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.
|
SEPARATE
CONCURRING OPINION
BRION,
J.:
I vote to grant the petition from the prism of two striking features of
this case.
First, this case involves a frontal clash between the two great
branches of government - the Executive and the Legislature.
Caught in between, although identified with the Executive, is the
petitioner Romulo L. Neri (“Neri” or “petitioner”). I point this
out because in this frontal clash the law expressly recognizes the man
in the middle – Neri - as an individual whose rights have to be
respected and who should therefore be given sufficient focus as an
individual in this Court’s consideration of the issues.
The second point relates to the breadth of the issues raised.
Because of the frontal clash, the question of the proper parameters for
the use of “executive privilege” has been raised by the parties.
The factual situation, however, only involves the petitioner’s three
(3) cited (and the possibly related follow up) questions and puts into
issue only the privileged status of conversations and correspondence
between the President and Neri in the exercise of executive and policy
decision making. At least two (2) Justices[1] strongly implied
that the Court can provide a more comprehensive ruling on the executive
privilege issue if the petitioner would be allowed to appear at the
Senate to answer questions, subject to his right to invoke executive
privilege in answering further questions and to the Court’s ruling on
all the questions claimed to be covered by executive privilege.
Unfortunately, the Senate did not positively respond to these
suggestions; hence, the narrow issues confronting Us in this case.
Tension between the Executive and the Senate, without doubt, has been
building up since the issuance of Executive Order 464 which this Court
struck down in part in Our decision in Senate v. Ermita.[2] Our
decision, however, did not totally ease the tension and was evidently
still there when petitioner Neri was invited to the Senate in September
2007, leading to a series of events (more fully described below) that
culminated in the Senate Committees’ issuance of a citation for
contempt and an arrest order for Neri.
Under the terms of the present petition, the direct issue raised is
whether the Senate acted with grave abuse of discretion in ordering the
arrest of Neri considering the processes that led to the order of
arrest and the substantive conclusion that no valid claim to
executive privilege had been made.
On the processes aspect, I conclude that the Senate processes were
attended by fatal infirmities that should invalidate the contempt
citation and the order of arrest. Even allowing for the attendant
tension, the inter-branch lack of cooperation, and Neri’s admitted
absences, the Senate Committees’ arrest order was a misplaced move from
the strictly legal point of view and one that was out of proportion to
the attendant circumstances under the standards of common human
experience.
This view proceeds from no less than the 1987 Constitution that
expressly provides that “The rights of persons appearing in or affected
by such inquiries shall be respected”.[3] Interestingly, this
Section as a whole seeks to strengthen the hand of the
Legislature in the exercise of inquiries in aid of legislation.
In so doing, however, it makes the above reservation for the individual
who may be at the receiving end of legislative might. What these
“rights” are the Section does not expressly say, but these rights are
recognized by jurisprudence and cannot be other than those provided
under the Bill of Rights – the constitutional provisions that level the
individual’s playing field as against the government and its inherent
and express powers.[4]
Thus, Neri cannot be deprived of his liberty without due process of
law, as provided under Article III Section 1 of the Bill of
Rights. Short of actual denial of liberty, Neri should – as a
matter of constitutional right – likewise be protected from the
humiliation that he so feared in a congressional
investigation.[5] All these rights should be guaranteed to him
without need of distinguishing and hairsplitting between coercive and
punitive contempt. chanroblesvirtualawlibrary
The petitioner’s travails started when he was summoned to appear before
the Senate Committees in relation with the inquiry into the ZTE-NBN
Project for the supply of telecommunication equipment and
services. He did not appear at the first hearing on September 18,
2007 and on October 25, 2007, but he showed up and testified at the
hearing of September 26, 2007. This hearing took all of eleven
(11) hours and ended in an executive session that was cut short because
of Neri’s deteriorated physical condition. chanroblesvirtualawlibrary
For the hearing of November 20, 2007, the Senate Committees issued Neri
a subpoena ad testificandum to formally compel his attendance. In
response, Neri referred the matter to the President who ordered him to
invoke executive privilege. Executive Secretary Ermita
implemented the presidential directive by writing the Senate a letter
claiming executive privilege for the President and asking that the
presence of Neri be dispensed with since he had been examined
extensively in the hearing of September 26, 2007.[6]
The Senate did not formally reply to the Ermita letter and instead sent
its “show cause” order of November 22, 2007 for Neri to explain why he
should not be cited for contempt for his absence on November 20,
2007.[7] Neri himself and his counsel replied to the “show cause”
order, further explaining his non-attendance and offering to attend for
examination on other non-privileged matters.[8] On top of this
reply, he came to this Court on December 7, 2007 via the present
petition for a definitive judicial ruling.
