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.
|
DISSENTING
AND CONCURRING
OPINION
CARPIO,
J.:
The
Case
This Petition,[1] with supplemental petition,[2] for certiorari with
application for a temporary restraining order, assails the letter dated
22 November 2007 and the Order dated 30 January 2008 issued by
respondents Senate Committees on Accountability of Public Officers and
Investigation (Blue Ribbon),[3] Trade and Commerce,[4] and National
Defense and Security[5] (collectively respondents or Committees).
The 22 November 2007 letter required petitioner Commission on Higher
Education Chairman and former National Economic Development Authority
(NEDA) Director General Romulo L. Neri (petitioner) “to show cause why
[he] should not be cited in contempt” for his failure to attend the
Blue Ribbon Committee hearing on 20 November 2007, while the Order
issued on 30 January 2008 cited petitioner in contempt and directed his
arrest and detention in the Office of the Senate Sergeant-At-Arms.
The
Antecedent Facts
On 21 April 2007, with President Gloria Macapagal-Arroyo as witness,
the Department of Transportation and Communications, represented by
Secretary Leandro R. Mendoza, and Zhong Xing Telecommunications
Equipment Company Limited (ZTE), represented by its Vice President Yu
Yong, signed in Boao, China, a “Contract for the Supply of Equipment
and Services for the National Broadband Network Project” (NBN Project)
worth US$329,481,290. The People's Republic of China, through its
Export and Import Bank, agreed to extend a loan to the Philippines to
finance the NBN Project.[6] The NBN Project was supposed to
provide landline, cellular and Internet services in all government
offices nationwide.
After the signing of the agreement, controversies hounded the NBN
Project. There were various reports of alleged bribery,
“overpricing” of US$130 million, payment of “advances” or “kickback
commissions” involving high-ranking government officials, and other
anomalies which included the loss of the contract, collusion among
executive officials, and political pressures against the participants
in the NBN Project.[7]
Considering the serious questions surrounding the NBN Project,
respondents called an investigation, in aid of legislation, on the NBN
Project based on resolutions introduced by Senators Aquilino Q.
Pimentel, Sr., Panfilo M. Lacson, Miriam Defensor Santiago, and Mar
Roxas. Several hearings were conducted, one of which was held on
26 September 2007 where petitioner testified before respondents.
During this particular hearing, petitioner testified that then
Commission on Elections Chairman Benjamin Abalos, Sr. (Abalos), the
alleged broker in the NBN Project, offered petitioner P200 million in
exchange for NEDA's approval of the NBN Project. Petitioner further
testified that he told President Arroyo of the bribe attempt by Abalos
and that the President instructed him not to accept the bribe offer.
However, when respondents asked petitioner what he and President Arroyo
discussed thereafter, petitioner refused to answer, invoking executive
privilege. Petitioner claimed executive privilege when he was
asked the following questions: chanrobles virtual law library
I.
SEN.
PANGILINAN: You mentioned earlier that you
mentioned this to the President. Did the President after that
discussion over the phone, was this ever raised again, the issue of the
200 ka rito?
MR.
NERI: We did not discuss it again, Your
Honor.
SEN.
PANGILINAN: With the President? But the issue,
of course, the NBN deal, was raised again? After that, between
you and the President. Pinalow up (followed up) ba niya?
MR.
NERI: May I claim the executive privilege, Your
Honor, because I think this already involves conversations between me
and the President, Your Honor, because this is already confidential in
nature.
x
x x
II.
SEN.
LEGARDA: Has there been any government official higher than
you who dictated that the ZTE project be prioritized or given
priority? In short, were you dictated upon not to encourage AHI
as you’ve previously done...
MR.
NERI: As I said, Your Honor...
SEN.
LEGARDA: ..but to prefer or prioritize the ZTE?
MR.
NERI: Yeah. As the question may involve – as I said a
conversation/correspondence between the President and a public
official, Your Honor.
SEN.
LEGARDA: I’m sorry. Can you say that again?
MR.
NERI: As I said, I would like to invoke
Sec. 2(a) of EO 464.
x
x x
III.
MR.
NERI: She said, “Don’t accept it,” Your
Honor.
SEN.
CAYETANO, (P): And there was something attached to that
like... “But pursued with a project or go ahead and approve,” something
like that?
MR.
NERI: As I said, I claim the right of
executive privilege no further discussions on the...
SEN.
CAYETANO, (P): Ah, so that’s the part where you invoke your
executive privilege, is that the same thing or is this new, this
invocation of executive privilege?
My
question is, after you had mentioned the 200 million and she said
“Don’t accept,” was there any other statement from her as to what to do
with the project?
MR.
NERI: As I said, it was part of a longer
conversation, Your Honor, so...
SEN.
CAYETANO, (P). A longer conversation in that same-- part of
that conversation on an ongoing day-to-day, week-to-week conversation?
MR.
NERI: She calls me regularly, Your Honor, to discuss
various matters.
SEN.
CAYETANO, (P): But in connection with, “Ma’am, na-offer-an
ako ng 200.” -- “Ah, don’t accept, next topic,” ganoon ba yon? Or
was there like, “Alam mo, magandang project sana ‘yan, eh bakit naman
ganyan.”
MR.
NERI: As I said, Your Honor, beyond that I would
not want to go any further, Your Honor.
SEN.
CAYETANO, (P): I just can’t hear you.
MR.
NERI: Beyond what I said, Your Honor, I’d
like to invoke the right of executive privilege.
On 13 November 2007, the Blue Ribbon Committee issued a subpoena ad
testificandum[8] requiring petitioner to appear again before it and
testify further on 20 November 2007.
On 15 November 2007, Executive Secretary Eduardo Ermita (Executive
Secretary Ermita) addressed a letter (Ermita Letter) to respondent Blue
Ribbon Committee Chair Alan Peter S. Cayetano requesting that
petitioner’s testimony on 20 November 2007 be dispensed with because he
was invoking executive privilege “By Order of the President.”
Executive Secretary Ermita explained:cralaw:red
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 vs. Ermita, the foregoing questions fall
under conversations and correspondence between the President and public
officials which are considered executive privilege (Almonte v Vazquez,
G.R. 95367, 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, is 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 defined in Senate
vs. Ermita, and has advised Secretary Neri accordingly.[9]
Consequently, petitioner did not appear before respondents on 20
November 2007. Petitioner assumed that the only matters on which
respondents would question him were exclusively related to his further
discussions with the President relating to the NBN Project.
On 22 November 2007, respondents issued the letter requiring petitioner
to show cause why he should not be cited in contempt for his failure to
appear at the 20 November 2007 hearing.[10] In a letter dated 29
November 2007, petitioner personally replied to respondents, requesting
to be furnished in advance new matters, if any, which respondents would
like to ask him other than the three questions for which Executive
Secretary Ermita had already claimed executive privilege.[11]
On 7 December 2007, petitioner filed the initial Petition for
certiorari with a prayer for the issuance of a temporary restraining
order to enjoin respondents from citing him in contempt.
On 30 January 2008, respondents issued an order for the arrest of
petitioner for his failure to appear at the hearings of the Senate
Committees on 18 September 2007, 20 September 2007, 25 October 2007,
and 20 November 2007.[12] On the same day, petitioner wrote
respondents and Senate President Manny Villar seeking a reconsideration
of the issuance of the arrest order.
