Republic
of the Philippines
SUPREME
COURT
Manila
EN
BANC
ROMULO
L. NERI,
Petitioner, |
-versus-
G.
R. No. 180643
March
25, 2008
SENATE
COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY,
Respondents.
|
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.
At
bar is a petition for certiorari
under Rule 65 of the Rules of Court assailing the show
cause Letter[1] dated November 22, 2007 and contempt
Order[2] dated January 30, 2008 concurrently issued by respondent
Senate Committees on Accountability of Public Officers and
Investigations, [3] Trade and Commerce,[4] and National Defense
and Security [5] against petitioner Romulo L. Neri,
former Director General of the National
Economic and Development Authority (NEDA).
The
facts, as culled from the pleadings, are as follows:
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:
(1)
P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel,
Jr., entitled RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE
COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION,
THE CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT
WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF LAW
THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION THEREWITH AND TO
PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT
LEGISLATIONS.
(2)
P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled A
RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE
CANCELLATION OF THE ZTE CONTRACT
(3)
P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled
RESOLUTION DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO
CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY
IMPLICATIONS OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE
CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED
(ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL
LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND
TERRITORIAL INTEGRITY.
(4)
P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago,
entitled RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN
INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION
OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL
GOVERNMENT.
At
the same time, the investigation was claimed to be relevant to the
consideration of three (3) pending bills in the Senate, to wit:
1.
Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT
SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING
FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND
CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF
PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC
ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT,
AND FOR OTHER PURPOSES;
2.
Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT
IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL
DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182,
AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL
DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and
3.
Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago,
entitled AN ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND
EXECUTIVE AGREEMENTS.
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:
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?
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:
Since
you have failed to appear in the said hearing, the Committees on
Accountability of Public Officers and Investigations (Blue Ribbon),
Trade and Commerce and National Defense and Security require you to
show cause why you should not be cited in contempt under Section 6,
Article 6 of the Rules of the Committee on Accountability of Public
Officers and Investigations (Blue Ribbon).
The
Senate expects your explanation on or before 2 December 2007.
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:
It
was not my intention to snub the last Senate hearing. In fact, I
have cooperated with the task of the Senate in its inquiry in aid of
legislation as shown by my almost 11 hours stay during the hearing on
26 September 2007. During said hearing, I answered all the
questions that were asked of me, save for those which I thought was
covered by executive privilege, and which was confirmed by the
Executive Secretary in his Letter 15 November 2007. In good faith,
after that exhaustive testimony, I thought that what remained were only
the three questions, where the Executive Secretary claimed executive
privilege. Hence, his request that my
presence be dispensed with.
Be
that as it may, should there be new matters that were not yet taken up
during the 26 September 2007 hearing, may I be furnished in advance as
to what else I need to clarify, so that as a resource person, I may
adequately prepare myself.
In
addition, petitioner submitted a letter prepared by his counsel, Atty.
Antonio R. Bautista, stating, among others that: (1) his (petitioner)
non-appearance was upon the order of the President; and (2) his
conversation with President Arroyo dealt with delicate and sensitive
national security and diplomatic matters relating to the impact of the
bribery scandal involving high government officials and the possible
loss of confidence of foreign investors and lenders in the
Philippines. The letter ended with a reiteration of petitioner’s
request that he “be furnished in advance” as to what else he needs to
clarify so that he may adequately prepare for the hearing.
In
the interim, on December 7, 2007, petitioner filed with this Court the
present petition for certiorari assailing the show cause Letter dated
November 22, 2007.
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:
ORDER
For
failure to appear and testify in the Committee’s hearing on Tuesday,
September 18, 2007; Thursday, September 20, 2007; Thursday, October 25,
2007; and Tuesday, November 20, 2007, despite personal notice and
Subpoenas Ad Testificandum sent to and received by him, which thereby
delays, impedes and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported irregularities, AND
for failure to explain satisfactorily why he should not be cited for
contempt (Neri letter of 29 November 2007), herein attached) ROMULO L.
NERI is hereby cited in contempt of this Committees and ordered
arrested and detained in the Office of the Senate Sergeant-At-Arms
until such time that he will appear and give his testimony.
The
Sergeant-At-Arms is hereby directed to carry out and implement this
Order and make a return hereof within twenty four (24) hours from its
enforcement.
SO
ORDERED.
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,
2007According 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:
1.
What communications between the President and petitioner Neri are
covered by the principle of ‘executive privilege’?
1.a
Did Executive Secretary Ermita correctly invoke the principle of
executive privilege, by order of the President, to cover (i)
conversations of the President in the exercise of her executive and
policy decision-making and (ii) information, which might impair
our diplomatic as well as economic relations with the People’s Republic
of China?
1.b.
Did petitioner Neri correctly invoke executive privilege to avoid
testifying on his conversations with the President on the NBN contract
on his assertions that the said conversations “dealt with delicate and
sensitive national security and diplomatic matters relating to the
impact of bribery scandal involving high government officials and the
possible loss of confidence of foreign investors and lenders in the
Philippines” x x x within the principles laid down in
Senate v. Ermita (488 SCRA 1 [2006])?
