Neri vs Senate

G.R. No. 180643 September 4, 2008

FACTS: On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven
(11) hours on matters concerning the National Broadband Project, a project awarded by the Department of
Transportation and Communications to Zhong Xing Telecommunications Equipment . Petitioner disclosed that then
Commission on Elections 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 on President Arroyo and
petitioner’s discussions relating to the NBN Project, petitioner refused to answer, 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.

Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring him to appear
and testify once more. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent
Committees and requested them to dispense with petitioner’s testimony on the ground of executive privilege.

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.

On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President invoking
executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter requiring him
to explain why he should not be cited in contempt. On November 29, 2007, in petitioner’s reply to respondent
Committees, 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."

Respondent Committees found petitioner’s explanations unsatisfactory. Without responding to his request for advance
notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; citing petitioner in
contempt of respondent Committees 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.

On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications elicited
by the three (3) questions were covered by executive privilege; and second, respondent Committees committed grave
abuse of discretion in issuing the contempt order.

On April 8, 2008, respondent Committees filed the present motion for reconsideration.

ISSUE: Whether or not the claim for Executive Privilege is valid.

HELD: Yes, it is valid. The Court, in the earlier case of Almonte v. Vasquez, affirmed that the presidential
communications privilege is fundamental to the operation of government and inextricably rooted in the separation
of powers under the Constitution. Even Senate v. Ermita, the case relied upon by respondent Committees, reiterated
this concept. There, the Court enumerated the cases in which the claim of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG), and Chavez v. PEA. 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."
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President
to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a
specific matter involving an executive agreement between the Philippines and China, which was the subject of the
three (3) questions propounded to petitioner Neri in the course of the Senate Committees’ investigation. Thus, the
factual setting of this case markedly differs from that passed upon in Senate v. Ermita.

The Decision in this present case hews closely to the ruling in Senate v. Ermita, to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has
been defined and used in the legal literature of the United States.

Schwart defines executive privilege as "the power of the Government to withhold information from the
public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and high-
level executive branch officers to withhold information from Congress, the courts, and ultimately the public."
x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following
portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like the
claim of confidentiality of judicial deliberations, for example, he 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 policies and making
decisions and to do so in a way many would be unwilling to express except privately. These are the
considerations 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 x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication," which
was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the Motion
for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive authorization" of an
executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive
secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-
contradiction.