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
VELASCO,
JR., J.:
This case turns on the privileged nature of what the petitioner, as
then NEDA Director-General, discussed with the President regarding the
scuttled ZTE-NBN contract juxtaposed with the authority of respondents
Senate committees to look, in aid of legislation, into what was
discussed.
On September 26, 2007, petitioner, on invitation of the respondents,
testified on the ZTE-NBN contract and the bribe dangled in connection
thereto. When queried on what he discussed with the President after he
divulged the bribe offer, petitioner declined to disclose details of
their conversations which he deemed privileged. Anticipating to be
asked on the same subject and on order of the President invoking
executive privilege, petitioner sent regrets on his inability to appear
in the November 20, 2007 hearing. Respondents then asked the petitioner
to explain why he should not be cited for contempt. Explain petitioner
did, with a request that he be furnished in advance with questionnaires
should respondents desire to touch on new matters. The contempt threat,
which would eventually be carried out with the issuance of an arrest
order, is cast against a backdrop that saw petitioner
staying for 11 straight hours with the investigation committees and
answering all their questions, save those he deemed covered by
executive privilege. chanroblesvirtualawlibrary
Congressional investigations to elicit information in aid of
legislation are valid exercise of legislative power, just as the claim
of executive privilege is a valid exercise of executive power. In the
Philippine setting, the term “executive privilege” means the power of
the President to withhold certain types information from the courts,
the Congress, and ultimately the public.[1] Apart from diplomatic and
military secrets and the identity of government informers, another type
of information covered by executive privilege relates to information
about internal deliberations comprising the process by which government
decisions are reached or policies formulated.[2] U.S. v. Nixon explains
the basis for the privilege in the following wise: chanrobles virtual law library
The
expectation of a President to the confidentiality of his conversation
and correspondences, like the claim of confidentiality of judicial
deliberations x x x has all the values to which we accord deference for
the privacy of all citizens. x x x 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 privately. These are the considerations
justifying a presumptive privilege for Presidential
communications.[3]
Authorities are agreed that executive privilege is rooted on the
doctrine of separation of powers, a basic postulate that forbids one
branch of government to exercise powers belonging to another co-equal
branch; or for one branch to interfere with the other’s performance of
its constitutionally-assigned functions. It is partly in recognition of
the doctrine that “presidential conversations, correspondences, or
discussions during closed-door Cabinet meetings which, like
internal-deliberations of the Supreme Court x x x or executive sessions
of either house of Congress x x x cannot be pried open by a co-equal
branch of government.”[4] And as the Court aptly observed in Gudani v.
Senga,[5] the fact that the executive branch is an equal branch to the
legislative creates a “wrinkle” to any basic rule that persons summoned
to testify before Congress must do so. chanroblesvirtualawlibrary
So, was the eventual issuance of the assailed citation and arrest order
justified when the duly subpoenaed petitioner declined to appear before
the respondents’ hearing through a claim of executive privilege “By
Order of the President”? I turn to the extent and limits of the
legislative power of inquiry in aid of legislation.
What was once an implicit authority of Congress and its committees to
conduct hearings in aid of legislation––with the concomitant power
necessary and proper for its effective discharge[6]––is now explicit in
the 1987 Constitution.[7] And this power of inquiry carries with it the
authority to exact information on matters which Congress is competent
to legislate, subject only to constitutional restrictions.[8] The
Court, in Arnault v. Nazareno,[9] acknowledged that once an
inquiry is established to be within the jurisdiction of a legislative
body to make, the investigation committee has the power to require the
witness to answer any question pertinent to the subject of the inquiry
and punish a recalcitrant or unwilling witness for contempt. But
Bengson v. Senate Blue Ribbon Committee[10] made it abundantly clear
that the power of Congress to conduct inquiries in aid of legislation
is not “absolute or unlimited.”chanroblesvirtualawlibrary
Section 21, Article VI of the Constitution providing: chanrobles virtual law library
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.
Establishes what we tagged in Senate v. Ermita (Ermita) as “crucial
safeguards” that circumscribe the legislative power of inquiry. The
provision thus requires the inquiry to: (1) properly be in aid of
legislation, else, the investigating committee acts beyond its power;
without a valid legislative purpose, a congressional committee is
without authority to use the compulsory process otherwise available in
the conduct inquiry in aid of legislation;[11] (2) be done in
accordance with duly published rules of procedure, irresistibly
implying the constitutional infirmity of an inquiry conducted without
or in violation of such published rules; and (3) respect the rights of
persons invited or subpoenaed to testify, such as their right against
self-incrimination and to be treated in accordance with the
norms individuals of good will observe.
