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
REYNATO S. PUNO,C.J.:
The
giant question on the scope and use of executive privilege has cast a
long shadow on the ongoing Senate inquiry regarding the alleged and
attempted bribery of high government officials in the consummation of
the National Broadband Network (NBN) Contract of the Philippine
government. With the expanse and opaqueness of the constitutional
doctrine of executive privilege, we need to open a window to enable
enough light to enter and illuminate the shadow it has cast on the case
at bar. The task is not easy, as the nature of executive
privilege is not static, but dynamic. Nonetheless, if there is a
North Star in this quest, it is that the end all of executive privilege
is to promote public interest and no other.
First,
let us unfurl the facts of the case.
On
April 21, 2007, the Department of Transportation and Communications
(DOTC), through Secretary Leandro Mendoza, and Zhing Xing
Telecommunications Equipment (ZTE), through its Vice President Yu Yong,
executed in Boao, China, a “Contract for the Supply of Equipment and
Services for the National Broadband Network Project” (“NBN-ZTE
Contract”) worth US$ 329,481,290.00 or approximately PhP 16
billion.[1] ZTE is a corporation owned by the Government of the
People’s Republic of China.[2] The NBN-ZTE Contract was to be
financed through a loan that would be extended by the People’s Republic
of China. President Gloria Macapagal-Arroyo allegedly witnessed
the signing of the contract.[3]
The
NBN-ZTE Contract became the subject of investigations by the Joint
Committees of the Senate, consisting of the Committee on Accountability
of Public Officers and Investigations (Blue Ribbon), Committee on Trade
and Commerce and Committee on National Defense and Security after the
filing of the following resolutions and delivery of the following
privilege speeches:
1.
P.S. Res. (Philippine Senate Resolution) No. 127, introduced by Senator
Aquilino Q. Pimentel, Jr., entitled:
Resolution
Directing the Blue Ribbon Committee and the Committee on Trade and
Industry to Investigate, in Aid of Legislation, the Circumstances
Leading to the Approval of the Broadband Contract with ZTE and the Role
Played by the Officials Concerned in Getting It Consummated and to Make
Recommendations to Hale to the Courts of Law the Persons Responsible
for any Anomaly in Connection therewith, if any, in the BOT Law and
other Pertinent Legislations.[4]
2.
P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled:
Resolution
Directing the Committee on National Defense and Security to Conduct an
Inquiry in Aid of Legislation into the National Security Implications
of Awarding the National Broadband Network Contract to the Chinese Firm
Zhong Xing Telecommunications Equipment Company Limited (ZTE
Corporation) with the End in View of Providing Remedial Legislation
that Will Further Protect Our National Sovereignty Security and
Territorial Integrity.[5]
3.
P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago,
entitled:
Resolution
Directing the Proper Senate Committee to Conduct an Inquiry, in Aid of
Legislation, on the Legal and Economic Justification of the National
Broadband Network (NBN) Project of the Government.[6]
4.
P.S. Res. No. 144, introduced by Senator Manuel Roxas III, entitled:
Resolution
Urging President Gloria Macapagal Arroyo to Direct the Cancellation of
the ZTE Contract.[7]
5.
Privilege Speech of Senator Panfilo M. Lacson, delivered on September
11, 2007, entitled “Legacy of Corruption.”[8]
6.
Privilege Speech of Senator Miriam Defensor Santiago, delivered
on November 24, 2007, entitled
“International Agreements in Constitutional
Law: The Suspended RP-China (ZTE) Loan
Agreement.”[9]
There
are also three (3) pending bills in the Senate related to the
investigations, namely:
1.
Senate Bill No. 1793, introduced by Senator Manuel Roxas III, 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.[10]
2.
Senate Bill No. 1794, introduced by Senator Manuel Roxas III, 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.[11]
3.
Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago,
entitled:
An
Act Mandating Concurrence to International Agreements and Executive
Agreements.[12]
The
hearings in aid of legislation started in September 2007[13] and have
yet to be concluded.
On
September 26, 2007, petitioner Romulo L. Neri, upon invitation by the
respondent Senate Committees, attended the hearing and testified for
eleven (11) hours.[14] Petitioner was the Director General of the
National Economic and Development Authority (NEDA) during the
negotiation and signing of the NBN-ZTE Contract.[15] He testified
that President Macapagal-Arroyo had initially given instructions that
there would be no loan and no guarantee for the NBN Project, and that
it was to be undertaken on an unsolicited Build-Operate-Transfer (BOT)
arrangement, so that the government would not expend funds for the
project.[16] Eventually, however, the NBN Project was awarded to
ZTE with a government-to-government loan.[17]
In
the course of his testimony, petitioner declared that then Commission
on Elections Chairperson Benjamin Abalos, the alleged broker of the
NBN-ZTE Contract, offered him PhP 200 million in relation to the
NBN-ZTE Contract.[18] He further stated that he informed
President Macapagal-Arroyo of the bribe attempt by Chairperson Abalos,
and that the President told him not to accept the bribe.[19] When
Senator Francis N. Pangilinan asked petitioner whether the President
had followed up on the NBN Contract, he refused to answer. He
invoked executive privilege which covers conversations between the
President and a public official.[20] Senator Loren B. Legarda asked
petitioner if there was any government official higher than he who had
dictated that the ZTE be prioritized over Amsterdam Holdings, Inc.
(AHI), another company applying to undertake the NBN Project on a BOT
arrangement.[21] Petitioner again invoked executive privilege, as he
claimed that the question may involve a conversation between him and
the President.[22] Senator Pia S. Cayetano also asked petitioner
whether the President told him what to do with the project - after he
had told her of the PhP 200 million attempted bribe and she told him
not to accept it – but petitioner again invoked executive
privilege.[23] At this juncture, Senator Rodolfo G. Biazon,
Chairperson of the Committee on National Defense and Security, sought
clarification from petitioner on his source of authority for invoking
executive privilege. Petitioner replied that he had been
instructed by Executive Secretary Eduardo R. Ermita to invoke executive
privilege on behalf of the President, and that a written order to that
effect would be submitted to the respondent Senate
Committees.[24]
Several
Senators urged petitioner to inform the respondent Senate Committees of
the basis for his invocation of executive privilege as well as the
nature and circumstances of his communications with the President --
whether there were military secrets or diplomatic and national security
matters involved. Petitioner did not accede and instead cited the
coverage of executive privilege under Section 2(a) of Executive Order
464,[25] which includes “all confidential or classified information
between the President and public officers covered by the Executive
Order, such as conversations, correspondence between the President and
public official.” As respondent Senate Committees needed to know
the basis for petitioner’s invocation of executive privilege in order
to decide whether to accept it or not, the petitioner was invited to an
executive session to discuss the matter.[26] During the executive
session, however, petitioner felt ill and was allowed to go home with
the undertaking that he would return.[27]
On
November 13, 2007, a subpoena ad testificandum was issued to
petitioner, requiring him to appear before the Committee on
Accountability of Public Officers and Investigations (Blue
Ribbon).[28] The subpoena was signed by Senator Alan Peter S.
Cayetano, Chairperson of the Senate Blue Ribbon Committee; Senator
Manual A. Roxas III, Chairperson of the Committee on Trade and
Commerce; and Senator Rodolfo G. Biazon, Chairperson of the Committee
on National Defense and Security; and it was approved and signed by
Senate President Manuel B. Villar.
On
November 15, 2007, Executive Secretary Eduardo Ermita wrote to
respondent Senate Blue Ribbon Committee Chairperson Alan Peter
Cayetano. He communicated the request of the Office of the
President to dispense with the petitioner’s testimony on November 20,
2007, “(c)onsidering that Sec. Neri has been lengthily interrogated on
the subject in an unprecedented 11-hour hearing, wherein he answered
all questions propounded to him except the foregoing questions
involving executive privilege.” The three (3) questions for which
executive privilege was invoked “by Order of the President” were the
following:
“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?”[29]
The
letter of Executive Secretary Ermita offered the following
justification for the invocation of executive privilege on these three
questions, viz:
“Following
the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public
officials which are considered executive privilege (Almonte v. Vasquez,
G.R. 95367, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of conversations of the
President is necessary in the exercise of her executive and policy
decision-making process. The expectation of a President [as] to
the confidentiality of her conversations and correspondences, like the
value which we accord deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decision-making.
Disclosure of conversations of the President will have a chilling
effect on the President, and will hamper her in the effective discharge
of her duties and responsibilities, 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, he cannot provide the Committee any further details of these
conversations, without disclosing the very thing the privilege is
designed to protect.
In
light of the above considerations, this Office is constrained to invoke
the settled doctrine of executive privilege as refined in Senate v.
Ermita, and has advised Secretary Neri accordingly.” (emphasis
supplied)[30]
Petitioner
did not appear before the respondent Senate Committees on November 20,
2007. Consequently, on November 22, 2007, the committees wrote to
petitioner requiring him to show cause why he should not be cited for
contempt for failing to attend the hearing on November 20, 2007,
pursuant to Section 6, Article 6 of the Rules of the Committee on
Accountability of Public Officers and Investigations (Blue
Ribbon). The letter was signed by the Chairpersons of the Senate
Blue Ribbon Committee, the Committee on Trade and Commerce and the
Committee on National Defense and Security and was approved and signed
by the Senate President.[31]
On
November 29, 2007, petitioner wrote to Senator Alan Peter Cayetano as
Chairperson of the Committee on Accountability of Public Officers and
Investigations. Petitioner stated that after his exhaustive
testimony, he “thought that what remained were only the three
questions, where the Executive Secretary claimed executive privilege”;
hence, in his November 15, 2007 letter to Senator Alan Peter Cayetano,
Executive Secretary Ermita requested that petitioner’s presence be
dispensed with in the November 20, 2007 hearing. Petitioner then
requested that if there were matters not taken up in the September 26,
2007 hearing that would be taken up in the future, he be informed in
advance, so he could adequately prepare for the hearing.[32]
Attached
to petitioner’s letter was the letter of his lawyer, Atty. Antonio
Bautista, explaining that petitioner’s “non-appearance last 20 November
2007 was upon the order of the President invoking executive privilege,
as embodied in Sec. Eduardo R. Ermita’s letter dated 18 (sic) November
2007”, and that “Secretary Neri honestly believes that he has
exhaustively and thoroughly answered all questions asked of him on the
ZTE/NBN contract except those relating to his conversations with the
President.”[33] Atty. Bautista’s letter further stated that
petitioner’s “conversations with the President dealt with delicate and
sensitive national security and diplomatic matters relating to the
impact of the bribery scandal involving high government officials and
the possible loss of confidence of foreign investors and lenders in the
Philippines. Secretary Neri believes, upon our advice, that,
given the sensitive and confidential nature of his discussions with the
President, he can, within the principles laid down in Senate v.
Ermita…and U.S. v. Reynolds…justifiably decline to disclose these
matters on the claim of executive privilege.”[34] Atty. Bautista
also requested that he be notified in advance if there were new matters
for petitioner to testify on, so that the latter could prepare for the
hearing.[35]
On
December 6, 2007, petitioner filed the Petition at bar. He
contends that he properly invoked executive privilege to justify his
non-appearance at the November 20, 2007 hearing and prays that the Show
Cause Order dated November 22, 2007 be declared null and void.
On
January 30, 2008, an Order citing petitioner for contempt was issued by
respondent Senate Committees, which reads, viz:
COMMITTEES
ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS (BLUE RIBBON),
TRADE & COMMERCE, AND NATIONAL DEFENSE AND SECURITY
IN
RE: P.S. Res. Nos. 127, 129, 136 & 144; and Privilege Speeches of
Senators Lacson and Santiago (all on the ZTE-NBN Project)
x----------------------------------------------x
ORDER
For
failure to appear and testify in the Committees’ hearing on Tuesday,
September 18, 2007; Thursday, September 20, 2007; Thursday, October 25,
2007 and Tuesday, November 20, 2007, despite personal notice and a
Subpoena Ad Testificandum sent to and received by him, which thereby
delays, impedes and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported irregularities, AND
for failure to explain satisfactorily why he should not be cited for
contempt (Neri letter of 29 November 2007, herein attached) ROMULO L.
NERI is hereby cited in contempt of this (sic) Committees and ordered
arrested and detained in the Office of the Senate Sergeant-At-Arms
until such time that he will appear and give his testimony.
The
Sergeant-At-Arms is hereby directed to carry out and implement this
Order and make a return hereof within twenty four (24) hours from its
enforcement.
SO
ORDERED.
Issued
this 30th day of January, 2008 at the City of Pasay.
(Signed)
ALAN
PETER S. CAYETANO
Chairman
(Signed)
MAR
ROXAS
Chairman
Committee
on Accountability ofCommittee on Trade Public Officers &
Investigations and Commerce (Blue Ribbon)
(Signed)
RODOLFO
G. BIAZON
Chairman
Committee
on National Defense & Security
(Signed)
PIA
S. CAYETANO** MIRIAM DEFENSOR SANTIAGO*
(Signed)
JUAN
PONCE ENRILE**FRANCIS G. ESCUDERO**
(Signed)
RICHARD
J. GORDON** GREGORIO B. HONASAN*
JUAN
MIGUEL F. ZUBIRI* JOKER P. ARROYO*
RAMON
B. REVILLA, JR.** MANUEL M. LAPID**
(Signed)
Signed)
BENIGNO
C. AQUINO III* PANFILO M. LACSON*
(Signed)
(Signed)
LOREN
B. LEGARDA* M. A. MADRIGAL**
ANTONIO
F. TRILLANES* EDGARDO J. ANGARA***
(Signed)
AQUILINO
Q. PIMENTEL, JR.***
Approved:
(Signed)
MANNY
VILLAR
Senate
President
*
Member, Committees on Accountability of Public Officers &
Investigations (Blue Ribbon) and National Defense & Security
**
Member, Committees on Accountability of Public Officers &
Investigations (Blue Ribbon), Trade & Commerce and National Defense
& Security
***
Member, Committee on National Defense & Security
Ex
Officio
(Signed)
AQUILINO
Q. PIMENTEL, JR.
Minority
Leader
(Signed)
FRANCIS
“Kiko” N.
PANGILINAN
Majority
Leader
(Signed)
JINGGOY
EJERCITO ESTRADA
President
Pro Temporare[36]
On
January 30, 2008, petitioner wrote to Senate President Manuel Villar,
Senator Alan Peter S. Cayetano, Chairperson of the Committee on
Accountability of Public Officers & Investigations (Blue Ribbon);
Senator Manuel Roxas, Chairperson of the Committee on Trade &
Commerce; and Senator Rodolfo G. Biazon, Chairperson of the Committee
on National Defense and Security, seeking reconsideration of the Order
of arrest. He explained that as stated in his November 29, 2007
letter, he had not intended to snub the November 20, 2007 hearing and
had in fact cooperated with the Senate in its almost eleven hours of
hearing on September 26, 2007. He further explained that he
thought in good faith that the only remaining questions were the three
for which he had invoked executive privilege. He also reiterated
that in his November 29, 2007 letter, he requested to be furnished
questions in advance if there were new matters to be taken up to allow
him to prepare for the hearing, but that he had not been furnished
these questions.[37]
On
February 5, 2008, petitioner filed a Supplemental Petition for
Certiorari, praying that the Court issue a Temporary Restraining Order
or Writ of Preliminary Injunction enjoining respondent Senate
Committees from enforcing the Order for his arrest, and that the Order
of arrest be annulled. Petitioner contends that his
non-appearance in the November 20, 2007 hearing was justified by the
invocation of executive privilege, as explained by Executive Secretary
Ermita in his November 15, 2007 letter to respondent Senate Blue Ribbon
Committee Chairperson Alan Peter Cayetano and by his (petitioner’s)
letter dated November 29, 2007 to Senator Alan Peter Cayetano as
Chairperson of the Committee on Accountability of Public Officers and
Investigations.[38] On February 5, 2008, the Court issued a
Status Quo Ante Order and scheduled the case for Oral Argument on March
4, 2008.
Respondent
Senate Committees filed their comment, arguing that: (1) there is no
valid justification for petitioner to claim executive privilege;[39]
(2) his testimony is material and pertinent to the Senate inquiry in
aid of legislation;[40] (3) the respondent Senate Committees did not
abuse their authority in issuing the Order of arrest of petitioner;[41]
and (4) petitioner did not come to Court with clean hands.[42]
On
March 4, 2008, the Oral Argument was held. Thereafter, the Court
ordered the parties to submit their memoranda. Both parties
submitted their Memoranda on March 17, 2008. On the same day, the
Office of the Solicitor General filed a Motion for Leave to Intervene
and to Admit Attached Memorandum.
In
the Oral Argument held on March 4, 2008, the Court delineated the
following issues to be resolved, viz:
1.
What communications between the President and petitioner Neri are
covered by the principle of executive privilege?[43]
2.
What is the proper procedure to be followed in invoking executive
privilege?
3.
Did the Senate Committees gravely abuse their discretion in ordering
the arrest of petitioner for noncompliance with the subpoena?
A
holistic view of the doctrine of executive privilege will serve as a
hermeneutic scalpel to excise the fat of information that does not fall
within the ambit of the privilege and to preserve only the
confidentiality of the lean meat of information it protects in the
particular setting of the case at bar.
I.
General Policy Considerations on Disclosure and Secrecy in a Democracy:
United
States and Philippine Constitutions
The
doctrine of executive privilege is tension between disclosure and
secrecy in a democracy. Its doctrinal recognition in the
Philippines finds its origin in the U.S. political and legal system and
literature. At the outset, it is worth noting that the provisions
of the U.S. Constitution say little about government secrecy or public
access.[44] In contrast, the 1987 Philippine Constitution
is replete with provisions on government transparency, accountability
and disclosure of information. This is a reaction to our years
under martial rule when the workings of government were veiled in
secrecy.
The
1987 Constitution provides for the right to information in Article III,
Sec. 7, viz:
The
right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy development,
shall be afforded the citizen, subject to such limitations as may be
provided by law. (emphasis supplied)
Symmetrical
to this right, the 1987 Constitution enshrines the policy of the State
on information and disclosure in its opening Declaration of Principles
and Policies in Article II, viz:
Sec.
24. The State recognizes the vital role of communication and
information in nation-building. (emphasis supplied).
Sec.
28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest. (emphasis supplied)
A
complementary provision is Section 1 of Article XI on the
Accountability of Public Officers, which states, viz:
Sec.1.
Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism
and justice, and lead modest lives. (emphasis supplied)
A
more specific provision on availability of information is found in
Section 21 of Article XI, National Economy and Patrimony, which states,
viz:
Sec.
21. Foreign loans may be incurred in accordance with law and the
regulation of the monetary authority. Information on foreign laws
obtained or guaranteed by the Government shall be made available to the
public. (emphasis supplied)
In
the concluding articles of the 1987 Constitution, information is again
given importance in Article XVI, General Provisions, which states, viz:
Sec.
10. The State shall provide the policy environment for the full
development of Filipino capability and the emergence of communication
structures suitable to the needs and aspirations of the nation and the
balanced flow of information into, out of, and across the country, in
accordance with a policy that respects the freedom of speech and of the
press. (emphasis supplied)
A
government’s democratic legitimacy rests on the people’s information on
government plans and progress on its initiatives, revenue and spending,
among others, for that will allow the people to vote, speak, and
organize around political causes meaningfully.[45] As
Thomas Jefferson said, “if a nation expects to be ignorant and free in
a state of civilization, it expects what never was and will never
be.”[46]
II.Our
Government Operates under the Principle of Separation of Powers
The
1987 Constitution separates governmental power among the legislative,
executive and judicial branches to avert tyranny by “safeguard(ding)
against the encroachment or aggrandizement of one branch at the expense
of the other.”[47] However, the principle of separation of powers
recognized that a “hermetic sealing off of the three branches of
Government from one another would preclude the establishment of a
Nation capable of governing itself effectively”; hence, the separation
of powers between the branches is not absolute.[48]
Our
Constitution contemplates that practice will integrate the dispersed
powers into a workable government. It enjoins upon its branches
separateness but interdependence, and autonomy but
reciprocity.[49] Well said, the boundaries established by the
Constitution delineating the powers of the three branches must be
fashioned “according to common sense and the.necessities of
governmental co-ordination.”[50] This constitutional design
requires an internal balancing mechanism by which government powers
cannot be abused.[51] We married all these ideas when we decided
the 1936 case Angara v. Electoral Commission,[52] viz:
Each
department of the government has exclusive cognizance of the matters
within its jurisdiction, and is supreme within its own sphere.
But it does not follow from the fact that the three powers are to be
kept separate and distinct that the Constitution intended them to be
absolutely restrained and independent of each other. The
Constitution has provided for an elaborate system of checks and
balances to secure coordination in the workings of the various
departments of the government.[53] (emphasis supplied)
A.A
Look at the Power of Legislative Investigation and Contempt of Witness
Patterned
after the U.S. Constitution, the Philippine Constitution structures the
government in a manner whereby its three separate branches --
executive, legislative and judicial -- are able to provide a system of
checks and balances. The responsibility to govern is vested
in the executive, but the legislature has a long-established power to
inquire into administrative conduct and the exercise of administrative
discretion under the acts of the legislature, and to ascertain
compliance with legislative intent.[54]
This
power of congressional oversight embraces all activities undertaken by
Congress to enhance its understanding of and influence over
implementation of legislation it has enacted. Oversight may be
undertaken through review or investigation of executive branch
action.[55] One device of the legislature to review, influence
and direct administration by the executive is legislation and the
corollary power of investigation.[56] The standard justification
for an investigation is the presumed need for new or remedial
legislation; hence, investigations ought to be made in aid of
legislation.[57]
The
legislative power of investigation was recognized under the 1935
Constitution, although it did not explicitly provide for it. This
power had its maiden appearance in the 1973 Constitution[58] and was
carried into the 1987 Constitution in Article VI, Section 21, viz:
Sec.
