Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643 March 25, 2007
ROMULO L. NERI, in his capacity as Chairman of the Commission on Higher Education (CHED) and as former Director General of the National Economic and Development Authority, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS & INVESTIGATIONS (BLUE RIBBON), SENATE COMMITTEE ON TRADE & COMMERCE, and SENATE COMMITTEE ON NATIONAL DEFENSE & SECURITY, respondents.
S E P A R A T E C O N C U R R I N G O P I N I O N
BRION, J.:
I vote to grant the petition from the prism of two striking features of this case.
First, this case involves a frontal clash between the two great branches of government - the Executive and the Legislature. Caught in between, although identified with the Executive, is the petitioner Romulo L. Neri ("Neri" or "petitioner"). I point this out because in this frontal clash the law expressly recognizes the man in the middle – Neri - as an individual whose rights have to be respected and who should therefore be given sufficient focus as an individual in this Court’s consideration of the issues.
The second point relates to the breadth of the issues raised. Because of the frontal clash, the question of the proper parameters for the use of "executive privilege" has been raised by the parties. The factual situation, however, only involves the petitioner’s three (3) cited (and the possibly related follow up) questions and puts into issue only the privileged status of conversations and correspondence between the President and Neri in the exercise of executive and policy decision making. At least two (2) Justices1 strongly implied that the Court can provide a more comprehensive ruling on the executive privilege issue if the petitioner would be allowed to appear at the Senate to answer questions, subject to his right to invoke executive privilege in answering further questions and to the Court’s ruling on all the questions claimed to be covered by executive privilege. Unfortunately, the Senate did not positively respond to these suggestions; hence, the narrow issues confronting Us in this case.
Tension between the Executive and the Senate, without doubt, has been building up since the issuance of Executive Order 464 which this Court struck down in part in Our decision in Senate v. Ermita.2 Our decision, however, did not totally ease the tension and was evidently still there when petitioner Neri was invited to the Senate in September 2007, leading to a series of events (more fully described below) that culminated in the Senate Committees’ issuance of a citation for contempt and an arrest order for Neri.
Under the terms of the present petition, the direct issue raised is whether the Senate acted with grave abuse of discretion in ordering the arrest of Neri considering the processes that led to the order of arrest and the substantive conclusion that no valid claim to executive privilege had been made.
On the processes aspect, I conclude that the Senate processes were attended by fatal infirmities that should invalidate the contempt citation and the order of arrest. Even allowing for the attendant tension, the inter-branch lack of cooperation, and Neri’s admitted absences, the Senate Committees’ arrest order was a misplaced move from the strictly legal point of view and one that was out of proportion to the attendant circumstances under the standards of common human experience.
This view proceeds from no less than the 1987 Constitution that expressly provides that "The rights of persons appearing in or affected by such inquiries shall be respected".3 Interestingly, this Section as a whole seeks to strengthen the hand of the Legislature in the exercise of inquiries in aid of legislation. In so doing, however, it makes the above reservation for the individual who may be at the receiving end of legislative might. What these "rights" are the Section does not expressly say, but these rights are recognized by jurisprudence and cannot be other than those provided under the Bill of Rights – the constitutional provisions that level the individual’s playing field as against the government and its inherent and express powers.4
Thus, Neri cannot be deprived of his liberty without due process of law, as provided under Article III Section 1 of the Bill of Rights. Short of actual denial of liberty, Neri should – as a matter of constitutional right – likewise be protected from the humiliation that he so feared in a congressional investigation.5 All these rights should be guaranteed to him without need of distinguishing and hairsplitting between coercive and punitive contempt.
The petitioner’s travails started when he was summoned to appear before the Senate Committees in relation with the inquiry into the ZTE-NBN Project for the supply of telecommunication equipment and services. He did not appear at the first hearing on September 18, 2007 and on October 25, 2007, but he showed up and testified at the hearing of September 26, 2007. This hearing took all of eleven (11) hours and ended in an executive session that was cut short because of Neri’s deteriorated physical condition.
For the hearing of November 20, 2007, the Senate Committees issued Neri a subpoena ad testificandum to formally compel his attendance. In response, Neri referred the matter to the President who ordered him to invoke executive privilege. Executive Secretary Ermita implemented the presidential directive by writing the Senate a letter claiming executive privilege for the President and asking that the presence of Neri be dispensed with since he had been examined extensively in the hearing of September 26, 2007.6
The Senate did not formally reply to the Ermita letter and instead sent its "show cause" order of November 22, 2007 for Neri to explain why he should not be cited for contempt for his absence on November 20, 2007.7 Neri himself and his counsel replied to the "show cause" order, further explaining his non-attendance and offering to attend for examination on other non-privileged matters.8 On top of this reply, he came to this Court on December 7, 2007 via the present petition for a definitive judicial ruling.
