Republic of the Philippines
G.R. No. 180643             September 4, 2008
(Romulo L. Neri, petitioner, v. Senate Committee on Accountability of Public Officers and Investigations, Senate Committee on Trade and Commerce, and Senate Committee on National Defense and Security, respondents.)
REYES, R.T., .J.:
I AM one of two Justices who only concurred in the result of the majority decision penned by esteemed colleague, Justice Teresita Leonardo-De Castro. I again effectively do so now in the resolution of the motion for reconsideration through this separate opinion. It has become necessary for me to clarify for the record my position on the issues of executive privilege and the contempt and arrest powers of the Senate.
As expected, given the highly-politicized complexion of the case, the Court ruling received a mixed reaction of praise and flak. My kind of concurrence and that of Justice Leonardo A. Quisumbing did not escape criticism. An article1 erroneously described Our vote as "unclear," casting doubt on the final verdict of the Neri petition. Another item2 wrongly branded us as mere "straddlers," sitting on both sides of the fence and coming up with a decision only at the last minute.
A sad commentary of the times is when a Justice takes a stand which flatters the political opposition, it is hailed as courageous; when the stand benefits the administration, it is hounded as cowardly. But judicial independence is neither here nor there. For me, it is judicial action that is right and reasonable, taken without fear or favor, unmindful of incidental consequences.
I thus take exceptions to the unfounded criticisms.
For one, a concurrence in the result is not unprecedented. Several justices in this Court\f1\rquote s long history had voted in a similar fashion. Then Chief Justice Ramon Aquino voted in the same manner in the 1985 case of Reformina v. Tomol, Jr.,3 a case tackling the proper interest rate in an action for damages for injury to persons and loss of property.
In the 2001 landmark case of Estrada v. Desierto,4 involving the twin issues of the resignation of deposed President Joseph Estrada and the legitimacy of the assumption of President Gloria Macapagal-Arroyo as his successor, Justices Kapunan, Pardo, Buena, Ynares-Santiago and Sandoval-Gutierrez concurred in the result of the decision penned by Chief Justice Reynato S. Puno.5 In 2006, Chief Justice Panganiban voted similarly in Republic v. Hong,6 a case revisiting the mandatory requirement of a "credible witness" in a naturalization proceeding under Commonwealth Act 473.
For another, there should be no point of confusion. A concurrence in the result is a favorable vote for the decision crafted by the ponente. It simply means that I agreed in the outcome or disposition of the case, but not necessarily on all the grounds given in the ponencia. I concurred with the weightier reasons stated in the majority decision to grant the petition for certiorari and to quash the Senate arrest and contempt order against petitioner, Secretary Neri. However, I did not share some of the reasoning of the ponente.
If an unqualified vote of concurrence is allowed on a majority decision or dissenting opinion, there is no reason why a vote in the result should be treated differently, much less proscribed.
Now, on the merits of respondents\rquote motion for reconsideration which merely restates their arguments against the petition focusing on executive privilege invoked on three (3) questions.7 For the guidance of the Bench, the Bar and the Academe, I opt to correlate my position with those of the other Justices, with due respect to them. To be sure, Our decision and resolution in this case will continue to be the subject of legal scrutiny, public debate and academic discussion.
The proper basis of executive privilege in the
Neri petition is only presidential
communication privilege; executive privilege
based on diplomacy and foreign relations is not valid for lack of specificity.
Ang tamang batayan ng pribilehiyo ng Pangulo sa petisyon ni Neri ay ang pampangulong pribilehiyo sa komunikasyon; ang pampangulong pribilehiyo sa diplomasya at ugnayang panlabas ay di angkop dahil sa kawalan ng pagtitiyak.
The majority decision sustained executive privilege on two grounds: (a) under the presidential communication privilege; and (2) executive privilege on matters relating to diplomacy or foreign relations.8
I agree with the ponente that the three questions are covered by the presidential communication privilege. But I disagree that they are covered by executive privilege on matters affecting diplomacy or foreign relations.
Ako\rquote y sumasang-ayon sa ponente na ang tatlong katanungan ay saklaw ng pampangulong pribilehiyo sa komunikasyon. Subalit hindi ako sang-ayon na ang mga ito ay sakop ng pampangulong pribilehiyo sa diplomasya o ugnayang panlabas.
The distinction between presidential communication privilege and executive privilege based on diplomacy and foreign relations is important because they are two different categories of executive privilege recognized by jurisprudence.9 The first pertains to those communications between the President and her close advisors relating to official or state matters; the second are those matters that have a direct bearing on the conduct of our external affairs with other nations, in this case the Republic of China.
The two categories of executive privilege have different rationale. Presidential communication privilege is grounded on the paramount need for candor between the President and her close advisors. It gives the President and those assisting her sufficient freedom to interact without fear of undue public scrutiny. On the other hand, executive privilege on matters concerning our diplomatic or foreign relations is akin to state secret privilege which, when divulged, will unduly impair our external relations with other countries.10
The distinction is vital because of the need for specificity in claiming the privilege. Senate of the Philippines v. Ermita11 mandates that a claim of privilege must specify the grounds relied upon by the claimant.12 The degree of specificity required obviously depends on the nature of the information to be disclosed.13
As to presidential communication privilege, the requirement of specificity is not difficult to meet. This kind of privilege easily passes the test. As long as the subject matter pertains to a communication between the President and her close advisor concerning official or state matters, the requirement is complied with.
There is no dispute that petitioner Neri is a close advisor of the President, being then the Chairman of the National Economic and Development Authority. The transaction involved the NBN-ZTE broadband deal, a government contract which is an official or state matter. Hence, the conversation between the President and petitioner Neri is covered by the presidential communication privilege.
Of course, there is a presumption that every communication between the President and her close advisor pertains to an official or state matter. The burden is on the party seeking disclosure to prove that the communication is not in an official capacity.
The fact of conversation is the trigger of the presidential communication privilege. There is no need to give specifics or particulars of the contents of the conversation because that will obviously divulge the very matter which the privilege is meant to protect. It will be an illusory privilege if a more stringent standard is required.14
In contrast, a relatively higher standard of specificity is required for a claim of executive privilege based on diplomacy or foreign relations. As in state secrets, this type of executive privilege is content based.15 This means that the claim is dependent on the very content of the information sought to be disclosed. To adequately assess the validity of the claim, there is a need for the court, usually in closed session, to become privy to the information. This will enable the court to sufficiently assess whether or not the information claimed to be privileged will actually impair our diplomatic or foreign relations with other countries. It is the content of the information and its effect that trigger the privilege. To be sure, a generalized claim of privilege will not pass the more stringent test of specificity.
In the case at bar, the letter16 of Secretary Eduardo Ermita to the Senate dated November 15, 2007 asserting executive privilege contained a mere general allegation that the conversation between the President and petitioner Neri "might" impair our diplomatic relations with the Republic of China. There is no explanation how the contents of the conversation will actually impair our diplomatic relations. Absent sufficient explanation or specifics, We cannot assess the validity of the claim of executive privilege.
Obviously, bare assertion without more will not pass the more stringent test of specificity. It is in this context that I agree with the dissenting justices17 that the claim of privilege based on diplomacy or foreign relations must be struck down as devoid of basis.
It may be noted that Justice Tinga is not also persuaded by the claim of executive privilege based on diplomacy or foreign relations. He said:
Petitioner Neri also cites diplomatic and state secrets as basis for the claim of executive privilege, alluding for example to the alleged adverse impact of disclosure on national security and on our diplomatic relations with China. The argument hews closely to the state secrets privilege. The problem for petitioner Neri though is that unless he informs this Court the contents of his questioned conversations with the President, the Court would have no basis to accept his claim that diplomatic and state secrets would indeed be compromised by divulging the same in a public Senate hearing.
