Primer on the Supreme Court Decision in
Neri vs. Senate Committee and its Implications

IN GENERAL:

What is the case of Neri vs. Senate Committee?

This case is about the Senate investigation of anomalies concerning
the NBN-ZTE project. During the hearings, former NEDA head Romulo
Neri refused to answer certain questions involving his conversations
with President Arroyo on the ground they are covered by executive
privilege. When the Senate cited him in contempt and ordered his
arrest, Neri filed a case against the Senate with the Supreme Court.
On March 25, 2008, the Supreme Court ruled in favor of Neri and
upheld the claim of executive privilege.

What is “executive privilege”?

It is the right of the President and high-level executive branch
officials to withhold information from Congress, the courts and the
public. It is a privilege of confidentiality which applies to
certain types of information of a sensitive character that would be
against the public interest to disclose. Executive privilege is
based on the constitution because it relates to the President’s
effective discharge of executive powers. Its ultimate end is to
promote public interest and no other.

Is executive privilege absolute?

No. Any claim of executive privilege must be weighed against other
interests recognized by the constitution, like the state policy of
full public disclosure of all transactions involving public interest,
the right of the people to information on matters of public concern,
the accountability of public officers, the power of legislative
inquiry, and the judicial power to secure evidence in deciding cases.

Did the revocation by the President of E.O. 464 on March 6, 2008
diminish the concept of executive privilege?

No. Executive privilege may still be invoked despite the President’s
revocation of E.O. 464 because it is based on the constitution.


ON THE CONTENTS OF THE SUPREME COURT DECISION:

What events led to the filing of the case before the Supreme Court?

On April 21, 2007, the DOTC and Zhing Xing Telecommunications
Equipment (ZTE), a corporation owned by the People’s Republic of
China, executed a “Contract for the Supply of Equipment and Services
for the National Broadband Network Project” (NBN-ZTE Contract) worth
US$329,481,290.00 (around PhP 16B). The project sought to provide
landline, cellular and internet services in government offices
nationwide and was to be financed through a loan by China to the
Philippines. President Arroyo witnessed the contract signing in
China.

After its signing, reports of anomalies concerning the project (e.g.,
bribery, “overpricing” by US$ 130M, “kickback commissions” involving
top government officials, and loss of the contract) prompted the
Senate, through the Committees on Accountability of Public Officers
and Investigations (Blue Ribbon), Trade and Commerce, and National
Defense and Security, to conduct an inquiry in aid of legislation.
The inquiry was based on a number of Senate resolutions and in
connection with pending bills concerning funding in the procurement
of government projects, contracting of loans as development
assistance, and Senate concurrence to executive agreements.

In one of the hearings held on Sept. 26, 2007, former NEDA Director
General Romulo Neri testified that President Arroyo initially gave
instructions for the project to be undertaken on a Build-Operate-
Transfer (BOT) arrangement so the government would not spend money
for it, but eventually the project was awarded to ZTE with a
government-to-government loan from China. He also said that then
COMELEC Chairman Benjamin Abalos, the alleged broker in the project,
offered him PhP 200M in exchange for NEDA’s approval of the project.
Neri testified that when he told President Arroyo of the bribe offer,
she told him not to accept it. But Neri refused to answer questions
about what he and the President discussed after that, invoking
executive privilege since they concerned his conversations with the
President. The Senate required him to appear again and testify on
November 20, 2007. On November 15, 2007, Executive Secretary Eduardo
Ermita wrote the Senate Committees and asked that Neri’s testimony on
November 20, 2007 be dispensed with because he was invoking executive
privilege “by Order of the President” specifically on the following
questions:

a. Whether the President followed up on 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?

When Neri failed to appear on November 20, 2007, the Senate required
him to show cause why he should not be cited in contempt. Neri
explained that he thought the only remaining questions were those he
claimed to be covered by executive privilege and that should there be
new matters to be taken up, he asked that he be informed in advance
of what else he needs to clarify so he could prepare himself.

On Dec. 7, 2007, Neri questioned the validity of the Senate’s show
cause order before the Supreme Court. On January 30, 2008, the
Senate cited Neri in contempt and ordered his arrest for his failure
to appear in the Senate hearings. On February 1, 2008, Neri asked the
Supreme Court to stop the Senate from implementing its contempt
order, which the Court granted on Feb. 5, 2008. The Supreme Court
also required the parties to observe the status quo prevailing before
the issuance of the contempt order.

What reasons were given for the claim of executive privilege?

Executive Secretary Ermita said 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.” Neri further added that
his “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.”

What issues were considered by the Supreme Court in resolving the
case?

The Supreme Court said there were two crucial questions at the core
of the controversy:

a. Are the communications sought to be elicited by the three
questions covered by executive privilege?
b. Did the Senate Committees commit grave abuse of discretion in
citing Neri in contempt and ordering his arrest?

How did the Supreme Court resolve these issues?

