G.R. No. 180643 (Romulo L. Neri, in his
capacity as Chairman of the Commission on Higher Education and as former
Director General of the National Economic and Development Authority v. Senate
Committee on Accountability of Public Officers and Investigations, et al.)
Promulgated:
March
25, 2008
x
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SEPARATE CONCURRING OPINION
NACHURA, J.:
I concur in the comprehensive and well-reasoned
ponencia of Justice Leonardo-De
Castro.
However, I wish to add a few thoughts on the matter of executive privilege, specifically on the area of the presumptive privilege of confidentiality enjoyed by the President relative to Presidential conversations and correspondences necessary for shaping policies and decision-making.
I
U.S. v. Nixon,[1]
the leading case on executive privilege in the
The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of confidentiality of
judicial deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens, and, added to those values, is the
necessity for protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be
free to explore alternatives in the process of shaping polices and making
decisions and to do so in a way many would be unwilling to express except
privately. These are the consideration
justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation
of government and inextricably rooted in the separation of powers under the
Constitution. [2]
However,
it is simply a generalized privilege of confidentiality and does not enjoy the
same degree of unqualified acceptance as the governmental privilege against
public disclosure of state secrets regarding military, diplomatic and other
national security matters. Further, it
must be formally claimed or asserted by the appropriate executive official. As held in
The
privilege belongs to the government and must be asserted by it; it can neither
be claimed nor waived by a private party.
It is not to be lightly invoked.
There must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal
consideration by the officer. The court
itself must determine whether the circumstances are appropriate for the claim
of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.
In the
Because the foundation of the privilege
is the protection of the public interest, any demand for disclosure of
information or materials over which the privilege has been invoked must,
likewise, be anchored on the public interest.
Accordingly, judicial recognition of the validity of the claimed
privilege depends upon “a weighing of the public interest protected by the
privilege against the public interest that would be served by disclosure in a
particular case.”[5] While a “demonstrated specific need” for
material may prevail over a generalized assertion of privilege, whoever seeks
the disclosure must make “a showing of necessity sufficient to outweigh the
adverse effects the production would engender.”[6]
It is in light of these principles
that, in the case at bench, we are called upon to strike a balance between two
clashing public interests: the one espoused by the Executive Department, and
the other asserted by the respondents Senate Committees.
More specifically, the controversy on
this particular issue has boiled down to whether this presumptive (executive)
privilege may be validly invoked – and whether the invocation was procedurally
proper – over the following questions which the petitioner refused to answer
when he appeared at the hearing conducted by the respondents:
1. Whether the President followed-up the NBN project?
2. Were you dictated (by the President) to prioritize the
ZTE (proposal)?
3. Whether the President said to go ahead and approve the
project after being told about the alleged bribe (offer)?[7]
Executive Secretary Ermita articulated
the position taken by the executive department in this wise:
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 the
protection of the public interest in candid, objective, and even blunt 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, if 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
On the other hand, the respondents contended that in the
exercise of their power to conduct inquiries in aid of legislation under
Section 21, Article VI of the Constitution, they are entitled to the disclosure
of the information sought from the petitioner.
In opposition to the claim of executive privilege, they also raised the
general constitutional principles of full public disclosure of all transactions
involving public interest,[9] the right of the people to information on
matters of public concern,[10] public office is a public trust,[11] the President’s duty to faithfully execute
the laws,[12] and the due process clause.[13] Finally, they cited the postulate that
executive privilege cannot be resorted to in order to shield criminal activity
or wrongdoing.
A survey of relevant jurisprudence is
useful. Almonte v. Vasquez,[14] Chavez v. PCGG,[15]
and Chavez v. Public Estates Authority[16]
acknowledged the right of government to withhold certain types of information
from the public. In the Chavez cases, there was already
recognition of “privileged information” arising from “separation of powers,”
commonly understood to include Presidential conversations, correspondences and
discussions in closed-door Cabinet meetings.
But it was in Senate v. Ermita
that the matter of the President’s presumptive privilege was explicitly
discussed.
However, foreign jurisprudence, notably
American decisions from which this Court had repeatedly drawn its conclusions,
still appear to be the more insightful.
For the case at bench, they should provide this Court the proper
perspective to deal with the problem at hand.