Indeed, if the claim of executive privilege is predicated on the particular content of the information, such as the state secrets privilege, which the claimant refuses to divulge, there is no way to assess the validity of the claim unless the court judging the case becomes privy to such information. If the claimant fails or refuses to divulge such information, I submit that the courts may not pronounce such information as privileged on content-based grounds, such as the state secrets privilege. Otherwise, there simply would be no way to dispute such claim of executive privilege. All the claimant would need to do is to invoke the state secrets privilege even if no state secret is at all involved, and the court would then have no way of ascertaining whether the claim has been validly raised, absent judicial disclosure of such information.18
There is qualified presumption of presidential communication privilege.
Mayroong kwalipikadong pagpapalagay sa pampangulong pribilehiyo sa komunikasyon.
American jurisprudence19 bestows a qualified presumption in favor of presidential communication privilege. This means that the initial point is against disclosure of the contents of the communication between the President and her close advisors. The burden of proof is on the agency or body seeking disclosure to show compelling reasons to overcome the presumption.
Respondent Senate Committees, however, insist that there should be no presumption in favor of presidential communication privilege. It banks on this Court\rquote s statement in Senate of the Philippines v. Ermita20 that "the extraordinary character of the exemption (executive privilege) indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure."21 It is argued that the dicta in Ermita is contrary and even antithetical22 to the qualified presumption under American jurisprudence. Respondents likewise cite several provisions of the 1987 Philippine Constitution favoring public disclosure over secrecy23 in its attempt to reverse the presumption.
I cannot agree with respondents. The Court\rquote s statement in Ermita must be read in its proper context. It is merely a general statement in favor of public disclosure and against government secrecy. To be sure, transparency of government actions is a laudable virtue of a republican system of government such as ours. After all, a public office is a public trust. A well informed citizenry is essential in a democratic and republican government.
But not all privileges or those that prevent disclosure of government actions are objectionable. Executive privilege is not an evil that should be thwarted and waylaid at every turn. Common sense and public policy require a certain degree of secrecy of some essential government actions. Presidential communication privilege is one of them. The President and her close advisor should be given enough leeway to candidly discuss official and state matters without fear of undue public scrutiny. The President cannot effectively govern in a fishbowl where her every action is dissected and scrutinized. Even the Senate itself enjoys the same privilege in the discharge of its constitutional functions. Internal workings of the Senate Committees, which include deliberations between the Senators and their staffs in crafting a bill, are generally beyond judicial scrutiny.
The Court\rquote s dicta in Senate of the Philippines v. Ermita should not be unduly emasculated as basis for a general argument in favor of full disclosure of all governmental actions, much less as foundation for a presumption against presidential communication privilege. To my mind, it was not the intention of this Court to reverse the qualified presumption of presidential communication under American jurisprudence. Quite the contrary, the Court in Ermita, by citing the case of Almonte v. Vasquez, adopted the qualified presumption of presidential communication privilege. Almonte quoted several American cases which favored the qualified presumption of presidential communication privilege.24 As discussed by Chief Justice Reynato Puno in his dissenting opinion:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al. v. Nixon in the D.C. Court of Appeals, as well as subsequent cases, all recognize that there is a presumptive privilege in favor of presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of presidential communications.
The statement in Senate v. Ermita that the "extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure" must therefore be read to mean that there is a general disfavor of government privileges as held in In Re Subpoena for Nixon, especially considering the bias of the 1987 Philippine Constitution towards full public disclosure and transparency in government.
In fine, Senate v. Ermita recognized the presidential communications privilege in U.S. v. Nixon and the qualified presumptive status that the U.S. High Court gave that privilege. Thus, respondent Senate Committees\rquote argument that the burden is on petitioner to overcome a presumption against executive privilege cannot be sustained.25
At any rate, it is now settled that there is a qualified presumption in favor of presidential communication privilege. The majority decision26 expressly recognized the presumption. Even Justices Ynares-Santiago27 and Carpio,28 in their separate dissenting opinions, agree that the presumption exists. Justice Carpio Morales29 presented a different formulation of the privilege, but she nevertheless acknowledges the presumption. In other words, the three questions directed to petitioner are presumptively privileged because they pertain to the contents of his conversation with the President. Sa madaling salita, ang tatlong tanong sa petisyoner ay ipinapalagay na may angking pribilehiyo dahil ito\rquote y tungkol sa usapan nila ng Pangulo.
Presidential communication privilege is not absolute; it is rebuttable.
Ang pampangulong pribilehiyo sa komunikasyon ay hindi ganap; ito\rquote y maaaring salungatin.
The fact that presidential communication is privileged is not the end of the matter. It is merely the starting point of the inquiry. In Senate of the Philippines v. Ermita, this Court stated:
That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.30
All Justices31 agree that the presumption in favor of presidential communication privilege is rebuttable. The agency or body seeking disclosure must present compelling reasons to overcome the presumption. Justice Nachura stated the delicate balancing test in this manner:
Because the foundation of the privilege is the protection of the public interest, any demand for disclosure of information or materials over which the privilege has been invoked must, likewise, be anchored on the public interest. Accordingly, judicial recognition of the validity of the claimed privilege depends upon "a weighing of the public interest protected by the privilege against the public interest that would be served by disclosure in a particular case." While a "demonstrated specific need" for material may prevail over a generalized assertion of privilege, whoever seeks the disclosure must make "a showing of necessity sufficient to outweigh the adverse effects the production would engender.32
The Senate power of investigation in aid of legislation is different from its oversight function.
Ang kapangyarihan ng Senado na magsiyasat kaakibat ng tungkulin sa paggawa ng batas ay kaiba sa gawain nito ng pagsubaybay.
The context or procedural setting in which executive privilege is claimed is vital in the courts\rquote assessment of the privilege. Since executive privilege has constitutional underpinnings, the degree of proof required to overcome the presumption must likewise have constitutional support. Here, the context or setting of the executive privilege is a joint Senate Committee33 investigation in aid of legislation.
There is a statement in the majority decision that respondent Senate Committees were exercising their oversight function,34 instead of their legislative powers35 in asking the three questions to Secretary Neri.36 The characterization of the Senate power as one in the exercise of its oversight, instead of legislative, function has severe repercussions because of this Court\rquote s dicta in Ermita that the Senate\rquote s oversight function "may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation." In exercising its oversight function, the Senate may only request the appearance of a public official. In contrast, it may compel appearance when it is exercising its power of investigation in aid of legislation.
On this score, I part way with the majority decision. To be sure, it is difficult to draw a line between the oversight function and the legislative function of the Senate. Nonetheless, there is sufficient evidence on record that the Senate Committees were actually exercising their legislative power rather than their oversight function in conducting the NBN-ZTE investigation. Various resolutions,37 privilege speeches38 and bills39 were filed in the Senate in connection with the NBN-ZTE contract. Petitioner\rquote s counsel, Atty. Antonio Bautista, even concedes that the investigation conducted by the Senate Committees were in aid of legislation.40
While there is a perception in some quarters that respondents\rquote investigation is being carried too far or for some other motives, We cannot but accord respondents the benefit of the doubt.
The principle of separation of powers requires that We give due respect to the Senate assertion that it was exercising its legislative power in conducting the NBN-ZTE investigation. It is not for this Court to challenge, much less second guess, the purpose of the NBN-ZTE investigation or the motives of the Senators in probing the NBN-ZTE deal. We must presume a legislative purpose from the investigation because of the various pending bills filed in the Senate. At any rate, it is settled that the improper motives of some Senators, if any, will not vitiate the Senate\rquote s investigation as long as the presumed legislative purpose is being served by the work of the Senate Committees.41
Rebutting the presumption: executive privilege is honored in civil, but not in criminal proceedings.
Ang pribilehiyo ay iginagalang sa kasong sibil, ngunit hindi sa kasong kriminal.
