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LEONARDO-DE CASTRO, J.:
(1) P.S. Res. 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 AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT LEGISLATIONS.At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate, to wit:
(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled Á RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE ZTE CONTRACT
(3) 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 PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY.
(4) 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 NATIONAL GOVERNMENT.
Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended only the September 26 hearing, claiming he was "out of town" during the other dates.
- Senate Bill No. 1793, introduced by Senator Mar Roxas, 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;
- Senate Bill No. 1794, introduced by Senator Mar Roxas, 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; and
- Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS.
With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007.On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads:
Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).
Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit: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. 95637, 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 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.
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?
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.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.
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 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).On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege, thus:
The Senate expects your explanation on or before 2 December 2007.
It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007. During said hearing, I answered all the questions that were asked of me, save for those which I thought was covered by executive privilege, and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege. Hence, his request that my presence be dispensed with.In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo 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. The letter ended with a reiteration of petitioner's request that he "be furnished in advance" as to what else he needs to clarify so that he may adequately prepare for the hearing.
Be that as it may, should there be new matters that were not yet taken up during the 26 September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so that as a resource person, I may adequately prepare myself.
On the same date, petitioner moved for the reconsideration of the above Order.[9] He insisted that he has not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the show cause Letter "through the issuance of declaration of contempt" and arrest.ORDER
For failure to appear and testify in the Committee's hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas 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.
After the oral argument, the parties were directed to manifest to the Court within twenty-four (24) hours if they are amenable to the Court's proposal of allowing petitioner to immediately resume his testimony before the Senate Committees to answer the other questions of the Senators without prejudice to the decision on the merits of this pending petition. It was understood that petitioner may invoke executive privilege in the course of the Senate Committees proceedings, and if the respondent Committees disagree thereto, the unanswered questions will be the subject of a supplemental pleading to be resolved along with the three (3) questions subject of the present petition.[14] At the same time, respondent Committees were directed to submit several pertinent documents.[15]
- What communications between the President and petitioner Neri are covered by the principle of `executive privilege'?
1.a 1.b. 1.c - What is the proper procedure to be followed in invoking executive privilege?
- Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena?
The Court granted the OSG's motion the next day, March 18, 2008.
(1) (2) (3)
SECTION 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.Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation, Its aim is to elicit information that may be used for legislation, while Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress' oversight function.[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.
SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is `in aid of legislation' under Section 21, the appearance is mandatory for the same reasons stated in Arnault.The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held:
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission
Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.)
As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court's certiorari powers under Section 1, Article VIII of the Constitution.Hence, this decision.
The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG , [38]this Court held that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters." In Chavez v. PEA,[39] there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed.
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions "fall under conversation and correspondence between the President and public officials" necessary in "her executive and policy decision-making process" and, that "the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China." Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations.
1) 2) 3)
[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.The foregoing is consistent with the earlier case of Nixon v. Sirica, [46]where it was held that presidential communications privilege are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government "in the manner that preserves the essential functions of each Branch."[47] Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the "the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation." It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted.
It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.Respondent Committees further contend that the grant of petitioner's claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern.[50] We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege.
In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it `would aid in a determination whether legislative involvement in political campaigns is necessary' and `could help engender the public support needed for basic reforms in our electoral system.' Moreover, Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes.
We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have, quite apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. x x x We have been shown no evidence indicating that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for the tapes premised solely on an asserted power to investigate and inform cannot justify enforcement of the Committee's subpoena.
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied)
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.The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713,[51] Article 229[52] of the Revised Penal Code, Section 3 (k)[53] of R.A. No. 3019, and Section 24(e)[54] of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential[55] and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind.
There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen.The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases.
Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.
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.At any rate, as held further in Senate v. Ermita, [59] the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department.
"The Committee, by a vote of 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 proper questions by the Committee or any of its members."Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually participate in the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote the pertinent portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do not have the sufficient numbers. But if we have a sufficient number, we will just hold a caucus to be able to implement that right away because...Again, our Rules provide that any one held in contempt and ordered arrested, need the concurrence of a majority of all members of the said committee and we have three committees conducting this.Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the OSG's explanation:
So thank you very much to the members...
SEN. PIMENTEL. Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give him the floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the opinion that the Blue Ribbon Committee is the lead committee, and therefore, it should have preference in enforcing its own decisions. Meaning to say, it is not something that is subject to consultation with other committees. I am not sure that is the right interpretation. I think that once we decide here, we enforce what we decide, because otherwise, before we know it, our determination is watered down by delay and, you know, the so-called "consultation" that inevitably will have to take place if we follow the premise that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the lead committee here, and therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might have who are only secondary or even tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, "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."
So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or in session asked the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally question our subpoena as being insufficient in accordance with law.
SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken. But I'd like to advert to the fact that the quorum of the committee is only two as far as I remember. Any two-member senators attending a Senate committee hearing provide that quorum, and therefore there is more than a quorum demanded by our Rules as far as we are concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any event, the signatures that will follow by the additional members will only tend to strengthen the determination of this Committee to put its foot forward - put down on what is happening in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy, you know, the summons of this Committee. I know that the Chair is going through an agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know, the institution that we are representing because the alternative will be a disaster for all of us, Mr. Chairman. So having said that, I'd like to reiterate my point.
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions of the Minority Leader. But let me very respectfully disagree with the legal requirements. Because, yes, we can have a hearing if we are only two but both under Section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon Committee, there is a need for a majority of all members if it is a case of contempt and arrest. So, I am simply trying to avoid the court rebuking the Committee, which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that we should push for this and show the executive branch that the well- decided - the issue has been decided upon the Sabio versus Gordon case. And it's very clear that we are all allowed to call witnesses. And if they refure or they disobey not only can we cite them in contempt and have them arrested. x x x [62]
The phrase `duly published rules of procedure' requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm.And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as "unsatisfactory" and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention.
Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of dispatch and the immediate functioning of government. It is the long-term staying power of government that is enhanced by the mutual accommodation required by the separation of powers."
"some accident of immediate and overwhelming interest...appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend."[66]In this present crusade to "search for truth," we should turn to the fundamental constitutional principles which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted exercise of power. The Court's mandate is to preserve these constitutional principles at all times to keep the political branches of government within constitutional bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and uphold the Rule of Law.
