Neri vs. Senate Committee on Accountability of
22, 2007 – respondents issued the Show
Public Officers and Investigations
Ponente: Leonardo-De Castro, J.
Petition for Certiorari assailing the Show Cause
Letter (Nov. 22, 2007) and Contempt Order (Jan.
30, 2008) issued by respondent Senate
Committee against petitioner Neri (former
Director General of NEDA)
April 21, 2007 – DOTC entered into a contract
with ZTE for the supply of equipment and
services for the NBN Project amounting to P16
Billion. The project was to be financed by the
People’s Republic of China
Petitioner was summoned by respondents to
appear and testify in the investigation on the NBN
Project on a number of dates, however, he
attended only on the Sept. 26 hearing.
Sept. 18, 2007 – businessman Jose de Venecia III
testified that several high executive officials and
power brokers were using their influence to push
the approval of the Project  initially approved as
a Build-Operate-Transfer project, but on March
29, 2007, NEDA acquiesced to convert it into a
government-to-government project to be
financed through a loan from the Chinese
government.
Sept. 26, 2007 – petitioner testified before
respondent Committees for 11 hours. He
disclosed that COMELEC Chairman Benjamin
Abalos offered him P200 Million in exchange for
his approval of the project, and he informed
President Arroyo about the bribery attempt.
When probed further on what they discussed,
petitioner refused to answer 3 questions, invoking
“executive privilege”:
- WON President Arroyo followed up the NBN
Project
- WON she directed him to prioritize it
- WON she directed him to approve
Respondents issued a Subpoena Ad
Testificandum, requiring petitioner to appear and
testify on Nov. 20, 2007. However, a Letter (Nov.
15, 2007) by Executive Secretary Ermita
requested respondents to dispense with
petitioner’s testimony on the ground of
“executive privilege” that covers above
questions, maintaining that the confidentiality of
conversations of the President is necessary in the
exercise of her executive and policy decision
making process and for the protection of the
public interest – disclosure of information might
impair our diplomatic and economic relations with
China.
Nov.
Cause Letter requiring him to explain why he
should not be cited in contempt.
On Nov. 29, petitioner replied that it was not his
intention to ignore the hearing and he thought
the only remaining questions were those he
claimed to be covered by executive privilege. He
further requested to be furnished in advance as
to what else he needs to clarify. In a letter by his
counsel, it was stated that it was upon the order
of the President that he did not appear, and that
the conversation with the president dealt with
delicate and sensitive national security and
diplomatic matters relating to the impact of the
bribery scandal.
Jan. 30, 2008 – respondents found petitioner’s
explanations unsatisfactory, and without
responding to his reply, issued the Order citing
him in contempt and ordering his arrest and
detention at the Office of the Senate Sergeant-At-
Arms until he gives his testimony.
The parties were directed to manifest to the Court
if they were amenable to the Court’s proposal of
allowing petitioner to immediately resume his
testimony before the respondents to answer
other questions without prejudice to the decisions
on the merits of this petition  Senate disagreed.
OSG – Motion for Leave to Intervene:
- Communications between petitioner and
President are covered by the executive
privilege.
- Petitioner was not summoned by respondent in
accordance with the power to inquiries in aid of
legislation as laid down in Sec. 21, Art. 6,
Constitution and Senate v. Ermita
March 6, 2008 – President Arroyo issued
Memorandum Ciruclar No. 151, revoking EO 464
and Memorandum Circular N. 108, advising
officials and employees to abide by the
Consitution, existing laws and jurisprudence
(Senate v. Ermita) when they are invited to
legislative inquiries in aid of legislation.
*Sec. 21, Art. 6 of Constitution – Legislative
powers of Congress – relates to the power to
conduct inquiries in aid of legislation – aim is to
elicit information that may be used for legislation
– can compel the appearance of executive
officials
*Sec. 22, Art. 6 of Constitution – Oversight powers
of Congress – relates to the power to conduct a
question hour – to obtain information in pursuit of
Congress’ oversight function – cannot compel the
appearance of executive officials
*Principle of Separation of Powers
- executive branch cannot frustrate power of
Congress to legislate by refusing to comply with
its demands of information
- power of judicial review is available – right of
Congress to conduct inquiries in aid of legislation
is susceptible to abuse  subject to certiorari
(Sec. 1, Art. 8, Constitution)
Issues and Ratio:
1. WON the communications elicited by the 3
questions are covered by Executive Privilege.