21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights
of persons appearing in or affected by such inquiries shall be
respected.
Included
in the legislative power of investigation is the power of contempt or
process to enforce. Although the power of contempt is not
explicitly mentioned in the provision, this power has long been
recognized. In the 1950 landmark case Arnault v. Nazareno,[59]
the Court held, viz:
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)[60] (emphasis
supplied)
There
are two requirements for the valid exercise of the legislative power of
investigation and contempt of witness for contumacy: first, the
existence of a legislative purpose, i.e., the inquiry must be in aid of
legislation, and second, the pertinency of the question propounded.
First,
the legislative purpose. In the 1957 case Watkins v. United
States,[61] the U.S. Supreme Court held that the power to investigate
encompasses everything that concerns the administration of existing
laws, as well as proposed or possibly needed statutes.[62] It
further held that the improper motives of members of congressional
investigating committees will not vitiate an investigation instituted
by a House of Congress, if that assembly’s legislative purpose is being
served by the work of the committee.[63] Two years later, the
U.S. High Court held in Barenblatt v. United States[64] that the power
is not unlimited, as Congress may only investigate those areas in which
it may potentially legislate or appropriate. It cannot inquire
into matters that are within the exclusive province of one of the other
branches of government. The U.S. High Court ruled that the
judiciary has no authority to intervene on the basis of motives that
spurred the exercise of that power, even if it was exercised purely for
the purpose of exposure, so long as Congress acts in pursuance of its
constitutional power of investigation.
In
the seminal case of Arnault, this Court held that the subject inquiry
had a legislative purpose. In that case, the Senate passed
Resolution No. 8, creating a special committee to investigate the
Buenavista and the Tambobong Estates Deal in which the government was
allegedly defrauded of PhP 5 million. Jean Arnault was among the
witnesses examined by the committee. Arnault refused to answer a
question, which he claimed was “self-incriminatory,” prompting the
Senate to cite him for contempt. He was committed to the custody
of the Sergeant-at-Arms and imprisoned. He sought redress before
this Court on a petition for habeas corpus, contending that the Senate
had no power to punish him for contempt; the information sought to be
obtained by the Senate was not pertinent to the investigation and would
not serve any intended legislation, and the answer required of him was
incriminatory.
The
Court upheld the jurisdiction of the Senate to investigate the
Buenavista and Tambobong Estates Deal through the Special Committee it
created under Senate Resolution No. 8. The Resolution read in
relevant part, viz:
RESOLUTION
CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA AND THE
TAMBOBONG ESTATES DEAL.
xxx
xxx xxx
RESOLVED,
That a Special Committee, be, as it hereby is, created, composed of
five members to be appointed by the President of the Senate to
investigate the Buenavista and Tambobong Estates deal. It shall
be the duty of the said Committee to determine whether the said
purchase was honest, valid, and proper and whether the price involved
in the deal was fair and just, the parties responsible therefor, and
any other facts the Committee may deem proper in the premises…(emphasis
supplied)
The
subject matter to be investigated was clearly stated in the Resolution,
and the Court “entertain(ed) no doubt as to the Senate’s authority to
do so and as to the validity of Resolution No. 8”[65] for the following
reasons, viz:
…The
transaction involved a questionable and allegedly unnecessary and
irregular expenditure of no less than P5,000,000 of public funds, of
which Congress is the constitutional guardian. It also involved
government agencies created by Congress and officers whose positions it
is within the power of Congress to regulate or even abolish. As a
result of the yet uncompleted investigation, the investigating
committee has recommended and the Senate has approved three bills (1)
prohibiting the Secretary of Justice or any other department head from
discharging functions and exercising powers other than those attached
to his own office, without previous congressional authorization; (2)
prohibiting brothers and near relatives of any President of the
Philippines from intervening directly or indirectly and in whatever
capacity in transactions in which the Government is a party, more
particularly where the decision lies in the hands of executive or
administrative officers who are appointees of the President; and (3)
providing that purchases of the Rural Progress Administration of big
landed estates at a price of P100,000.00 or more, and loans guaranteed
by the Government involving P100,000.00 or more, shall not become
effective without previous congressional confirmation.[66] (emphasis
supplied)
There
is, thus, legislative purpose when the subject matter of the inquiry is
one over which the legislature can legislate, such as the appropriation
of public funds; and the creation, regulation and abolition of
government agencies and positions. It is presumed that the facts
are sought by inquiry, because the “legislative body cannot legislate
wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change.” [67]
(emphasis supplied) The Court noted that the investigation gave
rise to several bills recommended by the Special Committee and approved
by the Senate.
In
sum, under the first requirement for validity of a legislative
investigation and contempt of witness therein, the dual requirements of
authority are that the power exercised by the committee must be both
within the authority delegated to it and within the competence of
Congress to confer upon the committee.[68]
Second,
the pertinency of the question propounded. The test of pertinency
is whether a question itself is in the ultimate area of investigation;
a question is pertinent also if it is “a usual and necessary stone in
the arch of a bridge over which an investigation must go.”[69] In
determining pertinency, the court looks to the history of the inquiry
as disclosed by the record.[70] Arnault states the rule on
pertinency, viz:
Once
an inquiry is admitted or established to be within the jurisdiction of
a legislative body to make, we think the investigating committee has
the power to require a witness to answer any question pertinent to that
inquiry, subject of course to his constitutional right against
self-incrimination. The inquiry, to be within the jurisdiction of
the legislative body to make, must be material or necessary to the
exercise of a power in it vested by the Constitution, such as to
legislate, or to expel a Member; and every question which the
investigator is empowered to coerce a witness to answer must be
material or pertinent to the subject matter of the inquiry or
investigation. So a witness may not be coerced to answer a
question that obviously has no relation to the subject of the
inquiry. But from this it does not follow that every question
that may be propounded to a witness be material to any proposed or
possible legislation. In other words, the materiality of the
question must be determined by its direct relation to the subject of
the inquiry and not by its indirect relation to any proposed or
possible legislation. The reason is, that the necessity or lack
of necessity for legislative action and the form and character of the
action itself are determined by the sum total of the information to be
gathered as a result of the investigation, and not by a fraction of
such information elicited from a single question.[71] (emphasis
supplied)
The
Court found that the question propounded to Arnault was not immaterial
to the investigation or self-incriminatory; thus, the petition for
habeas corpus was dismissed.
B.
A Look at Executive privilege
1.
Definition and judicial use of the term
“Executive
privilege” has been defined as the right of the President and
high-level executive branch officials to withhold information from
Congress, the courts, and the public.[72] Executive privilege is a
direct descendant of the constitutionally designed separation of powers
among the legislative, executive and judicial branches of government.
The
U.S. Constitution (and the Philippine Constitution) does not directly
mention “executive privilege,” but commentators theorized that the
privilege of confidentiality is constitutionally based, as it relates
to the President’s effective discharge of executive powers.[73]
The Founders of the American nation acknowledged an implied
constitutional prerogative of Presidential secrecy, a power they
believed was at times necessary and proper.
The
term “executive privilege” is but half a century old, having first
appeared in the 1958 case Kaiser Aluminum & Chemical Co. v. United
States,[74] in which Justice Reed, sitting on the U.S. Court of Claims,
wrote: “The power must lie in the courts to determine Executive
Privilege in litigation.... (T)he privilege for intra-departmental
advice would very rarely have the importance of diplomacy or
security”.[75] (emphasis supplied)
The
U.S. Supreme Court’s recognition of executive privilege is even more
recent, having entered the annals of the High Court only in the 1974
landmark case U.S. v. Nixon.[76]
But
as aforestated, executive privilege has been practised since the
founding of the American nation. To better grasp the issue
presented in the case at bar, we revisit the history of executive
privilege in the U.S. political and legal landscape, to which we trace
the concept of executive privilege in our jurisdiction. Next, an
exposition of the scope, kinds and context for invocation of executive
privilege will also be undertaken to delineate the parameters of the
executive privilege at issue in the case at bar.
2.
History and use
As
the first U.S. President, George Washington established time-honored
principles that have since molded the doctrine of executive
privilege. He was well aware of the crucial role he played in
setting precedents, as evinced by a letter he wrote on May 5, 1789 to
James Madison, viz: “As the first of every thing in our situation will
serve to establish a precedent, it is devoutly wished on my part that
these precedents may be fixed on true principles.”[77]
Though
not yet then denominated “executive privilege,” President Washington in
1792 originally claimed authority to withhold information from the
Congressional committee investigation of a military expedition headed
by General Arthur St. Clair against native Americans. The committee
requested papers and records from the executive to assist it in its
investigation.[78] After conferring with his cabinet, President
Washington decided that disclosure was in the public interest but, as
Secretary of State Jefferson explained, the President was inclined to
withhold papers that would injure the public.
In
1794, in response this time to a Senate request, Washington allowed the
Senate to examine some parts of, but withheld certain information in
relation to correspondence between the French government and the
American minister thereto, and between the minister and Secretary of
State Randolph, because the information could prove damaging to the
public interest. The Senate did not challenge his action.[79]
Thus,
Washington established a historical precedent for executive privilege
that is firmly rooted in two theories: first, a separation of powers
theory that certain presidential communications should be free from
compulsion by other branches; and second, a structural argument that
secrecy is important to the President’s constitutional duties in
conducting state and foreign affairs.[80] Washington established
that he had the right to withhold information if disclosure would
injure the public, but he had no right to withhold embarrassing or
politically damaging information.[81]
President
Thomas Jefferson came next. He also staunchly defended executive
secrecy. In the 1807 case U.S. v. Burr,[82] Jefferson was ordered
by the court to comply with a subpoena duces tecum for a letter
concerning Vice President Aaron Burr who was on trial for treason
arising from a secessionist conspiracy. The court reasoned that
what was involved was a capital case involving important rights; that
producing the letter advanced the cause of justice, which Jefferson as
Chief Executive had a duty to seek; that the letter contained no state
secrets; and that even if state secrets were involved, in camera review
would be undertaken. Thus, as early as 1807, the Burr case
established the doctrine that the President's authority to withhold
information is not absolute, the President is amenable to compulsory
process, and the interests in secrecy must be weighed against the
interests in disclosure.[83]
Despite
the Burr case, the mid-nineteenth century U.S. Presidents exercised the
power of secrecy without much hesitation. The trend grew among
chief executives, following President Washington’s lead, to withhold
information either because a particular request would have given
another branch the authority to exercise a constitutional power
reserved solely to the President or because the request would interfere
with the President’s own exercise of such a power.[84] In the
early life of the nation, the legislature generally accepted the
secrecy privilege, as the Framers of the Constitution attempted to put
into practice the principles they had created.[85]
The
trend continued among U.S. Presidents of the early to the mid-twentieth
century. Despite Congress’ aggressive attempts to assert
its own constitutional investigative and oversight prerogatives, the
twentieth century Presidents protected their own prerogatives with
almost no interference from the judiciary, often forcing a quick
congressional retreat.[86]
The
latter half of the twentieth century gave birth to the term “executive
privilege” under President Dwight Eisenhower. At this time, the
judiciary’s efforts to define and delimit the privilege were more
aggressive, and there were less of the absolute assertions of the
privilege that were typical of previous Presidents.
The
administration of President Richard Nixon produced the most significant
developments in executive privilege. Although his administration
initially professed an “open” presidency in which information would
flow freely from the executive to Congress to the public, executive
privilege during this period was invoked not for the protection of
national security interests, foreign policy decision-making or military
secrets as in the past, but rather to keep under wraps politically
damaging and personally embarrassing information.[87] President
Nixon’s resignation was precipitated by the landmark case on executive
privilege, U.S. v. Nixon.[88] In view of its importance to
the case at bar, its depth discussion will be made in the subsequent
sections.
Executive
privilege was asserted commonly during the Ford, Carter, Reagan and
Bush Administrations, but its use had only a marginal impact on
constitutional law.[89] The administration of William or Bill Clinton
again catapulted executive privilege to the limelight. As noted
by a commentator, “President Clinton’s frequent, unprincipled use of
the executive privilege for self-protection rather than the protection
of constitutional prerogatives of the presidency or governmental
process ultimately weakened a power historically viewed with reverence
and deference by the judicial and legislative branch.”[90] The latest
trend has become for Presidents to assert executive privilege, retreat
the claim and agree to disclose information under political
pressure.[91]
The
history of executive privilege shows that the privilege is strongest
when used not out of a personal desire to avoid culpability, but based
on a legitimate need to protect the President’s constitutional mandate
to execute the law, to uphold prudential separation of powers, and
above all, to promote the public interest. Under these
circumstances, both the Congress and the judiciary have afforded most
respect to the President’s prerogatives.[92]
3.
Scope, kinds and context of executive privilege
With
the wealth of literature on government privileges in the U.S., scholars
have not reached a consensus on the number of these privileges or the
proper nomenclature to apply to them.[93] Governmental privileges
are loosely lumped under the heading “executive privilege.”[94]
The
occasions in which information requests trigger the invocation of
executive privilege vary. The request may come from Congress or
via a criminal or civil case in court. In a criminal case, the
request may come from the accused. The request may also come from
a party to a civil case between private parties or to a civil case by
or against the government. The proceeding may or may not be for
the investigation of alleged wrongdoing in the executive branch.[95]
In
the U.S., at least four kinds of executive privilege can be identified
in criminal and civil litigation and the legislative inquiry context:
(1) military and state secrets, (2) presidential communications, (3)
deliberative process, and (4) law enforcement privileges.[96]
First,
military and state secrets. The state secrets privilege “is a
common law evidentiary rule” that allows the government to protect
“information from discovery when disclosure would be inimical to
national security”[97] or result in “impairment of the nation’s defense
capabilities, disclosure of intelligence-gathering methods or
capabilities, and disruption of diplomatic relations with foreign
governments.”[98] To properly invoke the privilege, “(t)here must
be a formal claim of privilege, lodged by the head of the
department[99] having control over the matter, after actual personal
consideration by that officer.”[100] A court confronted
with an assertion of the state secrets privilege must find “that there
is a reasonable danger that disclosure of the particular facts.will jeopardize national security.”[101]
Second,
Presidential communications privilege. The U.S. Supreme Court
recognized in U.S. v. Nixon that there is “a presumptive privilege for
Presidential communications” based on the “President’s generalized
interest in confidentiality.” This ruling was made in the context
of a criminal case. The Presidential communications privilege was
also recognized in a civil proceeding, Nixon v. Administrator of
General Services.[102]
Third,
deliberative process. Of the various kinds of executive
privilege, the deliberative process privilege is the most frequently
litigated in the United States. It entered the portals of the
federal courts in the 1958 case Kaiser Aluminum & Chem. Corp.
The privilege “rests most fundamentally on the belief that were
agencies forced to operate in a fishbowl, frank exchange of ideas and
opinions would cease and the quality of administrative decisions would
consequently suffer.”[103]
Of
common law origin, the deliberative process privilege allows the
government to withhold documents and other materials that would reveal
“advisory opinions, recommendations and deliberations comprising part
of a process by which governmental decisions and policies are
formulated.”[104] Courts have identified three purposes in
support of the privilege: (1) it protects candid discussions within an
agency; (2) it prevents public confusion from premature disclosure of
agency opinions before the agency establishes final policy; and (3) it
protects the integrity of an agency's decision; the public should not
judge officials based on information they considered prior to issuing
their final decisions.[105] For the privilege to be validly
asserted, the material must be pre-decisional and deliberative.[106]
Fourth,
law enforcement privilege. The law enforcement privilege
protects against the disclosure of confidential sources and law
enforcement techniques, safeguards the privacy of those involved in a
criminal investigation, and otherwise prevents interference with a
criminal investigation.[107]
We
now focus on Presidential communications privilege and Philippine
jurisprudence.
III.
Presidential Communications Privilege and Philippine Jurisprudence
As
enunciated in Senate v. Ermita, a claim of executive privilege may be
valid or not depending on the ground invoked to justify it and the
context in which it is made. The ground involved in the
case at bar, as stated in the letter of Secretary Ermita, is
Presidential communications privilege on information that “might impair
our diplomatic as well as economic relations with the People’s Republic
of China.” This particular issue is one of first impression in
our jurisdiction. Adjudication on executive privilege in the
Philippines is still in its infancy stage, with the Court having had
only a few occasions to resolve cases that directly deal with the
privilege.
The
1995 case Almonte v. Vasquez[108] involved an investigation by the
Office of the Ombudsman of petitioner Jose T. Almonte, who was the
former Commissioner of the Economic Intelligence and Investigation
Bureau (EIIB) and Villamor C. Perez, Chief of the EIIB's Budget and
Fiscal Management Division. An anonymous letter from a purported
employee of the bureau and a concerned citizen, alleging that funds
representing savings from unfilled positions in the EIIB had been
illegally disbursed, gave rise to the investigation. The
Ombudsman required the Bureau to produce all documents relating to
Personal Services Funds for the year 1988; and all evidence, such as
vouchers (salary) for the whole plantilla of EIIB for 1988.
Petitioners refused to comply.
The
Court recognized a government privilege against disclosure with respect
to state secrets bearing on military, diplomatic and similar
matters. Citing U.S. v. Nixon, the Court acknowledged that the
necessity to protect public interest in candid, objective and even
blunt or harsh opinions in Presidential decision-making justified a
presumptive privilege of Presidential communications. It also
recognized that the “privilege is fundamental to the operation of the
government and inextricably rooted in the separation of powers under
the Constitution,” as held by the U.S. Supreme Court in U.S. v.
Nixon. The Court found, however, that no military or
diplomatic secrets would be disclosed by the production of records
pertaining to the personnel of the EIIB. Nor was there any law
making personnel records of the EIIB classified. Thus, the
Court concluded that the Ombudsman’s need for the documents outweighed
the claim of confidentiality of petitioners.
While
the Court alluded to U.S. v. Nixon and made pronouncements with respect
to Presidential communications, a closer examination of the facts of
Almonte would reveal that the requested information did not refer to
Presidential communications, but to alleged confidential government
documents. Likewise, U.S. v. Nixon specifically confined its
ruling to criminal proceedings, but Almonte was about a prosecutorial
investigation involving public interests and constitutional values
different from a criminal proceeding.
The
1998 case Chavez v. PCGG[109] concerned a civil litigation. The
question posed before the Court was whether the government, through the
Presidential Commission on Good Government (PCGG), could be required to
reveal the proposed terms of a compromise agreement with the Marcos
heirs as regards their alleged ill-gotten wealth. The
petitioner, a concerned citizen and taxpayer, sought to compel
respondents to make public all negotiations and agreement, be they
ongoing or perfected, and all documents related to the negotiations and
agreement between the PCGG and the Marcos heirs.
The
Court ruled in favor of petitioner. It acknowledged petitioner’s
right to information under the Bill of Rights of the 1987 Constitution,
but citing Almonte, also recognized restrictions on the exercise of
this right, viz: national security matters; trade secrets and banking
transactions; criminal/law enforcement matters; other confidential or
classified information officially known to public officials by reason
of their office and not made available to the public; diplomatic
correspondence; closed-door Cabinet meetings and executive sessions of
either house of Congress; as well as the internal deliberations of the
Supreme Court.
On
the issue whether petitioner could access the settlement documents, the
Court ruled that it was incumbent upon the PCGG and its officers, as
well as other government representatives, to disclose sufficient public
information on any proposed settlement they had decided to take up with
the ostensible owners and holders of ill-gotten wealth. Such
information, however, must pertain to definite propositions of the
government, not necessarily to intra-agency or inter-agency
recommendations or communications during the “exploratory” stage.
At the same time, the Court noted the need to observe the same
restrictions on disclosure of information in general, such as on
matters involving national security, diplomatic or foreign relations,
intelligence and other classified information.
Again,
it is stressed that the information involved in Chavez did not fall
under the category of Presidential communications.
More
recently, this Court decided the 2006 case Senate of the Philippines v.
Ermita.[110] At issue in this case was the constitutionality of
Executive Order (EO) No. 464, “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.” The presidential issuance was handed down at a time
when the Philippine Senate was conducting investigations on the alleged
overpricing of the North Rail Project; and the alleged fraud in the
2004 national elections, exposed through the much-publicized taped
conversation allegedly between President Gloria Macapagal-Arroyo and
Commission on Elections Commissioner Virgilio Garcillano.
EO
No. 464 required heads of the executive departments of government and
other government officials and officers of the Armed Forces of the
Philippines and the Philippine National Police to secure prior consent
from the President before appearing in Congressional inquiries.
Citing the Almonte case, the issuance emphasized that the rule on
confidentiality based on executive privilege was necessary for the
operation of government and rooted in the separation of powers.
Alluding to both the Almonte and Chavez cases, the issuance enumerated
the kinds of information covered by executive privilege, viz: (1)
conversations and correspondence between the President and the public
official covered by the executive order; (2) military, diplomatic and
other national security matters which in the interest of national
security should not be divulged; (3) information between
inter-government agencies prior to the conclusion of treaties and
executive agreements; (4) discussion in closed-door Cabinet meetings;
and (5) matters affecting national security and public order.
Relying
on EO No. 464, various government officials did not appear in the
hearings of the Senate on the North Rail Project and the alleged fraud
in the 2004 elections, prompting various cause-oriented groups to file
suits in the Supreme Court to seek the declaration of the
unconstitutionality of EO No. 464.
The
Court upheld the doctrine of executive privilege but found the
Presidential issuance partly infirm, specifically Sections 2(b) and 3
which required government officials below the heads of executive
departments to secure consent from the President before appearing in
congressional hearings and investigations. The Court acknowledged
that Congress has the right to obtain information from the executive
branch whenever it is sought in aid of legislation. Thus, if the
executive branch withholds such information because it is privileged,
it must so assert it and state the reason therefor and why it must be
respected.
