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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 180643             March 25, 2008

G.R. No. 180643 – 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 (NEDA) v. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS & INVESTIGATIONS (BLUE RIBBON), SENATE COMMITTEE ON TRADE & COMMERCE, and SENATE COMMITTEE ON NATIONAL DEFENSE & SECURITY.

DISSENTING OPINION

PUNO, C.J.:

The giant question on the scope and use of executive privilege has cast a long shadow on the ongoing Senate inquiry regarding the alleged and attempted bribery of high government officials in the consummation of the National Broadband Network (NBN) Contract of the Philippine government. With the expanse and opaqueness of the constitutional doctrine of executive privilege, we need to open a window to enable enough light to enter and illuminate the shadow it has cast on the case at bar. The task is not easy, as the nature of executive privilege is not static, but dynamic. Nonetheless, if there is a North Star in this quest, it is that the end all of executive privilege is to promote public interest and no other.

First, let us unfurl the facts of the case.

On April 21, 2007, the Department of Transportation and Communications (DOTC), through Secretary Leandro Mendoza, and Zhing Xing Telecommunications Equipment (ZTE), through its Vice President Yu Yong, executed in Boao, China, a "Contract for the Supply of Equipment and Services for the National Broadband Network Project" ("NBN-ZTE Contract") worth US$ 329,481,290.00 or approximately PhP 16 billion.¹ ZTE is a corporation owned by the Government of the People's Republic of China.² The NBN-ZTE Contract was to be financed through a loan that would be extended by the People's Republic of China. President Gloria Macapagal-Arroyo allegedly witnessed the signing of the contract.³

The NBN-ZTE Contract became the subject of investigations by the Joint Committees of the Senate, consisting of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon), Committee on Trade and Commerce and Committee on National Defense and Security after the filing of the following resolutions and delivery of the following privilege speeches:

1. P.S. Res. (Philippine Senate Resolution) 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, if any, in the BOT Law and other Pertinent Legislations.⁴

2. 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 Further Protect Our National Sovereignty Security and Territorial Integrity.⁵

3. 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 Government.⁶

4. P.S. Res. No. 144, introduced by Senator Manuel Roxas III, entitled:

Resolution Urging President Gloria Macapagal Arroyo to Direct the Cancellation of the ZTE Contract.⁷

5. Privilege Speech of Senator Panfilo M. Lacson, delivered on September 11, 2007, entitled "Legacy of Corruption."⁸

6. 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."⁹

There are also three (3) pending bills in the Senate related to the investigations, namely:

1. Senate Bill No. 1793, introduced by Senator Manuel Roxas III, 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.¹⁰

2. Senate Bill No. 1794, introduced by Senator Manuel Roxas III, 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.¹¹

3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled:

An Act Mandating Concurrence to International Agreements and Executive Agreements.¹²

The hearings in aid of legislation started in September 2007¹³ and have yet to be concluded.

On September 26, 2007, petitioner Romulo L. Neri, upon invitation by the respondent Senate Committees, attended the hearing and testified for eleven (11) hours.¹⁴ Petitioner was the Director General of the National Economic and Development Authority (NEDA) during the negotiation and signing of the NBN-ZTE Contract.¹⁵ He testified that President Macapagal-Arroyo had initially given instructions that there would be no loan and no guarantee for the NBN Project, and that it was to be undertaken on an unsolicited Build-Operate-Transfer (BOT) arrangement, so that the government would not expend funds for the project.¹⁶ Eventually, however, the NBN Project was awarded to ZTE with a government-to-government loan.¹⁷

In the course of his testimony, petitioner declared that then Commission on Elections Chairperson Benjamin Abalos, the alleged broker of the NBN-ZTE Contract, offered him PhP 200 million in relation to the NBN-ZTE Contract.¹⁸ He further stated that he informed President Macapagal-Arroyo of the bribe attempt by Chairperson Abalos, and that the President told him not to accept the bribe.¹⁹ When Senator Francis N. Pangilinan asked petitioner whether the President had followed up on the NBN Contract, he refused to answer. He invoked executive privilege which covers conversations between the President and a public official.²⁰ Senator Loren B. Legarda asked petitioner if there was any government official higher than he who had dictated that the ZTE be prioritized over Amsterdam Holdings, Inc. (AHI), another company applying to undertake the NBN Project on a BOT arrangement.²¹ Petitioner again invoked executive privilege, as he claimed that the question may involve a conversation between him and the President.²² Senator Pia S. Cayetano also asked petitioner whether the President told him what to do with the project - after he had told her of the PhP 200 million attempted bribe and she told him not to accept it – but petitioner again invoked executive privilege.²³ At this juncture, Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security, sought clarification from petitioner on his source of authority for invoking executive privilege. Petitioner replied that he had been instructed by Executive Secretary Eduardo R. Ermita to invoke executive privilege on behalf of the President, and that a written order to that effect would be submitted to the respondent Senate Committees.²⁴

Several Senators urged petitioner to inform the respondent Senate Committees of the basis for his invocation of executive privilege as well as the nature and circumstances of his communications with the President -- whether there were military secrets or diplomatic and national security matters involved. Petitioner did not accede and instead cited the coverage of executive privilege under Section 2(a) of Executive Order 464,²⁵ which 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." As respondent Senate Committees needed to know the basis for petitioner's invocation of executive privilege in order to decide whether to accept it or not, the petitioner was invited to an executive session to discuss the matter.²⁶ During the executive session, however, petitioner felt ill and was allowed to go home with the undertaking that he would return.²⁷

On November 13, 2007, a subpoena ad testificandum was issued to petitioner, requiring him to appear before the Committee on Accountability of Public Officers and Investigations (Blue Ribbon).²⁸ The subpoena was signed by Senator Alan Peter S. Cayetano, Chairperson of the Senate Blue Ribbon Committee; Senator Manual A. Roxas III, Chairperson of the Committee on Trade and Commerce; and Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security; and it was approved and signed by Senate President Manuel B. Villar.

On November 15, 2007, Executive Secretary Eduardo Ermita wrote to respondent Senate Blue Ribbon Committee Chairperson Alan Peter Cayetano. He communicated the request of the Office of the President to dispense with the petitioner's testimony on November 20, 2007, "(c)onsidering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he answered all questions propounded to him except the foregoing questions involving executive privilege." The three (3) questions for which executive privilege was invoked "by Order of the President" were the following:

"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

The letter of Executive Secretary Ermita offered the following justification for the invocation of executive privilege on these three questions, viz:

"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.

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

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

On November 29, 2007, petitioner wrote to Senator Alan Peter Cayetano as Chairperson of the Committee on Accountability of Public Officers and Investigations. Petitioner stated that after his exhaustive testimony, he "thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege"; hence, in his November 15, 2007 letter to Senator Alan Peter Cayetano, Executive Secretary Ermita requested that petitioner's presence be dispensed with in the November 20, 2007 hearing. Petitioner then requested that if there were matters not taken up in the September 26, 2007 hearing that would be taken up in the future, he be informed in advance, so he could adequately prepare for the hearing.³²

Attached to petitioner's letter was the letter of his lawyer, Atty. Antonio Bautista, explaining that petitioner's "non-appearance last 20 November 2007 was upon the order of the President invoking executive privilege, as embodied in Sec. Eduardo R. Ermita's letter dated 18 (sic) November 2007", and that "Secretary Neri honestly believes that he has exhaustively and thoroughly answered all questions asked of him on the ZTE/NBN contract except those relating to his conversations with the President."³³ Atty. Bautista's letter further stated that petitioner's "conversations with the President 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. Secretary Neri believes, upon our advice, that, given the sensitive and confidential nature of his discussions with the President, he can, within the principles laid down in Senate v. Ermita:…and U.S. v. Reynolds…justifiably decline to disclose these matters on the claim of executive privilege."³⁴ Atty. Bautista also requested that he be notified in advance if there were new matters for petitioner to testify on, so that the latter could prepare for the hearing.³⁵

On December 6, 2007, petitioner filed the Petition at bar. He contends that he properly invoked executive privilege to justify his non-appearance at the November 20, 2007 hearing and prays that the Show Cause Order dated November 22, 2007 be declared null and void.

On January 30, 2008, an Order citing petitioner for contempt was issued by respondent Senate Committees, which reads, viz:

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----------------------------------------------x

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 30^th day of January, 2008 at the City of Pasay.

(Signed) ALAN PETER S. CAYETANO Chairman Committee on Accountability of Public Officers & Investigations (Blue Ribbon)	(Signed) MAR ROXAS Chairman Committee on Trade and Commerce
(Signed) RODOLFO G. BIAZON Chairman Committee on National Defense & Security
(Signed) PIA S. CAYETANO**	MIRIAM DEFENSOR SANTIAGO*
JUAN PONCE ENRILE**	(Signed) FRANCIS G. ESCUDERO**
RICHARD J. GORDON**	(Signed) GREGORIO B. HONASAN*
JUAN MIGUEL F. ZUBIRI*	JOKER P. ARROYO*
RAMON B. REVILLA, JR.**	MANUEL M. LAPID**
(Signed) BENIGNO C. AQUINO III*	(Signed) PANFILO M. LACSON*
(Signed) LOREN B. LEGARDA*	(Signed) M. A. MADRIGAL**
ANTONIO F. TRILLANES*	EDGARDO J. ANGARA***
(Signed) AQUILINO Q. PIMENTEL, JR.***
Approved: (Signed) MANNY VILLAR Senate President

* Member, Committees on Accountability of Public Officers & Investigations (Blue Ribbon) and National Defense & Security

** Member, Committees on Accountability of Public Officers & Investigations (Blue Ribbon), Trade & Commerce and National Defense & Security

*** Member, Committee on National Defense & Security

Ex Officio
(Signed) AQUILINO Q. PIMENTEL, JR. Minority Leader	(Signed) FRANCIS "Kiko" N. PANGILINAN Majority Leader
(Signed) JINGGOY EJERCITO ESTRADA President Pro Temporare36

On January 30, 2008, petitioner wrote to Senate President Manuel Villar, Senator Alan Peter S. Cayetano, Chairperson of the Committee on Accountability of Public Officers & Investigations (Blue Ribbon); Senator Manuel Roxas, Chairperson of the Committee on Trade & Commerce; and Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security, seeking reconsideration of the Order of arrest. He explained that as stated in his November 29, 2007 letter, he had not intended to snub the November 20, 2007 hearing and had in fact cooperated with the Senate in its almost eleven hours of hearing on September 26, 2007. He further explained that he thought in good faith that the only remaining questions were the three for which he had invoked executive privilege. He also reiterated that in his November 29, 2007 letter, he requested to be furnished questions in advance if there were new matters to be taken up to allow him to prepare for the hearing, but that he had not been furnished these questions.³⁷

On February 5, 2008, petitioner filed a Supplemental Petition for Certiorari, praying that the Court issue a Temporary Restraining Order or Writ of Preliminary Injunction enjoining respondent Senate Committees from enforcing the Order for his arrest, and that the Order of arrest be annulled. Petitioner contends that his non-appearance in the November 20, 2007 hearing was justified by the invocation of executive privilege, as explained by Executive Secretary Ermita in his November 15, 2007 letter to respondent Senate Blue Ribbon Committee Chairperson Alan Peter Cayetano and by his (petitioner's) letter dated November 29, 2007 to Senator Alan Peter Cayetano as Chairperson of the Committee on Accountability of Public Officers and Investigations.³⁸ On February 5, 2008, the Court issued a Status Quo Ante Order and scheduled the case for Oral Argument on March 4, 2008.

Respondent Senate Committees filed their comment, arguing that: (1) there is no valid justification for petitioner to claim executive privilege;³⁹ (2) his testimony is material and pertinent to the Senate inquiry in aid of legislation;⁴⁰ (3) the respondent Senate Committees did not abuse their authority in issuing the Order of arrest of petitioner;⁴¹ and (4) petitioner did not come to Court with clean hands.⁴²

On March 4, 2008, the Oral Argument was held. Thereafter, the Court ordered the parties to submit their memoranda. Both parties submitted their Memoranda on March 17, 2008. On the same day, the Office of the Solicitor General filed a Motion for Leave to Intervene and to Admit Attached Memorandum.

In the Oral Argument held on March 4, 2008, the Court delineated the following issues to be resolved, viz:

1. What communications between the President and petitioner Neri are covered by the principle of executive privilege?⁴³

2. What is the proper procedure to be followed in invoking executive privilege?

3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for noncompliance with the subpoena?