On 1 February 2008, petitioner filed with this Court a supplemental
petition for certiorari with an urgent application for a temporary
restraining order or preliminary injunction seeking to nullify the
arrest order and to enjoin respondents from implementing such order.
On 5 February 2008, the Court issued a resolution requiring respondents
to Comment on the Petition and supplemental petition and to observe the
status quo prevailing prior to respondents' Order of 30 January
2008. The Court further resolved to set the Petition for hearing
on the merits and on the Status Quo Ante Order on 4 March 2008.
The Court heard the parties in oral arguments on 4 March 2008, on the
following issues: chanrobles virtual law library
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” xxx, 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 grave[ly] abuse their discretion in
ordering the arrest of petitioner for non-compliance with the subpoena?
After the oral arguments, the Office of the Solicitor General (OSG)
filed on 17 March 2008 a Motion for Leave to Intervene and to Admit
Attached Memorandum. The OSG argues that petitioner’s discussions
with the President are covered by executive privilege. The OSG
assails the validity of the Senate’s Rules of Procedure Governing
Inquiries in Aid of Legislation on the ground of lack of
publication. On 18 March 2008, the Court granted the OSG’s motion
to intervene.
In his Petition, petitioner alleges that the invocation of executive
privilege is well founded. Petitioner claims that his candid
discussions with the President were meant to explore options in
crafting policy decisions. Petitioner further argues that the
invocation of executive privilege was “timely, upon authority of the
President, and within the parameters laid down in Senate v. Ermita and
United States v. Reynolds.” Petitioner also maintains that his
non-appearance at the 20 November 2007 hearing was due to the order of
the President herself, invoking executive privilege. Therefore,
petitioner asserts that the show cause order was issued with grave
abuse of discretion, hence void.
In his supplemental petition, petitioner argues, among others, that the
issuance of the arrest order was another grave abuse of discretion
because he did not commit any contumacious act. Petitioner
contends that Executive Secretary Ermita correctly invoked executive
privilege in response to the subpoena issued by respondents for
petitioner to testify at the 20 November 2007 hearing. Petitioner
also impugns the validity of the Senate’s Rules of Procedure Governing
Inquiries in Aid of Legislation for lack of publication for the 14th
Congress.
Petitioner also alleges that respondents' order of arrest preempted
this Court's action on his initial Petition. Petitioner claims
that “this order of arrest elides, and side-steps, the President's
invocation of executive privilege in behalf of petitioner.”chanroblesvirtualawlibrary
In their Comment, respondents counter that there is no justification
for petitioner's invocation of executive privilege. Respondents assert
that petitioner's sweeping claim of executive privilege does not
authorize his absolute refusal to appear and testify before them.
Respondents argue that petitioner failed to overcome the presumption
against executive secrecy and in favor of disclosure, as required in
Senate v. Ermita.[13]
Respondents also claim that petitioner's justification violates the
constitutional and statutory standards for public officers.
Respondents further maintain that the grounds invoked by petitioner are
mere speculations and presumptions. Likewise, respondents insist
that the testimony of petitioner is material and pertinent in aid of
legislation. Respondents point out that several bills relating to
the inquiry have already been filed in aid of legislation. Respondents
also stress that even assuming that petitioner timely invoked executive
privilege, this privilege does not extend to criminal
activities. chanroblesvirtualawlibrary
The
Issues
The issues raised in this petition may be summarized as follows: chanrobles virtual law library
1.
Whether Executive Secretary Ermita correctly invoked
executive privilege on the three questions mentioned in his 15 November
2007 letter to the Senate Blue Ribbon Committee;
2.
Whether the Senate’s Rules of Procedure Governing
Inquiries in Aid of Legislation were duly published; and
3.
Whether the Senate’s Order of 30 January 2008 citing
petitioner in contempt and directing his arrest is valid.
Discussion
1. Overview of Executive Privilege
Executive privilege is the implied constitutional power of the
President to withhold information requested by other branches of the
government. The Constitution does not expressly grant this power
to the President but courts have long recognized implied Presidential
powers if “necessary and proper”[14] in carrying out powers and
functions expressly granted to the Executive under the Constitution.
In the United States, executive privilege was first recognized as an
implied constitutional power of the President in the 1973 case of
United States v. Nixon.[15] U.S. Presidents, however, have
asserted executive privilege since the time of the first President,
George Washington.[16] In this jurisdiction, several decisions
have recognized executive privilege starting with the 1995 case of
Almonte v. Vasquez,[17] and the most recent being the 2002 case of
Chavez v. Public Estates Authority[18] and the 2006 case of Senate v.
Ermita.[19]
As Commander-in-Chief of the Armed Forces[20] and as Chief
Executive,[21] the President is ultimately responsible for military and
national security matters affecting the nation. In the discharge of
this responsibility, the President may find it necessary to withhold
sensitive military and national security secrets from the Legislature
or the public.
As the official in control of the nation’s foreign service by virtue of
the President’s control of all executive departments, bureaus and
offices,[22] the President is the chief implementer of the foreign
policy relations of the State. The President’s role as chief
implementer of the State’s foreign policy is reinforced by the
President’s constitutional power to negotiate and enter into treaties
and international agreements.[23] In the discharge of this
responsibility, the President may find it necessary to refuse
disclosure of sensitive diplomatic secrets to the Legislature or the
public. Traditionally, states have conducted diplomacy with
considerable secrecy. There is every expectation that a state
will not imprudently reveal secrets that its allies have shared with
it.
There is also the need to protect the confidentiality of the internal
deliberations of the President with his Cabinet and advisers. To
encourage candid discussions and thorough exchange of views, the
President’s communications with his Cabinet and advisers need to be
shielded from the glare of publicity. Otherwise, the Cabinet and
other presidential advisers may be reluctant to discuss freely with the
President policy issues and executive matters knowing that their
discussions will be publicly disclosed, thus depriving the President of
candid advice.
Executive privilege, however, is not absolute. The interest of
protecting military, national security and diplomatic secrets, as well
as Presidential communications, must be weighed against other
constitutionally recognized interests. There is the
declared state policy of full public disclosure of all transactions
involving public interest,[24] the right of the people to information
on matters of public concern,[25] the accountability of public
officers,[26] the power of legislative inquiry,[27] and the
judicial power to secure testimonial and documentary evidence in
deciding cases.[28] chanroblesvirtualawlibrary
The balancing of interests – between executive privilege on one hand
and the other competing constitutionally recognized interests on the
other hand - is a function of the courts. The courts will have to
decide the issue based on the factual circumstances of each case.
This is how conflicts on executive privilege between the Executive and
the Legislature,[29] and between the Executive and the Judiciary,[30]
have been decided by the courts.
The Judiciary, however, will consider executive privilege only if the
issues cannot be resolved on some other legal grounds.[31] In conflicts
between the Executive and the Legislature involving executive
privilege, the Judiciary encourages negotiation between the Executive
and Legislature as the preferred route of conflict
resolution.[32] Only if judicial resolution is unavoidable will
courts resolve such disputes between the Executive and Legislature.[33]
Information covered by executive privilege remains confidential even
after the expiry of the terms of office of the President, Cabinet
members and presidential advisers. Thus, a former President can assert
executive privilege.[34] The character of executive privilege
attaches to the information and not to the person. Executive
privilege is for the benefit of the State and not for the benefit of
the office holder. Even death does not extinguish the
confidentiality of information covered by executive privilege.