Given that a claim of presidential communication privilege was invoked by Secretary Neri in a Senate investigation in aid of legislation, it is necessary to examine how a similar claim of executive privilege fared in other contexts, particularly in criminal and civil proceedings, in order to gain insight on the evidence needed to rebut the qualified presumption.
There is a consensus among the Justices of this Court that a claim of executive privilege cannot succeed in a criminal proceeding. The reason is simple. The right of the accused to due process of law requires nothing less than full disclosure. When vital information that may exculpate the accused from a crime is withheld from the courts, the wheels of justice will be stymied and the constitutional right of the accused to due process of law becomes illusory. It is the crucial need for the information covered by the privilege and the dire consequences of nondisclosure on the discharge of an essential judicial function which trumps executive privilege.
The leading case on executive privilege in a criminal proceeding is U.S. v. Nixon.42 It involved a sub poena duces tecum to then United States President Richard Nixon and his staff to produce tape recordings and documents in connection with the Watergate scandal. Ruling that executive privilege cannot prevail in a criminal proceeding, the Supreme Court of the United States stated:
The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of criminal prosecution.
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. President\rquote s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President\rquote s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal case.43
I hasten to point out, however, that in this case, there is yet no criminal proceeding, hence, the vital ruling on Nixon does not square with Neri.
Again, in contrast, executive privilege is generally honored in a civil proceeding. The need for information in a civil case is not as significant or does not have the same stakes as in a criminal trial. Unlike the accused in a criminal trial, the defendant in a civil case will not lose his life or liberty when information covered by executive privilege is left undisclosed to the courts. Moreover, there is the exacting duty of the courts to prove the guilt of the accused beyond reasonable doubt. But mere preponderance of evidence is required in a civil case to deliver a verdict for either party. That burden may be hurdled even without a full disclosure of information covered by the executive privilege.
The leading case on executive privilege in a civil proceeding is Cheney v. US District Court of the District of Columbia.44 It involved discovery orders against Vice President Cheney and other federal officials and members of the National Energy Policy Development Group. Differentiating the earlier case of Nixon, the Supreme Court of the United States in Cheney held that the claim of executive privilege will be honored in a civil proceeding because it does not share the same "constitutional dimension" as in a criminal trial, thus:
The Court of Appeals dismissed these separation of powers concerns. Relying on United States v. Nixon, it held that even though respondents\rquote discovery requests are overbroad and "go well beyond FACA\rquote s requirements," the Vice- and his former colleagues on the NEPDG "shall bear the burden" of invoking privilege with narrow specificity and objecting to the discovery requests with "detailed precision." In its view, this result was required by Nixon\rquote s rejection of an "absolute, unqualified presidential privilege of immunity from judicial process under all circumstances." x x x
The analysis, however, overlooks fundamental differences in the two cases. Nixon involves the proper balance between the Executive\rquote s interest in the confidentiality of its communication and the "constitutional need for production of relevant evidence in a criminal proceeding." The Court\rquote s decision was explicit that it was "not \'85 concerned with the balance between the President\rquote s generalized interest in confidentiality and the need for relevant evidence in civil litigation \'85 We address only the conflict between the President\rquote s assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials."
The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. x x x In light of the "fundamental" and "comprehensive" need for "every man\rquote s evidence" in the criminal justice system, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth." The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to the production of relevant evidence in civil proceedings does not have the same "constitutional dimensions."45
Nixon and Cheney present a stark contrast in the court\rquote s assessment of executive privilege in two different procedural settings. While the privilege was honored in a civil proceeding, it was held unavailing in a criminal trial. It is arguable that in both cases, there is a compelling need for the information covered by the privilege. After all, the courts may be unable to deliver a fair verdict without access to the information covered by the privilege.
I submit that the distinction lies on the effect of non-disclosure on the efficient discharge of the court\rquote s judicial function. The court may not adjudge the guilt of the accused beyond reasonable doubt in a criminal trial without the information covered by the privilege. The information may, in fact, exculpate the accused from the crime. In contrast, the court may render judgment in a civil case even absent the information covered by the privilege. The required burden of proof may still be hurdled even without access to the information.
In short, if the body or agency seeking disclosure may efficiently discharge its constitutional duty even without access to the information, the privilege will be honored. If, on the other hand, the privilege substantially impairs the performance of that body or agency\rquote s constitutional duty, the information covered by the privilege will be disclosed to enable that agency to comply with its constitutional duty.
There are two significant tests for rebutting the qualified presumption of presidential communication privilege.
May dalawang makahulugang panukat sa pagsalungat ng kwalipikadong pagpapalagay sa pampangulong pribilehiyo sa komunikasyon.
The majority decision ruled that the qualified presumption of presidential communication privilege may be overturned only by a showing of public need by the branch seeking access to conversation.46
Chief Justice Puno opines that the test must center on the efficient discharge of the constitutional functions of the President vis-à-vis the Senate. Using the "function impairment test," the Court weighs how the disclosure of the withheld information would impair the President\rquote s ability to perform her constitutional duties more than nondisclosure would impair the other branch\rquote s ability to perform its constitutional functions.47 The test entails an initial assessment of the strength of the qualified presumption which shall then be weighed against the adverse effects of non-disclosure on the constitutional function of the agency seeking the information.
Justice Carpio Morales agrees that the proper test must focus on the effect of non-disclosure on the discharge of the Senate\rquote s constitutional duty of enacting laws, thus:
Thus, a government agency that seeks to overcome a claim of the presidential communications privilege must be able to demonstrate that access to records of presidential conversations, or to testimony pertaining thereto, is vital to the responsible performance of that agency\rquote s official functions.48
In his separate concurring opinion, Justice Tinga highlights that the "claim of executive privilege should be tested against the function of the legislative inquiry, which is to acquire insight and information for the purpose of legislation. He simplifies the issue in this manner: would the divulgence of the sought-after information impede or prevent the Senate from enacting legislation?49
Justice Nachura tersely puts it that to hurdle the presumption the Senate must show "how and why the desired information "is demonstrably critical to the responsible fulfillment of the Committees\rquote functions."50
Justice Consuelo Ynares-Santiago, on the other hand, asserts that the proper test should not only be confined to the consequences of disclosure or non-disclosure on the constitutional functions of the President and the Senate, but must involve a holistic assessment of "public interest." She notes that "grave implications on public accountability and government transparency" are factors that must be taken into account in resolving a claim of executive privilege.51
The seemingly different tests submitted by the concurring and dissenting justices are but motions of the same type of balancing act which this Court must undertake in resolving the issue of executive privilege. The "public interest" test propounded by Justice Ynares-Santiago emphasizes the general basis in resolving the issue, which is public interest. The "balancing test" espoused by the majority justices and Justice Carpio Morales, and the "function impairment test" of Chief Justice Puno, on the other hand, underscore the main factor in resolving the conflict, which is to assess the consequence of non-disclosure on the effective discharge of the constitutional function of the branch or agency seeking the information.
The "balancing test" and the "function impairment test" approximate the test applied by the Supreme Court of the United States in Nixon and Cheney. An analysis of Nixon and Cheney reveals that the test must be anchored on two points. One, the compelling need for the information covered by the privilege by the body or agency seeking disclosure. Two, the effect of non-disclosure on the efficient discharge of the constitutional function of the body or agency seeking the information.
Both requisites must concur although the two may overlap. If there is a compelling need for the information, it is more likely that the agency seeking disclosure cannot effectively discharge its constitutional function without the required information. Disclosure is precisely sought by that agency in order for it to effectively discharge its constitutional duty. But it may also be true that there is a compelling need for the information but the agency or body seeking disclosure may still effectively discharge its constitutional duty even without the information. The presence of alternatives or adequate substitutes for the information may render disclosure of the information unnecessary.
The starting point is against disclosure of the contents of the communication between the President and her close advisors because of the qualified presumption of presidential communication privilege. The burden is on the party seeking disclosure to prove a compelling need for the information. But mere compelling need is insufficient. The branch or agency seeking the information must also show that it cannot effectively discharge its constitutional function without access to the information covered by the privilege.
