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
OPINION
CARPIO
MORALES, J.:
Executive
Order No. 464[1] (E.O. 464) practically became a dead letter upon the
promulgation of Senate v. Ermita,[2] and was formally interred by
Memorandum Circular No. 151.[3] Its ashes have since fertilized
the legal landscape on presidential secrecy.
E.O. 464 allowed executive officials not to attend investigations
conducted by Congress in aid of legislation by the mere invocation of
that Order, without having to explain the specific reasons why the
information being requested of them may not be disclosed. When,
however, the Court in Senate v. Ermita[4] interpreted Section 1 of that
Order as applying only to the “question period” and Section 2(a) as
merely a non-binding expression of opinion, and invalidated Sections
2(b) and 3 for they allowed executive officials not to attend
legislative investigations without need of an explicit claim of
executive privilege, E.O. 464 became powerless as a shield against
investigations in aid of legislation.
Thenceforth,
to justify withholding information which, in their judgment, may be
validly kept confidential, executive officials have to obtain from the
President, or the Executive Secretary “by order of the President,” a
claim of executive privilege which states the grounds on which it is
based.
The
present petition for certiorari involves one such claim of executive
privilege, the validity of which claim the Court is now called upon to
determine.
Since
September 2007, respondents Senate Committees on Accountability of
Public Officers and Investigations (Blue Ribbon), on Trade and
Commerce, and on National Defense and Security (Senate Committees) have
been holding investigatory hearings, in aid of legislation, on the
National Broadband Network (NBN) – Zhong Xing Telecommunications
Equipment Ltd.[5] (ZTE) Contract.
On
September 26, 2007, petitioner, Romulo Neri, former Director General of
the National Economic and Development Authority, testified before the
Senate Committees, during which he, invoking executive privilege,
refused to answer questions on what he and the President discussed on
the NBN-ZTE Project after the President told him not to accept what he
perceived to have been a bribe offer from former COMELEC Chairman
Benjamin Abalos.
Asked
by senators on whether he had a written order from the President to
invoke executive privilege, petitioner answered that one was being
prepared. The hearing ended without him divulging any further
information on his conversations with the President following his
disclosure of the perceived bribe offer of Chairman Abalos.
Respondent
Senate Committees then issued a subpoena ad testificandum dated
November 13, 2007 for petitioner to appear in another hearing to be
held on November 20, 2007 (November 20 hearing). In a November
15, 2007 letter, however, Executive Secretary Eduardo Ermita (Sec.
Ermita), by order of the President, formally invoked executive
privilege with respect to the following questions (the three questions)
addressed to petitioner:
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?[6]
Sec.
Ermita then asked that petitioner’s testimony be dispensed with, given
that he had answered all questions propounded to him except the three
questions which, so he claimed, involved executive privilege.
Petitioner
having failed to appear on the November 20, 2007 hearing, the Senate
Blue Ribbon Committee issued a Show Cause Order of November 22, 2007
for him to explain why he should not be cited for contempt.
Petitioner personally replied via November 29, 2007 letter to the
Senate Committees.
On
December 7, 2007, petitioner filed the present petition for certiorari
to nullify the Show Cause Order, praying for injunctive reliefs to
restrain the Senate Committees from citing him in contempt. The
Senate Committees thereafter issued an Order dated January 30, 2008
citing petitioner in contempt and ordering his arrest for his failure
to appear, not only in the November 20 hearing, but also in three
earlier Senate hearings to which he was also invited.[7]
On
February 1, 2008, petitioner filed a Supplemental Petition for
Certiorari to nullify the Senate’s January 30, 2008 Order and prayed
for urgent injunctive reliefs to restrain his impending arrest.
This
Court issued a status quo ante order on February 5, 2008.
In his
petition, petitioner alleges that his discussions with the President
were “candid discussions meant to explore options in making policy
decisions,” citing Almonte v. Vasquez,[8] and “dwelt on the impact of
the bribery scandal involving high [g]overnment 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.”[9]
In sum,
petitioner avers that the timely invocation of executive privilege upon
the authority of the President was well within the parameters laid down
in Senate v. Ermita.[10]
In
determining whether the claim of privilege subject of the present
petition for certiorari is valid, the Court should not lose sight of
the fact that the same is only part of the broader issue of whether
respondent Senate Committees committed grave abuse of discretion in
citing petitioner in contempt and ordering his arrest.
As to
that broader issue, there should be no doubt at all about its proper
resolution. Even assuming arguendo that the claim of privilege is
valid, it bears noting that the coverage thereof is clearly limited to
the three questions. Thus limited, the only way this privilege
claim could have validly excused petitioner’s not showing up at the
November 20 hearing was if respondent Committees had nothing else to
ask him except the three questions. Petitioner assumed that this
was so, but without any valid basis whatsoever. It was merely his
inference from his own belief that he had already given an exhaustive
testimony during which he answered all the questions of
respondent Committees except the three.[11]
Petitioner
harps on the fact that the September 26, 2007 hearing (September 26
hearing) lasted some 11 hours which length of hearing Sec. Ermita
describes as “unprecedented,”[12] when actually petitioner was not the
only resource person who attended that hearing, having been joined by
Department of Transportation and Communications (DOTC) Secretary.
Leandro Mendoza, Chairman Abalos, DOTC Assistant Secretary Lorenzo
Formoso III, Vice Governor Rolex Suplico, Jose de Venecia III, Jarius
Bondoc, and R.P. Sales.[13] And even if petitioner were the
only resource person for the entire November 20 hearing, he would still
have had no basis to believe that the only questions the senators were
to ask him would all involve his conversations with the
President. Surely, it could not have escaped his notice that the
questions asked him during the September 26 hearing were wide ranging,
from his professional opinion on the projected economic benefits of the
NBN project to the role of the NEDA in the approval of projects of that
nature.