(YES. 2 reasons)
*Power of Congress to conduct inquiries in aid of
legislation – broad – legislative cannot legislate
wisely/effectively in the absence of information
respecting the conditions which the legislation is
intended to affect/change  compulsory process
to enforce it – limitations – validity: done in
accordance with the Senate or House duly
published rules of procedure and the rights of
persons appearing/affected be respected. Such
power extends to executive officials and
exemption can only be through a valid claim of
executive privilege.
a. There is a recognized claim of executive
privilege despite revocation of EO 464.
Concept of executive privilege has constitutional
underpinnings.
US v. Nixon – public interest: preserve
confidentiality of conversations that take place in
the President’s performance of his official duties
(presidential communications privilege) –
President’s generalized interest in confidentiality
– provide him and those who assist him with
freedom to explore alternatives in the process of
shaping policies and making decisions.
In Re: Sealed Case – 2 kinds of executive
privilege: (1) Presidential communications
privilege – communications, documents or other
materials that reflect presidential decision-
making and deliberations which President
believes should remain confidential – decision
making of the President (separation of powers)
(2) Deliberative process privilege – advisory
opinions, recommendations and deliberations
comprising part of a process by which
governmental decisions and policies are
formulated – decision-making of the Executive
Officials (common law privilege). The officials
covered by the former are those functions that
form the core of presidential authority that are
“quintessential and non-delegable Presidential
power” (commander in chief power,
appointment/removal power, power to grant
pardons/reprieves, etc)
Courts ruled that Executive has a right to
withhold documents that might reveal
military/state secrets, identity of government
informers, information related to pending
information and foreign relations. Chavez v. PCGG
– secrets regarding military, diplomatic and other
security matters. Chavez v. PEA – Presidential
conversations, correspondences in closed-door
Cabinet meetings
SC: Executive Secretary Ermita premised his
claim of executive privilege on the ground that
the communications elicited by the 3 questions
fall under the conversation and correspondence
between the President and public officials
necessary in her executive and policy decision-
making process – disclosure might impair
diplomatic & economic relations with People’s
Republic of China (Presidential Communications
Privilege and Executive Privilege on matters
relating to Diplomacy or Foreign Relations)
- communications relate to a “quintessential and
non-delegable power (enter into an executive
agreement w/ other countries w/o concurrence
w/ Legislature)
- communications are received by a close advisor
of the President (operational proximity test –
petitioner is a member of the cabinet)
- no adequate showing of a compelling need that
would justify the limitation of the privilege. No
categorical explanation from respondents to
show a compelling need for the answers to the
questions, and veer more towards exercise of
legislative oversight function (Sec. 22, Art. 6)
Respondents: a claim of executive privilege does
not guard against a possible disclosure of a
crime/wrongdoing (US v Nixon – specific need for
evidence in pending criminal trial outweighs
President’s interest in confidentiality)
SC: information in this case is elicited not in a
criminal proceeding but a legislative inquiry. The
validity of exectuve privilege depends not only on
the ground invoked but also on the procedural
setting/context which the claim is made.
Respondent: the grant of executive privilege
violates constitutional provisions on the right of
the people to information on matters of public
concern (Sec. 7, Art. 3, Constitution)
SC: Petitioner made himself available to them
during the Sept. 26 hearing, questioned for 11
hours, and expressly manifested willingness to
answer more questions except the 3 covered by
executive privilege. People’s right to information
is limited by law (RA 6713, Sec. 7; RPC, Art. 229;
RA 3019, Sec. 3(k); and Rules of Court, Rule 130,
Sec. 24 (e)). The information in this case is
classified as confidential wherein there is public
interest in its confidentiality. Not every legislative
inquiry is an exercise of people’s right to
information.
b. The claim of executive privilege is properly
invoked.
The letter (Nov. 17, 2007) of Executive Secretary
Ermita satisfies the requirement for a formal
claim of executive privilege (a precise and certain
reason for preserving confidentiality). It serves as
the formal claim of privilege: “this Office is
constrained to invoke the settled doctrine of
executive privilege (Secretary v. Ermita), and the
Office of the President has advised Sec. Neri
accordingly… The information if disclosed might
impair diplomatic and economic relations with
People’s Republic of China.” The grounds were
specific enough so as not to leave respondent in
the dark on how the requested information could
be classified as privileged. Congress must not
require the executive to state the reasons for the
claim with such particularity as to compel
disclosure of information which the privilege
sought to protect – respect to a co-equal
department.
2. WON respondent Committees committed
grave abuse of discretion in issuing the
Contempt Order.
YES. 5 reasons:
- There was a legitimate claim of executive
privilege therefore the Order suffers from
constitutional infirmity
- Committees did not comply with the
requirement (Senate v. Ermita) that the
invitations should contain the “possible needed
statute which prompted the inquiry”, “the usual
indication of the subject of inquiry and the
questions relative to and in furtherance
thereof”. Compliance is imperative, both under
Sec. 21 and 22 of Art. 6 of Constitution, to
ensure rights of persons appearing and affected
by the inquiry are respected.