(c) Disclosure and/or misuse of confidential information. -[13] SEC. 24. Disqualification by reason of privileged communication. - The following persons cannot testify as to matters learned in confidence in the following cases. (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by disclosure.
Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either:
(1) To further their private interests, or give undue advantage to anyone; or
(2) To prejudice the public interest.
(c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either:[52] Article 229. Revelation of secrets by an officer. - Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos shall be imposed.
(1) To further their private interests, or give undue advantage to anyone; or
(2) To prejudice the public interest.
(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.[54] Sec. 24. Disqualification by reason of privileged communications. - The following persons cannot testify as to matters learned in confidence in the following case: x x x
(a) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.[55] In Chavez v. Public Estates Authority, supra., the Supreme Court recognized matters which the Court has long considered as confidential such as "information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused." It also stated that "presidential conversations, correspondences, or discussions during close-door cabinet meetings which, like internal deliberations of the Supreme Court or other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. Such information cannot be pried-open by a co-equal branch of government.
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]
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]
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]
Resolution Urging President Gloria Macapagal Arroyo to Direct the Cancellation of the ZTE Contract. [7]
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]
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]
An Act Mandating Concurrence to International Agreements and Executive Agreements.[12]
The letter of Executive Secretary Ermita offered the following justification for the invocation of executive privilege on these three questions, viz:
"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]
"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.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]
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]
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----------------------------------------------xORDER
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 irregul arities, 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.
Committee on Accountability of
Public Officers & Investigations
(Blue Ribbon)
Committee on Tradeand
and Commerce
Committee on National Defense & Security
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).A complementary provision is Section 1 of Article XI on the Accountability of Public Officers, which states, viz:
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)
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]
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)
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 .
RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA AND THE TAMBOBONG ESTATES DEAL.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 :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 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.
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.
| 5. | Demonstrable Specific Need for Disclosure Will Overcome the Qualified Presumption |
... 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]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: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)
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.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: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)
... 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 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:
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)
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]
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]
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.
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.
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.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]
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)
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]
"a) Whether the President followed up the (NBN) project?"[189]The context in which these questions were asked is shown in the transcripts of the Senate hearing on September 26, 2007, viz:
"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]
On the first question -The Senate resolutions, titles of the privilege speeches, and pending bills that show the legislative purpose of the investigation are:
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]
- 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]
- 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]
- 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]
- P.S. Res. No. 144: "Resolution Urging President Gloria Macapagal Arroyo to Direct the Cancellation of the ZTE Contract."[200]
- Privilege Speech of Senator Panfilo M. Lacson, delivered on September 11, 2007, entitled "Legacy of Corruption."[201]
- 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]
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.
- 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]
- 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]
- Senate Bill No. 1317: "An Act Mandating Concurrence to International Agreements and Executive Agreements."[205]
| 2) | The second aspect: balancing the conflicting constitutional functions of the President and the Senate using the function impairment test |
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 PUNOThe 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.
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]
CHIEF JUSTICE PUNO: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.
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]
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.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]
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:
| 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 | |
| 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 | |
| Chairperson: Roxas, MAR - signed Vice-Chairperson: | ||
| Members: | Cayetano, Pia - signed | |
| | | |
| Ex-Officio Members: | Ejercito Estrada, Jinggoy - signed | |
| | Pangilinan, Francis - signed | |
| | Pimentel, Jr., Aquilino - signed | |
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)[17] Comment, p. 8; TSN, Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It reads in relevant part, viz: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)
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?[18] TSN, Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It reads in relevant part, viz:
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)
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.[19] TSN, Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It reads in relevant part, viz: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)
SEN. LACSON. Did you report this attempted bribe offer to the President?[20] Id. It reads in relevant part, viz:
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)
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?[21] Id. It reads in relevant part, viz:
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)
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...[23] Id. It reads in relevant part, viz:
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)
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.[24] Id. It reads in relevant part, viz:
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)
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?[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."
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)
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.[27] TSN, Oral Argument, March 4, 2008. It reads in relevant part, viz:
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)
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).[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.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.
Committee on Accountability of
Public Officers & Investigations
(Blue Ribbon)
Committee on Trade
and Commerce
Committee on National Defense & Security
22 November 2007[32] Petition, Annex D.
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:
Committee on Accountability of
Public Officers & Investigations
(Blue Ribbon)
Committee on Trade
and Commerce
Committee on National Defense & Security
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?[44] Samaha, A., "Government Secrets, Constitutional Law, and Platforms for Judicial Intervention," UCLA Law Review, April 2006, 909, 916.
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?
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.
[59] 87 Phil. 29 (1950).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.
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.
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.
JUSTICE CARPIO: But where is the diplomatic secret there, my question was - does this refer, do the conversations refer to diplomatic secrets?Counsel for petitioner also admitted that there was no referral of any aspect of the ZTE Contract to the Department of Foreign Affairs, viz:
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?
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?[169] Petition, Annex D-1.
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)
JUSTICE CARPIO: Okay, you mentioned that the nature of the discussion refers to military secrets, are you claiming that?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:
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.
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?Counsel for petitioner also admitted that the ZTE Contract was not referred to the Department of National Defense, viz:
ATTY. BAUTISTA: It is not my job, Your Honor, maybe the Solicitor General. (p. 144)
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?[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.
ATTY. LANTEJAS: As far as I know, Your Honor, I think there was no referral to the National Defense, Your Honor. (pp. 291- 292)
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).
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[182] G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006) at 51; Comment, pp. 16- 17.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 alternativesm, 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)
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.[187] 87 Phil. 29 (1950), p. 48.
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.
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)[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: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)
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?[211] TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, p. 66.
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)
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.
Chairpersons:[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.
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)
CHIEF JUSTICE PUNO: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.
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?
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 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 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 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.
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 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.
CHIEF JUSTICE PUNO:
Again, when you say undue interest, that is your personal opinion.
ATTY. BAUTISTA:
Yes, Your Honor.[12]
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]
I thus vote for the dismissal of the petition.
On 13 November 2007, the Blue Ribbon Committee issued a subpoena ad testificandum[8] requiring petitioner to appear again before it and testify further on 20 November 2007.