Thus,
insofar as petitioner can still provide respondent Committees with
pertinent information on matters not involving his conversations with
the President, he is depriving them of such information without a claim
of privilege to back up his action. Following the ruling in
Senate v. Ermita that “[w]hen Congress exercises its power of inquiry,
the only way for department heads to exempt themselves therefrom is by
a valid claim of privilege,” petitioner had no legal basis for failing
to appear in the November 20 hearing. He should have appeared in
the hearing and refused to answer the three questions as they were
asked. On that score alone, the petition should be dismissed.
Petitioner,
however, claims that the power of respondent Committees to punish
witnesses is limited to “direct contempt” for acts committed while
present before these committees, and not for “indirect contempt,”
citing Section 18 of their Rules of Procedure Governing Inquiries in
Aid of Legislation which seemingly limits the contempt power of the
Senate to witnesses who are “before it.”[14] It
bears noting that petitioner raised this claim only in its January 30,
2007 letter to the Senate but not in its main and supplemental
petitions before the Court. In fact, petitioner concedes to this
incidental power to punish for contempt.[15]
At all
events, the sui generis nature of the legislature’s contempt power
precludes such point of comparison with the judiciary’s contempt
power. The former is broad enough, nay, “full and complete” to
deal with any affront committed against or any defiance of legislative
authority or dignity, in the exercise of its power to obtain
information on which to base intended legislation.
In
another vein, petitioner claims that the Rules of Procedure Governing
Inquiries in Aid of Legislation has not been published. Suffice
it to state that the same argument was raised by the PCGG Commissioners
who were petitioners in Sabio v. Gordon,[16] and the Court considered
the same as inconsequential in light of the more significant issue
calling for resolution therein, namely, whether Section 4(b) of E.O.
No. 1 was repealed by the 1987 Constitution. The argument
deserves the same scant consideration in the present case.
While
it is clear that petitioner may validly be cited in contempt without
any grave abuse of discretion on respondents’ part – and this petition
consequently dismissed on that ground – the Court cannot evade the
question of whether the claim of privilege subject of this case is
valid. The issue in this case does not have to do simply with the
absence or presence of petitioner in respondents’ hearings, but with
the scope of the questions that may be validly asked of him.
The
President does not want petitioner to answer the three questions on the
ground of executive privilege. Respecting the
specific basis for the privilege, Sec. Ermita states that the same
questions “fall under conversations and correspondence between the
President and public officials which are considered executive
privilege.”
Sec.
Ermita goes on to state that “the context in which the 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.” Evidently, this statement was
occasioned by the ruling in Senate v. Ermita that a claim of privilege
may be valid or not depending on the ground invoked to justify it and
the context in which it is made.
What
was meant by “context” in Senate v. Ermita has more to do with the
degree of need shown by the person or agency asking for information,
than with additional reasons which the Executive may proffer for
keeping the same information confidential Sec. Ermita
apparently understood “context” in the latter sense and proceeded to
point out circumstances that reinforced the claim of privilege.
Sec.
Ermita’s statement that disclosure of the information being asked by
respondent Committees might impair our diplomatic and economic
relations with China, albeit proffered as the context of his claim of
the presidential communications privilege, is actually a claim of
privilege by itself, it being an invocation of the diplomatic secrets
privilege.
The two
claims must be assessed separately, they being grounded on different
public interest considerations. Underlying the presidential
communications privilege is the public interest in enhancing the
quality of presidential decision-making. As the Court held in the
same case of Senate v. Ermita, “A President and those who assist him
must be free to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be unwilling to
express except privately.” The diplomatic secrets
privilege, on the other hand, has a different objective – to preserve
our diplomatic relations with other countries.
Petitioner
even asserts in his petition that his conversations with the President
also involve military matters. This allegation, however, is too
remote from the reasons actually stated by Sec. Ermita in his letter to
be even considered as a basis for the claim of privilege.
Evidently, it is an afterthought, either of petitioner or his counsel,
which need not be seriously entertained.
Thus,
two kinds of privilege are being claimed as basis to withhold the same
information – the presidential communications privilege and the
diplomatic secrets privilege. To sustain these claims of
privilege, it must be evident from the implications of the questions,
in the setting in which they are asked, that a responsive answer to
these questions or an explanation of why they cannot be answered might
be dangerous because injurious disclosure could result.[17]
Whether the questions asked by respondent may lead to an injurious
disclosure cannot, however, be determined without first having an
accurate understanding of the questions themselves. For this
purpose, these questions must be read in the context of the exchanges
in the September 26 hearing, as recorded in the official transcript
thereof.
Before
petitioner invoked executive privilege in that hearing, he testified
that Chairman Abalos offered him a bribe in relation to the NBN project
while they were playing golf sometime in January or February of
2007.[18] Petitioner stated thus:
MR.
NERI But we had a nice golf game. The Chairman was
very charming, you know, and – but there was something that he said
that surprised me and he said that, “Sec, may 200 ka dito.” I
believe we were in a golf cart. He was driving, I was seated
beside him so medyo nabigla ako but since he was our host, I chose to
ignore it.
THE
SENATE PRESIDENT Ano’ng sinabi mo noong sabihin niyang 200?
MR.
