Republic of the
Supreme
Court
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EN BANC
|
ROMULO L. NERI, Petitioner, - versus - SENATE COMMITTEE ON
ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, Respondents. |
G.R. No. 180643
Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ. Promulgated: March 25, 2008 |
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DECISION
LEONARDO-DE
CASTRO, J.:
At
bar is a petition for certiorari under
Rule 65 of the Rules of Court assailing the show
cause Letter[1] dated
Senate Committees on Accountability of
Public Officers and Investigations,[3] Trade and Commerce,[4] and National
Defense and Security[5] against
petitioner Romulo L. Neri, former Director
General of the
National Economic and Development Authority (NEDA).
The
facts, as culled from the pleadings, are as follows:
On P16 Billion Pesos).
The Project was to be financed by the People’s Republic of
In
connection with this NBN Project, various Resolutions were introduced in the
Senate, as follows:
(1) P.S. Res. 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 AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT
LAW AND OTHER PERTINENT LEGISLATIONS.
(2) P.S. Res. No. 144, introduced by Senator
Mar Roxas, entitled Á RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL
ARROYO TO DIRECT THE CANCELLATION OF THE ZTE CONTRACT
(3) 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 PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND
TERRITORIAL INTEGRITY.
(4) 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 NATIONAL GOVERNMENT.
At
the same time, the investigation was claimed to be relevant to the
consideration of three (3) pending bills in the Senate, to wit:
1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES;
2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and
3. Senate Bill No. 1317, introduced by
Senator Miriam Defensor Santiago, entitled AN ACT MANDATING CONCURRENCE TO
INTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS.
Respondent
Committees initiated the investigation by sending invitations to certain
personalities and cabinet officials involved in
the NBN Project.
Petitioner was among those invited.
He was summoned to appear and testify on September 18, 20, and 26 and
In
the
On
P200 Million in exchange for his
approval of the NBN Project. He further
narrated that he informed President Arroyo about the bribery attempt and that
she instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN
Project, petitioner refused to answer, invoking “executive privilege”. In
particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project,[6] (b) whether or not she directed him to
prioritize it,[7] and (c)
whether or not she directed him to approve.[8]
Unrelenting,
respondent Committees issued a Subpoena
Ad Testificandum to petitioner, requiring him to appear and testify on
However,
in the Letter dated
With
reference to the subpoena ad
testificandum issued to Secretary Romulo Neri to appear and testify again
on 20 November 2007 before the Joint Committees you chair, it will be recalled
that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN
project, including his conversation with the President thereon last 26
September 2007.
Asked
to elaborate further on his conversation with the President, Sec. Neri asked
for time to consult with his superiors in line with the ruling of the Supreme
Court in Senate v. Ermita, 488 SCRA 1
(2006).
Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit:
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?
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. 95637, 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 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
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.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.
On
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 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
On
It was not my intention to snub the last Senate
hearing. In fact, I have cooperated with
the task of the Senate in its inquiry in aid of legislation as shown by my
almost 11 hours stay during the hearing on
Be that as it may, should there be new matters that were not
yet taken up during the
In
addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio
R. Bautista, stating, among others that: (1)
his (petitioner) non-appearance was upon
the order of the President; and (2) his
conversation with President Arroyo 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. The letter ended with a
reiteration of petitioner’s request that he “be furnished in advance” as to
what else he needs to clarify so that he may adequately prepare for the
hearing.
In
the interim, on
Respondent
Committees found petitioner’s explanations unsatisfactory. Without responding to his request for advance notice
of the matters that he should still clarify, they issued the Order dated January 30, 2008, citing
him in contempt of respondent Committees and ordering his arrest and detention at
the Office of the Senate Sergeant-At-Arms until such time that he would appear
and give his testimony. The said Order states:
ORDER
For failure to appear
and testify in the Committee’s hearing on Tuesday, September 18, 2007;
Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November
20, 2007, despite personal notice and Subpoenas 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 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.
On
the same date, petitioner moved for the reconsideration of the above Order.[9] He insisted that he has not shown “any contemptible
conduct worthy of contempt and arrest.” He emphasized his willingness to testify on
new matters, however, respondent Committees did not respond to his request for
advance notice of questions. He also mentioned
the petition for certiorari he filed
on
In
view of respondent Committees’ issuance
of the contempt Order, petitioner filed on February 1, 2008 a Supplemental Petition for Certiorari (With
Urgent Application for TRO/Preliminary Injunction), seeking to restrain the
implementation of the said contempt Order.
On
February 5, 2008, the Court issued a Status
Quo Ante Order (a) enjoining respondent Committees from
implementing their contempt Order, (b)
requiring the parties to observe the status
quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees to file their comment.