The degree of impairment of the constitutional function of the agency seeking disclosure must be significant or substantial as to render it unable to efficiently discharge its constitutional duty. In Nixon, the harm occasioned by non-disclosure was held to "cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts." In contrast, the harm in a civil proceeding was held to be only minor or insignificant, which rendered disclosure unnecessary.
Application of the twin tests - paglalapat ng kambal na panukat
Applying the same dual tests, the qualified presumption of the presidential communication privilege may be rebutted only upon showing by the Senate of a compelling need for the contents of the conversation between the President and Secretary Neri. The Senate must also prove that it cannot effectively discharge its legislative function without the information covered by the privilege.
The presidential communication privilege was invoked in a joint Senate investigation in aid of legislation. The main purpose of the NBN-ZTE investigation is to aid the Senators in crafting pertinent legislation. The constitutional duty involved in this case is the lawmaking function of the Senate.
Using the function impairment test, Chief Justice Puno concludes that the Senate had adequately shown a compelling need for the contents of the conversation between the President and Secretary Neri. The Chief Justice points out that there is no effective substitute for the information because it provides the factual basis "in crafting specific legislation pertaining to procurement and concurring in executive agreements."52
Justice Carpio Morales also observes that the Senate had adequately presented a compelling need for the information because it is "apparently unavailable anywhere else."53 Justice Carpio Morales holds "it would be unreasonable to expect respondent Committees to merely hypothesize on the alternative responses and come up with legislation on that basis."54
I take a different view. To my mind, the Senate failed to present a case of compelling need for the information covered by the privilege. It must be borne in mind that Secretary Neri is only one of the many witnesses in the NBN-ZTE investigation. In fact, he had already testified lengthily for eleven (11) hours. Numerous resource persons and witnesses have testified before and after him. The list includes Rodolfo "Jun" Lozada, Jr., Jose De Venecia IV, Chairman Benjamin Abalos, technical consultants Leo San Miguel and Dante Madriaga. To date, the Senate Committees had conducted a total of twelve hearings on the NBN-ZTE investigation.
Given the sheer abundance of information, both consistent and conflicting, I find that the Senate Committees have more than enough inputs and insights which would enable its members to craft proper legislation in connection with its investigation on the NBN-ZTE deal. I do not see how the contents of the conversation between Secretary Neri and the President, which is presumptively privileged, could possibly add more light to the law-making capability of the Senate. At the most, the conversation will only bolster what had been stated by some witnesses during the Senate investigation.
I do not share the opinion that the entire talk between the President and Secretary Neri is essential because it provides the factual backdrop in crafting amendments to the procurement laws. The testimony of numerous witnesses and resource persons is already sufficient to provide a glimpse, if not a fair picture, of the whole NBN-ZTE contract. The Senators may even assume, rightly or wrongly, based on the numerous testimonies, that there was an anomaly on the NBN ZTE contract and craft the necessary remedial legislation.
Unlike in a criminal trial, this is not a case where a precise reconstruction of past events is essential to the efficient discharge of a constitutional duty. The Senate is not a court or a prosecutorial agency where a meticulous or painstaking recollection of events is essential to determine the precise culpability of an accused. The Senate may still enact laws even without access to the contents of the conversation between the President and Secretary Neri. As correctly noted by Justice Nachura, "legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events" and that "it is not uncommon for some legislative measures to be fashioned on the strength of certain assumptions that may have no solid factual precedents."55
Even granting that the Senate had presented a case of compelling need for the information covered by the executive privilege, the Senate nonetheless failed to prove the second element of "substantial impairment" of its constitutional lawmaking function. It is hard to imagine how an affirmative or negative answer to the three questions posed to petitioner Neri would hinder the Senate from crafting a law amending the Build Operate and Transfer (BOT) Law or the Official Development and Assistance (ODA) Act. The Senate may also cobble a law subjecting executive agreements to Senate concurrence even without access to the conversation between the President and Secretary Neri.
In fine, the qualified presumption in favor of presidential communication privilege was not successfully rebutted. First, the Senate failed to prove a compelling need for the information covered by the privilege. Second, the constitutional function of the Senate to enact laws will not be substantially impaired if the information covered by the privilege is left undisclosed. For these twin reasons, I concur with the ponente\rquote s decision honoring presidential communication privilege in the NBN-ZTE Senate investigation.
Gamit ang panukat ng "balancing test" at "function impairment test," matibay ang aking pasiya na hindi matagumpay na nasalungat ang kwalipikadong pagpapalagay (qualified presumption) sa pampangulong pribilehiyo sa komunikasyon.
Executive privilege and crime - pampangulong pribilehiyo at krimen
The Senate also asserts that executive privilege cannot be used to conceal a crime. It is claimed that the conversation between the President and Secretary Neri pertained to an attempted bribery by then COMELEC chairman Benjamin Abalos to Secretary Neri. The alleged crime committed by Chairman Abalos will be shielded and concealed if the content of the conversation between the President and Secretary Neri is left undisclosed. It is also claimed that the President herself and his husband may have been complicit in the commission of a crime in approving the NBN-ZTE contract.
That executive privilege cannot be invoked to conceal a crime is well-settled. All Justices of this Court agree on that basic postulate. The privilege covers only the official acts of the President. It is not within the sworn duty of the President to hide or conceal a crime.56 Hence, the privilege is unavailing to cover up an offense.
But We cannot lightly assume a criminal conduct. In the same manner that We give due respect to the Senate when it asserts that it is conducting an investigation in aid of legislation, so too must We accord the same level of courtesy to the President when she asserts her presidential communication privilege.
It must be stressed that the Senate is conducting the NBN-ZTE investigation only in aid of legislation. Its main goal is to gain insights on how to better craft pertinent laws. Its investigation is not, ought not to be, a fishing expedition to incriminate the President or for other purpose.
The Senate is not a prosecutorial agency. That duty belongs to the Ombudsman and the Department of Justice. Or the House of Representatives if impeachment is desired. That the concerned Senators or other sectors do not trust these institutions is altogether another matter. But the Court should not be pressured or faulted if it declines to deviate from the more specific norm ordained by the Constitution and the rule of law.
Much has been said about the need to ferret out the truth in the reported anomaly on the aborted NBN-ZTE broadband deal. But can the truth be fairly ascertained in a Senate investigation where there is no rule of evidence? Where even double hearsay testimony is allowed and chronicled by media? Where highly partisan politics come into play? May not the true facts be unveiled through other resource persons, including a namesake (Ruben Caesar Reyes)?
On the contempt and arrest order - ang order ng pagsuway at pag-aresto
On the second issue, the majority decision invalidated the arrest and contempt order against petitioner Neri on five (5) counts, namely: (a) valid invocation of executive privilege; (b) lack of publication of the Senate Rules of Procedure; (c) failure to furnish petitioner Neri with advance list of questions and proposed statutes which prompted its investigation; (d) lack of majority vote to cite for contempt; and (e) arbitrary and precipitate issuance of the contempt order. The first and the last are interrelated.
I concur with the majority decision but on a single ground: valid invocation of executive privilege.
A. Because of valid invocation of executive privilege, the Senate order of contempt and arrest is baseless, hence, invalid.
Dahil sa pasiya ng nakakarami sa Hukuman na balido ang imbokasyon ni Neri ng pampangulong pribilehiyo, ang order ng Senado sa kanyang pagsuway at pag-aresto ay walang batayan kaya hindi balido.
The Senate declared petitioner Neri in contempt because he refused to divulge the full contents of his conversation with the President. It is his refusal to answer the three questions covered by the presidential communication privilege which led to the issuance of the contempt and later the arrest order against him.
