|
....
Conclusion
There are
other factors to be considered in determining the strength
of the presumption of confidentiality of Presidential
communications. They pertain to the nature of the
disclosure sought, namely: (1) time of disclosure, whether
contemporaneous disclosure or open deliberation, which has
a greater chilling effect on rendering candid opinions, as
opposed to subsequent disclosure; (2) level of detail,
whether full texts or whole conversations or summaries;
(3) audience, whether the general public or a select few;
(4) certainty of disclosure, whether the information is
made public as a matter of course or upon request as
considered by the US Supreme Court in Nixon v.
Administrator of General Services;[184] (5) frequency of
disclosure as considered by the US Supreme Court in US v.
Nixon and Cheney v. US District Court for the District of
Columbia;[185] and (6) form of disclosure, whether live
testimony or recorded conversation or affidavit. The type
of information should also be considered, whether
involving military, diplomatic or national security
secrets.[186]
2. c.
Determining Specific Need of Respondent Senate Committees
for the Withheld Information to Overcome the Qualified
Presumption
1) The
first aspect: evidentiary standard of need
We have considered the factors
determinative of the strength of the qualified presumption
in favor of the Presidential communications privilege. We
now determine whether the Senate has sufficiently
demonstrated its specific need for the information
withheld to overcome the presumption in favor of
Presidential communications.
In US v. Nixon, the “demonstration of a
specific need” was preceded by a showing that the
tripartite requirements of Rule 17(c) of the Federal Rules
of Criminal Procedure had been satisfied, namely:
relevance, admissibility and specificity. US v. Nixon,
however, involved a criminal proceeding. The case at bar
involves a Senate inquiry not bound by rules equivalent to
Rule 17(c) of the Federal Rules of Criminal Procedure.
Indeed, the Senate Rules of Procedure Governing Inquiries
in Aid of Legislation provides in Section 10 that
“technical rules of evidence applicable to judicial
proceedings which do not affect substantive rights need
not be observed by the Committee.”
In legislative investigations, the
requirement is that the question seeking the withheld
information must be pertinent. As held in Arnault, the
following is the rule on pertinency, viz:
Once an inquiry is admitted or established
to be within the jurisdiction of a legislative body to
make, we think the investigating committee has the power
to require a witness to answer any question pertinent to
that inquiry, subject of course to his constitutional
right against self-incrimination. The inquiry, to be
within the jurisdiction of the legislative body to make,
must be material or necessary to the exercise of a power
in it vested by the Constitution, such as to legislate, or
to expel a Member; and every question which the
investigator is empowered to coerce a witness to answer
must be material or pertinent to the subject matter of the
inquiry or investigation. So a witness may not be coerced
to answer a question that obviously has no relation to the
subject of the inquiry. But from this it does not follow
that every question that may be propounded to a witness be
material to any proposed or possible legislation. In other
words, the materiality of the question must be determined
by its direct relation to the subject of the inquiry and
not by its indirect relation to any proposed or possible
legislation. The reason is, that the necessity or lack of
necessity for legislative action and the form and
character of the action itself are determined by the sum
total of the information to be gathered as a result of the
investigation, and not by a fraction of such information
elicited from a single question.[187] (emphasis supplied)
As afore-discussed, to establish a
“demonstrable specific need,” there must be a showing that
“evidence is not available with due diligence elsewhere”
or that the evidence is particularly and apparently
useful. This requirement of lack of effective substitute
is meant to decrease the frequency of incursions into the
confidentiality of Presidential communications, to enable
the President and the Presidential advisers to communicate
in an atmosphere of necessary confidence while engaged in
decision-making. It will also help the President to focus
on an energetic performance of his or her constitutional
duties.[188]
Let us proceed to apply these standards to
the case at bar: pertinence of the question propounded and
lack of effective substitute for the information sought.
The first inquiry is the pertinence of the question
propounded. The three questions propounded by the
respondent Senate Committees for which Executive Secretary
Ermita, by Order of the President, invoked executive
privilege as stated in his letter dated November 15, 2007,
are:
“a) Whether the President followed up the
(NBN) project?”[189]
“b) Were you dictated to prioritize the
ZTE?”[190]
“c) Whether the President said to go ahead
and approve the project after being told about the alleged
bribe?”[191]
The context in which these questions were
asked is shown in the transcripts of the Senate hearing on
September 26, 2007, viz:
On the first question -
SEN. LACSON: So, how did it occur to you,
ano ang dating sa inyo noong nag-uusap kayo ng NBN
project, may ibubulong sa inyo iyong chairman (Abalos) na
kalaro ninyo ng golf, “Sec, may 200 ka rito.” Anong
pumasok sa isip ninyo noon?
MR. NERI: I was surprised.
SEN. LACSON: You were shocked, you said.
MR. NERI: Yeah, I guess, I guess.
SEN. LACSON: Bakit kayo na-shock?
MR. NERI: Well, I was not used to being
offered.
SEN. LACSON: Bribed?
MR. NERI: Yeah. Second is, medyo malaki.
SEN. LACSON: In other words, at that point
it was clear to you that you were being offered bribe
money in the amount of 200 million, kasi malaki, sabi
ninyo?
MR. NERI: I said no amount was put, but I
guess given the magnitude of the project, siguro naman
hindi P200 or P200,000, so…
SEN. LACSON: Dahil cabinet official kayo,
eh.
MR. NERI: I guess. But I—you know.