I. SEN. PANGILINAN: MR. NERI: SEN. PANGILINAN: MR. NERI: x x x II. SEN. LEGARDA: MR. NERI: SEN. LEGARDA: MR. NERI: SEN. LEGARDA: MR. NERI: x x x III. MR. NERI: SEN. CAYETANO, (P): MR. NERI: SEN. CAYETANO, (P): MR. NERI: SEN. CAYETANO, (P): MR. NERI: SEN. CAYETANO, (P): MR. NERI: SEN. CAYETANO, (P): MR. NERI:
Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit:Consequently, petitioner did not appear before respondents on 20 November 2007. Petitioner assumed that the only matters on which respondents would question him were exclusively related to his further discussions with the President relating to the NBN Project.
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?
Following the ruling in Senate vs. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v Vazquez, 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 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, is 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 defined in Senate vs. Ermita, and has advised Secretary Neri accordingly.[9]
After the oral arguments, the Office of the Solicitor General (OSG) filed on 17 March 2008 a Motion for Leave to Intervene and to Admit Attached Memorandum. The OSG argues that petitioner's discussions with the President are covered by executive privilege. The OSG assails the validity of the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation on the ground of lack of publication. On 18 March 2008, the Court granted the OSG's motion to intervene.
1. 2. 3.
7.03. Petitioner's discussions with the President were candid discussions mean[t] 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. (Emphasis supplied)Petitioner categorically admits that his discussions with the President "dwelt on the impact of bribery scandal involving high Government officials." Petitioner's discussions with the President dealt not on simple bribery, but on scandalous bribery involving high Government officials of the Philippines.
Petitioner admits, and there can be no dispute about this admission, that his discussions with the President dwelt on a bribery scandal involving high Government officials of the Philippines.
- His conversations with the President dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high Government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. x x x (Emphasis supplied)
Petitioner admits in his Petition, and through his counsel in the 15 November 2007 letter to the Senate Blue Ribbon Committee and during the oral arguments, that he discussed with the President a "bribery scandal involving high government officials." This particular discussion of petitioner with the President is not covered by executive privilege. The invocation of executive privilege on the three questions dwelling on a bribery scandal is clearly unjustified and void. Public office is a public trust[73] and not a shield to cover up wrongdoing. Petitioner must answer the three questions asked by the Senate Committees.
JUSTICE CARPIO: ATTY. BAUTISTA: JUSTICE CARPIO: ATTY. BAUTISTA: JUSTICE CARPIO: ATTY. BAUTISTA: JUSTICE CARPIO: ATTY. BAUTISTA: JUSTICE CARPIO: ATTY. BAUTISTA: JUSTICE CARPIO: ATTY. BAUTISTA: x x x. (Emphasis supplied)
While claiming that petitioner's discussions with the President on the NBN Project involved sensitive diplomatic matters, petitioner does not even know if the Department of Foreign Affairs (DFA) was involved in the NBN negotiations. This is incredulous considering that under the Revised Administrative Code, the DFA "shall be the lead agency that shall advise and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations."[77]
JUSTICE CARPIO: ATTY. BAUTISTA:[76] x x x x x x x x x CHIEF JUSTICE PUNO: ATTY. LANTEJAS:
Petitioner's counsel admits that he "cannot fathom" why petitioner refuses to answer the three questions. Petitioner's counsel admits that the three questions, even if answered by petitioner, will not disclose confidential Presidential discussions or diplomatic secrets. The invocation of executive privilege is thus unjustified.
ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS:[78] ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS: ASSOCIATE JUSTICE CARPIO: ATTY. LANTEJAS:
Dear Mr. Neri:[11] Id. at 19.
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 BY SENATOR AQUILINO 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 The 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 and To Plug Loopholes, If Any, In The BOT Law and Other Pertinent Legislations); P.S. RES. NO. 129 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 And Territorial Integrity); PRIVILEGE SPEECH OF SENATOR PANFILO M. LACSON entitled "LEGACY OF CORRUPTION" delivered on 11 September 2007; P.S. RES. NO. 136 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 24 September 2007; P.S. RES NO. 144 BY SENATOR MAR ROXAS (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 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.
[13] 433 Phil. 506 (2002).ORDER
For failure to appear and testify in the Committees's 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[s] 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 th[ese] 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.
Section 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. (emphasis supplied)This recognizes the power of Congress to conduct inquiries in aid of legislation. This power is intimately connected with the express power of legislation and does not even have to be expressly granted.[5] Nonetheless, the drafters of the Constitution saw it fit to include a provision that would clearly spell out this power. The incorporation of the rule on legislative inquiry in the Constitution, however, was not intended to authorize the conduct of such inquiries but to limit them[6] and to forestall possible abuse. On this account, Justice Isagani Cruz commented:
The reason is that in the past this power was much abused by some legislators who used it for illegitimate ends or to browbeat or intimidate witnesses, usually for grandstanding purposes only. There were also times when the subject of the inquiry was purely private in nature and therefore outside the scope of the powers of the Congress.Section 21, Article VI regulates the power of Congress to conduct legislative investigations by providing a three-fold limitation: (1) the power must be exercised in aid of legislation; (2) it must be in accordance with the duly published rules of procedure and (3) the rights of persons appearing in or affected by such inquiries shall be respected.
To correct these excesses, it is now provided that the legislative inquiry must be in aid of legislation, whether it be under consideration already or still to be drafted. Furthermore, the conduct of the investigation must be strictly in conformity with the rules of procedure that must have been published in advance for the information and protection of the witnesses.[7] (emphasis supplied)
Although only loosely restricting the substantive scope of congressional investigations, [Congress is required] to adopt important procedural safeguards in the conduct of its investigations. Because the Bill of Rights limits the lawmaking process as well as the content of resulting legislation, congressional investigators must respect the Fifth Amendment privilege against compelled self-incrimination, the Fourth Amendment prohibition against unreasonable searches and seizures, and the requirement of due process that, if government actors promulgate rules limiting their own conduct, they must comply with such rules.[13] (emphasis supplied)In this case, the Senate promulgated Rules of Procedure of the Senate Governing Inquiries in Aid of Legislation (Rules of Procedure of the Senate) as well as the Rules of the Committee on Accountability of Public Officers and Investigations (Rules of the Blue Ribbon Committee) pursuant to Section 21, Article VI. These rules of procedure serve as procedural safeguards in legislative investigations. They guarantee that proceedings are orderly, effective and efficient. More importantly, they shield the witnesses appearing before the Senate or its committees from unnecessary, unreasonable or arbitrary action on the part of the inquiring body or its members. Hence, they are the standards upon which the validity of any action undertaken by the Senate or its committees shall be measured.