Executive privilege must be exercised by the President in pursuance of
official powers and functions. Executive privilege cannot be
invoked to hide a crime because the President is neither empowered nor
tasked to conceal a crime.[35] On the contrary, the President has
the constitutional duty to enforce criminal laws and cause the
prosecution of crimes.[36]
Executive privilege cannot also be used to hide private matters, like
private financial transactions of the President. Private matters
are those not undertaken pursuant to the lawful powers and official
functions of the Executive. However, like all citizens, the
President has a constitutional right to privacy.[37] In
conducting inquiries, the Legislature must respect the right to privacy
of citizens, including the President’s.
Executive privilege is rooted in the separation of powers.[38]
Executive privilege is an implied constitutional power because it is
necessary and proper to carry out the express constitutional powers and
functions of the Executive free from the encroachment of the other
co-equal and co-ordinate branches of government.
Executive privilege springs from the supremacy of each branch within
its own assigned area of constitutional powers and functions.[39]
Executive privilege can be invoked only by the President who is the
sole Executive in whom is vested all executive power under the
Constitution.[40] However, the Executive Secretary can invoke
executive privilege “By Order of the President,” which means the
President personally instructed the Executive Secretary to invoke
executive privilege in a particular circumstance.[41]
Executive privilege must be invoked with specificity sufficient to
inform the Legislature and the Judiciary that the matter claimed as
privileged refers to military, national security or diplomatic secrets,
or to confidential Presidential communications.[42] A claim of
executive privilege accompanied by sufficient specificity gives rise to
a presumptive executive privilege. A generalized assertion of executive
privilege, without external evidence or circumstances indicating that
the matter refers to any of the recognized categories of executive
privilege, will not give rise to presumptive executive privilege.
If there is doubt whether presumptive privilege exists, the court may
require in camera inspection of so much of the evidence as may be
necessary to determine whether the claim of executive privilege is
justified.[43] Once presumptive executive privilege is
established, the court will then weigh the need for such executive
privilege against the need for other constitutionally recognized
interests.
Executive privilege must be invoked after the question is asked by the
legislative committee, not before. A witness cannot raise
hypothetical questions that the committee may ask, claim executive
privilege on such questions, and on that basis refuse to appear before
the legislative committee. If the legislative committee
furnished in advance the questions to the witness, the witness must
bring with him the letter of the President or Executive Secretary
invoking executive privilege and stating the reasons for such claim.
If the legislative committee did not furnish in advance the questions,
the witness must first appear before the legislative committee, wait
for the question to be asked, and then raise executive privilege. The
legislative committee must then give the witness sufficient time to
consult the President or Executive Secretary whether the President will
claim executive privilege. At the next hearing, the witness can
bring with him the letter of the President or Executive Secretary, and
if he fails to bring such letter, the witness must answer the question.
There are other categories of government information which are
considered confidential but are not strictly of the same status as
those falling under the President’s executive privilege. An example of
such confidential information is the identity of an informer which is
made confidential by contract between the government and the
informer.[44] The privilege character of the information is
contractual in nature. There are also laws that classify the
identity of an informer as confidential.[45] The privilege
character of the information is conferred by the Legislature and not by
the Executive’s implied power of executive privilege under the
Constitution.
There is also the category of government information that is
confidential while the deliberative process of agency executives is
on-going, but becomes public information once an agency decision or
action is taken. Thus, a committee that evaluates bids of
government contracts has a right to keep its deliberations and written
communications confidential. The purpose of the deliberative
process privilege is to give agency executives freedom to discuss
competing bids in private without outside pressure. However, once they
take a definite action, like deciding the best bid, their deliberations
and written communications form part of government records accessible
by the public.[46] chanroblesvirtualawlibrary
Confidential information under the deliberative process privilege is
different from the President’s executive privilege. Military,
national security, and diplomatic secrets, as well as Presidential
communications, remain confidential without time limit. The
confidentiality of matters falling under the President’s executive
privilege remains as long as the need to keep them confidential
outweighs the need for public disclosure.
Then there is the category of government information that must be kept
temporarily confidential because to disclose them immediately would
frustrate the enforcement of laws. In an entrapment operation of drug
pushers, the identity of the undercover police agents, informers and
drug suspects may not be disclosed publicly until after the operation
is concluded. However, during the trial, the identity of
the undercover police agents and informers must be disclosed if their
testimony is introduced in evidence.
2. Overview of Legislative Power of Inquiry
The Legislature’s fundamental function is to enact laws and oversee the
implementation of existing laws. The Legislature must exercise
this fundamental function consistent with the people’s right to
information on the need for the enactment of laws and the status of
their implementation. The principal tool used by the
Legislature in exercising this fundamental function is the power of
inquiry which is inherent in every legislative body.[47] Without
the power of inquiry, the Legislature cannot discharge its fundamental
function and thus becomes inutile.
The Constitution expressly grants to the “Senate, the House of
Representatives or any of its respective committees” the power to
“conduct inquiries in aid of legislation.”[48] This power of
legislative inquiry is so searching and extensive in scope that the
inquiry need not result in any potential legislation,[49] and may even
end without any predictable legislation.[50] The phrase
“inquiries in aid of legislation” refers to inquiries to aid the
enactment of laws, inquiries to aid in overseeing the implementation of
laws, and even inquiries to expose corruption, inefficiency or waste in
executive departments.[51]
Thus, the Legislature can conduct inquiries not specifically to enact
laws, but specifically to oversee the implementation of laws.
This is the mandate of various legislative oversight committees which
admittedly can conduct inquiries on the status of the implementation of
laws. In the exercise of the legislative oversight function,
there is always the potential, even if not expressed or predicted, that
the oversight committees may discover the need to improve the laws they
oversee and thus recommend amendment of the laws. This is
sufficient reason for the valid exercise of the power of legislative
inquiry. Indeed, the oversight function of the Legislature
may at times be as important as its law-making function.[52]
Aside from the purpose of the inquiry, the Constitution imposes two
other limitations on the power of legislative inquiry.[53] One,
the rules of procedure for the inquiry must be duly published.
Publication of the rules of the inquiry is an essential requirement of
due process. Two, the rights of persons appearing before the
investigating committees, or affected by such inquiries, must be
respected. These rights include the right against
self-incrimination,[54] as well as the right to privacy of
communications and correspondence of a private nature.[55]
The power of legislative inquiry does not reach into the private
affairs of citizens.[56]
Also protected is the right to due process, which means that a witness
must be given “fair notice” of the subject of the legislative
inquiry. Fair notice is important because the witness may be
cited in contempt, and even detained, if he refuses or fails to
answer.[57] Moreover, false testimony before a legislative
body is a crime.[58] Thus, the witness must be sufficiently
informed of the nature of the inquiry so the witness can reasonably
prepare for possible questions of the legislative committee. To avoid
doubts on whether there is fair notice, the witness must be given in
advance the questions pertaining to the basic nature of the
inquiry.[59] From these advance questions, the witness can infer
other follow-up or relevant questions that the legislative committee
may ask in the course of the inquiry.