SEN. LACSON: Did you report this attempted
bribe offer to the President?
MR. NERI: I mentioned it to the President,
Your Honor.
SEN. LACSON: What did she tell you?
MR. NERI: She told me, “Don’t accept it.”
SEN. LACSON: And then, that’s it?
MR. NERI: Yeah, because we had other
things to discuss during that time.
SEN. LACSON: And then after the President
told you, “Do not accept it,” what did she do? How did you
report it to the President? In the same context it was
offered to you?
MR. NERI: I remember it was over the
phone, Your Honor.[192]
xxx xxx
xxx
SEN. PANGILINAN: You mentioned earlier
that you mentioned this to the President. Did the
President, after that discussion over the phone, was this
ever raised again, the issue of the 200 ka rito?
MR. NERI: We did not discuss it again,
Your Honor.
SEN. PANGILINAN: With the President? But
the issue, of course, the NBN deal, was raised again?
After that, between you and the President. Pinalow-up
(followed up) ba niya?
MR. NERI. May I claim the executive
privilege, Your Honor, because I think this already
involves conversations between me and the President, Your
Honor, because this is already confidential in
nature.[193]
xxx xxx
xxx
MR. NERI: …Under EO 464, Your Honor, the
scope is, number one, state secrets; number two,
informants privilege; number three, intragovernmental
documents reflecting advisory opinions, recommendations
and deliberations. And under Section 2(A) of EO 464, it
includes all confidential or classified information
between the President and public officers covered by the
EO, such as conversations, correspondence between the
President and the public official and discussions in
closed-door Cabinet meetings. Section 2(A) was held valid
in Senate versus Ermita.[194] (emphasis supplied)
On the
second question –
SEN. LEGARDA: Has there been any
government official higher than you who dictated that the
ZTE project be prioritized or given priority? In short,
were you dictated upon not to encourage AHI (Amsterdam
Holdings, Inc.) as you’ve previously done…
MR. NERI: As I said, Your Honor…
SEN. LEGARDA: …but to prefer or prioritize
the ZTE?
MR. NERI: Yeah. As the question may
involve—as I said a conversation/correspondence between
the President and a public official, Your Honor.
SEN. LEGARDA: I’m sorry. Can you say that
again?
MR. NERI: As I said, I would like to
invoke Sec. 2(a) of EO 464.[195] (emphasis supplied)
On the
third question –
SEN. CAYETANO, (P): …I was told that you
testified, that you had mentioned to her that there was
P200-something offer. I guess it wasn’t clear how many
zeroes were attached to the 200. And I don’t know if you
were asked or if you had indicated her response to this. I
know there was something like “Don’t accept.” And can you,
just for my information, repeat?
MR. NERI. She said “Don’t accept it,” Your
Honor.
SEN. CAYETANO, (P): And was there
something attached to that like… “But pursue with a
project or go ahead and approve,” something like that?
MR. NERI: As I said, I claim the right of
executive privilege on further discussions on the…[196]
The Senate resolutions, titles of the
privilege speeches, and pending bills that show the
legislative purpose of the investigation are:
Senate
resolutions and privilege speeches:
1. P.S. Res. No. 127: “Resolution
Directing the Blue Ribbon Committee and the Committee on
Trade and Industry to Investigate, in Aid of Legislation,
the Circumstances Leading to the Approval of the Broadband
Contract with ZTE and the Role Played by the Officials
Concerned in Getting it Consummated and to Make
Recommendations to Hale to the Courts of Law the Persons
Responsible for any Anomaly in Connection therewith, if
any, in the BOT Law and Other Pertinent
Legislations.”[197]
2. P.S. Res. No. 129: “Resolution
Directing the Committee on National Defense and Security
to Conduct an Inquiry in Aid of Legislation into the
National Security Implications of Awarding the National
Broadband Network Contract to the Chinese Firm Zhong Xing
Telecommunications Equipment Company Limited (ZTE
Corporation) with the End in View of Providing Remedial
Legislation that Will further Protect our National
Sovereignty Security and Territorial Integrity.”[198]
3. P.S. Res. No. 136: “Resolution
Directing the Proper Senate Committee to Conduct an
Inquiry, in Aid of Legislation, on the Legal and Economic
Justification of the National Broadband Network (NBN)
Project of the Government.”[199]
4. P.S. Res. No. 144: “Resolution Urging
President Gloria Macapagal Arroyo to Direct the
Cancellation of the ZTE Contract.”[200]
5. Privilege Speech of Senator Panfilo M.
Lacson, delivered on September 11, 2007, entitled “Legacy
of Corruption.”[201]
6. Privilege Speech of Senator Miriam
Defensor Santiago delivered on November 24, 2007, entitled
“International Agreements in Constitutional Law: The
Suspended RP-China (ZTE) Loan Agreement.”[202]
Pending
bills:
1. Senate Bill No. 1793: “An Act
Subjecting Treaties, International or Executive Agreements
Involving Funding in the Procurement of Infrastructure
Projects, Goods, and Consulting Services to be Included in
the Scope and Application of Philippine Procurement Laws,
Amending for the Purpose, Republic Act No. 9184, Otherwise
Known as the Government Procurement Reform Act, and for
Other Purposes.”[203]
2. Senate Bill No. 1794: “An Act Imposing
Safeguards in Contracting Loans Classified as Official
Development Assistance, Amending for the Purpose, Republic
Act No. 8182, as Amended by Republic Act No. 8555,
Otherwise Known as the Official Development Assistance Act
of 1996, and for Other Purposes.”[204]
3. Senate Bill No. 1317: “An Act Mandating
Concurrence to International Agreements and Executive
Agreements.”[205]
It is self-evident that the three assailed
questions are pertinent to the subject matter of the
legislative investigation being undertaken by the
respondent Senate Committees. More than the Arnault
standards, the questions to petitioner have direct
relation not only to the subject of the inquiry, but also
to the pending bills thereat. The three assailed questions
seek information on how and why the NBN-ZTE contract—an
international agreement embodying a foreign loan for the
undertaking of the NBN Project—was consummated. The three
questions are pertinent to at least three subject matters
of the Senate inquiry: (1) possible anomalies in the
consummation of the NBN-ZTE Contract in relation to the
Build-Operate-Transfer Law and other laws (P.S. Res. No.
