I wish to briefly summarize below the salient parts of the dissenting opinion of Chief Justice Reynato Puno in the case of “ROMULO L. NERI vs. SENATE
The case involved “the scope and use of executive privilege” which had cast a long shadow on the ongoing Senate inquiry regarding the “attempted bribery of high government officials in the consummation of the National Broadband Network (NBN) Contract of the Philippine government”.
On April 21, 2007, the Department of Transportation and Communications (DOTC), through Secretary Leandro Mendoza, and Zhing Xing Telecommunications Equipment (ZTE), through its Vice President Yu Yong, executed in Boao, China, a “Contract for the Supply of Equipment and Services for the National Broadband Network Project” (“NBN-ZTE Contract”) worth US$ 329,481,290.00 or approximately PhP 16 billion. ZTE is a corporation owned by the Government of the People’s Republic of
The NBN-ZTE Contract became the subject of investigations by the Joint Committees of the Senate, consisting of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon), Committee on Trade and Commerce and Committee on National Defense and Security after the filing of resolutions and delivery of privilege speeches by Sen. Aquilino Pimentel Jr., Sen. Panfilo Lacson, Sen. Miriam Santiago, and Sen. Manuel Roxas III.
The hearings in aid of legislation started in September 2007 and have yet to be concluded.
On September 26, 2007, petitioner Romulo L. Neri, upon invitation by the respondent Senate Committees, attended the hearing and testified. Petitioner was the Director General of the National Economic and Development Authority (NEDA) during the negotiation and signing of the NBN-ZTE Contract. He testified “that President Macapagal-Arroyo had initially given instructions that there would be no loan and no guarantee for the NBN Project, and that it was to be undertaken on an unsolicited Build-Operate-Transfer (BOT) arrangement, so that the government would not expend funds for the project”. Eventually, however, “the NBN Project was awarded to ZTE with a government-to-government loan”.
Petitioner Neri declared “that then Commission on Elections Chairperson Benjamin Abalos, the alleged broker of the NBN-ZTE Contract, offered him PhP 200 million in relation to the NBN-ZTE Contract”. He stated that he informed President Macapagal-Arroyo of the bribe attempt by Chairperson Abalos, and “that the President told him not to accept the bribe”. When Senator Francis N. Pangilinan asked petitioner whether the President had followed up on the NBN Contract, he refused to answer. He invoked “executive privilege which covers conversations between the President and a public official”. Senator Loren B. Legarda asked petitioner if there was any government official higher than he who had dictated that the ZTE be prioritized over Amsterdam Holdings, Inc. (AHI), another company applying to undertake the NBN Project on a BOT arrangement. Petitioner again invoked executive privilege, as he claimed that the question may involve a conversation between him and the President. Senator Pia S. Cayetano also asked petitioner whether the President told him what to do with the project - after he had told her of the PhP 200 million attempted bribe and she told him not to accept it – but petitioner again invoked executive privilege. At this juncture, Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security, sought clarification from petitioner on his source of authority for invoking executive privilege. Petitioner replied that “he had been instructed by Executive Secretary Eduardo R. Ermita to invoke executive privilege on behalf of the President, and that a written order to that effect would be submitted to the respondent Senate Committees”.
Several Senators urged petitioner to inform the respondent Senate Committees of “the basis for his invocation of executive privilege as well as the nature and circumstances of his communications with the President -- whether there were military secrets or diplomatic and national security matters involved”. Petitioner did not accede and instead cited the coverage of executive privilege under “Section 2(a) of Executive Order 464”, which includes “all confidential or classified information between the President and public officers covered by the Executive Order, such as conversations, correspondence between the President and public official.” As respondent Senate Committees needed to know the basis for petitioner’s invocation of executive privilege in order to decide whether to accept it or not, the petitioner was invited to an “executive session” to discuss the matter. During the executive session, however, petitioner felt ill and was allowed to go home with the undertaking that he would return.
On November 13, 2007, a subpoena ad testificandum was issued to petitioner, requiring him to appear before the Committee on Accountability of Public Officers and Investigations (Blue Ribbon). The subpoena was signed by Senator Alan Peter S. Cayetano, Chairperson of the Senate Blue Ribbon Committee; Senator Manual A. Roxas III, Chairperson of the Committee on Trade and Commerce; and Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security; and it was approved and signed by Senate President Manuel B. Villar.
On November 15, 2007, Executive Secretary Eduardo Ermita wrote to respondent Senate Blue Ribbon Committee Chairperson Alan Peter Cayetano. He communicated the request of the Office of the President to dispense with the petitioner’s testimony on November 20, 2007. The three (3) questions for which executive privilege was invoked “by Order of the President” were the following:
“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?”
The letter of Executive Secretary Ermita stated that the foregoing questions fell “under conversations and correspondence between the President and public officials which are considered executive privilege”, citing Almonte v. Vasquez, G.R. 95367, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002. He added that “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”. He stated that 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” and that 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”.
Petitioner did not appear before the respondent Senate Committees on November 20, 2007. Consequently, on November 22, 2007, the committees wrote to petitioner requiring him “to show cause why he should not be cited for contempt for failing to attend the hearing on November 20, 2007, pursuant to Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon)”. The letter was signed by the Chairpersons of the Senate Blue Ribbon Committee, the Committee on Trade and Commerce and the Committee on National Defense and Security and was approved by the Senate President.
