read on. re-post in your blogs. explain to your friends.

Primer prepared by Atty. Carlos P. Medina, Executive Director of the Ateneo Human Rights Center

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In General: 

What is the case of Neri vs. Senate Committee?

This case is about the Senate investigation of anomalies concerning the NBN-ZTE project.  During the hearings, former NEDA head Romulo Neri refused to answer certain questions involving his conversations with President Arroyo on the ground they are covered by executive privilege.  When the Senate cited him in contempt and ordered his arrest, Neri filed a case against the Senate with the Supreme Court.  On March 25, 2008, the Supreme Court ruled in favor of Neri and upheld the claim of executive privilege. 

What is “executive privilege”?

It is the right of the President and high-level executive branch officials to withhold information from Congress, the courts and the public.  It is a privilege of confidentiality which applies to certain types of information of a sensitive character that would be against the public interest to disclose.  Executive privilege is based on the constitution because it relates to the President’s effective discharge of executive powers.  Its ultimate end is to promote public interest and no other.

Is executive privilege absolute?

No.  Any claim of executive privilege must be weighed against other interests recognized by the constitution, like the state policy of full public disclosure of all transactions involving public interest, the right of the people to information on matters of public concern, the accountability of public officers, the power of legislative inquiry, and the judicial power to secure evidence in deciding cases.

Did the revocation by the President of E.O. 464 on March 6, 2008 diminish the concept of executive privilege?

No.  Executive privilege may still be invoked despite the President’s revocation of E.O. 464 because it is based on the constitution. 

On the Contents of the Supreme Court Decision: 

What events led to the filing of the case before the Supreme Court?

On April 21, 2007, the DOTC and Zhing  Xing Telecommunications Equipment (ZTE), a corporation owned by the People’s Republic of China, executed a “Contract for the Supply of Equipment and Services for the National Broadband Network Project” (NBN-ZTE Contract) worth US$329,481,290.00 (around PhP 16B).  The project sought to provide landline, cellular and internet services in government offices nationwide and was to be financed through a loan by China to the Philippines.  President Arroyo witnessed the contract signing in China. 

After its signing, reports of anomalies concerning the project (e.g., bribery, “overpricing” by US$ 130M, “kickback commissions” involving top government officials, and loss of the contract) prompted the Senate, through the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce, and National Defense and Security,  to conduct an inquiry in aid of legislation.  The inquiry was based on a number of Senate resolutions and in connection with pending bills concerning funding in the procurement of government projects, contracting of loans as development assistance,  and Senate concurrence to executive agreements. 

In one of the hearings held on Sept. 26, 2007, former NEDA Director General Romulo Neri testified that President Arroyo initially gave instructions for the project to be undertaken on a Build-Operate-Transfer (BOT) arrangement so the government would not spend money for it, but eventually the project was awarded to ZTE with a government-to-government loan from China.  He also said that then COMELEC Chairman Benjamin Abalos, the alleged broker in the project, offered him PhP 200M in exchange for NEDA’s approval of the project.  Neri testified that when he told President Arroyo of the bribe offer, she told him not to accept it. But Neri refused to answer questions about what he and the President discussed after that, invoking executive privilege since they concerned his conversations with the President.  The Senate required him to appear again and testify on November 20, 2007.  On November 15, 2007, Executive Secretary Eduardo Ermita wrote the Senate Committees and asked that Neri’s testimony on November 20, 2007 be dispensed with because he was invoking executive privilege “by Order of the President” specifically on the following questions: 

a.       Whether the President followed up on the NBN project?

b.      Were you dictated to prioritize the ZTE?

c.       Whether the President said to go ahead and approve the project after being told about the alleged bribe?

When Neri failed to appear on November 20, 2007, the Senate required him to show cause why he should not be cited in contempt.  Neri explained that he thought the only remaining questions were those he claimed to be covered by executive privilege and that should there be new matters to be taken up, he asked that he be informed in advance of what else he needs to clarify so he could prepare himself. 

On Dec. 7, 2007, Neri questioned the validity of the Senate’s show cause order before the Supreme Court.  On January 30, 2008, the Senate cited Neri in contempt and ordered his arrest for his failure to appear in the Senate hearings. On February 1, 2008, Neri asked the Supreme Court to stop the Senate from implementing its contempt order, which the Court granted on Feb. 5, 2008.  The Supreme Court also required the parties to observe the status quo prevailing before the issuance of the contempt order.   

What reasons were given for the claim of executive privilege?

Executive Secretary Ermita said that “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’s Republic of China.”  Neri further added that his “conversations with the President 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.”

What issues were considered by the Supreme Court in resolving the case? 

The Supreme Court said there were two crucial questions at the core of the controversy: 

1. Are the communications sought to be elicited by the three questions covered by executive privilege?
2. Did the Senate Committees commit grave abuse of discretion in citing Neri in contempt and ordering his arrest?

How did the Supreme Court resolve these issues?

The Supreme Court first recognized the power of Congress to conduct inquiries in aid of legislation.  The Court said that the power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege. 

On the first question, the Supreme Court said that the communications sought to be elicited by the three questions are covered by the presidential communications privilege, which is one type of executive privilege.  Hence, the Senate cannot compel Neri to answer the three questions. 

On the second question, the Supreme Court said that the Senate Committees committed grave abuse of discretion in citing Neri in contempt.  Hence, the Senate order citing Neri in contempt and ordering his arrest was not valid.     