The Senate Committees chose to disregard these explanations and the
claim of executive privilege, and instead issued the currently disputed
Order (dated January 30, 2008) citing Neri “in contempt of this (sic)
Committees”..”(f)or failure to appear and testify in the
Committees’s (sic) hearings on Tuesday, September 18, 2007; Thursday,
September 20, 2007; Thursday, October 25, 2007 and Tuesday, November
20, 2007..”.[9]
Even from a strictly layman’s perspective, I cannot see how arrest and
imprisonment can be justified for one who has complied with the most
essential Senate requirements, i.e., to testify and to explain his
failure to attend. Neri did comply with the Senate’s orders to
attend and testify; underwent hours of grilling before the Senate
Committees; did submit explanations for the times when he could not
comply; and committed to attend future hearings on matters that are not
privileged. To further ensure that he is properly guided, Neri sought
judicial intervention by recourse to this Court through the present
petition.
Under these circumstances, his arrest cannot but be highly
unfair. This is particularly true if, as suggested during the
oral arguments, there were middle ground moves that would have avoided
an arrest order had there been more inter-branch cooperation between
the contending great branches of government – a condition that is
largely out of Neri’s control and capacity to bring about.
From a legal perspective, I see no indication from the given facts of
this case, of the defiance that merited the condemnation of Congress
and the support of this Court for the congressional arrest order in
Arnault v. Nazareno[10]. I also do not see how Neri could validly
be cited for contempt and ordered arrested for all his absences[11]
after having been formally asked to explain only one absence, namely,
that of November 20, 2007.[12] I likewise cannot help but note
that the arrest order strongly suggests a lack of inter-branch
courtesy, this time by the Senate as against this Court whose formal
intervention Neri has sought. I note too that the arrest order
runs counter to the respondents’ open manifestation on oral arguments
that the Senate itself wanted the issue of Neri’s attendance resolved
through the petition that Senator MAR Roxas himself brought before this
Court.[13]
That the Senate committees engaged in shortcuts in ordering the arrest
of Neri is evident from the record of the arrest order. The
interpellations by Justices Tinga and Velasco of Senators Rodolfo G.
Biazon (Chair of the Committee on National Defense and Security) and
Francis N. Pangilinan (Senate Majority Leader) yielded the information
that none of the participating Committees (National Defense and
Security, Blue Ribbon, and Trade and Commerce) registered enough votes
to approve the citation of contempt and the arrest order.[14] An
examination of the Order dated 30 January 2008[15] shows that only
Senators Alan Peter Cayetano, Aquino III, Legarda, Honasan and Lacson
(of 17 regular members) signed for the Blue Ribbon Committee; only
Senators Roxas, Pia Cayetano, Escudero and Madrigal for the Trade and
Commerce Committee (that has 9 regular members); and only Senators
Biazon, and Pimentel signed for the National Defense and Security
Committee (that has 19 regular members). Senate President Manny Villar,
Senator Aquilino Pimentel as Minority Floor Leader, Senator Francis
Pangilinan as Majority Floor Leader, and Senator Jinggoy Ejercito
Estrada as President Pro Tempore, all signed as ex-officio members of
the Senate standing committees but their votes, according to
Senator Biazon’s testimony, do not count in the approval of committee
action.
Asked about these numbers, Senator Pangilinan as Majority Floor Leader
could only state that any defect in the committee voting had been cured
because the sixteen (16) senators who voted, or two-thirds of the
Senate, effectively signed for the Senate in plenary session.[16]
The Order of arrest, however, was issued in the names of the three
participating committees, and was signed by the sixteen (16) senators
as committee members, either regular or ex-oficio, and not as senators
acting in plenary. Furthermore, Section 18 of the Rules Governing
Inquiries in Aid of Legislation, does not authorize the committees to
issue a warrant of arrest against a witness who fails to obey a
subpoena ad testificandum. This power is vested solely by
Rule III Section 3 of the Rules of the Senate on the Senate
President. While Senate President Manny Villar did sign the
arrest order together with the members of the three (3) participating
committees, there still appeared no valid basis for his action for lack
of effective and valid supporting committee action authorizing the
order of arrest; the signatures of the sixteen (16) senators were mere
unintended results of their respective participation in the
investigating committees, and did not reflect their intent to sign as
senators in plenary session. The contempt citation and order of
arrest therefore do not have any basis in effective committee and
Senate actions and cannot thus stand as valid.
Thus, in more ways than one, the rights of petitioner Neri – the
individual – were grossly violated by Senate action in contravention of
the constitutional guarantee for respect of individual rights in
inquiries in aid of legislation. If only for these proven
violations, We should grant Neri’s petition.