1.c
Will the claim of executive privilege in this case violate the
following provisions of the Constitution:
Sec.
28, Art. II (Full public disclosure of all transactions involving
public interest)
Sec.
7, Art. III (The right of the people to information on matters of
public concern)
Sec.
1, Art. XI (Public office is a public trust)
Sec.
17, Art. VII (The President shall ensure that the laws be faithfully
executed)
and
the due process clause and the principle of separation of powers?
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 non-compliance with the subpoena?
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:
(1)
The communications between petitioner and the President are covered by
the principle of “executive privilege.”
(2)
Petitioner was not summoned by respondent Senate Committees in
accordance with the law-making body’s power to conduct inquiries in aid
of legislation as laid down in Section 21, Article VI of the
Constitution and Senate v. Ermita.
(3)
Respondent Senate Committees gravely abused its discretion for alleged
non-compliance with the Subpoena dated November 13, 2007.
The
Court granted the OSG’s motion the next day, March 18, 2007.
As
the foregoing facts unfold, related events transpired.
On
March 6, 2008, President Arroyo issued Memorandum Circular No. 151,
revoking Executive Order No. 464 and Memorandum
Circular No. 108. She advised executive
officials and employees to follow and abide by the Constitution,
existing laws and jurisprudence, including, among others, the case of
Senate v. Ermita[17] when they are invited to legislative
inquiries in aid of legislation.
At
the core of this controversy are the two (2) crucial queries, to wit:
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?
We
grant the petition.
At
the outset, a glimpse at the landmark case of Senate v. Ermita[18]
becomes imperative. Senate draws in bold strokes the distinction
between the legislative and oversight powers of the Congress, as
embodied under Sections 21 and 22, respectively, of Article
VI of the Constitution, to wit:
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.
Senate
cautions that while the above provisions are closely related and
complementary to each other, they should not be considered as
pertaining to the same power of Congress. Section 21
relates to the power to conduct inquiries in aid of
legislation, its aim is to elicit information that may be used
for legislation, while Section 22 pertains to the power to conduct a
question hour, the objective of which is to obtain information in
pursuit of Congress’ oversight function.[19] Simply stated,
while both powers allow Congress or any of its committees to conduct
inquiry, their objectives are different.
This
distinction gives birth to another distinction with regard to the use
of compulsory process. Unlike in Section 21, Congress cannot compel the
appearance of executive officials under Section 22. The Court’s
pronouncement in Senate v. Ermita[20] is clear:
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.)
The
availability of the power of judicial review to resolve the issues
raised in this case has also been settled in Senate v. Ermita,
when it held:
As
evidenced by the American experience during the so-called “McCarthy
era,” however, the right of Congress to conduct inquiries in aid of
legislation is, in theory, no less susceptible to abuse than executive
or judicial power. It may thus be subjected to judicial review pursuant
to the Court’s certiorari
powers under Section 1, Article VIII of the Constitution.
Hence,
this decision.
I
The
Communications Elicited by the Three (3) Questions are Covered by
Executive Privilege
We
start with the basic premises where the parties have conceded.
The
power of Congress to conduct inquiries in aid of legislation is
broad. This is based on the proposition that a legislative body
cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect
or change.[21] Inevitably, adjunct thereto is the compulsory
process to enforce it. But, the power, broad as it is, has
limitations. To be valid, it is imperative that it is done in
accordance with the Senate or House duly published rules of procedure
and that the rights of the persons appearing in or affected by such
inquiries be respected.
The
power extends even to executive officials and the only way for them to
be exempted is through a valid claim of executive privilege.[22]
This directs us to the consideration of the question -- is there a
recognized claim of executive privilege despite the revocation of E.O.
464?
A-
There is a Recognized Claim of Executive Privilege Despite the
Revocation of E.O. 464
At
this juncture, it must be stressed that the revocation of E.O. 464 does
not in any way diminish our concept of executive privilege. This is
because this concept has Constitutional underpinnings. Unlike the
United States which has further accorded the concept with statutory
status by enacting the Freedom of Information Act[23] and the Federal
Advisory Committee Act,[24] the Philippines has retained
its constitutional origination, occasionally interpreted only by this
Court in various cases. The most recent of these is the case of
Senate v. Ermita where this Court declared unconstitutional substantial
portions of E.O. 464. In this regard, it is worthy to note that
Executive Ermita’s Letter dated November 15, 2007 limit its bases for
the claim of executive privilege to Senate v. Ermita, Almonte v.
Vasquez,[25] and Chavez v. PEA.[26] There was never a
mention of E.O. 464.
While
these cases, especially Senate v. Ermita,[27] have
comprehensively discussed the concept of executive privilege, we deem
it imperative to explore it once more in view of the clamor for this
Court to clearly define the communications covered by executive
privilege.
The
Nixon and post-Watergate cases established the broad contours of the
presidential communications privilege.[28] In United States v.
Nixon,[29] the U.S. Court recognized a great public interest in
preserving “the confidentiality of conversations that take place in the
President’s performance of his official duties.” It thus
considered presidential communications as “presumptively privileged.”
Apparently, the presumption is founded on the “President’s generalized
interest in confidentiality.” The privilege is said to be
necessary to guarantee the candor of presidential advisors and to
provide “the President and those who assist him… with freedom 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.”