NERI As I said, and I guess I was too shocked to say
anything, but I informed my NEDA staff that perhaps they should be
careful in assessing this project viability and maybe be careful with
the costings because I told them what happened, I mean, what was said
to me. (Emphasis supplied)
Upon
further questioning, petitioner shortly thereafter testified that he
reported to the President what he perceived as Chairman Abalos’ bribe
offer, to wit:
SEN.
LACSON. You were shocked, you said.
MR.
NERI. Yeah, I guess, I guess.
SEN.
LACSON. Bakit kayo na-shock?
MR.
NERI. Well, I [am] not used to being offered.
SEN.
LACSON. Bribed?
MR.
NERI. Yeah. Second is, medyo malaki.
SEN.
LACSON. In other words, at that point it was clear to you
that you were being offered bribe money in the amount of 200 million,
kasi malaki, sabi niyo?
MR.
NERI. I said no amount was put, but I guess given the
magnitude of the project, siguro naman hindi P200 or P200,00, (sic) so…
SEN.
LACSON. Dahil cabinet official kayo, eh.
MR.
NERI. I guess. But I – you know…
SEN.
LACSON. Did you report this attempted bribe offer to the
President?
MR.
NERI. I mentioned it to the President, Your Honor.
SEN.
LACSON. What did she tell you?
MR.
NERI. She told me, “Don’t accept it.”
SEN.
LACSON. And then, that’s it?
MR.
NERI. Yeah, because we had other things to discuss during
that time.
SEN.
LACSON. And then after the President told you, “Do not accept
it,” what did she do? How did you report it to the
President? In the same context that it was offered to you?
MR.
NERI. I remember it was over the phone, Your Honor.
SEN.
LACSON. Hindi nga. Papaano ninyo ni-report, “Inoperan
(offer) ako ng bribe na P200 million ni Chairman Abalos” or what?
How did you report it to her?
MR.
NERI. Well, as I said, “Chairman Abalos offered me 200
million for this.”
SEN.
LACSON. Okay. That clear?
x x x x
MR.
NERI. I think so, Your Honor.
SEN.
LACSON. And after she told, “Do not accept it,” what did she do?
MR.
NERI. I don’t know anymore, Your Honor, but I understand
PAGC investigated it or – I was not privy to any action of PAGC.
SEN.
LACSON. You are not privy to any recommendations submitted
by PAGC?
MR.
NERI. No, Your Honor.
SEN.
LACSON. How did she react, was she shocked also like you or
was it just casually responded to as, “Don’t accept it.”
MR.
NERI. It was over the phone, Your Honor, so I cannot see her
facial expression.
SEN.
LACSON. Did it have something to do with your change of heart, so
to speak – your attitude towards the NBN project as proposed by ZTE?
MR.
NERI. Can you clarify, Your Honor, I don’t understand the
change of heart?
SEN.
LACSON. Because, on March 26 and even on November 21, as
early as November 21, 2006, during the NEDA Board Cabinet Meeting, you
were in agreement with the President that it should be pay as you use
and not take or pay. There should be no government subsidy and it
should be BOT or BOO or any similar scheme and you were in agreement,
you were not arguing.
The
President was not arguing with you, you were not arguing with the
President, so you were in agreement and all of a sudden nauwi tayo doon
sa lahat ng – ang proposal all in violation of the President’s
guidelines and in violation of what you thought of the project.
MR.
NERI. Well, we defer to the implementing agency’s choice as
to how to implement the project.
SEN.
LACSON. Ah, so you defer to the DOTC.
MR.
NERI. Basically, Your Honor, because they are the ones who
can now contract out the project and in the process of contracting,
they can also decide how to finance it.
SEN.
LACSON. In other words, NEDA performed a ministerial job?
MR.
NERI. No, Your Honor. Basically NEDA’s job is to
determine the viability. And as I said, after determining the
viability, NEDA tells agency, “Go ahead and.”
SEN.
LACSON. But it did not occur to you that you were violating
the specific guidelines of the President on the scheme?
MR.
NERI. I am not privy to the changes anymore, Mr. Chair,
Your Honors.[19]
When he
was asked whether he and the President had further discussions on the
NBN project after he reported to her the alleged bribe offer,
petitioner began invoking executive privilege, thus:
SEN.
PANGILINAN. You mentioned 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 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 x
SEN.
PANGILINAN. Well, you can assert it. But whether we
will accept it or not is up to us, and then we can probably discuss
it.
However, I will tackle that at a later time.[20] (Emphasis and
underscoring supplied)
Although
petitioner answered many other questions subsequent to his invocation
of the privilege, he kept on invoking the privilege whenever, in his
judgment, the questions touched on his further conversations with the
President on the NBN project. Hereunder is the exchange of
Senator Legarda and petitioner, quoted extensively so as to provide the
context of petitioner’s invocation of executive privilege in this
particular instance:
SEN.
LEGARDA. And when you expressed that support to AHI, does
this mean the exclusion of all other proponents on the broadband
project?
MR.
NERI. Not at all, Your Honor. In effect, I’m telling
him [Jose De Venecia III], “I think it’s a great idea, please
proceed.” But as I said, Your Honor, we never process private
sector.
SEN.
LEGARDA. Suppliers contracts.
MR.
NERI. Yeah, we do not.
SEN.
LEGARDA. Okay, very clear.
Also in
the letter of Chairman Ramon Sales, who is present here today, of the
Commission of Information and Communications Technology [CICT] dated
December 8, 2006 addressed to NEDA, he categorically stated and I
quote: “That he cannot opine on the capability of the proponent” –
referring to AHI which you had encouraged or supported earlier, two
months earlier, to undertake the project referring to the broadband
network financially and technically as AHI has not identified strategic
partners. Do you confirm receipt of this letter?