The Legislature has the inherent power to enforce by compulsion its
power of inquiry.[60] The Legislature can enforce its power of
inquiry through its own sergeant-at-arms without the aid of law
enforcement officers of the Executive[61] or resort to the
courts.[62] The two principal means of enforcing the power of
inquiry are for the Legislature to order the arrest of a witness who
refuses to appear,[63] and to detain a witness who refuses to
answer.[64] A law that makes a crime the refusal to appear before the
Legislature does not divest the Legislature of its inherent power to
arrest a recalcitrant witness.[65]
The inherent power of the Legislature to arrest a recalcitrant witness
remains despite the constitutional provision that “no warrant of arrest
shall issue except upon probable cause to be determined personally by
the judge.”[66] The power being inherent in the Legislature,
essential for self-preservation,[67] and not expressly withdrawn
in the Constitution, the power forms part of the “legislative power x x
x vested in the Congress.”[68] The Legislature asserts this power
independently of the Judiciary.[69] A grant of legislative power in the
Constitution is a grant of all legislative powers, including inherent
powers.[70] chanroblesvirtualawlibrary
The Legislature can cite in contempt and order the arrest of a witness
who fails to appear pursuant to a subpoena ad
testificandum. There is no distinction between direct and
indirect contempt of the Legislature because both can be punished motu
propio by the Legislature upon failure of the witness to appear or
answer. Contempt of the Legislature is different from contempt of
court.[71]
3. Whether Executive Privilege Was Correctly Invoked
In this Case
The Ermita Letter invokes two grounds in claiming executive
privilege. First, the answers to the three questions involve
confidential conversations of the President with petitioner.
Second, the information sought to be disclosed might impair “diplomatic
as well as economic” relations with the People’s Republic of China.
However, in his present Petition, which he verified under oath,
petitioner declared: chanrobles virtual law library
7.03.
Petitioner’s discussions with the President were candid
discussions mean[t] to explore options in making policy decisions (see
Almonte v. Vasquez, 244 SCRA 286 [1995]). 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. (Emphasis supplied)
Petitioner categorically admits that his discussions with the President
“dwelt on the impact of bribery scandal involving high Government
officials.” Petitioner’s discussions with the President
dealt not on simple bribery, but on scandalous bribery involving high
Government officials of the Philippines. chanroblesvirtualawlibrary
In a letter dated 29 November 2007 to the Chairs of the Committees,
petitioner’s counsel declared: chanrobles virtual law library
4.
His conversations with the President 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 (Emphasis supplied)
Petitioner admits, and there can be no dispute about this admission,
that his discussions with the President dwelt on a bribery scandal
involving high Government officials of the Philippines. chanroblesvirtualawlibrary
Executive privilege can never be used to hide a crime or wrongdoing,
even if committed by high government officials. Executive
privilege applies only to protect official acts and functions of the
President, never to conceal illegal acts by anyone, not even those of
the President.[72] During the oral arguments on 4 March 2008,
counsel for petitioner admitted that executive privilege cannot be
invoked to hide a crime. Counsel for petitioner also admitted
that petitioner and the President discussed a scandal, and that the
“scandal was about bribery.” Thus:cralaw:red
JUSTICE
CARPIO: Counsel, in your petition, paragraph 7.03, x x x
– you are referring to the discussions between Secretary Neri and the
President and you state: - [“]This discussion dwelt on the impact of
the bribery scandal involving high government officials on the
countries diplomatic relations and economic and military affairs and
the possible loss of confidence of foreign investors and lenders in the
Philippines.[”] You stated the same claim also in your letter of
29 November 2007 to the Senate, is that correct?
ATTY.
BAUTISTA: That is true, Your Honor.
JUSTICE
CARPIO: Now, can Executive Privilege be
invoked to hide a crime or a wrongdoing on the part of government
officials?
ATTY.
BAUTISTA: Definitely not, Your Honor.
JUSTICE
CARPIO: x x x Now, you are saying that the
discussions between the President and Secretary Neri that you claim[x]
to be privilege[ed] refer to bribery scandal involving government
officials. So, you are admitting that there is a crime here?
ATTY.
BAUTISTA: Only the scandal, Your Honor,
not the crime.
JUSTICE
CARPIO: But you are saying bribery, bribery is a crime,
correct?
ATTY.
BAUTISTA: That is true, Your Honor.
JUSTICE
CARPIO: So, they discuss[ed] about a bribery involving
government officials, correct?
ATTY.
BAUTISTA: The scandal, Your Honor.
JUSTICE
CARPIO: No, [it] says bribery.
ATTY.
BAUTISTA: Well, bribery, the scandal was
about bribery.
x
x x. (Emphasis supplied)
Petitioner admits in his Petition, and through his counsel in the 15
November 2007 letter to the Senate Blue Ribbon Committee and during the
oral arguments, that he discussed with the President a “bribery scandal
involving high government officials.” This particular discussion of
petitioner with the President is not covered by executive privilege.
The invocation of executive privilege on the three questions dwelling
on a bribery scandal is clearly unjustified and void. Public
office is a public trust[73] and not a shield to cover up
wrongdoing. Petitioner must answer the three questions asked by
the Senate Committees.
The Ermita Letter merely raises a generalized assertion of executive
privilege on diplomatic matters. The bare claim that disclosure “might
impair” diplomatic relations with China, without specification of
external evidence and circumstances justifying such claim, is
insufficent to give rise to any presumptive executive
privilege.[74] A claim of executive privilege is presumptively
valid if there is specificity in the claim. The claim of
impairment of economic relations with China is invalid because
impairment of economic relations, involving “foreign investors and
lenders in the Philippines,” is not a recognized ground for invoking
executive privilege.
The Ermita Letter does not claim impairment of military or national
security secrets as grounds for executive privilege. The Ermita
Letter only invokes confidential Presidential conversations and
impairment of diplomatic and economic relations. However, in his
Petition, petitioner declared that his discussions with the President
referred to a bribery scandal affecting “diplomatic relations and
economic and military affairs.” Likewise, in his 29 November 2007
letter to the Senate Committees, counsel for petitioner stated that
petitioner’s discussions with the President referred to “sensitive
national security and diplomatic matters.” chanroblesvirtualawlibrary
Apparently, petitioner has expanded the grounds on which Executive
Secretary Ermita invoked executive privilege on behalf of the
President. Petitioner also confuses military secrets with
national security secrets. Petitioner’s claim of executive
privilege not only lacks specificity, it is also imprecise and
confusing. In any event, what prevails is the invocation of
Executive Secretary Ermita since he is the only one authorized to
invoke executive privilege “By Order of the President.”[75] chanroblesvirtualawlibrary
Thus, the bases for the claim of executive privilege are what the
Ermita Letter states, namely, confidential Presidential conversations
and impairment of diplomatic and economic relations. However,
impairment of economic relations is not even a recognized ground.
In short, this Court can only consider confidential Presidential
conversations and impairment of diplomatic relations as grounds for the
invocation of executive privilege in this petition.
During the oral arguments, counsel for petitioner failed to correct or
remedy the lack of specificity in the invocation of executive privilege
by Executive Secretary Ermita. Thus: chanrobles virtual law library
JUSTICE
CARPIO: Okay, was the DFA involved in
the negotiation[s] for the NBN contract?
ATTY.
BAUTISTA:[76] I do not know, Your Honor.
x
x x x x x x x x
CHIEF
JUSTICE PUNO: Do [you] also know whether there
is any aspect of the contract relating to diplomatic relations which
was referred to the Department of Foreign Affairs for its comment and
study?
