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.
|
CONCURRING
OPINION
CHICO-NAZARIO,
J.:
I express my concurrence in the majority opinion as written by my
colleague Justice Teresita J. Leonardo-De Castro. In addition to the
ratiocination already presented therein, I still wish to stress
particular points which convinced me that the Petition for Certiorari
of petitioner Romulo L. Neri should be granted.
Once again, this Court finds itself in the same position it held just
two years ago in the landmark case of Senate of the Philippines v.
Ermita,[1] standing judge over a dispute between the Executive and
Legislative branches of the Government.
Even the antecedent facts giving rise to the present Petition seem
familiar. They involve the conflict between, on one hand, the
right of the Senate to compel the appearance and testimony of executive
officials in hearings in aid of legislation; and, on the other, the
right of the President and the executive officials she so authorizes to
invoke executive privilege to protect and keep certain information
confidential.
In Ermita, cabinet members and military officials declined to appear
before the Senate for hearings held in aid of legislation, invoking
Executive Order No. 464 issued by President on “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,” which basically made it
mandatory for them to obtain the President’s permission prior to
attending said hearings. Without the President’s permission, they will
not go.
In the Petition at bar, petitioner Neri, by virtue of his position as
the former Director General of the National Economic Development
Authority, testified on 26 September 2007 in an 11-hour hearing
conducted by the respondent Senate Committees on the alleged anomalies
in the award of the National Broadband Network (NBN) Project to Zhing
Xing Telecommunications Equipment (ZTE). During said hearing, he
already invoked executive privilege when he refused to answer three
specific questions propounded to him:cralaw:red
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?
He failed to return and face further inquiry before the respondent
Senate Committees in the hearing set for 20 November 2007.
Executive Secretary Eduardo A. Ermita and Atty. Antonio R. Bautista, as
petitioner Neri’s counsel, sent separate letters to the respondent
Senate Committees consistently asserting that petitioner Neri’s
non-appearance at the hearing was upon the President’s order; and his
conversations with the President on the NBN Project, the apparent
subject of further inquiry by the respondent Senate Committees, were
covered by executive privilege since they involved national security
and diplomatic matters. Respondent Senate Committees found
unsatisfactory petitioner Neri’s explanation for his non-attendance at
the hearing, thus, in an Order dated 30 January 2008, cited him for
contempt and directed his arrest and detention in the Office of the
Senate Sergeant-At-Arms “until such time that he will appear and give
his testimony.”chanroblesvirtualawlibrary
Faced with either disobeying the President’s order or being arrested by
the Senate, petitioner Neri sought relief from this Court by filing a
Petition for Certiorari and a Supplemental Petition for Certiorari,
under Rule 65 of the Rules of Court, alleging grave abuse of discretion
on the part of the respondent Senate Committees for first issuing a
show cause Order, dated 22 November 2007, against petitioner Neri
for his failure to attend the 20 November 2007 hearing; and
subsequently issuing the contempt and arrest Order, dated 30 January
2008 against petitioner Neri after finding his explanation
unsatisfactory.
This Court shall not shirk from its duty, impressed upon it by no less
than the Constitution, to exercise its judicial power “to determine
whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.”[2] It was clearly intended by
the framers of the Constitution that the judiciary be the final arbiter
on the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction
or so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction.[3] And when the Judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority
over the other departments, but only asserts the solemn and sacred
obligation entrusted to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which the instrument
secures and guarantees to them.[4]
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction.
Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive duty or to
a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[5]
Considering the factual background of the Petition at bar, respondent
Senate Committees did commit grave abuse of discretion in issuing the
assailed Orders for having done so without basis, with undue haste, and
in violation of due process.
Our republican system of Government is composed of three independent
and co-equal branches, the Executive, Legislative, and Judiciary.
One of the fundamental tenets underlying our constitutional system is
the principle of separation of powers, pursuant to which the powers of
government are mainly divided into three classes, each of which is
assigned to a given branch of the service. The main
characteristic of said principle is not, however, this allocation of
powers among said branches of the service, but the fact that: 1) each
department is independent of the others and supreme within its own
sphere; and 2) the powers vested in one department cannot be given or
delegated, either by the same or by Act of Congress, to any other
department.[6]
The fundamental power of the Senate, as one of the Houses of the
Legislative Branch, is to make laws, and within this sphere, it is
supreme. Hence, this Court had long before upheld the power of
inquiry of the Legislature in aid of legislation. In Arnault v.