127); (2) national security implications of awarding the
NBN Project to ZTE, a foreign-owned corporation (P.S. Res.
No. 129); and (3) legal and economic justification of the
NBN Project (P.S. Res. No. 136).
The three questions are also pertinent to
pending legislation in the Senate, namely: (1) the
subjection of international agreements involving funds for
the procurement of infrastructure projects, goods and
consulting services to Philippine procurement laws (Senate
Bill No. 1793);[206] (2) the imposition of safeguards in
the contracting of loans classified under Official
Development Assistance (Senate Bill No. 1794);[207] and
(3) the concurrence of the Senate in international and
executive agreements (Senate Bill No. 1317).[208]
The second inquiry relates to whether
there is an effective substitute for the information
sought. There is none. The three questions demand
information on how the President herself weighed
options[209] and the factors she considered in concluding
the NBN-ZTE Contract. In particular, the information
sought by the first question—“Whether the President
followed up the (NBN) project”—cannot be effectively
substituted as it refers to the importance of the project
to the President herself.[210]
This information relates to the inquiry on
the legal and economic justification of the NBN project
(P.S. Res. No. 136).
Similarly, the second question—“Were you
dictated to prioritize the ZTE?”—seeks information on the
factors considered by the President herself in opting for
NBN-ZTE, which involved a foreign loan. Petitioner
testified that the President had initially given him
directives that she preferred a no-loan, no-guarantee
unsolicited Build-Operate-Transfer (BOT) arrangement,
which according to petitioner, was being offered by
Amsterdam Holdings, Inc.[211] The information sought
cannot be effectively substituted in the inquiry on the
legal and economic justification of the NBN project (P.S.
Res. No. 136), the inquiry on a possible violation of the
BOT Law (P.S. Res. No. 127); and in the crafting of
pending bills, namely, Senate Bill No. 1793 tightening
procurement processes and Senate Bill No. 1794 imposing
safeguards on contracting foreign loans.
The information sought by the third
question—“Whether the President said to go ahead and
approve the project after being told about the alleged
bribe?”—cannot be effectively substituted for the same
reasons discussed on both the first and second questions.
In fine, all three disputed questions seek information for
which there is no effective substitute.
In the Oral Argument held on March 4,
2008, petitioner, through counsel, argued that in
propounding the three questions, respondent Senate
Committees were seeking to establish the culpability of
the President for alleged anomalies attending the
consummation of the NBN-ZTE Contract. Counsel, however,
contended that in invoking executive privilege, the
President is not hiding any crime.[212] The short answer
to petitioner’s argument is that the motive of respondent
Senate Committees in conducting their investigation and
propounding their questions is beyond the purview of the
Court’s power of judicial review. So long as the questions
are pertinent and there is no effective substitute for the
information sought, the respondent Senate Committees
should be deemed to have hurdled the evidentiary standards
to prove the specific need for the information sought.
In the 1957 case Watkins v. United
States,[213] as afore-discussed, the 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.[214] It further
ruled that the improper motives of members of
congressional investigating committees will not vitiate an
investigation instituted by a House of Congress if that
assembly’s legislative purpose is being served by the work
of the committee.[215]
2) The
second aspect: balancing the conflicting constitutional
functions of the President and the Senate using the
function impairment test
The second aspect involves a balancing of
the constitutional functions between the contending
branches of government, i.e., the President and the
Senate. The court should determine whether disclosure of
the disputed information impairs the President’s ability
to perform her constitutional duties more than disclosure
would impair Congress’s ability to perform its
constitutional functions.[216] The balancing should result
in the promotion of the public interest.
First, we assess whether nondisclosure of
the information sought will seriously impair the
performance of the constitutional function of the Senate
to legislate. In their Comment, respondent Senate
Committees assert that “there is an urgent need for
remedial legislation to regulate the obtention (sic) and
negotiation of official development assisted (ODA)
projects because these have become rich source of
‘commissions’ secretly pocketed by high executive
officials.” It cannot be successfully disputed that the
information sought from the petitioner relative to the NBN
Project is essential to the proposed amendments to the
Government Procurement Reform Act and Official Development
Assistance Act to enable Congress to plug the loopholes in
these statutes and prevent financial drain on our
Treasury.[217] Respondent Senate Committees well point out
that Senate Bill No. 1793, Senate Bill No. 1794, and
Senate Bill No. 1317 will be crafted on the basis of the
information being sought from petitioner Neri, viz:
Without the testimony of Petitioner,
Respondent Committees are effectively denied of their
right to access to any and all kinds of useful information
and consequently, their right to intelligently craft and
propose laws to remedy what is called “dysfunctional
procurement system of the government.” Respondents are
hampered in intelligently studying and proposing what
Congress should include in the proposed bill to include
“executive agreements” for Senate concurrence, which
agreements can be used by the Executive to circumvent the
requirement of public bidding in the existing Government
Procurement Reform Act (R.A. 9184). (emphasis
supplied)[218]
In the Oral Argument held on March 4,
2008, counsel for respondent Senate Committees bolstered
the claim that nondisclosure will seriously impair the
functions of the respondent Senate Committees, viz:
CHIEF JUSTICE PUNO: Mr. Counsel, may I go
back to the case of US vs. Nixon which used the functional
impairment approach?
