Neri vs.

Senate
G.R. No. 180643

Executive Privilege

Petitioner: Romulo L. Neri

Respondents: Senate Committee on Accountability of Public Officers and Investigations, Senate
Committee on Trade and Commerce, and Senate Committee on National Defense and Security

Facts:
 Petitioner Romulo Neri, then Director General of (NEDA), was invited by the
respondent Senate Committees to attend their joint investigation on the alleged
anomalies in the National Broadband Network (NBN) Project.
 This project was contracted by the Philippine Government with the Chinese firm Zhong
Xing Telecommunications Equipment (ZTE), which involved the amount of
US$329,481,290. When Romulo Neri testified before the Senate Committees, he
disclosed that then Commission on Elections Chairman Benjamin Abalos, brokering for
ZTE, offered him P200 million in exchange for his approval of the NBN Project.
 Romulo Neri further narrated that he informed President Gloria Macapagal-Arroyo about
the bribery attempt and that she instructed him not to accept the bribe.
 When they further discussed about the NBN Project, petitioner refused to answer,
invoking “executive privilege.”
o In particular, he refused to answer the questions on 
 1.) whether or not the President followed up the NBN Project,
 2.) whether or not she directed him to prioritize it, and
 3.) whether or not she directed him to approve it.
 The respondent issued a Subpoena Ad Testificandum to petitioner, requiring him to
appear and testify on 20 November 2007.
 Executive Secretary Eduardo Ermita sent a letter dated 15 November to the Committees
requesting them to dispense with Neri’s testimony on the ground of executive privilege.
 Ermita invoked the privilege on the ground that “the information sought to be disclosed
might impair our diplomatic as well as economic relations with the People’s Republic of
China,” and given the confidential nature in which these information were conveyed to
the President, Neri “cannot provide the Committee any further details of these
conversations, without disclosing the very thing the privilege is designed to protect.”
Thus, on 20 November, Neri did not appear before the respondent Committees.

 On 22 November, respondents issued a Show Cause Letter to Neri requiring him to

show cause why he should not be cited for contempt for his failure to attend the
scheduled hearing on 20 November.
 On 29 November, Neri replied to the Show Cause Letter and explained that he did not
intend to snub the Senate hearing, and requested that if there be new matters that were
not yet taken up during his first appearance, he be informed in advance so he can
prepare himself. He added that his non-appearance was upon the order of the President,
and that his conversation with her dealt with delicate and sensitive national
security and diplomatic matters relating to the impact of the bribery scandal involving
 high government officials and the possible loss of confidence of foreign investors and
lenders in the Philippines.
 Respondents found the explanation unsatisfactory, and later on issued an Order citing
Neri in contempt and consequently ordering his arrest and detention at the Office of the
Senate Sergeant-At-Arms until he appears and gives his testimony.
 Neri filed the petition asking the Court to nullify both the Show Cause Letter and the
Contempt Order for having been issued with grave abuse of discretion amounting to lack
or excess of jurisdiction, and stressed that his refusal to answer the three questions was
anchored on a valid claim to executive privilege in accordance with the ruling in the
landmark case of Senate vs. Ermita (G.R. No. 169777, 20 April 2006).
 Senate Committees argued that they did not exceed their authority in issuing the
assailed orders because there is no valid justification for Neri’s claim to executive
privilege. In addition, they claimed that the refusal of petitioner to answer the three
questions violates the people’s right to public information, and that the executive is using
the concept of executive privilege as a means to conceal the criminal act of bribery in the
highest levels of government.

Issue:

Whether or not the three questions that petitioner Neri refused to answer were covered
by executive privilege, making the arrest order issued by the respondent Senate Committees
void.

Discussion:

Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the three elements
needed to be complied with in order for the claim to executive privilege to be valid.
These are:
1.) the protected communication must relate to a quintessential and non-delegable presidential
power;
2.) it must be authored, solicited, and received by a close advisor of the President or the
President himself. The judicial test is that an advisor must be in “operational proximity” with the
President;
3.) it may be overcome by a showing of adequate need, such that the information sought “likely
contains important evidence,” and by the unavailability of the information elsewhere by an
appropriate investigating authority.

In the present case, Executive Secretary Ermita claimed executive privilege on the
argument that the communications elicited by the three questions “fall under conversation and
correspondence between the President and public officials” necessary in “her executive and
policy decision-making process,” and that “the information sought to be disclosed might impair
our diplomatic as well as economic relations with the People’s Republic of China.” It is clear
then that the basis of the claim is a matter related to the quintessential and non-delegable
presidential power of diplomacy or foreign relations.
As to the second element, the communications were received by a close advisor of the
President. Under the “operational proximity” test, petitioner Neri can be considered a close
advisor, being a member of the President’s Cabinet.
 And as to the third element, there is no adequate showing of a compelling need that
would justify the limitation of the privilege and of the unavailability of the information elsewhere
by an appropriate investigating authority.
Presidential communications are presumptive privilege and that the presumption can be
overcome only by mere showing of public need by the branch seeking access to such
conversations. In the present case, respondent Committees failed to show a compelling or
critical need for the answers to the three questions in the enactment of any law under Sec. 21,
Art. VI. Instead, the questions veer more towards the exercise of the legislative oversight
function under Sec. 22, Art. VI. As ruled in Senate vs. Ermita, “the oversight function
of Congress may be facilitated by compulsory process only to the extent that it is performed in
pursuit of legislation.”
Neri’s refusal to answer based on the claim of executive privilege does not violate the
people’s right to information on matters of public concern simply because Sec. 7, Art. III of the
Constitution itself provides that this right is “subject to such limitations as may be provided by
law.”

Held:

The divided Supreme Court (voting 9-6) was convinced that the three questions are covered
by presidential communications privilege, and that this privilege has been validly claimed by the
executive department, enough to shield petitioner Neri from any arrest order the Senate may
issue against him for not answering such questions.
The petition was granted. The subject Order dated January 30, 2008, citing petitioner in
contempt of the Senate Committee and directing his arrest and detention was nullified.