege. Respondents assert that
petitioner's sweeping claim of executive privilege does not authorize his
absolute refusal to appear and testify before them. Respondents argue that petitioner failed to
overcome the presumption against executive secrecy and in favor of disclosure,
as required in Senate v. Ermita.[13]
Respondents
also claim that petitioner's justification violates the constitutional and
statutory standards for public officers.
Respondents further maintain that the grounds invoked by petitioner are
mere speculations and presumptions.
Likewise, respondents insist that the testimony of petitioner is
material and pertinent in aid of legislation.
Respondents point out that several bills relating to the inquiry have
already been filed in aid of legislation. Respondents also stress that even
assuming that petitioner timely invoked executive privilege, this privilege
does not extend to criminal activities.
The Issues
The
issues raised in this petition may be summarized as follows:
1. Whether Executive Secretary Ermita
correctly invoked executive privilege on the three questions mentioned in his
15 November 2007 letter to the Senate Blue Ribbon Committee;
2. Whether the Senate’s Rules of Procedure Governing Inquiries in Aid of Legislation were
duly published; and
3. Whether the Senate’s Order of 30 January
2008 citing petitioner in contempt and directing his arrest is valid.
Discussion
1. Overview of Executive Privilege
Executive privilege is the
implied constitutional power of the President to withhold information requested
by other branches of the government. The
Constitution does not expressly grant this power to the President but courts
have long recognized implied Presidential powers if “necessary and proper”[14] in
carrying out powers and functions expressly granted to the Executive under the
Constitution.
In the United States,
executive privilege was first recognized as an implied constitutional power of
the President in the 1973 case of United
States v. Nixon.[15] U.S. Presidents, however, have asserted
executive privilege since the time of the first President, George Washington.[16] In this jurisdiction, several decisions have
recognized executive privilege starting with the 1995 case of Almonte v. Vasquez,[17] and
the most recent being the 2002 case of Chavez
v. Public Estates Authority[18] and
the 2006 case of Senate v. Ermita.[19]
As Commander-in-Chief of the
Armed Forces[20] and
as Chief Executive,[21] the
President is ultimately responsible for military and national security matters
affecting the nation. In the discharge of this responsibility, the President
may find it necessary to withhold sensitive military and national security
secrets from the Legislature or the public.
As the official in control of
the nation’s foreign service by virtue of the President’s control of all
executive departments, bureaus and offices,[22] the
President is the chief implementer of the foreign policy relations of the
State. The President’s role as chief
implementer of the State’s foreign policy is reinforced by the President’s
constitutional power to negotiate and enter into treaties and international
agreements.[23] In the discharge of this responsibility, the
President may find it necessary to refuse disclosure of sensitive diplomatic
secrets to the Legislature or the public.
Traditionally, states have conducted diplomacy with considerable
secrecy. There is every expectation that
a state will not imprudently reveal secrets that its allies have shared with
it.
There is also the need to
protect the confidentiality of the internal deliberations of the President with
his Cabinet and advisers. To encourage candid discussions and thorough exchange
of views, the President’s communications with his Cabinet and advisers need to
be shielded from the glare of publicity.
Otherwise, the Cabinet and other presidential advisers may be reluctant
to discuss freely with the President policy issues and executive matters
knowing that their discussions will be publicly disclosed, thus depriving the
President of candid advice.
Executive privilege, however, is not
absolute. The interest of protecting
military, national security and diplomatic secrets, as well as Presidential
communications, must be weighed against other constitutionally recognized
interests. There is the declared state
policy of full public disclosure of all transactions involving public interest,[24] the
right of the people to information on matters of public concern,[25] the accountability of public officers,[26] the power of legislative inquiry,[27] and the judicial power to secure testimonial
and documentary evidence in deciding cases.[28]
The balancing of interests –
between executive privilege on one hand and the other competing
constitutionally recognized interests on the other hand - is a function of the
courts. The courts will have to decide
the issue based on the factual circumstances of each case. This is how conflicts on executive privilege
between the Executive and the Legislature,[29] and
between the Executive and the Judiciary,[30] have
been decided by the courts.
The Judiciary, however, will consider
executive privilege only if the issues cannot be resolved on some other legal
grounds.[31] In
conflicts between the Executive and the Legislature involving executive
privilege, the Judiciary encourages negotiation between the Executive and
Legislature as the preferred route of conflict resolution.[32] Only if judicial resolution is unavoidable
will courts resolve such disputes between the Executive and Legislature.[33]
Information 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.[34] The character of executive privilege attaches
to the information 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 information 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.[35] On the contrary, the President has the
constitutional duty to enforce criminal laws and cause the prosecution of
crimes.[36]
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.[37] In conducting inquiries, the Legislature must
respect the right to privacy of citizens, including the President’s.
Executive privilege is rooted in the
separation of powers.[38] Executive privilege is an implied
constitutional power because it is necessary and proper to carry out the
express constitutional powers and functions of the Executive free from the
encroachment of the other co-equal and co-ordinate branches of government. Executive privilege springs from the
supremacy of each branch within its own assigned area of constitutional powers
and functions.[39]
Executive privilege can be
invoked only by the President who is the sole Executive in whom is vested all executive power under the
Constitution.[40] However, the Executive Secretary can invoke
executive privilege “By Order of the President,” which means the President
personally instructed the Executive Secretary to invoke executive privilege in
a particular circumstance.[41]
Executive privilege must be invoked
with specificity sufficient to
inform the Legislature and the Judiciary that the matter claimed as privileged
refers to military, national security or diplomatic secrets, or to confidential
Presidential communications.[42] A claim of executive privilege accompanied by
sufficient specificity gives rise to a presumptive executive privilege. A
generalized assertion of executive privilege, without external evidence or
circumstances indicating that the matter refers to any of the recognized
categories of executive privilege, will not give rise to presumptive executive
privilege.
If
there is doubt whether presumptive privilege exists, the court may require in camera inspection of so much of the
evidence as may be necessary to determine whether the claim of executive
privilege is justified.[43] Once presumptive executive privilege is
established, the court will then weigh the need for such executive privilege
against the need for other constitutionally recognized interests.
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.
There are other categories of
government information which are considered confidential but are not strictly
of the same status as those falling under the President’s executive privilege.
An example of such confidential information is the identity of an informer
which is made confidential by contract between the government and the informer.[44] The privilege character of the information is
contractual in nature. There are also
laws that classify the identity of an informer as confidential.[45] The privilege character of the information
is conferred by the Legislature and not by the Executive’s implied power of
executive privilege under the Constitution.
There is also the category of
government information that is confidential while the deliberative process of
agency executives is on-going, but becomes public information once an agency
decision or action is taken. Thus, a
committee that evaluates bids of government contracts has a right to keep its
deliberations and written communications confidential. The purpose of the deliberative process
privilege is to give agency executives freedom to discuss competing bids in
private without outside pressure. However, once they take a definite action,
like deciding the best bid, their deliberations and written communications form
part of government records accessible by the public.[46]
Confidential information under
the deliberative process privilege is different from the President’s executive
privilege. Military, national security,
and diplomatic secrets, as well as Presidential communications, remain
confidential without time limit. The
confidentiality of matters falling under the President’s executive privilege
remains as long as the need to keep them confidential outweighs the need for
public disclosure.
Then there is the category of
government information that must be kept temporarily confidential because to
disclose them immediately would frustrate the enforcement of laws. In an
entrapment operation of drug pushers, the identity of the undercover police
agents, informers and drug suspects may not be disclosed publicly until after
the operation is concluded. However,
during the trial, the identity of the undercover police agents and informers
must be disclosed if their testimony is introduced in evidence.