ROMULO L. NERI, petitioner vs.

SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS

AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY
G.R. No. 180643, March 25, 2008

FACTS: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered
into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of
equipment and services for the National Broadband Network (NBN) Project in the amount of U.S.
$ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the Peoples
Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007
hearing Jose de Venecia III testified that several high executive officials and power brokers were
using their influence to push the approval of the NBN Project by the NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared
in one hearing wherein he was interrogated for 11 hrs and during which he admitted that Abalos
of COMELEC tried to bribe him with P200M in exchange for his approval of the NBN project. He
further narrated that he informed President Arroyo about the bribery attempt and that she
instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN Project, petitioner refused
to answer, invoking executive privilege. In particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
He later refused to attend the other hearings and Ermita sent a letter to the senate averring that
the communications between GMA and Neri are privileged and that the jurisprudence laid down
in Senate vs Ermita be applied. He was cited in contempt of respondent committees and an order
for his arrest and detention until such time that he would appear and give his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions covered by executive
privilege?
HELD:
The communications are covered by executive privilege
The revocation of EO 464 (advised executive officials and employees to follow and abide by the
Constitution, existing laws and jurisprudence, including, among others, the case of Senate v.
Ermita when they are invited to legislative inquiries in aid of legislation.), does not in any way
diminish the concept of executive privilege. This is because this concept has Constitutional
underpinnings.
The claim of executive privilege is highly recognized in cases where the subject of inquiry relates
to a power textually committed by the Constitution to the President, such as the area of military
and foreign relations. Under our Constitution, the President is the repository of the commanderin-chief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of
separation of powers, the information relating to these powers may enjoy greater confidentiality
than others.

Several jurisprudence cited provide the elements of presidential communications privilege:

1) The protected communication must relate to a quintessential and non-delegable presidential
power.
2) The communication must be authored or solicited and received by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in operational
proximity with the President.
3) The presidential communications privilege remains a qualified privilege that may be overcome
by a showing of adequate need, such that the information sought likely contains important
evidence and by the unavailability of the information elsewhere by an appropriate investigating
authority.
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the three (3) questions fall under conversation and
correspondence between the President and public officials necessary in her executive and
policy decision-making process and, that the information sought to be disclosed might impair
our diplomatic as well as economic relations with the Peoples Republic of China. Simply put, the
bases are presidential communications privilege and executive privilege on matters relating to
diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by the
three (3) questions are covered by the presidential communications privilege. First, the
communications relate to a quintessential and non-delegable power of the President, i.e. the
power to enter into an executive agreement with other countries. This authority of the President
to enter into executive agreements without the concurrence of the Legislature has traditionally
been recognized in Philippine jurisprudence. Second, the communications are received by a
close advisor of the President. Under the operational proximity test, petitioner can be
considered a close advisor, being a member of President Arroyos cabinet. And third, there is no
adequate showing of a compelling need that would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an appropriate investigating authority.
Respondent Committees further contend that the grant of petitioners claim of executive
privilege violates the constitutional provisions on the right of the people to information on
matters of public concern.50 We might have agreed with such contention if petitioner did not
appear before them at all. But petitioner made himself available to them during the September
26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the Senators, with the exception only
of those covered by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation. Section 7 of Article III
provides:
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.

