Republic
of the Philippines
SUPREME
COURT
Manila
EN
BANC
ROMULO
L. NERI,
Petitioner, |
-versus-
G.
R. No. 180643
March
25, 2008
SENATE
COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY,
Respondents.
|
SEPARATE
CONCURRING
OPINION
TINGA,
J.:
The determination of this petition must rest in part on the
constitutional character and purpose of the legislative inquiry
function of Congress, as delineated in Section 21, Article VI of the
Constitution. That such function is constitutionally vested in and
plenary to the legislature[1] is indubitable. Yet the mere
existence of the function does not mean that it is insusceptible to
appreciable limitations.
The purpose of legislative inquiry is constitutionally and
jurisprudentially linked to the function of legislation, i.e., the task
of formulating laws. The method of enacting sensible laws necessarily
requires a legislature that is well-informed of the factual background
behind the intended legislation. It is for such purpose, morally or
politically neutral as it may be, that the function exists as a
constitutional principle.
Given the wide publicity some legislative inquiries are able to
attract, especially when they call attention to wrongdoings on the part
of government officials or private individuals, there is somehow a
public perception that legislative inquiries are primarily vital in
their truth-seeking faculty. Perhaps the legislators who function as
inquisitors feel ennobled by that perception as well. Can this purpose,
which admittedly is neither morally nor politically neutral, be
accommodated in the constitutional function of legislative inquiries?
Facially yes, since the goal of legislative oversight is integrally
wedded to the function of legislative inquiries. In aiming to create
effective laws, it is necessary for our lawmakers to identify the flaws
in our present statutes. To the extent that such flaws are linked to
the malperformance of public officials, the resultant public exposure
and embarrassment of such officials retain relevance to the legislative
oversight and inquiry process.
Yet all the righteous, divinely-inspired fulminations that find
expression in the legislative inquiry cannot bestow on that process a
higher or different purpose than that intended by the Constitution.
Contrary as it may be to the public expectation, legislative inquiries
do not share the same goals as the criminal trial or the impeachment
process. The orientation of legislative inquiries may be remedial in
nature, yet they cannot be punitive in the sense that they cannot
result in legally binding deprivation of a person’s life, liberty or
property. No doubt that a legislative inquiry conducted under the glare
of klieg lights can end up destroying one’s life, livelihood or public
reputation – as many suspected American leftists discovered when they
were caught in the dragnet of persecution during the McCarthy era – yet
such unfortunate results should only incidentally obtain as a result of
an inquiry aimed not at specific persons, but at the framework of the
laws of the land.
It is vital to draw the distinction between legislative inquiries and
the other legal processes, such as impeachment or criminal trials, that
are oriented towards imposing sanctions in the name of the State. As
the latter processes embody the avenue of the State to impose
punishment, the Constitution establishes elaborate procedural
safeguards, also subsumed under the principles of due process and equal
protection, to assure a fair proceeding before sanction is levied. In
contrast, since the end result of a legislative inquiry is not
constitutionally intended to be legally detrimental to persons subject
of or participatory to the inquiry, the procedural safeguards attached
to it are more lenient. The Constitution does require that “[t]he
rights of persons appearing in or affected by such inquiries shall be
respected”, but such expression is less definitive than the rights
assured to persons subject to criminal procedure. For example, there is
no explicit constitutional assurance that persons appearing before
legislative inquiries are entitled to counsel, though Congress in its
wisdom may impose such a requirement.
Then there are the bald realities that a legislative inquiry is legally
animated not by any recognizable legislative function to seek out the
truth, but the existence of a political majority that desires to
constitute the inquiry. In the same manner that it is the legislative
majority rule that breathes life to, prolongs or shortens deliberation
of legislation, or simply dictates the legislative path, the same
nakedly political considerations drive the life, length and breadth of
legislative inquiries. Investigations are viable avenues for
legislators to exploit the headlines of the day for political capital,
whether they may concern rising oil prices, the particular diplomatic
ties with one or some nations, or the spectacle of Filipina actresses
making entertainment trips to Brunei. For as long as that political
majority exists, only the innate good sense of our legislators may
inhibit the inquiry, and certainly it is beyond the province of the
courts to prevent Congress from conducting inquiries on any or all
matters.