In
In re: Sealed Case,[30] the U.S. Court of Appeals delved
deeper. It ruled that there are two (2) kinds of executive
privilege; one is the presidential communications
privilege and, the other is the deliberative process privilege.
The former pertains to “communications, documents or other materials
that reflect presidential decision-making and deliberations and that
the President believes should remain confidential.” The latter
includes ‘advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and
policies are formulated.”
Accordingly,
they are characterized by marked distinctions. Presidential
communications privilege applies to decision-making of the President
while, the deliberative process privilege, to decision-making of
executive officials. The first is rooted in the
constitutional principle of separation of power and the President’s
unique constitutional role; the second on
common law privilege. Unlike the
deliberative process privilege, the presidential communications
privilege applies to documents in their entirety, and covers final and
post-decisional materials as well as pre-deliberative ones[31] As
a consequence, congressional or judicial negation of the presidential
communications privilege is always subject to greater scrutiny than
denial of the deliberative process privilege.
Turning
on who are the officials covered by the presidential communications
privilege, In Re Sealed Case confines the privilege only to
White House Staff that has “operational proximity” to direct
presidential decision-making. Thus, the privilege is meant to encompass
only those functions that form the core of presidential
authority, involving what the court characterized as “quintessential
and non-delegable Presidential power,” such as
commander-in-chief power, appointment and removal power, the
power to grant pardons and reprieves, the sole-authority to receive
ambassadors and other public officers, the power to negotiate treaties
etc.[32]
The
situation in Judicial Watch, Inc. v. Department of Justice[33]
tested the In Re Sealed Case principles. There, while the presidential
decision involved is the exercise of the President’s pardon power, a
non-delegable, core-presidential function, the Deputy Attorney General
and the Pardon Attorney were deemed to be too remote from the President
and his senior White House advisors to be
protected. The Court conceded that
functionally those officials were performing a task directly related to
the President’s pardon power, but concluded that an organizational test
was more appropriate for confining the potentially broad sweep that
would result from the In Re Sealed Case’s functional
test. The majority concluded that, the lesser protections
of the deliberative process privilege would suffice. That privilege
was, however, found insufficient to justify the confidentiality of the
4,341 withheld documents.
But
more specific classifications of communications covered by executive
privilege are made in older cases. Courts ruled early that the
Executive has a right to withhold documents that might reveal military
or state secrets[34] identity of government informers in some
circumstances,[35] and information related to pending
investigations.[36] An area where the privilege is highly revered is in
foreign relations.
In
United States v. Curtiss-Wright Export Corp.[37] the U.S. Court,
citing President George Washington, pronounced:
The
nature of foreign negotiations requires caution, and their success must
often depend on secrecy, and even when brought to a conclusion, a full
disclosure of all the measures, demands, or eventual concessions which
may have been proposed or contemplated would be extremely impolitic,
for this might have a pernicious influence on future negotiations or
produce immediate inconveniences, perhaps danger and mischief, in
relation to other powers. The necessity of such caution and secrecy was
one cogent reason for vesting the power of making treaties in the
President, with the advice and consent of the Senate, the principle on
which the body was formed confining it to a small number of members. To
admit, then, a right in the House of Representatives to demand and to
have as a matter of course all the papers respecting a negotiation with
a foreign power would be to establish a dangerous precedent.
Majority
of the above jurisprudence have found their way in our
jurisdiction. In Chavez v. PCGG[38], this Court held that there
is a “governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other security
matters.” In Chavez v. PEA,[39] there is also a recognition
of the confidentiality of Presidential conversations, correspondences,
and discussions in closed-door Cabinet meetings. In Senate
v. Ermita, the concept of presidential communications privilege is
fully discussed.
As
may be gleaned from the above discussion, the claim of executive
privilege is highly recognized in cases where the subject of inquiry
relates to a power textually committed by the Constitution to the
President, such as the area of military and foreign relations.
Under our Constitution, the President is the repository of the
commander-in-chief,[40] appointing,[41] pardoning,[42] and
diplomatic[43] powers. Consistent with the doctrine of
separation of powers, the information relating to these powers may
enjoy greater confidentiality than others.
The
above cases, especially, Nixon, In Re Sealed Case and Judicial Watch,
somehow provide the elements of presidential communications privilege,
to wit:
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]
In
the case at bar, Executive Secretary Ermita premised his claim of
executive privilege on the ground that the communications elicited by
the three (3) questions “fall under conversation and
correspondence between the President and public officials” necessary in
“her executive and policy decision-making process” and, that “the
information sought to be disclosed might impair our diplomatic as well
as economic relations with the People’s Republic of China.”
Simply put, the bases are presidential communications privilege and
executive privilege on matters relating to diplomacy or foreign
relations.
Using
the above elements, we are convinced that, indeed, the communications
elicited by the three (3) questions are covered by the presidential
communications privilege. First, the communications relate to a
“quintessential and non-delegable power” of the President, i.e. the
power to enter into an executive agreement with other countries. This
authority of the President to enter into executive agreements without
the concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence.[45] Second, the
communications are “received” by a close advisor of the President.