ATTY. AGABIN: Yes, Your Honor.
CHIEF JUSTICE PUNO: Is it not true that
using this approach, there is the presumption in favor of
the President’s generalized interest in the
confidentiality of his or her communication? I underscore
the words generalized interest.
ATTY. AGABIN: Yes, Your Honor.
CHIEF JUSTICE PUNO: Now, you seek this
approach, let me ask you the same question that I asked to
the other counsel, Atty. Bautista. Reading the letter of
Secretary Ermita it would seem that the Office of the
President is invoking the doctrine of Executive Privilege
only on not (sic) three questions.
ATTY. AGABIN: Yes, Your Honor.
CHIEF JUSTICE PUNO: So, can you tell the
Court how critical are these questions to the lawmaking
function of the Senate? For instance, question Number 1,
whether the President followed up the NBN project.
According to the other counsel, this question has already
been asked, is that correct?
ATTY. AGABIN: Well, the question has been
asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO: Yes. But my question
is how critical is this to the lawmaking function of the
Senate?
ATTY. AGABIN: I believe it is critical,
Your Honor.
CHIEF JUSTICE PUNO: Why?
ATTY. AGABIN: For instance, with respect
to the proposed Bill of Senator Miriam Santiago, she would
like to endorse a Bill to include Executive Agreements to
be subject to ratification by the Senate in addition to
treaties, Your Honor.
CHIEF JUSTICE PUNO: May not the Senate
craft a Bill, assuming that the President followed up the
NBN project? May not the Senate proceed from that
assumption?
ATTY. AGABIN: Well, it can proceed from
that assumption, Your Honor, except that there would be no
factual basis for the Senate to say that indeed Executive
Agreements had been used as a device to circumventing the
Procurement Law.
CHIEF JUSTICE PUNO: But the question is
just following it up.
ATTY. AGABIN: I believe that may be the
initial question, Your Honor, because if we look at this
problem in its factual setting as counsel for petitioner
has observed, there are intimations of a bribery scandal
involving high government officials.
CHIEF JUSTICE PUNO: Again, about the
second question, “were you dictated to prioritize this ZTE,”
is that critical to the lawmaking function of the Senate?
Will it result to the failure of the Senate to cobble a
Bill without this question?
ATTY. AGABIN: I think it is critical to
lay the factual foundations for a proposed amendment to
the Procurement Law, Your Honor, because the petitioner
had already testified that he was offered a P200 million
bribe, so if he was offered a P200 million bribe it is
possible that other government officials who had something
to do with the approval of that contract would be offered
the same amount of bribes.
CHIEF JUSTICE PUNO: Again, that is
speculative.
ATTY. AGABIN: That is why they want to
continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO: How about the third
question, “whether the President said to go ahead and
approve the project after being told about the alleged
bribe.” How critical is that to the lawmaking function of
the Senate? And the question is, may they craft a Bill, a
remedial law, without forcing petitioner Neri to answer
this question?
ATTY. AGABIN: Well, they can craft it,
Your Honor, based on mere speculation. And sound
legislation requires that a proposed Bill should have some
basis in fact.
CHIEF JUSTICE PUNO: It seems to me that
you say that this is critical.
ATTY. AGABIN: Yes, Your Honor. (emphasis
supplied)[219]
The above exchange shows how petitioner’s
refusal to answer the three questions will seriously
impair the Senate’s function of crafting specific
legislation pertaining to procurement and concurring in
executive agreements based on facts and not speculation.
To complete the balancing of competing
interests, the Court should also assess whether disclosure
will significantly impair the President’s performance of
her functions, especially the duty to execute the laws of
the land. In the Oral Argument held on March 4, 2008,
petitioner, through counsel, was asked to show how the
performance of the functions of the President would be
adversely affected if petitioner is compelled to answer
the three assailed questions, viz:
CHIEF JUSTICE PUNO: In the functional
test, the thrust is to balance what you said are the
benefits versus the harm on the two branches of government
making conflicting claims of their powers and privileges.
Now, using that functional test, please tell the Court how
the Office of the President will be seriously hampered in
the performance of its powers and duties, if petitioner
Neri would be allowed to appear in the Senate and answer
the three questions that he does not want to answer.
ATTY. BAUTISTA: Your Honor, the effect,
the chilling effect on the President, she will be scared
to talk to her advisers any longer, because for fear that
anything that the conversation that she has with them will
be opened to examination and scrutiny by third parties,
and that includes Congress. And—(interrupted)
CHIEF JUSTICE PUNO: Let us be more
specific. Chilling effect, that is a conclusion. The first
question is, “whether the President followed up the NBN
Project.” If that question is asked from petitioner Neri,
and he answers the question, will that seriously affect
the way the Chief Executive will exercise the powers and
the privileges of the Office?