Thus, it may be conceded that a legislative inquiry is not constrained
by the same strictures that bind the criminal investigation process for
the benefit of an accused, and that such laxer standards may operate to
the detriment of persons appearing in or affected by legislative
inquiries. Yet this relative laxity is set off by the recognition of
the constitutional limitations on legislative inquiries even to the
extent of affirming that it cannot embody official State expression of
moral outrage, or of the State’s punitive functions. As compared to the
State processes that encapsulate the moral virtues of truth and
justice, the legislative process, including the inquiry function, is
ultimately agnostic. There can be no enforceable demand that a
legislative inquiry seek out the truth, or be an implement of justice,
in the same way that the legislature cannot be judicially compelled to
enact just or truth-responsive laws. The courts cannot sanction the
legislative branch for simply being morally dense, even at the expense
of appearing morally dense itself.
A different judicial attitude should obtain in analyzing State
functions allocated towards the investigation of crimes and,
concurrently, the determination of the truth, for the ultimate purpose
of laying down the full force of the law. For such purpose, the courts
may not be morally neutral, since the very purpose of the criminal
justice system is to enforce the paragon virtues of equal justice,
truth, and fair retribution. We are impelled to assume that the
prosecutors and judges proceed from rectitude, fair-mindedness and
impartiality; and necessarily must be quick to condemn if they instead
act upon socio-political motives or tainted considerations.
In view of the differing constitutive purposes and constitutional
considerations between legislative inquiries and criminal trials, there
can be differing applicable standards that the courts may appreciate
between these two processes. In the case at bar, if the question
involved were a claim of executive privilege invoked against a criminal
investigation, my analysis would be vastly different. If what was
involved was a criminal investigation, attendant as that function is to
the right of the State to punish wrongdoing, then any claim of
executive privilege designed to countermand the investigation could
easily be quashed. After all, our democracy is founded on the
consensual rule of a civilian president who is not above the law,
rather than a monarch who, by divine right, is the law himself.
But if the claim of executive privilege is invoked against a
legislative inquiry, run by a body that bears vastly different
attributes from those tasked with conducting criminal inquiries and one
which is, quite frankly, politically animated by constitutional design,
then the claim deserves greater deference. After all, such claim at
that instance cannot result in evasion of wrongdoers from punishment by
the State. At most, it would retard the ability of Congress to acquire
information that may be necessary for it to enact informed legislation.
It is against such constitutional purpose of Congress that the claim of
executive privilege should be tested.
To recall, the respondent Senate committees had asked petitioner Neri
three questions which he declined to answer, invoking executive
privilege, during his testimony on 26 September 2007. The three
questions were: (1) whether the President followed up on the NBN
project; (2) whether the petitioner was dictated upon to prioritize
ZTE; and (3) whether the president said go ahead and approve the
project after being told about the bribe attempt by former COMELEC
Chairman Benjamin Abalos.
Inescapably, all three questions pertain to the content of the
conversations of the president with petitioner Neri, who then was the
Chairman of the National Economic Development Authority. They involve a
government contract, the negotiation, review and approval of which was
related to the official functions of petitioner Neri and the president.
In Senate v. Ermita, the Court stated, as a general proposition, that
“the extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive privilege and in favor
of disclosure.”[2] The pronouncement was necessary in
Ermita, which involved a wrongheaded attempt by the President to shield
executive officials from testifying before Congress with a blanket
claim of executive privilege, irrespective of context. However, when
the claim is rooted in a conversation with the president and an
executive official relating to their official functions, should the
presumption against executive privilege apply? After all, not just six
years ago, the Court, through Justice Carpio, acknowledged that
“Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal deliberations of the
Supreme Court and other collegiate courts, or executive sessions of
either house of Congress, are recognized as confidential.”[3] chanroblesvirtualawlibrary
In the United States, perhaps the leading case on executive privilege
is U.S. v. Nixon,[4] where the claim was posed against the
enforcement of a judicial subpoena to produce tapes of conversations
with then-President Richard Nixon, issued after seven individuals were
indicted as criminal conspirators in relation to the Watergate scandal.