Nazareno,[7] this Court pronounced: chanrobles virtual law library
Although
there is no provision in the Constitution expressly investing
either House of Congress with power to make investigations and exact
testimony to the end that it may exercise its legislative functions
advisedly and effectively, such power is so far incidental to the
legislative function as to be implied. In other words, the power
of inquiry with process to enforce it-is an essential and appropriate
auxiliary to the legislative function. 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 is not infrequently true-recourse must be
had to others who do possess it. Experience has shown that mere
requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed.
(McGrain vs. Daugherty, 273 U. S., 135; 71 L. ed., 580; 50 A. L. R.,
1.) The fact that the Constitution expressly gives to Congress the
power to punish its Members for disorderly behaviour, does not by
necessary implication exclude the power to punish for contempt any
other person. (Anderson vs. Dunn, 6 Wheaton, 204; 5 L. ed., 242.)[8]
In the same case, the Court also qualified the extent of the
Legislature’s power of inquiry: chanrobles virtual law library
But
no person can be punished for contumacy as a witness before either
House, unless his testimony is required in a matter into which that
House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed.,
377.)
Since, as we have noted, the Congress of the Philippines has a wider
range of legislative field than either the Congress of the United
States or a State Legislature, we think it is correct to say that the
field of inquiry into which it may enter is also wider. It would be
difficult to define any limits by which the subject matter of its
inquiry can be bounded. It is not necessary for us to do so in this
case. Suffice it to say that it must be coextensive with the range of
the legislative power.[9]
In the Petition at bar, the Senate relies on its power of inquiry as
embodied in Article VI, Section 21 of the Constitution, which reads: chanrobles virtual law library
Section
21. The Senate or 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.
In citing petitioner Neri in contempt and ordering his arrest, however,
the respondent Senate Committees had overstepped the boundaries of its
appointed sphere, for it persists to acquire information that is
covered by executive privilege and beyond its jurisdiction to inquire.
Simply put, executive privilege is “the power of the Government to
withhold information from the public, the courts, and the
Congress.” It is also defined as “the right of the President and
high-level executive branch officers to withhold information from
Congress, the courts, and ultimately the public.”[10] It must be
stressed that executive privilege is a right vested in the President
which she may validly exercise within her sphere of executive
power. The President can validly invoke executive privilege to
keep information from the public and even from co-equal branches of the
Government, i.e., the Legislature and the Judiciary. chanroblesvirtualawlibrary
In Chavez v. Public Estates Authority,[11] this Court recognized that: chanrobles virtual law library
The
right to information, however, does not extend to matters
recognized as privileged information under the separation of powers.
The right does not also apply to information on military and diplomatic
secrets, information affecting national security, and information on
investigations of crimes by law enforcement agencies before the
prosecution of the accused, which courts have long recognized as
confidential. The right may also be subject to other limitations that
Congress may impose by law.
There
is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The
information does not cover Presidential conversations, correspondences,
or discussions during closed-door Cabinet meetings which, like internal
deliberations of the Supreme Court and other collegiate courts, or
executive sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a
co-equal branch of government. A frank exchange of exploratory
ideas and assessments, free from the glare of publicity and pressure by
interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative
and Judicial power. This is not the situation in the instant case.
(Emphasis ours.)
A more extensive explanation for the rationale behind the executive
privilege can be found in United States v. Nixon,[12] to wit: chanrobles virtual law library
The
expectation of a President to the confidentiality of his
conversations and correspondence, like the claim of confidentiality of
judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential
decision-making. 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. These are the considerations justifying a presumptive
privilege for Presidential communications. The privilege is fundamental
to the operation of Government and inextricably rooted in the
separation of powers under the Constitution.
x
x x
Marshall's
statement cannot be read to mean in any sense that a
President is above the law, but relates to the singularly unique role
under Art. II of a President's communications and activities, related
to the performance of duties under that Article. Moreover, a
President's communications and activities encompass a vastly wider
range of sensitive material than would be true of any ‘ordinary
individual.’ It is therefore necessary in the public interest to afford
Presidential confidentiality the greatest protection consistent with
the fair administration of justice. The need for confidentiality even
as to idle conversations with associates in which casual reference
might be made concerning political leaders within the country or
foreign statesmen is too obvious to call for further treatment. x x x
(Emphasis ours.)