ATTY. BAUTISTA: Well, if the answer to
that question were in the affirmative, then it would
imply, Your Honor, that the President has some undue
interest in the contract.
CHIEF JUSTICE PUNO: The President may have
interest, but not necessarily undue interest.
ATTY. BAUTISTA: Well, but in the
atmosphere that we are in, where there is already an
accusatory mood of the public, that kind of information is
going to be harmful to the President.
CHIEF JUSTICE PUNO: When you say
accusatory, that is just your impression?
ATTY. BAUTISTA: Yes, Your Honor, but I
think it’s a normal and justified impression from—I am not
oblivious to what goes on, Your Honor.
CHIEF JUSTICE PUNO: But that is your
impression?
ATTY. BAUTISTA: Yes, Your Honor.
CHIEF JUSTICE PUNO: How about the second
question, which reads, “were you dictated to prioritize
the ZTE,” again, if this question is asked to petitioner
Neri, and (he) responds to it…
ATTY. BAUTISTA: In the affirmative?
CHIEF JUSTICE PUNO: I don’t know how he
will respond.
ATTY. BAUTISTA: Yes.
CHIEF JUSTICE PUNO: How will that affect
the functions of the President, will that debilitate the
Office of the President?
ATTY. BAUTISTA: Very much so, Your Honor.
CHIEF JUSTICE PUNO: Why? Why?
ATTY. BAUTISTA: Because there are lists of
projects, which have to be—which require financing from
abroad. And if the President is known or it’s made public
that she preferred this one project to the other, then she
opens herself to condemnation by those who were favoring
the other projects which were not prioritized.
CHIEF JUSTICE PUNO: Is this not really an
important project, one that is supposed to benefit the
Filipino people? So if the President, says, you prioritize
this project, why should the heavens fall on the Office of
the President?
ATTY. BAUTISTA: Well, there are also other
projects which have, which are supported by a lot of
people. Like the Cyber Ed project, the Angat Water Dam
project. If she is known that she gave low priority to
these other projects, she opens herself to media and
public criticism, not only media but also in rallies, Your
Honor.
CHIEF JUSTICE PUNO: So, again, that is
just your personal impression?
ATTY. BAUTISTA: Well, I cannot avoid it,
Your Honor.
CHIEF JUSTICE PUNO: How about the third
question, “whether the President said to go ahead and
approve the project after being told the alleged bribe.”
Again, how will that affect the functions of the President
using that balancing test of functions?
ATTY. BAUTISTA: Well, if the answer is in
the affirmative, then it will be shown, number one, that
she has undue interest in this thing, because she sits
already on the ICT and the Board.
CHIEF JUSTICE PUNO: Again, when you say
undue interest, that is your personal opinion.
ATTY. BAUTISTA: Yes, Your Honor.
CHIEF JUSTICE PUNO: It may be an interest,
but it may not be undue.
ATTY. BAUTISTA: But in the climate,
present climate of public opinion as whipped up by people
that will be the impression, Your Honor. She does not
operate in a vacuum. She has to take into account what is
going on.
CHIEF JUSTICE PUNO: That is your personal
opinion again?
ATTY. BAUTISTA: Yes, Your Honor. (emphasis
supplied)[220]
From the above exchange, it is clear that
petitioner’s invocation of the Presidential communications
privilege is based on a general claim of a chilling effect
on the President’s performance of her functions if the
three questions are answered. The general claim is
unsubstantiated by specific proofs that the performance of
the functions of the President will be adversely affected
in a significant degree. Indeed, petitioner’s counsel can
only manage to submit his own impression and personal
opinion on the subject.
Summing it up, on one end of the balancing
scale is the President’s generalized claim of
confidentiality of her communications, and petitioner’s
failure to justify a claim that his conversations with the
President involve diplomatic, military and national
security secrets. We accord Presidential communications a
presumptive privilege but the strength of this privilege
is weakened by the fact that the subject of the
communication involves a contract with a foreign loan. The
power to contract foreign loans is a power not exclusively
vested in the President, but is shared with the Monetary
Board (Central Bank). We also consider the chilling effect
which may result from the disclosure of the information
sought from petitioner Neri but the chilling effect is
diminished by the nature of the information sought, which
is narrow, limited as it is to the three assailed
questions. We take judicial notice also of the fact that
in a Senate inquiry, there are safeguards against an
indiscriminate conduct of investigation.
On the other end of the balancing scale is
the respondent Senate Committees’ specific and
demonstrated need for the Presidential communications in
reply to the three disputed questions. Indisputably, these
questions are pertinent to the subject matter of their
investigation, and there is no effective substitute for
the information coming from a reply to these questions. In
the absence of the information they seek, the Senate
Committees’ function of intelligently enacting laws “to
remedy what is called ‘dysfunctional procurement system of
the government’” and to possibly include “executive
agreements for Senate concurrence” to prevent them from
being used to circumvent the requirement of public bidding
in the existing Government Procurement Reform Act cannot
but be seriously impaired. With all these considerations
factored into the equation, we have to strike the balance
in favor of the respondent Senate Committees[221] and
compel petitioner Neri to answer the three disputed
questions.
C.
Presidential Communications Privilege and Wrongdoing
Respondent
Senate Committees contend that executive privilege cannot
be used to hide a wrongdoing.[222] A brief discussion of
the contention will put it in its proper perspective.
