Republic of the Philippines
SUPREME COURT
Manila

EN BANC

DECISION

LEONARDO-DE CASTRO, J.:

Dissenting OpinionS:
Puno, C.J., Carpio Morales, J.
Separate Opinion:
Ynares-Santiago, J.
Dissenting and Concurring Opinion:
Carpio, J.
Concurring OpinionS:
Corona, J., Chico-Nazario, J.
Separate Concuring Opinions:
Tinga, J., Velasco, Jr., J., Nachura, J., Brion, J.

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhing Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos).  The Project was to be financed by the People’s Republic of China.
 
In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:
 
 
At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate, to wit:
 

Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in  the  NBN  Project.  Petitioner was among those invited.  He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007.   However, he attended only the September 26 hearing, claiming he was “out of town” during the other dates.
 
In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA.  It appeared that the Project was initially approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese Government.
 
On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours.  He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project.  He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe.  However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking “executive privilege”. In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project,[6] (b) whether or not she directed him to prioritize it,[7]  and (c) whether or not she directed him to approve.[8]
 
Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on   November 20, 2007.
 
However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees to dispense with petitioner’s testimony on the ground of  executive  privilege.   The pertinent portion of the letter reads:
 
With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007.
 
Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).
 
Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit:
 
 
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002).  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 protection of the public interest in candid, objective, and even blunt or 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 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.
 
In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
 
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE/NBN project be dispensed with.
 
On November 20, 2007, petitioner did not appear before respondent Committees.  Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads:
 
 
 
On November 29, 2007, petitioner replied to respondent Committees, manifesting 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, thus:
 
 
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 him 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. The said Order states:
 

On the same date, petitioner moved for the reconsideration of the above Order. [9]  He insisted that he has not shown “any contemptible conduct worthy of contempt and arrest.”  He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions.  He also mentioned the petition for certiorari he filed on December 7, 2007 . According to him, this should restrain respondent Committees from enforcing the show cause Letter “through the issuance of declaration of contempt” and arrest.
 
In view of  respondent Committees’ issuance of  the contempt Order,  petitioner  filed on February 1, 2008  a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contempt Order.
 
On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from implementing their contempt Order,  (b) requiring the parties to observe the status quo prevailing prior    to the issuance of the assailed order, and (c) requiring respondent  Committees to file their comment.
 
Petitioner contends that respondent Committees’  show cause Letter  and contempt Order  were  issued with grave  abuse  of  discretion amounting  to  lack  or  excess  of  jurisdiction.  He stresses that his conversations with President Arroyo are “candid discussions meant to explore options in making policy decisions.” According to him, these discussions “dwelt on the impact of the bribery scandal involving high government officials on the country’s diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines.”  He also emphasizes that his claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v. Ermita[10] and United States v. Reynolds.[11] Lastly, he argues that he is precluded from disclosing communications made  to  him  in  official  confidence  under Section 7[12] of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 24[13] (e) of Rule 130 of the Rules of Court.
 
Respondent Committees assert the contrary. They argue that (1) petitioner’s testimony is material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner’s arrest; and (4) petitioner has not come to court with clean hands. 
 
In the oral argument held last March 4, 2008, the following issues were ventilated:
 
 
After the oral argument, the parties were directed to manifest to the Court within twenty-four (24) hours if they are amenable to the Court’s proposal of allowing petitioner to immediately resume his testimony before the Senate Committees to answer the other questions of the Senators without prejudice to the decision on the merits of this pending petition.  It was understood that petitioner may invoke executive privilege in the course of the Senate Committees proceedings, and if the respondent Committees disagree thereto, the unanswered questions will be the subject of a supplemental pleading to be resolved along with the three (3) questions subject  of  the  present petition.[14]  At the same time, respondent Committees were directed to submit several pertinent documents.[15] 
 
The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March 5, 2008.  As to the required documents,  the Senate and respondent Committees  manifested that they would not be able to submit the latter’s “Minutes of all meetings” and the “Minute Book”  because it has never been the “historical and traditional legislative practice to keep them.”[16]  They instead submitted the Transcript of Stenographic Notes of respondent Committees’ joint public hearings.
 
On March  17, 2008,  the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene and to Admit Attached Memorandum, founded on the following arguments:
 
 
The Court granted the OSG’s motion the next day, March 18, 2007.
 

First, are the communications elicited by the subject three (3) questions covered by executive privilege?   
 
And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order?

SECTION 21. 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.
 
SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance.  Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission.
 
Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.)

I
The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege

A- There is a Recognized Claim of Executive Privilege Despite the Revocation of E.O. 464

1)  The protected communication must relate to a “quintessential  and non-delegable presidential power.”
 
2)  The communication must be authored or “solicited and received” by a close advisor of the President or the President himself.  The judicial test is that an advisor must be in “operational proximity” with the President.
 
3)  The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.[44]

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

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 investigations by the proper governmental institutions into possible criminal wrongdoing.  The Congress learned this as to its own privileges in Gravel v. United States,  as did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. 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.

In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it ‘would aid in a determination whether legislative involvement in political campaigns is necessary’ and ‘could help engender the public support needed for basic reforms in our electoral system.’  Moreover, Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes.
 
We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have, quite apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. x  x  x  We have been shown no evidence indicating that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for the tapes premised solely on an asserted power to investigate and inform cannot justify enforcement of the Committee's subpoena.

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 any 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. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied)

The right of the people to information on matters of public concern shall be recognized.   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.

The provision itself expressly provides the limitation, i.e. as may  be provided by law.  Some of these laws are Section 7 of Republic Act (R.A.) No. 6713,[51] Article 229[52] of the Revised   Penal  Code,  Section 3 (k)[53] of R.A. No. 3019, and Section 24(e)[54]  of  Rule 130 of  the Rules of Court.   These are in addition to what our body of jurisprudence classifies as confidential[55] and what our Constitution considers as belonging to the larger concept of executive privilege.  Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind.

There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to individual citizen.