The Senate Committees chose to disregard these explanations and the claim of executive privilege, and instead issued the currently disputed Order (dated January 30, 2008) citing Neri "in contempt of this (sic) Committees". . ."(f)or failure to appear and testify in the Committees’s (sic) hearings on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007 and Tuesday, November 20, 2007. . .".9
Even from a strictly layman’s perspective, I cannot see how arrest and imprisonment can be justified for one who has complied with the most essential Senate requirements, i.e., to testify and to explain his failure to attend. Neri did comply with the Senate’s orders to attend and testify; underwent hours of grilling before the Senate Committees; did submit explanations for the times when he could not comply; and committed to attend future hearings on matters that are not privileged. To further ensure that he is properly guided, Neri sought judicial intervention by recourse to this Court through the present petition.
Under these circumstances, his arrest cannot but be highly unfair. This is particularly true if, as suggested during the oral arguments, there were middle ground moves that would have avoided an arrest order had there been more inter-branch cooperation between the contending great branches of government – a condition that is largely out of Neri’s control and capacity to bring about.
From a legal perspective, I see no indication from the given facts of this case, of the defiance that merited the condemnation of Congress and the support of this Court for the congressional arrest order in Arnault v. Nazareno10. I also do not see how Neri could validly be cited for contempt and ordered arrested for all his absences11 after having been formally asked to explain only one absence, namely, that of November 20, 2007.12 I likewise cannot help but note that the arrest order strongly suggests a lack of inter-branch courtesy, this time by the Senate as against this Court whose formal intervention Neri has sought. I note too that the arrest order runs counter to the respondents’ open manifestation on oral arguments that the Senate itself wanted the issue of Neri’s attendance resolved through the petition that Senator MAR Roxas himself brought before this Court.13
That the Senate committees engaged in shortcuts in ordering the arrest of Neri is evident from the record of the arrest order. The interpellations by Justices Tinga and Velasco of Senators Rodolfo G. Biazon (Chair of the Committee on National Defense and Security) and Francis N. Pangilinan (Senate Majority Leader) yielded the information that none of the participating Committees (National Defense and Security, Blue Ribbon, and Trade and Commerce) registered enough votes to approve the citation of contempt and the arrest order.14 An examination of the Order dated 30 January 200815 shows that only Senators Alan Peter Cayetano, Aquino III, Legarda, Honasan and Lacson (of 17 regular members) signed for the Blue Ribbon Committee; only Senators Roxas, Pia Cayetano, Escudero and Madrigal for the Trade and Commerce Committee (that has 9 regular members); and only Senators Biazon, and Pimentel signed for the National Defense and Security Committee (that has 19 regular members). Senate President Manny Villar, Senator Aquilino Pimentel as Minority Floor Leader, Senator Francis Pangilinan as Majority Floor Leader, and Senator Jinggoy Ejercito Estrada as President Pro Tempore, all signed as ex-officio members of the Senate standing committees but their votes, according to Senator Biazon’s testimony, do not count in the approval of committee action.
Asked about these numbers, Senator Pangilinan as Majority Floor Leader could only state that any defect in the committee voting had been cured because the sixteen (16) senators who voted, or two-thirds of the Senate, effectively signed for the Senate in plenary session.16 The Order of arrest, however, was issued in the names of the three participating committees, and was signed by the sixteen (16) senators as committee members, either regular or ex-oficio, and not as senators acting in plenary. Furthermore, Section 18 of the Rules Governing Inquiries in Aid of Legislation, does not authorize the committees to issue a warrant of arrest against a witness who fails to obey a subpoena ad testificandum. This power is vested solely by Rule III Section 3 of the Rules of the Senate on the Senate President. While Senate President Manny Villar did sign the arrest order together with the members of the three (3) participating committees, there still appeared no valid basis for his action for lack of effective and valid supporting committee action authorizing the order of arrest; the signatures of the sixteen (16) senators were mere unintended results of their respective participation in the investigating committees, and did not reflect their intent to sign as senators in plenary session. The contempt citation and order of arrest therefore do not have any basis in effective committee and Senate actions and cannot thus stand as valid.