In
this case, the Court again alluded to U.S. v. Nixon and also recognized
that Presidential communications fall under the mantle of protection of
executive privilege in the setting of a legislative inquiry. But
since the issue for resolution was the constitutionality of EO No. 464
and not whether an actual Presidential communication was covered by the
privilege, the Court did not have occasion to rule on the same.
Prescinding
from these premises, we now discuss the test and procedure to determine
the validity of the invocation of executive privilege covering
Presidential communications in a legislative inquiry.
IV.
Test and Procedure to Determine the Validity of the Invocation of
Executive Privilege Covering Presidential Communications in a
Legislative Inquiry
In
U.S. v. Nixon, the leading U.S. case on executive privilege, the U.S.
Supreme Court emphasized that its ruling addressed “only the conflict
between the President's assertion of a generalized privilege of
confidentiality and the constitutional need for relevant evidence in
criminal trials”[111] and that the case was not concerned with the
balance “between the President's generalized interest in
confidentiality…and congressional demands for information.”[112]
Nonetheless, the Court laid down principles and procedures that can
serve as torch lights to illumine us on the scope and use of
Presidential communication privilege in the case at bar. Hence,
it is appropriate to examine at length U.S. v. Nixon.
A.U.S.
v. Nixon
1.
Background Proceedings
U.S.
v. Nixon[113] came about because of a break-in at the Democratic
National Committee (DNC) headquarters in the Watergate Hotel. In
the early morning of June 17, 1972, about four and a half months before
the U.S. Presidential election, police discovered five men inside the
DNC offices carrying electronic equipment, cameras, and large sums of
cash. These men were operating as part of a larger intelligence
gathering plan of the Committee to Re-elect the President, President
Richard Nixon’s campaign organization for the 1972 election.
Their mission was to fix a defective bugging device which had been
placed a month before on the telephone of the DNC chairperson.
Their orders came from the higher officials of the CRP.[114]
A
grand jury[115] was empanelled to investigate the incident. On
July 23, 1973, Watergate Special Prosecutor Archibald Cox,[116] acting
on behalf of the June 1972 grand jury, caused to be issued a subpoena
duces tecum to President Nixon in the case In re Grand Jury Subpoena
Duces Tecum Issued to Richard M. Nixon, or any Subordinate Officer,
Official, or Employee with Custody or Control of Certain Documents or
Objects[117] in the District Court of the District of Columbia with
Honorable John J. Sirica as District Judge. The subpoena required
President Nixon to produce for the grand jury certain tape recordings
and documents enumerated in an attached schedule.
President
Nixon partially complied with the subpoena, but otherwise declined to
follow its directives. In a letter to the Court that issued the
subpoena, the President advised that the tape recordings sought would
not be provided, as he asserted that the President is not subject to
the compulsory process of the courts.[118] The Court ordered the
President or any appropriate subordinate official to show cause “why
the documents and objects described in [the subpoena] should not be
produced as evidence before the grand jury.”
After
the filing of briefs and arguments, the Court resolved two questions:
(1) whether it had jurisdiction to decide the issue of privilege, and
(2) whether it had authority to enforce the subpoena duces tecum by way
of an order requiring production for inspection in camera. The Court
answered both questions in the affirmative.[119]
President
Nixon appealed the order commanding him to produce documents or objects
identified in the subpoena for the court’s in camera inspection.
This appeal in the Court of Appeals of the District of Columbia Circuit
was the subject of Nixon v. Sirica.[120] The central issue addressed by
the D.C. Court of Appeals was whether the President may, in his sole
discretion, withhold from a grand jury evidence in his possession that
is relevant to the grand jury's investigations.[121] It overruled
the President’s invocation of executive privilege covering Presidential
communications and upheld the order of the District Court ordering
President Nixon to produce the materials for in camera inspection
subject to the procedure it outlined in the case. President Nixon
did not appeal the Court’s ruling.
As
a result of the investigation of the grand jury, a criminal case was
filed against John N. Mitchell, former Attorney General of the U.S. and
later head of the Committee to Re-elect the President, and other former
government officials and presidential campaign officials in U.S. v.
Mitchell[122] in the District Court of the District of Columbia.
In that case, the Special Prosecutor filed a motion for a subpoena
duces tecum for the production before trial of certain tapes and
documents relating to precisely identified conversations and meetings
of President Nixon. The President, claiming executive privilege,
moved to quash the subpoena. The District Court, after treating
the subpoenaed material as presumptively privileged, concluded that the
Special Prosecutor had made a sufficient showing to rebut the
presumption and that the requirements for a subpoena had been
satisfied. The Court then issued an order for an in camera
examination of the subpoenaed material. The Special Prosecutor
filed in the U.S. Supreme Court a petition for a writ of certiorari
which upheld the order of the District Court in the well-known case
U.S. v. Nixon.[123]
2.
Rationale of Presidential Communications Privilege
For
the first time in 1974, the U.S. Supreme Court recognized the
Presidential communications privilege and the qualified presumption in
its favor in U.S. v. Nixon. The decision cited two reasons for
the privilege and the qualified presumption: (1) the “necessity for
protection of the public interest in candid, objective, and even blunt
or harsh opinions in Presidential decision-making”[124] and (2)
it “… is fundamental to the operation of Government and inextricably
rooted in the separation of powers under the Constitution.”[125]
a.Public
Interest in Candor or Candid Opinions in Presidential Decision-making
In
support of the first reason, the Nixon Court held that “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.[126]
The
Nixon Court pointed to two bases of this need for
confidentiality. The first is common sense and experience.
In the words of the Court, “the importance of this confidentiality is
too plain to require further discussion. Human experience teaches
that those who expect public dissemination of their remarks may well
temper candor with a concern for appearances and for their own
interests to the detriment of the decision-making process.”[127]
The
second is the supremacy of each branch in its own sphere of duties
under the Constitution and the privileges flowing from these
duties. Explained the Court, viz: “Whatever the nature of
the privilege of confidentiality of Presidential communications in the
exercise of Art. II (presidential) powers, the privilege can be said to
derive from the supremacy of each branch within its own assigned area
of constitutional duties. Certain powers and privileges flow from
the nature of enumerated powers; the protection of the confidentiality
of Presidential communications has similar constitutional
underpinnings.”[128] In this case, the Special Prosecutor seeking
access to the tape recordings of conversations of the President argued
that the U.S. Constitution does not provide for privilege as to the
President’s communications corresponding to the privilege of Members of
Congress under the Speech and Debate Clause. But the Nixon Court
disposed of the argument, viz: “(T)he silence of the Constitution on
this score is not dispositive. ‘The rule of constitutional
interpretation announced in McCulloch v. Maryland, 4 Wheat. 316, 4
L.Ed. 579, that that which was reasonably appropriate and relevant to
the exercise of a granted power was to be considered as accompanying
the grant, has been so universally applied that it suffices merely to
state it.’”[129]
b. Separation
of Powers
The
Nixon Court used separation of powers as the second ground why
presidential communications enjoy a privilege and qualified
presumption. It explained that while the Constitution divides
power among the three coequal branches of government and affords
independence to each branch in its own sphere, it does not intend these
powers to be exercised with absolute independence. It held,
viz: “In designing the structure of our Government and dividing
and allocating the sovereign power among three coequal branches, the
Framers of the Constitution sought to provide a comprehensive system,
but the separate powers were not intended to operate with absolute
independence. ‘While the Constitution diffuses power the better
to secure liberty, it also contemplates that practice will integrate
the dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity.’”
(emphasis supplied)[130]
Thus,
while the Nixon Court recognized the Presidential communications
privilege based on the independence of the executive branch, it also
considered the effect of the privilege on the effective discharge of
the functions of the judiciary.
3.
Scope of the Presidential Communications Privilege
The
scope of Presidential communications privilege is clear in U.S. v.
Nixon. It covers communications in the “performance of the
President’s responsibilities”[131] “of his office”[132] and made “in
the process of shaping policies and making decisions.”[133] This
scope was affirmed three years later in Nixon v. Administrator of
General Services.[134]
4.
Qualified Presumption in Favor of the Presidential Communications
Privilege
In
U.S. v. Nixon, the High Court alluded to Nixon v. Sirica which held
that Presidential communications are “presumptively privileged” and
noted that this ruling was accepted by both parties in the case before
it.[135] In Nixon v. Sirica, the D.C. Court of Appeals, without
expounding, agreed with the presumptive privilege status afforded to
Presidential communications by its precursor case In re Subpoena for
Nixon in the D.C. District Court.[136] The latter case ushered
the birth of the presumption in the midst of a general disfavor of
government privileges. In In re Subpoena for Nixon, the D.C.
District Court began with the observation that “a search of the
Constitution and the history of its creation reveal a general disfavor
of government privileges…”[137] In deciding whether the Watergate
tapes should be covered by a privilege, the Court acknowledged that it
must accommodate two competing policies: one, “the need to
disfavor privileges and narrow their application as far as possible”;
and two, “the need to favor the privacy of Presidential deliberations”
and “indulge in a presumption in favor of the President.” The
Court tilted the balance in favor of the latter and held that “respect
for the President, the Presidency, and the duties of the office, gives
the advantage to this second policy.”[138] The Court explained
that the need to protect Presidential privacy and the presumption in
favor of that privacy arises from the “paramount need for frank
expression and discussion among the President and those consulted by
him in the making of Presidential decisions.” [139] (emphasis supplied)
5.
Demonstrable Specific Need for Disclosure Will Overcome the Qualified
Presumption
The
Nixon Court held that to overcome the qualified presumption, there must
be “sufficient showing or demonstration of specific need” for the
withheld information on the branch of government seeking its
disclosure. Two standards must be met to show the specific need:
one is evidentiary; the other is constitutional.
a. Evidentiary
Standard of Need
In
U.S. v. Nixon, the High Court first determined whether the subpoena
ordering the disclosure of Presidential communications satisfied the
evidentiary requirements of relevance, admissibility and specificity
under Rule 17(c) of the Federal Rules of Criminal Procedure. Rule
17(c) governs all subpoenas for documents and materials made in
criminal proceedings. In the 1997 In re Sealed Case
(Espy),[140] the D.C. Court of Appeals held that there must also
be a showing that “evidence is not available with due diligence
elsewhere” or that the evidence is particularly and apparently useful
as in that case where an immediate White House advisor was being
investigated for criminal behavior. It explained that the
information covered by Presidential communication privilege should not
be treated as just another specie of information. Presidential
communications are treated with confidentiality to strengthen the
President in the performance of his duty.
b.
Demonstrable Specific Need for Disclosure to be Balanced with the Claim
of Privilege using the Function Impairment Test
The
claim of executive privilege must then be balanced with the specific
need for disclosure of the communications on the part of the other
branch of government. The “function impairment test” was utilized in
making the balance albeit it was not the term used by the Court.
By this test, the Court weighs how the disclosure of the witheld
information would impair the President’s ability to perform his
constitutional duties more than nondisclosure would impair the other
branch’s ability to perform its constitutional functions.
It proceeded as follows:
First,
it assessed how significant the adverse effect of
disclosure is on the performance of the functions of the
President. While affording great deference to the President’s
need for complete candor and objectivity from advisers, the Nixon Court
found that the interest in confidentiality of Presidential
communications is not significantly diminished by production of the
subject tape recordings for in camera inspection, with all the
protection that a district court will be obliged to provide in
infrequent occasions of a criminal proceeding. It ruled, viz:
…
The President’s need for complete candor and objectivity from advisers
calls for great deference from the courts. However, when the
privilege depends solely on the broad, undifferentiated claim of public
interest in the confidentiality of such conversations, a confrontation
with other values arises. Absent a claim of need to protect
military, diplomatic, or sensitive national security secrets, we find
it difficult to accept the argument that even the very important
interest in confidentiality of Presidential communications is
significantly diminished by production of such material for in camera
inspection with all the protection that a district court will be
obliged to provide.[141]
xxx xxx xxx
…
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 a criminal
prosecution.[142] (emphasis supplied)
Second,
it considered the ill effect of nondisclosure of the withheld
information on the performance of functions of the judiciary. The
Nixon Court found that an absolute, unqualified privilege would impair
the judiciary’s performance of its constitutional duty to do justice in
criminal prosecutions. In balancing the competing interests of the
executive and the judiciary using the function impairment test, it held:
The
impediment that an absolute, unqualified privilege would place in the
way of the primary constitutional duty of the Judicial Branch to do
justice in criminal prosecutions would plainly conflict with the
function of the courts under Art. III.
xxx xxx xxx
To
read the Art. II powers of the President as providing an absolute
privilege as against a subpoena essential to enforcement of criminal
statutes on no more than a generalized claim of the public interest in
confidentiality of nonmilitary and nondiplomatic discussions would
upset the constitutional balance of ‘a workable government’ and gravely
impair the role of the courts under Art. III.
xxx
xxx xxx
Since
we conclude that the legitimate needs of the judicial process may
outweigh Presidential privilege, it is necessary to resolve those
competing interests in a manner that preserves the essential functions
of each branch.[143]
xxx
xxx xxx
…
this presumptive privilege must be considered in light of our historic
commitment to the rule of law. This is nowhere more profoundly
manifest than in our view that ‘the twofold aim (of criminal justice)
is that guilt shall not escape or innocence suffer.’ Berger v.
United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected
to employ an adversary system of criminal justice in which the parties
contest all issues before a court of law. The need to develop all
relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be defeated if
judgments were to be founded on a partial or speculative presentation
of the facts. The very integrity of the judicial system and
public confidence in the system depend on full disclosure of all the
facts, within the framework of the rules of evidence. To ensure
that justice is done, it is imperative to the function of courts that
compulsory process be available for the production of evidence needed
either by the prosecution or by the defense.[144]
xxx xxx xxx
The
right to the production of all evidence at a criminal trial similarly
has constitutional dimensions. The Sixth Amendment explicitly
confers upon every defendant in a criminal trial the right ‘to be
confronted with the witnesses against him’ and ‘to have compulsory
process for obtaining witnesses in his favor.’ Moreover, the
Fifth Amendment also guarantees that no person shall be deprived of
liberty without due process of law. It is the manifest duty of
the courts to vindicate those guarantees, and to accomplish that it is
essential that all relevant and admissible evidence be produced.
In
this case we must weigh the importance of the general privilege of
confidentiality of Presidential communications in performance of the
President's responsibilities against the inroads of such a privilege on
the fair administration of criminal justice.[145] (emphasis supplied)
xxx
xxx xxx
…
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 cases.
We
conclude that when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the
generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of
criminal justice. The generalized assertion of privilege must
yield to the demonstrated, specific need for evidence in a pending
criminal trial.[146] (emphasis supplied)
Third,
the Court examined the nature or content of the communication sought to
be withheld. It found that the Presidential communications
privilege invoked by President Nixon “depended solely on the
broad, undifferentiated claim of public interest in the
confidentiality”[147] of his conversations. He did not claim the need
to protect military, diplomatic, or sensitive national security
secrets.[148] Held the Court, viz:
…
He (President Nixon) does not place his claim of privilege on the
ground that they are military or diplomatic secrets. As to these
areas of Art. II duties the courts have traditionally shown the utmost
deference to Presidential responsibilities…
In
United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727
(1953), dealing with a claimant's demand for evidence in a Tort Claims
Act case against the Government, the Court said: ‘It may be possible to
satisfy the court, from all the circumstances of the case, that there
is a reasonable danger that compulsion of the evidence will expose
military matters which, in the interest of national security, should
not be divulged. When this is the case, the occasion for the
privilege is appropriate, and the court should not jeopardize the
security which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in chambers.’
Id., at 10.
No
case of the Court, however, has extended this high degree of deference
to a President's generalized interest in confidentiality. Nowhere
in the Constitution, as we have noted earlier, is there any explicit
reference to a privilege of confidentiality, yet to the extent this
interest relates to the effective discharge of a President's powers, it
is constitutionally based.[149] (emphasis supplied)
In
balancing the competing interests of the executive and judicial
branches of government, the Nixon Court emphasized that while
government privileges are necessary, they impede the search for truth
and must not therefore be lightly created or expansively
construed. It held, viz:
The
privileges referred to by the Court are designed to protect weighty and
legitimate competing interests. Thus, the Fifth Amendment to the
Constitution provides that no man ‘shall be compelled in any criminal
case to be a witness against himself.’ And, generally, an
attorney or a priest may not be required to disclose what has been
revealed in professional confidence. These and other interests
are recognized in law by privileges against forced disclosure,
established in the Constitution, by statute, or at common law.
Whatever their origins, these exceptions to the demand for every man's
evidence are not lightly created nor expansively construed, for they
are in derogation of the search for truth.[150]
6.
In Camera Determination of Information to be Disclosed
After
determining that the Special Prosecutor had made a sufficient showing
of a “demonstrable specific need” to overcome the qualified presumption
in favor of the Presidential communications privilege, the High Court
upheld the order of the D.C. District Court in U.S. v. Mitchell that an
in camera examination of the subpoenaed material was warranted.
Its purpose was to determine if there were parts of the subpoenaed
material that were not covered by executive privilege and should
therefore be disclosed or parts that were covered by executive
privilege and must therefore be kept under seal.
The
U.S. Supreme Court acknowledged that in the course of the in camera
inspection, questions may arise on the need to excise parts of the
material that are covered by executive privilege. It afforded the
D.C. District Court the discretion to seek the aid of the Special
Prosecutor and the President’s counsel for in camera consideration of
the validity of the particular excisions, whether on the basis of
relevancy or admissibility, or the content of the material being in the
nature of military or diplomatic secrets.[151]
In
excising materials that are not relevant or not admissible or covered
by executive privilege because of their nature as military or
diplomatic secrets, the High Court emphasized the heavy responsibility
of the D.C. District Court to ensure that these excised parts of the
Presidential communications would be accorded that “high degree of
respect due the President,” considering the “singularly unique role
under Art. II of a President’s communications and activities, related
to the performance of duties under that Article … a President's
communications and activities encompass a vastly wider range of
sensitive material than would be true of any ‘ordinary
individual.’”[152] It was “necessary in the public interest to
afford Presidential confidentiality the greatest protection consistent
with the fair administration of justice.”[153] Thus, the High
Court sternly ordered that until released by the judge to the Special
Prosecutor, no in camera material be revealed to anyone, and that the
excised material be restored to its privileged status and returned
under seal to its lawful custodian.[154]
The
procedure enunciated in U.S. v. Nixon was cited by the Court of Appeals
of the District of Columbia Circuit in the 1997 case In re Sealed Case
(Espy).[155]
B.
Resolving the Case at Bar with the Aid of U.S. v. Nixon and Other Cases
1.
Procedure to Follow When Diplomatic, Military and National Security
Secrets Privilege is Invoked
In
the case at bar, Executive Secretary Ermita’s letter categorically
invokes the Presidential communications privilege and in addition,
raises possible impairment of diplomatic relations with the People’s
Republic of China. Hence, the letter states, viz:
The
context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as well
as economic relations with the People’s Republic of China. Given
the confidential nature in which these information were conveyed to the
President, he (Secretary Neri) cannot provide the Committee any further
details of these conversations, without disclosing the very thing the
privilege is designed to protect.[156] (emphasis supplied)
As
afore-discussed, this Court recognized in Almonte v. Vasquez[157] and
Chavez v. PCGG[158] a governmental privilege against public
disclosure of state secrets covering military, diplomatic and other
national security matters. In U.S. v. Reynolds,[159] the U.S.
Supreme Court laid down the procedure for invoking and assessing the
validity of the invocation of the military secrets privilege, a
privilege based on the nature and content of the information, which can
be analogized to the diplomatic secrets privilege, also a content-based
privilege. In Reynolds, it was held that there must be a formal
claim of privilege lodged by the head of the department that has
control over the matter after actual personal consideration by that
officer. The court must thereafter determine whether the
circumstances are appropriate for the claim of privilege, without
forcing a disclosure of the very thing the privilege is designed to
protect.[160] It was stressed that “(j)udicial control over the
evidence in a case cannot be abdicated to the caprice of executive
officers…”[161] It is possible for these officers “to satisfy the
court, from all the circumstances of the case, that there is a
reasonable danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be
divulged. When this is the case, the occasion for the privilege
is appropriate, and the court should not jeopardize the security which
the privilege is meant to protect by insisting upon an examination of
the evidence, even by the judge alone, in chambers.”[162]
It was further held that “(i)n each case, the showing of necessity
which is made will determine how far the court should probe in
satisfying itself that the occasion for invoking the privilege is
appropriate.”[163]
Thus,
the facts in Reynolds show that the Secretary of the Air Force filed a
formal “Claim of Privilege” and stated his objection to the production
of the document “for the reason that the aircraft in question, together
with the personnel on board, were engaged in a highly secret mission of
the Air Force.”[164] The Judge Advocate General of the U.S. Air
Force also filed an affidavit, which asserted that the demanded
material could not be furnished “without seriously hampering national
security, flying safety and the development of highly technical and
secret military equipment.”[165] On the record before the trial
court, it appeared that the accident that spawned the case occurred to
a military plane that had gone aloft to test secret electronic
equipment.[166] The Reynolds Court found that on the basis of all the
circumstances of the case before it, there was reasonable danger that
the accident investigation report would contain references to the
secret electronic equipment that was the primary concern of the
mission, which would be exposed if the investigation report for the
accident was disclosed.[167]
In
the case at bar, we cannot assess the validity of the claim of the
Executive Secretary that disclosure of the withheld information may
impair our diplomatic relations with the People’s Republic of
China. There is but a bare assertion in the letter of Executive
Secretary Ermita that 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.” There is absolutely no explanation offered by the
Executive Secretary on how diplomatic secrets will be exposed at the
expense of our national interest if petitioner answers the three
disputed questions propounded by the respondent Senate Committees. In
the Oral Argument on March 4, 2008, petitioner Neri similarly failed to
explain how diplomatic secrets will be compromised if the three
disputed questions are answered by him.[168] Considering this
paucity of explanation, the Court cannot determine whether there is
reasonable danger that petitioner’s answers to the three disputed
questions would reveal privileged diplomatic secrets. The Court
cannot engage in guesswork in resolving this important issue.