- It is revealed in the transcript that the
proceeding on Jan. 30, 2008 had only a minority
of the members of the Senate Blue Ribbon
Committee present during the deliberation (7
only). Sec. 18 of the Rules of Procedure
Governing Inquiries in Aid of Legislation
provides that a vote of majority of its members
may punish any witness for contempt. Members
who did not actually participate in the
deliberation were made to sign the contempt
Order, and its validity is doubted. Sen. Pimentel
insisted that the quorum of the committee was
only 2 and that the will of the lead committee
prevails over all the other.
- The Court finds merit in the argument of the
OSG that respondent violated Sec. 21, Art. 6 of
the Constitution requiring that the inquiry be in
accordance with the “duly published rules of
procedure”, which the respondents failed to
meet therefore its hearings were procedurally
infirm.
- Respondents’ issuance of the contempt Order
were arbitrary and precipitate because it did not
pass upon the claim of executive privilege and
inform the petitioner of their ruling, curtly
dismissed his explanation as unsatisfactory and
simultaneously issued the Order. Petitioner was
not an unwilling witness and manifested his
willingness to testify. Respondents denied him
due process of law.
Court was also accused of attempting to abandon
its constitutional duty when it required parties to
consider a proposal that would lead to a possible
compromise  it was only to test a tool that other
jurisdictions find to be effective in settling similar
cases to avoid a piecemeal consideration of the
questions for review. Much of this spirit of
compromise is reflected in the generality of
language foundi n the Constitution (US v.
American Tel. & Tel Co.).
Judgment: Petition Granted. Contempt Order
Nullified.
Dissent: Puno, J.
- The principle of separation of powers is not
absolute –a hermetic sealing off of the 3
branches of government from one another
would preclude the establishment of a nation
capable of governing itself effectively.
- System of checks and balances – the power of
congressional oversight – to enhance its
understanding of and influence over
implementation of legislation it has enacted 
review/investigation of executive branch action
by legislature’s corollary power of investigation.
Standard justification: presumed need for
new/remedial legislation (investigations in aid of
legislation)
- Legislative power of investigation includes
power of contempt or process to enforce
(Arnault v. Nazareno) – incidental to/implied in
legislative function –cannot legislate
wisely/effectively in the absence of information
respecting the conditions which the legislation is
intended to affect/change
- 2 requirements for the valid exercise of power
of investigation and contempt of witness for
contumacy: existence of a legislative purpose
(in aid of legislation) and pertinency of the
question propounded.
- Validity of the claim of executive privilege
depends on the ground invoked to justify it and
the context in which it is made.
- Presidential communications are presumptively
privileged. To overcome the presumption, there
must be sufficient showing/demonstration of
specific need for the withheld information. 2
standards: evidentiary and constitutional.
- Function Impairment Test – the Court weighs
how the disclosure of the withheld information
would impair the President’s ability to perform
his constitutional duties more than
nondisclosure would impair other branch’s
ability to perform its constitutional functions.
- The SC cannot assess the validity of the claim of
the Executive Secretary because paucity of
explanation on on how diplomatic secrets will be
exposed at the expense of our national interest
if petitioner answers disputed questions. SC
cannot determine whether there is reasonable
danger if petitioner answers – Court cannot
engage in guesswork.
- It is self-evident that the assailed questions are
pertinent to the subject matter of legislative
investigation and have direct relation to the
subject and pending Senate bills.
- Petitioner: respondents were seeking to
establish the culpability of the President or the
anomalies in the NBN-ZTE Contract. SC: motive
of the Senate Committees in conducting their
investigation is beyond the purview of the
Court’s power of judicial review – questions are
pertinent and there is no effective substitute for
the information sought.
- Senate Rules of Procedure Governing Inquiries
in Aid of Legislation is assailed as invalid for
failure to be republished – not a continuing body
– membership changes every 3 years (election)
 Senators have traditionally considered the
Senate as a continuing body despite the change
of part of its membership after an election –
does not cease its labor, Committees continue
their work. By tradition, custom and practice,
the Senate does not republish its rules
especially when the same has not undergone
any material change. Existing rules which have
already undergone publication should be
deemed adopted and continued regardless of
election of new members. Internal rules –
respect for co-equal branch.
- Respondent Senate Committees have good
reasons in citing Neri for contempt for failing to
appear on Nov. 20 hearing. There is no basis for
petitioner and Executive Secretary to assume
that petitioner’s further testimony will be limited
only ton the 3 disputed questions.