It is clear from the foregoing that executive privilege is not meant to
personally protect the President, but is inherent in her position to
serve, ultimately, the public interest. It is not an evil thing
that must be thwarted at every turn. Just as acts of the
Legislature enjoy the presumption of validity, so must also the acts of
the President. Just all other public officers are afforded the
presumption of regularity in the exercise of their official functions,
then what more the President, the highest Executive official of the
land. Hence, when the President claims that certain information
is covered by executive privilege, then rightfully, said information
must be presumptively privileged.[13]
Respondent Senate Committees cite the statement made by this Court in
Ermita that “the extraordinary character of the exemptions indicates
that the presumption inclines heavily against executive secrecy and in
favor of disclosure.”[14] However, said declaration must be taken
in the context of Ermita where EO No. 464 placed under the protection
of executive privilege virtually all conversations, correspondences,
and information of all executive and military officials, unless
otherwise ordered by the President. Ermita firmly established that
public disclosure is still the general rule while executive privilege
is the exemption therefrom. But when the President does invoke
executive privilege as regards certain information, the same must be
deemed presumptively privileged.
Necessarily, it is the President who can make the initial determination
of what information is covered by the executive privilege because only
she and the executive officials involved are privy to the
information. Although the President and/or her authorized
executive official are obliged to clearly state the grounds for
invoking executive privilege, they are not required to state the
reasons for the claim with such particularity as to compel the
disclosure of the information which the privilege is meant to
protect.[15] The President, through petitioner Neri, claims that
the conversation between the two of them as regards the NBN Project is
privileged for it involves matters that may affect diplomatic and
economic relations of the country with China. These are valid
grounds rendered even more credible in light of the fact that the NBN
Project is funded by a loan extended by the Chinese Government to our
Government and awarded to ZTE, a Chinese firm. The respondent
Senate Committees’ demand for a deeper or more substantial
justification for the claim of executive privilege could well lead to
the revelation of the very same details or information meant to be
protected by the privilege, hence, rendering the same useless.
Furthermore, since the information the respondent Senate Committees
seek is presumptively privileged, the burden is upon them to overcome
the same by contrary evidence.
Also in support of my position that the respondent Senate Committees
acted beyond their legislative jurisdiction is their continued avowal
of “search for the truth.” While the search for the truth is
truly a noble aspiration, respondent Senate Committees must bear in
mind that their inquiry and investigative powers should remain focused
on the primary purpose of legislation.
Respondent Senate Committees present three pending Senate bills for
which the investigative hearings are being held: chanroblesvirtualawlibrary
a.
Senate Bill No. 1793, introduced by Senator Mar Roxas,
entitled “An Act Subjecting Treaties, International or Executive
Agreements Involving Funding in the Procurement of Infrastructure
Projects, Goods, and Consulting Services to be Included in the Scope
and Application of Philippine Procurement Laws, Amending for the
Purpose Republic Act No. 9184, Otherwise Known as the Government
Procurement Reform Act, and for Other Purposes.”
b.
Senate Bill No. 1794, introduced by Senator Mar Roxas,
entitled “An Act Imposing Safeguards in Contracting Loans Classified as
Official Development Assistance, Amending for the Purpose Republic Act
No. 8182, as Amended by Republic Act No. 8555, Otherwise Known as the
Official Development Assistance Act of 1996, and for Other Purposes.”
c.
Senate Bill No. 1317, introduced by Senator
Miriam Defensor Santiago, entitled “An Act Mandating Concurrence to
International Agreements and Executive Agreements.”
Consistent with the requirement laid down in Ermita, petitioner Neri
attended the 26 September 2007 investigative hearing on the
afore-mentioned Senate bills, even though he was obviously ill that
day, answered all the other questions of the Senators regarding the NBN
Project including the attempted bribery upon him, except the three
questions for which he invoked executive privilege by order of the
President. Respondent Senate Committees failed to establish that
petitioner Neri’s answers to these three questions are indispensable,
or that they are not available from any other source, or that the
absence thereof frustrates the power of the Senate to legislate.