First, in U.S. v. Nixon, it is abundantly clear that when the general
privilege of confidentiality of Presidential communications notably made in the
performance of the President’s duties and responsibilities is ranged against
the requirements in the fair administration of criminal justice, executive
privilege must yield. According to the
U.S. Supreme Court, the right to the production of evidence at a criminal trial
has constitutional dimensions. The high
tribunal declared:
The interest in preserving
confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers
will be moved to temper the candor of their remarks by the infrequent occasions
of disclosure because of the possibility that such conversations will be called
for in the context of criminal prosecution.
On the other hand, the allowance of
the 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.
A President’s acknowledged need for confidentiality in the communications
of his office is general in nature, whereas the constitutional need for
production of relevant evidence in a criminal proceeding is specific and
central to the fair adjudication of a particular criminal case in the
administration of justice. Without
access to specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in
confidentiality of communications will not be vitiated by disclosure of a
limited number of conversations preliminarily shown to have some bearing on the
pending criminal case.[17]
However, in almost the same breath, the
Indeed, with respect to civil cases,
this admonition was reiterated and clarified in a subsequent decision involving
the Vice-President of the
In Cheney
v. U.S. District Court for the District of Columbia,[19] where the United States District Court for
the District of Columbia entered orders permitting discovery against
Vice-President Cheney, other federal officials and members of the National
Energy Policy Development Group (NEPDG) on the basis of the allegation of a
public interest organization and environmental group that NEPDG was subject to
procedural and disclosure requirements of the Federal Advisory Committee Act
(FACA), the U.S. Supreme Court stressed the disparity between criminal and
civil judicial proceedings in so far as the need for invocation of executive
privilege with sufficient specificity is concerned. In reversing the Court of Appeals, the U.S.
Supreme Court declared:
The Court of Appeals dismissed these separation of powers concerns. Relying on United States v. Nixon, it held that even though respondents’
discovery requests are overbroad and “go well beyond FACA’s requirements,” the
Vice-President and his former colleagues on the NEPDG “shall bear the burden”
of invoking privilege with narrow specificity and objecting to the discovery
requests with “detailed precision.” In
its view, this result was required by Nixon’s
rejection of an “absolute, unqualified Presidential privilege of immunity from
judicial process under all circumstances”.
x x x
The analysis, however, overlooks
fundamental differences in the two cases.
Nixon involves the proper
balance between the Executive’s interest in the confidentiality of its
communication and the “constitutional need for production of relevant evidence
in a criminal proceeding.” The Court’s
decision was explicit that it was “not … concerned with the balance between the
President’s generalized interest in confidentiality and the need for relevant
evidence in civil litigation … We address only the conflict between the
President’s assertion of a generalized privilege of confidentiality and the
constitutional need for relevant evidence in criminal trials.”
The distinction Nixon drew between criminal and civil proceedings is not just a
matter of formalism. x x x In light of
the “fundamental” and “comprehensive” need for “every man’s evidence” in the
criminal justice system, not only must the Executive Branch first assert
privilege to resist disclosure, but privilege claims that shield information
from a grand jury proceeding or a criminal trial are not to be “expansively
construed, for they are in derogation of the search for truth.” The need for information for use in civil
cases, while far from negligible, does not share the urgency or significance of
the criminal subpoena requests in Nixon. As Nixon
recognized, the right to the production of relevant evidence in civil
proceedings does not have the same “constitutional dimensions.”[20]
As to the conflict between the
confidentiality interest invoked by the President and congressional demands for
information in a legislative investigation, there is a close parallel between
the instant case and Senate Select
Committee on Presidential Campaign Activities v. Nixon.[21]
In that case, the Senate Committee
was created by resolution of the Senate to investigate “illegal, improper or
unethical activities” occurring in connection with the presidential campaign
and election of 1972, and “to determine … the necessity or desirability of new
congressional legislation to safeguard the electoral process by which the
President of the
Refusing to apply Nixon v. Sirica,[23] the
We
concluded that presidential conversations are presumptively privileged, even
from the limited intrusion represented by in camera examination of the
conversations by a court. The
presumption can be overcome only by an appropriate showing of public need by
the party seeking access to the conversations.