Like the Constitution of the United States, ours does not contain an express provision empowering either of the two Houses of Congress to punish nonmembers for contempt. It may also be noted that whereas in the United States the legislative power is shared between the Congress of the United States, on the one hand, and the respective legislatures of the different States, on the other -- the powers not delegated to the United States by the Constitution nor prohibited by it to States being reserved to the states, respectively, or to the people -- in the Philippines, the legislative power is vested in the Congress of the Philippines alone. It may therefore be said that the Congress of the Philippines has a wider range of legislative field than the Congress of the Unites States or any State Legislature.Arnault was decided under the 1935 Constitution in which Section 21, Article VI of the 1987 Constitution has no counterpart. Since there was no provision on legislative inquiry at that time, Arnault defined and delimited the power "partly by drawing from American precedents and partly by acknowledging the broader legislative power of the Philippine Congress as compared to the U.S. Federal Congress which shares legislative power with the legislatures of the different states of the American union."[17]
Our form of government being patterned after the American system -- the framers of our Constitution having been drawn largely from American institution and practices -- we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our Constitution, as we have done in other cases in the past.
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 legislations is intended to affect or change; and where the legislative body does not itself possess the requisite information -- which is not frequently 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 hives 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.)[16] (emphasis supplied)
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House's duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure.An action as critical and as significant as an order of arrest must be done strictly in accordance with a specific provision in the duly published rules of procedure. Otherwise, it is constitutionally invalid.
Sec. 18. ContemptThe absence of a provision penalizing refusal or failure to comply with a subpoena ad testificandum should be interpreted against respondent Committees. Neri cannot be punished for contempt for lack of, again, the requisite published rules of procedure.
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 on that contempt. (emphasis supplied)-- ∞ -- -- ∞ -- -- ∞ --
SECTION 6. Contempt - (a) 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, including refusal to produce documents pursuant to a subpoena duces tecum, 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 on that contempt.
(b) A report of the detention of any person for contempt shall be submitted by the Sergeant-at-Arms to the Committee and the Senate. (emphasis supplied)
SEC. 9. Contempt. - Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.The contempt provision of Rule 21 expressly penalizes the unwarranted failure to obey a subpoena (whether ad testificandum or duces tecum) as contempt of court. In contrast, the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee cover only the following acts of a witness before it: disobedience of any committee order including refusal to produce documents pursuant to a subpoena duces tecum, refusal to be sworn or to testify or to answer a proper question and giving of false or evasive testimony.
The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information or, which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity . (emphasis supplied)[17] Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, G.R. No. L-72492, 05 November 1987, 155 SCRA 421.
Sec. Ermita then asked that petitioner's testimony be dispensed with, given that he had answered all questions propounded to him except the three questions which, so he claimed, involved executive privilege.
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?[6]
MR. NERI But we had a nice golf game. The Chairman 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.Upon further questioning, petitioner shortly thereafter testified that he reported to the President what he perceived as Chairman Abalos' bribe offer, to wit:
THE SENATE PRESIDENT Ano'ng sinabi mo noong sabihin niyang 200?
MR. NERI As I said, and 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 was said to me.(Emphasis supplied)
SEN. LACSON. You were shocked, you said.When he was asked whether he and the President had further discussions on the NBN project after he reported to her the alleged bribe offer, petitioner began invoking executive privilege, thus:
MR. NERI. Yeah, I guess, I guess.
SEN. LACSON. Bakit kayo na-shock?
MR. NERI. Well, I [am] 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 niyo?
MR. NERI. I said no amount was put, but I guess given the magnitude of the project, siguro naman hindi P200 or P200,00, (sic) 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 that it was offered to you?
MR. NERI. I remember it was over the phone, Your Honor.
SEN. LACSON. Hindi nga. Papaano ninyo ni-report, "Inoperan (offer) ako ng bribe na P200 million ni Chairman Abalos" or what? How did you report it to her?
MR. NERI. Well, as I said, "Chairman Abalos offered me 200 million for this."
SEN. LACSON. Okay. That clear?
x x x x
MR. NERI. I think so, Your Honor.
SEN. LACSON. And after she told, "Do not accept it," what did she do?
MR. NERI. I don't know anymore, Your Honor, but I understand PAGC investigated it or - I was not privy to any action of PAGC.
SEN. LACSON. You are not privy to any recommendations submitted by PAGC?
MR. NERI. No, Your Honor.
SEN. LACSON. How did she react, was she shocked also like you or was it just casually responded to as, "Don't accept it."
MR. NERI. It was over the phone, Your Honor, so I cannot see her facial expression.
SEN. LACSON. Did it have something to do with your change of heart, so to speak - your attitude towards the NBN project as proposed by ZTE?
MR. NERI. Can you clarify, Your Honor, I don't understand the change of heart?
SEN. LACSON. Because, on March 26 and even on November 21, as early as November 21, 2006, during the NEDA Board Cabinet Meeting, you were in agreement with the President that it should be pay as you use and not take or pay. There should be no government subsidy and it should be BOT or BOO or any similar scheme and you were in agreement, you were not arguing. The President was not arguing with you, you were not arguing with the President, so you were in agreement and all of a sudden nauwi tayo doon sa lahat ng - ang proposal all in violation of the President's guidelines and in violation of what you thought of the project.
MR. NERI. Well, we defer to the implementing agency's choice as to how to implement the project.
SEN. LACSON. Ah, so you defer to the DOTC.
MR. NERI. Basically, Your Honor, because they are the ones who can now contract out the project and in the process of contracting, they can also decide how to finance it.
SEN. LACSON. In other words, NEDA performed a ministerial job?
MR. NERI. No, Your Honor. Basically NEDA's job is to determine the viability. And as I said, after determining the viability, NEDA tells agency, "Go ahead and . . ."
SEN. LACSON. But it did not occur to you that you were violating the specific guidelines of the President on the scheme?