ATTY.
LANTEJAS: As far as I know, Your Honors, there was no
referral to the Department of Foreign Affairs, Your Honor.
While claiming that petitioner’s discussions with the President on the
NBN Project involved sensitive diplomatic matters, petitioner does not
even know if the Department of Foreign Affairs (DFA) was involved in
the NBN negotiations. This is incredulous considering that under
the Revised Administrative Code, the DFA “shall be the lead agency that
shall advise and assist the President in planning, organizing,
directing, coordinating and evaluating the total national effort in the
field of foreign relations.”[77]
The three questions that Executive Secretary Ermita claims are covered
by executive privilege, if answered by petitioner, will not disclose
confidential Presidential communications. Neither will answering the
questions disclose diplomatic secrets. Counsel for petitioner admitted
this during the oral arguments in the following exchange: chanrobles virtual law library
ASSOCIATE
JUSTICE CARPIO: Going to the first question x x x whether the
President followed up the NBN project, is there anything wrong if the
President follows up with NEDA the status of projects in government x x
x, is there anything morally or legally wrong with that?
ATTY.
LANTEJAS:[78] There is nothing wrong, Your Honor,
because (interrupted)
ASSOCIATE
JUSTICE CARPIO: That’s normal.
ATTY.
LANTEJAS: That’s normal, because the President is the
Chairman of the NEDA Board, Your Honor.
ASSOCIATE
JUSTICE CARPIO: Yes, so there is nothing wrong.
So why is Mr. Neri afraid to be asked this question?
ATTY.
LANTEJAS: I just cannot (interrupted)
ASSOCIATE
JUSTICE CARPIO: You cannot fathom?
ATTY.
LANTEJAS: Yes, Your Honor.
ASSOCIATE
JUSTICE CARPIO: You cannot fathom. The second question,
were you dictated to prioritize the ZTE [contract], is it the function
of NEDA to prioritize specific contract[s] with private parties? No,
yes?
ATTY.
LANTEJAS: The prioritization, Your Honor, is in
the (interrupted).
ASSOCIATE
JUSTICE CARPIO: Project?
ATTY.
LANTEJAS: In the procurement of financing from
abroad, Your Honor.
ASSOCIATE
JUSTICE CARPIO: Yes. The NEDA will
prioritize a project, housing project, NBN project, the Dam project,
but never a specific contract, correct?
ATTY.
LANTEJAS: Not a contract, Your Honor.
ASSOCIATE
JUSTICE CARPIO: This question that Secretary Neri is
afraid to be asked by the Senate, he can easily answer this, that NEDA
does not prioritize contract[s], is that correct?
ATTY.
LANTEJAS: It is the project, Your Honor.
ASSOCIATE
JUSTICE CARPIO: So why is he afraid to be asked this
question?
ATTY.
LANTEJAS: I cannot, I cannot fathom. Your Honor.
ASSOCIATE
JUSTICE CARPIO: You cannot fathom also?
ATTY.
LANTEJAS: Yes, Your Honor.
ASSOCIATE
JUSTICE CARPIO: But is there anything wrong if the
President will tell the NEDA Director General, you
prioritize this project, is there anything legally or morally wrong
with that?
ATTY.
LANTEJAS: There is nothing wrong with that, Your
Honor.
ASSOCIATE
JUSTICE CARPIO: There is nothing [wrong]. It
happens all the time?
ATTY.
LANTEJAS: The NEDA Board, the Chairman of the NEDA Board,
yes, she can.
ASSOCIATE
JUSTICE CARPIO: [S]he can always tell that?
ATTY.
LANTEJAS: Yes, Your Honor.
ASSOCIATE
JUSTICE CARPIO: Okay. Let’s go to the third
question, whether the President said, to go ahead and approve the
project after being told about the alleged bribe. Now, x x x it
is not the NEDA Director General that approves the project, correct?
ATTY.
LANTEJAS: No, no, Your Honor.
ASSOCIATE
JUSTICE CARPIO: It is the (interrupted)
ATTY.
LANTEJAS: It is the NEDA Board, Your Honor.
ASSOCIATE
JUSTICE CARPIO: The NEDA Board headed by the President.
ATTY.
LANTEJAS: Yes, Your Honor.
ASSOCIATE
JUSTICE CARPIO: So this question, is not correct also,
x x x whether the President said to Secretary Neri to go ahead and
approve the project? Secretary Neri does not approve the project,
correct?
ATTY.
LANTEJAS: He’s just the Vice Chairman, Your Honor.
ASSOCIATE
JUSTICE CARPIO: So why is he afraid to be asked this
question?
ATTY.
LANTEJAS: I cannot tell you, Your Honor.
ASSOCIATE
JUSTICE CARPIO: You cannot fathom also?
ATTY.
LANTEJAS: Yes, Your Honor.
ASSOCIATE
JUSTICE CARPIO: You cannot fathom also.
ATTY.
LANTEJAS: Yes, Your Honor.
Petitioner’s counsel admits that he “cannot fathom” why petitioner
refuses to answer the three questions. Petitioner’s counsel
admits that the three questions, even if answered by petitioner, will
not disclose confidential Presidential discussions or diplomatic
secrets. The invocation of executive privilege is thus
unjustified.
Of course, it is possible that the follow-up questions to the three
questions may call for disclosure of confidential presidential
discussions or diplomatic secrets. However, executive privilege
cannot be invoked on possible questions that have not been asked by the
legislative committee. Executive privilege can only be invoked
after the question is asked, not before, because the legislative
committee may after all not ask the question. But even if
the follow-up questions call for the disclosure of confidential
Presidential discussions or diplomatic secrets, still executive
privilege cannot be used to cover up a crime.
4. Whether the Senate’s Rules of Procedure on Inquiries
Have Been Published
The Constitution requires that the Legislature publish its rules of
procedure on the conduct of legislative inquiries in aid of
legislation.[79] There is no dispute that the last
publication of the Rules of Procedure of the Senate Governing the
Inquiries in Aid of Legislation was on 1 December 2006 in the
Philippine Star and Philippine Daily Inquirer during the 13th
Congress. There is also no dispute that the Rules of Procedure
have not been published in newspapers of general circulation during the
current 14th Congress. However, the Rules of Procedure have been
published continuously in the website of the Senate since at least the
13th Congress. In addition, the Senate makes the Rules of
Procedure available to the public in pamphlet form.