In Nixon v. Sirica, such a
showing was made by the Special Prosecutor: we think that this presumption of
privilege premised on the public interest in confidentiality must fall in the
face of the uniquely powerful showing by the Special Prosecutor. x x x As we have noted, the Special Prosecutor has
made a strong showing that the subpoenaed tapes contain evidence peculiarly
necessary to the carrying out of this vital function – evidence for which no effective substitute is available. The grand jury here is not engaged in a
general fishing expedition, nor does it seek in any way to investigate the
wisdom of the President’s discharge of his discretionary duties. On the contrary, the grand jury seeks
evidence that may well be conclusive to its decisions in on-going
investigations that are entirely within the proper scope of this authority.[24]
The
Court then denied the prayer of the Select Committee in this wise:
We
find that the Select Committee has failed to make the requisite showing. In its papers below and in its initial briefs
to this Court, the Committee stated that it seeks the materials in question in
order to resolve particular conflicts in the voluminous testimony it has heard,
conflicts relating to “the extent of malfeasance in the executive branch,” and,
most importantly, the possible involvement of the President himself. The Committee has argued that the testimony
before it makes out “a prima facie case that the President and his closest
associates have been involved in criminal conduct,” that the “materials bear on
that involvement,” and that these facts alone must defeat any presumption of
privilege that might otherwise prevail.
It is true, of course, that the
Executive cannot, any more than the other branches of government, invoke a
general confidentiality privilege to shield its officials and employees from
investigation by the proper governmental institutions into possible criminal
wrongdoing. x x x But under Nixon v. Sirica, the showing required to
overcome the presumption favoring confidentiality turned, not on the nature of
the presidential conduct that the subpoenaed material might reveal, but,
instead, 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 to its fulfillment. Here also
our task requires and our decision implies no judgment whatever concerning
possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of
the Committee’s showing must depend solely on whether the subpoenaed evidence
is demonstrably critical to the responsible fulfillment of the Committee’s
functions.
x x x x
The sufficiency of the Committee’s showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress’s legislative tasks and the responsibility of a grand jury, or an institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury’s need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least, not in the circumstances of this case.[25]
Applying the foregoing decisions to the
case at bench, it is my view that the respondents’ need for disclosure of the
information sought from the petitioner does not at all approximate the
“constitutional dimensions” involved in criminal proceedings. While it is true that the Senate Committees,
when engaged in inquiries in aid of legislation, derive their power from the
Constitution, this is not a situation analogous to that in Nixon, where the court’s ability to fulfill its constitutional
mandate to resolve a case or controversy within its jurisdiction hinged on the
availability of certain indispensable information. Rather, as in Senate Select Committee, this is a situation where Senate
Committees insist on obtaining information from the petitioner, without at all any
convincing showing how and why the desired information “is demonstrably
critical to the responsible fulfillment of the Committees’ functions.” Indeed, respondents have not adequately explained
how petitioner’s answers to the three questions are crucial to the task of
crafting the intended legislation given the inescapable fact that numerous
other persons, from the ranks of government and the private sector, had been
called to and had already testified at the respondent’s hearings.
My own legislative experience echoes
the perceptive observation of Senate
Select Committee:
While
fact-finding by a legislative committee is undeniably a part of its task,
legislative judgments normally depend more on the predicted consequences of
proposed legislative actions and their political acceptability, than on precise
reconstruction of past events; Congress
frequently legislates on the basis of conflicting information provided in its
hearings.
It is
not uncommon for some legislative measures to be fashioned on the strength of
certain assumptions that may have no solid factual precedents. In any event, the respondents have not
demonstrated that the information sought is unqualifiedly necessary for a
legitimate legislative purpose, or that the intended legislation would be
stillborn without petitioner’s responses to the three questions. The respondents have likewise failed to show
that the information needed for legislation cannot be obtained from sources
other than the petitioner. In fine, the
presumption was not successfully rebutted.
II
On the procedure for the invocation of
the privilege, it is the respondents’ position that when the President decides
to claim this presumptive privilege, there arises the concomitant duty on her
part to express the reason/s therefor with specificity. From the vantage point of respondents, it
appears that the burden of showing the propriety of the claim of privilege
devolves upon whoever invokes it, even if the corresponding obligation on the
part of whoever demands disclosure to prove necessity of access to the
information desired has not been met.
My own view of the process is quite the
opposite. When the President invokes the
privilege, announcing the reasons therefor – in this case, the possible rupture
of diplomatic and economic relations with the People’s Republic of
In Nixon,
the criminal subpoenas were required to comply with the exacting standards of relevancy, admissibility and specificity. As declared by the U.S. Supreme Court:
Upon
invocation of the claim of privilege by the President to whom subpoena duces
tecum had been directed, it was the duty of the district court to treat the
subpoenaed material as presumptively privileged and to require the special
prosecutor to demonstrate that the presidential material was essential to
justice of the pending criminal case.[27]
Thus,
the Court addressed the issue of executive privilege only after it was
satisfied that the special prosecutor had adequately met these demanding
requirements.
