Republic
of the Philippines
SUPREME
COURT
Manila
EN
BANC
ROMULO
L. NERI,
Petitioner, |
-versus-
G.
R. No. 180643
March
25, 2008
SENATE
COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY,
Respondents.
|
SEPARATE
CONCURRING OPINION
NACHURA,
J.:
I concur in the comprehensive and well-reasoned ponencia of Justice
Leonardo-De Castro.
However, I wish to add a few thoughts on the matter of executive
privilege, specifically on the area of the presumptive privilege of
confidentiality enjoyed by the President relative to Presidential
conversations and correspondences necessary for shaping policies and
decision-making.
I
U.S. v. Nixon,[1] the leading case on executive privilege in the United
States, acknowledges a constitutionally-recognized “presumptive
privilege” on the confidentiality of presidential communications.
The rationale for such privilege is expressed in the following
disquisition:cralaw:red
The expectation of a President to the confidentiality of his
conversations and correspondences, 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 polices and
making decisions and to do so in a way many would be unwilling to
express except privately. These are the consideration 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.
[2]
However, it is simply a generalized privilege of confidentiality and
does not enjoy the same degree of unqualified acceptance as the
governmental privilege against public disclosure of state secrets
regarding military, diplomatic and other national security
matters. Further, it must be formally claimed or asserted by the
appropriate executive official. As held in U.S. v. Reynolds: [3]
The privilege belongs to the government and must be asserted by it; it
can neither be claimed nor waived by a private party. It is not
to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter,
after actual personal consideration by the officer. The court
itself must determine whether the circumstances are appropriate for the
claim of privilege, and yet do so without forcing a disclosure of the
very thing the privilege is designed to protect.
In the Philippines, we ruled in Senate v. Ermita,[4] that it is
only the President, or the Executive Secretary “by order of the
President,” who may invoke executive privilege.
Because the foundation of the privilege is the protection of the public
interest, any demand for disclosure of information or materials over
which the privilege has been invoked must, likewise, be anchored on the
public interest. Accordingly, judicial recognition of the
validity of the claimed privilege depends upon “a weighing of the
public interest protected by the privilege against the public interest
that would be served by disclosure in a particular case.”[5]
While a “demonstrated specific need” for material may prevail over a
generalized assertion of privilege, whoever seeks the disclosure must
make “a showing of necessity sufficient to outweigh the adverse effects
the production would engender.”[6]
It is in light of these principles that, in the case at bench, we are
called upon to strike a balance between two clashing public interests:
the one espoused by the Executive Department, and the other asserted by
the respondents Senate Committees.
More specifically, the controversy on this particular issue has boiled
down to whether this presumptive (executive) privilege may be validly
invoked – and whether the invocation was procedurally proper – over the
following questions which the petitioner refused to answer when he
appeared at the hearing conducted by the respondents:cralaw:red
1.
Whether the President followed-up the NBN
project?
2.
Were you dictated (by the President) to
prioritize the ZTE (proposal)?
3.
Whether the President said to go ahead and
approve the project after being told about the alleged bribe (offer)?[7]
Executive Secretary Ermita articulated the position taken by the
executive department in this wise:cralaw:red
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 the
protection of the public interest in candid, objective, and even blunt
harsh opinions in Presidential decision-making. Disclosure of
conversations of the President will have a chilling effect on the
President and will hamper her in the effective discharge of her duties
and responsibilities, if she is not protected by the confidentiality of
her conversations.
The context in which executive privilege is being invoked is that
the information sought to be disclosed might impair our diplomatic as
well as economic relations with the People’s Republic of China.
Given the confidential nature in which these information were conveyed
to the President, [the petitioner] cannot provide the Committee any
further details of these conversations, without disclosing the very
thing the privilege is designed to protect.[8]
On the other hand, the respondents contended that in the exercise of
their power to conduct inquiries in aid of legislation under Section
21, Article VI of the Constitution, they are entitled to the disclosure
of the information sought from the petitioner. In opposition to
the claim of executive privilege, they also raised the general
constitutional principles of full public disclosure of all transactions
involving public interest,[9] the right of the people to
information on matters of public concern,[10] public
office is a public trust,[11] the President’s duty to faithfully
execute the laws,[12] and the due process clause.[13]
Finally, they cited the postulate that executive privilege cannot be
resorted to in order to shield criminal activity or wrongdoing.