Petitioner assails the validity of the Rules of Procedure because
they have not been duly published for the 14th
Congress.[80] Respondents counter that the Senate is a
continuing legislative body. Respondents argue that as a
continuing body, the Senate does not have to republish the Rules of
Procedure because publication of the Rules of Procedure in the 13th
Congress dispenses with republication of the Rules of Procedure in
subsequent Congresses. The issue then turns on whether the Senate
under the 1987 Constitution is a continuing body.
chanroblesvirtualawlibrary
In Arnault v. Nazareno,[81] decided under the 1935 Constitution, this
Court ruled that “the Senate of the Philippines is a continuing body
whose members are elected for a term of six years and so divided that
the seats of only one-third become vacant every two years, two-thirds
always continuing into the next Congress save as vacancies may occur
thru death or resignation.” To act as a legislative body,
the Senate must have a quorum, which is a majority of its
membership.[82] Since the Senate under the 1935 Constitution
always had two-thirds of its membership filled up except for vacancies
arising from death or resignation, the Senate always maintained a
quorum to act as a legislative body. Thus, the Senate under the 1935
Constitution continued to act as a legislative body even after the
expiry of the term of one-third of its members. This is the
rationale in holding that the Senate under the 1935 Constitution was a
continuing legislative body.[83]
The present Senate under the 1987 Constitution is no longer a
continuing legislative body. The present Senate has twenty-four
members, twelve of whom are elected every three years for a term of six
years each. Thus, the term of twelve Senators expires every three
years, leaving less than a majority of Senators to continue into the
next Congress. The 1987 Constitution, like the 1935
Constitution, requires a majority of Senators to “constitute a quorum
to do business.”[84] Applying the same reasoning in Arnault v.
Nazareno, the Senate under the 1987 Constitution is not a continuing
body because less than majority of the Senators continue into the next
Congress. The consequence is that the Rules of Procedure must be
republished by the Senate after every expiry of the term of twelve
Senators.
The publication of the Rules of Procedure in the website of the Senate,
or in pamphlet form available at the Senate, is not sufficient under
the Tañada v. Tuvera[85] ruling which requires publication
either in the Official Gazette or in a newspaper of general
circulation. The Rules of Procedure even provide that the
rules “shall take effect seven (7) days after publication in two (2)
newspapers of general circulation,”[86] precluding any other form of
publication. Publication in accordance with Tañada is
mandatory to comply with the due process requirement because the Rules
of Procedure put a person’s liberty at risk. A person who
violates the Rules of Procedure could be arrested and detained by the
Senate. chanroblesvirtualawlibrary
Due process requires that “fair notice” be given to citizens before
rules that put their liberty at risk take effect. The failure of
the Senate to publish its Rules of Procedure as required in Section 22,
Article VI of the Constitution renders the Rules of Procedure
void. Thus, the Senate cannot enforce its Rules of Procedure.
5. Whether the Senate Committees Validly
Ordered the Arrest of Petitioner
The Senate and its investigating committees have the implied power to
cite in contempt and order the arrest of a witness who refuses to
appear despite the issuance of a subpoena. The Senate can enforce the
power of arrest through its own Sergeant-at-Arms. In the
present case, based on the Minutes of Meetings and other documents
submitted by respondents, the majority of the regular members of each
of the respondent Committees voted to cite petitioner in contempt and
order his arrest. However, the Senate’s Order of 30 January 2008
citing petitioner in contempt and ordering his arrest is void due to
the non-publication of the Rules of Procedure.[87] chanroblesvirtualawlibrary
The arrest of a citizen is a deprivation of liberty. The
Constitution prohibits deprivation of liberty without due process of
law. The Senate or its investigating committees can
exercise the implied power to arrest only in accordance with due
process which requires publication of the Senate’s Rules of
Procedure. This Court has required judges to comply
strictly with the due process requirements in exercising their express
constitutional power to issue warrants of arrest.[88] This
Court has voided warrants of arrest issued by judges who failed to
comply with due process. This Court can do no less for arrest
orders issued by the Senate or its committees in violation of due
process. chanroblesvirtualawlibrary
6. Conclusion
In summary, the issues raised in this petition should be resolved as
follows: chanroblesvirtualawlibrary
a.
Executive Secretary Ermita’s invocation of executive
privilege in his letter of 15 November 2007 to the Senate Committees is
void because (1) executive privilege cannot be used to hide a crime;
(2) the invocation of executive privilege lacks specificity; and (3)
the three questions for which executive privilege is claimed can be
answered without disclosing confidential Presidential communications or
diplomatic secrets.
b.
The Senate’s Rules of Procedure are void for lack of
publication; and
c.
The Senate Committees’ Order of 30 January 2008 citing
petitioner in contempt and directing his arrest is void for lack of
published rules governing the conduct of inquiries in aid of
legislation.
Accordingly,
I DISSENT from the majority opinion’s ruling that the
three questions are covered by executive privilege. However, I CONCUR
with the majority opinion’s ruling that the Rules of Procedure are
void. Hence, I vote to GRANT the petition in part by (i) declaring void
the assailed Order of respondents dated 30 January 2008 citing
petitioner Secretary Romulo L. Neri in contempt and directing his
arrest, and (ii) ordering respondents to desist from citing in contempt
or arresting petitioner until the Senate’s Rules of Procedure Governing
Inquiries in Aid of Legislation are duly published and have become
effective. chanroblesvirtualawlibrary
ANTONIO
T. CARPIO
Associate Justice
Footnotes: chanrobles virtual law library
chanrobles virtual law library
chanrobles virtual law library
[1]Rollo,
pp. 3-10. Under Rule 65 of the Rules of Court.
[2]Id. at 26-32.
[3]Headed by Senator Alan Peter S. Cayetano as Chair.
[4]Headed by Senator Mar Roxas as Chair.
[5]Headed by Senator Rodolfo G. Biazon as Chair.
[6] Respondents’ Comment dated 14 February 2008
[7] Id. chanroblesvirtualawlibrary
[8] Rollo, pp. 15-16.
[9] Id. at 17-18.
[10] Id. at 12-13. The show cause letter reads: chanrobles virtual law library
Dear
Mr. Neri:
A
Subpoena Ad Testificandum has been issued and was duly received and
signed by a member of your staff on 15 November 2007.
You
were required to appear before the Senate Blue Ribbon hearing at
10:00 a.m. on 20 November 2007 to testify on the Matter of:
P.S.
RES. NO. 127 BY SENATOR AQUILINO PIMENTEL, JR. (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 The 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
Loopholes, If Any, In The BOT Law and Other Pertinent Legislations);
P.S. RES. NO. 129 BY SENATOR PANFILO M. LACSON (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 Further
Protect Our National Sovereignty And Territorial Integrity); PRIVILEGE
SPEECH OF SENATOR PANFILO M. LACSON entitled “LEGACY OF CORRUPTION”
delivered on 11 September 2007; P.S. RES. NO. 136 BY SENATOR MIRIAM
DEFENSOR SANTIAGO (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
Government); PRIVILEGE SPEECH OF SENATOR MIRIAM DEFENSOR SANTIAGO
entitled “INTERNATIONAL AGREEMENTS IN CONSTITUTIONAL LAW: THE
SUSPENDED RP-CHINA (ZTE) LOAN AGREEMENT” delivered on 24 September
2007; P.S. RES NO. 144 BY SENATOR MAR ROXAS (Resolution Urging
President Gloria Macapagal Arroyo to direct the Cancellation of the ZTE
Contract).
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.
[11] Id. at 19.
[12] The arrest order reads: chanrobles virtual law library
ORDER
For
failure to appear and testify in the Committees’s hearing on
Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday,
October 25, 2007 and Tuesday, November 20, 2007, despite personal
notice and a Subpoena[s] 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 th[ese]
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.
[13] 433 Phil. 506 (2002).
[14] Marcos v. Manglapus, G.R. No. 88211, 15
September 1989, 177 SCRA 668, and 27 October 1989, 178 SCRA 760.
In resolving the motion for reconsideration, the Court cited Myers v.
