Neri v.

Senate Committee on Accountability of Public Officers and Investigations

549 SCRA 77, March 25, 2008
Leonardo-De Castro, J.
Facts:
On April 21, 2007, the Department of Transportation and Communication (DOTC) entered
into a contract with Zhing 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
People’s Republic of China. In connection with this NBN Project, the Senate issued various
Senate Resolutions directing SBRC, among others, to conduct an investigation regarding the
NBN-ZTE deal. Respondent Committees initiated the investigation by sending invitations to
certain personalities and cabinet officials involved in the NBN Project. Petitioner was among
those invited. He was summoned to appear and testify on September 18, 20, and 26 and October
25, 2007. However, he attended only the September 26 hearing, claiming he was “out of town”
during the other dates.
When Neri testified before the Senate Committees, he disclosed that then Commission on
Elections Chairman Benjamin Abalos, brokering for ZTE, offered him P200 million in exchange
for his approval of the NBN Project. He further narrated that he informed President Gloria
Macapagal-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 1.)
whether or not the President followed up the NBN Project, 2.) whether or not she directed him to
prioritize it, and 3.) whether or not she directed him to approve it.
Later on, respondent Committees issued a Subpoena Ad Testificandum to petitioner,
requiring him to appear and testify on 20 November 2007. However, Executive Secretary
Eduardo Ermita sent a letter dated 15 November to the Committees requesting them to dispense
with Neri’s testimony on the ground of executive privilege. Ermita invoked the privilege on the
ground that “the information sought to be disclosed might impair our diplomatic as well as
economic relations with the People’s Republic of China,” and given the confidential nature in
which these information were conveyed to the President, Neri “cannot provide the Committee
any further details of these conversations, without disclosing the very thing the privilege is
designed to protect.” Thus, on 20 November, Neri did not appear before the respondent
Committees. On 22 November, respondents issued a Show Cause Letter to Neri requiring him to
show cause why he should not be cited for contempt for his failure to attend the scheduled
hearing on 20 November. On 29 November, Neri replied to the Show Cause Letter and explained
that he did not intend to snub the Senate hearing, and requested that if there be new matters that
were not yet taken up during his first appearance, he be informed in advance so he can prepare
himself. He added that his non-appearance was upon the order of the President, and that his
conversation with her 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. Respondents found the
explanation unsatisfactory, and later on issued an Order citing Neri in contempt and
consequently ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until
he appears and gives his testimony.
 Neri filed the petition asking the Court to nullify both the Show Cause Letter and the
Contempt Order for having been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction, and stressed that his refusal to answer the three questions was anchored on
a valid claim to executive privilege in accordance with the ruling in the landmark case of Senate
vs. Ermita
Issue: Whether or not the three questions that petitioner Neri refused to answer were covered by
executive privilege, making the arrest order issued by the respondent Senate Committees void?
Held:
Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the three
elements needed to be complied with in order for the claim to executive privilege to be valid.
These are: 1.) the protected communication must relate to a quintessential and non-delegable
presidential power; 2.) it must be authored, 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; and, 3.) it 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 present case, Executive Secretary Ermita claimed executive privilege on the
argument that the communications elicited by the three 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 People’s Republic of China.” It is clear
then that the basis of the claim is a matter related to the quintessential and non-delegable
presidential power of diplomacy or foreign relations.
As to the second element, the communications were received by a close advisor of the
President. Under the “operational proximity” test, petitioner Neri can be considered a close
advisor, being a member of the President’s Cabinet.
And as to the third element, 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. Presidential communications are presumptive privilege and
that the presumption can be overcome only by mere showing of public need by the branch
seeking access to such conversations. In the present case, respondent Committees failed to show
a compelling or critical need for the answers to the three questions in the enactment of any law
under Sec. 21, Art. VI. Instead, the questions veer more towards the exercise of the legislative
oversight function under Sec. 22, Art. VI. As ruled in Senate vs. Ermita, “the oversight function
of Congress may be facilitated by compulsory process only to the extent that it is performed in
pursuit of legislation.”
Neri’s refusal to answer based on the claim of executive privilege does not violate the
people’s right to information on matters of public concern simply because Sec. 7, Art. III of the
Constitution itself provides that this right is “subject to such limitations as may be provided by
law.”