A holistic view of the doctrine of executive privilege will serve as a hermeneutic scalpel to excise the fat of information that does not fall within the ambit of the privilege and to preserve only the confidentiality of the lean meat of information it protects in the particular setting of the case at bar.

I. General Policy Considerations
on Disclosure and Secrecy in a Democracy:
United States and Philippine Constitutions

The doctrine of executive privilege is tension between disclosure and secrecy in a democracy. Its doctrinal recognition in the Philippines finds its origin in the U.S. political and legal system and literature. At the outset, it is worth noting that the provisions of the U.S. Constitution say little about government secrecy or public access.⁴⁴ In contrast, the 1987 Philippine Constitution is replete with provisions on government transparency, accountability and disclosure of information. This is a reaction to our years under martial rule when the workings of government were veiled in secrecy.

The 1987 Constitution provides for the right to information in Article III, Sec. 7, viz:

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).

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)

A complementary provision is Section 1 of Article XI on the Accountability of Public Officers, which states, viz:

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

II. Our Government Operates
under the Principle of Separation of Powers

The 1987 Constitution separates governmental power among the legislative, executive and judicial branches to avert tyranny by "safeguard(ding) against the encroachment or aggrandizement of one branch at the expense of the other."⁴⁷ However, the principle of separation of powers recognized that a "hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively"; hence, the separation of powers between the branches is not absolute.⁴⁸

Our Constitution contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, and autonomy but reciprocity.⁴⁹ Well said, the boundaries established by the Constitution delineating the powers of the three branches must be fashioned "according to common sense and the . . . necessities of governmental co-ordination."⁵⁰ This constitutional design requires an internal balancing mechanism by which government powers cannot be abused.⁵¹ We married all these ideas when we decided the 1936 case Angara v. Electoral Commission,⁵² viz:

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)

A. A Look at the Power of Legislative
Investigation and Contempt of Witness

Patterned after the U.S. Constitution, the Philippine Constitution structures the government in a manner whereby its three separate branches -- executive, legislative and judicial -- are able to provide a system of checks and balances. The responsibility to govern is vested in the executive, but the legislature has a long-established power to inquire into administrative conduct and the exercise of administrative discretion under the acts of the legislature, and to ascertain compliance with legislative intent.⁵⁴

This power of congressional oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over implementation of legislation it has enacted. Oversight may be undertaken through review or investigation of executive branch action.⁵⁵ One device of the legislature to review, influence and direct administration by the executive is legislation and the corollary power of investigation.⁵⁶ The standard justification for an investigation is the presumed need for new or remedial legislation; hence, investigations ought to be made in aid of legislation.⁵⁷

The legislative power of investigation was recognized under the 1935 Constitution, although it did not explicitly provide for it. This power had its maiden appearance in the 1973 Constitution⁵⁸ and was carried into the 1987 Constitution in Article VI, Section 21, viz:

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.

First, the legislative purpose. In the 1957 case Watkins v. United States,⁶¹ the U.S. Supreme Court held that the power to investigate encompasses everything that concerns the administration of existing laws, as well as proposed or possibly needed statutes.⁶² It further held that the improper motives of members of congressional investigating committees will not vitiate an investigation instituted by a House of Congress, if that assembly's legislative purpose is being served by the work of the committee.⁶³ Two years later, the U.S. High Court held in Barenblatt v. United States⁶⁴ that the power is not unlimited, as Congress may only investigate those areas in which it may potentially legislate or appropriate. It cannot inquire into matters that are within the exclusive province of one of the other branches of government. The U.S. High Court ruled that the judiciary has no authority to intervene on the basis of motives that spurred the exercise of that power, even if it was exercised purely for the purpose of exposure, so long as Congress acts in pursuance of its constitutional power of investigation.

In the seminal case of Arnault, this Court held that the subject inquiry had a legislative purpose. In that case, the Senate passed Resolution No. 8, creating a special committee to investigate the Buenavista and the Tambobong Estates Deal in which the government was allegedly defrauded of PhP 5 million. Jean Arnault was among the witnesses examined by the committee. Arnault refused to answer a question, which he claimed was "self-incriminatory," prompting the Senate to cite him for contempt. He was committed to the custody of the Sergeant-at-Arms and imprisoned. He sought redress before this Court on a petition for habeas corpus, contending that the Senate had no power to punish him for contempt; the information sought to be obtained by the Senate was not pertinent to the investigation and would not serve any intended legislation, and the answer required of him was incriminatory.

The Court upheld the jurisdiction of the Senate to investigate the Buenavista and Tambobong Estates Deal through the Special Committee it created under Senate Resolution No. 8. The Resolution read in relevant part, viz:

RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA AND THE TAMBOBONG ESTATES DEAL.

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 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:

…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.

In sum, under the first requirement for validity of a legislative investigation and contempt of witness therein, the dual requirements of authority are that the power exercised by the committee must be both within the authority delegated to it and within the competence of Congress to confer upon the committee.⁶⁸

Second, the pertinency of the question propounded. The test of pertinency is whether a question itself is in the ultimate area of investigation; a question is pertinent also if it is "a usual and necessary stone in the arch of a bridge over which an investigation must go."⁶⁹ In determining pertinency, the court looks to the history of the inquiry as disclosed by the record.⁷⁰ Arnault states the rule on pertinency, viz:

 

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.

B. A Look at Executive privilege

1. Definition and judicial use of the term

"Executive privilege" has been defined as the right of the President and high-level executive branch officials to withhold information from Congress, the courts, and the public.⁷² Executive privilege is a direct descendant of the constitutionally designed separation of powers among the legislative, executive and judicial branches of government.

The U.S. Constitution (and the Philippine Constitution) does not directly mention "executive privilege," but commentators theorized that the privilege of confidentiality is constitutionally based, as it relates to the President's effective discharge of executive powers.⁷³ The Founders of the American nation acknowledged an implied constitutional prerogative of Presidential secrecy, a power they believed was at times necessary and proper.

The term "executive privilege" is but half a century old, having first appeared in the 1958 case Kaiser Aluminum & Chemical Co. v. United States,⁷⁴ in which Justice Reed, sitting on the U.S. Court of Claims, wrote: "The power must lie in the courts to determine Executive Privilege in litigation.... (T)he privilege for intra-departmental advice would very rarely have the importance of diplomacy or security".⁷⁵ (emphasis supplied)

The U.S. Supreme Court's recognition of executive privilege is even more recent, having entered the annals of the High Court only in the 1974 landmark case U.S. v. Nixon.⁷⁶

But as aforestated, executive privilege has been practised since the founding of the American nation. To better grasp the issue presented in the case at bar, we revisit the history of executive privilege in the U.S. political and legal landscape, to which we trace the concept of executive privilege in our jurisdiction. Next, an exposition of the scope, kinds and context for invocation of executive privilege will also be undertaken to delineate the parameters of the executive privilege at issue in the case at bar.

2. History and use

As the first U.S. President, George Washington established time-honored principles that have since molded the doctrine of executive privilege. He was well aware of the crucial role he played in setting precedents, as evinced by a letter he wrote on May 5, 1789 to James Madison, viz: "As the first of every thing in our situation will serve to establish a precedent, it is devoutly wished on my part that these precedents may be fixed on true principles."⁷⁷

Though not yet then denominated "executive privilege," President Washington in 1792 originally claimed authority to withhold information from the Congressional committee investigation of a military expedition headed by General Arthur St. Clair against native Americans. The committee requested papers and records from the executive to assist it in its investigation.⁷⁸ After conferring with his cabinet, President Washington decided that disclosure was in the public interest but, as Secretary of State Jefferson explained, the President was inclined to withhold papers that would injure the public.

In 1794, in response this time to a Senate request, Washington allowed the Senate to examine some parts of, but withheld certain information in relation to correspondence between the French government and the American minister thereto, and between the minister and Secretary of State Randolph, because the information could prove damaging to the public interest. The Senate did not challenge his action.⁷⁹

Thus, Washington established a historical precedent for executive privilege that is firmly rooted in two theories: first, a separation of powers theory that certain presidential communications should be free from compulsion by other branches; and second, a structural argument that secrecy is important to the President's constitutional duties in conducting state and foreign affairs.⁸⁰ Washington established that he had the right to withhold information if disclosure would injure the public, but he had no right to withhold embarrassing or politically damaging information.⁸¹

President Thomas Jefferson came next. He also staunchly defended executive secrecy. In the 1807 case U.S. v. Burr,⁸² Jefferson was ordered by the court to comply with a subpoena duces tecum for a letter concerning Vice President Aaron Burr who was on trial for treason arising from a secessionist conspiracy. The court reasoned that what was involved was a capital case involving important rights; that producing the letter advanced the cause of justice, which Jefferson as Chief Executive had a duty to seek; that the letter contained no state secrets; and that even if state secrets were involved, in camera review would be undertaken. Thus, as early as 1807, the Burr case established the doctrine that the President's authority to withhold information is not absolute, the President is amenable to compulsory process, and the interests in secrecy must be weighed against the interests in disclosure.⁸³

Despite the Burr case, the mid-nineteenth century U.S. Presidents exercised the power of secrecy without much hesitation. The trend grew among chief executives, following President Washington's lead, to withhold information either because a particular request would have given another branch the authority to exercise a constitutional power reserved solely to the President or because the request would interfere with the President's own exercise of such a power.⁸⁴ In the early life of the nation, the legislature generally accepted the secrecy privilege, as the Framers of the Constitution attempted to put into practice the principles they had created.⁸⁵

The trend continued among U.S. Presidents of the early to the mid-twentieth century. Despite Congress' aggressive attempts to assert its own constitutional investigative and oversight prerogatives, the twentieth century Presidents protected their own prerogatives with almost no interference from the judiciary, often forcing a quick congressional retreat.⁸⁶

The latter half of the twentieth century gave birth to the term "executive privilege" under President Dwight Eisenhower. At this time, the judiciary's efforts to define and delimit the privilege were more aggressive, and there were less of the absolute assertions of the privilege that were typical of previous Presidents.

The administration of President Richard Nixon produced the most significant developments in executive privilege. Although his administration initially professed an "open" presidency in which information would flow freely from the executive to Congress to the public, executive privilege during this period was invoked not for the protection of national security interests, foreign policy decision-making or military secrets as in the past, but rather to keep under wraps politically damaging and personally embarrassing information.⁸⁷ President Nixon's resignation was precipitated by the landmark case on executive privilege, U.S. v. Nixon.⁸⁸ In view of its importance to the case at bar, its depth discussion will be made in the subsequent sections.

Executive privilege was asserted commonly during the Ford, Carter, Reagan and Bush Administrations, but its use had only a marginal impact on constitutional law.⁸⁹ The administration of William or Bill Clinton again catapulted executive privilege to the limelight. As noted by a commentator, "President Clinton's frequent, unprincipled use of the executive privilege for self-protection rather than the protection of constitutional prerogatives of the presidency or governmental process ultimately weakened a power historically viewed with reverence and deference by the judicial and legislative branch."⁹⁰ The latest trend has become for Presidents to assert executive privilege, retreat the claim and agree to disclose information under political pressure.⁹¹

The history of executive privilege shows that the privilege is strongest when used not out of a personal desire to avoid culpability, but based on a legitimate need to protect the President's constitutional mandate to execute the law, to uphold prudential separation of powers, and above all, to promote the public interest. Under these circumstances, both the Congress and the judiciary have afforded most respect to the President's prerogatives.⁹²

3. Scope, kinds and context of executive privilege

With the wealth of literature on government privileges in the U.S., scholars have not reached a consensus on the number of these privileges or the proper nomenclature to apply to them.⁹³ Governmental privileges are loosely lumped under the heading "executive privilege."⁹⁴

The occasions in which information requests trigger the invocation of executive privilege vary. The request may come from Congress or via a criminal or civil case in court. In a criminal case, the request may come from the accused. The request may also come from a party to a civil case between private parties or to a civil case by or against the government. The proceeding may or may not be for the investigation of alleged wrongdoing in the executive branch.⁹⁵

In the U.S., at least four kinds of executive privilege can be identified in criminal and civil litigation and the legislative inquiry context: (1) military and state secrets, (2) presidential communications, (3) deliberative process, and (4) law enforcement privileges.⁹⁶

First, military and state secrets. The state secrets privilege "is a common law evidentiary rule" that allows the government to protect "information from discovery when disclosure would be inimical to national security"⁹⁷ or result in "impairment of the nation's defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments."⁹⁸ To properly invoke the privilege, "(t)here must be a formal claim of privilege, lodged by the head of the department⁹⁹ Document1zzF67290514788having control over the matter, after actual personal consideration by that officer."¹⁰⁰ A court confronted with an assertion of the state secrets privilege must find "that there is a reasonable danger that disclosure of the particular facts . . . will jeopardize national security."¹⁰¹

Second, Presidential communications privilege. The U.S. Supreme Court recognized in U.S. v. Nixon that there is "a presumptive privilege for Presidential communications" based on the "President's generalized interest in confidentiality." This ruling was made in the context of a criminal case. The Presidential communications privilege was also recognized in a civil proceeding, Nixon v. Administrator of General Services.¹⁰²

Third, deliberative process. Of the various kinds of executive privilege, the deliberative process privilege is the most frequently litigated in the United States. It entered the portals of the federal courts in the 1958 case Kaiser Aluminum & Chem. Corp. The privilege "rests most fundamentally on the belief that were agencies forced to operate in a fishbowl, frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer."¹⁰³

Of common law origin, the deliberative process privilege allows the government to withhold documents and other materials that would reveal "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."¹⁰⁴ Courts have identified three purposes in support of the privilege: (1) it protects candid discussions within an agency; (2) it prevents public confusion from premature disclosure of agency opinions before the agency establishes final policy; and (3) it protects the integrity of an agency's decision; the public should not judge officials based on information they considered prior to issuing their final decisions.¹⁰⁵ For the privilege to be validly asserted, the material must be pre-decisional and deliberative.¹⁰⁶

Fourth, law enforcement privilege. The law enforcement privilege protects against the disclosure of confidential sources and law enforcement techniques, safeguards the privacy of those involved in a criminal investigation, and otherwise prevents interference with a criminal investigation.¹⁰⁷

We now focus on Presidential communications privilege and Philippine jurisprudence.