I note that the Senate order of contempt against Secretary Neri stated as its basis his failure to appear in four slated hearings, namely: September 18, 2007, September 20, 2007, October 25, 2007 and November 20, 2007.57 But Secretary Neri attended the Senate hearing on September 26, 2007 where he was grilled for more than eleven (11) hours. The October 25, 2007 hearing was moved to November 20, 2007 when the Senate issued a subpoena ad testificandum to Secretary Neri to further testify on the NBN-ZTE deal.
Before the slated November 20 hearing, Secretary Ermita wrote to the Senate requesting it to dispense with the testimony of Secretary Neri on the ground of executive privilege. The Senate did not act on the request of Secretary Ermita. Secretary Neri did not attend the November 20, 2007 hearing.
The Senate erroneously cited Secretary Neri for contempt for failing to appear on the September 18 and 20, 2007 hearings. His failure to attend the two hearings is already a non-issue because he did attend and testified in the September 26, 2007 hearing. If the Senate wanted to cite him for contempt for his absence during the two previous hearings, it could have done so on September 26, 2007, when he testified in the Senate. The Senate cannot use his absence in the September 18 and 20 hearings as basis for citing Secretary Neri in contempt.
The main reason for the contempt and arrest order against Secretary Neri is his failure to divulge his conversation with the President. As earlier discussed, We ruled that Secretary Neri correctly invoked presidential communication privilege. Since he cannot be compelled by the Senate to divulge part of his conversation with the President which included the three questions subject of the petition for certiorari, the contempt and arrest order against him must be declared invalid as it is baseless. Petitioner, however, may still be compelled by the Senate to testify on other matters not covered by the presidential communication privilege.
B. The Senate does not need to republish its Rules of Procedure Governing Inquiries in Aid of Legislation.
Hindi kailangan na muling ipalathala ng Senado ang Tuntunin sa Prosidyur sa Pagsisiyasat Tulong sa Paggawa ng Batas.
Justice Leonardo-De Castro sustained the position of the Office of the Solicitor General that non-publication of the Senate Rules of Procedure is fatal to the contempt and arrest order against Secretary Neri, thus:
We find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the OSG\rquote s explanation:
"The phrase \lquote duly published rules of procedure\rquote requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate\rquote s membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm."58
Justice Carpio agreed with Justice Leonardo-De Castro. In his separate opinion, Justice Carpio held that the Senate is not a continuing body under the 1987 Constitution because only half of its members continue to the next Congress, hence, it does not have a quorum to do business, thus:
The Constitution requires that the Legislature publish its rules of procedure on the conduct of legislative inquiries in aid of legislation. There is no dispute that the last publication of the Rules of Procedure of the Senate Governing the Inquiries in Aid of Legislation was on 1 December 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress. There is also no dispute that the Rules of Procedure have not been published in newspapers of general circulation during the current 14th Congress. However, the Rules of Procedure have been published continuously in the website of the Senate since at least the 13th Congress. In addition, the Senate makes the Rules of Procedure available to the public in pamphlet form.
In Arnault v. Nazareno, decided under the 1935 Constitution, this Court ruled that "the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation." To act as a legislative body, the Senate must have a quorum, which is a majority of its membership. Since the Senate under the 1935 Constitution always had two-thirds of its membership filled up except for vacancies arising from death or resignation, the Senate always maintained a quorum to act as a legislative body. Thus, the Senate under the 1935 Constitution continued to act as a legislative body even after the expiry of the term of one-third of its members. This is the rationale in holding that the Senate under the 1935 Constitution was a continuing legislative body.
The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a quorum to do business." Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators.
The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation," precluding any other form of publication. Publication in accordance with Tañada is mandatory to comply with the due process requirement because the Rules of Procedure put a person\rquote s liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate.
Due process requires that "fair notice" be given to citizens before rules that put their liberty at risk take effect. The failure of the Senate to publish its Rules of Procedure as required in Section 22, Article VI of the Constitution renders the Rules of Procedure void. Thus, the Senate cannot enforce its Rules of Procedure.59
Chief Justice Puno, on the other hand, points out that the Senate has been considered a continuing body by custom, tradition and practice. The Chief Justice cautions on the far-reaching implication of the Senate Rules of Procedure being declared invalid and unenforceable. He says:
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 x x x." 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.60
True it is that, as the Constitution mandates, the Senate may only conduct an investigation in aid of legislation pursuant to its duly published rules of procedure. Without publication, the Senate Rules of Procedure Governing Inquiries in Aid of Legislation is ineffective. Thus, unless and until said publication is done, the Senate cannot enforce its own rules of procedure, including its power to cite a witness in contempt under Section 18.
But the Court can take judicial notice that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation was published on August 20 and 21, 1992 in the Philippine Daily Inquirer and Philippine Star during the 9th Congress.
The Senate again published its said rules on December 1, 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress. That the Senate published its rules of procedure twice more than complied with the Constitutional requirement.
I submit that the Senate remains a continuing body under the 1987 Constitution. That the Senate is a continuing body is premised on the staggered terms of its members, the idea being to ensure stability of governmental policies. This is evident from the deliberations of the framers of the Constitution, thus:
"MR RODRIGO. x x x
I would like to state that in the United States Federal Congress, the term of the members of the Lower House is only two years. We have been used to a term of four years here but I think three years is long enough. But they will be allowed to run for reelection any number of times. In this way, we remedy the too frequent elections every two years. We will have elections every three years under the scheme and we will have a continuing Senate. Every election, 12 of 24 Senators will be elected, so that 12 Senators will remain in the Senate. In other words, we will have a continuing Senate.61
x x x x
MR DAVIDE. This is just a paragraph of that section that will follow what has earlier been approved. It reads: "OF THE SENATORS ELECTED IN THE ELECTION IN 1992, THE FIRST TWELVE OBTAINING THE HIGHEST NUMBER OF VOTES SHALL SERVE FOR SIX YEARS AND THE REMAINING TWELVE FOR THREE YEARS."
This is to start the staggering of the Senate to conform to the idea of a continuing Senate.
THE PRESIDING OFFICER (Mr. Rodrigo). What does the Committee say?
MR SUAREZ. The Committee accepts the Davide proposal, Mr. Presiding Officer.62
The Senate does not cease to be a continuing body merely because only half of its members continue to the next Congress. To my mind, even a lesser number of Senators continuing into the next Congress will still make the Senate a continuing body. The Senate must be viewed as a collective body. It is an institution quite apart from the Senators composing it. The Senate as an institution cannot be equated to its present occupants. It is indivisible. It is not the sum total of all sitting Senators at any given time. Senators come and go but the very institution of the Senate remains. It is this indivisible institution which should be viewed as continuing.
The argument that the Senate is not a continuing body because it lacks quorum to do business after every midterm or presidential elections is flawed. It does not take into account that the term of office of a Senator is fixed by the Constitution. There is no vacancy in the office of outgoing Senators during midterm or presidential elections. Article VI, Section 4 of the 1987 Constitution provides:
The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.
The term of a Senator starts at noon of June 30 next following their election and shall end before noon of June 30 six years after. The constitutional provision aims to prevent a vacuum in the office of an outgoing Senator during elections, which is fixed under the Constitution unless changed by law on the second Monday of May,63 until June 30 when the Senators-elect assume their office. There is no vacuum created because at the time an outgoing Senator\rquote s term ends, the term of a Senator-elect begins.
The same principle holds true for the office of the President. A president-elect does not assume office until noon of June 30 next following a presidential election. An outgoing President does not cease to perform the duties and responsibilities of a President merely because the people had chosen his/her new successor. Until her term expires, an outgoing President has the constitutional duty to discharge the powers and functions of a President unless restricted64 by the Constitution.