MR. NERI. I am not privy to the changes anymore, Mr. Chair, Your Honors.[19]
SEN. PANGILINAN. You mentioned 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?Although petitioner answered many other questions subsequent to his invocation of the privilege, he kept on invoking the privilege whenever, in his judgment, the questions touched on his further conversations with the President on the NBN project. Hereunder is the exchange of Senator Legarda and petitioner, quoted extensively so as to provide the context of petitioner's invocation of executive privilege in this particular instance:
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 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.
x x x x
SEN. PANGILINAN. Well, you can assert it. But whether we will accept it or not is up to us, and then we can probably discuss it... However, I will tackle that at a later time.[20] (Emphasis and underscoring supplied)
SEN. LEGARDA. And when you expressed that support to AHI, does this mean the exclusion of all other proponents on the broadband project?Again, petitioner invoked executive privilege when Senator Pia Cayetano asked him what else the President told him besides instructing him not to accept the alleged bribe offer.
MR. NERI. Not at all, Your Honor. In effect, I'm telling him [Jose De Venecia III], "I think it's a great idea, please proceed." But as I said, Your Honor, we never process private sector . . .
SEN. LEGARDA. Suppliers contracts.
MR. NERI. Yeah, we do not.
SEN. LEGARDA. Okay, very clear.
Also in the letter of Chairman Ramon Sales, who is present here today, of the Commission of Information and Communications Technology [CICT] dated December 8, 2006 addressed to NEDA, he categorically stated and I quote: "That he cannot opine on the capability of the proponent" - referring to AHI which you had encouraged or supported earlier, two months earlier, to undertake the project referring to the broadband network financially and technically as AHI has not identified strategic partners. Do you confirm receipt of this letter?
MR. NERI. I believe so, Your Honor. I remember that letter.
x x x x
SEN. LEGARDA. In what way did this opinion of the CICT affect your endorsement or encouragement of AHI?
MR. NERI. I'm not sure. I think I encouraged him first before the CICT letter.
SEN. LEGARDA. Yes, that is a chronology.
MR. NERI. Yeah. So by that time, we left it already to the line agencies to decide. So it is not for us anymore to say which supplier is better than one over the other.
SEN. LEGARDA. Did you ever endorse any proponent of the broadband network, Secretary Neri?
MR. NERI. No, Your Honor. When I say "endorse", not formally choosing one over another. We do not do that.
SEN. LEGARDA. Do you believe in the Broadband Network Project of the Philippines, of the Philippine government regardless of supplier?
MR. NERI. The broadband is very important, Your Honor. Because as I said earlier, if you look at the statistics in our broadband cost, Philippines is $20 per megabits per second as against...
SEN. LEGARDA. Yes, you have stated that earlier.
x x x x
SEN. LEGARDA. But no proponent for the local broadband networks had submitted any possible bid or any proposal to the NEDA?
MR. NERI. None that we know of, Your Honor.
SEN. LEGARDA. None that you know of. Now, earlier you were in favor of a BOT but eventually changed your mind when the NEDA endorsed the ZTE project. May we know, since NEDA is a collegial body, whether there was any voting into this project and whether you were outvoted?
MR. NERI. Because we always defer to the line agencies as to the manner of implementation of the project.
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 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.
SEN. LEGARDA. I was not even referring to a conversation between you and the President. Are you saying then that the prioritization of ZTE was involved during your conversation with the President?
MR. NERI. As I said, I cannot comment on that, Your Honor.
SEN. LEGARDA. Yes, but I was not referring to any conversation between you and the President but you brought it up now upon my questioning on whether there was any government official who had instructed you to favor the ZTE. We put two and two together and it is therefore assumed that the answer to the question is conveyed in your conversation with the President to which you are invoking that executive privilege.
MR. NERI. There is no higher public official than me than the President, Mr. Chair, Your Honor.
SEN. LEGARDA. There's no higher official than you? It has to be the vice president . . .
MR. NERI. In other words, when we talk about higher officials, I guess we are referring to the President, Your Honor.
SEN. LEGARDA. So, you're invoking executive privilege and therefore, that answer to that question is left hanging, whether there was any official who gave instructions to prioritize the ZTE over other proponents of the NBN project. And you're saying now that there was no voting among the NEDA and in fact . . .
MR. NERI. Mr. Chair, Your Honor, we don't vote. We don't vote on the manner of implementation. We vote on whether the project is deemed viable or not.
SEN. LEGARDA. Yes, but were you overruled over your preference for a BOT project?
MR. NERI. As I said Your Honor, this is a consensus of the NEDA Board, NEDA ICC. Our consensus was that the project is viable. We leave it to the line agency to implement. My own personal preference here will not matter anymore because it's a line agency . . .
SEN. LEGARDA. But did you actually discuss this with the President and told her not to approve this project or not to proceed with this project? Did you discourage the President from pursuing this project?
MR. NERI. As I said, Mr. Chair, this covers conversations with the President.[21] (Emphasis and underscoring supplied)
MR. NERI. She said "Don't accept it," Your Honor.Petitioner thereafter answered other questions on which he did not invoke executive privilege. However, when asked about whether he advised the President not to proceed with the NBN project in light of the alleged bribe offer, petitioner again invoked the privilege.
SEN. CAYETANO, (P). And was there something attached to that like . . . "But pursued with a project (sic) 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 . . .
SEN. CAYETANO, (P). Ah, so that's the part where you invoke your executive privilege, is that the same thing or is this new, this invocation of executive privilege?
My question is, after you had mentioned the 200 million and she said "Don't accept," was there any other statement from her as to what to do with the project?
MR. NERI. As I said, it was part of a longer conversation, Your Honor, so . . .
SEN. CAYETANO, (P). A longer conversation in that same - part of that conversation on an ongoing day-to-day, week-to-week conversation?
MR. NERI. She calls me regularly, Your Honor, to discuss various matters.
SEN. CAYETANO. But in connection with, "Ma'am na-offer-an ako ng 200." - Ah, don't accept, next topic," ganoon ba `yon? Or was there like, "Alam mo, magandang project sana `yan, eh pero bakit naman ganyan."