A survey of relevant jurisprudence is useful. Almonte v.
Vasquez,[14] Chavez v. PCGG,[15] and Chavez v. Public Estates
Authority[16] acknowledged the right of government to withhold certain
types of information from the public. In the Chavez cases, there
was already recognition of “privileged information” arising from
“separation of powers,” commonly understood to include Presidential
conversations, correspondences and discussions in closed-door Cabinet
meetings. But it was in Senate v. Ermita that the matter of the
President’s presumptive privilege was explicitly discussed.
However, foreign jurisprudence, notably American decisions from which
this Court had repeatedly drawn its conclusions, still appear to be the
more insightful. For the case at bench, they should provide this
Court the proper perspective to deal with the problem at hand.
First, in U.S. v. Nixon, it is abundantly clear that when the general
privilege of confidentiality of Presidential communications notably
made in the performance of the President’s duties and responsibilities
is ranged against the requirements in the fair administration of
criminal justice, executive privilege must yield. According to
the U.S. Supreme Court, the right to the production of evidence at a
criminal trial has constitutional dimensions. The high tribunal
declared:cralaw:red
The interest in preserving confidentiality is weighty indeed and
entitled to great respect. However, we cannot conclude that
advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that such
conversations will be called for in the context of criminal prosecution.
On the other hand, the allowance of the privilege to withhold evidence
that is demonstrably relevant in a criminal trial would cut deeply into
the guarantee of due process of law and gravely impair the basic
function of the courts. A President’s acknowledged need for
confidentiality in the communications of his office is general in
nature, whereas the constitutional need for production of relevant
evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution
may be totally frustrated. The President’s broad interest in
confidentiality of communications will not be vitiated by disclosure of
a limited number of conversations preliminarily shown to have some
bearing on the pending criminal case.[17]
However, in almost the same breath, the U.S. Court aired the caveat
that this ruling is “not concerned with the balance between the
President’s generalized interest in confidentiality and the need for
relevant evidence in civil litigation, nor with that between the
confidentiality interest and congressional demands for information, nor
with the President’s interest in preserving state secrets.”[18]
Indeed, with respect to civil cases, this admonition was reiterated and
clarified in a subsequent decision involving the Vice-President of the
United States.
In Cheney v. U.S. District Court for the District of
Columbia,[19] where the United States District Court for the
District of Columbia entered orders permitting discovery against
Vice-President Cheney, other federal officials and members of the
National Energy Policy Development Group (NEPDG) on the basis of the
allegation of a public interest organization and environmental group
that NEPDG was subject to procedural and disclosure requirements of the
Federal Advisory Committee Act (FACA), the U.S. Supreme Court stressed
the disparity between criminal and civil judicial proceedings in so far
as the need for invocation of executive privilege with sufficient
specificity is concerned. In reversing the Court of Appeals, the
U.S. Supreme Court declared:cralaw:red
The
Court of Appeals dismissed these separation of powers
concerns. Relying on United States v. Nixon, it held that even
though respondents’ discovery requests are overbroad and “go well
beyond FACA’s requirements,” the Vice-President and his former
colleagues on the NEPDG “shall bear the burden” of invoking privilege
with narrow specificity and objecting to the discovery requests with
“detailed precision.” In its view, this result was required by
Nixon’s rejection of an “absolute, unqualified Presidential privilege
of immunity from judicial process under all circumstances”. x x x
The analysis, however, overlooks fundamental differences in the two
cases. Nixon involves the proper balance between the Executive’s
interest in the confidentiality of its communication and the
“constitutional need for production of relevant evidence in a criminal
proceeding.” The Court’s decision was explicit that it was “not …
concerned with the balance between the President’s generalized interest
in confidentiality and the need for relevant evidence in civil
litigation … We address only the conflict between the President’s
assertion of a generalized privilege of confidentiality and the
constitutional need for relevant evidence in criminal trials.”chanroblesvirtualawlibrary
The distinction Nixon drew between criminal and civil proceedings is
not just a matter of formalism. x x x In light of the
“fundamental” and “comprehensive” need for “every man’s evidence” in
the criminal justice system, not only must the Executive Branch first
assert privilege to resist disclosure, but privilege claims that shield
information from a grand jury proceeding or a criminal trial are not to
be “expansively construed, for they are in derogation of the search for
truth.” The need for information for use in civil cases, while
far from negligible, does not share the urgency or significance of the
criminal subpoena requests in Nixon. As Nixon recognized, the
right to the production of relevant evidence in civil proceedings does
not have the same “constitutional dimensions.”[20]
As to the conflict between the confidentiality interest invoked by the
President and congressional demands for information in a legislative
investigation, there is a close parallel between the instant case and
Senate Select Committee on Presidential Campaign Activities v.
