NERI VS.

SENATE COMMITTEE
MARCH 28, 2013 ~ VBDIAZ
ROMULO L. NERI, petitioner vs. SENATE COMMITTEE ON ACCOUNTABILITY OF
PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND
COMMERCE,

AND

SENATE

COMMITTEE

ON

NATIONAL

DEFENSE

AND

SECURITY
G.R. No. 180643, March 25, 2008
FACTS: On April 21, 2007, the Department of Transportation and Communication
(DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE)
for the supply of equipment and services for the National Broadband Network (NBN)
Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The
Project

was

to

be

financed

by

the

Peoples

Republic

of

China.

The Senate passed various resolutions relative to the NBN deal. In the September 18,
2007 hearing Jose de Venecia III testified that several high executive officials and power
brokers were using their influence to push the approval of the NBN Project by the
NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He
appeared in one hearing wherein he was interrogated for 11 hrs and during which he
admitted that Abalos of COMELEC tried to bribe him with P200M in exchange for his
approval of the NBN project. He further narrated that he informed President Arroyo
about the bribery attempt and that she instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN Project, petitioner
refused to answer, invoking executive privilege. In particular, he refused to answer the
questions
(a)
(b)
(c)

whether
whether
whether

on:
or

not
or

President
not

or

she
not

Arroyo

followed

directed

him

she

directed

up
to

the

NBN

prioritize
him

to

Project,
it,

and

approve.

He later refused to attend the other hearings and Ermita sent a letter to the senate
averring that the communications between GMA and Neri are privileged and that the
jurisprudence laid down in Senate vs Ermita be applied. He was cited in contempt of

respondent committees and an order for his arrest and detention until such time that he
would appear and give his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions covered by executive
privilege?
HELD:
The communications are covered by executive privilege
The revocation of EO 464 (advised executive officials and employees to follow and
abide by the Constitution, existing laws and jurisprudence, including, among others, the
case of Senate v. Ermita when they are invited to legislative inquiries in aid of
legislation.), does not in any way diminish the concept of executive privilege. This is
because this concept has Constitutional underpinnings.
The claim of executive privilege is highly recognized in cases where the subject of
inquiry relates to a power textually committed by the Constitution to the President, such
as the area of military and foreign relations. Under our Constitution, the President is the
repository of the commander-in-chief, appointing, pardoning, and diplomatic powers.
Consistent with the doctrine of separation of powers, the information relating to these
powers

may

enjoy

greater

confidentiality

than

others.

Several jurisprudence cited provide the elements of presidential communications

privilege:
1) The protected communication must relate to a quintessential and non-delegable
presidential

power.

2) The communication must be authored or solicited and received by a close advisor

of the President or the President himself. The judicial test is that an advisor must be in
operational proximity with the President.
3) The presidential communications privilege remains a qualified privilege that may be
overcome by a showing of adequate need, such that the information sought likely

contains important evidence and by the unavailability of the information elsewhere by

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

The right to public information, like any other right, is subject to limitation. Section 7 of
Article

III

provides:

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
GARCILLANO vs. THE HOUSE OF REPRESENTATIVES, et.al G.R. No. 170338
December 23, 2008
Facts:
Tapes ostensibly containing a wiretapped conversation purportedly between the
President of the Philippines and a high-ranking official of the Commission on Elections
(COMELEC) surfaced. The tapes, notoriously referred to as the "Hello Garci" tapes,
allegedly contained the Presidents instructions to COMELEC Commissioner Virgilio
Garcillano to manipulate in her favor results of the 2004 presidential elections. These
recordings were to become the subject of heated legislative hearings conducted
separately by committees of both Houses of Congress.

Intervenor Sagge alleges violation of his right to due process considering that he is
summoned to attend the Senate hearings without being apprised not only of his rights
therein through the publication of the Senate Rules of Procedure Governing Inquiries in
Aid of Legislation, but also of the intended legislation which underpins the investigation.
He further intervenes as a taxpayer bewailing the useless and wasteful expenditure of
public funds involved in the conduct of the questioned hearings.

The respondents in G.R. No. 179275 admit in their pleadings and even on oral
argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
had been published in newspapers of general circulation only in 1995 and in 2006. With
respect to the present Senate of the 14 th Congress, however, of which the term of half of
its members commenced on June 30, 2007, no effort was undertaken for the publication
of these rules when they first opened their session.

Respondents justify their non-observance of the constitutionally mandated publication

by arguing that the rules have never been amended since 1995 and, despite that, they
are published in booklet form available to anyone for free, and accessible to the public
at the Senates internet web page.

Issue:

Whether or not publication of the Rules of Procedures Governing Inquiries in Aid of

Legislation through the Senates website, satisfies the due process requirement of law.

Held:

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 Taada 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 Taada is mandatory to comply
with the due process requirement because the Rules of Procedure put a persons liberty
at risk. A person who violates the Rules of Procedure could be arrested and detained by
the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792, otherwise known
as the Electronic Commerce Act of 2000, to support their claim of valid publication
through the internet is all the more incorrect. R.A. 8792 considers an electronic data
message or an electronic document as the functional equivalent of a written document
only for evidentiary purposes. In other words, the law merely recognizes the
admissibility in evidence (for their being the original) of electronic data messages and/or
electronic documents. It does not make the internet a medium for publishing laws, rules
and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its unpublished rules in the legislative inquiry subject of
these consolidated cases. The conduct of inquiries in aid of legislation by the Senate
has to be deferred until it shall have caused the publication of the rules, because it can
do so only "in accordance with its duly published rules of procedure."