III. Presidential Communications Privilege
and Philippine Jurisprudence

As enunciated in Senate v. Ermita:, a claim of executive privilege may be valid or not depending on the ground invoked to justify it and the context in which it is made. The ground involved in the case at bar, as stated in the letter of Secretary Ermita, is Presidential communications privilege on information that "might impair our diplomatic as well as economic relations with the People's Republic of China." This particular issue is one of first impression in our jurisdiction. Adjudication on executive privilege in the Philippines is still in its infancy stage, with the Court having had only a few occasions to resolve cases that directly deal with the privilege.

The 1995 case Almonte v. Vasquez¹⁰⁸ involved an investigation by the Office of the Ombudsman of petitioner Jose T. Almonte, who was the former Commissioner of the Economic Intelligence and Investigation Bureau (EIIB) and Villamor C. Perez, Chief of the EIIB's Budget and Fiscal Management Division. An anonymous letter from a purported employee of the bureau and a concerned citizen, alleging that funds representing savings from unfilled positions in the EIIB had been illegally disbursed, gave rise to the investigation. The Ombudsman required the Bureau to produce all documents relating to Personal Services Funds for the year 1988; and all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988. Petitioners refused to comply.

The Court recognized a government privilege against disclosure with respect to state secrets bearing on military, diplomatic and similar matters. Citing U.S. v. Nixon, the Court acknowledged that the necessity to protect public interest in candid, objective and even blunt or harsh opinions in Presidential decision-making justified a presumptive privilege of Presidential communications. It also recognized that the "privilege is fundamental to the operation of the government and inextricably rooted in the separation of powers under the Constitution," as held by the U.S. Supreme Court in U.S. v. Nixon. The Court found, however, that no military or diplomatic secrets would be disclosed by the production of records pertaining to the personnel of the EIIB. Nor was there any law making personnel records of the EIIB classified. Thus, the Court concluded that the Ombudsman's need for the documents outweighed the claim of confidentiality of petitioners.

While the Court alluded to U.S. v. Nixon and made pronouncements with respect to Presidential communications, a closer examination of the facts of Almonte would reveal that the requested information did not refer to Presidential communications, but to alleged confidential government documents. Likewise, U.S. v. Nixon specifically confined its ruling to criminal proceedings, but Almonte was about a prosecutorial investigation involving public interests and constitutional values different from a criminal proceeding.

The 1998 case Chavez v. PCGG¹⁰⁹ concerned a civil litigation. The question posed before the Court was whether the government, through the Presidential Commission on Good Government (PCGG), could be required to reveal the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth. The petitioner, a concerned citizen and taxpayer, sought to compel respondents to make public all negotiations and agreement, be they ongoing or perfected, and all documents related to the negotiations and agreement between the PCGG and the Marcos heirs.

The Court ruled in favor of petitioner. It acknowledged petitioner's right to information under the Bill of Rights of the 1987 Constitution, but citing Almonte, also recognized restrictions on the exercise of this right, viz: national security matters; trade secrets and banking transactions; criminal/law enforcement matters; other confidential or classified information officially known to public officials by reason of their office and not made available to the public; diplomatic correspondence; closed-door Cabinet meetings and executive sessions of either house of Congress; as well as the internal deliberations of the Supreme Court.

On the issue whether petitioner could access the settlement documents, the Court ruled that it was incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they had decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, however, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the "exploratory" stage. At the same time, the Court noted the need to observe the same restrictions on disclosure of information in general, such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information.

Again, it is stressed that the information involved in Chavez did not fall under the category of Presidential communications.

More recently, this Court decided the 2006 case Senate of the Philippines v. Ermita.¹¹⁰ At issue in this case was the constitutionality of Executive Order (EO) No. 464, "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." The presidential issuance was handed down at a time when the Philippine Senate was conducting investigations on the alleged overpricing of the North Rail Project; and the alleged fraud in the 2004 national elections, exposed through the much-publicized taped conversation allegedly between President Gloria Macapagal-Arroyo and Commission on Elections Commissioner Virgilio Garcillano.

EO No. 464 required heads of the executive departments of government and other government officials and officers of the Armed Forces of the Philippines and the Philippine National Police to secure prior consent from the President before appearing in Congressional inquiries. Citing the Almonte case, the issuance emphasized that the rule on confidentiality based on executive privilege was necessary for the operation of government and rooted in the separation of powers. Alluding to both the Almonte and Chavez cases, the issuance enumerated the kinds of information covered by executive privilege, viz: (1) conversations and correspondence between the President and the public official covered by the executive order; (2) military, diplomatic and other national security matters which in the interest of national security should not be divulged; (3) information between inter-government agencies prior to the conclusion of treaties and executive agreements; (4) discussion in closed-door Cabinet meetings; and (5) matters affecting national security and public order.

Relying on EO No. 464, various government officials did not appear in the hearings of the Senate on the North Rail Project and the alleged fraud in the 2004 elections, prompting various cause-oriented groups to file suits in the Supreme Court to seek the declaration of the unconstitutionality of EO No. 464.

The Court upheld the doctrine of executive privilege but found the Presidential issuance partly infirm, specifically Sections 2(b) and 3 which required government officials below the heads of executive departments to secure consent from the President before appearing in congressional hearings and investigations. The Court acknowledged that Congress has the right to obtain information from the executive branch whenever it is sought in aid of legislation. Thus, if the executive branch withholds such information because it is privileged, it must so assert it and state the reason therefor and why it must be respected.

In this case, the Court again alluded to U.S. v. Nixon and also recognized that Presidential communications fall under the mantle of protection of executive privilege in the setting of a legislative inquiry. But since the issue for resolution was the constitutionality of EO No. 464 and not whether an actual Presidential communication was covered by the privilege, the Court did not have occasion to rule on the same.

Prescinding from these premises, we now discuss the test and procedure to determine the validity of the invocation of executive privilege covering Presidential communications in a legislative inquiry.

IV. Test and Procedure to Determine
the Validity of the Invocation of Executive Privilege
Covering Presidential Communications in a Legislative Inquiry

In U.S. v. Nixon, the leading U.S. case on executive privilege, the U.S. Supreme Court emphasized that its ruling addressed "only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials"¹¹¹ and that the case was not concerned with the balance "between the President's generalized interest in confidentiality…and congressional demands for information."¹¹² Nonetheless, the Court laid down principles and procedures that can serve as torch lights to illumine us on the scope and use of Presidential communication privilege in the case at bar. Hence, it is appropriate to examine at length U.S. v. Nixon.

A. U.S. v. Nixon

1. Background Proceedings

U.S. v. Nixon¹¹³ came about because of a break-in at the Democratic National Committee (DNC) headquarters in the Watergate Hotel. In the early morning of June 17, 1972, about four and a half months before the U.S. Presidential election, police discovered five men inside the DNC offices carrying electronic equipment, cameras, and large sums of cash. These men were operating as part of a larger intelligence gathering plan of the Committee to Re-elect the President, President Richard Nixon's campaign organization for the 1972 election. Their mission was to fix a defective bugging device which had been placed a month before on the telephone of the DNC chairperson. Their orders came from the higher officials of the CRP.¹¹⁴

A grand jury¹¹⁵ was empanelled to investigate the incident. On July 23, 1973, Watergate Special Prosecutor Archibald Cox,¹¹⁶ acting on behalf of the June 1972 grand jury, caused to be issued a subpoena duces tecum to President Nixon in the case 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 Objects¹¹⁷ in the District Court of the District of Columbia with Honorable John J. Sirica as District Judge. The subpoena required President Nixon to produce for the grand jury certain tape recordings and documents enumerated in an attached schedule.

President Nixon partially complied with the subpoena, but otherwise declined to follow its directives. In a letter to the Court that issued the subpoena, the President advised that the tape recordings sought would not be provided, as he asserted that the President is not subject to the compulsory process of the courts.¹¹⁸ The Court ordered the President or any appropriate subordinate official to show cause "why the documents and objects described in [the subpoena] should not be produced as evidence before the grand jury."

After the filing of briefs and arguments, the Court resolved two questions: (1) whether it had jurisdiction to decide the issue of privilege, and (2) whether it had authority to enforce the subpoena duces tecum by way of an order requiring production for inspection in camera. The Court answered both questions in the affirmative.¹¹⁹

President Nixon appealed the order commanding him to produce documents or objects identified in the subpoena for the court's in camera inspection. This appeal in the Court of Appeals of the District of Columbia Circuit was the subject of Nixon v. Sirica.¹²⁰ The central issue addressed by the D.C. Court of Appeals was whether the President may, in his sole discretion, withhold from a grand jury evidence in his possession that is relevant to the grand jury's investigations.¹²¹ It overruled the President's invocation of executive privilege covering Presidential communications and upheld the order of the District Court ordering President Nixon to produce the materials for in camera inspection subject to the procedure it outlined in the case. President Nixon did not appeal the Court's ruling.

As a result of the investigation of the grand jury, a criminal case was filed against John N. Mitchell, former Attorney General of the U.S. and later head of the Committee to Re-elect the President, and other former government officials and presidential campaign officials in U.S. v. Mitchell¹²² in the District Court of the District of Columbia. In that case, the Special Prosecutor filed a motion for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings of President Nixon. The President, claiming executive privilege, moved to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements for a subpoena had been satisfied. The Court then issued an order for an in camera examination of the subpoenaed material. The Special Prosecutor filed in the U.S. Supreme Court a petition for a writ of certiorari which upheld the order of the District Court in the well-known case U.S. v. Nixon.¹²³

2. Rationale of Presidential Communications Privilege

For the first time in 1974, the U.S. Supreme Court recognized the Presidential communications privilege and the qualified presumption in its favor in U.S. v. Nixon. The decision cited two reasons for the privilege and the qualified presumption: (1) the "necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making"¹²⁴ and (2) it "… is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."¹²⁵

a. Public Interest in Candor or Candid Opinions
in Presidential Decision-making

In support of the first reason, the Nixon Court held that "a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.¹²⁶

The Nixon Court pointed to two bases of this need for confidentiality. The first is common sense and experience. In the words of the Court, "the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process."¹²⁷

The second is the supremacy of each branch in its own sphere of duties under the Constitution and the privileges flowing from these duties. Explained the Court, viz: "Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II (presidential) powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings."¹²⁸ In this case, the Special Prosecutor seeking access to the tape recordings of conversations of the President argued that the U.S. Constitution does not provide for privilege as to the President's communications corresponding to the privilege of Members of Congress under the Speech and Debate Clause. But the Nixon Court disposed of the argument, viz: "(T)he silence of the Constitution on this score is not dispositive. 'The rule of constitutional interpretation announced in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it.'"¹²⁹

b. Separation of Powers

The Nixon Court used separation of powers as the second ground why presidential communications enjoy a privilege and qualified presumption. It explained that while the Constitution divides power among the three coequal branches of government and affords independence to each branch in its own sphere, it does not intend these powers to be exercised with absolute independence. It held, viz: "In designing the structure of our Government and dividing and allocating the sovereign power among three coequal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. 'While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.'" (emphasis supplied:)¹³⁰

Thus, while the Nixon Court recognized the Presidential communications privilege based on the independence of the executive branch, it also considered the effect of the privilege on the effective discharge of the functions of the judiciary.