Nixon.[21]
In that case, the Senate Committee was created by resolution of the
Senate to investigate “illegal, improper or unethical activities”
occurring in connection with the presidential campaign and election of
1972, and “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.” In testimony
before the Committee, Alexander Butterfield, a former Deputy Assistant
to the President, stated that certain presidential conversations,
presumably including those which Mr. Dean and others had previously
testified to, had been recorded on electronic tapes. The
Committee thereupon attempted informally to obtain certain tapes and
other materials from the President. When these efforts proved
unsuccessful, the Committee issued the subpoena subject of the case.[22]
Refusing to apply Nixon v. Sirica,[23] the U.S. appellate court’s
ratiocination is instructive: chanrobles virtual law library
We
concluded that presidential conversations are presumptively
privileged, even from the limited intrusion represented by in camera
examination of the conversations by a court. The presumption can
be overcome only by an appropriate showing of public need by the party
seeking access to the conversations. In Nixon v. Sirica, such a
showing was made by the Special Prosecutor: we think that this
presumption of privilege premised on the public interest in
confidentiality must fall in the face of the uniquely powerful showing
by the Special Prosecutor. x x x 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 this authority.[24]
The Court then denied the prayer of the Select Committee in this wise: chanrobles virtual law library
We
find that the Select Committee has failed to make the requisite
showing. In its papers below and in its initial briefs to this
Court, the Committee stated that it seeks the materials in question in
order to resolve particular conflicts in the voluminous testimony it
has heard, conflicts relating to “the extent of malfeasance in the
executive branch,” and, most importantly, the possible involvement of
the President himself. The Committee has argued that the
testimony before it makes out “a prima facie case that the President
and his closest associates have been involved in criminal conduct,”
that the “materials bear on that involvement,” and that these facts
alone must defeat any presumption of privilege that might otherwise
prevail.
It
is true, of course, that the Executive cannot, any more than the
other branches of government, invoke a general confidentiality
privilege to shield its officials and employees from investigation by
the proper governmental institutions into possible criminal wrongdoing.
x x x But under Nixon v. Sirica, the showing required to overcome
the presumption favoring confidentiality turned, not on the nature of
the presidential conduct that the subpoenaed material might reveal,
but, instead, on the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to which
the material was necessary to its fulfillment. Here also our task
requires and our decision implies no judgment whatever concerning
possible presidential involvement in culpable activity. On the
contrary, we think the sufficiency of the Committee’s showing must
depend solely on whether the subpoenaed evidence is demonstrably
critical to the responsible fulfillment of the Committee’s functions.
x
x x x
The
sufficiency of the Committee’s showing of need has come to depend,
therefore, entirely on whether the subpoenaed materials are critical to
the performance of its legislative functions. There is a clear
difference between Congress’s legislative tasks and the responsibility
of a grand jury, or an institution engaged in like functions.
While fact-finding by a legislative committee is undeniably a part of
its task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political
acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information
provided in its hearings. In contrast, the responsibility of the
grand jury turns entirely on its ability to determine whether there is
probable cause to believe that certain named individuals did or did not
commit specific crimes. If, for example, as in Nixon v. Sirica,
one of those crimes is perjury concerning the content of certain
conversations, the grand jury’s need for the most precise evidence, the
exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process,
at least, not in the circumstances of this case.[25]
Applying the foregoing decisions to the case at bench, it is my view
that the respondents’ need for disclosure of the information sought
from the petitioner does not at all approximate the “constitutional
dimensions” involved in criminal proceedings. While it is true
that the Senate Committees, when engaged in inquiries in aid of
legislation, derive their power from the Constitution, this is not a
situation analogous to that in Nixon, where the court’s ability to
fulfill its constitutional mandate to resolve a case or controversy
within its jurisdiction hinged on the availability of certain
indispensable information. Rather, as in Senate Select Committee,
this is a situation where Senate Committees insist on obtaining
information from the petitioner, without at all any convincing showing
how and why the desired information “is demonstrably critical to the
responsible fulfillment of the Committees’ functions.” Indeed,
respondents have not adequately explained how petitioner’s answers to
the three questions are crucial to the task of crafting the intended
legislation given the inescapable fact that numerous other persons,
from the ranks of government and the private sector, had been called to
and had already testified at the respondent’s hearings.
