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
OPINION
YNARES-SANTIAGO,
J.:
The President does not have an unlimited discretionary privilege to
withhold information from Congress, the Judiciary or the public, even
if the claim is founded on one of the traditional privileges covered by
the doctrine on executive privilege. It was clearly stated in
Senate v. Ermita[1] that 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. In this sense, therefore, executive privilege
is not absolute. chanrobles virtual law library
Petitioner justified his non-appearance before the respondent Senate
Committees on the ground that the information sought by these
committees pertain to conversations he had with the President.
These conversations, if disclosed, would allegedly affect our
“diplomatic relations and economic and military affairs” and would
result to “possible loss of confidence of foreign investors and
lenders.” Specifically, petitioner assumed that he was being
summoned by the Senate Committees for the purpose of responding to
three questions which he refused to answer when he testified during the
September 26, 2007 Senate hearing. These questions are: (1)
whether the President followed up the ZTE-NBN project after petitioner
informed her of the P200M bribery attempt allegedly committed by then
COMELEC Chairman Benjamin Abalos;[2] (2) whether the President
instructed or dictated upon him to prioritize the ZTE-NBN project;[3]
and (3) whether the President instructed petitioner to go ahead and
approve the project despite being told of the alleged bribery
attempt.[4] chanroblesvirtualawlibrary
First, it was wrong for petitioner to assume that he was being summoned
by the Senate Committees only to answer the three questions cited
above. It may be true that he had exhaustively testified on the
ZTE-NBN project during the September 26, 2007 hearing, however, it is
not for him to conclude that the Senate Committees have gathered all
the necessary information that they needed. He cannot refuse to
appear before the Senate Committees on the assumption that he will
testify only on matters that are privileged. The Senate
Committees, in the exercise of their constitutionally-mandated
functions, can inquire into any matter that is pertinent and relevant
to the subject of its investigation.
Indeed, presidential conversations and correspondences have been
recognized as presumptively privileged under case law.[5] In US
v. Nixon,[6] the US Supreme Court upheld the privilege by reasoning
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.” However, the privilege attached to presidential
communications was not regarded as absolute. For while the
President’s need for complete candor and objectivity from advisers
calls for great deference from the courts, a generalized claim of
confidentiality, without more, cannot prevail over a specific need for
evidence in a pending criminal trial.[7] chanroblesvirtualawlibrary
Thus, presidential conversations and correspondences are not entirely
confidential and the privilege attached to this type of information may
yield to other considerations. In US v. Nixon, it was the
“fundamental demands of due process of law in the fair administration
of criminal justice” that was the overriding consideration which led to
the disallowance of the claim of privilege. In the instant case,
I submit that the grave implications on public accountability and
government transparency justify the rejection of the claim of executive
privilege. chanroblesvirtualawlibrary
The doctrine of executive privilege applies only to certain types of
information of a sensitive character that would be against the public
interest to divulge. As held in Senate v. Ermita,[8] the doctrine
is premised on the fact that certain information must, as a matter of
necessity, be kept confidential in pursuit of the public
interest. Considering that the privilege is an exemption from the
obligation to disclose information, the necessity for non-disclosure
must be of such high degree as to outweigh public interest.
Petitioner miserably failed to demonstrate that the reasons for his
non-disclosure far outweigh public interest. He has not
sufficiently shown that there is an imperative need to keep
confidential his conversations with the President regarding the ZTE-NBN
scandal. He failed to show how disclosure of the presidential
conversations would affect the country’s military, diplomatic and
economic affairs, as he so asserted to the Senate Committees and before
this Court. In fact, his counsel admitted that no military
secrets were involved in the conversations, only military
“concerns”.[9] Neither did the conversations necessarily refer to
diplomatic secrets, but only to “our relationship in general with a
friendly foreign power.”[10] These generalized claims do not
suffice to justify his refusal to disclosure. chanrobles virtual law library
Moreover, petitioner’s legal consultant, Atty. Paul Lentejas, admitted
during the oral arguments that there was nothing legally or morally
wrong if the President followed up on the status of the ZTE-NBN project
because she is, after all, the chairperson of the NEDA Board. It
was likewise admitted that by virtue of her position in the NEDA, the
President could justifiably prioritize the ZTE-NBN project.
Petitioner could have also pointed out that, as NEDA Director General,
he had no authority to approve the project, as that power belonged to
the NEDA Board which is headed by the President. [11] Evidently,
petitioner had no valid reason not to answer the three questions
propounded by the Senators.