Throughout its history—beginning with its
use in 1792 by US President George Washington to withhold
information from a committee of Congress investigating a
military expedition headed by General Arthur St. Clair
against Native Americans[223]—executive privilege has
never justified the concealment of a wrongdoing. As
aforediscussed, the first US President, Washington, well
understood the crucial role he would play in setting
precedents, and so he said that he “devoutly wished on my
part that these precedents may be fixed in true
principles.”[224] (emphasis supplied) President Washington
established that he had the right to withhold information
if disclosure would injure the public, but he did not
believe that it was appropriate to withhold embarrassing
or politically damaging information.[225]
Two centuries thence, the principle that
executive privilege cannot hide a wrongdoing remains
unchanged. While very few cases on the Presidential
communications privilege have reached the US Supreme
Court, the District of Columbia Court of Appeals, being
the appellate court in the district where the federal
government sits has been more visible in this landscape.
In several of its prominent decisions on the Presidential
communications privilege, the D.C. Court of Appeals
reiterated the rule that executive privilege cannot cover
up wrongdoing. In Nixon v. Sirica, the D.C. Circuit Court
of Appeals rejected the contention of President Nixon that
executive privilege was absolute and held that, if it were
so, “the head of an executive department would have the
power on his own say so to cover up all evidence of fraud
and corruption when a federal court or grand jury was
investigating malfeasance in office, and this is not the
law.”[226] (emphasis supplied) In Senate Select Committee
v. Nixon, the Appellate Court reiterated its pronouncement
in Sirica that the “Executive cannot…invoke a general
confidentiality privilege to shield its officials and
employees from investigations by the proper governmental
institutions into possible criminal wrongdoing.”[227]
Nonetheless, while confirming the
time-honored principle that executive privilege is not a
shield against an investigation of wrongdoing, the D.C.
Circuit Court of Appeals, in both Sirica and Senate Select
Committee, also made it clear that this time-honored
principle was not the sword that would pierce the
Presidential communications privilege; it was instead the
showing of a need for information by an institution to
enable it to perform its constitutional functions. In
Sirica, the Appellate Court held that “(w)e emphasize that
the grand jury’s showing of need in no sense relied on any
evidence that the President was involved in, or even aware
of, any alleged criminal activity. We freely assume, for
purposes of this opinion, that the President was engaged
in the performance of his constitutional duty.
Nonetheless, we hold that the District Court may order
disclosure of all portions of the tapes relevant to
matters within the proper scope of the grand jury’s
investigations, unless the Court judges that the public
interest served by nondisclosure of particular statements
or information outweighs the need for that information
demonstrated by the grand jury.” (emphasis supplied)[228]
In Senate Select Committee, the court
reiterated its ruling in Sirica, viz: “…under Nixon v.
Sirica, the showing required to overcome the presumption
favoring confidentiality turned, not on the nature of the
presidential conduct that the subpoenaed material might
reveal,[229] but, instead, on the nature and
appropriateness of the function in the performance of
which the material was sought, and the degree to which the
material was necessary to its fulfillment. Here also our
task requires and our decision implies no judgment
whatever concerning possible presidential involvement in
culpable activity. On the contrary, we think the
sufficiency of the Committee’s showing must depend solely
on whether the subpoenaed evidence is demonstrably
critical to the responsible fulfillment of the Committee’s
functions.”[230] (emphasis supplied)
In US v. Nixon, the US Supreme Court ruled
that the Special Prosecutor had demonstrated a specific
need for the Presidential communications without
mentioning that the subject tapes had been subpoenaed for
criminal proceedings against former Presidential
assistants charged with committing criminal conspiracy
while in office. This omission was also observed by the
D.C. Circuit appellate court in the 1997 case In re Sealed
Case (Espy),[231] in which the court ruled that “a party
seeking to overcome the presidential privilege seemingly
must always provide a focused demonstration of need, even
when there are allegations of misconduct by high-level
officials. In holding that the Watergate Special
Prosecutor had provided a sufficient showing of
evidentiary need to obtain tapes of President Nixon’s
conversations, the US Supreme Court made no mention of the
fact that the tapes were sought for use in a trial of
former Presidential assistants charged with engaging in a
criminal conspiracy while in office.”[232]
That a wrongdoing—which the Presidential
communications privilege should not shield—has been
committed is an allegation to be proved with the required
evidence in a proper forum. The Presidential
communications privilege can be pierced by a showing of a
specific need of the party seeking the Presidential
information in order to perform its functions mandated by
the Constitution. It is after the privilege has been
pierced by this demonstrated need that one can discover if
the privilege was used to shield a wrongdoing, or if
there is no wrongdoing after all. We should not put the
cart before the horse.
D.
Negotiations and Accommodations
Before putting a close to the discussion
on test and procedure to determine the validity of the
invocation of executive privilege, it is necessary to make
short shrift of the matter of negotiations and
accommodation as a procedure for resolving disputes that
spawned the case at bar.
In the US where we have derived the
doctrine of executive privilege, most congressional
requests for information from the executive branch are
handled through an informal process of accommodation and
negotiation, away from the judicial portals.
The success of the accommodation process
hinges on the balance of interests between Congress and
the executive branch. The more diffused the interest of
the executive branch in withholding the disputed
information, the more likely that this interest will be
overcome by a specifically articulated congressional need
related to the effective performance of a legislative
function. Conversely, the less specific the congressional
need for the information and the more definite the need
for secrecy, the more likely that the dispute will be
resolved in favor of the executive.[233] In arriving at
accommodations, what is “required is not simply an
exchange of concessions or a test of political strength.