Respondent Senate Committees lightly brushed aside petitioner Neri’s
claim of executive privilege with a general statement that such is an
unsatisfactory reason for not attending the 20 November 2007
hearing. It likewise precipitately issued the contempt and arrest
Order against petitioner Neri for missing only one hearing, the 20
November 2007, despite the explanation given by petitioner Neri,
through Executive Secretary Ermita and counsel Atty. Bautista, for his
non-appearance at said hearing, and the expression by petitioner Neri
of his willingness to return before respondent Senate Committees if he
would be furnished with the other questions they would still ask
him. Petitioner Neri’s request for advance copy of the questions
was not unreasonable considering that in Ermita, this Court required: chanrobles virtual law library
It
follows, therefore, that when an official is being summoned by
Congress on a matter which, in his own judgment, might be covered by
executive privilege, he must be afforded reasonable time to inform the
President or the Executive Secretary of the possible need for invoking
the privilege. This is necessary in order to provide the
President or Executive Secretary with fair opportunity to consider
whether the matter indeed calls for a claim of executive
privilege. If, after the lapse of that reasonable time, neither
the President nor the Executive Secretary invokes the privilege,
Congress is no longer bound to respect the failure of the official to
appear before Congress and may then opt to avail of the necessary legal
means to compel his appearance.[16] (Emphasis ours.)
Yet the respondent Senate Committees unexplainably failed to comply
therewith.
Another point militating against the issuance of the contempt and
arrest Order is its issuance even without quorum and the required
number of votes in the respondent Senate Committees. During oral
arguments, Senator Francis N. Pangilinan asserted that whatever
infirmities at the committee level were cured by the 2/3 votes of the
entire Senate favoring the issuance of the contempt and arrest Order
against petitioner Neri, since the committee is a mere agent of the
entire chamber.[17] In their Memorandum, respondent Senate
Committees no longer addressed said issue contending that petitioner
Neri never assailed the procedure by which the contempt and arrest
Order was issued. While this Court may not rule on an issue not
raised in the Petition, it may take note of the apparent lack of clear
and established rules for the issuance by the Senate of a contempt and
arrest Order against a recalcitrant witness in hearings conducted in
aid of legislation. Senators may very well be familiar with the
practice or tradition of voting in such cases, but not necessarily the
witness against whom the contempt and arrest Order may be issued and
who shall suffer the loss of his liberty. Procedural due process
requires that said witness be informed of the rules governing his
appearance and testimony before the Senate Committees, including the
possible issuance of a contempt and arrest Order against him, because
only then can he be aware of any deviation from the established
procedure and of any recourse available to him.
Finally, much has been said about this Court not allowing the executive
privilege to be used to conceal a criminal act. While there are
numerous suspicions and allegations of crimes committed by public
officers in the NBN Project, these remain such until the determination
by the appropriate authorities. Respondent Senate Committees are
definitely without jurisdiction to determine that a crime was committed
by the public officers involved in the NBN Project, for such authority
is vested by the Constitution in the Ombudsman. Again, it must be
emphasized, that the Senate’s power of inquiry shall be used to obtain
information in aid of legislation, and not to gather evidence of a
crime, which is evidently a prosecutorial, not a legislative,
function. chanroblesvirtualawlibrary
In view of the foregoing, and in the exercise of this Court’s power of
judicial review, I vote to GRANT the Petition and DECLARE the Order
dated 30 January 2008 of the respondent Senate Committees null and void
for having been issued in grave abuse of discretion amounting to lack
or excess of jurisdiction.
MINITA
V. CHICO-NAZARIO
Associate
Justice
Footnotes: chanrobles virtual law library
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[1]
G.R. No. 169777, 20 April 2006, 488 SCRA 1.
[2] Article VIII, Section 1.
[3] Tañada v. Angara, G.R. No. 118295, 2 May
1997, 272 SCRA 18, 48.
[4] In re: Wenceslao Laureta, G.R. No. 68635, 12
March 1987, 148 SCRA 382, 419, citing Angara v. Electoral Commission,
63 Phil. 139, 158 (1936).
[5] Id.
[6] See the Concurring Opinion of J. Concepcion in
Guevara v. Inocentes, 123 Phil. 200, 217-218 (1966).
[7] 87 Phil. 29 (1950).
[8] Id. at 45.
[9] Id. at 45-46.
[10] Senate of the Philippines v. Ermita, supra note 1 at 45,
citing B. SCHWARTZ, EXECUTIVE PRIVILEGE AND CONGRESSIONAL INVESTIGATORY
POWER, 47 Cal. L. Rev. 3, and M. ROZELL, Executive Privilege and the
Modern Presidents: In Nixon’s Shadow (83 Minn. L. Rev. 1069).
[11] 433 Phil. 506, 534 (2002).
[12] 418 US 1039, 1063-1068 (1974).
[13] Id.
[14] Senate of the Philippines v. Ermita, supra note 1 at 51.
[15] Id. at 66.
[16] Id. at 69.
[17] TSN, 4 March 2008, pp. 706-709.
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