In fine, the Senate is a continuing body as it continues to have a full or at least majority membership65 even during elections until the assumption of office of the Senators-elect. The Senate as an institution does not cease to have a quorum to do business even during elections. It is to be noted that the Senate is not in session during an election until the opening of a new Congress for practical reasons. This does not mean, however, that outgoing Senators cease to perform their duties as Senators of the Republic during such elections. When the President proclaims martial law or suspends the writ of habeas corpus, for example, the Congress including the outgoing Senators are required to convene if not in session within 24 hours in accordance with its rules without need of call.66
The Constitutional provision requiring publication of Senate rules is contained in Section 21, Article VI of the 1987 Constitution, which reads:
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.
The above provision only requires a "duly published" rule of procedure for inquiries in aid of legislation. It is silent on republication. There is nothing in the constitutional provision that commands that every new Congress must publish its rules of procedure. Implicitly, republication is necessary only when there is an amendment or revision to the rules. This is required under the due process clause of the Constitution.
The Senate in the 13th Congress caused the publication of the Rules of Procedure Governing Inquiries in Aid of Legislation. The present Senate (14th Congress) adopted the same rules of procedure in the NBN-ZTE investigation. It does not need to republish said rules of procedure because it is not shown that a substantial amendment or revision was made since its last publication that would affect the rights of persons appearing before it.
On a more practical note, there is little to be gained in requiring a new Congress to cause the republication of the rules of procedure which has not been amended or revised. The exercise is simply a waste of government funds. Worse, it unduly burdens and hinders the Senate from discharging its constitutional duties. Publication takes time and during the interregnum, it cannot be gainsaid that the Senate is barred or restricted from conducting an investigation in aid of legislation.
I agree with the Chief Justice that this Court must be wary of the far-reaching consequences of a case law invalidating the Senate rules of procedure for lack of republication. Our ruling in this petition will not only affect the NBN-ZTE investigation, but all other Senate investigations conducted under the 10th, 11th, 12th, and the present 14th Congress, for which no republication of the rules has been done. These investigations have been the basis of several bills and laws passed in the Senate and the House of Representatives. Putting a doubt on the authority, effectivity and validity of these proceedings is imprudent and unwise. This Court should really be cautious in making a jurisprudential ruling that will unduly strangle the internal workings of a co-equal branch and needlessly burden the discharge of its constitutional duty.
C. The Senate failed to furnish petitioner with a list of possible questions and needed statutes prompting the inquiry. But the lapse was sufficiently cured.
Nagkulang ang Senado na bigyan ang petisyuner ng listahan ng mga itatanong sa kanya at mga panukalang batas na nagtulak sa pagsisiyasat. Subalit ang kakulangan ay nalunasan ng sapat.
In Senate v. Ermita,67 the Court issued a guideline to the Senate to furnish a witness, prior to its investigation, an advance list of proposed questions and possible needed statutes which prompted the need for the inquiry. The requirement of prior notice will dispel doubts and speculations on the real nature and purpose of its investigation. Records show the Senate failed to comply with that guideline. It did not furnish petitioner Neri an advance list of the required questions and bills which prompted the NBN-ZTE investigation. Thus, the Senate committed a procedural error.
The majority decision held that the procedural error invalidated the contempt and arrest order against petitioner Neri, thus:
x x x Respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the "possible needed statute which prompted the need for the inquiry," along with "the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof." Compliance with this requirement is imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22. Unfortunately, despite petitioner\rquote s repeated demands, respondent Committees did not send him an advance list of questions.68
Nevertheless, I disagree with the majority on this point. I do not think that such procedural lapse per se has a substantial effect on the resolution of the validity of the Senate contempt and arrest order. The defect is relatively minor when viewed in light of the serious issues raised in the NBN-ZTE investigation. More importantly, the procedural lapse was sufficiently cured when petitioner was apprised of the context of the investigation and the pending bills in connection with the NBN-ZTE inquiry when he appeared before the respondent Senate committees.
If this were a case of a witness suffering undue prejudice or substantial injury because of unfair questioning during a Senate investigation, I would not hesitate to strike down a contempt and arrest order against a recalcitrant witness. But this is not the situation here. Petitioner neither suffered any undue prejudice nor substantial injury. He was not ambushed by the Senators with a barrage of questions regarding a contract in which he had little or no prior knowledge. Quite the contrary, petitioner knew or ought to know that the Senators will query him on his participation and knowledge of the NBN-ZTE deal. This was clear from the letter of the Senate to petitioner requesting his presence and attendance during its investigation.
At any rate, this case should serve as an eye-opener to the Senate to faithfully comply with Our directive in Ermita. To prevent future claims of unfair surprise and questioning, the Senate, in its future investigations, ought to furnish a witness an advance list of questions and the pending bills which prompted its investigation.
D. There was a majority vote under Section 18 of the pertinent Senate Rules of Procedure.
Nagkaroon ng boto ng nakararami ayon sa Seksiyon 18 ng nauukol na Tuntunin ng Senado.
Section 18 of the Senate Rules Governing Inquiries in Aid of Legislation provides:
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.
The majority decision held that the required majority vote under Section 18 of the said Senate Rules of Procedure was not met. In her ponencia, Justice Leonardo-De Castro notes that members of the Senate Committees who were absent during the Senate investigations were made to sign the contempt order. The ponente cites the transcript of records during the Senate investigation where Senator Aquilino Pimentel raised the issue to Senator Alan Peter Cayetano during interpellation, thus:
THE CHAIRMAN (SEN. CAYETANO, A). May I recognize the Minority Leader and give him the floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the opinion that the Blue Ribbon Committee is the lead committee, and therefore, it should have preference in enforcing its own decisions. Meaning to say, it is not something that is subject to consultation with other committees. I am not sure that is the right interpretation. I think that once we decide here, we enforce what we decide, because otherwise, before we know it, our determination is watered down by delay and, you know, the so-called "consultation" that inevitably will have to take place if we follow the premise that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it\rquote s the lead committee here, and therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might have who are only secondary or even tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.). Thank you very much to the Minority Leader. And I agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, "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."
So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or in session asked the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally question our subpoena as being insufficient in accordance with law.69
Justice Arturo Brion particularly agrees with the ponente. In his separate concurring opinion, Justice Brion cites the admission of Senators Francis Pangilinan and Rodolfo Biazon during the Oral Argument that the required majority vote under Section 18 was not complied with, thus:
That the Senate committees engaged in shortcuts in ordering the arrest of Neri is evident from the record of the arrest order. The interpellations by Justices Tinga and Velasco of Senators Rodolfo G. Biazon (Chair of the Committee on National Defense and Security) and Francis N. Pangilinan (Senate Majority Leader) yielded the information that none of the participating Committees (National Defense and Security, Blue Ribbon, and Trade and Commerce) registered enough votes to approve the citation of contempt and the arrest order. An examination of the Order dated 30 January 2008 shows that only Senators Alan Peter Cayetano, Aquino III, Legarda, Honasan and Lacson (of 17 regular members) signed for the Blue Ribbon Committee; only Senators Roxas, Pia Cayetano, Escudero and Madrigal for the Trade and Commerce Committee (that has 9 regular members); and only Senators Biazon, and Pimentel signed for the National Defense and Security Committee (that has 19 regular members). Senate President Manny Villar, Senator Aquilino Pimentel as Minority Floor Leader, Senator Francis Pangilinan as Majority Floor Leader, and Senator Jinggoy Ejercito Estrada as Pro Tempore, all signed as ex-officio members of the Senate standing committees but their votes, according to Senator Biazon\rquote s testimony, do not count in the approval of committee action.70
Chief Justice Puno has a different view. Citing the Certification71 issued by the Senate\rquote s Deputy Secretary for Legislation, the Chief Justice concludes that the required majority vote was sufficiently met. The Chief Justice adds that even if the votes of the ex officio members of the Senate Committee were counted, the majority requirement for each of the respondent Senate Committees was still satisfied.72
I share the view of the Chief Justice on this point.