The Communications between Petitioner and the President are Covered by
Executive Privilege; the Privilege was Properly Claimed by and
for Petitioner
Executive Secretary Ermita, in line with Ermita, duly invoked, by order
of the President, executive privilege, noting, in a letter[12] to the
Chairperson of the Blue Ribbon Committee that the following
questions: chanrobles virtual law library
(1)
Whether the President followed up the (NBN) project?
(2)
Were you dictated to prioritize the ZTE? and
(3)
Whether the President said to go ahead and approve the project after
being told about the alleged bribe?
previously addressed to petitioner Neri, but left unanswered, “[fall]
under conversations and correspondence between the President and public
officials which are considered executive privilege.” And explaining in
some detail the confidential nature of the conversations, Sec. Ermita’s
letter further said: chanrobles virtual law library
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, [Sec. Neri] cannot provide the Committee any further details
of these conversations without disclosing the very thing the privilege
is designed to protect.
The information the petitioner sought to keep undisclosed regarding the
ZTE-NBN project dealt with high-level presidential communications with
a subordinate over a matter involving a foreign power. Allowing such
information to be extracted in an open-ended Senate committee
investigation after an 11-hour grilling Neri was subjected to is
tantamount to allowing a substantial, and unreasonable, incursion into
the President’s recognized right to confidentiality and to candidly
interact with her advisers, a right falling under the aegis of
executive privilege. The concept and assertion of executive privilege
are after all intended, following the Ermita precedent, to
protect a basic interest of the President, that is, the necessity that
she receives candid and unfettered advice from his subordinates and
that the latter be able to communicate freely and openly with her and
with each other.
Respondents, in their Comment and during the oral arguments, stressed,
and correctly so, that executive privilege cannot validly be
invoked to conceal a crime, the point apparently being that the
President knew of, or worse, was a player in the alleged ZTE-NBN
bribery drama. It ought to be pointed out, however, that it is a bit
presumptuous to suppose that what President and the petitioner
discussed was about a crime. And would not executive privilege be
reduced into a meaningless concept if, to preempt its application, any
congressional committee raises, if convenient, the crime angle? chanroblesvirtualawlibrary
In Ermita, the Court, citing US case law,[13] outlined the steps to
follow in claiming executive privilege. Foremost of these are: (1) it
must be clearly asserted, which petitioner did, and by the Government
to which the privilege belongs; (2) there must be a formal claim of
privilege, lodged by the head of the department having control over the
matter; and 3) the statement of the claim must be specific and the
claim must state the reasons for withholding the information. Save for
some broad statements about the need to protect military, diplomatic,
and national security secrets, all the requirements respecting the
proper manner of making the claim have satisfactorily been met. As we
explained in Ermita, the Senate cannot require the executive to state
the reasons for the claim with such particularity as to veritably
compel disclosure of the information which the privilege is designed to
protect in the first place. chanroblesvirtualawlibrary
It may be stated at this juncture that respondents committees
have certain obligations to comply with before they can exact
faithful compliance from a summoned official claiming executive
privilege over the matter subject of inquiry. Again, Ermita has laid
out the requirements to be met under that given scenario. They are, to
me, not mere suggestions but mandatory prescriptions envisaged as they
are to protect the rights of persons appearing or affected by the
congressional inquiries. These requirements are: First, the
invitation or subpoena shall indicate the possible questions to be
asked; second, such invitation or subpoena shall state the proposed
statute which prompted the need for the inquiry; and third, that the
official concerned must be given reasonable time to apprise the
President or the Executive Secretary of the possible need for invoking
executive privilege. For the purpose of the first requirement, it would
be sufficient if the person invited or subpoenaed is, at least,
reasonably apprised and guided by the particular topics to be covered
as to enable him to properly prepare. The questions need not be couched
in precise details or listed down to exclude all others.
Annex “B” of the Petition, or the subpoena ad testificandum dated
November 13, 2007 addressed to the petitioner literally makes no
reference to any intended legislation. It did not also accord him with
a fair notice of the questions likely to be asked. As it
were, the subpoena contained nothing more than a command for the
petitioner to appear before the Blue Ribbon Committee at a stated date,
then and there to “testify on what [he] know[s] relative to the subject
matter under inquiry.” And lest it be overlooked, it is not clear from
Annex “B” what matters relating to a proposed bill, if there be any,
cannot be addressed without information as to the specifics of the
conversation between the President and the petitioner.
In net effect, the subpoena thus issued is legally defective, issued as
it were in breach of what to me are mandatory requirements.
Accordingly, the non-compliance with the subpoena is, under the
premises, justifiable. Similarly, respondent committees are precluded
from imposing sanctions against the person, petitioner in this
instance, thus subpoenaed should the latter opt not to comply with the
subpoena.