My own legislative experience echoes the perceptive observation of
Senate Select Committee: chanrobles virtual law library
While
fact-finding by a legislative committee is undeniably a part of
its task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political
acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information
provided in its hearings.
It
is not uncommon for some legislative measures to be fashioned on the
strength of certain assumptions that may have no solid factual
precedents. In any event, the respondents have not demonstrated
that the information sought is unqualifiedly necessary for a legitimate
legislative purpose, or that the intended legislation would be
stillborn without petitioner’s responses to the three questions.
The respondents have likewise failed to show that the information
needed for legislation cannot be obtained from sources other than the
petitioner. In fine, the presumption was not successfully
rebutted.
II
On the procedure for the invocation of the privilege, it is the
respondents’ position that when the President decides to claim this
presumptive privilege, there arises the concomitant duty on her part to
express the reason/s therefor with specificity. From the vantage
point of respondents, it appears that the burden of showing the
propriety of the claim of privilege devolves upon whoever invokes it,
even if the corresponding obligation on the part of whoever demands
disclosure to prove necessity of access to the information desired has
not been met.
My own view of the process is quite the opposite. When the
President invokes the privilege, announcing the reasons therefor – in
this case, the possible rupture of diplomatic and economic relations
with the People’s Republic of China, and the chilling effect that
disclosure of confidential information will have on the President’s
policy- and decision-making responsibilities[26] -- then the
presumptive privilege attaches. At this point, the burden to
overcome the presumption rests on the shoulders of whoever demands
disclosure – in this case, the Senate Committees – and to discharge
this burden requires a showing that the public interest will be better
served by the revelation of the information.
In Nixon, the criminal subpoenas were required to comply with the
exacting standards of relevancy, admissibility and specificity.
As declared by the U.S. Supreme Court: chanrobles virtual law library
Upon
invocation of the claim of privilege by the President to whom
subpoena duces tecum had been directed, it was the duty of the district
court to treat the subpoenaed material as presumptively privileged and
to require the special prosecutor to demonstrate that the presidential
material was essential to justice of the pending criminal case.[27]
Thus, the Court addressed the issue of executive privilege only after
it was satisfied that the special prosecutor had adequately met these
demanding requirements.
In Nixon v. Sirica, the Court found that the Special Prosecutor had
made a uniquely powerful showing that the subpoenaed tapes contain
evidence peculiarly necessary to carrying out the vital functions of
the grand jury – evidence for which no effective substitute was
available. In that light, the presumptive privilege had to yield.
In the present controversy, no such standards were set, and none was
observed.
In lieu of a showing of a specific necessity for disclosure, the
respondent Committees continue to insist on the primacy of its power of
legislative inquiry, upon a claim that to uphold the presumptive
privilege is an impermissible infringement of the legislative power,
and to permit the withholding of the desired information will result in
the emasculation of the Senate as a legislative body. Of course,
this is accompanied by the invocation of the general constitutional
principles of transparency, right to information, due process, public
office is a public trust, among others, and the unbending adherence to
the pronouncement in Senate v. Ermita that: “A claim of privilege,
being a claim of exemption from an obligation to disclose information,
must, therefore, be clearly asserted.”chanroblesvirtualawlibrary
But if U.S. v. Nixon is to be our anchor, then we must concede that the
requirements of necessity and specificity are demanded not only of he
who claims the presumptive privilege, but also of the one who desires
disclosure. And to our mind, the respondents have fallen short of
these requirements.