Under the “operational proximity” test, petitioner can be considered a
close advisor, being a member of President Arroyo’s cabinet. And
third, there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of
the information elsewhere by an appropriate investigating authority.
The
third element deserves a lengthy discussion.
United
States. v. Nixon held that a claim of executive privilege is subject to
balancing against other interest. In other words, confidentiality
in executive privilege is not absolutely protected by the Constitution.
The U.S. Court held:
[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.
The
foregoing is consistent with the earlier case of Nixon vs. Sirica,[46]
where it was held that presidential communications privilege are
presumptively privileged and that the presumption can be overcome only
by mere showing of public need by the branch seeking access to
conversations. The courts are enjoined to resolve the competing
interests of the political branches of the government “in the manner
that preserves the essential functions of each Branch.”[47] Here,
the record is bereft of any categorical explanation from respondent
Committees to show a compelling or citical need for
the answers to the three (3) questions in
the enactment of a law. Instead, the questions veer more towards
the exercise of the legislative oversight function under Section 22 of
Article VI rather than Section 21 of the same Article.
Senate v. Ermita ruled that the “the oversight
function of Congress may be facilitated by compulsory process only to
the extent that it is performed in pursuit of
legislation.” It is conceded that it is
difficult to draw the line between an inquiry in aid of legislation and
an inquiry in the exercise of oversight function of Congress. In this
regard, much will depend on the content of the questions and the manner
the inquiry is conducted.
Respondent
Committees argue that a claim of executive privilege does not guard
against a possible disclosure of a crime or wrongdoing. We see no
dispute on this. It is settled in United States v.
Nixon[48] that “demonstrated, specific need for evidence in
pending criminal trial” outweighs the President’s “generalized interest
in confidentiality.” However, the present case’s
distinction with the Nixon case is very evident. In
Nixon, there is a pending criminal
proceeding where the information is requested and it
is the demands of due process of law and the fair administration of
criminal justice that the information be disclosed. This is the
reason why the U.S. Court was quick to “limit the
scope of its decision.” It stressed that it is “not
concerned here with the balance between the President’s generalized
interest in confidentiality x x x and
congressional demands for information.” Unlike in Nixon,
the information here is elicited, not in a criminal proceeding, but in
a legislative inquiry. In this regard, Senate v. Ermita stressed
that the validity of the claim of executive privilege depends not only
on the ground invoked but, also, the procedural setting or the context
in which the claim is made. Furthermore, in Nixon, the President
did not interpose any claim of need to protect military, diplomatic or
sensitive national security secrets. In the present case, Executive
Secretary Ermita categorically claims executive privilege on the
grounds of presidential communications privilege in relation to her
executive and policy decision-making process and diplomatic
secrets.
The
respondent Committees should cautiously tread into the investigation of
matters which may present a conflict of interest that may provide a
ground to inhibit the Senators participating in the inquiry if later on
an impeachment proceeding is initiated on the same subject matter of
the present Senate inquiry. Pertinently, in Senate Select
Committee on Presidential Campaign Activities v. Nixon,[49]
it was held that since an impeachment proceeding had been initiated by
a House Committee, the Senate Select Committee’s immediate oversight
need for five presidential tapes, should give way to the House
Judiciary Committee which has the constitutional authority to
inquire into presidential impeachment. The Court expounded on this
issue in this wise:
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)
Respondent
Committees further contend that the grant of petitioner’s claim of
executive privilege violates the constitutional provisions on right of
the people to information on matters of public concern.[50]
We might have agreed with such contention if petitioner did not appear
before them at all. But petitioner made himself available to them
during the September 26 hearing, where he was questioned for eleven
(11) hours. Not only that, he expressly manifested his willingness to
answer more questions from the Senators, with the exception only of
those covered by his claim of executive privilege.
The
right to public information, like any other right, is subject to
limitation. Section 7 of Article III provides:
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.
More
than anything else, though, the right of Congress or any of its
Committees to obtain information in aid of legislation cannot be
equated with the people’s right to public information. The former
cannot claim that every legislative inquiry is an exercise of the
people’ right to information. The distinction between such rights is
laid down in Senate v. Ermita:
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.
Thus,
while Congress is composed of representatives elected by the people, it
does not follow, except in a highly qualified sense, that in every
exercise of its power of inquiry, the people are exercising their right
to information.
The
members of respondent Committees should not invoke as justification in
their exercise of power a right properly belonging to the people in
general. This is because when they discharge their power, they do so as
public officials and members of Congress. Be that as it may, the
right to information must be balanced with and should give way in
appropriate cases to constitutional precepts particularly those
pertaining to delicate interplay of executive-legislative powers and
privileges which is the subject of careful review by numerous decided
cases.
B-
The Claim of Executive Privilege
is
Properly Invoked
We
now proceed to the issue -- whether the claim is properly invoked by
the President. Jurisprudence teaches that for the claim to be properly
invoked, there must be a formal claim of privilege, lodged by the head
of the department which has control over the matter.”[56] A formal and
proper claim of executive privilege requires a “precise and certain
reason” for preserving their confidentiality.[57]
The
Letter dated November 17, 2007 of Executive Secretary Ermita satisfies
the requirement. It serves as the formal claim of
privilege. There he expressly states that “this Office is
constrained to invoke the settled doctrine of executive privilege as
refined in Senate v. Ermita, and has advised Secretary Neri
accordingly.” Obviously, he is referring to the Office of the
President. That is more than enough compliance. In Senate v.
