Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643 March 25, 2007
G.R. No. 180643 – ROMULO L. NERI v. SENATE COMMITTEE ON ACCOUNTABILITY AND PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY.
CONCURRING OPINION
CHICO-NAZARIO, J.:
I express my concurrence in the majority opinion as written by my colleague Justice Teresita J. Leonardo-De Castro. In addition to the ratiocination already presented therein, I still wish to stress particular points which convinced me that the Petition for Certiorari of petitioner Romulo L. Neri should be granted.
Once again, this Court finds itself in the same position it held just two years ago in the landmark case of Senate of the Philippines v. Ermita,1 standing judge over a dispute between the Executive and Legislative branches of the Government.
Even the antecedent facts giving rise to the present Petition seem familiar. They involve the conflict between, on one hand, the right of the Senate to compel the appearance and testimony of executive officials in hearings in aid of legislation; and, on the other, the right of the President and the executive officials she so authorizes to invoke executive privilege to protect and keep certain information confidential.
In Ermita, cabinet members and military officials declined to appear before the Senate for hearings held in aid of legislation, invoking Executive Order No. 464 issued by President on "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," which basically made it mandatory for them to obtain the President’s permission prior to attending said hearings. Without the President’s permission, they will not go.
In the Petition at bar, petitioner Neri, by virtue of his position as the former Director General of the National Economic Development Authority, testified on 26 September 2007 in an 11-hour hearing conducted by the respondent Senate Committees on the alleged anomalies in the award of the National Broadband Network (NBN) Project to Zhing Xing Telecommunications Equipment (ZTE). During said hearing, he already invoked executive privilege when he refused to answer three specific questions propounded to him:
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?
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."
Faced with either disobeying the President’s order or being arrested by the Senate, petitioner Neri sought relief from this Court by filing a Petition for Certiorari and a Supplemental Petition for Certiorari, under Rule 65 of the Rules of Court, alleging grave abuse of discretion on the part of the respondent Senate Committees for first issuing a show cause Order, dated 22 November 2007, against petitioner Neri for his failure to attend the 20 November 2007 hearing; and subsequently issuing the contempt and arrest Order, dated 30 January 2008 against petitioner Neri after finding his explanation unsatisfactory.
This Court shall not shirk from its duty, impressed upon it by no less than the Constitution, to exercise its judicial power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."2 It was clearly intended by the framers of the Constitution that the judiciary be the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction.3 And when the Judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments, but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them.4
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.5
Considering the factual background of the Petition at bar, respondent Senate Committees did commit grave abuse of discretion in issuing the assailed Orders for having done so without basis, with undue haste, and in violation of due process.
Our republican system of Government is composed of three independent and co-equal branches, the Executive, Legislative, and Judiciary. One of the fundamental tenets underlying our constitutional system is the principle of separation of powers, pursuant to which the powers of government are mainly divided into three classes, each of which is assigned to a given branch of the service. The main characteristic of said principle is not, however, this allocation of powers among said branches of the service, but the fact that: 1) each department is independent of the others and supreme within its own sphere; and 2) the powers vested in one department cannot be given or delegated, either by the same or by Act of Congress, to any other department.6
The fundamental power of the Senate, as one of the Houses of the Legislative Branch, is to make laws, and within this sphere, it is supreme. Hence, this Court had long before upheld the power of inquiry of the Legislature in aid of legislation. In Arnault v. Nazareno,7 this Court pronounced:
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.)
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
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:
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.
Simply put, executive privilege is "the power of the Government to withhold information from the public, the courts, and the Congress." It is also defined as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public."10 It must be stressed that executive privilege is a right vested in the President which she may validly exercise within her sphere of executive power. The President can validly invoke executive privilege to keep information from the public and even from co-equal branches of the Government, i.e., the Legislature and the Judiciary.
In Chavez v. Public Estates Authority,11 this Court recognized that:
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.
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.)
A more extensive explanation for the rationale behind the executive privilege can be found in United States v. Nixon,12 to wit:
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.
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.)
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
Respondent Senate Committees cite the statement made by this Court in Ermita that "the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure."14 However, said declaration must be taken in the context of Ermita where EO No. 464 placed under the protection of executive privilege virtually all conversations, correspondences, and information of all executive and military officials, unless otherwise ordered by the President. Ermita firmly established that public disclosure is still the general rule while executive privilege is the exemption therefrom. But when the President does invoke executive privilege as regards certain information, the same must be deemed presumptively privileged.
Necessarily, it is the President who can make the initial determination of what information is covered by the executive privilege because only she and the executive officials involved are privy to the information. Although the President and/or her authorized executive official are obliged to clearly state the grounds for invoking executive privilege, they are not required to state the reasons for the claim with such particularity as to compel the disclosure of the information which the privilege is meant to protect.15 The President, through petitioner Neri, claims that the conversation between the two of them as regards the NBN Project is privileged for it involves matters that may affect diplomatic and economic relations of the country with China. These are valid grounds rendered even more credible in light of the fact that the NBN Project is funded by a loan extended by the Chinese Government to our Government and awarded to ZTE, a Chinese firm. The respondent Senate Committees’ demand for a deeper or more substantial justification for the claim of executive privilege could well lead to the revelation of the very same details or information meant to be protected by the privilege, hence, rendering the same useless. Furthermore, since the information the respondent Senate Committees seek is presumptively privileged, the burden is upon them to overcome the same by contrary evidence.