Manifestly, Nixon pertained to an invocation of executive privilege to
evade compliance with a judicial order issued in a criminal proceeding,
and not, as in this case, in a legislative inquiry; indeed, the U.S.
Supreme Court firmly moored its ruling against President Nixon on the
character of the criminal investigation. Still, the U.S. Supreme Court
acknowledged that there was “a presumptive privilege for Presidential
communications,” such being “fundamental to the operation of Government
and inextricably rooted in the separation of powers under the
Constitution.”[5] That point, which the parties in Nixon
acceded to without contest, was justified, thus: chanrobles virtual law library
The
expectation of a President to the confidentiality of his conversations
and correspondence, like the claim of confidentiality of judicial
deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens and, added to those values,
is the necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to
explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express
except privately. These are the considerations justifying a presumptive
privilege for Presidential communications.[6]
The existence of a presumption is hardly a foolproof shelter for the
president since it can be overturned, as was done in Nixon. Still, it
would be highly useful for the Court to acknowledge that the
presumption exists. Otherwise, the traditional exercise of functions by
all three branches of government will falter. If the president is
denied the presumption of confidentiality of his communications and
correspondence, there is no reason to extend such presumption of
confidentiality to executive sessions conducted by Congress, or to
judicial deliberations of this Court and all other lower courts. After
all, the three branches of government are co-equals.
Thus, at bar, the conversations between the president and petitioner
Neri should enjoy the presumptive privilege, on the same level as any
other official conversation or correspondence between the president and
her executive officials. They enjoy the same presumptive privilege as
the conversations or correspondence between the members of this Court
who used to work for the executive branch of government and the
presidents under whom they served.
The presumptive privilege attaching to presidential conversations or
correspondences falls under what the Court, in Ermita, had
characterized as “generic privilege,” which covers the internal
deliberations within the government, including “intragovernmental
documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental
decisions and policies are formulated.”[7] In such a case,
the privilege attaches not because of the content of the
correspondence, but because of the process under which such
correspondence has come into existence. In contrast, there are
varieties of executive privilege that pertain to the specific content
of the information. Most striking of these is the so-called “state
secrets privilege” which is predicated on the ground that “the
information is of such nature that its disclosure would subvert crucial
military or diplomatic objectives.”[8] The state secrets
privilege is undoubtedly content-based in character, such that there
would be no way of assessing whether the information is indeed of such
crucial character unless one is actually familiar with the information.
Petitioner Neri also cites diplomatic and state secrets as basis for
the claim of executive privilege, alluding for example to the alleged
adverse impact of disclosure on national security and on our diplomatic
relations with China. The argument hews closely to the state secrets
privilege. The problem for petitioner Neri though is that unless he
informs this Court the contents of his questioned conversations with
the president, the Court would have no basis to accept his claim that
diplomatic and state secrets would indeed be compromised by divulging
the same in a public Senate hearing.
Indeed, if the claim of executive privilege is predicated on the
particular content of the information, such as the state secrets
privilege, which the claimant refuses to divulge, there is no way to
assess the validity of the claim unless the court judging the case
becomes privy to such information. If the claimant fails or refuses to
divulge such information, I submit that the courts may not pronounce
such information as privileged on content-based grounds, such as the
state secrets privilege. Otherwise, there simply would be no way
to dispute such claim of executive privilege. All the claimant would
need to do is to invoke the state secrets privilege even if no state
secret is at all involved, and the court would then have no way of
ascertaining whether the claim has been validly raised, absent judicial
disclosure of such information.
Still, just because the claim of executive privilege in this case is
invoked as to the contents of presidential conversations with executive
officials, we must consider the presumptive privilege extant and
favorable to petitioner Neri. There is now need for respondents
to demonstrate that this presumptive privilege is outweighed by the
constituent functions of its own subject legislative inquiries.
How do we assess whether respondents have been able to overcome the
presumptive privilege? If the test is simply the need to divulge “the
truth,” then the presumption will always be defeated, without any
consideration to the valid concerns that gave rise to the presumption
in the first place. A more sophisticated approach is called for.