Ermita, a less categorical letter was even adjudged to be sufficient.
With
regard to the existence of “precise and certain
reason,” we find the grounds relied upon by Executive
Secretary Ermita specific enough so as not “to leave respondent
Committees in the dark on how the requested information could be
classified as privileged.” The case of Senate v. Ermita only
requires that an allegation be made “whether the information demanded
involves military or diplomatic secrets, closed-door Cabinet meetings,
etc.” The particular ground must only be specified. The enumeration is
not even intended to be comprehensive.”[58] The following
statement of grounds satisfies the requirement:
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.
At
any rate, as held further in Senate v. Ermita, [59] the Congress
must not require the executive to state the reasons for the claim with
such particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect to a
coordinate and co-equal department.
II
Respondent
Committees Committed Grave Abuse of Discretion in Issuing the Contempt
Order
Grave
abuse of discretion means “such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, in other words
where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility and it must be so patent and
gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in
contemplation of law.”[60]
It
must be reiterated that when respondent Committees issued the show
cause Letter dated November 22, 2007, petitioner replied
immediately, manifesting that it was not his intention to ignore
the Senate hearing and that he thought the only remaining
questions were the three (3) questions he claimed to be covered by
executive privilege. In addition thereto, he submitted Atty. Bautista’s
letter, stating that his non-appearance was upon the order of the
President and specifying the reasons why his conversations with
President Arroyo are covered by executive privilege. Both
correspondences include an expression of his willingness to testify
again, provided he “be furnished in advance” copies of the questions.
Without responding to his request for advance list of questions,
respondent Committees 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. Thereupon,
petitioner filed a motion for reconsideration, informing respondent
Committees that he had filed the present petition for certiorari.
Respondent
Committees committed grave abuse of discretion in issuing the contempt
Order in view of five (5) reasons.
First, there being a
legitimate claim of executive privilege, the issuance of the contempt
Order suffers from constitutional infirmity.
Second, respondent Committees
did not comply with the requirement laid down in Senate vs. Ermita that
the invitations should contain the “possible needed statute which
prompted the need for the inquiry,” along with “the usual
indication of the subject of inquiry and the questions relative to and
in furtherance thereof.” Compliance with this requirement is
imperative, both under Sections 21 and 22 of Article VI of the
Constitution. This must be so to ensure that the rights of both persons
appearing in or affected by such inquiry are
respected as mandated by said Section 21 and by virtue of the express
language of Section 22. Unfortunately, despite petitioner’s
repeated demands, respondent Committees did not send him advance list
of questions.
Third, a reading of the
transcript of respondent Committees’ January 30, 2008 proceeding
reveals that only a minority of the members of the Senate Blue Ribbon
Committee were present during the deliberation. [61] Section 18
of the Rules of Procedure Governing Inquiries in Aid of Legislation
provides that:
“The
Committee, by a vote of majority of all its members, may punish for
contempt any witness before it who disobey any order of the Committee
or refuses to be sworn or to testify or to answer proper questions by
the Committee or any of its members.”
Clearly,
the needed vote is a majority of all the members of the Committee.
Apparently, members who did not actually participate in the
deliberation were made to sign the contempt Order.
Thus, there is a cloud of doubt as to the validity of the contempt
Order dated January 30, 2008. We quote the pertinent portion of
the transcript, thus:
THE
CHAIRMAN (SEN. CAYETANO, A). For clarification.
x x x The Chair will call either a caucus or
will ask the Committee on Rules if there is a problem. Meaning, if we
do not have the sufficient numbers. But if we have a sufficient number,
we will just hold a caucus to be able to implement that right away
because…Again, our Rules provide that any one held in contempt and
ordered arrested, need the concurrence of a majority of all members of
the said committee and we have three committees conducting this.
So
thank you very much to the members…
SEN.
PIMENTEL. Mr. Chairman.
THE
CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader
and give him the floor, Senator Pimentel.
SEN.
PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting
the other committees. But I am of the opinion that the Blue Ribbon
Committee is the lead committee, and therefore, it should have
preference in enforcing its own decisions. Meaning to say, it is not
something that is subject to consultation with other committees. I am
not sure that is the right interpretation. I think that once we decide
here, we enforce what we decide, because otherwise, before we know it,
our determination is watered down by delay and, you know, the so-called
“consultation” that inevitably will have to take place if
we follow the premise that has been explained.
So
my suggestion, Mr. Chairman, is the Blue Ribbon Committee should
not forget it’s the lead committee here, and therefore, the will of the
lead committee prevails over all the other, you, know reservations that
other committees might have who are only secondary or even tertiary
committees, Mr. Chairman.
THE
CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the
Minority Leader. And I agree with the wisdom of his
statements. I was merely mentioning that under Section 6 of
the Rules of the Committee and under Section 6, “The Committee by a
vote of a majority of all its members may punish for contempt any
witness before it who disobeys any order of the Committee.”