United States (272 U.S. 52 [1926]) where Chief Justice William H. Taft
(a former U.S. President and Governor-General of the Philippines),
writing for the majority, ruled: “The true view of the Executive
function is x x x that the President can exercise no power which cannot
be fairly and reasonably traced to some specific grant of power or
justly implied and included within such express grant as necessary and
proper for its exercise.” The principle that power can be implied
if “necessary and proper” to carry out a power expressly granted in the
Constitution is now a well-settled doctrine.
[15] 418 U.S. 683 (1974).
[16] Laurence H. Tribe, American Constitutional Law,
Vol. 1, p. 784 (3rd Edition).
[17] Supra note 13.
[18] 433 Phil. 506 (2002).
[19] Supra note 13.
[20] Section 18, Article VII, Constitution.
[21] Section 1, Article VII, Constitution.
[22] Section 17, Article VII, Constitution.
[23] Section 21, Article VII, Constitution.
[24] Section 28, Article II, Constitution.
[25] Section 7, Article III, Constitution.
[26] Section 1, Article XI, Constitution. chanroblesvirtualawlibrary
[27] Section 21, Article VI, Constitution.
[28] Sections 1 and 5, Article VIII, Constitution. See also
United States v. Nixon, supra note 15.
[29] Senate v. Ermita, supra note 13.
[30] United States v. Nixon, supra note 15; Clinton v.
Jones, 520 U.S. 681 (1997).
[31] Cheney v. U.S. District Court for the District of
Columbia, 542 U.S. 367 (2004).
[32] United States v. AT&T, 551 F.2d 384,
394 (D.C. Cir. 1976). The Court stated: “Before moving on to a
decision of such nerve-center constitutional questions, we pause to
allow for further efforts at a settlement. x x x This dispute between
the legislative and executive branches has at least some elements of
the political-question doctrine. A court decision selects a
victor, and tends thereafter to tilt the scales. A compromise worked
out between the branches is most likely to meet their essential needs
and the country’s constitutional balance.” See also United States
v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977). The Court
stated: “The framers, rather than attempting to define and allocate all
governmental power in minute detail, relied, we believe, on the
expectation that where conflicts in scope of authority arose between
the coordinate branches, a spirit of dynamic compromise would promote
resolution of the dispute in the manner most likely to result in
efficient and effective functioning of our governmental system. 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. This aspect of constitutional scheme avoids
the mischief of polarization of disputes x x x.”chanroblesvirtualawlibrary
[33] Section 1, Article VIII, Constitution.
[34] Nixon v. Administrator of General Services
Administration, 433 U.S. 425 (1977).
[35] McGrain v. Daugherty, 273 U.S. 135,
179-180 (1927). The U.S. Supreme Court declared: “Nor do we think
it a valid objection to the investigation that it might possibly
disclose crime or wrongdoing x x x.”chanroblesvirtualawlibrary
[36] Section 17, Article VII, Constitution.
[37] Nixon v. Administrator of General Services,
supra note 34.
[38] United States v. Nixon, supra note 15.
[39] Id.
[40] Section 1, Article VII, Constitution.
[41] Senate v. Ermita, supra note 13.
[42] Id. In Senate v. Ermita, the Court
quoted Smith v. Federal Trade Commission (403 F. Supp. 1000 [1975]),
thus: “[T]he lack of specificity renders an assessment of the potential
harm resulting from disclosure impossible, thereby preventing the Court
from balancing such harm against plaintiffs’ need to determine whether
to override any claims of privilege.” The Court also quoted U.S.
v. Article of Drug (43 F.R.D. 181, 190 [1976]), thus: “Privilege cannot
be set up by an unsupported claim. The facts upon which the privilege
is based must be established.”chanroblesvirtualawlibrary
[43] United States v. Nixon, supra note
15. Professor Lawrence H. Tribe summarizes that “documents
defended only by broad claim of confidentiality must be turned over to
district court for in camera inspection to assess relevance.” Supra
note 16, footnote 35 at 775.
[44] Toten v. United States, 92 U.S. 105 (1876).
[45] Republic Act No. 2338. Section 282
of the present Tax Code is now silent on the confidentiality of
the identity of the informer.
[46] Section 7, Article III, Constitution;
Chavez v. Public Estates Authority, 433 Phil. 506, 531-532 (2002). The
Court stated: “Information, however, on on-going evaluation or review
of bids or proposals being undertaken by the bidding or review
committee is not immediately accessible under the right to information.
While the evaluation or review is still on-going, there are no
"official acts, transactions, or decisions" on the bids or proposals.
However, once the committee makes its official recommendation, there
arises a "definite proposition" on the part of the government. From
this moment, the public's right to information attaches, and any
citizen can access all the non-proprietary information leading to such
definite proposition.”chanroblesvirtualawlibrary
[47] McGrain v. Daugherty, supra note 35 at
174-175. The U.S. Supreme Court stated: “We are of opinion
that the power of inquiry - with process to enforce it - is an
essential and appropriate auxiliary to the legislative function.
It was so regarded and employed in American Legislatures before the
Constitution was framed and ratified. x x x
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; and where the
legislative body does not itself possess the requisite information –
which not infrequently is true – recourse must be had to others who
possess it. Experience has taught that mere requests for such
information often are unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of
compulsion are essential to obtain what is needed.”
[48]
Section 21, Article VI, Constitution which
provides: “The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights
of persons appearing in or affected by such inquiries shall be
respected.”chanroblesvirtualawlibrary
[49] McGrain v. Daugherty, supra note 35 at
177. The U.S. Supreme Court stated: “It is quite true that the
resolution directing the investigation does not in terms avow that it
is intended to be in aid of legislation; but it does show that the
subject to be investigated was the administration of the Department of
Justice - whether its functions were being properly discharged or were
being neglected or misdirected, and particularly whether the Attorney
General and his assistants were performing or neglecting their duties
in respect of the institution and prosecution of proceedings to punish
crimes and enforce appropriate remedies against the wrongdoers;
specific instances of alleged neglect being recited. Plainly the
subject was one on which legislation could be had and would be
materially aided by the information which the investigation was
calculated to elicit. This becomes manifest when it is reflected that
the functions of the Department of Justice, the powers and duties of
the Attorney General, and the duties of his assistants are all subject
to regulation by congressional legislation, and that the department is
maintained and its activities are carried on under such appropriations
as in the judgment of Congress are needed from year to
year.” chanroblesvirtualawlibrary
[50] Eastland v. United States Servicemen’s
Fund, 421 U.S. 491, 509 (1975). The U.S. Supreme Court declared:
“To be a valid legislative inquiry there need be no predictable end
result.”chanroblesvirtualawlibrary
[51] Watkins v. United States, 354 U.S. 178,
187 (1957). The U.S. Supreme Court declared: “[T]he power
of Congress to conduct investigations is inherent in the legislative
process. That power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly needed
statutes. It includes surveys of defects in our social, economic or
political system for the purpose of enabling the Congress to remedy
them. It comprehends probes into departments of the Federal Government
to expose corruption, inefficiency or waste.” (Emphasis
supplied) chanroblesvirtualawlibrary
[52] Supra note 16 at 790-791.
Professor Tribe comments thus: “xxx it is important to note an implicit
or ancillary power belonging to Congress that is at times every bit as
important as the power to which it is supposedly appurtenant. That, of
course, is the power of investigation, typically and most dramatically
exemplified by hearings, some of them in executive session but most of
them in the glare of klieg lights and with the whole nation watching.