Petitioner
Neri also invokes executive privilege on the further ground that his
conversation with the President dealt with national security
matters. On November 29, 2007, petitioner wrote to Senator Alan
Peter S. Cayetano as Chairperson of the Committee on Accountability of
Public Officers and Investigations in reply to the respondent Senate
Committees’ Show Cause Order requiring petitioner to explain why he
should not be cited for contempt for failing to attend the respondent
Senate Committees’ November 20, 2007 hearing. Petitioner attached
to his letter the letter of his lawyer, Atty. Antonio Bautista, also
dated November 29, 2007. In this letter, Atty. Bautista added
other reasons to justify petitioner’s failure to attend the Senate
hearings. He stated that petitioner’s “conversations with the
President dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of the bribery scandal
involving high government officials and the possible loss of confidence
of foreign investors and lenders in the Philippines.”[169] In his
Petition, Neri did not use the term “national security,” but the term
“military affairs,” viz:
Petitioner’s
discussions with the President were candid discussions meant to explore
options in making policy decisions (see Almonte v. Vasquez, 244 SCRA
286 [1995]). These discussions dwelt on the impact of the bribery
scandal involving high Government officials on the country’s diplomatic
relations and economic and military affairs, and the possible loss of
confidence of foreign investors and lenders in the Philippines.[170]
In
Senate v. Ermita, we ruled that only the President or the Executive
Secretary, by order of the President, can invoke executive
privilege. Thus, petitioner, himself or through his counsel,
cannot expand the grounds invoked by the President through Executive
Secretary Ermita in his November 15, 2007 letter to Senator Alan Peter
S. Cayetano. In his letter, Executive Secretary Ermita invoked
only the Presidential communications privilege and, as earlier
explained, suggested a claim of diplomatic secrets privilege. But
even assuming arguendo that petitioner Neri can properly invoke the
privilege covering “national security” and “military affairs,” still,
the records will show that he failed to provide the Court knowledge of
the circumstances with which the Court can determine whether there is
reasonable danger that his answers to the three disputed
questions would indeed divulge secrets that would compromise our
national security.
In
the Oral Argument on March 4, 2008, petitioner’s counsel argued the
basis for invoking executive privilege covering diplomatic, military
and national security secrets, but those are arguments of petitioner’s
counsel and can hardly stand for the “formal claim of privilege lodged
by the head of the department which has control over the matter after
actual personal consideration by that officer” that Reynolds
requires.[171]
Needless
to state, the diplomatic, military or national security privilege
claimed by the petitioner has no leg to stand on.
2.
Applicability of the Presidential Communications Privilege
The
Presidential communications privilege attaches to the office of the
President; it is used after careful consideration in order to uphold
public interest in the confidentiality and effectiveness of
Presidential decision-making to benefit the Office of the
President. It is not to be used to personally benefit the
person occupying the office. In In re Subpoena for Nixon[172]
Chief Judge Sirica emphasized, viz: “… [P]rivacy, in and of
itself, has no merit. Its importance and need of protection arise from
‘the paramount need for frank expression and discussion among the
President and those consulted by him in the making of Presidential
decisions.’”[173] In Kaiser Aluminum & Chemical Corp. v.
United States,[174] in which the term “executive privilege” was first
used, the U.S. Court of Claims emphasized that executive privilege is
granted “for the benefit of the public, not of executives who may
happen to then hold office.”[175] (emphasis supplied)
The
rationale for the Presidential communications privilege is enunciated
in U.S. v. Nixon.[176] As aforestated, it is based on common
sense and on the principle that flows from the enumerated powers of the
President and the doctrine of separation of powers under the
Constitution. This rationale was recognized in both Almonte v. Vasquez
and Senate v. Ermita.
It
is worthy to note that U.S. v. Nixon involved the executive and the
judicial branches of government in the context of a criminal
proceeding. In the case at bar, the branches of government in
conflict and the context of the conflict are different: the conflict is
between the executive versus the legislature in the context of a Senate
investigation in aid of legislation. Be that as it may, the clash
of powers between the executive and the legislature must be resolved in
a manner that will best allow each branch to perform its designed
functions under the Constitution, using the “function impairment
test.” In accord with this test, it is the Court’s task to
balance whether the disclosure of the disputed information impairs the
President’s ability to perform her constitutional duty to execute the
laws more than non-disclosure would impair the respondent Senate
Committees’ ability to perform their constitutional function to enact
laws.
2.
a. Presidential Communications Enjoy a Qualified Presumption in
Their Favor
The
function impairment test begins with a recognition that Presidential
communications are presumptively privileged.
In
their Comment, respondent Senate Committees contend that petitioner has
the burden of overcoming the presumption against executive privilege,
citing Senate v. Ermita, viz:
From
the above discussion on the meaning and scope of executive privilege,
both in the United States and in this jurisdiction, a clear principle
emerges. Executive privilege, whether asserted against Congress, the
courts, or the public, is recognized only in relation to certain types
of information of a sensitive character. While executive privilege is a
constitutional concept, a claim thereof may be valid or not depending
on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are
exempt from the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against
executive secrecy and in favor of disclosure.[177] (emphasis supplied)
A
hard look at Senate v. Ermita ought to yield the conclusion that it
bestowed a qualified presumption in favor of the Presidential
communications privilege. As shown in the previous discussion,
U.S. v. Nixon, as well as the other related Nixon cases Sirica[178] and
Senate Select Committee on Presidential Campaign Activities, et al. v.
Nixon[179] in the D.C. Court of Appeals, as well as subsequent
cases,[180] all recognize that there is a presumptive privilege in
favor of Presidential communications. The Almonte case[181]
quoted U.S. v. Nixon and recognized a presumption in favor of
confidentiality of Presidential communications.
The
statement in Senate v. Ermita that the “extraordinary character of the
exemptions indicates that the presumption inclines heavily against
executive secrecy and in favor of disclosure”[182] must therefore be
read to mean that there is a general disfavor of government privileges
as held in In Re Subpoena for Nixon, especially considering the bias of
the 1987 Philippine Constitution towards full public disclosure and
transparency in government. In fine, Senate v. Ermita recognized
the Presidential communications privilege in U.S. v. Nixon and the
qualified presumptive status that the U.S. High Court gave that
privilege. Thus, respondent Senate Committees’ argument that the
burden is on petitioner to overcome a presumption against executive
privilege cannot be sustained.
2.
b. Next, the Strength of the Qualified Presumption Must be
Determined
Given
the qualified presumption in favor of the confidentiality of
Presidential communications, the Court should proceed to determine the
strength of this presumption as it varies in light of various
factors. Assaying the strength of the presumption is important,
as it is crucial in determining the demonstrable specific need of the
respondent Senate Committees in seeking the disclosure of the
communication in aid of its duty to legislate. The stronger the
presumption, the greater the demonstrable need required to overcome the
presumption; conversely, the weaker the presumption, the less the
demonstrable need required to overcome the presumption.
A
primary factor to consider in determining the strength of the
presumption is to look where the Constitution textually committed the
power in question. U.S. v. Nixon stressed that the Presidential
communications privilege flows from the enumerated powers of the
President. The more concentrated power is in the President, the
greater the need for confidentiality and the stronger the presumption;
contrariwise, the more shared or diffused the power is with other
branches or agencies of government, the weaker the presumption.
For, indisputably, there is less need for confidentiality considering
the likelihood and expectation that the branch or agency of government
sharing the power will need the same information to discharge its
constitutional duty.
In
the case at bar, the subject matter of the respondent Senate
Committees’ inquiry is a foreign loan agreement contracted by the
President with the People’s Republic of China. The power of the
President to contract or guarantee foreign loans is shared with the
Central Bank. Article VII, Section 20 of the 1987 Constitution,
provides, viz:
Sec.
20. The president may contract or guarantee foreign loans on
behalf of the Republic of the Philippines with the prior concurrence of
the Monetary Board, and subject to such limitations as may be provided
by law. The Monetary Board shall, within thirty days from the end
of every quarter of the calendar year, submit to the Congress a
complete report of its decisions on applications for loans to be
contracted or guaranteed by the Government or government-controlled
corporations which would have the effect of increasing the foreign
debt, and containing other matters as may be provided by law. (emphasis
supplied)
In
relation to this provision, the Constitution provides in Article XII,
Section 20 that majority of the members of the Monetary Board (the
Central Bank) shall come from the private sector to maintain its
independence. Article VII, Section 20 is a revision of the
corresponding provision in the 1973 Constitution. The intent of
the revision was explained to the 1986 Constitutional Commission by its
proponent, Commissioner Sumulong, viz:
The
next constitutional change that I would like to bring to the body’s
attention is the power of the President to contract or guarantee
domestic or foreign loans in behalf of the Republic of the
Philippines. We studied this provision as it appears in the 1973
Constitution. In the 1973 Constitution, it is provided that the
President may contract or guarantee domestic or foreign loans in behalf
of the Republic of the Philippines subject to such limitations as may
be provided by law.
In
view of the fact that our foreign debt has amounted to $26 billion – it
may reach up to $36 billion including interests – we studied this
provision in the 1973 Constitution, so that some limitations may be
placed upon this power of the President. We consulted
representatives of the Central Bank and the National Economic
Development Authority on this matter. After studying the matter,
we decided to provide in Section 18 that insofar as the power of the
President to contract or guarantee foreign loans is concerned, it must
receive the prior concurrence of the Monetary Board.
We
placed this limitation because, as everyone knows, the Central Bank is
the custodian of foreign reserves of our country, and so, it is in the
best position to determine whether an application for foreign loan
initiated by the President is within the paying capacity of our country
or not. That is the reason we require prior concurrence of the
Monetary Board insofar as contracting and guaranteeing of foreign loans
are concerned.
We
also provided that the Monetary Board should submit complete quarterly
report of the decisions it has rendered on application for loans to be
contracted or guaranteed by the Republic of the Philippines so that
Congress, after receiving these reports, can study the matter. If
it believes that the borrowing is not justified by the amount of
foreign reserves that we have, it can make the necessary investigation
in aid of legislation, so that if any further legislation is necessary,
it can do so.[183] (emphasis supplied)
There
are other factors to be considered in determining the strength of the
presumption of confidentiality of Presidential communications.
They pertain to the nature of the disclosure sought, namely: (1)
time of disclosure, whether contemporaneous disclosure or open
deliberation, which has a greater chilling effect on rendering candid
opinions, as opposed to subsequent disclosure; (2) level of detail,
whether full texts or whole conversations or summaries; (3) audience,
whether the general public or a select few; (4) certainty of
disclosure, whether the information is made public as a matter of
course or upon request as considered by the U.S. Supreme Court in
Nixon v. Administrator of General Services;[184] (5) frequency of
disclosure as considered by the U.S. Supreme Court in U.S. v. Nixon and
Cheney v. U.S. District Court for the District of Columbia;[185] and
(6) form of disclosure, whether live testimony or recorded conversation
or affidavit. The type of information should also be considered,
whether involving military, diplomatic or national security
secrets.[186]
2.
c. Determining Specific Need of Respondent Senate
Committees for the Withheld Information to Overcome the Qualified
Presumption
1)
The first aspect: evidentiary standard of need
We
have considered the factors determinative of the strength of the
qualified presumption in favor of the Presidential communications
privilege. We now determine whether the Senate has sufficiently
demonstrated its specific need for the information withheld to overcome
the presumption in favor of Presidential communications.
In
U.S. v. Nixon, the “demonstration of a specific need” was preceded by a
showing that the tripartite requirements of Rule 17(c) of the Federal
Rules of Criminal Procedure had been satisfied, namely: relevance,
admissibility and specificity. U.S. v. Nixon, however, involved a
criminal proceeding. The case at bar involves a Senate inquiry
not bound by rules equivalent to Rule 17(c) of the Federal Rules of
Criminal Procedure. Indeed, the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provides in Section 10 that
“technical rules of evidence applicable to judicial proceedings which
do not affect substantive rights need not be observed by the
Committee.”
In
legislative investigations, the requirement is that the question
seeking the withheld information must be pertinent. As held in
Arnault, the following is the rule on pertinency, viz:
Once
an inquiry is admitted or established to be within the jurisdiction of
a legislative body to make, we think the investigating committee has
the power to require a witness to answer any question pertinent to that
inquiry, subject of course to his constitutional right against
self-incrimination. The inquiry, to be within the jurisdiction of
the legislative body to make, must be material or necessary to the
exercise of a power in it vested by the Constitution, such as to
legislate, or to expel a Member; and every question which the
investigator is empowered to coerce a witness to answer must be
material or pertinent to the subject matter of the inquiry or
investigation. So a witness may not be coerced to answer a
question that obviously has no relation to the subject of the
inquiry. But from this it does not follow that every question
that may be propounded to a witness be material to any proposed or
possible legislation. In other words, the materiality of the
question must be determined by its direct relation to the subject of
the inquiry and not by its indirect relation to any proposed or
possible legislation. The reason is, that the necessity or lack
of necessity for legislative action and the form and character of the
action itself are determined by the sum total of the information to be
gathered as a result of the investigation, and not by a fraction of
such information elicited from a single question.[187] (emphasis
supplied)
As
afore-discussed, to establish a “demonstrable specific need,” there
must be a showing that “evidence is not available with due diligence
elsewhere” or that the evidence is particularly and apparently
useful. This requirement of lack of effective substitute is meant
to decrease the frequency of incursions into the confidentiality of
Presidential communications, to enable the President and the
Presidential advisers to communicate in an atmosphere of necessary
confidence while engaged in decision-making. It will also help
the President to focus on an energetic performance of his or her
constitutional duties.[188]
Let
us proceed to apply these standards to the case at bar: pertinence of
the question propounded and lack of effective substitute for the
information sought.
The
first inquiry is the pertinence of the question propounded. The three
questions propounded by the respondent Senate Committees for which
Executive Secretary Ermita, by Order of the President, invoked
executive privilege as stated in his letter dated November 15, 2007,
are:
“a)
Whether the President followed up the (NBN) project?”[189]
“b)
Were you dictated to prioritize the ZTE?”[190]
“c)
Whether the President said to go ahead and approve the project after
being told about the alleged bribe?”[191]
The
context in which these questions were asked is shown in the transcripts
of the Senate hearing on September 26, 2007, viz:
On
the first question -
SEN.
LACSON. So, how did it occur to you, ano ang dating sa inyo noong
naguusap kayo ng NBN project, may ibubulong sa inyo iyong chairman
(Abalos) na kalaro ninyo ng golf, “Sec, may 200 ka rito.” Anong
pumasok sa isip ninyo noon?
MR.
NERI. I was surprised.
SEN.
LACSON. You were shocked, you said.
MR.
NERI. Yeah, I guess, I guess.
SEN.
LACSON. Bakit kayo na-shock?
MR.
NERI. Well, I was 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 ninyo?
MR.
NERI. I said no amount was put, but I guess given the magnitude
of the project, siguro naman hindi P200 or P200,000, 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 it was offered to you?
MR.
NERI. I remember it was over the phone, Your Honor.[192]
xxx xxx xxx
SEN.
PANGILINAN. You mentioned earlier that you mentioned this to the
President. Did the President after that discussion over the
phone, was this ever raised again, the issue of the 200 ka rito?
MR.
NERI. We did not discuss it again, Your Honor.
SEN.
PANGILINAN. With the President? But the issue, of course,
the NBN deal, was raised again? After that, between you and the
President. Pinalow up (followed up) ba niya?
MR.
NERI. May I claim the executive privilege, Your Honor, because I
think this already involves conversations between me and the President,
Your Honor, because this is already confidential in nature.[193]
xxx xxx xxx
MR.
NERI. …Under EO 464, Your Honor, the scope is, number one, state
secrets; number two, informants privilege; number three,
intra-governmental documents reflecting advisory opinions,
recommendations and deliberations. And under Section 2(A) of EO
464, it includes all confidential or classified information between the
President and public officers covered by the EO, such as conversations,
correspondence between the President and the public official and
discussions in closed-door Cabinet meetings.
Section
2(A) was held valid in Senate versus Ermita.[194] (emphasis supplied)
On
the second question –
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
(Amsterdam Holdings, Inc.) 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.[195]
(emphasis supplied)
On
the third question –
SEN.
CAYETANO, (P). …I was told that you testified, that you had mentioned
to her that there was P200 something offer. I guess it wasn’t
clear how many zeroes were attached to the 200. And I don’t know if you
were asked or if you had indicated her response to this. I know
there was something like “Don’t accept.” And can you just for my
information, repeat.
MR.
NERI. She said “Don’t accept it,” Your Honor.
SEN.
CAYETANO, (P). And was there something attached to that
like… “But pursue with a project 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…[196]
The
Senate resolutions, titles of the privilege speeches, and pending bills
that show the legislative purpose of the investigation are:
Senate
resolutions and privilege speeches:
1.
P.S. Res. No. 127: “Resolution Directing the Blue Ribbon Committee and
the Committee on Trade and Industry to Investigate, in Aid of
Legislation, the Circumstances Leading to the Approval of the Broadband
Contract with ZTE and the Role Played by the Officials Concerned in
Getting it Consummated and to Make Recommendations to Hale to the
Courts of Law the Persons Responsible for any Anomaly in Connection
therewith, if any, in the BOT Law and Other Pertinent
Legislations.”[197]
2.
P.S. Res. No. 129: “Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry in Aid of Legislation into
the National Security Implications of Awarding the National Broadband
Network Contract to the Chinese Firm Zhong Xing Telecommunications
Equipment Company Limited (ZTE Corporation) with the End in View of
Providing Remedial Legislation that Will further Protect our National
Sovereignty Security and Territorial Integrity.”[198]
3.
P.S. Res. No. 136: “Resolution Directing the Proper Senate Committee to
Conduct an Inquiry, in Aid of Legislation, on the Legal and Economic
Justification of the National Broadband Network (NBN) Project of the
Government.”[199]
4.
P.S. Res. No. 144: “Resolution Urging President Gloria Macapagal Arroyo
to Direct the Cancellation of the ZTE Contract.”[200]
5.Privilege
Speech of Senator Panfilo M. Lacson, delivered on September 11, 2007,
entitled “Legacy of Corruption.”[201]
6.Privilege
Speech of Senator Miriam Defensor Santiago delivered on November 24,
2007, entitled “International Agreements in Constitutional Law: The
Suspended RP-China (ZTE) Loan Agreement.”[202]
Pending
bills:
1.
Senate Bill 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.”[203]
2.
Senate Bill No. 1794: “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.”[204]
3.
Senate Bill No. 1317: “An Act Mandating Concurrence to International
Agreements and Executive Agreements.”[205]
It
is self-evident that the three assailed questions are pertinent to the
subject matter of the legislative investigation being undertaken by the
respondent Senate Committees. More than the Arnault standards,
the questions to petitioner have direct relation not only to the
subject of the inquiry, but also to the pending bills thereat.
The
three assailed questions seek information on how and why the NBN-ZTE
contract -- an international agreement embodying a foreign loan for the
undertaking of the NBN Project -- was consummated. The three
questions are pertinent to at least three subject matters of the Senate
inquiry: (1) possible anomalies in the consummation of the NBN-ZTE
Contract in relation to the Build-Operate-Transfer Law and other laws
(P.S. Res. No. 127); (2) national security implications of awarding the
NBN Project to ZTE, a foreign-owned corporation (P.S. Res. No. 129);
and (3) legal and economic justification of the NBN Project (P.S. Res.
No. 136).
The
three questions are also pertinent to pending legislation in the
Senate, namely: (1) the subjection of international agreements
involving funds for the procurement of infrastructure projects, goods
and consulting services to Philippine procurement laws (Senate Bill No.
1793);[206] (2) the imposition of safeguards in the contracting of
loans classified under Official Development Assistance (Senate Bill No.
1794);[207] and (3) the concurrence of the Senate in international and
executive agreements (Senate Bill No. 1317).[208]
The
second inquiry relates to whether there is an effective substitute for
the information sought. There is none. The three questions
demand information on how the President herself weighed options[209]
and the factors she considered in concluding the NBN-ZTE
Contract. In particular, the information sought by the first
question - “Whether the President followed up the (NBN) project” -
cannot be effectively substituted as it refers to the importance of the
project to the President herself.[210] This information
relates to the inquiry on the legal and economic justification of the
NBN project (P.S. Res. No. 136).
Similarly,
the second question - “Were you dictated to prioritize the ZTE?” -
seeks information on the factors considered by the President herself in
opting for NBN-ZTE, which involved a foreign loan. Petitioner
testified that the President had initially given him directives that
she preferred a no-loan, no-guarantee unsolicited
Build-Operate-Transfer (BOT) arrangement, which according to
petitioner, was being offered by Amsterdam Holdings, Inc.[211]
The information sought cannot be effectively substituted in the inquiry
on the legal and economic justification of the NBN project (P.S. Res.
No. 136), the inquiry on a possible violation of the BOT Law (P.S. Res.
No. 127); and in the crafting of pending bills, namely, Senate Bill No.
1793 tightening procurement processes and Senate Bill No. 1794 imposing
safeguards on contracting foreign loans.
The
information sought by the third question - “Whether the President said
to go ahead and approve the project after being told about the alleged
bribe?” - cannot be effectively substituted for the same reasons
discussed on both the first and second questions. In fine, all
three disputed questions seek information for which there is no
effective substitute.