MR.
NERI. I believe so, Your Honor. I remember that letter.
x x x x
SEN.
LEGARDA. In what way did this opinion of the CICT affect your
endorsement or encouragement of AHI?
MR.
NERI. I’m not sure. I think I encouraged him first
before the CICT letter.
SEN.
LEGARDA. Yes, that is a chronology.
MR.
NERI. Yeah. So by that time, we left it already to
the line agencies to decide. So it is not for us anymore to say
which supplier is better than one over the other.
SEN.
LEGARDA. Did you ever endorse any proponent of the
broadband network, Secretary Neri?
MR.
NERI. No, Your Honor. When I say “endorse”, not
formally choosing one over another. We do not do that.
SEN.
LEGARDA. Do you believe in the Broadband Network Project of the
Philippines, of the Philippine government regardless of supplier?
MR.
NERI. The broadband is very important, Your Honor.
Because as I said earlier, if you look at the statistics in our
broadband cost, Philippines is $20 per megabits per second as against.
SEN.
LEGARDA. Yes, you have stated that earlier.
x x x x
SEN.
LEGARDA. But no proponent for the local broadband networks
had submitted any possible bid or any proposal to the NEDA?
MR.
NERI. None that we know of, Your Honor.
SEN.
LEGARDA. None that you know of. Now, earlier you were
in favor of a BOT but eventually changed your mind when the NEDA
endorsed the ZTE project. May we know, since NEDA is a collegial
body, whether there was any voting into this project and whether you
were outvoted?
MR.
NERI. Because we always defer to the line agencies as to
the manner of implementation of the project.
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.
SEN.
LEGARDA. I was not even referring to a conversation between you
and the President. Are you saying then that the prioritization of
ZTE was involved during your conversation with the President?
MR.
NERI. As I said, I cannot comment on that, Your Honor.
SEN.
LEGARDA. Yes, but I was not referring to any conversation
between you and the President but you brought it up now upon my
questioning on whether there was any government official who had
instructed you to favor the ZTE. We put two and two together and
it is therefore assumed that the answer to the question is conveyed in
your conversation with the President to which you are invoking that
executive privilege.
MR.
NERI. There is no higher public official than me than the
President, Mr. Chair, Your Honor.
SEN.
LEGARDA. There’s no higher official than you? It has
to be the vice president.
MR.
NERI. In other words, when we talk about higher officials, I
guess we are referring to the President, Your Honor.
SEN.
LEGARDA. So, you’re invoking executive privilege and therefore,
that answer to that question is left hanging, whether there was any
official who gave instructions to prioritize the ZTE over other
proponents of the NBN project. And you’re saying now that there
was no voting among the NEDA and in fact.
MR.
NERI. Mr. Chair, Your Honor, we don’t vote. We don’t
vote on the manner of implementation. We vote on whether the
project is deemed viable or not.
SEN.
LEGARDA. Yes, but were you overruled over your preference
for a BOT project?
MR.
NERI. As I said Your Honor, this is a consensus of the NEDA
Board, NEDA ICC. Our consensus was that the project is
viable. We leave it to the line agency to implement. My own
personal preference here will not matter anymore because it’s a line
agency.
SEN.
LEGARDA. But did you actually discuss this with the President and
told her not to approve this project or not to proceed with this
project? Did you discourage the President from pursuing this
project?
MR.
NERI. As I said, Mr. Chair, this covers conversations with the
President.[21] (Emphasis and underscoring supplied)
Again,
petitioner invoked executive privilege when Senator Pia Cayetano asked
him what else the President told him besides instructing him not to
accept the alleged bribe offer.
MR.
NERI. She said “Don’t accept it,” Your Honor.
SEN.
CAYETANO, (P). And was there something attached to that
like. “But pursued with a project (sic) or go ahead and approve,”
something like that?
MR.
NERI. As I said, I claim the right of executive privilege
on 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. 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 pero bakit naman
ganyan.”
MR.
NERI. As I said, Your Honor, beyond that I would not want
to go any further, Your Honor.[22] (Emphasis and underscoring
supplied)
Petitioner
thereafter answered other questions on which he did not invoke
executive privilege. However, when asked about whether he advised
the President not to proceed with the NBN project in light of the
alleged bribe offer, petitioner again invoked the privilege.
SEN.
LACSON. x x x
Would
not an offer of 200 which you later on interpreted as a 200 milion-peso
bribe offer from Chairman Abalos in relation to the NBN project not
posit the view that it was an outright overpriced contract?
MR.
NERI. We cannot determine our pricing, Your Honor.
The NEDA staff tried very, very hard.
SEN.
LACSON. Even with an offer of 200 million, you would not
think it was overpriced?
MR.
NERI. That’s right, Your Honor. It’s possible that
they take it out of their pockets. And I had a NEDA staff checked
the internet for possible overpricing. The national interest
issue in this case, Your Honor, is determined by the economic rate of
return. And the economic rate of return was determined at
29.6%. It is very high. Meaning that the project has its
benefits despite any potential overpricing, Your Honor.
SEN.
LACSON. Did you not at least warn the President that it
could be a potential stinking deal considering that it was attended by
bribe offer?
MR.
NERI. For that, Your Honor, I’d like to.
VOICE.
Executive privilege.
SEN.
LACSON. Executive privilege.
MR.