The divergence of opinion between the majority decision and Chief Justice Puno pertains to the voting procedure of the Senate. It involves two issues: (a) whether or not the vote to cite a witness for contempt under Section 18 of the Senate Rules requires actual physical presence during the Senate investigation; and (b) whether or not the votes of the ex officio members of respondent Senate Committees should be counted under Section 18 of the Senate Rules.
The twin issues involve an interpretation of the internal rules of the Senate. It is settled that the internal rules of a co-equal branch are within its sole and exclusive discretion. Section 16, Article VI of the 1987 Constitution provides:
Each House may determine the Rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds of all its members, suspend or expel a member. A penalty of suspension, when imposed, shall not exceed sixty days.
In Avelino v. Cuenco,73 this Court by a vote of 6-4 refused to assume jurisdiction over a petition questioning the election of Senator Cuenco as Senate President for lack of quorum. The case cropped up when then Senate President Avelino walked out of the Senate halls followed by nine other Senators, leaving only twelve senators in the session hall. The remaining twelve Senators declared the position of the Senate President vacant and unanimously designated Senator Cuenco as the Acting Senate President. Senator Avelino questioned the election, among others, for lack of quorum. Refusing to assume jurisdiction, this Court held:
The Court will not sally into the legitimate domain of the Senate on the plea that our refusal to intercede might lead into a crisis, even a revolution. No state of things has been proved that might change the temper of the Filipino people as a (sic) peaceful and law-abiding citizens. And we should not allow ourselves to be stampeded into a rash action inconsistent with the claim that should characterize judicial deliberations.74
The same principle should apply here. We must not lightly intrude into the internal rules of a co-equal branch. The doctrine of separation of powers demands no less than a prudent refusal to interfere with the internal affairs of the Senate. The issues of lack of quorum and the inclusion of the votes of the ex officio members are beyond this Court\rquote s judicial review.
Apart from jurisprudence, common sense also requires that We should accord the same privilege and respect to a co-equal branch. If this Court allows Justices who are physically absent from its sessions to cast their vote on a petition, there is no reason to treat the Senators differently. It is also common knowledge that even members of the House of Representatives cast their vote on a bill without taking part in its deliberations and sessions. Certainly, what is sauce for the goose is sauce for the gander. If it is allowed in the House of Representatives, it should be allowed in the Senate. Kung ito\rquote y pinapayagan sa Mababang Kapulungan, dapat payagan din sa Mataas na Kapulungan.
Avelino v. Cuenco was decided under the 1935 Constitution. Judicial power has been expanded under the present 1987 Constitution.75 Even if We resolve the twin issues under Our expanded jurisdiction, Section 18 of the Senate Rules is sufficiently complied with. The section is silent on proper voting procedure in the Senate. It merely provides that the Senate may cite a witness in contempt by "majority vote of all its members." Clearly, as long as the majority vote is garnered, irrespective of the mode on how it is done, whether by mere signing of the contempt order or otherwise, the requirement is met. Here, it is clear that a majority of the members of the respective Senate Committees voted to cite petitioner Neri in contempt.
The required majority vote under Section 18 was sufficiently met if We include the votes of the ex officio members of the respective Senate Committees. Section 18 does not distinguish between the votes of permanent and ex officio members. Interpreting the Section, the votes of the ex officio members of the respective Committees should be counted in determining the quorum and the required majority votes. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not distinguish. Kapag ang batas ay di nagtatangi, di tayo dapat magtangi.
Summing up, I affirm my stand to grant the petition for certiorari. The Senate cannot compel petitioner Neri to answer the three questions subject of the petition for certiorari or to divulge the contents of his pertinent conversation with the President on the ground of presidential communication privilege.
I also affirm my position to quash the Senate contempt and arrest order against petitioner on the ground of valid invocation of presidential communication privilege, although (a) it is unnecessary to re-publish Senate Rules of Procedure Governing Inquiries in Aid of Legislation, (b) the Senate failure to furnish petitioner with a list of questions was cured, and (c) there was a majority vote.
Sa kabuuan, pinagtitibay ko ang aking paninindigan upang payagan ang petisyon para sa certiorari. Hindi mapipilit ng Senado si petisyuner Neri na sagutin ang tatlong tanong sa petisyon o ibunyag ang laman ng kaugnay na usapan nila ng Pangulo, dahil sa pampangulong pribilehiyo sa komunikasyon.
Pinaninindigan ko rin ang aking posisyon upang pawalang-saysay ang order ng Senado sa pagsuway at pag-aresto sa petisyuner, dahil sa tamang imbokasyon ng nasabing pribilehiyo, bagama\rquote t (a) hindi na kailangan ang muling paglalathala ng mga Tuntunin sa Prosidyur ng Senado sa Pagsisiyasat Tulong sa Paggawa ng Batas, (b) nalunasan ang pagkukulang ng Senado na bigyan ang petisyuner ng listahan ng mga tanong, at (c) nagkaroon ng nakararaming boto.
Accordingly, I vote to deny respondents\rquote motion for reconsideration.
RUBEN T. REYES
1 "More critics slam SC on Neri Decision," http://www.abs-cbnglobal.com/ItoangPinoy/News/ PhilippineNews/tabid/140/ArticleID/1296/TargetModuleID/516/Default.aspx; accessed May 15, 2008.
2 "Inside story: SC justices had pre-determined votes on Neri case," NewsBreak written by Marites Datunguilan Vitug, April 2, 2008, http://newsbreak.com.ph/index.php?option=com_content&task= view&id=4329&Itemid=88889384 accessed April 22, 2008.
3 G.R. No. L-59096, October 11, 1985, 139 SCRA 260, 267.
4 G.R. Nos. 146710-15, March 2, 2001, 353 SCRA 452, 531.
5 J. Kapunan, J. Ynares-Santiago, and J. Sandoval-Gutierrez reserved the right to file separate opinions.
6 G.R. No. 168877, March 24, 2006, 485 SCRA 405, 423.
7 The three questions are:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President told you to go ahead and approve the project after being told about the alleged bribe?
8 Majority decision penned by J. Leonardo-De Castro, pp. 19, 21.
9 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1; Chavez v. Philippine Commission on Good Government, G.R. No. 130716, December 9, 1998, 299 SCRA 744; Almonte v. Vasquez, G.R. No. 95367, May 23, 1995, 244 SCRA 286.
10 Concurring opinion of J. Tinga, p. 10.
12 In Senate of the Philippines v. Ermita, this Court stated:
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected. These, in substance, were the same criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v. Vasquez and, more in point, against a committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon.
13 In her separate concurring opinion, J. Carpio Morales notes that the two claims of privilege must be assessed separately because they are grounded on different public interest consideration, thus:
The two claims must be assessed separately, they being grounded on different public interest considerations. Underlying the presidential communications privilege is the public interest in enhancing the quality of presidential decision-making. As the Court held in the same case of Senate v. Ermita, "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." The diplomatic secrets privilege, on the other hand, has a different objective - to preserve our diplomatic relations with other countries. (pp. 8-9)
14 In Senate of the Philippines v. Ermita, the Supreme Court stated:
Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.
15 Separate concurring opinion of J. Tinga, p. 9; dissenting opinion of C.J. Puno, pp. 41-42, 63.
16 The pertinent portion of the Letter of Executive Secretary Ermita to Senator Cayetano reads:
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\rquote s Republic of China. Given the confidential nature in which these information were conveyed to the x x x, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.