In
the Oral Argument held on March 4, 2008, petitioner, through counsel,
argued that in propounding the three questions, respondent Senate
Committees were seeking to establish the culpability of the President
for alleged anomalies attending the consummation of the NBN-ZTE
Contract. Counsel, however, contended that in invoking executive
privilege, the President is not hiding any crime.[212] The short
answer to petitioner’s argument is that the motive of respondent Senate
Committees in conducting their investigation and propounding their
questions is beyond the purview of the Court’s power of judicial
review. So long as the questions are pertinent and there is no
effective substitute for the information sought, the respondent Senate
Committees should be deemed to have hurdled the evidentiary standards
to prove the specific need for the information sought.
In
the 1957 case Watkins v. United States,[213] as afore-discussed, the
U.S. Supreme Court held that the power to investigate encompasses
everything that concerns the administration of existing laws, as well
as proposed or possibly needed statutes.[214] It further ruled
that the improper motives of members of congressional investigating
committees will not vitiate an investigation instituted by a House of
Congress if that assembly’s legislative purpose is being served by the
work of the committee.[215]
2)
The second aspect: balancing the conflicting constitutional functions
of the President and the Senate using the function impairment test
The
second aspect involves a balancing of the constitutional functions
between the contending branches of government, i.e., the President and
the Senate. The court should determine whether disclosure of the
disputed information impairs the President’s ability to perform her
constitutional duties more than disclosure would impair Congress’s
ability to perform its constitutional functions.[216] The balancing
should result in the promotion of the public interest.
First,
we assess whether nondisclosure of the information sought will
seriously impair the performance of the constitutional function of the
Senate to legislate. In their Comment, respondent Senate
Committees assert that “there is an urgent need for remedial
legislation to regulate the obtention (sic) and negotiation of official
development assisted (ODA) projects because these have become rich
source of ‘commissions’ secretly pocketed by high executive officials.”
It
cannot be successfully disputed that the information sought from the
petitioner relative to the NBN Project is essential to the proposed
amendments to the Government Procurement Reform Act and Official
Development Assistance Act to enable Congress to plug the loopholes in
these statutes and prevent financial drain on our
Treasury.[217] Respondent Senate Committees well point out that
Senate Bill No. 1793, Senate Bill No. 1794, and Senate Bill No. 1317
will be crafted on the basis of the information being sought from
petitioner Neri, viz:
Without
the testimony of Petitioner, Respondent Committees are effectively
denied of their right to access to any and all kinds of useful
information and consequently, their right to intelligently craft and
propose laws to remedy what is called “dysfunctional procurement system
of the government.” Respondents are hampered in intelligently
studying and proposing what Congress should include in the proposed
bill to include “executive agreements” for Senate concurrence, which
agreements can be used by the Executive to circumvent the requirement
of public bidding in the existing Government Procurement Reform Act
(R.A. 9184). (emphasis supplied)[218]
In
the Oral Argument held on March 4, 2008, counsel for respondent Senate
Committees bolstered the claim that nondisclosure will seriously impair
the functions of the respondent Senate Committees, viz:
CHIEF
JUSTICE PUNO
Mr.
Counsel, may I go back to the case of U.S. vs. Nixon which used the
functional impairment approach.
ATTY.
AGABIN
Yes,
Your Honor.
CHIEF
JUSTICE PUNO
Is
it not true that using this approach, there is the presumption in favor
of the President’s generalized interest in the confidentiality of his
or her communication. I underscore the words generalized interest.
ATTY.
AGABIN
Yes,
Your Honor.
CHIEF
JUSTICE PUNO
Now,
you seek this approach, let me ask you the same question that I asked
to the other counsel, Atty. Bautista. Reading the letter of
Secretary Ermita it would seem that the Office of the President is
invoking the doctrine of Executive Privilege only on not (sic) three
questions.
ATTY.
AGABIN
Yes,
Your Honor.
CHIEF
JUSTICE PUNO
So,
can you tell the Court how critical are these questions to the
lawmaking function of the Senate. For instance, question Number
1, whether the President followed up the NBN project. According
to the other counsel, this question has already been asked, is that
correct?
ATTY.
AGABIN
Well,
the question has been asked but it was not answered, Your Honor.
CHIEF
JUSTICE PUNO
Yes.
But my question is how critical is this to the lawmaking function of
the Senate?
ATTY.
AGABIN
I
believe it is critical, Your Honor.
CHIEF
JUSTICE PUNO
Why?
ATTY.
AGABIN
For
instance, with respect to the proposed Bill of Senator Miriam Santiago,
she would like to endorse a Bill to include Executive Agreements to be
subject to ratification by the Senate in addition to treaties, Your
Honor.
CHIEF
JUSTICE PUNO
May
not the Senate craft a Bill, assuming that the President followed up
the NBN project? May not the Senate proceed from that assumption?
ATTY.
AGABIN
Well,
it can proceed from that assumption, Your Honor, except that there
would be no factual basis for the Senate to say that indeed Executive
Agreements had been used as a device to circumventing the Procurement
Law.
CHIEF
JUSTICE PUNO
But
the question is just following it up.
ATTY.
AGABIN
I
believe that may be the initial question, Your Honor, because if we
look at this problem in its factual setting as counsel for petitioner
has observed, there are intimations of a bribery scandal involving high
government officials.
CHIEF
JUSTICE PUNO
Again,
about the second question, “were you dictated to prioritize this ZTE,”
is that critical to the lawmaking function of the Senate? Will it
result to the failure of the Senate to cobble a Bill without this
question?
ATTY.
AGABIN
I
think it is critical to lay the factual foundations for a proposed
amendment to the Procurement Law, Your Honor, because the petitioner
had already testified that he was offered a P200 Million bribe, so if
he was offered a P200 Million bribe it is possible that other
government officials who had something to do with the approval of that
contract would be offered the same amount of bribes.
CHIEF
JUSTICE PUNO
Again,
that is speculative.
ATTY.
AGABIN
That
is why they want to continue with the investigation, Your Honor.
CHIEF
JUSTICE PUNO
How
about the third question, “whether the President said to go ahead and
approve the project after being told about the alleged bribe.”
How critical is that to the lawmaking function of the Senate? And
the question is may they craft a Bill, a remedial law, without forcing
petitioner Neri to answer this question?
ATTY.
AGABIN
Well,
they can craft it, Your Honor, based on mere speculation. And
sound legislation requires that a proposed Bill should have some basis
in fact.
CHIEF
JUSTICE PUNO
It
seems to me that you say that this is critical.
ATTY.
AGABIN
Yes,
Your Honor. (emphasis supplied)[219]
The
above exchange shows how petitioner’s refusal to answer the three
questions will seriously impair the Senate’s function of crafting
specific legislation pertaining to procurement and concurring in
executive agreements based on facts and not speculation.
To
complete the balancing of competing interests, the Court should also
assess whether disclosure will significantly impair the President’s
performance of her functions, especially the duty to execute the laws
of the land. In the Oral Argument held on March 4, 2008,
petitioner, through counsel, was asked to show how the performance of
the functions of the President would be adversely affected if
petitioner is compelled to answer the three assailed questions, viz:
CHIEF
JUSTICE PUNO:
In
the functional test, the thrust is to balance what you said are the
benefits versus the harm on the two branches of government making
conflicting claims of their powers and privileges. Now, using that
functional test, please tell the Court how the Office of the President
will be seriously hampered in the performance of its powers and duties,
if petitioner Neri would be allowed to appear in the Senate and answer
the three questions that he does not want to answer?
ATTY.
BAUTISTA:
Your
Honor, the effect, the chilling effect on the President, she will be
scared to talk to her advisers any longer, because for fear that
anything that the conversation that she has with them will be opened to
examination and scrutiny by third parties, and that includes Congress.
And (interrupted)
CHIEF
JUSTICE PUNO:
Let
us be more specific. Chilling effect, that is a conclusion. The first
question is, “whether the President followed up the NBN Project.” If
that question is asked from petitioner Neri, and he answers the
question, will that seriously affect the way the Chief Executive will
exercise the powers and the privileges of the Office?
ATTY.
BAUTISTA:
Well,
if the answer to that question were in the affirmative, then it would
imply, Your Honor, that the President has some undue interest in the
contract.
CHIEF
JUSTICE PUNO:
The
President may have interest, but not necessarily undue interest.
ATTY.
BAUTISTA:
Well,
but in the atmosphere that we are in, where there is already an
accusatory mood of the public, that kind of information is going to be
harmful to the President.
CHIEF
JUSTICE PUNO:
When
you say accusatory, that is just your impression?
ATTY.
BAUTISTA:
Yes,
Your Honor, but I think it’s a normal and justified impression from--I
am not oblivious to what goes on, Your Honor.
CHIEF
JUSTICE PUNO:
But
that is your impression?
ATTY.
BAUTISTA:
Yes,
Your Honor.
CHIEF
JUSTICE PUNO:
How
about the second question, which reads, “were you dictated to
prioritize the ZTE,” again, if this question is asked to petitioner
Neri, and (he) responds to it…
ATTY.
BAUTISTA:
In
the affirmative?
CHIEF
JUSTICE PUNO:
I
don’t know how he will respond.
ATTY.
BAUTISTA:
Yes.
CHIEF
JUSTICE PUNO:
How
will that affect the functions of the President, will that debilitate
the Office of the President?
ATTY.
BAUTISTA:
Very
much so, Your Honor.
CHIEF
JUSTICE PUNO:
Why?
Why?
ATTY.
BAUTISTA:
Because
there are lists of projects, which have to be--which require financing
from abroad. And if the President is known or it’s made public that she
preferred this one project to the other, then she opens herself to
condemnation by those who were favoring the other projects which were
not prioritized.
CHIEF
JUSTICE PUNO:
Is
this not really an important project, one that is supposed to benefit
the Filipino people? So if the President, says, you prioritize this
project, why should the heavens fall on the Office of the President?
ATTY.
BAUTISTA:
Well,
there are also other projects which have, which are supported by a lot
of people. Like the Cyber Ed project, the Angat Water Dam project. If
she is known that she gave low priority to these other projects, she
opens herself to media and public criticism, not only media but also in
rallies, Your Honor.
CHIEF
JUSTICE PUNO:
So,
again, that is just your personal impression?
ATTY.
BAUTISTA:
Well,
I cannot avoid it, Your Honor.
CHIEF
JUSTICE PUNO:
How
about the third question, “whether the President said to go ahead and
approve the project after being told the alleged bribe.” Again, how
will that affect the functions of the President using that balancing
test of functions?
ATTY.
BAUTISTA:
Well,
if the answer is in the affirmative, then it will be shown, number one,
that she has undue interest in this thing, because she sits already on
the ICT and the Board.
CHIEF
JUSTICE PUNO:
Again,
when you say undue interest, that is your personal opinion.
ATTY.
BAUTISTA:
Yes,
Your Honor.
CHIEF
JUSTICE PUNO:
It
may be an interest, but it may not be undue.
ATTY.
BAUTISTA:
But
in the climate, present climate of public opinion as whipped up by
people that will be the impression, Your Honor. She does not operate in
a vacuum. She has to take into account what is going on.
CHIEF
JUSTICE PUNO:
That
is your personal opinion again?
ATTY.
BAUTISTA:
Yes,
Your Honor. (emphasis supplied)[220]
From
the above exchange, it is clear that petitioner’s invocation of the
Presidential communications privilege is based on a general claim of a
chilling effect on the President’s performance of her functions if the
three questions are answered. The general claim is unsubstantiated by
specific proofs that the performance of the functions of the President
will be adversely affected in a significant degree. Indeed,
petitioner’s counsel can only manage to submit his own impression and
personal opinion on the subject.
Summing
it up, on one end of the balancing scale is the President’s generalized
claim of confidentiality of her communications, and petitioner’s
failure to justify a claim that his conversations with the President
involve diplomatic, military and national security secrets. We accord
Presidential communications a presumptive privilege but the strength of
this privilege is weakened by the fact that the subject of the
communication involves a contract with a foreign loan. The power
to contract foreign loans is a power not exclusively vested in the
President, but is shared with the Monetary Board (Central Bank).
We also consider the chilling effect which may result from the
disclosure of the information sought from petitioner Neri but the
chilling effect is diminished by the nature of the information sought,
which is narrow, limited as it is to the three assailed
questions. We take judicial notice also of the fact that in a
Senate inquiry, there are safeguards against an indiscriminate conduct
of investigation.
On
the other end of the balancing scale is the respondent Senate
Committees’ specific and demonstrated need for the Presidential
communications in reply to the three disputed questions.
Indisputably, these questions are pertinent to the subject matter of
their investigation, and there is no effective substitute for the
information coming from a reply to these questions. In the
absence of the information they seek, the Senate Committees’ function
of intelligently enacting laws “to remedy what is called ‘dysfunctional
procurement system of the government’” and to possibly include
“executive agreements for Senate concurrence” to prevent them from
being used to circumvent the requirement of public bidding in the
existing Government Procurement Reform Act cannot but be seriously
impaired. With all these considerations factored into the
equation, we have to strike the balance in favor of the respondent
Senate Committees[221] and compel petitioner Neri to answer the
three disputed questions.
C.
Presidential Communications Privilege and Wrongdoing
Respondent
Senate Committees contend that executive privilege cannot be used to
hide a wrongdoing.[222] A brief discussion of the contention will put
it in its proper perspective.
Throughout
its history -- beginning with its use in 1792 by U.S. President George
Washington to withhold information from a committee of Congress
investigating a military expedition headed by General Arthur St. Clair
against Native Americans[223] -- executive privilege has never
justified the concealment of a wrongdoing. As afore-discussed,
the first U.S. President, Washington, well understood the crucial role
he would play in setting precedents, and so he said that he “devoutly
wished on my part that these precedents may be fixed in true
principles.”[224] (emphasis supplied) President Washington established
that he had the right to withhold information if disclosure would
injure the public, but he did not believe that it was appropriate to
withhold embarrassing or politically damaging information.[225]
Two
centuries thence, the principle that executive privilege cannot hide a
wrongdoing remains unchanged. While very few cases on the
Presidential communications privilege have reached the U.S. Supreme
Court, the District of Columbia Court of Appeals, being the appellate
court in the district where the federal government sits has been more
visible in this landscape. In several of its prominent decisions on the
Presidential communications privilege, the D.C. Court of Appeals
reiterated the rule that executive privilege cannot cover up
wrongdoing. In Nixon v. Sirica, the D.C. Circuit Court of Appeals
rejected the contention of President Nixon that executive privilege was
absolute and held that, if it were so, “the head of an executive
department would have the power on his own say so to cover up all
evidence of fraud and corruption when a federal court or grand jury was
investigating malfeasance in office, and this is not the law.”[226]
(emphasis supplied) In Senate Select Committee v. Nixon, the
Appellate Court reiterated its pronouncement in Sirica that the
“Executive cannot…invoke a general confidentiality privilege to shield
its officials and employees from investigations by the proper
governmental institutions into possible criminal wrongdoing.”[227]
Nonetheless,
while confirming the time-honored principle that executive privilege is
not a shield against an investigation of wrongdoing, the D.C. Circuit
Court of Appeals, in both Sirica and Senate Select Committee, also made
it clear that this time-honored principle was not the sword that would
pierce the Presidential communications privilege; it was instead the
showing of a need for information by an institution to enable it to
perform its constitutional functions.
In
Sirica, the Appellate Court held that “(w)e emphasize that the grand
jury’s showing of need in no sense relied on any evidence that the
President was involved in, or even aware of, any alleged criminal
activity. We freely assume, for purposes of this opinion, that the
President was engaged in the performance of his constitutional duty.
Nonetheless, we hold that the District Court may order disclosure of
all portions of the tapes relevant to matters within the proper scope
of the grand jury’s investigations, unless the Court judges that the
public interest served by nondisclosure of particular statements or
information outweighs the need for that information demonstrated by the
grand jury.” (emphasis supplied)[228]
In
Senate Select Committee, the court reiterated its ruling in Sirica,
viz: “…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,[229]
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.”[230] (emphasis supplied)
In
U.S. v. Nixon, the U.S. Supreme Court ruled that the Special Prosecutor
had demonstrated a specific need for the Presidential communications
without mentioning that the subject tapes had been subpoenaed for
criminal proceedings against former Presidential assistants charged
with committing criminal conspiracy while in office. This
omission was also observed by the D.C. Circuit appellate court in the
1997 case In re Sealed Case (Espy),[231] in which the court ruled that
“a party seeking to overcome the presidential privilege seemingly must
always provide a focused demonstration of need, even when there are
allegations of misconduct by high-level officials. In holding
that the Watergate Special Prosecutor had provided a sufficient showing
of evidentiary need to obtain tapes of President Nixon's conversations,
the U.S. Supreme Court made no mention of the fact that the tapes
were sought for use in a trial of former Presidential assistants
charged with engaging in a criminal conspiracy while in office.”[232]
That
a wrongdoing -- which the Presidential communications privilege should
not shield -- has been committed is an allegation to be proved with the
required evidence in a proper forum. The Presidential
communications privilege can be pierced by a showing of a specific need
of the party seeking the Presidential information in order to perform
its functions mandated by the Constitution. It is after the
privilege has been pierced by this demonstrated need that one can
discover if the privilege was used to shield a wrongdoing, or if there
is no wrongdoing after all. We should not put the cart before the
horse.
D.
Negotiations and Accommodations
Before
putting a close to the discussion on test and procedure to determine
the validity of the invocation of executive privilege, it is necessary
to make short shrift of the matter of negotiations and accommodation as
a procedure for resolving disputes that spawned the case at bar.
In
the U.S. where we have derived the doctrine of executive privilege,
most congressional requests for information from the executive branch
are handled through an informal process of accommodation and
negotiation, away from the judicial portals. The success of the
accommodation process hinges on the balance of interests between
Congress and the executive branch. The more diffused the interest
of the executive branch in withholding the disputed information, the
more likely that this interest will be overcome by a specifically
articulated congressional need related to the effective performance of
a legislative function. Conversely, the less specific the
congressional need for the information and the more definite the need
for secrecy, the more likely that the dispute will be resolved in favor
of the executive.[233] In arriving at accommodations, what is
“required is not simply an exchange of concessions or a test of
political strength. It is an obligation of each branch to make a
principled effort to acknowledge, and if possible to meet, the
legitimate needs of the other branch.”[234]
In
Cheney v. D.C. District Court, the U.S. Supreme Court cautioned that
executive privilege is an extraordinary assertion of power “not to be
lightly invoked.”[235] Once it is invoked, coequal branches of
government are set on a collision course. These “occasion(s) for
constitutional confrontation between the two branches” should be
avoided whenever possible.[236] Once a judicial determination
becomes inevitable, the courts should facilitate negotiations and
settlement as did the court in U.S. v. American Telephone &
Telegraph Co.[237] In that case, the D.C. Circuit Court of
Appeals remanded the case for negotiation of a settlement, which,
however, proved unavailing. The appellate court then outlined a
procedure under which the Congressional subcommittee was granted
limited access to the documents requested, with any resulting disputes
surrounding the accuracy of redacted documents to be resolved by the
district court in camera.
In
facilitating a settlement, the court should consider intermediate
positions, such as ordering the executive to produce document
summaries, indices, representative samples, or redacted documents; or
allowing Congressional committee members to view documents but
forbidding members from obtaining physical custody of materials or from
taking notes.[238]
The
lesson is that collisions in the exercise of constitutional powers
should be avoided in view of their destabilizing effects.
Reasonable efforts at negotiation and accommodation ought to be
exerted, for when they succeed, constitutional crises are avoided.
V.
Validity of the Order of Arrest
Finally,
we come to the last issue delineated in the Oral Argument last March 4,
2008: whether respondent Senate Committees gravely abused their
discretion in ordering the arrest of petitioner for noncompliance with
the subpoena. The contempt power of the respondent Senate
Committees is settled in Arnault and conceded by petitioner.[239]
What are disputed in the case at bar are the validity of the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation for lack
of re-publication and the alleged arbitrary exercise of the contempt
power.
The
Senate Rules of Procedure Governing Inquiries in Aid of Legislation is
assailed as invalid allegedly for failure to be re-published. It
is contended that the said rules should be re-published as the Senate
is not a continuing body, its membership changing every three years.
The assumption is that there is a new Senate after every such election
and it should not be bound by the rules of the old. We need not
grapple with this contentious issue which has far reaching consequences
to the Senate. The precedents and practice of the Senate should
instead guide the Court in resolving the issue. For one, the Senators
have traditionally considered the Senate as a continuing body despite
the change of a part of its membership after an election. It is for
this reason that the Senate does not cease its labor during the period
of such election. Its various Committees continue their work as its
officials and employees. For another, the Rules of the Senate is silent
on the matter of re-publication. Section 135, Rule L of the Rules
of the Senate provides that, “if there is no Rule applicable to a
specific case, the precedents of the Legislative Department of the
Philippines shall be resorted to xxx.” It appears that by tradition,
custom and practice, the Senate does not re-publish its rules
especially when the same has not undergone any material change.
In other words, existing rules which have already undergone publication
should be deemed adopted and continued by the Senate regardless of the
election of some new members. Their re-publication is thus an
unnecessary ritual. We are dealing with internal rules of a
co-equal branch of government and unless they clearly violate the
Constitution, prudence dictates we should be wary of striking them
down. The consequences of striking down the rules involved in the case
at bar may spawn serious and unintended problems for the Senate.
We
shall now discuss the substantive aspect of the contempt power. This
involves a determination of the purpose of the Senate inquiry and an
assessment of the pertinence of the questions propounded to a
witness.
To
reiterate, there is no doubt about the legislative purpose of the
subject Senate inquiry. It is evident in the title of the
resolutions that spawned the inquiry. P.S. Res. No. 127[240] and
the privilege speech of Senator Panfilo Lacson[241] seek an
investigation into the circumstances leading to the approval of the
NBN-ZTE Contract and to make persons accountable for any anomaly in
relation thereto. That the subject matter of the investigation is
the expenditure of public funds in an allegedly anomalous government
contract leaves no doubt that the investigation comes within the pale
of the Senate’s power of investigation in aid of legislation.