MR. NERI. As I said, Your Honor, beyond that I would not want to go any further, Your Honor.[22] (Emphasis and underscoring supplied)
SEN. LACSON. x x xA similar concern, it bears noting, was expressed by Senator Roxas, as Chairman of respondent Committee on Trade and Commerce, when he asked the following question to petitioner:
Would not an offer of 200 which you later on interpreted as a 200 milion-peso bribe offer from Chairman Abalos in relation to the NBN project not posit the view that it was an outright overpriced contract?
MR. NERI. We cannot determine our pricing, Your Honor. The NEDA staff tried very, very hard . . .
SEN. LACSON. Even with an offer of 200 million, you would not think it was overpriced?
MR. NERI. That's right, Your Honor. It's possible that they take it out of their pockets. And I had a NEDA staff checked the internet for possible overpricing. The national interest issue in this case, Your Honor, is determined by the economic rate of return. And the economic rate of return was determined at 29.6%. It is very high. Meaning that the project has its benefits despite any potential overpricing, Your Honor.
SEN. LACSON. Did you not at least warn the President that it could be a potential stinking deal considering that it was attended by bribe offer?
MR. NERI. For that, Your Honor, I'd like to . . .
VOICE. Executive privilege.
SEN. LACSON. Executive privilege.
MR. NERI. That's right, Your Honor.[23](Emphasis and underscoring supplied)
THE CHAIRMAN (SEN. ROXAS). Oh, sige, okay. Ngayon, I don't want to repeat anymore the debate as to the executive privilege that is still pending so I will set that aside. But my question is, since that time, since February of 2007, through the NEDA meetings, at least there were two in 2007, March 26 and March 29, when this was approved, did this subject of the bribe ever come up again? Hindi ka ba nagtaka na ni-report mo it okay Pangulo, sinabihan ka na huwag mong tanggapin, tama naman iyong utos na iyon, huwag mong tanggapin, at matapos noon, wala nang na-take up and noong lumitaw muli itong NBN-ZTE, hindi ka ba nagkamot ng ulo, "What happened, bakit buhay pa rin ito, bakit hindi pa rin - naimbestigahan ito o ano bang nangyari rito," since you reported this first hand experience of yours to the President.From the foregoing excerpts of the September 26 hearing, it may be gleaned that the three questions fairly represent the questions actually posed by the senators respecting which petitioner invoked executive privilege.
That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.In determining whether, in a given case, the public interest in favor of disclosure outweighs the public interest in confidentiality, courts often examine the showing of need proffered by the party seeking information. A discussion of what this showing of need entails is thus in order.
The leading case on executive privilege in the United States is U.S. v. Nixon, decided in 1974. In issue in that case was the validity of President Nixon's claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the President's general interest in the confidentiality of his conversations and correspondences. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President's powers. The Court, nonetheless, rejected the President's claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are rare. Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washington's refusal to turn over treaty negotiations records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue. However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case [Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725; May 23, 1974.] decided in the same year as Nixon, recognized the President's privilege over his conversations against a congressional subpoena. Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena.[24] (Emphasis and underscoring supplied)
The President's privilege cannot, therefore, be deemed absolute. We think the Burr case makes clear that application of Executive privilege depends on a weighing of the public interest protected by the privilege against the public interests that would be served by disclosure in a particular case. We direct our attention, however, solely to the circumstances here. With the possible exception of material on one tape, the President does not assert that the subpoenaed items involve military or state secrets; nor is the asserted privilege directed to the particular kinds of information that the tapes contain. Instead, the President asserts that the tapes should be deemed privileged because of the great public interest in maintaining the confidentiality of conversations that take place in the President's performance of his official duties. This privilege, intended to protect the effectiveness of the executive decision-making process, is analogous to that between a congressman and his aides under the Speech and Debate Clause; to that among judges, and between judges and their law clerks; and similar to that contained in the fifth exemption to the Freedom of Information Act.While Sirica involved a conflict between the Executive and the grand jury, not between the Executive and Congress, the same court later applied the same balancing approach, even explicitly citing the Sirica decision, in a controversy involving the President and a Senate committee over executive privilege.
x x x x
We recognize this great public interest, and agree with the District Court that such conversations are presumptively privileged. But we think that this presumption of privilege premised on the public interest in confidentiality must fail in the face of the uniquely powerful showing made by the Special Prosecutor in this case. The function of the grand jury, mandated by the Fifth Amendment for the institution of federal criminal prosecutions for capital or other serious crimes, is not only to indict persons when there is probable cause to believe they have committed crime, but also to protect persons from prosecution when probable cause does not exist. As we have noted, the Special Prosecutor has made a strong showing that the subpoenaed tapes contain evidence peculiarly necessary to the carrying out of this vital function - evidence for which no effective substitute is available. The grand jury here is not engaged in a general fishing expedition, nor does it seek in any way to investigate the wisdom of the President's discharge of his discretionary duties. On the contrary, the grand jury seeks evidence that may well be conclusive to its decisions in on-going investigations that are entirely within the proper scope of its authority. x x x (Emphasis and underscoring supplied)
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. Contrary, therefore, to the apparent understanding of the District Court, we think that Nixon v. Sirica requires a showing of the order made by the grand jury before a generalized claim of confidentiality can be said to fail, and before the President's obligation to respond to the subpoena is carried forward into an obligation to submit subpoenaed materials to the Court, together with particularized claims that the Court will weigh against whatever public interests disclosure might serve. The presumption against any judicially compelled intrusion into presidential confidentiality, and the showing requisite to its defeat, hold with at least equal force here.Thus, a government agency that seeks to overcome a claim of the presidential communications privilege must be able to demonstrate that access to records of presidential conversations, or to testimony pertaining thereto, is vital to the responsible performance of that agency's official functions.
Particularly in light of events that have occurred since this litigation was begun and, indeed, since the District Court issued its decision, we find that the Select Committee has failed to make the requisite showing. x x x (Emphasis and underscoring supplied)
THE CHAIRMAN (SEN. ROXAS). No, no, I'm not talking about - I'm not taking sides here whether it's AHI or ZTE or what. I'm looking at the approval process by government because that approval process which is the most important element of these entire hearings because it is that same approval process that billions and billions of government money are going through, `no. So, we want to tighten that up. We want to make sure that what we discussed here in this very hall which is to raise VAT to 12 percent and to cover with VAT electricity and petrol is not just put to waste by approval process that is very loose and that basically has no checks and balances. (Underscoring supplied)If the three questions were understood apart from their context, a case can perhaps be made that petitioner's responses, whatever they may be, would not be crucial to the intelligent crafting of the legislation intended in this case. As earlier discussed, however, it may be perceived from the context that they are all attempts to elicit information as to why the NBN project, despite the apparent overpricing, ended up being approved by the Executive and financed via a government loan, contrary to the original intention to follow a BOT scheme. This is the fundamental query encompassing the three questions.
Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in the millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporation, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG's efficacy x x x (Emphasis and underscoring supplied)If, in a case where the intended remedial legislation has not yet been specifically identified, the Court was able to determine that a testimony is vital to a legislative inquiry on alleged anomalies - so vital, in fact, as to warrant compulsory process - a fortiori should the Court consider herein petitioner's testimony as vital to the legislative inquiry subject of this case where there are already pending bills touching on the matter under investigation.
under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment,I submit that it would be unwise to infer therefrom that, in the assessment of claims of privilege, indications that the privilege is being used to shield officials from investigation is immaterial. Otherwise, what would then be the point of stating that "[a] claim of privilege may not be used to shield executive officials and employees from investigations by the proper government institutions into possible criminal wrongdoing"?
x x x there should be no executive privilege when the Congress has already acquired substantial evidence that the information requested concerns criminal wrong-doing by executive officials or presidential aides. There is obviously an overriding policy justification for this position, since the opposite view would permit criminal conspiracies at the seat of government to be shrouded by a veil of an advice privilege. While the risk of abusive congressional inquiry exists, as the McCarthy experience demonstrates, the requirement of "substantial evidence" of criminal wrong-doing should guard against improper use of the investigative power.[28]When, as in this case, Congress has gathered evidence that a government transaction is attended by corruption, and the information being withheld on the basis of executive privilege has the potential of revealing whether the Executive merely tolerated the same, or worse, is responsible therefor, it should be sufficient for Congress to show - for overcoming the privilege - that its inquiry is in aid of legislation.
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.
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?
He failed to return and face further inquiry before the respondent Senate Committees in the hearing set for 20 November 2007. Executive Secretary Eduardo A. Ermita and Atty. Antonio R. Bautista, as petitioner Neri's counsel, sent separate letters to the respondent Senate Committees consistently asserting that petitioner Neri's non-appearance at the hearing was upon the President's order; and his conversations with the President on the NBN Project, the apparent subject of further inquiry by the respondent Senate Committees, were covered by executive privilege since they involved national security and diplomatic matters. Respondent Senate Committees found unsatisfactory petitioner Neri's explanation for his non-attendance at the hearing, thus, in an Order dated 30 January 2008, cited him for contempt and directed his arrest and detention in the Office of the Senate Sergeant-At-Arms "until such time that he will appear and give his testimony."
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?
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.)[8]In the same case, the Court also qualified the extent of the Legislature's power of inquiry:
But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.)In the Petition at bar, the Senate relies on its power of inquiry as embodied in Article VI, Section 21 of the Constitution, which reads:
Since, as we have noted, the Congress of the Philippines has a wider range of legislative field than either the Congress of the United States or a State Legislature, we think it is correct to say that the field of inquiry into which it may enter is also wider. It would be difficult to define any limits by which the subject matter of its inquiry can be bounded. It is not necessary for us to do so in this case. Suffice it to say that it must be coextensive with the range of the legislative power.[9]
Section 21. The Senate or 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.In citing petitioner Neri in contempt and ordering his arrest, however, the respondent Senate Committees had overstepped the boundaries of its appointed sphere, for it persists to acquire information that is covered by executive privilege and beyond its jurisdiction to inquire.
The right to information, however, does not extend to matters recognized as privileged information under the separation of powers. The right does not also apply to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused, which courts have long recognized as confidential. The right may also be subject to other limitations that Congress may impose by law.A more extensive explanation for the rationale behind the executive privilege can be found in United States v. Nixon,[12] to wit:
There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover 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. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case. (Emphasis ours.)
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 Government and inextricably rooted in the separation of powers under the Constitution.It is clear from the foregoing that executive privilege is not meant to personally protect the President, but is inherent in her position to serve, ultimately, the public interest. It is not an evil thing that must be thwarted at every turn. Just as acts of the Legislature enjoy the presumption of validity, so must also the acts of the President. Just all other public officers are afforded the presumption of regularity in the exercise of their official functions, then what more the President, the highest Executive official of the land. Hence, when the President claims that certain information is covered by executive privilege, then rightfully, said information must be presumptively privileged.[13]
x x x x
Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article. Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any `ordinary individual.' It is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. x x x (Emphasis ours.)
Consistent with the requirement laid down in Ermita, petitioner Neri attended the 26 September 2007 investigative hearing on the afore-mentioned Senate bills, even though he was obviously ill that day, answered all the other questions of the Senators regarding the NBN Project including the attempted bribery upon him, except the three questions for which he invoked executive privilege by order of the President. Respondent Senate Committees failed to establish that petitioner Neri's answers to these three questions are indispensable, or that they are not available from any other source, or that the absence thereof frustrates the power of the Senate to legislate.
- Senate Bill No. 1793, introduced by Senator Mar Roxas, 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."
- Senate Bill No. 1794, introduced by Senator Mar Roxas, 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."
- Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled "An Act Mandating Concurrence to International Agreements and Executive Agreements."
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance.[16] (Emphasis ours.)Yet the respondent Senate Committees unexplainably failed to comply therewith.
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.
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.
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:
(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?
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.
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]
The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens, and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping polices and making decisions and to do so in a way many would be unwilling to express except privately. These are the consideration justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. [2]However, it is simply a generalized privilege of confidentiality and does not enjoy the same degree of unqualified acceptance as the governmental privilege against public disclosure of state secrets regarding military, diplomatic and other national security matters. Further, it must be formally claimed or asserted by the appropriate executive official. As held in U.S. v. Reynolds: [3]
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by the officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.In the Philippines, we ruled in Senate v. Ermita,[4] that it is only the President, or the Executive Secretary "by order of the President," who may invoke executive privilege.
