Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643
Agenda for March 25, 2007
G.R. No. 180643 (Romulo L. Neri, in his capacity as Chairman of the Commission on Higher Education and as former Director General of the National Economic & Development Authority (NEDA) v. Senate Committee on Accountability of Public Officers and Investigations, et al.)
S E P A R A T E C O N C U R R I N G O P I N I O N
VELASCO, JR., J.:
This case turns on the privileged nature of what the petitioner, as then NEDA Director-General, discussed with the President regarding the scuttled ZTE-NBN contract juxtaposed with the authority of respondents Senate committees to look, in aid of legislation, into what was discussed.
On September 26, 2007, petitioner, on invitation of the respondents, testified on the ZTE-NBN contract and the bribe dangled in connection thereto. When queried on what he discussed with the President after he divulged the bribe offer, petitioner declined to disclose details of their conversations which he deemed privileged. Anticipating to be asked on the same subject and on order of the President invoking executive privilege, petitioner sent regrets on his inability to appear in the November 20, 2007 hearing. Respondents then asked the petitioner to explain why he should not be cited for contempt. Explain petitioner did, with a request that he be furnished in advance with questionnaires should respondents desire to touch on new matters. The contempt threat, which would eventually be carried out with the issuance of an arrest order, is cast against a backdrop that saw petitioner staying for 11 straight hours with the investigation committees and answering all their questions, save those he deemed covered by executive privilege.
Congressional investigations to elicit information in aid of legislation are valid exercise of legislative power, just as the claim of executive privilege is a valid exercise of executive power. In the Philippine setting, the term "executive privilege" means the power of the President to withhold certain types information from the courts, the Congress, and ultimately the public.1 Apart from diplomatic and military secrets and the identity of government informers, another type of information covered by executive privilege relates to information about internal deliberations comprising the process by which government decisions are reached or policies formulated.2 U.S. v. Nixon explains the basis for the privilege in the following wise:
The expectation of a President to the confidentiality of his conversation and correspondences, like the claim of confidentiality of judicial deliberations x x x has all the values to which we accord deference for the privacy of all citizens. x x x A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express privately. These are the considerations justifying a presumptive privilege for Presidential communications.3
Authorities are agreed that executive privilege is rooted on the doctrine of separation of powers, a basic postulate that forbids one branch of government to exercise powers belonging to another co-equal branch; or for one branch to interfere with the other's performance of its constitutionally-assigned functions. It is partly in recognition of the doctrine that "presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court x x x or executive sessions of either house of Congress x x x cannot be pried open by a co-equal branch of government."4 And as the Court aptly observed in Gudani v. Senga,5 the fact that the executive branch is an equal branch to the legislative creates a "wrinkle" to any basic rule that persons summoned to testify before Congress must do so.
So, was the eventual issuance of the assailed citation and arrest order justified when the duly subpoenaed petitioner declined to appear before the respondents' hearing through a claim of executive privilege "By Order of the President"? I turn to the extent and limits of the legislative power of inquiry in aid of legislation.
What was once an implicit authority of Congress and its committees to conduct hearings in aid of legislation––with the concomitant power necessary and proper for its effective discharge6––is now explicit in the 1987 Constitution.7 And this power of inquiry carries with it the authority to exact information on matters which Congress is competent to legislate, subject only to constitutional restrictions.8 The Court, in Arnault v. Nazareno,9 acknowledged that once an inquiry is established to be within the jurisdiction of a legislative body to make, the investigation committee has the power to require the witness to answer any question pertinent to the subject of the inquiry and punish a recalcitrant or unwilling witness for contempt. But Bengson v. Senate Blue Ribbon Committee10 made it abundantly clear that the power of Congress to conduct inquiries in aid of legislation is not "absolute or unlimited."
Section 21, Article VI of the Constitution providing:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
establishes what we tagged in Senate v. Ermita (Ermita) as "crucial safeguards" that circumscribe the legislative power of inquiry. The provision thus requires the inquiry to: (1) properly be in aid of legislation, else, the investigating committee acts beyond its power; without a valid legislative purpose, a congressional committee is without authority to use the compulsory process otherwise available in the conduct inquiry in aid of legislation;11 (2) be done in accordance with duly published rules of procedure, irresistibly implying the constitutional infirmity of an inquiry conducted without or in violation of such published rules; and (3) respect the rights of persons invited or subpoenaed to testify, such as their right against self-incrimination and to be treated in accordance with the norms individuals of good will observe.