3. Scope of the Presidential Communications Privilege

The scope of Presidential communications privilege is clear in U.S. v. Nixon. It covers communications in the "performance of the President's responsibilities"¹³¹ "of his office"¹³² and made "in the process of shaping policies and making decisions."¹³³ This scope was affirmed three years later in Nixon v. Administrator of General Services.¹³⁴

4. Qualified Presumption in Favor of
the Presidential Communications Privilege

In U.S. v. Nixon, the High Court alluded to Nixon v. Sirica which held that Presidential communications are "presumptively privileged" and noted that this ruling was accepted by both parties in the case before it.¹³⁵ In Nixon v. Sirica, the D.C. Court of Appeals, without expounding, agreed with the presumptive privilege status afforded to Presidential communications by its precursor case In re Subpoena for Nixon in the D.C. District Court.¹³⁶ The latter case ushered the birth of the presumption in the midst of a general disfavor of government privileges. In In re Subpoena for Nixon, the D.C. District Court began with the observation that "a search of the Constitution and the history of its creation reveal a general disfavor of government privileges…"¹³⁷ In deciding whether the Watergate tapes should be covered by a privilege, the Court acknowledged that it must accommodate two competing policies: one, "the need to disfavor privileges and narrow their application as far as possible"; and two, "the need to favor the privacy of Presidential deliberations" and "indulge in a presumption in favor of the President." The Court tilted the balance in favor of the latter and held that "respect for the President, the Presidency, and the duties of the office, gives the advantage to this second policy."¹³⁸ The Court explained that the need to protect Presidential privacy and the presumption in favor of that privacy arises from the "paramount need for frank expression and discussion among the President and those consulted by him in the making of Presidential decisions." ¹³⁹ (emphasis supplied:)

5. Demonstrable Specific Need
for Disclosure Will Overcome
the Qualified Presumption

The Nixon Court held that to overcome the qualified presumption, there must be "sufficient showing or demonstration of specific need" for the withheld information on the branch of government seeking its disclosure. Two standards must be met to show the specific need: one is evidentiary; the other is constitutional.

a. Evidentiary Standard of Need

In U.S. v. Nixon, the High Court first determined whether the subpoena ordering the disclosure of Presidential communications satisfied the evidentiary requirements of relevance, admissibility and specificity under Rule 17(c) of the Federal Rules of Criminal Procedure. Rule 17(c) governs all subpoenas for documents and materials made in criminal proceedings. In the 1997 In re Sealed Case (Espy),¹⁴⁰ the D.C. Court of Appeals held that there must also be a showing that "evidence is not available with due diligence elsewhere" or that the evidence is particularly and apparently useful as in that case where an immediate White House advisor was being investigated for criminal behavior. It explained that the information covered by Presidential communication privilege should not be treated as just another specie of information. Presidential communications are treated with confidentiality to strengthen the President in the performance of his duty.

b. Demonstrable Specific Need for
Disclosure to be Balanced with the Claim of Privilege
using the Function Impairment Test

The claim of executive privilege must then be balanced with the specific need for disclosure of the communications on the part of the other branch of government. The "function impairment test" was utilized in making the balance albeit it was not the term used by the Court. By this test, the Court weighs how the disclosure of the witheld information would impair the President's ability to perform his constitutional duties more than nondisclosure would impair the other branch's ability to perform its constitutional functions. It proceeded as follows:

First, it assessed how significant the adverse effect of disclosure is on the performance of the functions of the President. While affording great deference to the President's need for complete candor and objectivity from advisers, the Nixon Court found that the interest in confidentiality of Presidential communications is not significantly diminished by production of the subject tape recordings for in camera inspection, with all the protection that a district court will be obliged to provide in infrequent occasions of a criminal proceeding. It ruled, viz:

… 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

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:)

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:

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.

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:)

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:

… 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 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:)

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:

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

6. In Camera Determination of Information to be Disclosed

After determining that the Special Prosecutor had made a sufficient showing of a "demonstrable specific need" to overcome the qualified presumption in favor of the Presidential communications privilege, the High Court upheld the order of the D.C. District Court in U.S. v. Mitchell that an in camera examination of the subpoenaed material was warranted. Its purpose was to determine if there were parts of the subpoenaed material that were not covered by executive privilege and should therefore be disclosed or parts that were covered by executive privilege and must therefore be kept under seal.

The U.S. Supreme Court acknowledged that in the course of the in camera inspection, questions may arise on the need to excise parts of the material that are covered by executive privilege. It afforded the D.C. District Court the discretion to seek the aid of the Special Prosecutor and the President's counsel for in camera consideration of the validity of the particular excisions, whether on the basis of relevancy or admissibility, or the content of the material being in the nature of military or diplomatic secrets.¹⁵¹

In excising materials that are not relevant or not admissible or covered by executive privilege because of their nature as military or diplomatic secrets, the High Court emphasized the heavy responsibility of the D.C. District Court to ensure that these excised parts of the Presidential communications would be accorded that "high degree of respect due the President," considering the "singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article … a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any 'ordinary individual.'"¹⁵² It was "necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice."¹⁵³ Thus, the High Court sternly ordered that until released by the judge to the Special Prosecutor, no in camera material be revealed to anyone, and that the excised material be restored to its privileged status and returned under seal to its lawful custodian.¹⁵⁴

The procedure enunciated in U.S. v. Nixon was cited by the Court of Appeals of the District of Columbia Circuit in the 1997 case In re Sealed Case (Espy).¹⁵⁵

B. Resolving the Case at Bar with the Aid of
U.S. v. Nixon and Other Cases

1. Procedure to Follow When Diplomatic,
Military and National Security
Secrets Privilege is Invoked

In the case at bar, Executive Secretary Ermita's letter categorically invokes the Presidential communications privilege and in addition, raises possible impairment of diplomatic relations with the People's Republic of China. Hence, the letter states, viz:

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. Vasquez¹⁵⁷ and Chavez v. PCGG¹⁵⁸ 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

Thus, the facts in Reynolds show that the Secretary of the Air Force filed a formal "Claim of Privilege" and stated his objection to the production of the document "for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force."¹⁶⁴ The Judge Advocate General of the U.S. Air Force also filed an affidavit, which asserted that the demanded material could not be furnished "without seriously hampering national security, flying safety and the development of highly technical and secret military equipment."¹⁶⁵ On the record before the trial court, it appeared that the accident that spawned the case occurred to a military plane that had gone aloft to test secret electronic equipment.¹⁶⁶ The Reynolds Court found that on the basis of all the circumstances of the case before it, there was reasonable danger that the accident investigation report would contain references to the secret electronic equipment that was the primary concern of the mission, which would be exposed if the investigation report for the accident was disclosed.¹⁶⁷

In the case at bar, we cannot assess the validity of the claim of the Executive Secretary that disclosure of the withheld information may impair our diplomatic relations with the People's Republic of China. There is but a bare assertion in the letter of Executive Secretary Ermita that 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." There is absolutely no explanation offered by the Executive Secretary on how diplomatic secrets will be exposed at the expense of our national interest if petitioner answers the three disputed questions propounded by the respondent Senate Committees. In the Oral Argument on March 4, 2008, petitioner Neri similarly failed to explain how diplomatic secrets will be compromised if the three disputed questions are answered by him.¹⁶⁸ Considering this paucity of explanation, the Court cannot determine whether there is reasonable danger: that petitioner's answers to the three disputed questions would reveal privileged diplomatic secrets. The Court cannot engage in guesswork in resolving this important issue.

Petitioner Neri also invokes executive privilege on the further ground that his conversation with the President dealt with national security matters. On November 29, 2007, petitioner wrote to Senator Alan Peter S. Cayetano as Chairperson of the Committee on Accountability of Public Officers and Investigations in reply to the respondent Senate Committees' Show Cause Order requiring petitioner to explain why he should not be cited for contempt for failing to attend the respondent Senate Committees' November 20, 2007 hearing. Petitioner attached to his letter the letter of his lawyer, Atty. Antonio Bautista, also dated November 29, 2007. In this letter, Atty. Bautista added other reasons to justify petitioner's failure to attend the Senate hearings. He stated that petitioner's "conversations with the President 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."¹⁶⁹ In his Petition, Neri did not use the term "national security," but the term "military affairs," viz:

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.

In the Oral Argument on March 4, 2008, petitioner's counsel argued the basis for invoking executive privilege covering diplomatic, military and national security secrets, but those are arguments of petitioner's counsel and can hardly stand for the "formal claim of privilege lodged by the head of the department which has control over the matter after actual personal consideration by that officer" that Reynolds requires.¹⁷¹

Needless to state, the diplomatic, military or national security privilege claimed by the petitioner has no leg to stand on.

2. Applicability of the Presidential Communications Privilege

The Presidential communications privilege attaches to the office of the President; it is used after careful consideration in order to uphold public interest in the confidentiality and effectiveness of Presidential decision-making to benefit the Office of the President. It is not to be used to personally benefit the person occupying the office. In In re Subpoena for Nixon¹⁷² Chief Judge Sirica emphasized, viz: "… [P]rivacy, in and of itself, has no merit. Its importance and need of protection arise from 'the paramount need for frank expression and discussion among the President and those consulted by him in the making of Presidential decisions.'"¹⁷³ In Kaiser Aluminum & Chemical Corp. v. United States,¹⁷⁴ in which the term "executive privilege" was first used, the U.S. Court of Claims emphasized that executive privilege is granted "for the benefit of the public, not of executives who may happen to then hold office."¹⁷⁵ (emphasis supplied:)

The rationale for the Presidential communications privilege is enunciated in U.S. v. Nixon.¹⁷⁶ As aforestated, it is based on common sense and on the principle that flows from the enumerated powers of the President and the doctrine of separation of powers under the Constitution. This rationale was recognized in both Almonte v. Vasquez and Senate v. Ermita.

It is worthy to note that U.S. v. Nixon involved the executive and the judicial branches of government in the context of a criminal proceeding. In the case at bar, the branches of government in conflict and the context of the conflict are different: the conflict is between the executive versus the legislature in the context of a Senate investigation in aid of legislation. Be that as it may, the clash of powers between the executive and the legislature must be resolved in a manner that will best allow each branch to perform its designed functions under the Constitution, using the "function impairment test." In accord with this test, it is the Court's task to balance whether the disclosure of the disputed information impairs the President's ability to perform her constitutional duty to execute the laws more than non-disclosure would impair the respondent Senate Committees' ability to perform their constitutional function to enact laws.

2. a. Presidential Communications Enjoy a
Qualified Presumption in Their Favor

The function impairment test begins: with a recognition that Presidential communications are presumptively privileged.

In their Comment, respondent Senate Committees contend that petitioner has the burden of overcoming the presumption against executive privilege, citing Senate v. Ermita:, viz:

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 Sirica¹⁷⁸ and Senate Select Committee on Presidential Campaign Activities, et al. v. Nixon¹⁷⁹ 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 case¹⁸¹ quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential communications.

The statement in Senate v. Ermita: that the "extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure"¹⁸² must therefore be read to mean that there is a general disfavor of government privileges as held in In Re Subpoena for Nixon, especially considering the bias of the 1987 Philippine Constitution towards full public disclosure and transparency in government. In fine, Senate v. Ermita: recognized the Presidential communications privilege in U.S. v. Nixon and the qualified presumptive status that the U.S. High Court gave that privilege. Thus, respondent Senate Committees' argument that the burden is on petitioner to overcome a presumption against executive privilege cannot be sustained.

2. b. Next, the Strength of the Qualified Presumption
Must be Determined

Given the qualified presumption in favor of the confidentiality of Presidential communications, the Court should proceed to determine the strength of this presumption as it varies in light of various factors. Assaying the strength of the presumption is important, as it is crucial in determining the demonstrable specific need of the respondent Senate Committees in seeking the disclosure of the communication in aid of its duty to legislate. The stronger the presumption, the greater the demonstrable need required to overcome the presumption; conversely, the weaker the presumption, the less the demonstrable need required to overcome the presumption.

