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.

Promulgated:

March 25, 2008

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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 Zhong Xing Telecommunications Equipment Co. Ltd. (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 [four] resolutions and delivery of [two] privilege speeches.

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

1. Senate Bill 1793, by Sen. 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 1794, by Sen. 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 1317, Sen. Miriam Defensor Santiago, entitled: An Act Mandating Concurrence to International Agreements and Executive Agreements.[12]

The hearings in aid of legislation started in September 2007[13] 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 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 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] Sen. 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 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 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 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 Sen. Alan Peter S. Cayetano, Chairperson of the Blue Ribbon Committee; Sen. Manuel A. Roxas II, Chairperson of the Committee on Trade and Commerce; and Sen. 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 [Sen.] 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 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 [Chairmen of the three respondent Senate Committees] and was approved and signed by the Senate President.[31]

On November 29, 2007, petitioner wrote to Senator Cayetano. 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 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 “nonappearance last 20 November 2007 was upon the order of the President invoking executive privilege, as embodied in Secretary 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 nonappearance 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 & INVESTIGATIONS (BLUE RIBBON), TRADE & COMMERCE,

AND NATIONAL DEFENSE & 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)

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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 24 hours from its enforcement.

SO ORDERED.

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

(Signed)                                                (Signed)

ALAN PETER S. CAYETANO             MAR ROXAS

Chairman                                              Chairman

Committee on Accountability of        Committee on Trade Public Officers & Investigations                 & Commerce

(Blue Ribbon)

(Signed)

RODOLFO G. BIAZON

Chairman

Committee on National Defense & Security

(Signed)

PIA S. CAYETANO**                            MIRIAM DEFENSOR SANTIAGO*

(Signed)

JUAN PONCE ENRILE**                   FRANCIS G. ESCUDERO**

(Signed)

RICHARD J. GORDON**                   GREGORIO B. HONASAN*

JUAN MIGUEL F. ZUBIRI* JOKER P. ARROYO*

RAMON B. REVILLA, JR.**                 MANUEL M. LAPID**

(Signed)                                                (Signed)

BENIGNO C. AQUINO III*                   PANFILO M. LACSON*

(Signed)                                                (Signed)

LOREN B. LEGARDA*                        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)                                                (Signed)

AQUILINO Q. PIMENTEL, JR.            FRANCIS “Kiko” N.PANGILINAN

Minority Leader                                     Majority Leader

(Signed)

JINGGOY EJERCITO ESTRADA

President Pro Tempore[36]

On January 30, 2008, petitioner wrote to Senate President Villar, Senators Cayetano, Roxas, and Biazon, 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 11 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 non­appearance 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 Cayetano and by his (petitioner’s) letter dated November 29, 2007 to Senator 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 US political and legal system and literature. At the outset, it is worth noting that the provisions of the US 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[ing] 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 co­ordination.”[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 US 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 Constitution[58] 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, 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 US 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 US High Court held in Barenblatt v. United States[64] 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 US 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:

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 US 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 US Court of Claims, wrote: “The power must lie in the courts to determine Executive Privilege in litigation.... (T)he privilege for intradepartmental advice would very rarely have the importance of diplomacy or security”.[75] (emphasis supplied)

The US 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 US 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 US 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 US 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 US 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 US 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 US Presidents of the early to the mid-twentieth century. Despite Congress’s 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, US 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 US, 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 US, 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 department[99] having 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 US 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]

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. Vasquez[108] 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 US 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 US 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 US 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, US 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 C