NERI. That’s right, Your Honor.[23] (Emphasis and
underscoring supplied)
A
similar concern, it bears noting, was expressed by Senator Roxas, as
Chairman of respondent Committee on Trade and Commerce, when he asked
the following question to petitioner:
THE
CHAIRMAN (SEN. ROXAS). Oh, sige, okay. Ngayon, I
don’t want to repeat anymore the debate as to the executive privilege
that is still pending so I will set that aside. But my question
is, since that time, since February of 2007, through the NEDA meetings,
at least there were two in 2007, March 26 and March 29, when this was
approved, did this subject of the bribe ever come up again? Hindi
ka ba nagtaka na ni-report mo it okay Pangulo, sinabihan ka na huwag
mong tanggapin, tama naman iyong utos na iyon, huwag mong tanggapin, at
matapos noon, wala nang na-take up and noong lumitaw muli itong
NBN-ZTE, hindi ka ba nagkamot ng ulo, “What happened, bakit buhay pa
rin ito, bakit hindi pa rin – naimbestigahan ito o ano bang nangyari
rito,” since you reported this first hand experience of yours to the
President.
From
the foregoing excerpts of the September 26 hearing, it may be gleaned
that the three questions fairly represent the questions actually posed
by the senators respecting which petitioner invoked executive
privilege.
Moreover,
the same excerpts adequately provide the necessary backdrop for
understanding the thrust of the three questions. While only the
third question – Whether the President said to go ahead and approve the
project after being told about the alleged bribe? – mentions the
perceived bribe offer, it is clear from the context that the first
question of whether the President followed up the NBN project was also
asked in relation to the same alleged bribe. What Senator
Pangilinan wanted to know was whether petitioner and the President had
further discussions on the NBN project after petitioner informed her
about the alleged bribe.
The
second question – Were you dictated to prioritize the ZTE? – which was
asked by Senator Legarda, was evidently aimed towards uncovering the
reason why, in spite of the Executive’s initial plan to implement the
NBN project on a Build Operate and Transfer (BOT) basis, it ended up
being financed via a foreign loan, with the ZTE as the chosen
supplier. This was also the concern of Senator Lacson when he
asked petitioner whether the bribe offer had anything to do with the
change in the scheme of implementation from BOT to a foreign loan taken
by the Philippine government.
Indeed,
it may be gathered that all three questions were directed toward the
same end, namely, to determine the reasons why the NBN project, despite
the apparent overpricing, ended up being approved by the Executive and
financed via a government loan, contrary to the original intention to
follow a BOT scheme. The three questions should be understood in
this light.
Having
a clearer understanding of what information was being sought by
respondent Committees, the assessment of the invocation of executive
privilege is in order.
As
earlier discussed, there are actually two kinds of privilege being
claimed herein – the presidential communications and diplomatic secrets
privilege.
The
general criteria for evaluating claims of privilege have been laid down
in Senate v. Ermita, to wit: “In determining the validity of a claim of
privilege, the question that must be asked is not only whether the
requested information falls within one of the traditional privileges,
but also whether that privilege should be honored in a given procedural
setting.”
To
assert that certain information falls under a recognized privilege is
to allege that disclosure thereof may be harmful to the public
interest. It would be impossible for the courts, however, to
determine whether a potential harm indeed exists were the Executive
allowed to claim the privilege without further explanation.
Hence, the ruling in the same case of Senate v. Ermita that claims of
privilege should state specific reasons for preserving confidentiality.
When
the privilege being invoked against a subpoena ad testificandum is that
for presidential communications, such specificity requirement is not
difficult to meet, for it need only be evident from the questions being
asked that the information being demanded pertains to conversations
between the President and her adviser. In petitioner’s case, the
three questions posed by respondent Committees clearly require
disclosure of his conversations with the President in his
capacity as adviser. This is obvious from
Senator Pangilinan’s question as to whether the
President followed up on the issue of the NBN project – meaning,
whether there were further discussions on the subject between the
President and petitioner. Likewise, both Senator Legarda’s query
on whether petitioner discouraged the President from pursuing the
project, and Senator Pia Cayetano’s question on whether the President
directed petitioner to approve the project even after being told of the
alleged bribe, manifestly pertain to his conversations with the
President.
While
Senator Legarda’s question – “Has there been any government official
higher than you who dictated that the ZTE project be prioritized or
given priority?” – does not necessarily require disclosure of
petitioner’s conversations with the President, petitioner has
interpreted the same to mean “Has the President dictated you to
prioritize the ZTE project?” The invocation of privilege is thus
limited to this more specific question. Limited in this manner,
requiring the Executive to explain more precisely how this question
would involve petitioner’s conversation with the President might compel
him to disclose the very thing which the privilege was meant to
protect. The reasons already provided must thus be considered
sufficiently precise.
Compared
to claims of the presidential communications privilege, it is more
difficult to meet the specificity requirement in claims of the
diplomatic secrets privilege, for the Executive must be able to
establish a connection between the disclosure of the information being
sought with the possible impairment of our diplomatic relations with
other nations.
The
claim of privilege for diplomatic secrets subject of this case fails to
establish this connection. It has not been shown how petitioner’s
response to any of the three questions may be potentially injurious to
our diplomatic relations with China. Even assuming that the three
questions were answered in the negative – meaning that the President
did not follow up on the NBN project, did not dictate upon petitioner
to prioritize the ZTE, and did not instruct him to approve the NBN
project – it is not clear how our diplomatic relations with China can
be impaired by the disclosure thereof, especially given that the supply
contract with ZTE was, in fact, eventually approved by the
President. If, on the other hand, the answers to the three
questions are in the affirmative, it would be even more difficult to
see how our relations with China can be impaired by their disclosure.