A primary factor to consider in determining the strength of the presumption is to look where the Constitution textually committed the power in question. U.S. v. Nixon stressed that the Presidential communications privilege flows from the enumerated powers of the President. The more concentrated power is in the President, the greater the need for confidentiality and the stronger the presumption; contrariwise, the more shared or diffused the power is with other branches or agencies of government, the weaker the presumption. For, indisputably, there is less need for confidentiality considering the likelihood and expectation that the branch or agency of government sharing the power will need the same information to discharge its constitutional duty.

In the case at bar, the subject matter of the respondent Senate Committees' inquiry is a foreign loan agreement contracted by the President with the People's Republic of China. The power of the President to contract or guarantee foreign loans is shared with the Central Bank. Article VII, Section 20 of the 1987 Constitution, provides, viz:

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.

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:)

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

2. c. Determining Specific Need of Respondent
Senate Committees for the Withheld Information
to Overcome the Qualified Presumption

1) The first aspect: evidentiary standard of need

We have considered the factors determinative of the strength of the qualified presumption in favor of the Presidential communications privilege. We now determine whether the Senate has sufficiently demonstrated its specific need for the information withheld to overcome the presumption in favor of Presidential communications.

In U.S. v. Nixon, the "demonstration of a specific need" was preceded by a showing that the tripartite requirements of Rule 17(c) of the Federal Rules of Criminal Procedure had been satisfied, namely: relevance, admissibility and specificity. U.S. v. Nixon, however, involved a criminal proceeding. The case at bar involves a Senate inquiry not bound by rules equivalent to Rule 17(c) of the Federal Rules of Criminal Procedure. Indeed, the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides in Section 10 that "technical rules of evidence applicable to judicial proceedings which do not affect substantive rights need not be observed by the Committee."

In legislative investigations, the requirement is that the question seeking the withheld information must be pertinent. As held in Arnault, the following is the rule on pertinency, viz:

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

Let us proceed to apply these standards to the case at bar: pertinence of the question propounded and lack of effective substitute for the information sought.

The first inquiry is the pertinence of the question propounded. The three questions propounded by the respondent Senate Committees for which Executive Secretary Ermita, by Order of the President, invoked executive privilege as stated in his letter dated November 15, 2007, are:

"a) Whether the President followed up the (NBN) project?"¹⁸⁹

"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

The context in which these questions were asked is shown in the transcripts of the Senate hearing on September 26, 2007, viz:

On the first question -

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

The Senate resolutions, titles of the privilege speeches, and pending bills that show the legislative purpose of the investigation are:

Senate resolutions and privilege speeches:

1. 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

2. 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

3. 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

4. P.S. Res. No. 144: "Resolution Urging President Gloria Macapagal Arroyo to Direct the Cancellation of the ZTE Contract."²⁰⁰

5. Privilege Speech of Senator Panfilo M. Lacson, delivered on September 11, 2007, entitled "Legacy of Corruption."²⁰¹

6. 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

Pending bills:

1. 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

2. 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

3. Senate Bill No. 1317: "An Act Mandating Concurrence to International Agreements and Executive Agreements."²⁰⁵

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.

The three assailed questions seek information on how and why the NBN-ZTE contract -- an international agreement embodying a foreign loan for the undertaking of the NBN Project -- was consummated. The three questions are pertinent to at least three subject matters of the Senate inquiry: (1) possible anomalies in the consummation of the NBN-ZTE Contract in relation to the Build-Operate-Transfer Law and other laws (P.S. Res. No. 127); (2) national security implications of awarding the NBN Project to ZTE, a foreign-owned corporation (P.S. Res. No. 129); and (3) legal and economic justification of the NBN Project (P.S. Res. No. 136).

The three questions are also pertinent to pending legislation in the Senate, namely: (1) the subjection of international agreements involving funds for the procurement of infrastructure projects, goods and consulting services to Philippine procurement laws (Senate Bill No. 1793);²⁰⁶ (2) the imposition of safeguards in the contracting of loans classified under Official Development Assistance (Senate Bill No. 1794);²⁰⁷ and (3) the concurrence of the Senate in international and executive agreements (Senate Bill No. 1317).²⁰⁸

The second inquiry relates to whether there is an effective substitute for the information sought. There is none. The three questions demand information on how the President herself weighed options²⁰⁹ and the factors she considered in concluding the NBN-ZTE Contract. In particular, the information sought by the first question - "Whether the President followed up the (NBN) project" - cannot be effectively substituted as it refers to the importance of the project to the President herself.²¹⁰ This information relates to the inquiry on the legal and economic justification of the NBN project (P.S. Res. No. 136).

Similarly, the second question - "Were you dictated to prioritize the ZTE?" - seeks information on the factors considered by the President herself in opting for NBN-ZTE, which involved a foreign loan. Petitioner testified that the President had initially given him directives that she preferred a no-loan, no-guarantee unsolicited Build-Operate-Transfer (BOT) arrangement, which according to petitioner, was being offered by Amsterdam Holdings, Inc.²¹¹ The information sought cannot be effectively substituted in the inquiry on the legal and economic justification of the NBN project (P.S. Res. No. 136), the inquiry on a possible violation of the BOT Law (P.S. Res. No. 127); and in the crafting of pending bills, namely, Senate Bill No. 1793 tightening procurement processes and Senate Bill No. 1794 imposing safeguards on contracting foreign loans.

The information sought by the third question - "Whether the President said to go ahead and approve the project after being told about the alleged bribe?" - cannot be effectively substituted for the same reasons discussed on both the first and second questions. In fine, all three disputed questions seek information for which there is no effective substitute.

In the Oral Argument held on March 4, 2008, petitioner, through counsel, argued that in propounding the three questions, respondent Senate Committees were seeking to establish the culpability of the President for alleged anomalies attending the consummation of the NBN-ZTE Contract. Counsel, however, contended that in invoking executive privilege, the President is not hiding any crime.²¹² The short answer to petitioner's argument is that the motive of respondent Senate Committees in conducting their investigation and propounding their questions is beyond the purview of the Court's power of judicial review. So long as the questions are pertinent and there is no effective substitute for the information sought, the respondent Senate Committees should be deemed to have hurdled the evidentiary standards to prove the specific need for the information sought.

In the 1957 case Watkins v. United States,²¹³ as afore-discussed, the U.S. Supreme Court held that the power to investigate encompasses everything that concerns the administration of existing laws, as well as proposed or possibly needed statutes.²¹⁴ It further ruled that the improper motives of members of congressional investigating committees will not vitiate an investigation instituted by a House of Congress if that assembly's legislative purpose is being served by the work of the committee.²¹⁵

2) The second aspect: balancing the conflicting
constitutional functions of the President and the
Senate using the function impairment test

The second aspect involves a balancing of the constitutional functions between the contending branches of government, i.e., the President and the Senate. The court should determine whether disclosure of the disputed information impairs the President's ability to perform her constitutional duties more than disclosure would impair Congress's ability to perform its constitutional functions.²¹⁶ The balancing should result in the promotion of the public interest.

First, we assess whether nondisclosure of the information sought will seriously impair the performance of the constitutional function of the Senate to legislate. In their Comment, respondent Senate Committees assert that "there is an urgent need for remedial legislation to regulate the obtention (sic) and negotiation of official development assisted (ODA) projects because these have become rich source of 'commissions' secretly pocketed by high executive officials."

It cannot be successfully disputed that the information sought from the petitioner relative to the NBN Project is essential to the proposed amendments to the Government Procurement Reform Act and Official Development Assistance Act to enable Congress to plug the loopholes in these statutes and prevent financial drain on our Treasury.²¹⁷ Respondent Senate Committees well point out that Senate Bill No. 1793, Senate Bill No. 1794, and Senate Bill No. 1317 will be crafted on the basis of the information being sought from petitioner Neri, viz:

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 PUNO

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

The 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.

To complete the balancing of competing interests, the Court should also assess whether disclosure will significantly impair the President's performance of her functions, especially the duty to execute the laws of the land. In the Oral Argument held on March 4, 2008, petitioner, through counsel, was asked to show how the performance of the functions of the President would be adversely affected if petitioner is compelled to answer the three assailed questions, viz:

CHIEF JUSTICE PUNO:

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

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.

Summing it up, on one end of the balancing scale is the President's generalized claim of confidentiality of her communications, and petitioner's failure to justify a claim that his conversations with the President involve diplomatic, military and national security secrets. We accord Presidential communications a presumptive privilege but the strength of this privilege is weakened by the fact that the subject of the communication involves a contract with a foreign loan. The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank). We also consider the chilling effect which may result from the disclosure of the information sought from petitioner Neri but the chilling effect is diminished by the nature of the information sought, which is narrow, limited as it is to the three assailed questions. We take judicial notice also of the fact that in a Senate inquiry, there are safeguards against an indiscriminate conduct of investigation.

On the other end of the balancing scale is the respondent Senate Committees' specific and demonstrated need for the Presidential communications in reply to the three disputed questions. Indisputably, these questions are pertinent to the subject matter of their investigation, and there is no effective substitute for the information coming from a reply to these questions. In the absence of the information they seek, the Senate Committees' function of intelligently enacting laws "to remedy what is called 'dysfunctional procurement system of the government'" and to possibly include "executive agreements for Senate concurrence" to prevent them from being used to circumvent the requirement of public bidding in the existing Government Procurement Reform Act cannot but be seriously impaired. With all these considerations factored into the equation, we have to strike the balance in favor of the respondent Senate Committees²²¹ and compel petitioner Neri to answer the three disputed questions.

C. Presidential Communications Privilege and Wrongdoing

Respondent Senate Committees contend that executive privilege cannot be used to hide a wrongdoing.²²² A brief discussion of the contention will put it in its proper perspective.

Throughout its history -- beginning with its use in 1792 by U.S. President George Washington to withhold information from a committee of Congress investigating a military expedition headed by General Arthur St. Clair against Native Americans²²³ -- executive privilege has never justified the concealment of a wrongdoing. As afore-discussed, the first U.S. President, Washington, well understood the crucial role he would play in setting precedents, and so he said that he "devoutly wished on my part that these precedents may be fixed in true principles."²²⁴ (emphasis supplied:) President Washington established that he had the right to withhold information if disclosure would injure the public, but he did not believe that it was appropriate to withhold embarrassing or politically damaging information.²²⁵

Two centuries thence, the principle that executive privilege cannot hide a wrongdoing remains unchanged. While very few cases on the Presidential communications privilege have reached the U.S. Supreme Court, the District of Columbia Court of Appeals, being the appellate court in the district where the federal government sits has been more visible in this landscape. In several of its prominent decisions on the Presidential communications privilege, the D.C. Court of Appeals reiterated the rule that executive privilege cannot cover up wrongdoing. In Nixon v. Sirica, the D.C. Circuit Court of Appeals rejected the contention of President Nixon that executive privilege was absolute and held that, if it were so, "the head of an executive department would have the power on his own say so to cover up all evidence of fraud and corruption when a federal court or grand jury was investigating malfeasance in office, and this is not the law."²²⁶ (emphasis supplied:) In Senate Select Committee v. Nixon, the Appellate Court reiterated its pronouncement in Sirica that the "Executive cannot…invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing."²²⁷

Nonetheless, while confirming the time-honored principle that executive privilege is not a shield against an investigation of wrongdoing, the D.C. Circuit Court of Appeals, in both Sirica and Senate Select Committee, also made it clear that this time-honored principle was not the sword that would pierce the Presidential communications privilege; it was instead the showing of a need for information by an institution to enable it to perform its constitutional functions.

In Sirica, the Appellate Court held that "(w)e emphasize that the grand jury's showing of need in no sense relied on any evidence that the President was involved in, or even aware of, any alleged criminal activity. We freely assume, for purposes of this opinion, that the President was engaged in the performance of his constitutional duty. Nonetheless, we hold that the District Court may order disclosure of all portions of the tapes relevant to matters within the proper scope of the grand jury's investigations, unless the Court judges that the public interest served by nondisclosure of particular statements or information outweighs the need for that information demonstrated by the grand jury." (emphasis supplied:)²²⁸

In Senate Select Committee, the court reiterated its ruling in Sirica, viz: "…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,²²⁹ 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."²³⁰ (emphasis supplied:)

In U.S. v. Nixon, the U.S. Supreme Court ruled that the Special Prosecutor had demonstrated a specific need for the Presidential communications without mentioning that the subject tapes had been subpoenaed for criminal proceedings against former Presidential assistants charged with committing criminal conspiracy while in office. This omission was also observed by the D.C. Circuit appellate court in the 1997 case In re Sealed Case (Espy),²³¹ in which the court ruled that "a party seeking to overcome the presidential privilege seemingly must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials. In holding that the Watergate Special Prosecutor had provided a sufficient showing of evidentiary need to obtain tapes of President Nixon's conversations, the U.S. Supreme Court made no mention of the fact that the tapes were sought for use in a trial of former Presidential assistants charged with engaging in a criminal conspiracy while in office."²³²

That a wrongdoing -- which the Presidential communications privilege should not shield -- has been committed is an allegation to be proved with the required evidence in a proper forum. The Presidential communications privilege can be pierced by a showing of a specific need of the party seeking the Presidential information in order to perform its functions mandated by the Constitution. It is after the privilege has been pierced by this demonstrated need that one can discover if the privilege was used to shield a wrongdoing, or if there is no wrongdoing after all. We should not put the cart before the horse.