Except for generally claiming that to require petitioner to answer the
three questions would have a “chilling effect” on the President, in
that she would be apprehensive to consult her advisers for fear of
being scrutinized by third parties, petitioner has not established any
compelling and demonstrable ground for claiming executive
privilege. The following exchange between Chief Justice Reynato
S. Puno and petitioner’s counsel, Atty. Antonio R. Bautista, is
enlightening: chanroblesvirtualawlibrary
CHIEF
JUSTICE PUNO:
In
the functional test, the t(h)rust is to balance what you said as the
benefits versus the harm on the two branches of government making
conflicting claims of their powers and privileges. Now, using the
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?chanrobles virtual law library
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 had 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 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.
x
x x
How
about the second question, which reads, were you dictated to
prioritize the ZTE, again, if this question is asked to petitioner
Neri, and responds to it?
ATTY.
BAUTISTA:
In
the affirmative?
CHIEF
JUSTICE PUNO:
I
don’t know how he will respond.
x
x x
How
will that affect the functions of the President, will that
debilitate the Office of the President?
ATTY.
BAUTISTA:
Very
much so, Your Honor.
x
x x
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. chanrobles virtual law library
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.
x
x x
CHIEF
JUSTICE PUNO:
How
about the third question, whether the President said to go ahead
and approve the project after being told of 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 ICC and the Board.chanrobles virtual law library
CHIEF
JUSTICE PUNO:
Again,
when you say undue interest, that is your personal opinion.
ATTY.
BAUTISTA:
Yes,
Your Honor.[12]
I do not see how public condemnation and criticism can have an adverse
effect on the President’s performance of her powers and functions as
Chief Executive. In a democracy such as ours, it is only to be
expected that official action may be met with negative feedback or even
outrage from a disapproving public. If at all, the public’s
opinion, negative or otherwise, should enhance the President’s
performance of her constitutionally-mandated duties. It is
through open discussion and dialogue that the government better
responds to the needs of its citizens and the ends of government better
achieved. chanroblesvirtualawlibrary
At this point, it would not be amiss to state that it was petitioner
who provided the Senate Committees with information that, prior to the
signing of the ZTE-NBN contract, he had told the President of the P200M
bribery attempt allegedly perpetrated by Chairman Abalos. As admitted
by petitioner’s counsel during the oral arguments of this case, the
allegation, if proven, would constitute a crime under our penal
laws.[13] To allow the details of this alleged crime to be
shrouded by a veil of secrecy “would permit criminal conspiracies at
the seat of government.”[14] Needless to say, the Constitution
could never sanction executive privilege as a shield for official
wrongdoing.
Finally, in his treatise on Executive Privilege and Congressional
Investigatory Power,[15] Professor Bernard Schwartz[16] explained that
the exercise of its authority to enact laws is but part of the work of
a legislature like the Congress. He further discussed, to wit: chanrobles virtual law library
The
primary tasks of modern legislative assemblies may be arranged in
four classes. First, but not necessarily foremost, is the
function of lawmaking. At least equally important is the
responsibility of supervising the Executive; the Legislature in this
role may be compared to a board of directors of a business corporation
which at least theoretically, endeavors to hold “administrative
officers to a due accountability for the manner in which they perform
their duties.” A third legislative office, broad in its
implications, involves activities as an organ of public opinion; a
lawmaking body may serve as a national forum for the expression,
formulation, or molding of opinion. The remaining function, which
may be termed membership, concerns internal matters especially the
judging of the qualifications and conduct of the delegates to the
Legislative Assembly.[17] chanrobles virtual law library
I thus vote for the dismissal of the petition.
CONSUELO
YNARES-SANTIAGO
Associate Justice
Footnotes: chanrobles virtual law library
chanrobles virtual law library
chanrobles virtual law library
[1]
G.R. No. 169777, April 20, 2006, 488 SCRA 1.
[2] Senate TSN, September 26, 2007, p. 91.
[3] Id. at 114-116.
[4] Id. at 275-276.
[5] See Almonte v. Vasquez, 314 Phil. 150 (1995).
[6] 418 U.S. 683 (1974).
[7] Id.
[8] Senate v. Ermita, supra note 1 at 68.
[9] Senate TSN, September 26, 2007, p. 42.
[10] Id. at 51.
[11] Id. at 321-328.
[12] Id. at 297-304.
[13] Id. at 34.
[14] Executive Privilege, the Congress and the Courts, Norman Dorsen
and John H.F. Shattuck, Ohio Law State Journal, Vol. 35 (1974), p. 33.
[15] California Law Review, Vol. 47 (1959), pp. 10-11.
[16] Professor of Law, New York University.
[17] Citing McGeary, The Development of Congressional Investigative
Power 23 (1940).
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