In Nixon
v. Sirica, the Court found that the Special Prosecutor had made a uniquely
powerful showing that the subpoenaed tapes contain evidence peculiarly
necessary to carrying out the vital functions of the grand jury – evidence for
which no effective substitute was available.
In that light, the presumptive privilege had to yield.
In the present controversy, no such
standards were set, and none was observed.
In lieu of a showing of a specific
necessity for disclosure, the respondent Committees continue to insist on the
primacy of its power of legislative inquiry, upon a claim that to uphold the
presumptive privilege is an impermissible infringement of the legislative
power, and to permit the withholding of the desired information will result in
the emasculation of the Senate as a legislative body. Of course, this is accompanied by the
invocation of the general constitutional principles of transparency, right to
information, due process, public office is a public trust, among others, and
the unbending adherence to the pronouncement in Senate v. Ermita that: “A claim of privilege, being a claim of
exemption from an obligation to disclose information, must, therefore, be
clearly asserted.”
But if
Then, there is the undeniable
imperative that executive privilege cannot be used to shield criminal activity
or wrongdoing. Again, we must draw
reason from extant jurisprudence. Senate Select Committee explicates the
point which the respondents are missing:
But
under Nixon v. Sirica, the showing
required to overcome the presumption favoring confidentiality turned, not on
the nature of the presidential conduct that the subpoenaed material might
reveal but, instead, 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 to its fulfillment. Here
also our task requires and our decision implies no judgment whatever concerning
possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of
the Committee’s showing must depend solely on whether the subpoenaed evidence
is demonstrably critical to the responsible fulfillment of the Committee’s
functions.
It is the function of the respondents
to investigate criminal activity; this is a responsibility of other agencies,
such as the Office of the Ombudsman.
This Court may even take judicial notice of the fact that the Ombudsman,
upon a request of the President, has already commenced a criminal investigation
into the subject of the legislative inquiry, the NBN deal. Presumably, the Ombudsman has already
summoned the petitioner to give testimony therein, and by analogy with Nixon v. Sirica, petitioner cannot
withhold information in that investigation by invoking executive privilege.
Finally, it should not escape this
Court that on oral argument, the respondents were asked if they had complied
with the following guidelines suggested in Senate
v. Ermita, as a way of avoiding the pitfalls in Bengzon v. Senate Blue Ribbon Committee:[28]
One possible way for Congress to
avoid such a result as occurred in Bengzon
is to indicate in its invitations to the public officials concerned or to any
person for that matter, the possible needed statute which prompted the need for
the inquiry. Given such statements in
its invitations, along with the usual indication of the subject of the inquiry
and the questions relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.
In reply, the respondents admitted that
they did not. This admission has cast a
shadow on the regularity of the inquiry such that even the main argument of
respondents could fall.
In light of the foregoing, I vote to GRANT the petition.
ANTONIO EDUARDO B. NACHURA
Associate
Justice
[1] 418
[2] U.S. v. Nixon, supra., cited in Almonte v. Vasquez, 314 Phil. 150
(1995).
[3] 345
[4] Supra.
[5] Black v. Sheraton Corporation of
[6] Black v. Sheraton Corporation of America,
supra.
[7] Letter
dated
[8]
[9] Philippine Constitution, Art. II, Sec. 26.
[10] Philippine Constitution, Art. III, Sec. 7.
[11] Philippine Constitution, Art. XI, Sec. 1.
[12] Philippine Constitution, Art. VII, Sec. 17.
[13] Philippine Constitution, Art. III, Sec. 1.
[14] 314 Phil. 150 (1995).
[15] 360 Phil. 133 (1998).
[16] 433 Phil. 506 (2002).
[17] U.S. v. Nixon, supra.
[18] Underscoring supplied.
[19] 542
[20]
[21] 498
F. 2d 725, 162
[22] Senate Select Committee v. Nixon, supra.
[23] 159
[24] Senate Select Committee, supra.
[25]
[26] See letter of Executive Secretary Ermita, Annex “C,” Petition.
[27] U.S. v. Nixon, supra.
[28] G.R. No. 89914,