D. Negotiations and Accommodations

Before putting a close to the discussion on test and procedure to determine the validity of the invocation of executive privilege, it is necessary to make short shrift of the matter of negotiations and accommodation as a procedure for resolving disputes that spawned the case at bar.

In the U.S. where we have derived the doctrine of executive privilege, most congressional requests for information from the executive branch are handled through an informal process of accommodation and negotiation, away from the judicial portals. The success of the accommodation process hinges on the balance of interests between Congress and the executive branch. The more diffused the interest of the executive branch in withholding the disputed information, the more likely that this interest will be overcome by a specifically articulated congressional need related to the effective performance of a legislative function. Conversely, the less specific the congressional need for the information and the more definite the need for secrecy, the more likely that the dispute will be resolved in favor of the executive.²³³ In arriving at accommodations, what is "required is not simply an exchange of concessions or a test of political strength. It is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch."²³⁴

In Cheney v. D.C. District Court, the U.S. Supreme Court cautioned that executive privilege is an extraordinary assertion of power "not to be lightly invoked."²³⁵ Once it is invoked, coequal branches of government are set on a collision course. These "occasion(s) for constitutional confrontation between the two branches" should be avoided whenever possible.²³⁶ Once a judicial determination becomes inevitable, the courts should facilitate negotiations and settlement as did the court in U.S. v. American Telephone & Telegraph Co.²³⁷ In that case, the D.C. Circuit Court of Appeals remanded the case for negotiation of a settlement, which, however, proved unavailing. The appellate court then outlined a procedure under which the Congressional subcommittee was granted limited access to the documents requested, with any resulting disputes surrounding the accuracy of redacted documents to be resolved by the district court in camera.

In facilitating a settlement, the court should consider intermediate positions, such as ordering the executive to produce document summaries, indices, representative samples, or redacted documents; or allowing Congressional committee members to view documents but forbidding members from obtaining physical custody of materials or from taking notes.²³⁸

The lesson is that collisions in the exercise of constitutional powers should be avoided in view of their destabilizing effects. Reasonable efforts at negotiation and accommodation ought to be exerted, for when they succeed, constitutional crises are avoided.

V. Validity of the Order of Arrest

Finally, we come to the last issue delineated in the Oral Argument last March 4, 2008: whether respondent Senate Committees gravely abused their discretion in ordering the arrest of petitioner for noncompliance with the subpoena. The contempt power of the respondent Senate Committees is settled in Arnault and conceded by petitioner.²³⁹ What are disputed in the case at bar are the validity of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation for lack of re-publication and the alleged arbitrary exercise of the contempt power.

The Senate Rules of Procedure Governing Inquiries in Aid of Legislation is assailed as invalid allegedly for failure to be re-published. It is contended that the said rules should be re-published as the Senate is not a continuing body, its membership changing every three years. The assumption is that there is a new Senate after every such election and it should not be bound by the rules of the old. We need not grapple with this contentious issue which has far reaching consequences to the Senate. The precedents and practice of the Senate should instead guide the Court in resolving the issue. For one, the Senators have traditionally considered the Senate as a continuing body despite the change of a part of its membership after an election. It is for this reason that the Senate does not cease its labor during the period of such election. Its various Committees continue their work as its officials and employees. For another, the Rules of the Senate is silent on the matter of re-publication. Section 135, Rule L of the Rules of the Senate provides that, "if there is no Rule applicable to a specific case, the precedents of the Legislative Department of the Philippines shall be resorted to xxx." It appears that by tradition, custom and practice, the Senate does not re-publish its rules especially when the same has not undergone any material change. In other words, existing rules which have already undergone publication should be deemed adopted and continued by the Senate regardless of the election of some new members. Their re-publication is thus an unnecessary ritual. We are dealing with internal rules of a co-equal branch of government and unless they clearly violate the Constitution, prudence dictates we should be wary of striking them down. The consequences of striking down the rules involved in the case at bar may spawn serious and unintended problems for the Senate.

We shall now discuss the substantive aspect of the contempt power. This involves a determination of the purpose of the Senate inquiry and an assessment of the pertinence of the questions propounded to a witness.

To reiterate, there is no doubt about the legislative purpose of the subject Senate inquiry. It is evident in the title of the resolutions that spawned the inquiry. P.S. Res. No. 127²⁴⁰ and the privilege speech of Senator Panfilo Lacson²⁴¹ seek an investigation into the circumstances leading to the approval of the NBN-ZTE Contract and to make persons accountable for any anomaly in relation thereto. That the subject matter of the investigation is the expenditure of public funds in an allegedly anomalous government contract leaves no doubt that the investigation comes within the pale of the Senate's power of investigation in aid of legislation.

Likewise, the following are all within the purview of the Senate's investigative power: subject matter of P.S. Res. No. 129 concerning the national sovereignty, security and territorial integrity implications of the NBN-ZTE Contract,²⁴² of P.S. Res. No. 136 regarding the legal and economic justification of the National Broadband Network (NBN) project of the government,²⁴³ of P.S. Res. No. 144 on the cancellation of the ZTE Contract,²⁴⁴ and the Privilege Speech of Senator Miriam Defensor Santiago on international agreements in constitutional law.²⁴⁵ The Court also takes note of the fact that there are three pending bills in relation to the subject inquiry: Senate Bill No. 1793,²⁴⁶ Senate Bill No. 1794²⁴⁷ and Senate Bill No. 1317. ²⁴⁸ It is not difficult to conclude that the subject inquiry is within the power of the Senate to conduct and that the respondent Senate Committees have been given the authority to so conduct, the inquiry.

We now turn to the pertinence of the questions propounded, which the witness refused to answer. The subpoena ad testificandum issued to petitioner states that he is "required to appear before the Committee on Accountability of Public Officers and Investigations (Blue Ribbon) of the Senate… testify under oath on what you know relative to the subject matter under inquiry by the said Committee." The subject matter of the inquiry was indicated in the heading of the subpoena, which stated the resolutions and privilege speeches that initiated the investigation. Respondent Senate Committees have yet to propound to petitioner Neri their questions on this subject matter; hence, he cannot conclude beforehand that these questions would not be pertinent and simply refuse to attend the hearing of November 20, 2007.

It is worth noting that the letter of Executive Secretary Ermita, signed "by Order of the President," merely requested that petitioner's testimony on November 20, 2007 on the NBN Contract be dispensed with, as he had exhaustively testified on the subject matter of the inquiry. Executive privilege was invoked only with respect to the three questions Neri refused to answer in his testimony before respondent Senate Committees on September 26, 2007. But there is no basis for either petitioner or the Executive Secretary to assume that petitioner's further testimony will be limited only on the three disputed questions. Needless to state, respondent Senate Committees have good reasons in citing Neri for contempt for failing to appear in the November 20, 2007 hearing.

Next, we come to the procedural aspect of the power of the respondent Senate Committees to order petitioner's arrest. The question is whether the respondents followed their own rules in ordering petitioner's arrest.

The Order of arrest issued by respondent Senate Committees on January 30, 2008 states that it was issued "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…AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007, herein attached)." The Order reads, viz:

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 30^th day of January, 2008 at the City of Pasay.²⁴⁹

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.

We therefore examine the procedural validity of the issuance of the Order of arrest of petitioner for his failure to attend the November 20, 2007 hearing after the respondent Senate Committees' finding that his explanation in his November 29, 2007 letter was unsatisfactory.

Section 18 of the Senate Rules Governing Inquiries in Aid of Legislation provides, viz:

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:

1. Committee on Accountability of Public Officers and Investigations (17 members excluding 3 ex-officio members):

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

2. Committee on National Defense and Security (19 members excluding 2 ex-officio members)

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

3. Committee on Trade and Commerce (9 members excluding 3 ex-officio members)

Chairperson:	Roxas, MAR - signed
Vice-Chairperson:
Members:	Cayetano, Pia - signed
	Lapid, Manuel
	Revilla, Jr., Ramon
	Escudero, Francis - signed
	Enrile, Juan Ponce
	Gordon, Richard
	Biazon, Rodolfo - signed
	Madrigal, M.A.- signed
Ex-Officio Members:	Ejercito Estrada, Jinggoy -signed
	Pangilinan, Francis - signed
	Pimentel, Jr., Aquilino - signed

Vis-a-vis the composition of respondent Senate Committees, the January 30, 2008 Order of arrest shows the satisfaction of the requirement of a majority vote of each of the respondent Senate Committees for the contempt of witness under Sec. 18 of the Rules Governing Inquiries in Aid of Legislation, viz:

1. Committee on Accountability of Public Officers and Investigations: nine (9) out of seventeen (17)

2. Committee on National Defense and Security: ten (10) out of nineteen (19)

3. Committee on Trade and Commerce: five (5) out of nine (9)

Even assuming arguendo: that ex-officio members are counted in the determination of a majority vote, the majority requirement for each of the respondent Senate Committees was still satisfied, as all the ex-officio members signed the Order of arrest.

The substantive and procedural requirements for issuing an Order of arrest having been met, the respondent Senate Committees did not abuse their discretion in issuing the January 30, 2008 Order of arrest of petitioner.

Epilogue

Article VI, Section 21 of the 1987 Constitution provides for the power of the legislature to conduct inquiries in aid of legislation.²⁵² It explicitly provides respect for the constitutional rights of persons appearing in such inquiries. Officials appearing in legislative inquiries in representation of coequal branches of government carry with them not only the protective cover of their individual rights, but also the shield of their prerogatives – including executive privilege -- flowing from the power of the branch they represent. These powers of the branches of government are independent, but they have been fashioned to work interdependently. When there is abuse of power by any of the branches, there is no victor, for a distortion of power works to the detriment of the whole government, which is constitutionally designed to function as an organic whole.

I vote to dismiss the petition.

REYNATO S. PUNO
Chief Justice

Footnotes

¹ Comment, pp. 3-4.

² Petition, p. 3.

³ Comment, p. 4.

⁴ Id. at 4-5.

⁵ Id. at 5.

⁶ Id. at 5-6.

⁷ Id. at 6.

⁸ Id. at 5.

⁹ Id. at 6.

¹⁰ Id. at 6-7; Annex A.

¹¹ Id. at 7; Annex B.

¹² Ibid.; Annex C.

¹³ Id. at 8.

¹⁴ Petition, p. 3.

¹⁵ Petitioner is the current Chairman of the Commission on Higher Education (CHED) and was Director General of the National Economic and Development Authority (NEDA) from December 17, 2002 to July 17, 2006, and February 16, 2006 to August 15, 2007; Petition, p. 2.

¹⁶ TSN, Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It reads in relevant part, viz:

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)

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)

¹⁷ Comment, p. 8; TSN, Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It reads in relevant part, viz:

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?

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)

¹⁸ TSN, Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It reads in relevant part, viz:

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.

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)

¹⁹ TSN, Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It reads in relevant part, viz:

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. (pp. 43-44)

²⁰ Id. It reads in relevant part, viz:

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. (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)

²¹ Id. It reads in relevant part, viz:

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…

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)

²³ Id. It reads in relevant part, viz:

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… (emphasis supplied:) (pp. 275-276)

²⁴ Id. It reads in relevant part, viz:

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?

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)

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."

²⁶ TSN, Senate Hearing on the NBN-ZTE Contract, September 26, 2007. It reads in relevant part, viz:

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.

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)

²⁷ TSN, Oral Argument, March 4, 2008. It reads in relevant part, viz:

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).

SUBPOENA AD TESTIFICANDUM

TO: Mr. ROMULO L. NERI
Chairman
Commission on Higher Education
5^th 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 13^th day of November, 2007.