The Supreme Court first recognized the power of Congress to conduct
inquiries in aid of legislation. The Court said that the power
extends even to executive officials and the only way for them to be
exempted is through a valid claim of executive privilege.

On the first question, the Supreme Court said that the communications
sought to be elicited by the three questions are covered by the
presidential communications privilege, which is one type of executive
privilege. Hence, the Senate cannot compel Neri to answer the three
questions.

On the second question, the Supreme Court said that the Senate
Committees committed grave abuse of discretion in citing Neri in
contempt. Hence, the Senate order citing Neri in contempt and
ordering his arrest was not valid.

What are the types of executive privilege?

a. state secrets (regarding military, diplomatic and other
security matters)
b. identity of government informers
c. information related to pending investigations
d. presidential communications
e. deliberative process

In what cases is the claim of executive privilege highly recognized?

The claim of executive privilege is highly recognized in cases where
the subject of inquiry relates to a power textually committed by the
constitution to the President, such as the commander-in-chief,
appointing, pardoning, and diplomatic powers of the President.
Information relating to these powers may enjoy greater
confidentiality than others.

What specifically are the executive privileges relating to
deliberations or communications of the President and other government
officials?

These are the presidential communications privilege and the
deliberative process privilege.

How are the presidential communications privilege and the
deliberative process privilege distinguished?

The presidential communications privilege applies to decision-making
of the President. It pertains to “communications, documents or other
materials that reflect presidential decision-making and deliberations
and that the President believes should remain confidential”.

The deliberative process privilege applies to decision-making of
executive officials. It includes “advisory opinions, recommendations
and deliberations comprising part of a process by which governmental
decisions and policies are formulated.”

Unlike the deliberative process privilege, the presidential
communications privilege applies to documents in their entirety, and
covers final and post-decisional materials as well as pre-
deliberative ones.

Moreover, congressional or judicial negation of the presidential
communications privilege is always subject to greater scrutiny than
denial of the deliberative process privilege.

What is the type of executive privilege claimed in this case?

The type of executive privilege claimed in this case is the
presidential communications privilege.

Is there a presumption in favor of presidential communications?

Yes. Presidential communications are “presumptively privileged”.
The presumption is based on the President’s generalized interest in
confidentiality. The privilege is necessary to guarantee the candor
of presidential advisors and to provide the President and those who
assist him with freedom 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.

The presumption can be overcome only by mere showing of public need
by the branch seeking access to presidential communications.

Who are covered by the presidential communications privilege?

Aside from the President, the presidential communications privilege
covers senior presidential advisors or Malacanang staff who
have “operational proximity” to direct presidential decision-making.

What are the elements of the presidential communications privilege?

The following are the elements of the presidential communications
privilege:

a. The protected communication must relate to a “quintessential
and non-delegable presidential power”.
b. The communication must be authored or “solicited and
received” by a close advisor of the President or the President
himself. The advisor must be in “operational proximity” with the
President.
c. The privilege is a qualified privilege that may be overcome
by a showing of adequate or compelling need that would justify the
limitation of the privilege and that the information sought is
unavailable elsewhere by an appropriate investigating agency.

What are examples of “quintessential and non-delegable presidential
powers” which are covered by the presidential communications
privilege?

The privilege covers only those functions which form the core of
presidential authority. These are functions which
involve “quintessential and non-delegable presidential powers” such
as the powers of the president as commander-in-chief (i.e., to call
out the armed forces to suppress violence, to declare martial law, or
to suspend the privilege of the writ of habeas corpus), the power to
appoint officials and remove them, the power to grant pardons and
reprieves, the power to receive ambassadors, and the power to
negotiate treaties and to enter into execute agreements.

Are the elements of the presidential communications privilege present
in this case?

Yes. The communications elicited by the three questions are covered
by the presidential communications privilege because:

a. First, the communications relate to the power of the
President to enter into an executive agreement with other countries.
b. Second, the communications are received by Neri, who as a
Cabinet member can be considered a close advisor of the President.
c. Third, the Senate Committees have not adequately shown a
compelling need for the answers to the three questions in the
enactment of a law and of the unavailability of the information
elsewhere by an appropriate investigating authority.

Does the grant of the claim of executive privilege violate the right
of the people to information on matters of public concern?

No, for the following reasons:

a. Neri appeared before the Senate on Sept. 26, 2007 and was
questioned for 11 hours. He also expressed his willingness to answer
more questions from the Senators, except the three questions.
b. The right to information is subject to limitation, such as
executive privilege.
c. The right of Congress to obtain information in aid of
legislation cannot be equated with the people’s right to
information. Congress cannot claim that every legislative inquiry is
an exercise of the people’s right to information.

Was the claim of executive privilege properly invoked by the
President in this case?

Yes. For the claim to be properly invoked, there must be a formal
claim by the President stating the “precise and certain reason” for
preserving confidentiality. The grounds relied upon by Executive
Secretary Ermita are specific enough, since what is required is only
that an allegation be made “whether the information demanded involves
military or diplomatic secrets, closed-door Cabinet meetings, etc.”
The particular ground must only be specified, and the following
statement of grounds by Executive Secretary Ermita satisfies the
requirement: “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.”