Senate vs. Ermita , GR 169777, April 20, 2006

Senate
vs.
Ermita
,
GR

169777,

April

20,

2006

FACTS:
This is a petition for certiorari and prohibition proffer that the President has abused
power by issuing E.O. 464 Ensuring Observance of the Principles of Separation of
Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the
Constitution, and for Other Purposes. Petitioners pray for its declaration as null and
void
for
being
unconstitutional.
In the exercise of its legislative power, the Senate of the Philippines, through its various
Senate Committees, conducts inquiries or investigations in aid of legislation which call
for, inter alia, the attendance of officials and employees of the executive department,
bureaus, and offices including those employed in Government Owned and Controlled
Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National
Police
(PNP).
The Committee of the Senate issued invitations to various officials of the Executive
Department for them to appear as resource speakers in a public hearing on the railway
project, others on the issues of massive election fraud in the Philippine elections, wire
tapping, and the role of military in the so-called Gloriagate Scandal.
Said officials were not able to attend due to lack of consent from the President as
provided by E.O. 464, Section 3 which requires all the public officials enumerated in
Section 2(b) to secure the consent of the President prior to appearing before either
house
of
Congress.
ISSUE:
Is Section 3 of E.O. 464, which requires all the public officials, enumerated in Section
2(b) to secure the consent of the President prior to appearing before either house of
Congress,
valid
and
constitutional?
RULING:
No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered by the
executive privilege. The doctrine of executive privilege is premised on the fact that
certain information must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to
disclose information, in this case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing that obligation in a particular
case.
Congress undoubtedly has a right to information from the executive branch whenever it
is sought in aid of legislation. If the executive branch withholds such information on the
ground that it is privileged, it must so assert it and state the reason therefor and why it

must
be
respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to do so
and/or proffering its reasons therefor. By the mere expedient of invoking said provisions,
the power of Congress to conduct inquiries in aid of legislation is frustrated.
In the Matter of the Petition for Issuance of Writ of Habeas Corpus of CAMILO L. SABIO
v.
HON. SENATOR RICHARD J. GORDON, et al.
G.R. No. 174340 17 October 2006,
Sandoval-Gutierrez, J. (En Banc)

[Congress Power of Inquiry]

FACTS:
Pursuant to Senate Resolution No. 455, Senator Gordon requested PCGG
Chairman Sabio and his Commissioners to appear as resource persons in the public
meeting jointly conducted by the Committee on Government Corporations and Public
Enterprises and Committee on Public Services.
Chairman Sabio declined the invitation because of prior commitment, and at the same
time invoked Section 4(b) of EO No. 1: No member or staff of the Commission shall
be required to testify or produce evidence in any judicial, legislative or
administrative proceeding concerning matters within its official cognizance.
ISSUE:
Whether or not Section 4(b) of E.O. No.1 limits power of legislative inquiry by exempting
all PCGG members or staff from testifying in any judicial, legislative or administrative
proceeding.
RULING:
No. Article VI, Section 21 of the 1987 Constitution grants the power of inquiry not only to
the Senate and the House of Representatives, but also to any of their respective
committees. Clearly, there is a direct conferral of investigatory power to the
committees and it means that the mechanism which the Houses can take in order to
effectively perform its investigative functions are also available to the committees.
It can be said that the Congress power of inquiry has gained more solid existence and
expansive construal. The Courts high regard to such power is rendered more evident
in Senate v. Ermita, where it categorically ruled that the power of inquiry is broad
enough to cover officials of the executive branch. Verily, the Court reinforced the
doctrine in Arnault that the operation of government, being a legitimate subject
for legislation, is a proper subject for investigation and that the power of
inquiry is co-extensive with the power to legislate.

Considering these jurisprudential instructions, Section 4(b) is directly repugnant with

Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from the
Congress power of inquiry. This cannot be countenanced. Nowhere in the
Constitution is any provision granting such exemption. The Congress power of inquiry,
being broad, encompasses everything that concerns the administration of existing laws
as well as proposed or possibly needed statutes. It even extends to government
agencies created by Congress and officers whose positions are within the power
of Congress to regulate or even abolish. PCGG belongs to this class.
A statute may be declared unconstitutional because it is not within the legislative
power to enact; or it creates or establishes methods or forms that infringe constitutional
principles; or its purpose or effect violates the Constitution or its basic principles.

Moreover, Sec. 4(b) of E.O. No. 1 has been repealed by the Constitution because it is
inconsistent with the constitutional provisions on the Congress power of inquiry (Art. VI,
Sec. 21), the principle of public accountability (Art. XI, Sec. 1), the policy of full
disclosure (Art. II, Sec. 28), and the right of access to public information (Art. III, Sec.
7).

Certainly, a mere provision of law cannot pose a limitation to the broad power of
Congress, in the absence of any constitutional basis.