Executive Secretary Ermita articulated the position taken by the executive department in this wise:
- Whether the President followed-up the NBN project?
- Were you dictated (by the President) to prioritize the ZTE (proposal)?
- Whether the President said to go ahead and approve the project after being told about the alleged bribe (offer)?[7]
Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision-making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for the protection of the public interest in candid, objective, and even blunt harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations.On the other hand, the respondents contended that in the exercise of their power to conduct inquiries in aid of legislation under Section 21, Article VI of the Constitution, they are entitled to the disclosure of the information sought from the petitioner. In opposition to the claim of executive privilege, they also raised the general constitutional principles of full public disclosure of all transactions involving public interest,[9] the right of the people to information on matters of public concern,[10] public office is a public trust,[11] the President's duty to faithfully execute the laws,[12] and the due process clause.[13] Finally, they cited the postulate that executive privilege cannot be resorted to in order to shield criminal activity or wrongdoing.
The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, [the petitioner] cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.[8]
The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of criminal prosecution.However, in almost the same breath, the U.S. Court aired the caveat that this ruling is "not concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets."[18]
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal case.[17]
The Court of Appeals dismissed these separation of powers concerns. Relying on United States v. Nixon, it held that even though respondents' discovery requests are overbroad and "go well beyond FACA's requirements," the Vice-President and his former colleagues on the NEPDG "shall bear the burden" of invoking privilege with narrow specificity and objecting to the discovery requests with "detailed precision." In its view, this result was required by Nixon's rejection of an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances". x x xAs to the conflict between the confidentiality interest invoked by the President and congressional demands for information in a legislative investigation, there is a close parallel between the instant case and Senate Select Committee on Presidential Campaign Activities v. Nixon.[21]
The analysis, however, overlooks fundamental differences in the two cases. Nixon involves the proper balance between the Executive's interest in the confidentiality of its communication and the "constitutional need for production of relevant evidence in a criminal proceeding." The Court's decision was explicit that it was "not ... concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation ... We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials."
The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. x x x In light of the "fundamental" and "comprehensive" need for "every man's evidence" in the criminal justice system, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth." The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to the production of relevant evidence in civil proceedings does not have the same "constitutional dimensions."[20]
We concluded that presidential conversations are presumptively privileged, even from the limited intrusion represented by in camera examination of the conversations by a court. The presumption can be overcome only by an appropriate showing of public need by the party seeking access to the conversations. In Nixon v. Sirica, such a showing was made by the Special Prosecutor: we think that this presumption of privilege premised on the public interest in confidentiality must fall in the face of the uniquely powerful showing by the Special Prosecutor. x x x As we have noted, the Special Prosecutor has made a strong showing that the subpoenaed tapes contain evidence peculiarly necessary to the carrying out of this vital function - evidence for which no effective substitute is available. The grand jury here is not engaged in a general fishing expedition, nor does it seek in any way to investigate the wisdom of the President's discharge of his discretionary duties. On the contrary, the grand jury seeks evidence that may well be conclusive to its decisions in on-going investigations that are entirely within the proper scope of this authority.[24]The Court then denied the prayer of the Select Committee in this wise:
We find that the Select Committee has failed to make the requisite showing. In its papers below and in its initial briefs to this Court, the Committee stated that it seeks the materials in question in order to resolve particular conflicts in the voluminous testimony it has heard, conflicts relating to "the extent of malfeasance in the executive branch," and, most importantly, the possible involvement of the President himself. The Committee has argued that the testimony before it makes out "a prima facie case that the President and his closest associates have been involved in criminal conduct," that the "materials bear on that involvement," and that these facts alone must defeat any presumption of privilege that might otherwise prevail.Applying the foregoing decisions to the case at bench, it is my view that the respondents' need for disclosure of the information sought from the petitioner does not at all approximate the "constitutional dimensions" involved in criminal proceedings. While it is true that the Senate Committees, when engaged in inquiries in aid of legislation, derive their power from the Constitution, this is not a situation analogous to that in Nixon, where the court's ability to fulfill its constitutional mandate to resolve a case or controversy within its jurisdiction hinged on the availability of certain indispensable information. Rather, as in Senate Select Committee, this is a situation where Senate Committees insist on obtaining information from the petitioner, without at all any convincing showing how and why the desired information "is demonstrably critical to the responsible fulfillment of the Committees' functions." Indeed, respondents have not adequately explained how petitioner's answers to the three questions are crucial to the task of crafting the intended legislation given the inescapable fact that numerous other persons, from the ranks of government and the private sector, had been called to and had already testified at the respondent's hearings.
It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigation by the proper governmental institutions into possible criminal wrongdoing. x x x But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.
x x x x
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress's legislative tasks and the responsibility of a grand jury, or an institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least, not in the circumstances of this case.[25]
While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings.It is not uncommon for some legislative measures to be fashioned on the strength of certain assumptions that may have no solid factual precedents. In any event, the respondents have not demonstrated that the information sought is unqualifiedly necessary for a legitimate legislative purpose, or that the intended legislation would be stillborn without petitioner's responses to the three questions. The respondents have likewise failed to show that the information needed for legislation cannot be obtained from sources other than the petitioner. In fine, the presumption was not successfully rebutted.
Upon invocation of the claim of privilege by the President to whom subpoena duces tecum had been directed, it was the duty of the district court to treat the subpoenaed material as presumptively privileged and to require the special prosecutor to demonstrate that the presidential material was essential to justice of the pending criminal case.[27]Thus, the Court addressed the issue of executive privilege only after it was satisfied that the special prosecutor had adequately met these demanding requirements.
But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.It is the function of the respondents to investigate criminal activity; this is a responsibility of other agencies, such as the Office of the Ombudsman. This Court may even take judicial notice of the fact that the Ombudsman, upon a request of the President, has already commenced a criminal investigation into the subject of the legislative inquiry, the NBN deal. Presumably, the Ombudsman has already summoned the petitioner to give testimony therein, and by analogy with Nixon v. Sirica, petitioner cannot withhold information in that investigation by invoking executive privilege.
One possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statements in its invitations, along with the usual indication of the subject of the inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.In reply, the respondents admitted that they did not. This admission has cast a shadow on the regularity of the inquiry such that even the main argument of respondents could fall.