Petitioner
contends that respondent Committees’ show
cause Letter and contempt Order
were issued with grave abuse of discretion amounting to lack
or excess of
jurisdiction. He stresses that his conversations with
President Arroyo are “candid discussions
meant to explore options in making policy decisions.” According to him,
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
to him in official confidence under Section 7[12]
of Republic Act No. 6713,
otherwise
known as Code of Conduct and Ethical
Standards for Public Officials and Employees, and Section 24[13]
(e) of Rule 130 of the Rules of Court.
Respondent
Committees assert the contrary. They argue that (1)
petitioner’s testimony is material and pertinent in the investigation
conducted in aid of legislation; (2) there is no valid justification for
petitioner to claim executive privilege; (3)
there is no abuse of their authority to order petitioner’s arrest; and (4) petitioner has not come to court
with clean hands.
In the oral
argument held last March 4, 2008, the following issues were ventilated:
1. What
communications between the President and petitioner Neri are covered by the
principle of ‘executive privilege’?
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 bribery scandal involving high
government officials and the possible loss of confidence of foreign investors
and lenders in the Philippines” x
x x 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?
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 non-compliance with the subpoena?
After the oral
argument, the parties were directed to manifest to the Court within twenty-four
(24) hours if they are amenable to the Court’s proposal of allowing petitioner to
immediately resume his testimony before the Senate Committees to answer the other
questions of the Senators without prejudice to the decision on the merits of
this pending petition. It was understood
that petitioner may invoke executive privilege in the course of the Senate
Committees proceedings, and if the respondent Committees disagree thereto, the unanswered
questions will be the subject of a supplemental pleading to be resolved along
with the three (3) questions subject of the present petition.[14] At the same time, respondent Committees were
directed to submit several pertinent documents.[15]
The Senate did
not agree with the proposal for the reasons stated in the Manifestation dated
On
(1) The communications between petitioner and the
President are covered by the principle of “executive privilege.”
(2) Petitioner was not summoned by respondent
Senate Committees in accordance with the law-making body’s power to conduct
inquiries in aid of legislation as laid down in Section 21, Article VI of the
Constitution and Senate v. Ermita.
(3) Respondent
Senate Committees gravely abused its discretion for alleged non-compliance with
the Subpoena dated
The Court granted
the OSG’s motion the next day,
As the foregoing
facts unfold, related events transpired.
On
At the core of this controversy are the two (2) crucial
queries, to wit:
First, are the communications elicited by the subject
three (3) questions covered by executive privilege?
And second,
did respondent Committees commit grave abuse of discretion in issuing
the contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark
case of Senate v. Ermita[18] becomes
imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and
22, respectively, of Article VI of the Constitution, to wit:
SECTION 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.
SECTION
22. The heads of department may upon their own initiative, with the consent
of the President, or upon the request of either House, or as the rules of each
House shall provide, appear before and be heard by such House on any matter
pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least
three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but may cover
matters related thereto. When the security of the state or the public interest
so requires and the President so states in writing, the appearance shall be
conducted in executive session.
Senate cautions that while the above provisions
are closely related and complementary to each other, they should not be
considered as pertaining to the same power of Congress. Section
21 relates to the power to conduct inquiries in aid of legislation, its aim is to elicit information that may be
used for legislation, while Section 22 pertains to the power to conduct a
question hour, the objective of which is to obtain information in pursuit of
Congress’ oversight function.[19] Simply stated, while both powers allow
Congress or any of its committees to conduct inquiry, their objectives are different.
This distinction gives birth to another distinction with
regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of
executive officials under Section 22.
The Court’s pronouncement in Senate
v. Ermita[20]
is clear:
When
Congress merely seeks to be informed on how department heads are implementing
the statutes which it has issued, its right to such information is not as
imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty.
In such instances, Section 22, in keeping with the separation of powers, states
that Congress may only request their
appearance. Nonetheless, when the inquiry in which Congress requires their
appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory for the same reasons stated
in Arnault.
In fine, the oversight function of Congress may
be facilitated by compulsory process only to the extent that it is performed in
pursuit of legislation. This is consistent with the intent discerned from the
deliberations of the Constitutional Commission
Ultimately,
the power of Congress to compel the appearance of executive officials under
section 21 and the lack of it under Section 22 find their basis in the
principle of separation of powers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information. (Emphasis
supplied.)
The availability of the power of judicial review to resolve
the issues raised in this case has also been settled in Senate
v. Ermita, when it held:
As evidenced
by the American experience during the so-called “McCarthy era,” however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no
less susceptible to abuse than executive or judicial power. It may thus be
subjected to judicial review pursuant to the Court’s certiorari powers under
Section 1, Article VIII of the Constitution.
Hence,
this decision.
I
The Communications Elicited by the Three (3) Questions are Covered
by Executive Privilege
We start with the basic premises where the parties have conceded.
The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that 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.[21] Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by