So
the Blue Ribbon Committee is more than willing to take that
responsibility. But we only have six members here today, I
am the seventh as chair and so we have not met that number.
So I am merely stating that, sir, that when we will prepare the
documentation, if a majority of all members sign and I am following the
Sabio v. Gordon rule wherein I do believe, if I am not mistaken,
Chairman Gordon prepared the documentation and then either in caucus or
in session asked the other members to sign. And once the
signatures are obtained, solely for the purpose that Secretary Neri or
Mr. Lozada will not be able to legally question our subpoena as being
insufficient in accordance with law.
SEN.
PIMENTEL. Mr. Chairman, the caution that the
chair is suggesting is very well-taken. But I’d like to
advert to the fact that the quorum of the committee is only two as far
as I remember. Any two-member senators attending a Senate
committee hearing provide that quorum, and therefore there is more than
a quorum demanded by our Rules as far as we are concerned now, and
acting as Blue Ribbon Committee, as Senator Enrile pointed
out. In any event, the signatures that will follow by the
additional members will only tend to strengthen the determination of
this Committee to put its foot forward – put down on what is happening
in this country, Mr. Chairman, because it really looks terrible if the
primary Committee of the Senate, which is the Blue ribbon Committee,
cannot even sanction people who openly defy, you know, the summons of
this Committee. I know that the Chair is going through an
agonizing moment here. I know that. But
nonetheless, I think we have to uphold, you know, the institution that
we are representing because the alternative will be a disaster for all
of us, Mr. Chairman. So having said that, I’d like to
reiterate my point.
THE
CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent
with the intentions of the Minority Leader. But let me very
respectfully disagree with the legal requirements. Because, yes, we can
have a hearing if we are only two but both under section 18 of the
Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon
Committee, there is a need for a majority of all members if it is a
case of contempt and arrest. So, I am simply trying to
avoid the court rebuking the Committee, which will instead of
strengthening will weaken us. But I do agree, Mr. Minority
Leader, that we should push for this and show the executive branch that
the well-decided – the issue has been decided upon the Sabio versus
Gordon case. And it’s very clear that we are all allowed to
call witnesses. And if they refure or they disobey not only
can we cite them in contempt and have them arrested. x
x x [62]
Fourth, we find merit in the
argument of the OSG that respondent Committees likewise violated
Section 21 of Article VI of the Constitution, requiring that the
inquiry be in accordance with the “duly published rules of
procedure.” We quote the OSG’s explanation:
The
phrase “duly published rules of procedure” requires the Senate of every
Congress to publish its rules of procedure governing inquiries in aid
of legislation because every Senate is distinct from the one before it
or after it. Since Senatorial elections are held every three (3) years
for one-half of the Senate’s membership, the composition of the Senate
also changes by the end of each term. Each Senate may thus enact a
different set of rules as it may deem, fit. Not having published its
Rules of Procedure, the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore, procedurally infirm.
And
Fifth, respondent
Committees’ issuance of the contempt Order is arbitrary and
precipitate. It must be pointed out that respondent
Committees did not first pass upon the claim of executive privilege and
inform petitioner of their ruling. Instead, they curtly dismissed his
explanation as “unsatisfactory” and simultaneously issued the Order
citing him in contempt and ordering his immediate arrest and
detention.
A
fact worth highlighting is that petitioner is not an unwilling witness.
He manifested several times his readiness to testify before respondent
Committees. He refused to answer the three (3) questions because he was
ordered by the President to claim executive privilege. It
behooves respondent Committees to first rule on the claim of executive
privilege and inform petitioner of their finding thereon, instead of
peremptorily dismissing his explanation as “unsatisfactory.”
Undoubtedly, respondent Committees’ actions
constitute grave abuse of discretion for
being arbitrary and for denying
petitioner due process of law. The samequality
afflicted their conduct when they (a) disregarded
petitioner’s motion for reconsideration alleging that
he had filed the present petition before this Court and (b) ignored
petitioner’s repeated request for advance list of questions, if there
be any aside from the three (3) questions as to which he claimed to be
covered by executive privilege.
Even
the courts are repeatedly advised to exercise the power of contempt
judiciously and sparingly with utmost self-restraint with the end in
view of utilizing the same for correction and preservation of the
dignity of the court, not for retaliation or vindication.[63]
Respondent Committees should have exercised the same restraint, after
all petitioner is not even an ordinary witness. He holds a high
position in a co-equal branch of government.
In
this regard, it is important to mention that many incidents of judicial
review could have been avoided if powers are discharged with
circumspection and deference. Concomitant with the doctrine of
separation of powers is the mandate to observe respect to a co-equal
branch of the government.
One
last word.
The
Court was accused of attempting to abandon its constitutional duty when
it required the parties to consider a proposal that would lead to a
possible compromise. The accusation is far from truth. The Court did
so, only, to test a tool that other jurisdictions find to be effective
in settling similar cases, to avoid a piecemeal consideration of
the questions for review, and to avert a constitutional crisis
between the executive and legislative branches of government.
In
United States v. American Tel. & Tel Co.,[64] the court refrained
from deciding the case because of its desire to avoid a
resolution that might disturb the balance of power between the two
branches and inaccurately reflect their true needs. Instead, it
remanded the record to the District Court for further proceedings
during which the parties are required to negotiate a settlement.