In Nixon, the U.S. Supreme Court weighed the presumptive privilege
against the aims of the criminal justice system, since the claim was
invoked in a criminal proceeding: chanrobles virtual law library
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.[9]
By
the same measure, the present claim of executive privilege should be
tested against the function of the legislative inquiry, which is to
acquire insight and information for the purpose of legislation. Simply
put, would the divulgence of the sought-after information impede or
prevent the Senate from enacting legislation?
I submit, with respect to the three questions asked of petitioner Neri,
that the Senate will not be impeded from crafting and enacting any
legislation it may link to the present inquiries should the privilege
be upheld. There is no demonstration on the part of respondents that
legislation will be rendered necessary or unnecessary should petitioner
Neri refuse to answer those questions. If respondents are operating
under the premise that the president and/or her executive officials
have committed wrongdoings that need to be corrected or prevented from
recurring by remedial legislation, the answers to those three questions
will not necessarily bolster or inhibit respondents from proceeding
with such legislation. They could easily presume the worst of the
president in enacting such legislation.
Likewise material to my mind is the well-reported fact that the subject
NBN-ZTE contract has since been scuttled by the president. If this
contract were still in existence and binding, there comes a greater
legislative purpose in scrutinizing the deal since Congress has
sufficient capability to enact legislation or utilize the power of
appropriations to affect the contract’s enforcement. Under such
circumstances, which do not obtain at present, the case for rejecting
the presumptive privilege would be more persuasive.
Let me supply a contrasting theoretical example. Congress has a
well-founded suspicion that the president and the executive officials
have not been candid about the state of the economy and have
manipulated official records in order to reflect an inaccurate economic
picture. Congress, in passing economic legislation, must necessarily be
informed of the accurate economic realities in order to pass laws that
are truly responsive to the state of the economy. In such a case, the
right of Congress to particular information related to the economic
state of affairs, as a means of passing appropriate legislation, will
supersede the presumptive privilege. Thus, whatever conversations or
correspondences the president may have had with executive officials
regarding the true state of the economy will not be sheltered by
executive privilege in the face of a duly constituted legislative
inquiry.
But at bar, respondents failed to demonstrate how the refusal of
petitioner Neri to answer the three subject questions would hamper its
ability to legislate. As such, the general presumptive privilege that
attaches to the conversations of the president with executive officials
supersedes the right of respondents to such information for the purpose
of its legislative inquiry.
The assailed Show-Cause Order, premised as it is on an improper
rejection of the claim of executive privilege, must thus be
invalidated. This does not mean that petitioner Neri should be
accordingly exempted from further appearing before the respondents, but
that he may not be compelled to answer those three questions or similar
variants thereof concerning his conversations with the president.
My position would have been vastly different had the three questions
arisen in the context of a criminal inquiry or an impeachment
proceeding. Because the constitutive purposes of such proceedings are
to ascertain the true set of facts for the purpose of prosecuting
criminal or impeachment trials, such purposes would outweigh the
generic, presumptive privilege that attaches to presidential
conversations. In such instance, if it is still desired to invoke the
privilege, there would be no choice but to compel the claimant to
adduce before a court the precise information asserted as privileged,
so that such court can decide whether the content of such conversation
justifies the privilege.
I vote to GRANT the petition and the supplemental petition, and concur
in the ponencia of Mme. Justice Teresita L. De Castro.
DANTE
O. TINGA
Associate Justice
Footnotes: chanrobles virtual law library
chanrobles virtual law library
chanrobles virtual law library
chanrobles virtual law library
chanrobles virtual law library
[1]
See Arnault v. Nazareno, 87 Phil. 29, 45 (1950); Senate v. Ermita, G.R.
169777, 20 April 2006, 488 SCRA 1, 42.
[2] Senate v. Ermita, G.R. No. 169777, 20 April 2006, 488
SCRA 1, 51.
[3] Chavez v. Public Estates Authority, 433 Phil. 506, 534
(2002).
[4] 418 U.S. 683 (1974).
[5] Id. at 708.
[6] Ibid.
[7] Senate v. Ermita, G.R. No. 169777, 20 April 2006, 488 SCRA 1,
46; citing I L. Tribe, American Constitutional Law (3rd
ed., 2000), at 770-771.
[8] Ibid.
[9] Supra note 4 at 709.
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