Such investigations have served an important role in ventilating issues
of profound national concern.”; Louis Fisher & David Gray
Adler, American Constitutional Law, p. 227 (7th Edition). Fisher
and Adler write: “Oversight is not subordinate to legislation.”chanroblesvirtualawlibrary
[53] Section 21, Article VI, Constitution.
[54] Section 17, Article III, Constitution.
[55] Section 3(1), Article III, Constitution.
[56] Kilbourn v. Thompson, 103 U.S. 168 (1880).
[57] Watkins v. United States, 354 U.S. 178 (1957).
[58] Article 183, Revised Penal Code.
[59] Watkins v. United States, supra note 57.
[60] Arnault v. Nazareno, 87 Phil. 29 (1950).
[61] McGrain v. Daugherty, supra note
35. See also Negros Oriental II Electric Cooperative, Inc. v.
Sangguniang Panlungsod of Dumaguete, G.R. No. 72492, 5 November 1987,
155 SCRA 421, which ruled that local government legislative councils
have no inherent power to enforce by compulsion their power of inquiry
in aid of ordinance-making.
[62] Arnault v. Balagtas, 97 Phil. 358, 370
(1955). The Court stated: “When the framers of the Constitution
adopted the principle of separation of powers, making each branch
supreme within the realm of its respective authority, it must have
intended each department's authority to be full and complete,
independently of the other's authority or power. And how could the
authority and power become complete if for every act of refusal, every
act of defiance, every act of contumacy against it, the legislative
body must resort to the judicial department for the appropriate remedy,
because it is impotent by itself to punish or deal therewith, with the
affronts committed against its authority or dignity.”chanroblesvirtualawlibrary
[63] Lopez v. De los Reyes, 55 Phil. 170 (1930).
[64] Arnault v. Nazareno, supra note 60.
[65] McGrain v. Daugherty, supra note 35 at
172. The U.S. Supreme Court quoted In re Chapman (166 U.S.
661), thus: “We grant that Congress could not divest itself, or either
of its houses, of the essential and inherent power to punish for
contempt, in cases to which the power of either house properly
extended; x x x.”; Lopez v. De los Reyes, supra note 63.
The Court stated that “the Philippine Legislature could not divest
either of its Houses of the inherent power to punish for contempt.”chanroblesvirtualawlibrary
[66] Section 2, Article III, Constitution.
[67] Lopez v. De los Reyes, supra note 63 at
179-180. The Court declared that the Legislature’s “power to
punish for contempt rests solely upon the right of
self-preservation.”; Negros Oriental II Electric
Cooperative v. Sangguniang Panlungsod of Dumaguete, supra note 61 at
430. The Court stated: “The exercise by the legislature of the
contempt power is a matter of self-preservation as that branch of the
government vested with the legislative power, independently of the
judicial branch, asserts its authority and punishes contempts thereof.”chanroblesvirtualawlibrary
[68] Section 1, Article VI, Constitution.
[69] Lopez v. De los Reyes, supra note 63.
[70] Marcos v. Manglapus, supra note 14.
[71] Lopez v. De los Reyes, supra note 63 at
178. The Court declared: “x x x In the second place, the same act
could be made the basis for contempt proceedings and for a criminal
prosecution. It has been held that a conviction and sentence of a
person, not a member, by the House of Representatives of the United
States Congress, for an assault and battery upon a member, is not a bar
to a subsequent criminal prosecution by indictment for the offense.
(U.S. vs. Houston [1832], 26 Fed. Cas., 379.) In the third place, and
most important of all, the argument fails to take cognizance of the
purpose of punishment for contempt, and of the distinction between
punishment for contempt and punishment for crime. Let us reflect on
this last statement for a moment. The implied power to punish for
contempt is coercive in nature. The power to punish crimes is punitive
in nature. The first is a vindication by the House of its own
privileges. The second is a proceeding brought by the State before the
courts to punish offenders. The two are distinct, the one from the
other.”; Arnault v. Balagtas, supra note 62 at 370. The Court declared:
“The process by which a contumacious witness is dealt with by the
legislature in order to enable it to exercise its legislative power or
authority must be distinguished from the judicial process by which
offenders are brought to the courts of justice for the meting of the
punishment which the criminal law imposes upon them. The former falls
exclusively within the legislative authority, the latter within the
domain of the courts; because the former is a necessary concomitant of
the legislative power or process, while the latter has to do with the
enforcement and application of the criminal law.”chanroblesvirtualawlibrary
[72] United States v. Nixon, supra note 15.
[73] Section 1, Article XI, Constitution.
[74] Senate v. Ermita, supra note 13.
[75] Senate v. Ermita, supra note 13.
[76] Atty. Antonio R. Bautista.
[77] Section 2, Chapter 1, Title 1, Book IV,
Revised Administrative Code of 1987.
[78] Atty. Paul Lantejas.
[79] Section 22, Article VI, Constitution.
[80] Petitioner’s Supplemental Petition dated 1
February 2008 and Petitioner’s Memorandum dated 14 March 2008.
[81] Supra note 60.
[82] Section 10(2), Article VI, 1935
Constitution; Section 16(2), Article VI, 1987 Constitution. Both
the 1935 and 1987 Constitutions provide that “[A] majority of each
House shall constitute a quorum to do business.”chanroblesvirtualawlibrary
[83] See also Attorney General Ex. Rel. Werts
v. Rogers, et al, 56 N.J.L. 480, 652 (1844). The Supreme Court of
New Jersey declared: “[T]he vitality of the body depends upon the
existence of a quorum capable of doing business. That quorum
constitutes a senate. Its action is the expression of the will of the
senate, and no authority can be found which states any other
conclusion. All difficulty and confusion in constitutional construction
is avoided by applying the rule x x x that the continuity of the
body depends upon the fact that in the senate a majority constitutes a
quorum, and, as there is always more than a quorum of qualified
senators holding seats in that body, its organic existence is
necessarily continuous. x x x The senate of the United
States remains a continuous body because two-thirds of its members are
always, in contemplation of the constitution, in existence.”chanroblesvirtualawlibrary
[84] Section 16(2), Article VI, Constitution.
[85] 230 Phil. 528 (1986), reiterated in
National Electrification Administration, v. Gonzaga, G.R. No. 158761, 4
December 2007; NASECORE v. Energy Regulatory Commission, G.R. No.
163935, 2 February 2006, 481 SCRA 480; Dadole v. Commission on Audit,
441 Phil. 532 (2002).
[86] Section 24, Rules of Procedure Governing
Inquiries in Aid of Legislation.
[87] Section 18, on Contempt, of the Rules of
Procedure provides: “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 or refuses to be sworn or to
testify or to answer a proper question by the Committee or any of its
members, or testifying, testifies falsely or evasively. A
contempt of the Committee shall be deemed a contempt of the
Senate. Such witness may be ordered by the Committee to be
detained in such place as it may designate under the custody of the
Sergeant-at-Arms until he agrees to produce the required documents, or
to be sworn or to testify, or otherwise purge himself of that contempt.”chanroblesvirtualawlibrary
[88] Allado v. Diokno, G.R. No. 113630, 5 May
1994, 232 SCRA 192; Abdula v. Guiani, 382 Phil. 757 (2000).
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