On December 6, 2007, petitioner filed the Petition at bar contending that he had properly invoked executive privilege to justify his non-appearance at the November 20, 2007 hearing and praying that the Show Cause Order dated November 22, 2007 be declared null and void.
On January 30, 2008, an Order citing petitioner for contempt was issued by respondent Senate Committees, “ordering his arrest and detention in the Office of the Senate Sergeant-At-Arms until such time that he will appear and give his testimony”.
On January 30, 2008, petitioner wrote to Senate President Manuel Villar, Senator Alan Peter S. Cayetano, Chairperson of the Committee on Accountability of Public Officers & Investigations (Blue Ribbon); Senator Manuel Roxas, Chairperson of the Committee on Trade & Commerce; and Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security, seeking reconsideration of the Order of arrest.
On February 5, 2008, petitioner filed a Supplemental Petition for Certiorari, praying that the Court issue a Temporary Restraining Order or Writ of Preliminary Injunction enjoining respondent Senate Committees from enforcing the Order for his arrest, and that the Order of arrest be annulled.
Respondent Senate Committees filed their comment, arguing that: (1) there is no valid justification for petitioner to claim executive privilege; (2) his testimony is material and pertinent to the Senate inquiry in aid of legislation; (3) the respondent Senate Committees did not abuse their authority in issuing the Order of arrest of petitioner; and (4) petitioner did not come to Court with clean hands.
On March 4, 2008, the Oral Argument was held. Thereafter, the Court ordered the parties to submit their memoranda. Both parties submitted their Memoranda on March 17, 2008. On the same day, the Office of the Solicitor General filed a Motion for Leave to Intervene and to Admit Attached Memorandum.
In the Oral Argument held on March 4, 2008, the Court delineated the following issues to be resolved:
1. What communications between the President and petitioner Neri are covered by the principle of executive privilege?
2. What is the proper procedure to be followed in invoking executive privilege?
3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for noncompliance with the subpoena?
Chief Justice Puno opened his dissenting opinion by defining executive privilege as the “tension between disclosure and secrecy in a democracy”. He stated that “the provisions of the U.S. Constitution say little about government secrecy or public access” while “in contrast, the 1987 Philippine Constitution is replete with provisions on government transparency, accountability and disclosure of information”.
The express provisions of the 1987 Philippine Constitution are as follows:
- Article III, Sec. 7, of the 1987 Constitution provides that “the right of the people to information on matters of public concern shall be recognized”; and that “access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law”.
- Article II, Sec. 24, of the 1987 Constitution provides that “the State recognizes the vital role of communication and information in nation-building”. Sec. 28 of the said Article II provides that “subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest”.
- Article XI, Sec. 1, of the 1987 Constitution, on the Accountability of Public Officers, states that “public office is a public trust”; and that “public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives”.
- Article XI, Sec. 21, of the 1987 Constitution, on National Economy and Patrimony, states, that “foreign loans may be incurred in accordance with law and the regulation of the monetary authority”; and that “information on foreign loans obtained or guaranteed by the Government shall be made available to the public”.
- Article XVI, Sec. 10, of the 1987 Constitution, on General Provisions, states that “the State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press”.
Puno reminded the Court that “the separation of powers between the three branches of government is not absolute”; and that the Constitution “enjoins upon its branches separateness but interdependence, and autonomy but reciprocity …according to common sense and the necessities of governmental co-ordination”, a constitutional design that “requires an internal balancing mechanism”.
Citing the fact that the standard justification for a congressional investigation in aid of legislation is the presumed need for new or remedial legislation, Puno stated that Article VI, Section 21 of the 1987 Constitution provides 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” and that “the rights of persons appearing in or affected by such inquiries shall be respected”. He stated that “included in the legislative power of investigation is the power of contempt or process to enforce”, which is incidental, implied, essential and appropriate auxiliary to the legislative function.
According to Puno, there are two requirements for the valid exercise of the legislative power of investigation and contempt of witness for contumacy: “first, the existence of a legislative purpose, i.e., the inquiry must be in aid of legislation, and second, the pertinency of the question propounded”.
According to Puno, 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 information respecting the conditions which the legislation is intended to affect or change.”
As to the pertinency of the question propounded, Puno argued that the test of pertinency is whether a question itself is in the ultimate area of investigation; and that in determining pertinency, the court looks to the history of the inquiry as disclosed by the record. 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 Constitution, 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.
Neri invoked “executive privilege” as a defense in his refusal to answer the questions of the Senate.
The U.S. Constitution (and the Philippine Constitution) 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. Puno stated that the history of executive privilege showed that the privilege was strongest when used not out of a personal desire to avoid culpability, but based on a legitimate need to protect the President’s constitutional mandate to execute the law, to uphold prudential separation of powers, and above all, to promote the public interest.
In the
However, there is a need to balance the constitutional functions between the contending branches of government, i.e., the President and the Senate. The court should determine whether disclosure of the disputed information impairs the President’s ability to perform her constitutional duties more than disclosure would impair Congress’s ability to perform its constitutional functions. The balancing should result in the promotion of the public interest.
The courts have the power to assess whether nondisclosure of the information sought will seriously impair the performance of the constitutional function of the Senate to legislate. A general claim of a chilling effect on the President’s performance of her functions if the controversial questions were answered is not enough. Although the courts may accord presidential communications a presumptive privilege, the strength of this privilege 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).