It is an obligation of each branch to make a principled
effort to acknowledge, and if possible to meet, the
legitimate needs of the other branch.”[234]
In Cheney v. D.C. District Court, the US
Supreme Court cautioned that executive privilege is an
extraordinary assertion of power “not to be lightly
invoked.”[235] Once it is invoked, coequal branches of
government are set on a collision course. These
“occasion(s) for constitutional confrontation between the
two branches” should be avoided whenever possible.[236]
Once a judicial determination becomes inevitable, the
courts should facilitate negotiations and settlement as
did the court in US v. American Telephone & Telegraph
Co.[237] In that case, the D.C. Circuit Court of Appeals
remanded the case for negotiation of a settlement, which,
however, proved unavailing. The appellate court then
outlined a procedure under which the Congressional
subcommittee was granted limited access to the documents
requested, with any resulting disputes surrounding the
accuracy of redacted documents to be resolved by the
district court in camera.
In facilitating a settlement, the court
should consider intermediate positions, such as ordering
the executive to produce document summaries, indices,
representative samples, or redacted documents; or allowing
Congressional committee members to view documents but
forbidding members from obtaining physical custody of
materials or from taking notes.[238]
The lesson is that collisions in the
exercise of constitutional powers should be avoided in
view of their destabilizing effects. Reasonable efforts at
negotiation and accommodation ought to be exerted, for
when they succeed, constitutional crises are avoided.
V.
Validity of the Order of Arrest
Finally, we come to the last issue
delineated in the Oral Argument last March 4, 2008:
whether respondent Senate Committees gravely abused their
discretion in ordering the arrest of petitioner for
noncompliance with the subpoena. The contempt power of the
respondent Senate Committees is settled in Arnault and
conceded by petitioner.[239] What are disputed in the case
at bar are the validity of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation for lack of
re-publication and the alleged arbitrary exercise of the
contempt power.
The Senate Rules of Procedure Governing
Inquiries in Aid of Legislation is assailed as invalid
allegedly for failure to be re-published. It is contended
that the said rules should be re-published as the Senate
is not a continuing body, its membership changing every
three years. The assumption is that there is a new Senate
after every such election and it should not be bound by
the rules of the old. We need not grapple with this
contentious issue which has far-reaching consequences to
the Senate. The precedents and practice of the Senate
should instead guide the Court in resolving the issue. For
one, the Senators have traditionally considered the Senate
as a continuing body despite the change of a part of its
membership after an election. It is for this reason that
the Senate does not cease its labor during the period of
such election. Its various Committees continue their work
as its officials and employees. For another, the Rules of
the Senate is silent on the matter of re-publication.
Section 135, Rule L of the Rules of the Senate provides
that, “if there is no Rule applicable to a specific case,
the precedents of the Legislative Department of the
Philippines shall be resorted to xxx.” It appears that by
tradition, custom and practice, the Senate does not
re-publish its rules especially when the same has not
undergone any material change. In other words, existing
rules which have already undergone publication should be
deemed adopted and continued by the Senate regardless of
the election of some new members. Their re-publication is
thus an unnecessary ritual. We are dealing with internal
rules of a co-equal branch of government and unless they
clearly violate the Constitution, prudence dictates we
should be wary of striking them down. The consequences of
striking down the rules involved in the case at bar may
spawn serious and unintended problems for the Senate.
We shall now discuss the substantive
aspect of the contempt power. This involves a
determination of the purpose of the Senate inquiry and an
assessment of the pertinence of the questions propounded
to a witness.
To reiterate, there is no doubt about the
legislative purpose of the subject Senate inquiry. It is
evident in the title of the resolutions that spawned the
inquiry. P.S. Res. No. 127[240] and the privilege speech
of Senator Panfilo Lacson[241] seek an investigation into
the circumstances leading to the approval of the NBN-ZTE
Contract and to make persons accountable for any anomaly
in relation thereto. That the subject matter of the
investigation is the expenditure of public funds in an
allegedly anomalous government contract leaves no doubt
that the investigation comes within the pale of the
Senate’s power of investigation in aid of legislation.
Likewise, the following are all within the
purview of the Senate’s investigative power: subject
matter of P.S. Res. No. 129 concerning the national
sovereignty, security and territorial integrity
implications of the NBN-ZTE Contract,[242] of P.S. Res.
No. 136 regarding the legal and economic justification of
the National Broadband Network (NBN) project of the
government,[243] of P.S. Res. No. 144 on the cancellation
of the ZTE Contract,[244] and the Privilege Speech of
Senator Miriam Defensor Santiago on international
agreements in constitutional law.[245] The Court also
takes note of the fact that there are three pending bills
in relation to the subject inquiry: Senate Bill No.
1793,[246] Senate Bill No. 1794[247] and Senate Bill No.
1317. [248] It is not difficult to conclude that the
subject inquiry is within the power of the Senate to
conduct and that the respondent Senate Committees have
been given the authority to so conduct the inquiry.
We now turn to the pertinence of the
questions propounded, which the witness refused to answer.