Likewise,
the following are all within the purview of the Senate’s investigative
power: subject matter of P.S. Res. No. 129 concerning the national
sovereignty, security and territorial integrity implications of the
NBN-ZTE Contract,[242] of P.S. Res. No. 136 regarding the legal and
economic justification of the National Broadband Network (NBN) project
of the government,[243] of P.S. Res. No. 144 on the cancellation of the
ZTE Contract,[244] and the Privilege Speech of Senator Miriam Defensor
Santiago on international agreements in constitutional law.[245]
The Court also takes note of the fact that there are three pending
bills in relation to the subject inquiry: Senate Bill No. 1793,[246]
Senate Bill No. 1794[247] and Senate Bill No. 1317. [248] It is
not difficult to conclude that the subject inquiry is within the power
of the Senate to conduct and that the respondent Senate Committees have
been given the authority to so conduct, the inquiry.
We
now turn to the pertinence of the questions propounded, which the
witness refused to answer. The subpoena ad testificandum issued to
petitioner states that he is “required to appear before the Committee
on Accountability of Public Officers and Investigations (Blue Ribbon)
of the Senate… testify under oath on what you know relative to the
subject matter under inquiry by the said Committee.” The subject
matter of the inquiry was indicated in the heading of the subpoena,
which stated the resolutions and privilege speeches that initiated the
investigation. Respondent Senate Committees have yet to propound to
petitioner Neri their questions on this subject matter; hence, he
cannot conclude beforehand that these questions would not be pertinent
and simply refuse to attend the hearing of November 20, 2007.
It
is worth noting that the letter of Executive Secretary Ermita, signed
“by Order of the President,” merely requested that petitioner’s
testimony on November 20, 2007 on the NBN Contract be dispensed with,
as he had exhaustively testified on the subject matter of the inquiry.
Executive privilege was invoked only with respect to the three
questions Neri refused to answer in his testimony before respondent
Senate Committees on September 26, 2007. But there is no basis
for either petitioner or the Executive Secretary to assume that
petitioner’s further testimony will be limited only on the three
disputed questions. Needless to state, respondent Senate
Committees have good reasons in citing Neri for contempt for failing to
appear in the November 20, 2007 hearing.
Next,
we come to the procedural aspect of the power of the respondent Senate
Committees to order petitioner’s arrest. The question is whether
the respondents followed their own rules in ordering petitioner’s
arrest.
The
Order of arrest issued by respondent Senate Committees on January 30,
2008 states that it was issued “for failure to appear and testify in
the Committees’ hearing on Tuesday, September 18, 2007; Thursday,
September 20, 2007; Thursday, October 25, 2007 and Tuesday,
November 20, 2007…AND for failure
to explain satisfactorily why he should not be cited for contempt
(Neri letter of 29 November 2007, herein attached).” The Order
reads, viz:
ORDER
For
failure to appear and testify in the Committees’ hearing on Tuesday,
September 18, 2007; Thursday, September 20, 2007; Thursday, October 25,
2007 and Tuesday, November 20, 2007, despite personal notice and a
Subpoena Ad Testificandum sent to and received by him, which thereby
delays, impedes and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported irregularities, AND
for failure to explain satisfactorily why he should not be cited for
contempt (Neri letter of 29 November 2007, herein attached) ROMULO L.
NERI is hereby cited in contempt of this (sic) Committees and ordered
arrested and detained in the Office of the Senate Sergeant-At-Arms
until such time that he will appear and give his testimony.
The
Sergeant-At-Arms is hereby directed to carry out and implement this
Order and make a return hereof within twenty four (24) hours from its
enforcement.
SO
ORDERED.
Issued
this 30th day of January, 2008 at the City of Pasay.[249]
The
facts should not be obfuscated. The Order of arrest refers to several
dates of hearing that petitioner failed to attend, for which he was
ordered arrested, namely: Tuesday, September 18, 2007; Thursday,
September 20, 2007; Thursday, October 25, 2007; and Tuesday, November
20, 2007. The “failure to explain satisfactorily (Neri letter of
29 November 2007),” however, refers only to the November 20, 2007
hearing, as it was in reference to this particular date of hearing that
respondent Senate Committees required petitioner to show cause why he
should not be cited for contempt. This is clear from respondent
Senate Committees’ letter to petitioner dated November 22,
2007.[250] The records are bereft of any letter or order issued
to petitioner by respondent Senate Committees for him to show cause why
he should not be cited for contempt for failing to attend the hearings
on Tuesday, September 18, 2007; Thursday, September 20, 2007; and
Thursday, October 25, 2007.
We
therefore examine the procedural validity of the issuance of the Order
of arrest of petitioner for his failure to attend the November 20, 2007
hearing after the respondent Senate Committees’ finding that his
explanation in his November 29, 2007 letter was unsatisfactory.
Section
18 of the Senate Rules Governing Inquiries in Aid of Legislation
provides, viz:
Sec.
18. Contempt. - The Committee, by a vote of a majority of all its
members, may punish for contempt any witness before it who disobeys any
order of the Committee or refuses to be sworn or to testify or to
answer a proper question by the Committee or any of its members, or
testifying, testifies falsely or evasively. A contempt of the Committee
shall be deemed a contempt of the Senate. Such witness may be
ordered by the Committee to be detained in such place as it may
designate under the custody of the Sergeant-at-Arms until he agrees to
produce the required documents, or to be sworn or to testify, or
otherwise purge himself of that contempt. (emphasis supplied)
On
March 17, 2008, the respondent Senate Committees submitted to the Court
a document showing the composition of respondent Senate Committees,
certified to be a true copy by the Deputy Secretary for Legislation,
Atty. Adwin B. Bellen. Set forth below is the composition of each
of the respondent Senate Committees, with an indication of whether the
signature of a Senator appears on the Order of arrest,[251] viz:
1.
Committee on Accountability of Public Officers and Investigations (17
members excluding 3 ex-officio members):
Chairperson:
Cayetano, Alan Peter - signed
Vice-Chairperson:
Members:
Cayetano, Pia - signed
Defensor
Santiago, Miriam
Enrile,
Juan Ponce
Escudero,
Francis - signed
Gordon,
Richard
Honasan
II, Gregorio Gringo - signed
Zubiri,
Juan Miguel
Arroyo,
Joker
Revilla,
Jr., Ramon
Lapid,
Manuel
Aquino
III, Benigno - signed
Biazon,
Rodolfo - signed
Lacson,
Panfilo - signed
Legarda,
Loren - signed
Madrigal,
M.A. - signed
Trillanes
IV, Antonio
Ex-Officio
Members: Ejercito Estrada, Jinggoy - signed
Pangilinan,
Francis - signed
Pimentel,
Jr., Aquilino - signed
2.
Committee on National Defense and Security (19 members
excluding 2 ex-officio members)
Chairperson:Biazon,
Rodolfo - signed
Vice-Chairperson:
Members:
Angara, Edgardo
Zubiri,
Juan Miguel
Cayetano,
Alan Peter - signed
Enrile,
Juan Ponce
Gordon,
Richard
Cayetano,
Pia - signed
Revilla,
Jr., Ramon
Honasan
II, Gregorio Gringo - signed
Escudero,
Francis - signed
Lapid,
Manuel
Defensor
Santiago, Miriam
Arroyo,
Joker
Aquino
III, Benigno - signed
Lacson,
Panfilo - signed
Legarda,
Loren - signed
Madrigal,
M.A. - signed
Pimentel,
Jr. Aquilino - signed
Trillanes
IV, Antonio
Ex-Officio
Members: Ejercito Estrada, Jinggoy - signed
Pangilinan,
Francis - signed
3.
Committee on Trade and Commerce (9 members excluding 3 ex-officio
members)
Chairperson:Roxas,
MAR - signed
Vice-Chairperson:
Members:
Cayetano, Pia - signed
Lapid,
Manuel
Revilla,
Jr., Ramon
Escudero,
Francis - signed
Enrile,
Juan Ponce
Gordon,
Richard
Biazon,
Rodolfo - signed
Madrigal,
M.A.- signed
Ex-Officio
Members: Ejercito Estrada, Jinggoy -signed
Pangilinan,
Francis - signed
Pimentel,
Jr., Aquilino - signed
Vis-a-vis
the composition of respondent Senate Committees, the January 30, 2008
Order of arrest shows the satisfaction of the requirement of a majority
vote of each of the respondent Senate Committees for the contempt of
witness under Sec. 18 of the Rules Governing Inquiries in Aid of
Legislation, viz:
1.
Committee on Accountability of Public Officers and
Investigations: nine (9) out of seventeen (17)
2.
Committee on National Defense and Security: ten (10) out of nineteen
(19)
3.
Committee on Trade and Commerce: five (5) out of nine (9)
Even
assuming arguendo that ex-officio members are counted in the
determination of a majority vote, the majority requirement for each of
the respondent Senate Committees was still satisfied, as all the
ex-officio members signed the Order of arrest.
The
substantive and procedural requirements for issuing an Order of arrest
having been met, the respondent Senate Committees did not abuse their
discretion in issuing the January 30, 2008 Order of arrest of
petitioner.
Epilogue
Article
VI, Section 21 of the 1987 Constitution provides for the power of the
legislature to conduct inquiries in aid of legislation.[252] It
explicitly provides respect for the constitutional rights of persons
appearing in such inquiries. Officials appearing in legislative
inquiries in representation of coequal branches of government carry
with them not only the protective cover of their individual rights, but
also the shield of their prerogatives – including executive privilege
-- flowing from the power of the branch they represent. These
powers of the branches of government are independent, but they have
been fashioned to work interdependently. When there is abuse of
power by any of the branches, there is no victor, for a distortion of
power works to the detriment of the whole government, which is
constitutionally designed to function as an organic whole.
I
vote to dismiss the petition.
REYNATO
S. PUNO
Chief
Justice
Footnotes:
[1]
Comment, pp. 3-4.
[2]
Petition, p. 3.
[3]
Comment, p. 4.
[4]
Id. at 4-5.
[5]
Id. at 5.
[6]
Id. at 5-6.
[7]
Id. at 6.
[8]
Id. at 5.
[9]
Id. at 6.
[10]Id.
at 6-7; Annex A.
[11]Id.
at 7; Annex B.
[12]Ibid.;
Annex C.
[13]Id.
at 8.
[14]Petition,
p. 3.
[15]Petitioner
is the current Chairman of the Commission on Higher Education (CHED)
and was Director General of the National Economic and Development
Authority (NEDA) from December 17, 2002 to July 17, 2006, and February
16, 2006 to August 15, 2007; Petition, p. 2.
[16]TSN,
Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It
reads in relevant part, viz:
MR.
NERI. And at that time, I expressed to the Chinese, to the ZTE
representatives the President’s instructions that they want it to
be…she wants it as a BOT project, probably unsolicited because I think
she can read from the minutes of the previous NEDA meetings – no loan,
no guarantee; performance undertaking but not take or pay.
Meaning that if we don’t use it, we don’t pay. So I made that
very clear to the ZTE people that these are the wishes of the
President. (p. 66)
xxx
xxx xxx
MR.
NERI. Your Honor, it was originally conceived as a BOT project.
THE
CHAIRMAN (SEN. ROXAS). Ah, originally conceived as a BOT
project. Iyon, iyon ang puntos natin dito. Kasi kung BOT
Project ito, hindi uutang ang gobyerno nito, hindi ho ba?
MR.
NERI. That’s right, Your Honor. (p. 351)
[17]Comment,
p. 8; TSN, Senate Hearing on the NBN-ZTE Contract, September 26,
2007. It reads in relevant part, viz:
THE
CHAIRMAN (SEN. ROXAS). Okay. So in this instance, the
President’s policy direction is something that I can fully support,
‘no. Because it is BOT, it is user pay, it doesn’t use national
government guarantees and we don’t take out a loan, hindi tayo uutang
dito. Iyan ang policy directive ng Pangulo. So ang tanong
ko is, what happened between November and March na lahat itong mga
reservations na ito ay naiba? In fact, it is now a government
undertaken contract. It requires a loan, it is a loan that is
tied to a supplier that doesn’t go through our procurement process,
that doesn’t go through the price challenge, as you say, and what
happened, what was (sic) the considerations that got us to where we are
today?
MR.
NERI. I am no longer familiar with those changes, Your
Honor. We’ve left it to the line agency to determine the best
possible procurement process, Your Honor. (p. 360)
[18]TSN,
Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It
reads in relevant part, viz:
MR.
NERI. But we had a nice golf game. The Chairman (Abalos)
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.
xxx
xxx xxx
MR.
NERI. As I said 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 he said to me.
THE
SENATE PRESIDENT. Naisip mo ba kung para saan iyong 200 na iyon?
xxx
xxx xxx
THE
SENATE PRESIDENT. Two hundred lang, walang ano iyon, wala namang
million or pesos…
MR.
NERI. I guess we were discussing the ZTE projects… (pp. 33-34)
xxx
xxx xxx
SEN.
LACSON. Pumunta ho tayo dun sa context ng usapan kung saan
pumasok iyong 200 as you mentioned. Pinag-uusapan ninyo ba golf
balls?
MR.
NERI. I don’t think so, Your Honor.
SEN.
LACSON. Ano ho ang pinag-uusapan ninyo? Paano pumasok iyong
200 na – was it mentioned to you in the vernacular, “may 200 ka rito”
or in English?
MR.
NERI. I think, as I remember, Mr. Chair, Your Honors, the words
as I can remember is, “Sec, may 200 ka dito.”
SEN.
LACSON. May 200 ka rito. Ano ang context noong “may 200 ka
rito?” Ano ang pinag-uusapan ninyo? Saan nanggaling iyon -
iyong proposal?
MR.
NERI. I guess the topic we were discussing, you know…
SEN.
LACSON. NBN.
MR.
NERI. Basically was NBN.
SEN.
LACSON. So, how did it occur to you, ano ang dating sa inyo noong
naguusap kayo ng NBN project, may ibubulong sa inyo iyong chairman
(Abalos) na kalaro ninyo ng golf, “Sec, may 200 ka rito.” Anong
pumasok sa isip ninyo noon?
MR.
NERI. I was surprised.
SEN.
LACSON. You were shocked, you said.
MR.
NERI. Yeah, I guess, I guess.
SEN.
LACSON. Bakit kayo na-shock?
MR.
NERI. Well, I was 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 ninyo?
MR.
NERI. I said no amount was put, but I guess given the magnitude
of the project, siguro naman hindi P200 or P200,000, so…
SEN.
LACSON. Dahil cabinet official kayo, eh.
MR.
NERI. I guess. But I – you know. (pp. 42-44)
[19]TSN,
Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It
reads in relevant part, viz:
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 it was offered to you?
MR.
NERI. I remember it was over the phone, Your Honor. (pp. 43-44)
[20]
Id. It reads in relevant part, viz:
SEN.
PANGILINAN. You mentioned earlier that you mentioned this to the
President. Did the President after that discussion over the
phone, was this ever raised again, the issue of the 200 ka rito?
MR.
NERI. We did not discuss it again, Your Honor.
SEN.
PANGILINAN. With the President? But the issue, of course,
the NBN deal, was raised again? After that, between you and the
President. Pinalow up (followed up) ba niya?
MR.
NERI. May I claim the executive privilege, Your Honor, because I
think this already involves conversations between me and the President,
Your Honor, because this is already confidential in nature. (pp. 91-92)
xxx
xxx xxx
MR.
NERI. …Under EO 464, Your Honor, the scope is, number one, state
secrets; number two, informants privilege; number three,
intra-governmental documents reflecting advisory opinions,
recommendations and deliberations. And under Section 2(A) of EO
464, it includes all confidential or classified information between the
President and public officers covered by the EO, such as conversations,
correspondence between the President and the public official and
discussions in closed-door Cabinet meetings.
Section
2(A) was held valid in Senate versus Ermita. (emphasis
supplied) (p. 105)
[21]Id.
It reads in relevant part, viz:
MR.
NERI. I think, Mr. Chair, Your Honors, that thing has been
thoroughly discussed already because if we were to do a BOT the one -
the pending BOT application was the application of AHI. (p. 263)
[22]Id.
It reads in relevant part, viz:
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
(Amsterdam Holdings, Inc.) 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.
(emphasis supplied) (pp. 114-115)
[23]Id.
It reads in relevant part, viz:
SEN.
CAYETANO, (P). …I was told that you testified, that you had mentioned
to her that there was P200 something offer. I guess it wasn’t
clear how many zeroes were attached to the 200. And I don’t know if you
were asked or if you had indicated her response to this. I know
there was something like “Don’t accept.” And can you just for my
information, repeat.
MR.
NERI. She said “Don’t accept it,” Your Honor.
SEN.
CAYETANO, (P). And was there something attached to that
like… “But pursue with a project 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… (emphasis supplied) (pp. 275-276)
[24]Id.
It reads in relevant part, viz:
THE
CHAIRMAN (SEN. BIAZON). Are you invoking it for you as a member
of the Cabinet or are you invoking it in behalf of the President?
MR.
NERI. I guess the law says it can be invoked in behalf of the
President, and I’ve been instructed.
THE
CHAIRMAN (SEN. BIAZON). In behalf of the President.
MR.
NERI. And I’ve been instructed to invoke it, Your Honor.
THE
CHAIRMAN (SEN. BIAZON). And we assume a written order will follow
and be submitted to the committees?
MR.
NERI. Yes, Your Honor, it’s being prepared now. (p. 278)
[25]“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.”
[26]TSN,
Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It
reads in relevant part, viz:
THE
CHAIRMAN (SEN. BIAZON). … In your judgment, therefore, Mr.
Secretary, which of the three instances would allow the invoking of
executive privilege? First instance is, if the answer will
involve military secrets. That’s one. Second, if it will
involve diplomatic issues; and Number 3, if it has something to do with
national security.
We don’t have to hear about the details, ‘no. Which of these
three, Mr. Secretary, instances – military secret, diplomatic issue and
national security, which of these three will be affected by your answer
to that specific question? We don’t have to hear the details at
this point.
MR.
NERI. I am not a lawyer, Your Honor, but based on the notes of my
lawyers here, it says: Section 2(A) of EO 464 includes “all
confidential or classified information between the President and public
officers covered by the Executive Order, such as conversations,
correspondence between the President and public official and
discussions in closed-door cabinet meetings.
THE
CHAIRMAN (SEN. BIAZON)…But even then, we still have – the Committee
will still have to listen or in closed door, in executive session, your
justification of invoking executive privilege and for the Committees to
grant you the privilege… (emphasis supplied) (pp. 473-474)
xxx xxx xxx
SEN.
PIMENTEL…I’m willing to have this matter settled in a caucus where we
will hear him so that we hear in the confidence of our conference room
the reason why he is invoking executive privilege. But we
certainly cannot allow him to do just that on his mere say so without
demeaning the institution that’s what I’m worried about, Mr. Chairman.
THE
CHAIRMAN (SEN. CAYETANO, A.)…We cannot ask you questions about the
nature that would eventually lead you to telling us what the
communication is. But as to the nature of the communication that
would allow us to determine whether or not to grant your claim for
executive privilege, that may be asked. So, with the indulgence
of the senators, anyway, the members of this Committee we have agreed
to deal with it in caucus…(emphasis supplied) (p. 478)
xxx xxx xxx
THE
CHAIRMAN (SEN. CAYETANO, A.)…The three committees are now going on
executive session. And again, to repeat, Secretary Neri, please
join us, you can bring your lawyer… (emphasis supplied) (p. 519)
[27]TSN,
Oral Argument, March 4, 2008. It reads in relevant part, viz:
SENATOR
CAYETANO. Yes, Your Honor, let me clarify this factual basis,
Your Honor. We went into an Executive Session precisely because
Secretary Neri said that if I tell you the nature of our conversation,
I will be exposed – I will be telling it to the public. So we
agreed to go into Executive Session. Allow me not to talk about
what happened there. But at the end, all the Senators with
Secretary Neri agreed that he will go home because he is having chills
and coughing and he’s sick. And number 2, we will tell everyone
that he promised to be back. The warrant of arrest was issued,
Your Honor, after we explained in open hearing, Your Honor, that he
should attend and claim the privilege or claim any right not to answer
in session. So, Your Honor, the Committees have not made a
decision whether or not to consider to agree with him that the
questions we want him to have answered will constitute executive
privilege. We have not reached that point, Your Honor. (pp.
430-431)
[28]Petition,
Annex B. The subpoena reads, viz:
In
the Matter of P.S. Res. No. 127 (Circumstances Leading to the Approval
of the Broadband Contract with ZTE and the Role Played by the Officials
Concerned in Getting it Consummated and to Make Recommendations to Hale
to the Courts of Law the Persons Responsible for any Anomaly in
Connection therewith, if any, in the BOT Law and other Pertinent
Legislations); P.S. Res. No. 129 (The National Security Implications of
Awarding the National Broadband Network Contract to the Chinese Firm
Zhong Xing Telecommunications Equipment Company Limited (ZTE
Corporation)); Privilege Speech of Senator Panfilo M. Lacson, delivered
on September 11, 2007, entitled “Legacy of Corruption”; P.S. Res. No.
136 (The Legal and Economic Justification of the National Broadband
Network [NBN] Project of the Government); Privilege Speech of Senator
Miriam Defensor Santiago delivered on November 24, 2007, entitled
“International Agreements in Constitutional Law: The Suspended RP-China
(ZTE) Loan Agreement”; P.S. Res. No. 144 (A Resolution Urging President
Gloria Macapagal Arroyo to Direct the Cancellation of the ZTE Contract).