The
second criterion laid down in Senate v. Ermita, namely, whether the
privilege should be honored in the given procedural setting, need only
be applied, in petitioner’s case, to the claim of privilege based on
presidential communications, the claim of privilege based on diplomatic
secrets having been already ruled out in the immediately foregoing
discussion.
A claim
of privilege, even a legitimate one, may be overcome when the entity
asking for information is able to show that the public interest in the
disclosure thereof is greater than that in upholding the
privilege. The weighing of interests that courts must undertake
in such cases was discussed by the Court in Senate v. Ermita, to
wit:
That
a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all
instances. For in determining the validity of a claim of
privilege, the question that must be asked is not only whether the
requested information falls within one of the traditional privileges,
but also whether that privilege should be honored in a given procedural
setting.
The
leading case on executive privilege in the United States is U.S. v.
Nixon, decided in 1974. In issue in that case was the validity of
President Nixon’s claim of executive privilege against a subpoena
issued by a district court requiring the production of certain tapes
and documents relating to the Watergate investigations. The claim
of privilege was based on the President’s general interest in the
confidentiality of his conversations and correspondences. The
U.S. Court held that while there is no explicit reference to a
privilege of confidentiality in the U.S. Constitution, it is
constitutionally based to the extent that it relates to the effective
discharge of a President’s powers. The Court, nonetheless,
rejected the President’s claim of privilege, ruling that the privilege
must be balanced against the public interest in the fair administration
of criminal justice. Notably, the Court was careful to clarify
that it was not there addressing the issue of claims of privilege in a
civil litigation or against congressional demands for information.
Cases
in the U.S. which involve claims of executive privilege against
Congress are rare. Despite frequent assertion of the privilege to
deny information to Congress, beginning with President Washington’s
refusal to turn over treaty negotiations records to the House of
Representatives, the U.S. Supreme Court has never adjudicated the
issue. However, the U.S. Court of Appeals for the District of
Columbia Circuit, in a case [Senate Select Committee on Presidential
Campaign Activities v. Nixon, 498 F.2d 725; May 23, 1974.] decided in
the same year as Nixon, recognized the President’s privilege over his
conversations against a congressional subpoena. Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the
Court of Appeals weighed the public interest protected by the claim of
privilege against the interest that would be served by disclosure to
the Committee. Ruling that the balance favored the President, the
Court declined to enforce the subpoena.[24] (Emphasis and
underscoring supplied)
In
determining whether, in a given case, the public interest in favor of
disclosure outweighs the public interest in confidentiality, courts
often examine the showing of need proffered by the party seeking
information. A discussion of what this showing of need entails is
thus in order.
The
case of Nixon v. Sirica,[25] decided by the United States Court of
Appeals for the District of Columbia, involved a claim of the
presidential communications privilege by President Nixon against a
subpoena duces tecum issued by the grand jury – an agency roughly
analogous to the Ombudsman in this jurisdiction. The grand jury
subpoena called on the President to produce tape recordings of certain
identified meetings and telephone conversations that had taken place
between him and his advisers. The Court held thus:
The
President’s privilege cannot, therefore, be deemed absolute. We
think the Burr case makes clear that application of Executive privilege
depends on a weighing of the public interest protected by the privilege
against the public interests that would be served by disclosure in a
particular case. We direct our attention, however, solely to the
circumstances here. With the possible exception of material on
one tape, the President does not assert that the subpoenaed items
involve military or state secrets; nor is the asserted privilege
directed to the particular kinds of information that the tapes
contain. Instead, the President asserts that the tapes should be
deemed privileged because of the great public interest in maintaining
the confidentiality of conversations that take place in the
President’s performance of his official duties. This
privilege, intended to protect the effectiveness of the executive
decision-making process, is analogous to that between a congressman and
his aides under the Speech and Debate Clause; to that among judges, and
between judges and their law clerks; and similar to that contained in
the fifth exemption to the Freedom of Information Act.
x x x x
We
recognize this great public interest, and agree with the District Court
that such conversations are presumptively privileged. But we
think that this presumption of privilege premised on the public
interest in confidentiality must fail in the face of the uniquely
powerful showing made by the Special Prosecutor in this case. The
function of the grand jury, mandated by the Fifth Amendment for the
institution of federal criminal prosecutions for capital or other
serious crimes, is not only to indict persons when there is probable
cause to believe they have committed crime, but also to protect persons
from prosecution when probable cause does not exist. As we have
noted, the Special Prosecutor has made a strong showing that the
subpoenaed tapes contain evidence peculiarly necessary to the carrying
out of this vital function – evidence for which no effective substitute
is available. The grand jury here is not engaged in a general
fishing expedition, nor does it seek in any way to investigate the
wisdom of the President’s discharge of his discretionary duties.
On the contrary, the grand jury seeks evidence that may well be
conclusive to its decisions in on-going investigations that are
entirely within the proper scope of its authority. x x x (Emphasis and
underscoring supplied)
While
Sirica involved a conflict between the Executive and the grand jury,
not between the Executive and Congress, the same court later applied
the same balancing approach, even explicitly citing the Sirica
decision, in a controversy involving the President and a Senate
committee over executive privilege.
In
Senate Select Committee on Presidential Campaign Activities v.
Nixon,[26] the case that was referred to in the Senate v. Ermita ruling
quoted earlier, the party seeking information was a Select Committee of
the U.S. Senate which was formed “to determine. the necessity or
desirability of new congressional legislation to safeguard the
electoral process by which the President of the United States is
chosen.” Similar to what transpired in Sirica, the
Select Committee issued a subpoena duces tecum addressed to President
Nixon for the production of tape recordings of his conversations with
one of his aides, in which they discussed alleged criminal acts
occurring in connection with the presidential election of 1972.