The subpoena ad testificandum issued to petitioner states
that he is “required to appear before the Committee on
Accountability of Public Officers and Investigations (Blue
Ribbon) of the Senate… testify under oath on what you know
relative to the subject matter under inquiry by the said
Committee.” The subject matter of the inquiry was
indicated in the heading of the subpoena, which stated the
resolutions and privilege speeches that initiated the
investigation. Respondent Senate Committees have yet to
propound to petitioner Neri their questions on this
subject matter; hence, he cannot conclude beforehand that
these questions would not be pertinent and simply refuse
to attend the hearing of November 20, 2007.
It is worth noting that the letter of
Executive Secretary Ermita, signed “by Order of the
President,” merely requested that petitioner’s testimony
on November 20, 2007 on the NBN Contract be dispensed
with, as he had exhaustively testified on the subject
matter of the inquiry. Executive privilege was invoked
only with respect to the three questions Neri refused to
answer in his testimony before respondent Senate
Committees on September 26, 2007. But there is no basis
for either petitioner or the Executive Secretary to assume
that petitioner’s further testimony will be limited only
on the three disputed questions. Needless to state,
respondent Senate Committees have good reasons in citing
Neri for contempt for failing to appear in the November
20, 2007 hearing.
Next, we come to the procedural aspect of
the power of the respondent Senate Committees to order
petitioner’s arrest. The question is whether the
respondents followed their own rules in ordering
petitioner’s arrest. The Order of arrest issued by
respondent Senate Committees on January 30, 2008 states
that it was issued “for failure to appear and testify in
the Committees’ hearing on Tuesday, September 18, 2007;
Thursday, September 20, 2007; Thursday, October 25, 2007;
and Tuesday, November 20, 2007…AND for failure to explain
satisfactorily why he should not be cited for contempt (Neri
letter of 29 November 2007, herein attached).” The Order
reads, viz:
ORDER
For
failure to appear and testify in the Committees’ hearing
on Tuesday, September 18, 2007; Thursday, September 20,
2007; Thursday, October 25, 2007; and Tuesday, November
20, 2007, despite personal notice and a Subpoena Ad
Testificandum sent to and received by him, which thereby
delays, impedes and obstructs, as it has in fact delayed,
impeded and obstructed the inquiry into the subject
reported irregularities, AND for failure to explain
satisfactorily why he should not be cited for contempt (Neri
letter of 29 November 2007, herein attached) ROMULO L.
NERI is hereby cited in contempt of this (sic) Committees
and ordered arrested and detained in the Office of the
Senate Sergeant-At-Arms until such time that he will
appear and give his testimony. The Sergeant-At-Arms is
hereby directed to carry out and implement this Order and
make a return hereof within twenty-four (24) hours from
its enforcement.
SO
ORDERED.
Issued
this 30th day of January, 2008 at the City of Pasay.[249]
The facts
should not be obfuscated. The Order of arrest refers to
several dates of hearing that petitioner failed to attend,
for which he was ordered arrested, namely:
Tuesday, September 18, 2007;
Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday,
November 20, 2007. The “failure to explain satisfactorily
(Neri letter of 29 November 2007),” however, refers only
to the November 20, 2007 hearing, as it was in reference
to this particular date of hearing that respondent Senate
Committees required petitioner to show cause why he should
not be cited for contempt.
This is clear from respondent Senate
Committees’ letter to petitioner dated November 22,
2007.[250] The records are bereft of any letter or order
issued to petitioner by respondent Senate Committees for
him to show cause why he should not be cited for contempt
for failing to attend the hearings on Tuesday, September
18, 2007; Thursday, September 20, 2007; and Thursday,
October 25, 2007.
We therefore examine the procedural
validity of the issuance of the Order of arrest of
petitioner for his failure to attend the November 20, 2007
hearing after the respondent Senate Committees’ finding
that his explanation in his November 29, 2007 letter was
unsatisfactory.
Section 18 of the Senate Rules Governing
Inquiries in Aid of Legislation provides, viz:
Sec. 18. Contempt.—The Committee, by a
vote of a majority of all its members, may punish for
contempt any witness before it who disobeys any order of
the Committee or refuses to be sworn or to testify or to
answer a proper question by the Committee or any of its
members, or testifying, testifies falsely or evasively. A
contempt of the Committee shall be deemed a contempt of
the Senate. Such witness may be ordered by the Committee
to be detained in such place as it may designate under the
custody of the Sergeant-at-Arms until he agrees to produce
the required documents, or to be sworn or to testify, or
otherwise purge himself of that contempt. (emphasis
supplied)
On March 17, 2008, the respondent Senate
Committees submitted to the Court a document showing the
composition of respondent Senate Committees, certified to
be a true copy by the Deputy Secretary for Legislation,
Atty. Adwin B. Bellen. Set forth below is the composition
of each of the respondent Senate Committees, with an
indication of whether the signature of a Senator appears
on the Order of arrest,[251] viz:
1.
Committee on Accountability of Public
Officers
and Investigations (17 members
excluding
three ex-officio members):
Chairperson: Cayetano, Alan Peter - signed
Vice-Chairperson:
Members: Cayetano, Pia - signed
Defensor Santiago, Miriam
Enrile, Juan Ponce
Escudero, Francis - signed
Gordon, Richard
Honasan II, Gregorio Gringo - signed
Zubiri, Juan Miguel
Arroyo, Joker
Revilla Jr., Ramon
Lapid, Manuel
Aquino III, Benigno - signed
Biazon, Rodolfo - signed
Lacson, Panfilo - signed
Legarda, Loren - signed
Madrigal, M.A. - signed
Trillanes IV, Antonio
Ex-Officio Members: Ejercito Est | 