Then, there is the undeniable imperative that executive privilege
cannot be used to shield criminal activity or wrongdoing. Again,
we must draw reason from extant jurisprudence. Senate Select
Committee explicates the point which the respondents are missing: chanrobles virtual law library
But
under Nixon v. Sirica, the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of the
presidential conduct that the subpoenaed material might reveal but,
instead, on the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to which
the material was necessary to its fulfillment. Here also our task
requires and our decision implies no judgment whatever concerning
possible presidential involvement in culpable activity. On the
contrary, we think the sufficiency of the Committee’s showing must
depend solely on whether the subpoenaed evidence is demonstrably
critical to the responsible fulfillment of the Committee’s functions.
It is the function of the respondents to investigate criminal activity;
this is a responsibility of other agencies, such as the Office of the
Ombudsman. This Court may even take judicial notice of the fact
that the Ombudsman, upon a request of the President, has already
commenced a criminal investigation into the subject of the legislative
inquiry, the NBN deal. Presumably, the Ombudsman has already
summoned the petitioner to give testimony therein, and by analogy with
Nixon v. Sirica, petitioner cannot withhold information in that
investigation by invoking executive privilege.
Finally, it should not escape this Court that on oral argument, the
respondents were asked if they had complied with the following
guidelines suggested in Senate v. Ermita, as a way of avoiding the
pitfalls in Bengzon v. Senate Blue Ribbon Committee:[28]
One
possible way for Congress to avoid such a result as occurred in
Bengzon is to indicate in its invitations to the public officials
concerned or to any person for that matter, the possible needed statute
which prompted the need for the inquiry. Given such statements in
its invitations, along with the usual indication of the subject of the
inquiry and the questions relative to and in furtherance thereof,
there would be less room for speculation on the part of the
person invited on whether the inquiry is in aid of legislation.
In reply, the respondents admitted that they did not. This
admission has cast a shadow on the regularity of the inquiry such that
even the main argument of respondents could fall.
In light of the foregoing, I vote to GRANT the petition.
ANTONIO EDUARDO B. NACHURA, J.
Associate
Justice
Footnotes: chanrobles virtual law library
[1]
418 U.S. 683; 41 L. Ed. 2d 1039 (1973).
[2] U.S. v. Nixon, supra., cited in Almonte v.
Vasquez, 314 Phil. 150 (1995).
[3] 345 U.S. 1, 73 S. Ct. 528 (1953).
[4] Supra.
[5] Black v. Sheraton Corporation of America, 564 f.
2D 531, 184 U.S. App. D.C. 46, 23 Fed. R. Serv. 2d 1490, citing Nixon
v. Sirica, 159 U.S. APP. D.C., at 74, 487 F. 2d, at 716.
[6] Black v. Sheraton Corporation of America, supra.
[7] Letter dated November 15, 2007, of Executive
Secretary Eduardo R. Ermita to Senate Blue Ribbon Committee Chairman
Alan Peter Cayetano; Annex “C”, Petition. Parenthetically, events
occurring after the start of the legislative inquiry, such as the
cancellation of the NBN contract and the Presidential directive for the
Ombudsman to conduct its own investigation into the possible criminal
liability of persons concerned, for non-issues in this case. chanrobles virtual law library
[8] Id.
[9] Philippine Constitution, Art. II, Sec. 26.
[10] Philippine Constitution, Art. III, Sec. 7.
[11] Philippine Constitution, Art. XI, Sec. 1.
[12] Philippine Constitution, Art. VII, Sec. 17.
[13] Philippine Constitution, Art. III, Sec. 1.
[14] 314 Phil. 150 (1995).
[15] 360 Phil. 133 (1998).
[16] 433 Phil. 506 (2002).
[17] U.S. v. Nixon, supra.
[18] Underscoring supplied.
[19] 542 U.S. 367, 124 S. Ct. 2576 (2004).
[20] Id.
[21] 498 F. 2d 725, 162 U.S. Appl. D.C. 183.
[22] Senate Select Committee v. Nixon, supra.
[23] 159 U.S. App. D.C. 58, 487 F. 2d 700.
[24] Senate Select Committee, supra.
[25] Id.
[26] See letter of Executive Secretary Ermita, Annex “C,”
Petition.
[27] U.S. v. Nixon, supra.
[28] G.R. No. 89914, November 20, 1991, 203 SCRA 767.
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