The Court of Appeals for the District of Columbia ruled thus:
The
staged decisional structure established in Nixon v. Sirica was designed
to ensure that the President and those upon whom he directly relies in
the performance of his duties could continue to work under a general
assurance that their deliberations would remain confidential. So long
as the presumption that the public interest favors confidentiality can
be defeated only by a strong showing of need by another institution of
government -- a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the
President's deliberations -- we believed in Nixon v. Sirica, and
continue to believe, that the effective functioning of the presidential
office will not be impaired. Contrary, therefore, to the apparent
understanding of the District Court, we think that Nixon v. Sirica
requires a showing of the order made by the grand jury before a
generalized claim of confidentiality can be said to fail, and before
the President's obligation to respond to the subpoena is carried
forward into an obligation to submit subpoenaed materials to the Court,
together with particularized claims that the Court will weigh against
whatever public interests disclosure might serve. The presumption
against any judicially compelled intrusion into presidential
confidentiality, and the showing requisite to its defeat, hold with at
least equal force here.
Particularly
in light of events that have occurred since this litigation was begun
and, indeed, since the District Court issued its decision, we find that
the Select Committee has failed to make the requisite showing. x x
x (Emphasis and underscoring supplied)
Thus, a
government agency that seeks to overcome a claim of the presidential
communications privilege must be able to demonstrate that access to
records of presidential conversations, or to testimony pertaining
thereto, is vital to the responsible performance of that agency’s
official functions.
Parenthetically,
the presumption in favor of confidentiality only takes effect after the
Executive has first established that the information being sought is
covered by a recognized privilege. The burden is initially with
the Executive to provide precise and certain reasons for upholding his
claim of privilege, in keeping with the more general presumption in
favor of transparency. Once it is able to show that the
information being sought is covered by a recognized privilege, the
burden shifts to the party seeking information, who may still overcome
the privilege by a strong showing of need.
Turning
now to the present controversy, respondent Committees must be held to
have made a strong showing of need, one that certainly suffices to
overcome the claim of privilege in this case.
Respondents
assert that there is an urgent need for remedial legislation to
regulate the obtention and negotiation of official development assisted
(ODA) projects because these have become a rich source of “commissions”
secretly pocketed by high executive officials. They claim that
the information which they are trying to elicit from petitioner
relative to the NBN project is essential and crucial to the enactment
of proposed amendments to the Government Procurement Reform Act (R.A.
No. 9184) and the Official Development Assistance Act (R.A. No. 8182),
so that Congress will know how to plug the loopholes in these statutes
and thus prevent a drain on the public treasury.
That
the crafting of such remedial legislation is at least one of the
objectives of respondent Committees, if not its primary one, is borne
out by the existence of the following pending bills in the Senate, to
wit: (1) Senate Bill (S.B.) No. 1793, 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, and
(2) S.B. No. 1794, An Act Imposing Safeguards in Contracting Loans 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.
Also
worthy of note is the following statement of Senator Roxas during the
September 26 hearing that the reform of the procurement process was the
chief objective of the investigations, thus:
THE
CHAIRMAN (SEN. ROXAS). No, no, I’m not talking about – I’m
not taking sides here whether it’s AHI or ZTE or what. I’m
looking at the approval process by government because that approval
process which is the most important element of these entire hearings
because it is that same approval process that billions and billions of
government money are going through, ‘no. So, we want to tighten
that up. We want to make sure that what we discussed here in this
very hall which is to raise VAT to 12 percent and to cover with VAT
electricity and petrol is not just put to waste by approval process
that is very loose and that basically has no checks and balances.
(Underscoring supplied)
If the
three questions were understood apart from their context, a case can
perhaps be made that petitioner’s responses, whatever they may be,
would not be crucial to the intelligent crafting of the legislation
intended in this case. As earlier discussed, however, it may be
perceived from the context that they are all attempts to elicit
information as to why the NBN project, despite the apparent
overpricing, ended up being approved by the Executive and financed via
a government loan, contrary to the original intention to follow a BOT
scheme. This is the fundamental query encompassing the
three questions.
This
query is not answerable by a simple yes or no. Given its
implications, it would be unreasonable to expect respondent Committees
to merely hypothesize on the alternative responses and come up with
legislation on that basis. This is a situation where at least a
credible, if not precise, reconstruction of what really happened is
necessary for the intelligent crafting of the intended
legislation. Why is it that, after petitioner reported the
alleged bribe to the President, things proceeded as if nothing was
reported? Respondent Senate Committees are certainly acting
within their rights in trying to find out the reasons for such a turn
of events. If it was in pursuit of the public interest,
respondents surely have a right to know what this interest was so that
it may be taken into account in determining whether the laws on
government procurement, BOT, ODA and other similar matters should be
amended and, if so, in what respects.
It is
certainly reasonable for respondents to believe that the information
which they seek may be provided by petitioner. This is all the
more so now that petitioner, contrary to his earlier testimony before
the respondent Committees that he had no further discussions with the
President on the issue of the bribe offer, has admitted in his petition
that he had other discussions with the President regarding “the bribery
scandal involving high Government officials.” These are the very
same discussions which he now refuses to divulge to respondents on the
ground of executive privilege.