In the subsequent case United States v. American Tel. &Tel
Co.,[65] it was held that “much of this spirit of
compromise is reflected in the generality of language found in
the Constitution.” It proceeded to state:
Under
this view, the coordinate branches do not exist in an exclusively
adversary relationship to one another when a conflict in authority
arises. Rather each branch should take cognizance of an implicit
constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the
particular fact situation.
It
thereafter concluded that: “The Separation of Powers often impairs
efficiency, in terms of dispatch and the immediate functioning of
government. It is the long-term staying power of
government that is enhanced by the mutual
accommodation required by the separation of
powers.”
In
rendering this decision, the Court emphasizes once more that the
basic principles of constitutional law cannot be
subordinated to the needs of a particular situation.
As magistrates, our mandate is to rule objectively
and dispassionately, always mindful of
Mr. Justice Holmes’ warning on the dangers
inherent in cases of this nature, thus:
“some
accident of immediate and overwhelming interest…appeals to the feelings
and distorts the judgment. These immediate interests exercise a kind of
hydraulic pressure which makes what previously was clear seem doubtful,
and before which even well settled principles of law will bend.”[66]
In
this present crusade to “search for truth,” we should
turn to the fundamental constitutional principles which
underlie our tripartite system of government, where
the Legislature enacts the law, the Judiciary
interprets it and the Executive implements
it. They are considered separate,
co-equal, coordinate and supreme within their
respective spheres but, imbued with a system of checks and balances to
prevent unwarranted exercise of power.
The
Court’s mandate is to preserve these constitutional
principles at all times to keep the political
branches of government within constitutional bounds
in the exercise of their respective powers and prerogatives, even
if it be in the search for truth. This is the only way we
can preserve the stability of our democratic institutions
and uphold the Rule of Law.
WHEREFORE,
the petition is hereby GRANTED. The subject Order dated January
30, 2008, citing petitioner Romulo L. Neri in contempt of the Senate
Committees and directing his arrest and detention, is hereby nullified.
SO
ORDERED.
TERESITA
J. LEONARDO DE CASTRO
Associate
Justice
WE
CONCUR:
REYNATO
S. PUNO
Chief
Justice
LEONARDO
A. QUISUMBING
Associate
Justice
CONSUELO
YNARES-SANTIAGO
Associate
Justice
ANTONIO
T. CARPIO
Associate
Justice
MA.
ALICIA AUSTRIA-MARTINEZ
Associate
Justice
RENATO
C. CORONA
Associate
Justice
CONCHITA
CARPIO MORALES
Associate
Justice
ADOLFO
S. AZCUNA
Associate
Justice
DANTE
O. TINGA
Associate
Justice
MINITA
V. CHICO-NAZARIO
Associate
Justice
PRESBITERO
J. VELASCO, JR.
Associate
Justice
ANTONIO
EDUARDO B. NACHURA
Associate
Justice
RUBEN
T. REYES
Associate
Justice
ARTURO
D. BRION
Associate
Justice
C
E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
REYNATO
S. PUNO
Chief
Justice
Footnotes:
[1]
Rollo, pp. 12-14.
[2]
Rollo, pp. 85-86. Through the Supplemental Petition for Certiorari
(With Urgent Application for Temporary Restraining Order/Preliminary
Injunction).
[3]
Chaired by Hon. Senator Alan Peter S. Cayetano.
[4]
Chaired by Hon. Senator Manuel A. Roxas II.
[5]
Chaired by Hon. Senator Rodolfo G. Biazon.
[6]
Transcript of the September 26, 2007 Hearing of the respondent
Committees, pp.91-92.
[7]
Id., pp. 114-115.
[8]
Id., pp. 276-277.
[9]
See Letter dated January 30, 2008.
[10]
488 SCRA 1 (2006).
[11]
345 U.S. 1 (1953).
[12]
Section 7. Prohibited Acts and Transactions. – In addition
to acts and omissions of public officials and employees now prescribed
in the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and employee
and are hereby declared to be unlawful: x x x
(c)
Disclosure and/or misuse of confidential information. -
Public
officials and employees shall not use or divulge, confidential or
classified information officially known to them by reason of their
office and not made available to the public, either:
(1)
To further their private interests, or give undue advantage to anyone;
or
(2)
To prejudice the public interest.
[13]
SEC. 24. Disqualification by reason of privileged communication. – The
following persons cannot testify as to matters learned in confidence in
the following cases. (e) A public officer cannot be examined during his
term of office or afterwards, as to communications made to him in
official confidence, when the court finds that the public interest
would suffer by disclosure.
[14]
TSN of the Oral Argument, March 4, 2008, p. 455.
[15]
(1) Minutes of all meetings of the three (3) committees held in
January and February, 2008; (2) Notice for joint meeting of three (3)
committees held on 30 January 2008 duly received by the members of the
committees; (3) Minute Books of the three (3) committees; (4)
Composition of the three (3) committees; and (5) Other documents
required of them in the course of the oral argument.
[16]
See Manifestation, rollo, pp.170-174.
[17]
G.R. No. 169777, April 20, 2006 (488 SCRA 1).