(Signed) ALAN PETER S. CAYETANO Chairman Committee on Accountability of Public Officers & Investigations (Blue Ribbon)	(Signed) MAR ROXAS Chairman Committee on Trade and Commerce
(Signed) RODOLFO G. BIAZON Chairman Committee on National Defense & Security

Approved: (Signed) MANNY VILLAR Senate President

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.

³⁰ Ibid.

³¹ Petition, Annex A. The letter reads, viz:

22 November 2007

TO: Mr. ROMULO L. NERI
Chairman
Commission on Higher Education
5^th Floor, DAP Bldg, 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:

(Signed) ALAN PETER S. CAYETANO Chairman Committee on Accountability of Public Officers & Investigations (Blue Ribbon)	(Signed) MAR ROXAS Chairman Committee on Trade and Commerce
(Signed) RODOLFO G. BIAZON Chairman Committee on National Defense & Security

Approved: (Signed) MANNY VILLAR Senate President

³² Petition, Annex D.

³³ Id., Annex D-1.

³⁴ Ibid.

³⁵ Ibid.

³⁶ Supplemental Petition, Annex A.

³⁷ Id., Annex B.

³⁸ Id., p. 3.

³⁹ Comment, p. 10.

⁴⁰ Id. at 23.

⁴¹ Id. at 29.

⁴² Id. at 35.

⁴³ These are the sub-issues:

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?

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?

⁴⁴ Samaha, A., "Government Secrets, Constitutional Law, and Platforms for Judicial Intervention," UCLA Law Review, April 2006, 909, 916.

⁴⁵ Samaha, supra at 918.

⁴⁶ Levinson, J., "An Informed Electorate: Requiring Broadcasters to Provide Free Airtime to Candidates for Public Office," 72 Boston University Law Review (January 1992), p. 143, citing Letter from Thomas Jefferson to Colonel Charles Yancey (Jan. 6, 1816), in 10 The Writings of Thomas Jefferson 4 (Paul L. Ford ed., 1899), cited in Library of Congress, Respectfully Quoted 97 (Suzy Platt ed., 1989).

⁴⁷ Iraola, R. "Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions," Iowa Law Review, vol. 87, no. 5, August 2002, p. 1559, 1565. The separation of powers was fashioned to avert tyranny as explained by James Madison in The Federalist No. 47:

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.

⁴⁹ Id. at 1565-1566, citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

⁵⁰ Id. at 1559, citing J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).

⁵¹ Doherty, M., "Executive Privilege or Punishment? The Need to Define Legitimate Invocations and Conflict Resolution Techniques," 19 Northern Illinois University Law Review (Summer 1999) 801, 808.

⁵² 63 Phil. 139 (1936).

⁵³ Id. at 156.

⁵⁴ Keefe, W., Ogul, M., The American Legislative Process: Congress and the States, 4^th ed. (1977), p. 20. See also Gross, The Legislative Struggle (1953), pp. 136-137.

⁵⁵ Javits, J., Klein, G., "Congressional Oversight and the Legislative Veto: A Constitutional Analysis," New York University Law Review, vol. 52, no. 3, June 1977, p. 460.

⁵⁶ Keefe, W., Ogul, M., supra at 20-23.

⁵⁷ Id. at 25.

⁵⁸ Article VIII, Section 12 of the 1973 Constitution provides in relevant part, viz:

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.

⁵⁹ 87 Phil. 29 (1950).

⁶⁰ Id. at 45.

⁶¹ 354 U.S. 178 (1957), pp. 194-195.

⁶² Id. at 187.

⁶³ Id. at 178.

⁶⁴ 360 U.S. 109 (1959).

⁶⁵ Arnault v. Nazareno, 87 Phil. 29 (1950), p. 46.

⁶⁶ Id. at 46-47.

⁶⁷ Id. at 45, citing McGrain vs. Daugherty, 273 U.S. 135.

⁶⁸ Annotation: Contempt of Congress, 3 L ed 2d 1649, footnotes omitted.

⁶⁹ Wollam v. United States (1957, CA9 Or) 244 F2d 212.

⁷⁰ Sacher v. United States (1957) 99 App DC 360, 240 F2d 46.

⁷¹ 87 Phil. 29 (1950), p. 48.

⁷² Rozell, M., "Executive Privilege and the Modern Presidents: In Nixon's Shadow," Symposium on United States v. Nixon: Presidential Power and Executive Privilege Twenty-Five Years Later, 83 Minnesota Law Review (May 1999) 1069.

⁷³ Doherty, M., "Executive Privilege or Punishment? The Need to Define Legitimate Invocations and Conflict Resolution Techniques," 19 Northern Illinois University Law Review 801, 810 (Summer 1999) (footnotes omitted).

⁷⁴ 157 F. Supp. 939 (Ct. Cl. 1958).

⁷⁵ McNeely-Johnson, K.A., "United States v. Nixon, Twenty Years After: The Good, the Bad and the Ugly –An Exploration of Executive Privilege," 14 Northern Illinois University Law Review (Fall, 1993) 251, 261-262, citing Kaiser Aluminum & Chemical Co. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958), 946.

⁷⁶ 418 US 613 (1974).

⁷⁷ Rozell, M., "Restoring Balance to the Debate Over Executive Privilege: A Response to Berger," Symposium: Executive Privilege and the Clinton Presidency," 8 William and Mary Bill of Rights Journal (April 2000) 541, 557 citing Letter from George Washington to James Madison (May 5, 1789), in 30 The Writings of George Washington, 1745-1799, at 311 (John Fitzpatrick ed., 1931-1944).

⁷⁸ Doherty, M., "Executive Privilege or Punishment? The Need to Define Legitimate Invocations and Conflict Resolution Techniques," 19 Northern Illinois University Law Review 801, 821 (Summer 1999).

⁷⁹ Rozell, M., supra note 77. See also Boughton, J.R., "Paying Ambition's Debt: Can the Separation of Powers Tame the Impetuous Vortex of Congressional Investigations?" 21 Whittier Law Review (Summer, 2000) 797, footnotes omitted.

⁸⁰ Boughton, "Paying Ambition's Debt: Can the Separation of Powers Tame the Impetuous Vortex of Congressional Investigations?" 21 Whittier Law Review (Summer, 2000) 797, p. 814.

⁸¹ Rozell, M., supra note 77 at 582.

⁸² 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14,692d).

⁸³ Boughton, supra at 815.

⁸⁴ Ibid.

⁸⁵ Doherty, supra at 801, 822.

⁸⁶ Boughton, supra at 817.

⁸⁷ Id. at 826, citing Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability (1994).

⁸⁸ 418 U.S. 683 (1974).

⁸⁹ Boughton, supra at 819.

⁹⁰ Ibid.

⁹¹ Doherty, supra at 828.

⁹² Id. at 820.

⁹³ Iraola, supra at 1571, citing 26A Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5662, at 484-90 (1992) (footnotes omitted).

⁹⁴ Id. at 1571, citing 26A Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5662, at 490 n.3.

⁹⁵ Wald, P. and Siegel, J., "The D.C. Circuit and the Struggle for Control of Presidential Information," Symposium, The Bicentennial Celebration of the Courts of the District of Columbia Circuit, 90 Georgetown Law Journal (March 2002) 737, 740.

⁹⁶ Iraola, supra at 1571.

⁹⁷ Id. at 1559.

⁹⁸ Id. at 1572, citing Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983) (footnotes omitted). It has been aptly noted that "[i]n the hierarchy of executive privilege, the 'protection of national security' constitutes the strongest interest that can be asserted by the President and one to which the courts have traditionally shown the utmost deference." 12 Op. Off. Legal Counsel 171, 176-77 (1988).

⁹⁹ United States v. Reynolds, 345 U.S. 1; Iraola, supra at 1572.

¹⁰⁰ United States v. Reynolds, 345 U.S. 1, 7-8 (1953); Iraola, supra at 1572, citing Bowles v. United States, 950 F.2d 154, 156 (4th Cir. 1991); In re United States, 872 F.2d 472, 475 (1989).

¹⁰¹ United States v. Reynolds, 345 U.S. 1; Iraola, supra at 1572, citing Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 547 (1991).

¹⁰² 433 US 425 (1977).

¹⁰³ Iraola, supra at 1577, citing First E. Corp. v. Mainwaring, 21 F.3d 465, 468 (D.C. Cir. 1994) (quoting Dudman Communications Corp. v. Dept. of Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987)); see also Missouri v. United States Army Corps of Eng'rs, 147 F.3d 708, 710 (8th Cir. 1998) ("The purpose of the deliberative process privilege is to allow agencies freely to explore alternative avenues of action and to engage in internal debates without fear of public scrutiny.")

¹⁰⁴ Id. at 1578 citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C. Cir. 1967); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-53 (1975); EPA v. Mink, 410 U.S. 73, 86-93 (1973).

¹⁰⁵ Ibid, citing Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12 (D.D.C. 1995) (citation omitted), aff'd, 76 F.3d 1232 (D.C. Cir. 1996).

¹⁰⁶ Id. at 1578 (footnotes omitted).

¹⁰⁷ Id. at 1579, citing In re Dep't of Investigation, 856 F.2d 481, 484 (2d Cir. 1988); United States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981); Black v. Sheraton Corp. of Am., 564 F.2d 531, 545 (D.C. Cir. 1977).

¹⁰⁸ Almonte, et al. v. Vasquez, et al., G.R. No. 95367, May 23, 1995, 244 SCRA 286.

¹⁰⁹ G.R. No. 130716, December 9, 1998, 299 SCRA 744.

¹¹⁰ G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006).

¹¹¹ U.S. v. Nixon, 418 U.S. 683 (1974), Note 19 at 713.

¹¹² Ibid.

¹¹³ 418 U.S. 683 (1974).

¹¹⁴ U.S. v. Haldeman, 559 F.2d 31 (1976), p. 52.

¹¹⁵ A grand jury is an investigatory body charged with the duty to determine whether or not a crime has been committed. (U.S. v. R. Enterprises, Inc., et al. 498 US 292, 296 [1991]).

¹¹⁶ 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 (1973), Note 1 which states, viz: The Special Prosecutor has been designated as the attorney for the Government to conduct proceedings before the grand jury investigating the unauthorized entry into the Democratic National Committee Headquarters and related offenses.

¹¹⁷ 360 F. Supp 1 (1973).

¹¹⁸ 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 (also referred to as In re Subpoena for Nixon), 360 F. Supp 1, 3 (1973).

¹¹⁹ Supra note 116.

¹²⁰ 487 F. 2d 700.

¹²¹ Id. at 704.

¹²² 377 F. Supp. 1326 (1974).

¹²³ 418 U.S. 683 (1974).

¹²⁴ Id. at 708.

¹²⁵ Ibid., explaining in Note 17 that, "Freedom of communication vital to fulfillment of the aims of wholesome relationships is obtained only by removing the specter of compelled disclosure. . . . (G)overnment . . . needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 325 (DC 1966). See Nixon v. Sirica, 159 U.S.App.D.C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser Aluminum & Chem. Corp. v. United States, 141 Ct.Cl. 38, 157 F.Supp. 939 (1958) (Reed, J.); The Federalist, No. 64 (S. Mittell ed. 1938).

¹²⁶ Id. at 708.

¹²⁷ Id. at 705, explaining in Note 15 that, "There is nothing novel about governmental confidentiality. The meetings of the Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand, The Records of the Federal Convention of 1787, pp. xi-xxv (1911). Moreover, all records of those meetings were sealed for more than 30 years after the Convention. See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledge that without secrecy no constitution of the kind that was developed could have been written. C. Warren, The Making of the Constitution, 134-139 (1937).

¹²⁸ Id. at 708.

¹²⁹ Id. at 706, Note 16, citing Marshall v. Gordon, 243. U.S. 521, 537, 37 S.Ct. 448, 451, 61 L.Ed. 881 (1917).

¹³⁰ Id. at 707, citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., at 635, 72 S.Ct., at 870 (Jackson, J., concurring).

¹³¹ Id. at 711 where the Court held, viz:

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.

¹³⁸ Id. at 10-11.

¹³⁹ Id. at 5, citing Note 8 quoting Brief in Opposition at 3.

¹⁴⁰ In re Sealed Case (Espy), 121 F3d 729 at 754.

¹⁴¹ U.S. v. Nixon, 418 U.S. 683 at 706.

¹⁴² Id. at 712.

¹⁴³ Id. at 707.

¹⁴⁴ Id. at 709.

¹⁴⁵ Id. at 711-712.

¹⁴⁶ Id. at 712-713.

¹⁴⁷ Id. at 706.

¹⁴⁸ Ibid.