The Senate Committees’ apparent conclusion that the questions – both
the expressly cited and the related follow-ups – are not covered by
executive privilege appears to miss the point of the letter of
Secretary Ermita when he claimed the privilege for conversations and
correspondence of the President in the exercise of her executive and
policy decision making. Although Secretary Ermita stated that the
information might impair diplomatic as well as economic relations with
the People’s Republic of China, the thrust of the claimed privilege is
not so much the “content” of the conversation or correspondence, but
the fact of conversation in the course of executive and policy decision
making. In other words, it is not necessary for the conversation
or correspondence to contain diplomatic, trade or military secret as
these matters are covered by their own reasons for confidential
treatment. What is material or critical is the fact of
conversation or correspondence in the course of official policy or
decision making; privilege is recognized to afford the President and
her executives the widest latitude in terms of freedom from present and
future embarrassment in their discussions of policies and
decisions. This narrow exception to the rule on disclosure and
transparency ultimately redounds to the public interest in terms of the
quality and timeliness of executive policies and decisions and, in this
sense, is not anathema to other constitutional guarantees relating to
the people’s right to know and public accountability. Like police
and other inherent powers of government, it may seemingly give the
government a strong hand but in the end is best for the common
good. chanroblesvirtualawlibrary
Significantly, this type of privilege is not for the Executive to enjoy
alone. All the great branches of government are entitled to this
treatment for their own decision and policy making conversations and
correspondence. It is unthinkable that the disclosure of internal
debates and deliberations of the Supreme Court or the executive
sessions of either Houses of Congress can be compelled at will by
outside parties. We need not cite foreign authorities for this
proposition as We have so ruled in Chavez vs. Public Estates
Authority.[17]
Thus, these types of Presidential conversations are presumed
privileged once it is established that they refer to official policy or
decision making.[18] The operative words for the presumption to
arise are “official policy or decision making”. To be sure, the
presumption is not absolute as the purpose is not to shield the
President from any and all types of inquiries. Where a higher
purpose requiring disclosure is present and cited in the proper
proceeding, then the privilege must fall and disclosure can be
compelled. As the oral arguments on the case showed, all parties
are agreed that the privilege cannot be used to shield crime as
disclosure will then serve the higher purpose of bringing injustice to
light.
Concretely applied to the case of Neri, the privilege presumptively
applied after Neri claimed, with the authority of the President, that
his phone conversation with her related to the handling of “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”. The key word in this statement is “impact” in
the economic policy sense (as Neri was then the head of NEDA), not the
fact of bribery which, as a crime, the President must discuss with the
police, law enforcers and prosecutors, not with her economic team
members.
Unless and until it can therefore be shown in the proper proceeding
that the Presidential conversation related to her involvement in,
knowledge of or complicity in a crime, or where the inquiry occurs in
the setting of official law enforcement or prosecution, then the mantle
of privilege must remain so that disclosure cannot be compelled.
This conclusion is dictated by the requirement of order in the
delineation of boundaries and allocation of governmental
responsibilities. The “proper” proceeding is not
necessarily in an inquiry in aid of legislation since the purpose of
bringing crime to light is served in proceedings before the proper
police, prosecutory or judicial body, not in the halls of congress in
the course of investigating the effects of or the need for current or
future legislation.
In these lights, I reiterate my vote to grant the petition.
ARTURO
D. BRION
Associate Justice
Footnotes:
[1] Chief Justice Reynato S. Puno (at pages 431-436) and Justice
Antonio T. Carpio (at page 441-448), TSN, March 4, 2008.
[2] G.R. No. 169777, April 20, 2006
[3] Article VIII, Section 21, Philippine Constitution.
[4] See: Bengzon, et al., vs. The Senate Blue Ribbon Committee, G.R.
No. 89914, Nov. 20, 1991.
[5] TSN, March 4, 2008, at pages 188-190.
[6] Annex “C” to the Petition dated December 7, 2007.
[7] Annex “A” to the Petition.
[8] Annexes “D” and “D-1” to the Petition.
[9] Annex “A” of the Supplemental Petition for Certiorari dated January
30, 2008.
[10] G.R. No. L-3828, July 18, 1950.
[11] Supra, at Note 7.
[12] Supra, at Note 9.
[13] TSN, March 4, 2007, at page 334.
[14] TSN, March 4, 2008, at pages 490 – 519.
[15] Supra, at Note 9.
[16] TSN, March 4, 2008, at page 529-530.
[17] Chavez v. Public Estates Authority, G.R. 133250, July 9, 2008.
[18] See: U.S. v. Nixon, 418 U.S. 683 (1974).
|