SUBPOENA
AD TESTIFICANDUM
TO:
Mr. ROMULO L. NERI
Chairman
Commission on Higher
Education
5th Floor, DAP Bldg, San Miguel Ave.,
Ortigas Center, Pasig City
By
authority of Section 17, Rules of Procedure Governing Inquiries in Aid
of Legislation of the Senate, Republic of the Philippines, you are
hereby commanded and required to appear before the Committee on
Accountability of Public Officers and Investigations (Blue Ribbon) of
the Senate, then and there to testify under oath on what you know
relative to the subject matter under inquiry by the said Committee, on
the day, date, time and place hereunder indicated:
Day,
Date & Time: Tuesday, November 20, 2007 10:00 a.m.
Place:
Senator Ambrosio Padilla Room
2nd Floor, Senate of the Philippines
GSIS Bldg., Roxas Blvd.
Pasay City
WITNESS
MY HAND and the Seal of the Senate of the Republic of the Philippines,
at Pasay City, this 13th day of November, 2007.
(Signed)
ALAN
PETER S. CAYETANO
Chairman
Committee
on Accountability of Public
Officers & Investigations
(Blue
Ribbon)
(Signed)
MAR
ROXAS
Chairman
Committee
on Trade
and
Commerce
(Signed)
RODOLFO
G. BIAZON
Chairman
Committee
on National Defense & Security
Approved:
(Signed)
MANNY
VILLAR
Senate
President
[29]
Letter of Executive Secretary Eduardo R. Ermita to Senator Alan Peter
Cayetano as Chairman of the Committee on Accountability of Public
Officers and Investigations dated November 15, 2007; Petition, Annex C.
[30]Ibid.
[31]Petition,
Annex A. The letter reads, viz:
22 November 2007
MR. ROMULO L. NERI
Chairman
Commission on Higher Education
5th Floor, DAP Building, San Miguel Ave.
Ortigas Center, Pasig City
Dear Mr. Neri:
A
Subpoena Ad Testificandum has been issued and was duly received and
signed by a member of your staff on 15 November 2007.
You
were required to appear before the Senate Blue Ribbon hearing at 10:00
a.m. on 20 November 2007 to testify on the Matter of:
P.S.
RES. NO. 127, introduced by SENATOR AQUILINO Q. PIMENTEL, JR.
(Resolution Directing the Blue Ribbon Committee and the Committee on
Trade and Industry to Investigate, in Aid of Legislation, the
Circumstances Leading to the Approval of the Broadband Contract with
ZTE and the Role Played by the Officials Concerned in Getting it
Consummated and to Make Recommendations to Hale to the Courts of Law
the Persons Responsible for any Anomaly in Connection therewith, if
any, in the BOT Law and other Pertinent Legislations); P.S. RES. NO.
129, introduced by SENATOR PANFILO M. LACSON (Resolution Directing the
Committee on National Defense and Security to Conduct an Inquiry in Aid
of Legislation into the National Security Implications of Awarding the
National Broadband Network Contract to the Chinese Firm Zhong Xing
Telecommunications Equipment Company Limited (ZTE Corporation) with the
End in View of Providing Remedial Legislation that Will Further Protect
Our National Sovereignty Security and Territorial Integrity; PRIVILEGE
SPEECH OF SENATOR PANFILO M. LACSON, entitled “LEGACY OF CORRUPTION,”
delivered on September 11, 2007; P.S. RES. NO. 136, introduced by
SENATOR MIRIAM DEFENSOR SANTIAGO (Resolution Directing the Proper
Senate Committee to Conduct an Inquiry, in Aid of Legislation, on the
Legal and Economic Justification of the National Broadband Network
(NBN) Project of the Government); PRIVILEGE SPEECH OF SENATOR MIRIAM
DEFENSOR SANTIAGO, entitled “International Agreements in Constitutional
Law: The Suspended RP-China (ZTE) Loan Agreement” delivered on November
24, 2007; P.S. RES. NO. 144, introduced by SENATOR MANUEL ROXAS III
(Resolution Urging President Gloria Macapagal Arroyo to Direct the
Cancellation of the ZTE Contract).
Since
you have failed to appear in the said hearing, the Committees on
Accountability of Public Officers and Investigations (Blue Ribbon),
Trade and Commerce and the National Defense and Security require you to
show cause why you should not be cited in contempt under Section 6,
Article 6 of the Rules of the Committee on Accountability of Public
Officers and Investigations (Blue Ribbon).
The
Senate expects your explanation on or before 2 December 2007.
For
the Senate:
(Signed)
ALAN
PETER S. CAYETANO
Chairman
Committee
on Accountability of Public
Officers & Investigations
(Blue
Ribbon)
(Signed)
MAR
ROXAS
Chairman
Committee
on Trade
and
Commerce
(Signed)
RODOLFO
G. BIAZON
Chairman
Committee
on National Defense & Security
Approved:
(Signed)
MANNY
VILLAR
Senate
President
[32]Petition,
Annex D.
[33]Id.,
Annex D-1.
[34]Ibid.
[35]Ibid.
[36]Supplemental
Petition, Annex A.
[37]Id.,
Annex B.
[38]Id.,
p. 3.
[39]Comment,
p. 10.
[40]Id.
at 23.
[41]Id.
at 29.
[42]Id.
at 35.
[43]These
are the sub-issues:
1.a.
Did Executive Secretary Ermita correctly invoke the principle of
executive privilege, by order of the President, to cover (i)
conversations of the President in the exercise of her executive and
policy decision-making and (ii) information, which might impair our
diplomatic as well as economic relations with the People’s Republic of
China?
1.b.
Did petitioner Neri correctly invoke executive privilege to avoid
testifying on his conversations with the President on the NBN contract
on his assertions that the said conversations “dealt with delicate and
sensitive national security and diplomatic matters relating to the
impact of the bribery scandal involving high government officials and
the possible loss of confidence of foreign investors and lenders in the
Philippines” xxx, within the principles laid down in Senate v. Ermita
(488 SCRA 1 [2006])?
1.c.
Will the claim of executive privilege in this case violate the
following provisions of the Constitution:
Sec.
28, Art. II (Full public disclosure of all transactions involving
public interest)
Sec.
7, Art. III (The right of the people to information on matters of
public concern)
Sec.
1, Art. XI (Public office is a public trust)
Sec.
17, Art. VII (The President shall ensure that the laws be faithfully
executed)
and
the due process clause and the principle of separation of powers?
[44]Samaha,
A., “Government Secrets, Constitutional Law, and Platforms for Judicial
Intervention,” UCLA Law Review, April 2006, 909, 916.
[45]Samaha,
supra at 918.
[46]Levinson, J., “An Informed Electorate: Requiring Broadcasters to Provide Free
Airtime to Candidates for Public Office,” 72 Boston University Law
Review (January 1992), p. 143, citing Letter from Thomas Jefferson to
Colonel Charles Yancey (Jan. 6, 1816), in 10 The Writings of Thomas
Jefferson 4 (Paul L. Ford ed., 1899), cited in Library of Congress,
Respectfully Quoted 97 (Suzy Platt ed., 1989).
[47]Iraola,
R. “Congressional Oversight, Executive Privilege, and Requests for
Information Relating to Federal Criminal Investigations and
Prosecutions,” Iowa Law Review, vol. 87, no. 5, August 2002, p. 1559,
1565. The separation of powers was fashioned to avert tyranny as
explained by James Madison in The Federalist No. 47:
The
reasons on which Montesquieu grounds his maxim [that the legislative,
executive and judicial departments should be separate and distinct] are
a further demonstration of his meaning. “When the legislative and
executive powers are united in the same person or body,” says he,
“there can be no liberty, because apprehension may arise lest the same
monarch or senate should enact tyrannical laws to execute them in a
tyrannical manner.” Again: “Were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed to
arbitrary control, for the judge would then be the legislator. Were it
joined to the executive power, the judge might behave with all the
violence of an oppressor.” (The Federalist No. 47, at 315 (James
Madison) (Modern Library 1937).
[48]Ibid.
[49]Id.
at 1565-1566, citing Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635 (1952) (Jackson, J., concurring).
[50]Id.
at 1559, citing J.W. Hampton, Jr. & Co. v. United States, 276 U.S.
394, 406 (1928).
[51]Doherty,
M., “Executive Privilege or Punishment? The Need to Define Legitimate
Invocations and Conflict Resolution Techniques,” 19 Northern Illinois
University Law Review (Summer 1999) 801, 808.
[52]63
Phil. 139 (1936).
[53]Id.
at 156.
[54]Keefe,
W., Ogul, M., The American Legislative Process: Congress and the
States, 4th ed. (1977), p. 20. See also Gross, The Legislative
Struggle (1953), pp. 136-137.
[55]Javits, J., Klein, G., “Congressional Oversight and the Legislative Veto: A
Constitutional Analysis,” New York University Law Review, vol. 52, no.
3, June 1977, p. 460.
[56]Keefe,
W., Ogul, M., supra at 20-23.
[57]Id.
at 25.
[58]Article
VIII, Section 12 of the 1973 Constitution provides in relevant part,
viz:
xxx
xxx xxx
(2)
The National Assembly or any of its committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in such inquiries
shall be respected.
[59]87
Phil. 29 (1950).
[60]Id.
at 45.
[61]354
U.S. 178 (1957), pp. 194-195.
[62]Id.
at 187.
[63]Id.
at 178.
[64]360
U.S. 109 (1959).
[65]Arnault
v. Nazareno, 87 Phil. 29 (1950), p. 46.
[66]Id.
at 46-47.
[67]Id.
at 45, citing McGrain vs. Daugherty, 273 U.S. 135.
[68]Annotation:
Contempt of Congress, 3 L ed 2d 1649, footnotes omitted.
[69]Wollam
v. United States (1957, CA9 Or) 244 F2d 212.
[70]Sacher
v. United States (1957) 99 App DC 360, 240 F2d 46.
[71]87
Phil. 29 (1950), p. 48.
[72]Rozell,
M., “Executive Privilege and the Modern Presidents: In Nixon’s Shadow,”
Symposium on United States v. Nixon: Presidential Power and Executive
Privilege Twenty-Five Years Later, 83 Minnesota Law Review (May 1999)
1069.
[73]Doherty,
M., “Executive Privilege or Punishment? The Need to Define Legitimate
Invocations and Conflict Resolution Techniques,” 19 Northern Illinois
University Law Review 801, 810 (Summer 1999) (footnotes omitted).
[74]157
F. Supp. 939 (Ct. Cl. 1958).
[75]McNeely-Johnson,
K.A., “United States v. Nixon, Twenty Years After: The Good, the Bad
and the Ugly –An Exploration of Executive Privilege,” 14 Northern
Illinois University Law Review (Fall, 1993) 251, 261-262, citing Kaiser
Aluminum & Chemical Co. v. United States, 157 F. Supp. 939 (Ct. Cl.
1958), 946.
[76]418
US 613 (1974).
[77]Rozell,
M., “Restoring Balance to the Debate Over Executive Privilege: A
Response to Berger,” Symposium: Executive Privilege and the Clinton
Presidency,” 8 William and Mary Bill of Rights Journal (April 2000)
541, 557 citing Letter from George Washington to James Madison (May 5,
1789), in 30 The Writings of George Washington, 1745-1799, at 311 (John
Fitzpatrick ed., 1931-1944).
[78]Doherty,
M., “Executive Privilege or Punishment? The Need to Define Legitimate
Invocations and Conflict Resolution Techniques,” 19 Northern Illinois
University Law Review 801, 821 (Summer 1999).
[79]Rozell,
M., supra note 77. See also Boughton, J.R., “Paying Ambition's Debt:
Can the Separation of Powers Tame the Impetuous Vortex of Congressional
Investigations?” 21 Whittier Law Review (Summer, 2000) 797, footnotes
omitted.
[80]Boughton,
“Paying Ambition's Debt: Can the Separation of Powers Tame the
Impetuous Vortex of Congressional Investigations?” 21 Whittier Law
Review (Summer, 2000) 797, p. 814.
[81]Rozell,
M., supra note 77 at 582.
[82]25
F. Cas. 30 (C.C.D. Va. 1807) (No. 14,692d).
[83]Boughton,
supra at 815.
[84]Ibid.
[85]Doherty,
supra at 801, 822.
[86]Boughton,
supra at 817.
[87]Id.
at 826, citing Rozell, Executive Privilege: The Dilemma of Secrecy and
Democratic Accountability (1994).
[88]418
U.S. 683 (1974).
[89]Boughton,
supra at 819.
[90]Ibid.
[91]Doherty,
supra at 828.
[92]Id.
at 820.
[93]Iraola,
supra at 1571, citing 26A Charles A. Wright & Kenneth W. Graham,
Jr., Federal Practice and Procedure § 5662, at 484-90 (1992)
(footnotes omitted).
[94]Id.
at 1571, citing 26A Charles A. Wright & Kenneth W. Graham, Jr.,
Federal Practice and Procedure § 5662, at 490 n.3.
[95]Wald,
P. and Siegel, J., “The D.C. Circuit and the Struggle for Control of
Presidential Information,” Symposium, The Bicentennial Celebration of
the Courts of the District of Columbia Circuit, 90 Georgetown Law
Journal (March 2002) 737, 740.
[96]Iraola,
supra at 1571.
[97]Id.
at 1559.
[98]Id.
at 1572, citing Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983)
(footnotes omitted). It has been aptly noted that “[i]n the hierarchy
of executive privilege, the ‘protection of national security’
constitutes the strongest interest that can be asserted by the
President and one to which the courts have traditionally shown the
utmost deference.” 12 Op. Off. Legal Counsel 171, 176-77 (1988).
[99]United
States v. Reynolds, 345 U.S. 1; Iraola, supra at 1572.
[100]
United States v. Reynolds, 345 U.S. 1, 7-8 (1953); Iraola, supra at
1572, citing Bowles v. United States, 950 F.2d 154, 156 (4th Cir.
1991); In re United States, 872 F.2d 472, 475 (1989).
[101]
United States v. Reynolds, 345 U.S. 1; Iraola, supra at 1572, citing
Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 547 (1991).
[102]
433 US 425 (1977).
[103]
Iraola, supra at 1577, citing First E. Corp. v. Mainwaring, 21 F.3d
465, 468 (D.C. Cir. 1994) (quoting Dudman Communications Corp. v. Dept.
of Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987)); see also Missouri
v. United States Army Corps of Eng'rs, 147 F.3d 708, 710 (8th Cir.
1998) (“The purpose of the deliberative process privilege is to allow
agencies freely to explore alternative avenues of action and to engage
in internal debates without fear of public scrutiny.”)
[104]
Id. at 1578 citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40
F.R.D. 318, 324 (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C. Cir. 1967);
accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-53 (1975);
EPA v. Mink, 410 U.S. 73, 86-93 (1973).
[105]
Ibid, citing Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12
(D.D.C. 1995) (citation omitted), aff'd, 76 F.3d 1232 (D.C. Cir. 1996).
[106]
Id. at 1578 (footnotes omitted).
[107]
Id. at 1579, citing In re Dep’t of Investigation, 856 F.2d 481, 484 (2d
Cir. 1988); United States v. Winner, 641 F.2d 825, 831 (10th Cir.
1981); Black v. Sheraton Corp. of Am., 564 F.2d 531, 545 (D.C. Cir.
1977).
[108]
Almonte, et al. v. Vasquez, et al., G.R. No. 95367, May 23, 1995, 244
SCRA 286.
[109]
G.R. No. 130716, December 9, 1998, 299 SCRA 744.
[110]
G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006).
[111]
U.S. v. Nixon, 418 U.S. 683 (1974), Note 19 at 713.
[112]
Ibid.
[113]
418 U.S. 683 (1974).
[114]
U.S. v. Haldeman, 559 F.2d 31 (1976), p. 52.
[115]
A grand jury is an investigatory body charged with the duty to
determine whether or not a crime has been committed. (U.S. v. R.
Enterprises, Inc., et al. 498 US 292, 296 [1991]).
[116]
In re Grand Jury Subpoena Duces Tecum Issued to Richard M. Nixon, or
any Subordinate Officer, Official, or Employee with Custody or Control
of Certain Documents or Objects, 360 F. Supp 1 (1973), Note 1 which
states, viz: The Special Prosecutor has been designated as the attorney
for the Government to conduct proceedings before the grand jury
investigating the unauthorized entry into the Democratic National
Committee Headquarters and related offenses.
[117]
360 F. Supp 1 (1973).
[118]
In re Grand Jury Subpoena Duces Tecum Issued to Richard M. Nixon, or
any Subordinate Officer, Official, or Employee with Custody or Control
of Certain Documents or Objects (also referred to as In re Subpoena for
Nixon), 360 F. Supp 1, 3 (1973).
[119]
Supra note 116.
[120]
487 F. 2d 700.
[121]
Id. at 704.
[122]
377 F. Supp. 1326 (1974).
[123]
418 U.S. 683 (1974).
[124]
Id. at 708.
[125]
Ibid., explaining in Note 17 that, “Freedom of communication vital to
fulfillment of the aims of wholesome relationships is obtained only by
removing the specter of compelled disclosure..(G)overnment.needs open but protected channels for the kind of plain talk that is
essential to the quality of its functioning.” Carl Zeiss Stiftung v. V.
E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 325 (DC 1966). See Nixon
v. Sirica, 159 U.S.App.D.C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser
Aluminum & Chem. Corp. v. United States, 141 Ct.Cl. 38, 157 F.Supp.
939 (1958) (Reed, J.); The Federalist, No. 64 (S. Mittell ed.
1938).
[126]
Id. at 708.
[127]
Id. at 705, explaining in Note 15 that, “There is nothing novel about
governmental confidentiality. The meetings of the Constitutional
Convention in 1787 were conducted in complete privacy. 1 M.
Farrand, The Records of the Federal Convention of 1787, pp. xi-xxv
(1911). Moreover, all records of those meetings were sealed for
more than 30 years after the Convention. See 3 Stat. 475, 15th
Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledge that
without secrecy no constitution of the kind that was developed could
have been written. C. Warren, The Making of the Constitution,
134-139 (1937).
[128]
Id. at 708.
[129]
Id. at 706, Note 16, citing Marshall v. Gordon, 243. U.S. 521, 537, 37
S.Ct. 448, 451, 61 L.Ed. 881 (1917).
[130]
Id. at 707, citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.,
at 635, 72 S.Ct., at 870 (Jackson, J., concurring).
[131]
Id. at 711 where the Court held, viz:
In
this case we must weigh the importance of the general privilege of
confidentiality of Presidential communications in performance of the
President’s responsibilities against the inroads of such a privilege on
the fair administration of criminal justice. (emphasis supplied)
[132]
Id. at 712-713 where the Court held, viz:
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. (emphasis supplied)
[133]
Id. at 708 where the Court held, viz:
…
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. (emphasis supplied)
[134]
Id. at 449, where the Court held, viz:
The
appellant may legitimately assert the Presidential privilege, of
course, only as to those materials whose contents fall within the scope
of the privilege recognized in United States v. Nixon, supra. In that
case the Court held that the privilege is limited to communications ‘in
performance of (a President's) responsibilities,’ 418 U.S., at 711, 94
S.Ct., at 3109, ‘of his office,’ id., at 713, and made ‘in the process
of shaping policies and making decisions,’id., at 708, 94 S.Ct., at
3107. (emphasis supplied)
[135]
U.S. v. Nixon, 418 U.S. 613 at 708, where the Court held, viz:
…
In Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973), the
Court of Appeals held that such Presidential communications are
‘presumptively privileged,’ id., at 75, 487 F.2d, at 717, and this
position is accepted by both parties in the present litigation.
[136]
487 F.2d 700 at 717. The Court held, viz:
We
recognize this great public interest, and agree with the District Court
that such (Presidential) conversations are presumptively privileged…
(emphasis supplied)
[137]
360 F. Supp. 1, 4.
[138]
Id. at 10-11.
[139]
Id. at 5, citing Note 8 quoting Brief in Opposition at 3.
[140]
In re Sealed Case (Espy), 121 F3d 729 at 754.
[141]
U.S. v. Nixon, 418 U.S. 683 at 706.
[142]
Id. at 712.
[143]
Id. at 707.
[144]
Id. at 709.
[145]
Id. at 711-712.
[146]
Id. at 712-713.
[147]
Id. at 706.
[148]
Ibid.
[149]
Id. at 710-711.
[150]
Id. at 709-710, explaining in Note 18 that, “Because of the key role of
the testimony of witnesses in the judicial process, courts have
historically been cautious about privileges. Mr. Justice
Frankfurter, dissenting in Elkins v. United States, 364 U.S. 206, 234,
80 S.Ct. 1437, 1454,4 L.Ed.2d 1669 (1960), said of this: ‘Limitations
are properly placed upon the operation of this general principle only
to the very limited extent that permitting a refusal to testify or
excluding relevant evidence has a public good transcending the normally
predominant principle of utilizing all rational means for ascertaining
truth.’” (emphasis supplied)
[151]
Id. at 714, Note 21, citing United States v. Reynolds, 345 U.S. 1, 73
S.Ct. 528, 97 L.Ed. 727 (1953), or C. & S. Air Lines v. Waterman
S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948).
[152]
Id. at 714-715.
[153]
Id. at 715.
[154]
Ibid.
[155]
121 F.3d 729, pp. 744-745. The Court held, viz:
The
Nixon cases establish the contours of the presidential communications
privilege. The President can invoke the privilege when asked to
produce documents or other materials that reflect presidential
decision-making and deliberations and that the President believes
should remain confidential. If the President does so, the
documents become presumptively privileged. However, the privilege
is qualified, not absolute, and can be overcome by an adequate showing
of need. If a court believes that an adequate showing of need has
been demonstrated, it should then proceed to review the documents in
camera to excise non-relevant material. The remaining relevant
material should be released. Further, the President should be
given an opportunity to raise more particularized claims of privilege
if a court rules that the presidential communications privilege alone
is not a sufficient basis on which to withhold the document.