Grave
Abuse of Discretion tainted the issuance of the Order of Arrest
The perceived obstructive defiance of the subpoena (Annex “B”,
Petition) triggered the issuance of the assailed contempt and arrest
order. It behooves the Court to now strike the said order down, not
only because its existence is the by-product of or traceable to, a
legally infirm subpoena, but also because the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation does not authorize the arrest
of unwilling or reluctant witness not before it. Surely,
respondents cannot look to Sec. 18 of the rules of procedure governing
legislative inquiries as the arrest-enabling provision since it only
speaks of contempt in the first place. Sec. 18 reads: chanrobles virtual law library
Sec.
18. Contempt. The Committee, by a majority vote 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 xxx
Such witness may be ordered by the Committee to be detained in such
place at 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.
I may even go further. Internal rules of procedure cannot plausibly be
the source of the power to issue an arrest order and, as has been the
practice, for the security unit of the Senate to enforce the order.
There must, I submit, be a law for the purpose and where the security
unit is given the enforcing authority. The power to issue an order of
arrest power is such an awesome, overreaching prerogative that the
Constitution, no less, even sets strict conditions before a warrant of
arrest will issue against a suspected criminal.[14] chanroblesvirtualawlibrary
The Court is very much aware that Sec. 3(c) of the Rules of the Senate
empowers the Senate President to “sign x x x orders of arrest.” It
cannot be overemphasized, however, that the order for the petitioner’s
arrest was a joint committee action which naturally ought to be
governed by the Rules of Procedure Governing Inquiries in Aid of
Legislation, not the Rules of the Senate. It would be a sad commentary
if Senate committees can choose to ignore or apply their very own rules
when convenient, given that violation of these rules would be an
offense against due process.[15]
But conceding for the nonce the authority of the
respondents to order an arrest, as an incident to its contempt
power, to be effected by their own organic security complement,
the assailed order would still be invalid, the same not having been
approved by the required majority vote of the respective members
of each of the three investigating committees. Respondents veritably
admitted the deficiency in votes when they failed to document or
otherwise prove––despite a commitment to do so during the oral
arguments––the due approval of the order of citation and arrest. And
unable to comply with a promised undertaking, they offer the lame
excuse that the matter of approval of the citation and arrest order is
a non-issue.
Philippine jurisprudence remains unclear on what Congress may do should
a witness refuse to obey a subpoena. Fr. Bernas has stated the
observation, however, that there is American jurisprudence which
recognizes the power of Congress to punish for contempt one who refuses
to comply with a subpoena issued by a congressional investigating body,
albeit the practice seems to be that the Congress asks a court to
directly order compliance with a subpoena.[16]
Conclusion
In sum, petitioner had not acted in a manner to warrant
contempt, arrest and detention. Far from it. He appeared
before respondents committees in the hearing of September 26, 2007
which, to repeat, lasted for 11 hours where he answered all the
questions not requiring, in response, divulging confidential matters.
Proper procedures were followed in claiming executive privilege, as
outlined in Ermita. In due time, he replied to the show-cause order the
respondents issued.
Considering the circumstances, as discussed, under which it was issued,
the assailed January 30, 2008 order should be struck down as having
been issued in grave abuse of discretion.
chanroblesvirtualawlibrary
I, therefore, vote to grant the petition.
PRESBITERO
J. VELASCO, JR.
Associate
Justice
Footnotes: chanrobles virtual law library
chanrobles virtual law library
chanrobles virtual law library
[1]
Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1.
[2] Id.
[3] 418 U.S. 683 (1974); cited in Almonte v. Vasquez, G.R. No. 95367,
May 23, 1995, 244 SCRA 286.
[4] Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002,
384 SCRA 152, 188-189.
[5] G.R. No. 170165, August 15, 2006, 498 SCRA 671.
[6] Sabio v. Gordon, G.R. No. 174340, October 17, 2006, 504 SCRA 704;
citing McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct.
[7] Art. VI, Sec. 21.
[8] Briggs v. MacKellar, 2 Abb. Pr. 30 (N.Y.) 1864), cited in Sabio v.
Gordon, supra.
[9] 87 Phil. 29 (1950).
[10] G.R. No. 89914, November 20, 1991; 203 SCRA 767, citing Arnault.
[11] Bengson v. Senate Blue Ribbon Committee, supra.
[12] Sec. Ermita’s letter dated Nov. 15, 2007 to Sen. Alan Peter
Cayetano, Annex “C,” Petition.
[13] U.S. v. Reynolds, 345 U.S 1, 73 S. Ct. 528.
[14] Art. III, Sec. 2 of the Constitution provides that no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly
describing the place to be searched or the persons and things to be
seized.
[15] Bernas, The 1987 Constitution of the Philippines: A Commentary
(2003), p. 740
[16] J.G. Bernas, “Sounding Board: Shielding the President.” Philippine
Daily Inquirer, February 11, 2008.
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