What reasons were given by the Supreme Court in holding that it was
wrong for the Senate to cite Neri in contempt and order his arrest?

a. There was a legitimate claim of executive privilege.
b. The Senate’s invitations to Neri did not include the possible
needed statute which prompted the inquiry, the subject of inquiry,
and the questions to be asked.
c. The contempt order lacked the required number of votes.
d. The Senate’s rules of procedure on inquiries in aid of
legislation were not duly published.
e. The contempt order is arbitrary and precipitate because the
Senate did not first rule on the claim of executive privilege and
instead dismissed Neri’s explanation as unsatisfactory.

IMPLICATIONS OF THE SUPREME COURT DECISION:

Who has the burden of showing whether or not a claim of executive
privilege is valid?

Executive privilege is in derogation of the search for truth.
However, the decision recognized Presidential communications as
presumptively privileged. Hence, the party seeking disclosure of the
information has the burden of overcoming the presumption in favor of
the confidentiality of Presidential communications.

This presumption is inconsistent with the Court’s earlier statement
in Senate vs. Ermita (April 20, 2006) that “the presumption inclines
heavily against executive secrecy and in favor of disclosure”. It
is also inconsistent with constitutional provisions on transparency
in governance and accountability of public officers, and the right of
the people to information on matters of public concern.

Does the decision expand the coverage of executive privilege?

Yes, the decision expands the coverage of executive privilege in at
least two ways:

a. The decision explained that the presidential communications
privilege covers communications authored or “solicited and received”
by a close advisor of the President or the President himself. This
means that the privilege applies not only to communications that
directly involve the President, but also to communications involving
the President’s close advisors, i.e., those in “operational
proximity” with the President. There is no definition
of “operational proximity”, so it is not clear how far down the chain
of command the privilege extends. This expansion of the coverage of
the privilege means that information in many areas of the executive
branch will become “sequestered” from public view.

b. The decision also stated that the presidential communications
privilege applies to documents in their entirety, and covers final
and post-decisional materials as well as pre-deliberative ones. This
means that the privilege protects not only the deliberative or advice
portions of documents, i.e., communications made in the process of
arriving at presidential decisions, but also factual material or
information concerning decisions already reached by the President.

How will the decision affect other investigations?

The decision makes it easy for the President to invoke executive
privilege, since what is required is only that an allegation be
made “whether the information demanded involves military or
diplomatic secrets, closed-door Cabinet meetings, etc.” This in
effect will enable the use of executive privilege to hide misconduct
or crime. According to Fr. Bernas, S.J., the implication of the
ruling is that once the “presidential communications privilege” is
invoked, no evidence is needed to support it even if there are valid
reasons for disclosing the information sought. “This would
revolutionize the doctrine in a manner that can affect all other
investigations. This can, for instance, hamper effective use of the
… writ of amparo and writ of habeas data. It can also cripple
efforts to battle official corruption ….”

In particular, what is the effect of the decision on the Senate’s
power to conduct inquiries in aid of legislation?

The decision severely limits the Senate’s power of legislative
inquiry and its ability to investigate government anomalies in aid of
legislation. The decision encroaches upon matters internal to the
Senate as an institution separate from and co-equal to other branches
of government.

The decision, for instance, requires the Senate to give its questions
in advance of its hearings. But this is a requirement applicable
only to the question hour and not to inquiries in aid of
legislation. Moreover, it is impractical, since follow-up questions
of Senators will be difficult to anticipate.

The decision also requires the Senate to publish its rules of
procedure on legislative inquiries every three years. But the
Senate traditionally considered as a continuing body. Senate
committees continue to work even during senatorial elections. By
tradition and practice, the Senate does not re-publish its rules. To
require publication of its rules every three years is unnecessary and
inconsistent with its tradition and practice.

Did the Supreme Court ruling establish a doctrine on executive
privilege?

No. Although the vote is 9 – 6 in favor of upholding the claim of
executive privilege, two of the nine Justices concurred merely in the
result, while one Justice argued not on the basis of executive
privilege. Hence, only six out of the nine Justices explained their
votes in favor of the claim of executive privilege. Six out of a
total of 15 Justices do not establish a doctrine.

Can the Senate continue with its investigations despite the Supreme
Court ruling?

The decision does not stop the Senate from continuing with its
investigations and from undertaking other inquiries, although the
government has already declared that officials will not appear unless
the Senate rules are first published. Should Neri (and other
officials) appear, the Senate can ask him questions other than the
three questions. But Neri may again invoke executive privilege on
other questions, which could result in another case before the
Supreme Court, and the cycle may be repeated again and again. Such a
situation, particularly where there appears to be a pattern of
concealment in government activities, will ultimately be harmful to
public interest.


Prepared by:
ATTY. CARLOS P. MEDINA, JR.
Ateneo Human Rights Center
March 30, 2008