ROMULO L. NERI, PETITIONER, VS. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONA…

Neri versus Senate Committee on Accountability of Public Officers and Investigations

The Case

This is the case of Romulo Neri against the Senate Committee on Accountability of Public Officers and Investigations, the Senate Committee on Trade and Commerce, and the Senate Committee on National Defense and Security. Neri was the Secretary of the National Economic and Development Authority. He had testified before the Senate committees about the National Broadband Project, a project awarded by the Department of Transportation and Communications to Zhong Xing Telecommunications Equipment. When the committees pressed him on his conversations with President Gloria Macapagal Arroyo, he refused to answer and invoked executive privilege. The President, through Executive Secretary Eduardo Ermita, backed that claim. The committees then cited him in contempt and ordered his arrest. Neri asked the Supreme Court to stop them. The case matters because it settles whether there is a presumptive presidential communications privilege in our legal system, and how far the Senate's power of inquiry may reach into the President's confidential conversations.

Procedural History

Neri filed a petition for certiorari with the Supreme Court on December 7, 2007, asking the Court to annul the Senate committees' proceedings. On January 30, 2008, the committees cited him in contempt and ordered his arrest and detention at the Office of the Senate Sergeant-at-Arms until he would appear and testify. Neri moved for reconsideration of that order and then filed a Supplemental Petition for Certiorari with an urgent application for a temporary restraining order and preliminary injunction on February 1, 2008. On February 4, 2008, the Court required the parties to observe the status quo prevailing before the contempt order. On March 25, 2008, the Court granted Neri's petition on two grounds: the communications elicited by the three questions were covered by executive privilege, and the committees committed grave abuse of discretion in issuing the contempt order. The committees filed a motion for reconsideration on April 8, 2008. The Court now resolves that motion.

Facts

On September 26, 2007, Neri appeared before the Senate committees and testified for about eleven hours on the National Broadband Project. He disclosed that then Commission on Elections Chairman Benjamin Abalos offered him 200 million pesos in exchange for his approval of the project. He also narrated that he informed President Arroyo of the bribery attempt, and that she instructed him not to accept the bribe. But when the committees probed further into his discussions with the President about the project, Neri refused to answer, invoking executive privilege. Specifically, he refused to answer three questions: whether the President followed up the project, whether she directed him to prioritize it, and whether she directed him to approve it.

The committees persisted and required him to appear and testify again on November 20, 2007. On November 15, 2007, Executive Secretary Ermita wrote to the committees and asked them to dispense with Neri's testimony on the ground of executive privilege. He explained that the questions fell under conversations and correspondence between the President and public officials, that maintaining their confidentiality was necessary to the President's executive and policy decision-making, and that disclosure would impair diplomatic and economic relations with the People's Republic of China. Neri did not appear on November 20, 2007, upon orders of the President invoking executive privilege.

On November 22, 2007, the committees issued a show-cause letter requiring Neri to explain why he should not be cited in contempt. On November 29, 2007, Neri replied that he had no intention to ignore the hearing, that he thought only the privileged questions remained, and that he was willing to appear and testify on new matters, provided he be furnished in advance with what else he needed to clarify. The committees found his explanation unsatisfactory. Without responding to his request for advance notice, they issued an order on January 30, 2008 citing him in contempt and ordering his arrest and detention until he would appear and testify.

Issues

• Whether or not there is a recognized presumptive presidential communications privilege in our legal system.
• Whether or not there is factual or legal basis to hold that the communications elicited by the three questions are covered by executive privilege.
• Whether or not the respondent committees have shown that the communications elicited by the three questions are critical to the exercise of their functions.
• Whether or not the respondent committees committed grave abuse of discretion in issuing the contempt order.

Applicable Provisions

Section 21, Article VI of the Constitution provides:

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 persons appearing in or affected by such inquiries shall be respected.

This is the provision that defines the Senate's power of inquiry and the limits on it, and the committees were found to have violated it because their inquiry was not conducted in accordance with duly published rules of procedure.

Ruling

On the first issue, the Court held that there is a recognized presumptive presidential communications privilege in our legal system. The Court rejected the committees' argument that its earlier decision reversed the presumption in Senate versus Ermita that inclines heavily against executive secrecy and in favor of disclosure. The Court explained that the presumption in Senate versus Ermita referred only to the exemption claimed by executive officials by mere virtue of their positions under the assailed executive order, and not to the presidential communications privilege itself. The Court recalled that in Almonte versus Vasquez it had 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 quoted the Nixon formulation:

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.

Thus, when the President invokes the presumptive privilege of presidential communications on a matter clearly within the domain of the Executive, the presumption dictates that it be recognized and given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing it.

On the second issue, the Court held that there is factual and legal basis to hold that the communications elicited by the three questions are covered by executive privilege. The communications fell under the presidential communications privilege because they related to a quintessential and non-delegable power of the President, they were received by a close advisor of the President, and the committees failed to adequately show a compelling need that would justify limiting the privilege and the unavailability of the information elsewhere by an appropriate investigating authority. The Court stressed that it was the President herself, through Executive Secretary Ermita, who invoked the privilege on a specific matter, unlike the blanket authorization struck down in Senate versus Ermita.

On the third issue, the Court held that the committees failed to show that the communications were critical to the exercise of their functions. The Court noted that the committees themselves admitted they could dispense with Neri's testimony if certain documents were given to them, which showed the information was available elsewhere.

On the fourth issue, the Court held that the committees committed grave abuse of discretion in issuing the contempt order. There was a valid claim of executive privilege; their invitations to Neri did not contain the questions relevant to the inquiry; there was a cloud of doubt as to the regularity of the proceeding that led to the contempt order; they violated Section 21, Article VI of the Constitution because their inquiry was not in accordance with duly published rules of procedure; and they issued the contempt order arbitrarily and precipitately.

Doctrine

Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. There is a recognized presumptive presidential communications privilege in our legal system, and it is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. When the President invokes that presumptive privilege on a matter clearly within the domain of the Executive, the presumption dictates that it be recognized and given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing it. The Senate's power of inquiry under Section 21, Article VI of the Constitution must be exercised in accordance with its duly published rules of procedure, and the rights of persons appearing in or affected by such inquiries must be respected.

Disposition

The Court denied the motion for reconsideration and upheld its earlier decision granting Neri's petition, so Neri won and the claim of executive privilege was sustained.

Remember This

Memorize this line: executive privilege is not a personal privilege but one that adheres to the Office of the President, and presidential communications carry a presumptive privilege that prevails absent a compelling need for disclosure. Examiners like to use this case to test the balance between the Senate's power of inquiry under Section 21, Article VI and the President's claim of executive privilege.