PUBLIC INTEREST CENTER INC., LAUREANO T. ANGELES, and JOCELYN P.CELESTINO,

vs.MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the Presidential

Commission on Good Government, and RONALDOZAMORA, asExecutive Secretary,

Accused Appellant
Facts:For consideration is the omnibus motion, dated 14 august 2006, where respondent
Magdangal Elma sought the following:
1.the reconsideration of the decision in the case Public Interest Center Inc., et al. vs. Magdangal
Elma, et.al ( GR. NO. 138965), promulgated on30 June 2006;
2.The clarification of the dispositive part of the decision ; and
3.The elevation of the case to the court en banc. The solicitor general, in behalf of the
respondent, filed an omnibus motion, dated 11 august 2006 with substantially the same
allegation.Respondent Elma was appointed as Chairman of The PresidentialCommission on Good
Government (PCGG) ON 30 October 1998. Thereafter, during his tenure as PCGG Chairman, he
was appointed as Chief Presidential legal counsel (CPLC). He accepted the second appointment,
but waived any renumiration that he may receive as CPLC. Petitioners sought to have both
appointments declared as unconstitutional and therefore, null and void. In its decision, the court
declared that the concurrent appointments of the respondents as PCGG chairman and CPLC were
unconstitutional. It ruled that the concurrent appointment to these offices is in violation
of section 7(2) OF ARTICLE ix-b of the 1987 constitution, since these are incompatible offices. The
duties of CPLC include giving independent and impartial legal advice on the action of
theheads of various executive departments and agencies and reviewinginvestigations involving
heads of executive depart6mnets. Since the actions of the PCGG Chairman, a head of an
executive agency, are subject to the review of the CPLC, such appointments would
be incompatible. The court also decreed that the strict prohibition under section 13 Article VII
of the 1987 constitution would not apply to the present case, since neither the PCGG chairman
nor CPLC is a secretary, under sectary or assistant secretary. However, had the rule hereunder
been applicable to the case, the defect of these two incompatible offices would be made
more glaring. The said section allows the concurrent holding of position only when second post is
required by the primary function of the first appointments and is exercised in an ex-officio
capacity. Although respondent Elma waived receiving remuneration for the second appointment,
the primary functions of the PCGG chairman do not require his appointment as CPLC.
Ruling
1.
After reviewing the arguments propounded in respondents omnibusmotion, we find that the
basic issues that were raised have already beenpassed upon. No substantial arguments were
presented. Thus, the courtdenies the respondents motion for reconsideration.
2.
In response to the respondents request for clarification, the court ruledthat respondents Elmas
concurrent appointments as PCGG Chairmanand CPLC are unconstitutional, for being
incompatible offices. This rulingdoes not render both appointments void. Following the commonlaw ruleon incompatibility of offices, respondent Elma had, in effect, vacated hisoffice as PCGG
Chairman when he accepted the second office as CPLC.
3.

There also is no merit in the respondents motion to refer the case tocourt en banc. What are
in question in the present case are the constitutionality of respondent Elmas concurrent
appointments, and notthe constitutionality of any treaty, law or agreement. The mereapplication
of the constitutional provisions does not require the case to be heard and decided
en banc. Contrary to the allegations of therespondent, the decision of the court in this case does
not modify the ruling in Civil Liberties Union vs. Executive Secretary. It should be notedthat
Section 3 of Supreme Court Circular No. 2-89, dated 7 February1989 clearly provides that the
court en banc is not an appellate court to which decisions or resolutions of a division may be
appealed.
WHEREFORE, the respondents motion for consideration and for elevation of thiscase of court en
banc is hereby DENIED.All our dreams can come true if we have the courage to pursue them.
WaltDisney

Pimentel vs Ermita GR No 164978 13 October 2005

Facts: Gloria Arroyo issued appointments as acting secretary to Arthur Yap (Agriculture), Alberto Romulo
(Foreign Affairs), Raul Gonzales (Justice), Florencio Abad (Education), Avelino Cruz Jr (National Defence),
Rene Villa (Agrarian Reform), Joseph Durano (Tourism) and Michael Defensor (Environment and Natural
Resources) on 23 August 2004 except Yap on 15 August 2004. The respondents took their oaths and
assumed duties. The Congress commenced regular session on 26 July 2004 and Senators Aquilino
Pimintel, Edgardo Angara, Juan Ponce Enrile, Luisa Estrada, Jinggoy Estrada, Panfilo LAcson, Alfredo Lim,
Jamby Madrigal and Sergio Osmena III filed petition for certiorari and prohibition against respondents. The
Senators contended that pursuant to Section 10 (2) Book IV of EO 292 the undersecretary shall be
designated as acting secretary in case of vacancy. Also, petitioners assert that while Congress is in session
there can be no appointments without first obtaining consent from Commission on Appointments. When
Congress adjourned on 22 September 2004, Gloria Arroyo issued ad interim appointments to the same
respondents.
Issue: Whether or not the President may appoint in an acting secretaries without the consent of th
Commission on Elections while Congress is in session.
Decision: Petition for certiorari and prohibition were dismissed. Due to the appointment of Gloria Arroyo
to the respondents as ad interim immediately after the recess of the Congress, the petition has become
moot. However as an exemption to the rule of mootness, courts will decide a question otherwise moot if it
is capable of repetition yet evading review.