[156]
Letter of Executive Secretary Eduardo R. Ermita to Senator Alan Peter
Cayetano as Chairman of the Committee on Accountability of Public
Officers and Investigations dated November 15, 2007, Annex C of the
Petition.
[157]
G.R. No. 95367 May 23, 1995, 244 SCRA 286 (1995).
[158]
G.R. No. 130716, December 9, 1998, 299 SCRA 744 (1998), citing IV
Record of the Constitutional Commission 621-922, 931 (1986) and Almonte
v. Vasquez, 244 SCRA 286, 295, 297, May 23, 1995.
[159]
345 U.S. 1 (1953).
[160]
Id. at 7-8.
[161]
Id. at 9-10.
[162]
Id. at 10.
[163]
Id. at 11.
[164]
Id. at 4.
[165]
Id. at 4-5.
[166]
Id. at 10.
[167]
United States v. Reynolds, 345 U.S. 1 (1953) at 10.
[168]
TSN, Oral Argument, March 4, 2008, pp. 35-38. Counsel for
petitioner did not provide sufficient basis for claiming diplomatic
secrets privilege as supplied by the President or the proper head of
agency involved in foreign affairs, viz:
JUSTICE
CARPIO: But where is the diplomatic secret there, my question was
– does this refer, do the conversations refer to diplomatic secrets?
ATTY.
BAUTISTA: Well, it refers to our relationship with a friendly
foreign power.
JUSTICE
CARPIO: But that doesn’t mean that there are secrets involved
with our relationships?
ATTY.
BAUTISTA: Just the same Your Honors the disclosure will harm our
relationship with China as it now appears to have been harmed.
JUSTICE
CARPIO: But how can it harm when you have not given us any basis
for leading to that conclusion, you are just saying it is a commercial
contract, they discussed about the broadband contract but where are the
secrets there?
Counsel
for petitioner also admitted that there was no referral of any aspect
of the ZTE Contract to the Department of Foreign Affairs, viz:
CHIEF
JUSTICE PUNO: Do you also know whether there is any aspect of the
contract relating to diplomatic relations which was referred to the
Department of Foreign Affairs for its comment and study?
ATTY.
LANTEJAS: As far as I know, Your Honors, there was no referral to the
Department of Foreign Affairs, Your Honor.
CHIEF
JUSTICE PUNO: And yet you are invoking the doctrine of Executive
Privilege, because allegedly, this contract affects national security,
and would have serious impact on our diplomatic relations, is that
true? (p. 291)
[169]
Petition, Annex D-1.
[170]
Ibid.
[171]
TSN, Oral Argument, March 4, 2008, pp. 35-38. Counsel for
petitioner did not provide sufficient basis for claiming military and
national secrets privilege as supplied by the President or the proper
head of agency involved in military and national security, viz:
JUSTICE
CARPIO: Okay, you mentioned that the nature of the
discussion refers to military secrets, are you claiming that?
ATTY.
BAUTISTA: Yes, Your Honor, military concerns.
JUSTICE
CARPIO: Yes, was the Armed Forces of the Philippines or the
Intelligence Service of the Armed Forces of the Philippines were they
ever involved in the negotiation of the NBN contract, were they part of
the team that designed the NBN network?
ATTY.
BAUTISTA: I do not know Your Honor.
JUSTICE
CARPIO: So, how can you claim that it involves military secret when the
army, the military, the navy were not involved?
ATTY.
BAUTISTA: Because for one thing the Committee on National Defense and
Security is investigating it and there was mention that this facility
will be accessed and used by our military.
JUSTICE
CARPIO: So, you are just basing that on what the Senate is
doing, conducting an investigation, you are not basing it on what the
President is claiming?
ATTY.
BAUTISTA: Well, we cannot really divulge what it was that the President
said on the matter.
Counsel
for petitioner also admitted that in offering the justifications for
the invocation of executive privilege, he was only representing
petitioner and not speaking in behalf of the government, viz:
JUSTICE
TINGA: You do not in any way speak in behalf of the government or
any other government official let alone the Chief Executive, do you?
ATTY.
BAUTISTA: It is not my job, Your Honor, maybe the
Solicitor General. (p. 144)
Counsel
for petitioner also admitted that the ZTE Contract was not referred to
the Department of National Defense, viz:
CHIEF
JUSTICE PUNO: May I call, again, Atty. Lantejas. In the whole
process when this contract was conceptualized, negotiated and
concluded, was there any aspect of the contract that involved national
security and that was referred to the Department of National Defense
for comment?
ATTY.
LANTEJAS: As far as I know, Your Honor, I think there was
no referral to the National Defense, Your Honor. (pp. 291-292)
[172]
In re Grand Jury Subpoena Duces Tecum Issued to Richard M. Nixon, or
any Subordinate Officer, Official, or Employee with Custody or Control
of Certain Documents or Objects, 360 F. Supp 1, August 29, 1973.
[173]
Id., Note 8, p. 5, citing Brief in Opposition, p. 3.
[174]
157 F.Supp. 939, 944, 141 Ct.Cl. 38 (1958).
[175]
141 Ct. Cl. 38, 157 F.Supp. 939 (1958).
[176]
Almonte v. Vasquez, G.R. No. 95367 May 23, 1995, 244 SCRA 286 (1995);
Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006).
[177]
Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 51;
Comment, pp. 16-17.
[178]
487 F.2d 700, 717. The Court held, viz:
We
recognize this great public interest, and agree with the District Court
that such (Presidential) conversations are presumptively privileged…
(emphasis supplied)
[179]
Id. at 730. The Court, affirming Sirica held, viz:
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. (emphasis supplied)
[180]
See U.S. v. Haldeman, et al, 559 F.2d 31 (1976) and In re Sealed Case
(Espy), 121 F.3d 729 (1997).
[181]
G.R. No. 95367 May 23, 1995, 244 SCRA 286 (1995). Citing U.S. v.
Nixon, the Court held, viz:
In
addition, in the litigation over the Watergate tape subpoena in 1973,
the U.S. Supreme Court recognized the right of the President to the
confidentiality of his conversations and correspondence, which it
likened to “the claim of confidentiality of judicial
deliberations.” Said the Court in United States v. Nixon: 11
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 the government and inextricably rooted in the
separation of powers under the Constitution..(emphasis supplied)
[182]
G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006) at 51; Comment, pp.
16- 17.
[183]
II Record of the Constitutional Commission, p. 387.
[184]
See note 186, infra.
[185]
In Cheney v. United States District Court for the District of Columbia,
et al., the U.S. Supreme Court pointed out the distinction in context
between the case before it and U.S. v. Nixon. It cautioned that
the observation in U.S. v. Nixon that production of confidential
information in a criminal proceeding would not disrupt the functioning
of the Executive Branch could not be applied mechanically to the civil
litigation before it. The Court pointed out that in the criminal
justice system, there are mechanisms to filter out insubstantial legal
claims such as through responsible exercise of prosecutorial discretion
to prosecute a criminal case. In contrast, in civil litigation,
there is no sufficient mechanism to screen out unmeritorious or
vexatious claims against the Executive Branch wherein access to
Presidential communications may be sought. Cheney v. United States
District Court for the District of Columbia, et al., 542 U.S. 367 (2004). See also note 186, infra.
[186]
Lee, G., The President’s Secrets, 76 George Washington Law Review,
February 2008, 197.
Gia
B. Lee, professor of the UCLA School of Law and an outside counsel for
the General Accounting Office’s suit against US Vice President Richard
B. Cheney in Walker v. Cheney (230 F. Supp.2d 51, 53 [D.D.C. 2002]),
suggests a “differentiation approach” in assessing the President’s need
for confidentiality of his communications. She argues that the
commonsense or “too plain to require further discussion” assertion in
U.S. v. Nixon overstates the strength of the President’s interest in
confidentiality. The unexamined presumption fails to take into
account the qualified and contingent nature of the President’s need for
confidentiality. According to her, “(t)he extent to which the
lack of confidentiality will chill presidential deliberations is
neither fixed nor always substantial, but turns on a range of factors,
including the information under discussion and the specifics of the
proposed disclosure.” (Lee, G., The President’s Secrets, George
Washington Law Review, February 2008, 202) Thus, the “differentiation
approach” makes a searching review and assesses the likelihood that the
proposed disclosure would chill candid deliberations.
In
analyzing the Nixon cases, she asserts that the US Supreme Court in
U.S. v. Nixon adopted a slight “differentiation approach” in
considering the effect of the frequency of disclosure on the candor of
advisers and concluding that advisers will not 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 a criminal prosecution. Three years later,
after Nixon had resigned as President, the Court again employed a
“differentiation approach,” this time more heavily, in Nixon v.
Administrator of General Services. In that case, the Court ruled
in favor of disclosure of varied documents and communications of former
President Nixon pursuant to the Presidential Recordings and Materials
Preservation Act which directed the General Services Administrator to
take custody of the Nixon Administration’s papers and tape
recordings. The Court considered that the alleged infringement on
presidential confidentiality was not as great as the President claimed
it to be because the statute directed the Administrator to issue
regulations that would allow the President to assert the privilege
claims before any eventual public release of the documents, thus only
the archivists would have access to the materials; professional
archivists had regularly screened similar materials for each of the
prior presidential libraries and there had never been any suggestion
that such screening interfered with executive confidentiality even if
executive officials knew of the practice. Furthermore, the Court held
that the limited intrusion was justified in light of the desire of
Congress to preserve the materials for “legitimate historical and
governmental purposes” and the need in the wake of the Watergate
incident “to restore public confidence” in the nation's political
processes, and the need to enhance Congress's ability to craft remedial
legislation.
The
“differentiation approach” takes a measured approach to invocations of
presidential confidentiality. This approach argues against a
constitutional approach that simply assumes the substantiality of a
“generalized or undifferentiated interest in confidential presidential
communications, and in favor of an approach that demands
differentiating among confidentiality claims, depending on the nature
of the disclosures sought and the type of information sought to be
disclosed.
[187]
87 Phil. 29 (1950), p. 48.
[188]
Cheney v. United States District Court for the District of Columbia,
542 U.S. 367 (2004).
[189]
Letter of Executive Secretary Eduardo R. Ermita to Senator Alan Peter
Cayetano as Chairman of the Committee on Accountability of Public
Officers and Investigations dated November 15, 2007, Annex C of the
Petition; TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007,
pp. 91-92.
[190]
Id.; TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, pp.
114-115.
[191]
Id.; TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, pp.
275-276.
[192]
TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, pp. 43-44.
[193]
Id. at 91-92.
[194]
Id. at 105.
[195]
Id. at 114-115.
[196]
Id. at 275-276.
[197]
Comment, pp. 4-5.
[198]
Id. at 5.
[199]
Ibid.
[200]
Ibid.
[201]
Id. at 6.
[202]
Id. at 5-6.
[203]
Id. at 6 and 24, Annex A.
[204]
Id. at 7 and 24, Annex B.
[205]
Id. at 7, 24-25, Annex C.
[206]
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.
[207]
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.
[208]
An Act Mandating Concurrence to International Agreements and Executive
Agreements.
[209]
In the Oral Argument on March 4, 2008, counsel for the petitioner
revealed that included in the conversation of the President with
petitioner that respondent Senate Committees seek to be disclosed is
the weighing of options of the President, viz:
ATTY.
BAUTISTA: The subject of the communications from the setting which
gathered (sic), they dealt with the scenario of what if the contract
were scrapped, what if it were suspended, what if it were modified this
way and that way. (p. 26)
xxx
xxx xxx
ASSOCIATE
JUSTICE DE CASTRO: …What was the subject matter of the Executive and
policy decision-making process which you cite as one of the grounds to
invoke Executive privilege?
xxx
xxx xxx
ATTY.
BAUTISTA: That’s the subject matter, Your Honor. They were
discussing possible alternatives, the scenario what would happen if you
scrap it… (pp. 214-215)
[210]
In the Oral Argument on March 4, 2008, counsel for the petitioner
argued on the question of interest of the President in the NBN project
in relation to the first question, viz:
CHIEF
JUSTICE PUNO: Let us be more specific. Chilling effect, that is a
conclusion. The first question is, whether the President followed up
the NBN Project. If that question is asked from petitioner Neri, and he
answers the question, will that seriously affect the way the Chief
Executive will exercise the powers and the privileges of the Office?
ATTY.
BAUTISTA: Well, if the answer to that question were in the
affirmative, then it would imply, Your Honor, that the President has
some undue interest in the contract.
CHIEF
JUSTICE PUNO: The President may have interest, but not
necessarily undue interest.
ATTY.
BAUTISTA: Well, but in the atmosphere that we are in, where there
is already an accusatory mood of the public, that kind of information
is going to be harmful to the President.
CHIEF
JUSTICE PUNO: When you say accusatory, that is just your impression?
ATTY.
BAUTISTA: Yes, Your Honor, but I think it’s a normal and
justified impression from--I am not oblivious to what goes on, Your
Honor.
CHIEF
JUSTICE PUNO: But that is your impression?
ATTY.
BAUTISTA: Yes, Your Honor. (pp. 299-300)
[211]
TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, p. 66.
[212]
In the Oral Argument on March 4, 2008, counsel for petitioner argued on
this point, viz:
ATTY.
BAUTISTA: First, on page 2 of their Comment they said that there
is information which Neri refuses to disclose which may reveal her –
meaning, the President’s participation in the anomalous National
Broadband Project, no such thing, Your Honor. Page 27 of their
Comment, there is a mention that the invocation of the privilege is to
protect criminal activities like the bribery allegations of
unprecedented magnitude involved in the controversial NBM
Project. No such intent, Your Honor, the bribery he mentioned it
- he said Chairman Abalos – “Sec, may Two Hundred ka dito”. And
what did the President say – he said - do not accept it, that is all –
he did not say that the President do not accept it but ask for more and
have it split, no such thing Your Honor these are all speculative. (pp.
11-12)
[213]
354 U.S. 178 (1957), pp. 194-195.
[214]
Id. at 187.
[215]
Id. at 178.
[216]
Miller, R., “Congressional Inquests: Suffocating the Constitutional
Prerogative of Executive Privilege,” 81 Minnesota Law Review, February
1997, 631, 684-685 citing Mistretta v. United States, 488 U.S. 361,
384-97 (1989) (upholding the Sentencing Guidelines promulgated by the
United States Sentencing Commission); Morrison v. Olson, 487 U.S. 654,
691 (1988) (upholding provisions of the Ethics in Government Act);
Nixon v. Administrator of Gen. Services., 433 U.S. 425, 441-46 (1977)
(upholding the Presidential Records and Materials Preservation Act
because the Act is not “unduly disruptive of the Executive Branch”);
cf. Public Citizen v. United States Department of Justice, 491 U.S.
440, 486 (1989) (Kennedy, J., concurring) (suggesting that formalism
should be applied “[w]here a power has been committed to a particular
branch of the Government in the text of the Constitution.. [i.e.,]
where the Constitution draws a clear line”).
[217]
Comment, p. 25.
[218]
Id. at 26.
[219]
TSN, Oral Argument, March 4, 2008, pp. 416-422.
[220]
Id. at 297-306.
[221]
There is no case involving Presidential communications privilege
invoked in a legislative inquiry that has reached the US Supreme
Court. The case that comes closest to the facts of the case at
bar is Senate Select Committee v. Nixon (498 F.2d 725 [1974]) decided
by the Court of Appeals of the District of Columbia Circuit where it
laid down the “demonstrably critical test” to overcome the presumption
of confidentiality of presidential communication in a Senate
investigation. In this case, the Senate Committee to investigate
wrongdoing by the Nixon Administration subpoenaed taped conversations
of President Nixon. The D.C. Circuit Appellate Court ruled that
the Committee’s showing of need for the subpoenaed tapes “must depend
solely on whether the subpoenaed evidence is demonstrably critical to
the responsible fulfillment of the Committee’s functions.” The
subpoena did not pass the test because as observed by the court, there
were two possible reasons why the Committee needed the tapes -- to
expose corruption in the executive branch and to determine whether new
legislation was needed. The power of the Senate Committee to
investigate wrongdoing by the Nixon Administration did not provide
sufficient justification because the House Judiciary Committee was
conducting an impeachment inquiry at the same time and already had
copies of the subpoenaed tapes. The court, therefore, concluded
that the Watergate Committee’s need for the subpoenaed tapes to
investigate President Nixon was “merely cumulative.” The court
also assessed that the Committee did not need the tapes to educate
itself for it to recommend legislation. Noticeably similar or at
least consistent with the “function impairment approach,” the
“demonstrably critical test” of the D.C. Circuit Court of Appeals also
weighs how nondisclosure will impair the performance of the function of
the Senate Committee. Thus, subjecting the case at bar to the
“demonstrably critical test,” the Court should arrive at the same
result using the “function impairment test.”
[222]
Comment, p. 27.
[223]
Doherty, M., supra at 801.
[224]
Rozell, M., supra note 77 at 541, 555-556, citing Letter from George
Washington to James Madison (May 5, 1789), in 30 The Writings of George
Washington, 1745-1799, at 311 (John Fitzpatrick ed., 1931-1944).
[225]
Id. at 541, citing Raoul Berger, executive Privilege: A Constitutional
Myth (1974).
[226]
Nixon v. Sirica, 487 F.2d 700, p. 717, citing Committee for Nuclear
Responsibility v. Seaborg, 149 U.S.App.D.C. 385, 391; 463 F.2d 788, 794
(1971).
[227]
498 F.2d 725, 731 (1974), citing Committee for Nuclear Responsibility
v. Seaborg, 149 U.S.App.D.C. 385, 463 F.2d 788, 794 (1971). See
Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d
583 (1972).
[228]
Nixon v. Sirica 487 F.2d 700 at 719.
[229]
487 F.2d at 718.
[230]
Nixon v. Sirica, 487 F.2d 700 at 731.
[231]
121 F.3d 729 (1997).
[232]
Id. at 746 (1997).
[233]
Iraola, R., supra at 487.
[234]
Id. at 1586 (August 2002), footnote 161, citing 5 Op. Off. Legal
Counsel 27, 31 (1981); see also 10 Op. Off. Legal Counsel 68, 92 (1986)
(“[I]n cases in which Congress has a legitimate need for information
that will help it legislate and the Executive Branch has a legitimate,
constitutionally recognized need to keep information confidential, the
courts have referred to the obligations of each branch to accommodate
the legitimate needs of the other.”) (citing United States v. AT&T,
567 F.2d 121, 130 (D.C. Cir. 1977).
[235]
Cheney v. D.C. District Court, 542 U.S. 367 (2004), citing United
States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 97 L.Ed. 727 (1953).
[236]
Id. at 367, citing U.S. v. Nixon, 418 U.S. 683 at 692.
[237]
567 F.2d 121, 130 (D.C. Cir. 1977).
[238]
Miller, R., “Congressional Inquests: Suffocating the Constitutional
Prerogative of Executive Privilege,” 81 Minnesota Law Review, February
1997, 631.
[239]
TSN, Oral Argument, March 4, 2008, p. 13.
[240]
Resolution Directing the Blue Ribbon Committee and the Committee on
Trade and Industry to Investigate, in Aid of Legislation, the
Circumstances Leading to the Approval of the Broadband Contract with
ZTE and the Role Played by the Officials Concerned in Getting it
Consummated and to Make Recommendations to Hale to the Courts of Law
the Persons Responsible for any Anomaly in Connection therewith, if
any, in the BOT Law and other Pertinent Legislations. (Comment, pp. 4-5)
[241]
Delivered on September 11, 2007, entitled “Legacy of Corruption”;
Comment, p. 5.
[242]
Resolution Directing the Committee on National Defense and Security to
Conduct an Inquiry in Aid of Legislation into the National Security
Implications of Awarding the National Broadband Network Contract to the
Chinese Firm Zhong Xing Telecommunications Equipment Company Limited
(ZTE Corporation) with the End in View of Providing Remedial
Legislation that Will Further Protect Our National Sovereignty Security
and Territorial Integrity; Comment, p. 5.
[243]
Resolution Directing the Proper Senate Committee to Conduct an Inquiry,
in Aid of Legislation, on the Legal and Economic Justification of the
National Broadband Network (NBN) Project of the Government; Comment,
pp. 5-6.
[244]
Resolution Urging President Gloria Macapagal Arroyo to Direct the
Cancellation of the ZTE Contract; Comment, p. 6.
[245]
Delivered on November 24, 2007, entitled “International Agreements in
Constitutional Law: The Suspended RP-China (ZTE) Loan Agreement”;
Comment, p. 6.
[246]
“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”; Comment, pp. 6-7; Annex A.
[247]
“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”;
Comment, p. 7; Annex B.
[248]
“An Act Mandating Concurrence to International Agreements and Executive
Agreements”; Comment, p. 7; Annex C.
[249]
Supplemental Petition, Annex A.
[250]
Petition, Annex A.
[251]
The January 30, 2008 Order of arrest shows that it was signed by the
following Senators, viz:
Chairpersons:
1.
Cayetano, Alan Peter
2.
Roxas, MAR
3.
Biazon, Rodolfo
Members:
4.
Cayetano, Pia
5.
Escudero, Francis
6.
Honasan II, Gregorio Gringo
7.
Aquino III, Benigno
8.
Lacson, Panfilo
9.
Legarda, Loren
10.
Madrigal, M.A.
11.
Pimentel, Jr., Aquilino
Ex-Officio
Members:
12.
Ejercito Estrada, Jinggoy
13.
Pangilinan, Francis
14.
Pimentel, Jr., Aquilino
Senate
President:
15.
Manuel Villar. (Supplemental Petition, Annex A)
[252]
Sec. 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights
of persons appearing in or affected by such inquiries shall be
respected.
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