Thus, in more ways than one, the rights of petitioner Neri – the individual – were grossly violated by Senate action in contravention of the constitutional guarantee for respect of individual rights in inquiries in aid of legislation. If only for these proven violations, We should grant Neri’s petition.
The Senate Committees’ apparent conclusion that the questions – both the expressly cited and the related follow-ups – are not covered by executive privilege appears to miss the point of the letter of Secretary Ermita when he claimed the privilege for conversations and correspondence of the President in the exercise of her executive and policy decision making. Although Secretary Ermita stated that the information might impair diplomatic as well as economic relations with the People’s Republic of China, the thrust of the claimed privilege is not so much the "content" of the conversation or correspondence, but the fact of conversation in the course of executive and policy decision making. In other words, it is not necessary for the conversation or correspondence to contain diplomatic, trade or military secret as these matters are covered by their own reasons for confidential treatment. What is material or critical is the fact of conversation or correspondence in the course of official policy or decision making; privilege is recognized to afford the President and her executives the widest latitude in terms of freedom from present and future embarrassment in their discussions of policies and decisions. This narrow exception to the rule on disclosure and transparency ultimately redounds to the public interest in terms of the quality and timeliness of executive policies and decisions and, in this sense, is not anathema to other constitutional guarantees relating to the people’s right to know and public accountability. Like police and other inherent powers of government, it may seemingly give the government a strong hand but in the end is best for the common good.
Significantly, this type of privilege is not for the Executive to enjoy alone. All the great branches of government are entitled to this treatment for their own decision and policy making conversations and correspondence. It is unthinkable that the disclosure of internal debates and deliberations of the Supreme Court or the executive sessions of either Houses of Congress can be compelled at will by outside parties. We need not cite foreign authorities for this proposition as We have so ruled in Chavez vs. Public Estates Authority.17
Thus, these types of Presidential conversations are presumed privileged once it is established that they refer to official policy or decision making.18 The operative words for the presumption to arise are "official policy or decision making". To be sure, the presumption is not absolute as the purpose is not to shield the President from any and all types of inquiries. Where a higher purpose requiring disclosure is present and cited in the proper proceeding, then the privilege must fall and disclosure can be compelled. As the oral arguments on the case showed, all parties are agreed that the privilege cannot be used to shield crime as disclosure will then serve the higher purpose of bringing injustice to light.
Concretely applied to the case of Neri, the privilege presumptively applied after Neri claimed, with the authority of the President, that his phone conversation with her related to the handling of "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". The key word in this statement is "impact" in the economic policy sense (as Neri was then the head of NEDA), not the fact of bribery which, as a crime, the President must discuss with the police, law enforcers and prosecutors, not with her economic team members.
Unless and until it can therefore be shown in the proper proceeding that the Presidential conversation related to her involvement in, knowledge of or complicity in a crime, or where the inquiry occurs in the setting of official law enforcement or prosecution, then the mantle of privilege must remain so that disclosure cannot be compelled. This conclusion is dictated by the requirement of order in the delineation of boundaries and allocation of governmental responsibilities. The "proper" proceeding is not necessarily in an inquiry in aid of legislation since the purpose of bringing crime to light is served in proceedings before the proper police, prosecutory or judicial body, not in the halls of congress in the course of investigating the effects of or the need for current or future legislation.
In these lights, I reiterate my vote to grant the petition.
ARTURO D. BRION
Associate Justice
Footnotes
1 Chief Justice Reynato S. Puno (at pages 431-436) and Justice Antonio T. Carpio (at page 441-448), TSN, March 4, 2008.
2 G.R. No. 169777, April 20, 2006
3 Article VIII, Section 21, Philippine Constitution.
4 See: Bengzon, et al., vs. The Senate Blue Ribbon Committee, G.R. No. 89914, Nov. 20, 1991.
5 TSN, March 4, 2008, at pages 188-190..
6 Annex "C" to the Petition dated December 7, 2007.
7 Annex "A" to the Petition.
8 Annexes "D" and "D-1" to the Petition.
9 Annex "A" of the Supplemental Petition for Certiorari dated January 30, 2008.
10 G.R. No. L-3828, July 18, 1950.
11 Supra, at Note 7.
12 Supra, at Note 9.
13 TSN, March 4, 2007, at page 334.
14 TSN, March 4, 2008, at pages 490 – 519.
15 Supra, at Note 9.
16 TSN, March 4, 2008, at page 529-530.
17 Chavez v. Public Estates Authority, G.R. 133250, July 9, 2008.
18 See: U.S. v. Nixon, 418 U.S. 683 (1974).
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