[18]
G.R. No. 169777, April 20, 2006 (488 SCRA 1).
[19]
Ibid.
[20]
Ibid.
[21]
Arnault v. Nazareno, 87 Phil 32 (1950)
[22]
Senate v. Ermita, p. 58.
[23]
5 U.S. C. § 552
[24]
51 U.S. C. app.
[25]
433 Phil. 506 (2002).
[26]
G.R. No. 130716, December 9, 1998. (360 SCRA 132 ).
[27]
Supra.
[28]
CRS Report for Congress, Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments at p. 2.
[29]
418 U.S. 683.
[30]
In re: Sealed Case No. 96-3124, June 17, 1997.
[31]
Id.
[32]
CRS Report for Congress, Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments at pp. 18-19.
[33]
365 F.3d 1108, 361 U.S.App.D.C. 183, 64 Fed. R. Evid. Serv. 141
[34]
See United States v. Reynolds, 345 U.S. 1, 6-8 (1953); Chicago v.
Airlines, Inc. v. Waterman Steamship Corp., 333 U.S.
103, 111; Totten v. United States, 92 U.S. 105, 106-107 (1875).
[35]
Roviaro v. United States, 353 U.S. 53, 59-61.
[36]
See Friedman v. Bache Halsey Stuart Shields, Inc. 738 F. 2d
1336,1341-43 (D.C. Cir. 1984).
[37]
14 F. Supp. 230, 299 U.S. 304 (1936).
[38]
360 Phil. 133 (1998).
[39]
314 Phil. 150 (1995).
[40]
Section 18, Article VII.
[41]
Section 16, Article VII.
[42]
Section 19, Article VII.
[43]
Section 20 and 21, Article VII.
[44]
CRS Report for Congress, Presidential Claims of Executive
Privilege: History, Law Practice and Recent
Developments, supra..
[45]
Bernas, S.J., The 1987 Constitution of the Republic of the Philippines,
A Commentary, 2003 Ed. p. 903.
[46]
159 U.S. App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973).
[47]
U.S. v. Nixon, 418 U.S. 683 (1974)
[48]
Supra.
[49]
498 F. 2d 725 (D.C. Cir.1974).
[50]
Citing Section 7, Article 3 of the Constitution.
[51]
Section 7. Prohibited Acts and Transactions. – In addition
to acts and omissions of public officials and employees now prescribed
in the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and employee
and are hereby declared to be unlawful: x x x
"(c)
Disclosure and/or misuse of confidential information. - Public
officials and employees shall not use or divulge, confidential or
classified information officially known to them by reason of their
office and not made available to the public, either:
(1)
To further their private interests, or give undue advantage to anyone;
or
(2)
To prejudice the public interest.”
[52]
Article 229. Revelation of secrets by an officer. – Any
public officer who shall reveal any secret known to him by reason of
his official capacity, or shall wrongfully deliver papers or copies of
papers of which he may have charge and which should not be published,
shall suffer the penalties of prision correccional in its medium and
maximum periods, perpetual special disqualification and a fine not
exceeding 2,000 pesos if the revelation of such secrets or the delivery
of such papers shall have caused serious damage to the public interest;
otherwise, the penalties of prision correccional in its minimum period,
temporary special disqualification and a fine not exceeding 500 pesos
shall be imposed.
[53]
Section 3. Corrupt practices of public officers. – In
addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
(k)
Divulging valuable information of a confidential character, acquired by
his office or by him on account of his official position to
unauthorized persons, or releasing such information in advance of its
authorized release date.
[54]
Sec. 24. Disqualification by reason of privileged
communications. – The following persons cannot testify as to matters
learned in confidence in the following case: x x
x
(a)
A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the
disclosure.
[55]
In Chavez v. Public Estates Authority, supra., the Supreme Court
recognized matters which the Court has long considered as confidential
such as “information on military and diplomatic secrets, information
affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the
accused.” It also stated that “presidential conversations,
correspondences, or discussions during close-door cabinet meetings
which, like internal deliberations of the Supreme court or other
collegiate courts, or executive sessions of either House of Congress,
are recognized as confidential. Such information cannot be
pried-open by a co-equal branch of government.
[56]
United States v. Reynolds, supra.
[57]
Unites States v. Article of Drug, 43 F.R.D. at 190.
[58]
Senate v. Ermita, supra., p. 63.
[59]
Id., citing U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed.
727, 32 A.L. R. 2d 382 (1953).
[60]
Freedom from Debt Coalition v. Energy Regulatory Commission, G.R. No.
161113. June 15,
2004.
[61]
Trancript of the January 30, 2008 proceedings, p. 29.
[62]
Trancript of the January 30, 2008 Proceeding of the respondent Senate
Committees, pp. 26-31.
[63]
Rodriguez vs. Judge Bonifacio, A.M. No. RTJ-99-1510. November 6,
2000, 344 SCRA 519.
[64]
179 U.S. App. Supp. D.C. 198, 551 F 2d. 384 (1976)
[65]
567 F 2d 121 (1977).
[66]
Northern Securities Co. v. United States, 193 U.S. 197, 48 L. Ed.
679, 24 S Ct. 436 (1904).
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