Apropos
is this Court’s pronouncement in Sabio v. Gordon:[27]
Under
the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC
and POTC, ranging in the millions of pesos, and the conspiratorial
participation of the PCGG and its officials are compelling reasons for
the Senate to exact vital information from the directors and officers
of Philcomsat Holdings Corporation, as well as from Chairman Sabio and
his Commissioners to aid it in crafting the necessary legislation to
prevent corruption and formulate remedial measures and policy
determination regarding PCGG’s efficacy x x x (Emphasis and
underscoring supplied)
If, in
a case where the intended remedial legislation has not yet been
specifically identified, the Court was able to determine that a
testimony is vital to a legislative inquiry on alleged anomalies – so
vital, in fact, as to warrant compulsory process – a fortiori should
the Court consider herein petitioner’s testimony as vital to the
legislative inquiry subject of this case where there are already
pending bills touching on the matter under investigation.
Thus,
the claim of privilege in this case should not be honored with respect
to the fundamental query mentioned above. Nonetheless,
petitioner’s conversations with the President on all other matters on
the NBN project should still be generally privileged. On matters
not having to do with the apparent overpricing of the NBN project and
the alleged bribe offer, respondents no longer have a showing of need
sufficient to overcome the privilege. The intrusion into these
conversations pursuant to this opinion would thus be a limited
one. In that light, it is hard to see how the impairment of the
public interest in candid opinions in presidential decision-making can,
in this case, outweigh the immense good that can be achieved by
well-crafted legislation reforming the procurement process.
The
conclusion that respondent Committees have a sufficient need for
petitioner’s testimony is further supported by the fact that the
information is apparently unavailable anywhere else. Unlike in
the Senate Select case, the House of Representatives in the present
case is not in possession of the same information nor conducting any
investigation parallel to that of the respondent Committees.
These were the considerations for the court’s ruling against the senate
committee in the Senate Select case.
Still,
there is another reason for considering respondents’ showing of need as
adequate to overcome the claim of privilege in this case.
Notably,
both parties unqualifiedly conceded to the truism laid down in the
Senate Select case 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.”
While
the U.S. Court in that case proceeded to qualify its statement by
saying that 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,
I
submit that it would be unwise to infer therefrom that, in the
assessment of claims of privilege, indications that the privilege is
being used to shield officials from investigation is immaterial.
Otherwise, what would then be the point of stating that “[a] claim of
privilege may not be used to shield executive officials and employees
from investigations by the proper government institutions into possible
criminal wrongdoing”?
At the
very least, such indications should have the effect of severely
weakening the presumption that the confidentiality of presidential
communications in a given case is supported by public interest.
Accordingly, the burden on the agency to overcome the privilege being
asserted becomes less, which means that judicial standards for what
counts as a “sufficient showing of need” become less stringent.
Finally,
the following statement of Dorsen and Shattuck is instructive:
x x x
there should be no executive privilege when the Congress has already
acquired substantial evidence that the information requested concerns
criminal wrong-doing by executive officials or presidential
aides. There is obviously an overriding policy justification for
this position, since the opposite view would permit criminal
conspiracies at the seat of government to be shrouded by a veil of an
advice privilege. While the risk of abusive congressional inquiry
exists, as the McCarthy experience demonstrates, the requirement of
“substantial evidence” of criminal wrong-doing should guard against
improper use of the investigative power.[28]
When,
as in this case, Congress has gathered evidence that a government
transaction is attended by corruption, and the information being
withheld on the basis of executive privilege has the potential of
revealing whether the Executive merely tolerated the same, or worse, is
responsible therefor, it should be sufficient for Congress to show –
for overcoming the privilege – that its inquiry is in aid of
legislation.
In
light of all the foregoing, I vote to DISMISS the petition.
CONCHITA
CARPIO MORALES
Associate
Justice
Footnotes:
[1]
Ensuring Observance of the Principle of Separation of Powers, Adherence
to the Rule on Executive Privilege and Respect for the Rights of Public
Officials Appearing in Legislative Inquiries in Aid of Legislation
Under the Constitution, and for Other Purposes.
[2]
G.R. No. 169777, April 20, 2006, 488 SCRA 1.
[3]
Issued on March 6, 2008.
[4]
Supra note 2.
[5]
ZTE is a corporation owned by the Government of the People’s Republic
of China.
[6]
Sec. Ermita’s November 15, 2007 letter.
[7]
Hearings on September 18 and 20, and October 25, 2007.
[8]
244 SCRA 286 (1995).
[9]
Petition for Certiorari, p. 8.
[10]
Supra note 2.
[11]
In his November 29, 2007 letter to Senator Alan Peter Cayetano,
petitioner stated: “In good faith, after that exhaustive testimony, I
thought that what remained were only the three questions, where the
Executive [S]ecretary claimed executive privilege.”
[12]
Letter of November 15, 2007.
[13]
Senate TSN of September 27, 2007 hearing.
[14]
Section 18. 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
witnesses 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.
[15]
TSN of the March 4, 2008 Oral Arguments at the Supreme Court, p. 13.
[16]
G.R. No. 174340, October 17, 2006, 504 SCRA 704.
[17]
Senate v. Ermita, supra note 2 at 67.
[18]
TSN, September 26 hearing, p. 42.
[19]
TSN of September 26, 2007 Senate Hearing, pp. 43-46.
[20]
Id. at 91-92.
[21]
Id. at 110-117.
[22]
Id. at 276-277.
[23]
Id. at 414-415.
[24]
Supra note 2 at 47-49.
[25]
487 F.2d 725; October 12, 1973.
[26]
498 F.2d 725; May 23, 1974.
[27]
Supra note 16.
[28]
Norman Dorsen & John H.F. Shattuck, Executive Privilege, the
Congress and the Courts 35 OHIO ST. L.J. 1, 32 (1974).
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