17 Dissenting opinions of C.J. Puno, pp. 69-70, J. Carpio, p. 24, J. Carpio Morales, p. 21.
18 Separate Concurring Opinion of Justice Tinga, pp. 9-10.
19 US v. Nixon, 418 US 613 (1974); Nixon v. Sirica, 487 F. 2d 700.
20 Supra note 9.
21 Senate of the Philippines v. Ermita, id. at 52.
22 Motion for reconsideration, p. 15.
23 Id. at 14-20.
24 In her dissenting opinion, J. Ynares-Santiago stated:
Indeed, presidential conversations and correspondences have been recognized as presumptively privileged under case law. (Almonte v. Vasquez, 314 Phil. 150 ). (pp. 2-3)
25 Dissenting opinion of C.J. Puno, pp. 75-77.
26 Majority decision, pp. 15, 18 & 19.
27 Dissenting opinion, pp. 2-3.
28 Dissenting and concurring opinion, p. 15.
29 J. Carpio Morales stated in her dissenting opinion:
Parenthetically, the presumption in favor of confidentiality only takes effect after the Executive has first established that the information being sought is covered by a recognized privilege. The burden is initially with the Executive to provide precise and certain reasons for upholding his claim of privilege, in keeping with the more general presumption in favor of transparency. Once it is able to show that the information being sought is covered by a recognized privilege, the burden shifts to the party seeking information, who may still overcome the privilege by a strong showing of need. (p. 25)
30 Senate of the Philippines v. Ermita, id. at 47.
31 Majority decision, p. 20; concurring opinions of J. Nachura, p. 11, J. Tinga, p. 11, J. Brion, p. 8; dissenting opinions of C.J. Puno, p. 58, J. Carpio Morales, p. 9, J. Carpio, p. 12, J. Ynares-Santiago, p. 1.
32 Concurring opinion of J. Nachura, pp. 2-3.
33 The NBN-ZTE investigation is a joint committee investigation by the Committee on Accountability of Public Officers and Investigations (Blue Ribbon), Committee on Trade and Commerce and Committee on National Defense and Security.
34 Constitution (1987), Art. VI, Sec. 22 provides:
The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
35 Id., Sec. 21 provides:
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.
36 The majority decision stated:
The foregoing is consistent with the earlier case of Nixon v. Sirica, where it was held that presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government "in the manner that preserves the essential functions of each Branch." Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the "the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation."
37 The following are the resolutions passed in the Senate in connection with the NBN-ZTE investigation:
1. P.S. Res. (Philippine Senate Resolution) No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled:
Resolution Directing the Blue Ribbon Committee and the Committee on Trade and Industry to Investigate, in Aid of Legislation, the Circumstances Leading to the Approval of the Broadband Contract with ZTE and the Role Played by the Officials Concerned in Getting It Consummated and to Make Recommendations to Hale to the Courts of Law the Persons Responsible for any Anomaly in Connection therewith, if any, in the BOT Law and other Pertinent Legislations.
2. P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled:
Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry in Aid of Legislation into the National Security Implications of Awarding the National Broadband Network Contract to the Chinese Firm Zhong Xing Telecommunications Equipment Company Limited (ZTE Corporation) with the End in View of Providing Remedial Legislation that Will Further Protect Our National Sovereignty Security and Territorial Integrity.
3. P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled:
Resolution Directing the Proper Senate Committee to Conduct an Inquiry, in Aid of Legislation, on the Legal and Economic Justification of the National Broadband Network (NBN) Project of the Government.
4. P.S. Res. No. 144, introduced by Senator Manuel Roxas III, entitled:
Resolution Urging Gloria Macapagal-Arroyo to Direct the Cancellation of the ZTE Contract.
38 The following are the Privilege Speeches delivered in connection with the NBN ZTE investigation:
1. Privilege Speech of Senator Panfilo M. Lacson, delivered on September 11, 2007, entitled "Legacy of Corruption."
2. 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."
39 The following are the pending bills filed in connection with the NBN-ZTE investigation:
1. Senate Bill No. 1793, introduced by Senator 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.
2. Senate Bill No. 1794, introduced by Senator 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.
3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled:
An Act Mandating Concurrence to International Agreements and Executive Agreements.
40 TSN, March 4, 2008, p. 82.
41 Watkins v. United States, 354 US 178, 1 L. Ed 1273 (1957).
42 418 US 613 (1974).
43 U.S. v. Nixon, id.
44 542 US 367, 124 S. Ct. 2576 (2004).
45 Cheney v. US District Court of the District of Columbia, id.
46 Majority decision, p. 20.
47 Dissenting opinion of C.J. Puno, p. 59.
48 Separate dissenting opinion of J. Carpio Morales, p. 25.
49 Concurring opinion of J. Tinga, p. 11.
50 Concurring opinion of J. Nachura, pp. 10-11.
51 Separate dissenting opinion of J. Ynares-Santiago, p. 3.
52 Dissenting opinion of C.J. Puno, pp. 96-98.
53 Dissenting opinion of J. Carpio Morales, p. 29.
54 Id. at 27.
55 Concurring opinion of J. Nachura, p. 10.
56 Concurring opinion of J. Carpio, p. 14.
57 Annex "A." Supplemental opinion.
58 Majority decision, p. 30.
59 Concurring opinion of J. Carpio, pp. 28-31.
60 Dissenting opinion of C.J. Puno, pp. 110-111.
61 Constitutional Commission Record, July 24, 1986, p. 208.
62 Constitutional Commission Record, October 3, 1986, p. 434.
63 Constitution (1987), Art. VI, Sec. 8.
64 Id., Secs. 14 and 15 provides:
Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President, within ninety days from his assumption or reassumption of office.
Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.
65 The Office of a Senator may be vacant for causes such as death or permanent disability.
66 Constitution (1987), Art. VII, Sec. 18 provides:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
67 In Senate of the Philippines v. Ermita, this Court stated:
One possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statements in its invitations, along with the usual indication of the subject of the inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.
68 Majority decision, pp. 27-28.
69 Majority decision, pp. 28-30.
70 Concurring opinion of J. Brion, pp. 5-6.
71 1. Committee on Accountability of Public Officers and Investigations (17 members excluding 3 ex-officio members):
Chairperson: Cayetano, Alan Peter - signed
Members: Cayetano, Pia - signed
Defensor Santiago, Miriam
Enrile, Juan Ponce
Escudero, Francis - signed
Honasan II, Gregorio Gringo - signed
Zubiri, Juan Miguel
Revilla, Jr., Ramon
Aquino III, Benigno - signed
Biazon, Rodolfo - signed
Lacson, Panfilo - signed
Legarda, Loren - signed
Madrigal, M.A. - signed
Trillanes IV, Antonio
Ejercito Estrada, Jinggoy - signed
Pangilinan, Francis - signed
Pimentel, Jr., Aquilino - signed
2. Committee on National Defense and Security (19 members excluding 2 ex-officio members):
Chairperson: Biazon, Rodolfo - signed
Members: Angara, Edgardo
Zubiri, Juan Miguel
Cayetano, Alan Peter - signed
Enrile, Juan Ponce
Cayetano, Pia - signed
Revilla, Jr., Ramon
Honasan II, Gregorio Gringo - signed
Escudero, Francis - signed
Defensor Santiago, Miriam
Aquino III, Benigno - signed
Lacson, Panfilo - signed
Legarda, Loren - signed
Madrigal, M.A. - signed
Pimentel, Jr. Aquilino - signed
Trillanes IV, Antonio
Ejercito Estrada, Jinggoy - signed
Pangilinan, Francis - signed
3. Committee on Trade and Commerce (9 members excluding 3 ex-officio members):
Chairperson: Roxas, MAR - signed
Members: Cayetano, Pia - signed
Revilla, Jr., Ramon
Escudero, Francis - signed
Enrile, Juan Ponce
Biazon, Rodolfo - signed
Madrigal, M.A.- signed
Ejercito Estrada, Jinggoy -signed
Pangilinan, Francis - signed
Pimentel, Jr., Aquilino - signed
72 Dissenting opinion of C.J. Puno, p. 119.
73 83 Phil. 17 (1949).
74 Avelino v. Cuenco, id. at 22.
75 Constitution (1987), Art. VIII, Sec. 1 provides:
Judicial review includes the duty of the Courts of Justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
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