The Communications between Petitioner
and the President are Covered by Executive Privilege;
the Privilege was Properly Claimed by and for Petitioner
Executive Secretary Ermita, in line with Ermita, duly invoked, by order of the President, executive privilege, noting, in a letter12 to the Chairperson of the Blue Ribbon Committee that the following questions:
(1) Whether the President followed up the (NBN) project?
(2) Were you dictated to prioritize the ZTE? and
(3) Whether the President said to go ahead and approve the project after being told about the alleged bribe?
previously addressed to petitioner Neri, but left unanswered, "[fall] under conversations and correspondence between the President and public officials which are considered executive privilege." And explaining in some detail the confidential nature of the conversations, Sec. Ermita's letter further said:
The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, [Sec. Neri] cannot provide the Committee any further details of these conversations without disclosing the very thing the privilege is designed to protect.
The information the petitioner sought to keep undisclosed regarding the ZTE-NBN project dealt with high-level presidential communications with a subordinate over a matter involving a foreign power. Allowing such information to be extracted in an open-ended Senate committee investigation after an 11-hour grilling Neri was subjected to is tantamount to allowing a substantial, and unreasonable, incursion into the President's recognized right to confidentiality and to candidly interact with her advisers, a right falling under the aegis of executive privilege. The concept and assertion of executive privilege are after all intended, following the Ermita precedent, to protect a basic interest of the President, that is, the necessity that she receives candid and unfettered advice from his subordinates and that the latter be able to communicate freely and openly with her and with each other.
Respondents, in their Comment and during the oral arguments, stressed, and correctly so, that executive privilege cannot validly be invoked to conceal a crime, the point apparently being that the President knew of, or worse, was a player in the alleged ZTE-NBN bribery drama. It ought to be pointed out, however, that it is a bit presumptuous to suppose that what President and the petitioner discussed was about a crime. And would not executive privilege be reduced into a meaningless concept if, to preempt its application, any congressional committee raises, if convenient, the crime angle?
In Ermita, the Court, citing US case law,13 outlined the steps to follow in claiming executive privilege. Foremost of these are: (1) it must be clearly asserted, which petitioner did, and by the Government to which the privilege belongs; (2) there must be a formal claim of privilege, lodged by the head of the department having control over the matter; and 3) the statement of the claim must be specific and the claim must state the reasons for withholding the information. Save for some broad statements about the need to protect military, diplomatic, and national security secrets, all the requirements respecting the proper manner of making the claim have satisfactorily been met. As we explained in Ermita, the Senate cannot require the executive to state the reasons for the claim with such particularity as to veritably compel disclosure of the information which the privilege is designed to protect in the first place.
It may be stated at this juncture that respondents committees have certain obligations to comply with before they can exact faithful compliance from a summoned official claiming executive privilege over the matter subject of inquiry. Again, Ermita has laid out the requirements to be met under that given scenario. They are, to me, not mere suggestions but mandatory prescriptions envisaged as they are to protect the rights of persons appearing or affected by the congressional inquiries. These requirements are: First, the invitation or subpoena shall indicate the possible questions to be asked; second, such invitation or subpoena shall state the proposed statute which prompted the need for the inquiry; and third, that the official concerned must be given reasonable time to apprise the President or the Executive Secretary of the possible need for invoking executive privilege. For the purpose of the first requirement, it would be sufficient if the person invited or subpoenaed is, at least, reasonably apprised and guided by the particular topics to be covered as to enable him to properly prepare. The questions need not be couched in precise details or listed down to exclude all others.
Annex "B" of the Petition, or the subpoena ad testificandum dated November 13, 2007 addressed to the petitioner literally makes no reference to any intended legislation. It did not also accord him with a fair notice of the questions likely to be asked. As it were, the subpoena contained nothing more than a command for the petitioner to appear before the Blue Ribbon Committee at a stated date, then and there to "testify on what [he] know[s] relative to the subject matter under inquiry." And lest it be overlooked, it is not clear from Annex "B" what matters relating to a proposed bill, if there be any, cannot be addressed without information as to the specifics of the conversation between the President and the petitioner.
In net effect, the subpoena thus issued is legally defective, issued as it were in breach of what to me are mandatory requirements. Accordingly, the non-compliance with the subpoena is, under the premises, justifiable. Similarly, respondent committees are precluded from imposing sanctions against the person, petitioner in this instance, thus subpoenaed should the latter opt not to comply with the subpoena.