¹⁴⁹ Id. at 710-711.

¹⁵⁰ Id. at 709-710, explaining in Note 18 that, "Because of the key role of the testimony of witnesses in the judicial process, courts have historically been cautious about privileges. Mr. Justice Frankfurter, dissenting in Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454,4 L.Ed.2d 1669 (1960), said of this: 'Limitations are properly placed upon the operation of this general principle only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" (emphasis supplied:)

¹⁵¹ Id. at 714, Note 21, citing United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), or C. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948).

¹⁵² Id. at 714-715.

¹⁵³ Id. at 715.

¹⁵⁴ Ibid.

¹⁵⁵ 121 F.3d 729, pp. 744-745. The Court held, viz:

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.

¹⁵⁷ G.R. No. 95367 May 23, 1995, 244 SCRA 286 (1995).

¹⁵⁸ G.R. No. 130716, December 9, 1998, 299 SCRA 744 (1998), citing IV Record of the Constitutional Commission 621-922, 931 (1986) and Almonte v. Vasquez, 244 SCRA 286, 295, 297, May 23, 1995.

¹⁵⁹ 345 U.S. 1 (1953).

¹⁶⁰ Id. at 7-8.

¹⁶¹ Id. at 9-10.

¹⁶² Id. at 10.

¹⁶³ Id. at 11.

¹⁶⁴ Id. at 4.

¹⁶⁵ Id. at 4-5.

¹⁶⁶ Id. at 10.

¹⁶⁷ United States v. Reynolds, 345 U.S. 1 (1953) at 10.

¹⁶⁸ TSN, Oral Argument, March 4, 2008, pp. 35-38. Counsel for petitioner did not provide sufficient basis for claiming diplomatic secrets privilege as supplied by the President or the proper head of agency involved in foreign affairs, viz:

JUSTICE CARPIO: But where is the diplomatic secret there, my question was – does this refer, do the conversations refer to diplomatic secrets?

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?

Counsel for petitioner also admitted that there was no referral of any aspect of the ZTE Contract to the Department of Foreign Affairs, viz:

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?

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)

¹⁶⁹ Petition, Annex D-1.

¹⁷⁰ Ibid.

¹⁷¹ TSN, Oral Argument, March 4, 2008, pp. 35-38. Counsel for petitioner did not provide sufficient basis for claiming military and national secrets privilege as supplied by the President or the proper head of agency involved in military and national security, viz:

JUSTICE CARPIO: Okay, you mentioned that the nature of the discussion refers to military secrets, are you claiming that?

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.

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:

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?

ATTY. BAUTISTA: It is not my job, Your Honor, maybe the Solicitor General. (p. 144)

Counsel for petitioner also admitted that the ZTE Contract was not referred to the Department of National Defense, viz:

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?

ATTY. LANTEJAS: As far as I know, Your Honor, I think there was no referral to the National Defense, Your Honor. (pp. 291- 292)

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.

¹⁷³ Id., Note 8, p. 5, citing Brief in Opposition, p. 3.

¹⁷⁴ 157 F.Supp. 939, 944, 141 Ct.Cl. 38 (1958).

¹⁷⁵ 141 Ct. Cl. 38, 157 F.Supp. 939 (1958).

¹⁷⁶ Almonte v. Vasquez, G.R. No. 95367 May 23, 1995, 244 SCRA 286 (1995); Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006).

¹⁷⁷ Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 51; Comment, pp. 16-17.

¹⁷⁸ 487 F.2d 700, 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:)

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:)Document1zzB028281974110967

¹⁸⁰ See U.S. v. Haldeman, et al, 559 F.2d 31 (1976) and In re Sealed Case (Espy), 121 F.3d 729 (1997).

¹⁸¹ G.R. No. 95367 May 23, 1995, 244 SCRA 286 (1995). Citing U.S. v. Nixon, the Court held, viz:

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

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 the government and inextricably rooted in the separation of powers under the Constitution. . . . (emphasis supplied:)

¹⁸² G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006) at 51; Comment, pp. 16- 17.

¹⁸³ II Record of the Constitutional Commission, p. 387.

¹⁸⁴ See note 186, infra.

¹⁸⁵ In Cheney v. United States District Court for the District of Columbia, et al., the U.S. Supreme Court pointed out the distinction in context between the case before it and U.S. v. Nixon. It cautioned that the observation in U.S. v. Nixon that production of confidential information in a criminal proceeding would not disrupt the functioning of the Executive Branch could not be applied mechanically to the civil litigation before it. The Court pointed out that in the criminal justice system, there are mechanisms to filter out insubstantial legal claims such as through responsible exercise of prosecutorial discretion to prosecute a criminal case. In contrast, in civil litigation, there is no sufficient mechanism to screen out unmeritorious or vexatious claims against the Executive Branch wherein access to Presidential communications may be sought. Cheney v. United States District Court for the District of Columbia, et al., 542 U.S. 367 (2004). See also note 186, infra.

¹⁸⁶ Lee, G., The President's Secrets, 76 George Washington Law Review, February 2008, 197.

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.

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.

¹⁸⁷ 87 Phil. 29 (1950), p. 48.

¹⁸⁸ Cheney v. United States District Court for the District of Columbia, 542 U.S. 367

(2004).

¹⁸⁹ 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; TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, pp. 91-92.

¹⁹⁰ Id.; TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, pp. 114-115.

¹⁹¹ Id.; TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, pp. 275-276.

¹⁹² TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, pp. 43-44.

¹⁹³ Id. at 91-92.

¹⁹⁴ Id. at 105.

¹⁹⁵ Id. at 114-115.

¹⁹⁶ Id. at 275-276.

¹⁹⁷ Comment, pp. 4-5.

¹⁹⁸ Id. at 5.

¹⁹⁹ Ibid.

²⁰⁰ Ibid.

²⁰¹ Id. at 6.

²⁰² Id. at 5-6.

²⁰³ Id. at 6 and 24, Annex A.

²⁰⁴ Id. at 7 and 24, Annex B.

²⁰⁵ Id. at 7, 24-25, Annex C.

²⁰⁶ 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.

²⁰⁷ 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.

²⁰⁸ An Act Mandating Concurrence to International Agreements and Executive Agreements.

²⁰⁹ In the Oral Argument on March 4, 2008, counsel for the petitioner revealed that included in the conversation of the President with petitioner that respondent Senate Committees seek to be disclosed is the weighing of options of the President, viz:

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)

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)

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:

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. (pp. 299-300)

²¹¹ TSN, Senate Hearing on NBN-ZTE Contract, September 26, 2007, p. 66.

²¹² In the Oral Argument on March 4, 2008, counsel for petitioner argued on this point, viz:

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.

²¹⁴ Id. at 187.

²¹⁵ Id. at 178.

²¹⁶ Miller, R., "Congressional Inquests: Suffocating the Constitutional Prerogative of Executive Privilege," 81 Minnesota Law Review, February 1997, 631, 684-685 citing Mistretta v. United States, 488 U.S. 361, 384-97 (1989) (upholding the Sentencing Guidelines promulgated by the United States Sentencing Commission); Morrison v. Olson, 487 U.S. 654, 691 (1988) (upholding provisions of the Ethics in Government Act); Nixon v. Administrator of Gen. Services., 433 U.S. 425, 441-46 (1977) (upholding the Presidential Records and Materials Preservation Act because the Act is not "unduly disruptive of the Executive Branch"); cf. Public Citizen v. United States Department of Justice, 491 U.S. 440, 486 (1989) (Kennedy, J., concurring) (suggesting that formalism should be applied "[w]here a power has been committed to a particular branch of the Government in the text of the Constitution ... [i.e.,] where the Constitution draws a clear line").

²¹⁷ Comment, p. 25.

²¹⁸ Id. at 26.

²¹⁹ TSN, Oral Argument, March 4, 2008, pp. 416-422.

²²⁰ Id. at 297-306.

²²¹ There is no case involving Presidential communications privilege invoked in a legislative inquiry that has reached the US Supreme Court. The case that comes closest to the facts of the case at bar is Senate Select Committee v. Nixon (498 F.2d 725 [1974]) decided by the Court of Appeals of the District of Columbia Circuit where it laid down the "demonstrably critical test" to overcome the presumption of confidentiality of presidential communication in a Senate investigation. In this case, the Senate Committee to investigate wrongdoing by the Nixon Administration subpoenaed taped conversations of President Nixon. The D.C. Circuit Appellate Court ruled that the Committee's showing of need for the subpoenaed tapes "must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions." The subpoena did not pass the test because as observed by the court, there were two possible reasons why the Committee needed the tapes -- to expose corruption in the executive branch and to determine whether new legislation was needed. The power of the Senate Committee to investigate wrongdoing by the Nixon Administration did not provide sufficient justification because the House Judiciary Committee was conducting an impeachment inquiry at the same time and already had copies of the subpoenaed tapes. The court, therefore, concluded that the Watergate Committee's need for the subpoenaed tapes to investigate President Nixon was "merely cumulative." The court also assessed that the Committee did not need the tapes to educate itself for it to recommend legislation. Noticeably similar or at least consistent with the "function impairment approach," the "demonstrably critical test" of the D.C. Circuit Court of Appeals also weighs how nondisclosure will impair the performance of the function of the Senate Committee. Thus, subjecting the case at bar to the "demonstrably critical test," the Court should arrive at the same result using the "function impairment test."

²²² Comment, p. 27.

²²³ Doherty, M., supra at 801.

²²⁴ Rozell, M., supra note 77 at 541, 555-556, citing Letter from George Washington to James Madison (May 5, 1789), in 30 The Writings of George Washington, 1745-1799, at 311 (John Fitzpatrick ed., 1931-1944).

²²⁵ Id. at 541, citing Raoul Berger, executive Privilege: A Constitutional Myth (1974).

²²⁶ Nixon v. Sirica, 487 F.2d 700, p. 717, citing Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 385, 391; 463 F.2d 788, 794 (1971).

²²⁷ 498 F.2d 725, 731 (1974), citing Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 385, 463 F.2d 788, 794 (1971). See Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).

²²⁸ Nixon v. Sirica 487 F.2d 700 at 719.

²²⁹ 487 F.2d at 718.

²³⁰ Nixon v. Sirica, 487 F.2d 700 at 731.

²³¹ 121 F.3d 729 (1997).

²³² Id. at 746 (1997).

²³³ Iraola, R., supra at 487.

²³⁴ Id. at 1586 (August 2002), footnote 161, citing 5 Op. Off. Legal Counsel 27, 31 (1981); see also 10 Op. Off. Legal Counsel 68, 92 (1986) ("[I]n cases in which Congress has a legitimate need for information that will help it legislate and the Executive Branch has a legitimate, constitutionally recognized need to keep information confidential, the courts have referred to the obligations of each branch to accommodate the legitimate needs of the other.") (citing United States v. AT&T, 567 F.2d 121, 130 (D.C. Cir. 1977).

²³⁵ Cheney v. D.C. District Court, 542 U.S. 367 (2004), citing United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 97 L.Ed. 727 (1953).

²³⁶ Id. at 367, citing U.S. v. Nixon, 418 U.S. 683 at 692.

²³⁷ 567 F.2d 121, 130 (D.C. Cir. 1977).

²³⁸ Miller, R., "Congressional Inquests: Suffocating the Constitutional Prerogative of Executive Privilege," 81 Minnesota Law Review, February 1997, 631.

²³⁹ TSN, Oral Argument, March 4, 2008, p. 13.

²⁴⁰ 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. (Comment, pp. 4-5)

²⁴¹ Delivered on September 11, 2007, entitled "Legacy of Corruption"; Comment, p. 5.

²⁴² 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; Comment, p. 5.

²⁴³ 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; Comment, pp. 5-6.

²⁴⁴ Resolution Urging President Gloria Macapagal Arroyo to Direct the Cancellation of the ZTE Contract; Comment, p. 6.

²⁴⁵ Delivered on November 24, 2007, entitled "International Agreements in Constitutional Law: The Suspended RP-China (ZTE) Loan Agreement"; Comment, p. 6.

²⁴⁶ "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"; Comment, pp. 6-7; Annex A.

²⁴⁷ "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"; Comment, p. 7; Annex B.

²⁴⁸ "An Act Mandating Concurrence to International Agreements and Executive Agreements"; Comment, p. 7; Annex C.

²⁴⁹ Supplemental Petition, Annex A.

²⁵⁰ Petition, Annex A.

²⁵¹ The January 30, 2008 Order of arrest shows that it was signed by the following Senators, viz:

Chairpersons:

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)

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.

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