Also in support of my position that the respondent Senate Committees acted beyond their legislative jurisdiction is their continued avowal of "search for the truth." While the search for the truth is truly a noble aspiration, respondent Senate Committees must bear in mind that their inquiry and investigative powers should remain focused on the primary purpose of legislation.
Respondent Senate Committees present three pending Senate bills for which the investigative hearings are being held:
a. 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."
b. 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."
c. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled "An Act Mandating Concurrence to International Agreements and Executive Agreements."
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.
Respondent Senate Committees lightly brushed aside petitioner Neri’s claim of executive privilege with a general statement that such is an unsatisfactory reason for not attending the 20 November 2007 hearing. It likewise precipitately issued the contempt and arrest Order against petitioner Neri for missing only one hearing, the 20 November 2007, despite the explanation given by petitioner Neri, through Executive Secretary Ermita and counsel Atty. Bautista, for his non-appearance at said hearing, and the expression by petitioner Neri of his willingness to return before respondent Senate Committees if he would be furnished with the other questions they would still ask him. Petitioner Neri’s request for advance copy of the questions was not unreasonable considering that in Ermita, this Court required:
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.
Another point militating against the issuance of the contempt and arrest Order is its issuance even without quorum and the required number of votes in the respondent Senate Committees. During oral arguments, Senator Francis N. Pangilinan asserted that whatever infirmities at the committee level were cured by the 2/3 votes of the entire Senate favoring the issuance of the contempt and arrest Order against petitioner Neri, since the committee is a mere agent of the entire chamber.17 In their Memorandum, respondent Senate Committees no longer addressed said issue contending that petitioner Neri never assailed the procedure by which the contempt and arrest Order was issued. While this Court may not rule on an issue not raised in the Petition, it may take note of the apparent lack of clear and established rules for the issuance by the Senate of a contempt and arrest Order against a recalcitrant witness in hearings conducted in aid of legislation. Senators may very well be familiar with the practice or tradition of voting in such cases, but not necessarily the witness against whom the contempt and arrest Order may be issued and who shall suffer the loss of his liberty. Procedural due process requires that said witness be informed of the rules governing his appearance and testimony before the Senate Committees, including the possible issuance of a contempt and arrest Order against him, because only then can he be aware of any deviation from the established procedure and of any recourse available to him.
Finally, much has been said about this Court not allowing the executive privilege to be used to conceal a criminal act. While there are numerous suspicions and allegations of crimes committed by public officers in the NBN Project, these remain such until the determination by the appropriate authorities. Respondent Senate Committees are definitely without jurisdiction to determine that a crime was committed by the public officers involved in the NBN Project, for such authority is vested by the Constitution in the Ombudsman. Again, it must be emphasized, that the Senate’s power of inquiry shall be used to obtain information in aid of legislation, and not to gather evidence of a crime, which is evidently a prosecutorial, not a legislative, function.
In view of the foregoing, and in the exercise of this Court’s power of judicial review, I vote to GRANT the Petition and DECLARE the Order dated 30 January 2008 of the respondent Senate Committees null and void for having been issued in grave abuse of discretion amounting to lack or excess of jurisdiction.
MINITA V. CHICO-NAZARIO
Associate Justice
Footnotes
1 G.R. No. 169777, 20 April 2006, 488 SCRA 1.
2 Article VIII, Section 1.
3 Tañada v. Angara, G.R. No. 118295, 2 May 1997, 272 SCRA 18, 48.
4 In re: Wenceslao Laureta, G.R. No. 68635, 12 March 1987, 148 SCRA 382, 419, citing Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
5 Id.
6 See the Concurring Opinion of J. Concepcion in Guevara v. Inocentes, 123 Phil. 200, 217-218 (1966).
7 87 Phil. 29 (1950).
8 Id. at 45.
9 Id. at 45-46.
10 Senate of the Philippines v. Ermita, supra note 1 at 45, citing B. SCHWARTZ, EXECUTIVE PRIVILEGE AND CONGRESSIONAL INVESTIGATORY POWER, 47 Cal. L. Rev. 3, and M. ROZELL, Executive Privilege and the Modern Presidents: In Nixon’s Shadow (83 Minn. L. Rev. 1069).
11 433 Phil. 506, 534 (2002).
12 418 US 1039, 1063-1068 (1974).
13 Id.
14 Senate of the Philippines v. Ermita, supra note 1 at 51.
15 Id. at 66.
16 Id. at 69.
17 TSN, 4 March 2008, pp. 706-709.
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