ROMULO L. NERI vs.

BLUE RIBBON COMMITTEE

Facts:

On September 26, 2007, petitioner appeared before respondent Committees and testified on matters
concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of
Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE").
Petitioner disclosed that then COMELEC Chairman Benjamin Abalos offered him P200 Million in
exchange for his approval of the NBN Project. He further narrated that he informed President Gloria
Macapagal Arroyo of the bribery attempt and that she instructed him not to accept the bribe. When the
Respondent Committees probed further on President Arroyo and petitioner’s discussions relating to the
NBN Project, the petitioner refused to answer three (3) questions, invoking "executive privilege.” To be
specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed up the NBN
Project; (b) whether or not she directed him to prioritize it and; (c) whether or not she directed him to
approve it.

The Respondent Committees persisted in knowing petitioner’s answers by requiring him to appear and
testify once more on November 20, 2007. However, the petitioner did not appear before the Respondent
Committees upon orders of the President invoking executive privilege. On November 22, 2007, the
Respondent Committees issued the show-cause letter requiring the Petitioner to explain why he should not
be cited in contempt. In his reply, he manifested that it was not his intention to ignore the Senate hearing
and that he thought the only remaining questions were those he claimed to be covered by executive privilege.
He also manifested his willingness to appear and testify should there be new matters to be taken up. He just
requested that he be furnished "in advance as to what else" he "needs to clarify." Without responding to the
Petitioner’s request, the Respondent Committee issued the Order dated January 30, 2008, citing the
Petitioner in contempt and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms
until such time that he would appear and give his testimony.

Issues:

1. Whether or not there is a recognized presumptive presidential communications privilege in our legal
system.

2. Whether or not there is factual or legal basis to hold that the communications elicited by the three (3)
questions are covered by executive privilege.

3. Whether or not Respondent Committees have shown that the communications elicited by the three (3)
questions are critical to the exercise of their functions.

4. Whether or not Respondent Committees committed grave abuse of discretion in issuing the contempt
order.
Rulings:

1. Yes. In the earlier case of Almonte v. Vasquez, the court affirmed that the presidential communications
privilege is fundamental to the operation of government and inextricably rooted in the separation of powers
under the Constitution. The Court articulated in these cases that "there are certain types of information
which the government may withhold from the public," that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other national security matters";
and that "the right to information does not extend to matters recognized as ‘privileged information’ under
the separation of powers, by which the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings.”

2. Yes.

• The power to enter into an executive agreement is a "quintessential and non- delegable
presidential power.” — “Quintessential” is defined as the most perfect embodiment of something,
the concentrated essence of substance. "Non- delegable" means that a power or duty cannot be
delegated to another or, even if delegated, the responsibility remains with the obligor.

The power to enter into an executive agreement is in essence an executive power. This authority of
the President to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.

The inviolate doctrine of separation of powers among the legislative, executive and judicial
branches of government by no means prescribes absolute autonomy in the discharge by each
branch of that governmental power assigned to it by the sovereign people.

• The "doctrine of operational proximity" was laid down precisely to limit the scope of
the presidential communications privilege but, in any case, it is not conclusive.

The main consideration is to limit the availability of executive privilege only to officials who stand
proximate to the President, not only by reason of their function, but also by reason of their
positions in the Executive’s organizational structure. In the case at bar, the danger of expanding
the privilege "to a large swath of the executive branch” is absent because the official involved here
is a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her
alter ego and a member of her official family. Thus, respondent Committees’ fear that the scope of
the privilege would be unnecessarily expanded with the use of the operational proximity test is
unfounded.

• The President’s claim of executive privilege is not merely based on a generalized

The President’s claim of executive privilege is not merely founded on her generalized interest in
confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita specified
presidential communications privilege in relation to diplomatic and economic relations with
another sovereign nation as the bases for the claim. The Letter stated: 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.

In the case at bar, the Court, in upholding executive privilege with respect to three (3) specific
questions, did not in any way curb the public’s right to information or diminish the importance of
public accountability and transparency. Besides, the right primarily involved here is the right of
Respondent Committees to obtain information allegedly in aid of legislation, not the people’s right to
public information. It is worth mentioning at this juncture that the parties here are respondent
Committees and petitioner Neri and that there was no prior request for information on the part of
any individual citizen.

The Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits Respondent Committees from
inquiring into the NBN Project. For clarity, it must be emphasized that the assailed Decision did
not enjoin respondent Committees from inquiring into the NBN Project. All that is expected from
them is to respect matters that are covered by executive privilege.

3. No. The jurisprudential test laid down by the Court in past decisions on executive privilege is that the
presumption of privilege can only be overturned by a showing of compelling need for disclosure of the
information covered by executive privilege.

The presumption in favor of Presidential communications puts the burden on the respondent
Senate Committees to overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject of this case, to enable
them to craft legislation. Interestingly, during the Oral Argument before this Court, the counsel for
respondent Committees impliedly admitted that the Senate could still come up with legislations
even without petitioner answering the three (3) questions. In other words, the information being
elicited is not so critical after all.

4. Yes. The Respondent Committees committed grave abuse of discretion in issuing the contempt order
because:

(a) there was a valid claim of executive privilege

(b) their invitations to Petitioner did not contain the questions relevant to the inquiry —
Witnesses have their constitutional right to due process. They should be adequately informed what
matters are to be covered by the inquiry. It will also allow them to prepare the pertinent information and
documents.

(c) there was a cloud of doubt as to the regularity of the proceeding that led to their
issuance of the contempt order — The contempt order which was issued on January 30, 2008 was
not a faithful representation of the proceedings that took place on said date. Records clearly show that
not all of those who signed the contempt order were present during the January 30, 2008 deliberation
when the matter was taken up.
(d) they violated Section 21, Article VI of the Constitution because their inquiry was not in
accordance with the "duly published rules of procedure,”

Section 21, Article VI of the Constitution states that: The Senate or the House of Representatives or
any of its respective committees may conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of person appearing in or affected by such inquiries
shall be respected.

It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or
otherwise make the published rules clearly state that the same shall be effective in subsequent
Congresses or until they are amended or repealed to sufficiently put public on notice.

e) they issued the contempt order arbitrarily and precipitately — As we have stressed before,
petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees, petitioner
did not assume that they no longer had any other questions for him. Note that petitioner is an executive
official under the direct control and supervision of the Chief Executive.