Grave Abuse of Discretion tainted the issuance of the Order of Arrest
The perceived obstructive defiance of the subpoena (Annex "B", Petition) triggered the issuance of the assailed contempt and arrest order. It behooves the Court to now strike the said order down, not only because its existence is the by-product of or traceable to, a legally infirm subpoena, but also because the Senate Rules of Procedure Governing Inquiries in Aid of Legislation does not authorize the arrest of unwilling or reluctant witness not before it. Surely, respondents cannot look to Sec. 18 of the rules of procedure governing legislative inquiries as the arrest-enabling provision since it only speaks of contempt in the first place. Sec. 18 reads:
Sec. 18. Contempt. The Committee, by a majority vote of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members xxx Such witness may be ordered by the Committee to be detained in such place at it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents or to be sworn or to testify, or otherwise purge himself of that contempt.
I may even go further. Internal rules of procedure cannot plausibly be the source of the power to issue an arrest order and, as has been the practice, for the security unit of the Senate to enforce the order. There must, I submit, be a law for the purpose and where the security unit is given the enforcing authority. The power to issue an order of arrest power is such an awesome, overreaching prerogative that the Constitution, no less, even sets strict conditions before a warrant of arrest will issue against a suspected criminal.14
The Court is very much aware that Sec. 3(c) of the Rules of the Senate empowers the Senate President to "sign x x x orders of arrest." It cannot be overemphasized, however, that the order for the petitioner's arrest was a joint committee action which naturally ought to be governed by the Rules of Procedure Governing Inquiries in Aid of Legislation, not the Rules of the Senate. It would be a sad commentary if Senate committees can choose to ignore or apply their very own rules when convenient, given that violation of these rules would be an offense against due process.15
But conceding for the nonce the authority of the respondents to order an arrest, as an incident to its contempt power, to be effected by their own organic security complement, the assailed order would still be invalid, the same not having been approved by the required majority vote of the respective members of each of the three investigating committees. Respondents veritably admitted the deficiency in votes when they failed to document or otherwise prove––despite a commitment to do so during the oral arguments––the due approval of the order of citation and arrest. And unable to comply with a promised undertaking, they offer the lame excuse that the matter of approval of the citation and arrest order is a non-issue.
Philippine jurisprudence remains unclear on what Congress may do should a witness refuse to obey a subpoena. Fr. Bernas has stated the observation, however, that there is American jurisprudence which recognizes the power of Congress to punish for contempt one who refuses to comply with a subpoena issued by a congressional investigating body, albeit the practice seems to be that the Congress asks a court to directly order compliance with a subpoena.16
Conclusion
In sum, petitioner had not acted in a manner to warrant contempt, arrest and detention. Far from it. He appeared before respondents committees in the hearing of September 26, 2007 which, to repeat, lasted for 11 hours where he answered all the questions not requiring, in response, divulging confidential matters. Proper procedures were followed in claiming executive privilege, as outlined in Ermita. In due time, he replied to the show-cause order the respondents issued.
Considering the circumstances, as discussed, under which it was issued, the assailed January 30, 2008 order should be struck down as having been issued in grave abuse of discretion.
I, therefore, vote to grant the petition.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
1 Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1.
2 Id.
3 418 U.S. 683 (1974); cited in Almonte v. Vasquez, G.R. No. 95367, May 23, 1995, 244 SCRA 286.
4 Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152, 188-189.
5 G.R. No. 170165, August 15, 2006, 498 SCRA 671.
6 Sabio v. Gordon, G.R. No. 174340, October 17, 2006, 504 SCRA 704; citing McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct.
7 Art. VI, Sec. 21.
8 Briggs v. MacKellar, 2 Abb. Pr. 30 (N.Y.) 1864), cited in Sabio v. Gordon, supra.
9 87 Phil. 29 (1950).
10 G.R. No. 89914, November 20, 1991; 203 SCRA 767, citing Arnault.
11 Bengson v. Senate Blue Ribbon Committee, supra.
12 Sec. Ermita's letter dated Nov. 15, 2007 to Sen. Alan Peter Cayetano, Annex "C," Petition.
13 U.S. v. Reynolds, 345 U.S 1, 73 S. Ct. 528.
14 Art. III, Sec. 2 of the Constitution provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched or the persons and things to be seized.
15 Bernas, The 1987 Constitution of the Philippines: A Commentary (2003), p. 740
16 J.G. Bernas, "Sounding Board: Shielding the President." Philippine Daily Inquirer, February 11, 2008.
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