What are the types of executive privilege?

1. state secrets (regarding military, diplomatic and other security matters)
2. identity of government informers
3. information related to pending investigations
4. presidential communications
5. deliberative process

In what cases is the claim of executive privilege highly recognized?

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 commander-in-chief, appointing, pardoning, and diplomatic powers of the President.  Information relating to these powers may enjoy greater confidentiality than others.      

What specifically are the executive privileges relating to deliberations or communications of the President and other government officials?

These are the presidential communications privilege and the deliberative process privilege.

How are the presidential communications privilege and the deliberative process privilege distinguished?

The presidential communications privilege applies to decision-making of the President.  It pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential”.

The deliberative process privilege applies to decision-making of executive officials.  It includes “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.

Moreover, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. 

What is the type of executive privilege claimed in this case? 

The type of executive privilege claimed in this case is the presidential communications privilege. 

Is there a presumption in favor of presidential communications?

Yes.  Presidential communications are “presumptively privileged”.  The presumption is based on the President’s generalized interest in confidentiality.  The privilege is necessary to guarantee the candor of presidential advisors and to provide the President and those who assist him with freedom 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 presumption can be overcome only by mere showing of public need by the branch seeking access to presidential communications.

Who are covered by the presidential communications privilege?

Aside from the President, the presidential communications privilege covers senior presidential advisors or Malacanang staff who have “operational proximity” to direct presidential decision-making. 

What are the elements of the presidential communications privilege?

The following are the elements of the 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 advisor must be in “operational proximity” with the President.
3. The privilege is a qualified privilege that may be overcome by a showing of adequate or compelling need that would justify the limitation of the privilege and that the information sought is unavailable elsewhere by an appropriate investigating agency.  

What are examples of “quintessential and non-delegable presidential powers” which are covered by the presidential communications privilege?

The privilege covers only those functions which form the core of presidential authority.  These are functions which involve “quintessential and non-delegable presidential powers” such as the powers of the president as commander-in-chief (i.e., to call out the armed forces to suppress violence, to declare martial law, or to suspend the privilege of the writ of habeas corpus), the power to appoint officials and remove them, the power to grant pardons and reprieves, the power to receive ambassadors, and the power to negotiate treaties and to enter into execute agreements. 

Are the elements of the presidential communications privilege present in this case?

Yes.  The communications elicited by the three questions are covered by the presidential communications privilege because: 

1. First, the communications relate to the power of the President to enter into an executive agreement with other countries.
2. Second, the communications are received by Neri, who as a Cabinet member can be considered a close advisor of the President. 
3. Third, the Senate Committees have not adequately shown a compelling need for the answers to the three questions in the enactment of a law and of the unavailability of the information elsewhere by an appropriate investigating authority.

Does the grant of the claim of executive privilege violate the right of the people to information on matters of public concern?

No, for the following reasons: 

1. Neri appeared before the Senate on Sept. 26, 2007 and was questioned for 11 hours.  He also expressed his willingness to answer more questions from the Senators, except the three questions. 
2. The right to information is subject to limitation, such as executive privilege.
3. The right of Congress to obtain information in aid of legislation cannot be equated with the people’s right to information.  Congress cannot claim that every legislative inquiry is an exercise of the people’s right to information.

Was the claim of executive privilege properly invoked by the President in this case?

Yes.  For the claim to be properly  invoked, there must be a formal claim by the President stating the “precise and certain reason” for preserving confidentiality.  The grounds relied upon by Executive Secretary Ermita are specific enough, since what is required is only that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.”  The particular ground must only be specified, and the following statement of grounds by Executive Secretary Ermita satisfies the requirement:  “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’s Republic of China.”

What reasons were given by the Supreme Court in holding that it was wrong for the Senate to cite Neri in contempt and order his arrest?

1. There was a legitimate claim of executive privilege.
2. The Senate’s invitations to Neri did not include the possible needed statute which prompted the  inquiry, the subject of inquiry, and the questions to be asked.
3. The contempt order lacked the required number of votes.
4. The Senate’s rules of procedure on inquiries in aid of legislation were not duly published.
5. The contempt order is arbitrary and precipitate because the Senate did not first rule on the claim of executive privilege and instead dismissed Neri’s explanation as unsatisfactory. 

Implications of the Supreme Court Decision: 

Who has the burden of showing whether or not a claim of executive privilege is valid?

Executive privilege is in derogation of the search for truth.  However, the decision recognized Presidential communications as presumptively privileged.  Hence, the party seeking disclosure of the information has the burden of overcoming the presumption in favor of the confidentiality of Presidential communications.  

This presumption is inconsistent with the Court’s earlier statement in Senate vs. Ermita (April 20, 2006) that “the presumption inclines heavily against executive secrecy and in favor of disclosure”.   It is also inconsistent with constitutional  provisions on transparency in governance and accountability of public officers, and the right of the people to information on matters of public concern.  

Does the decision expand the coverage of executive privilege?

Yes, the decision expands the coverage of executive privilege in at least two ways:    

1. The decision explained that the presidential communications privilege covers communications authored or “solicited and received” by a close advisor of the President or the President himself. This means that the privilege applies not only to communications that directly involve the President, but also to communications involving the President’s close advisors, i.e., those in “operational proximity” with the President.  There is no definition of “operational proximity”, so it is not clear how far down the chain of command the privilege extends. This expansion of the coverage of the privilege means that information in many areas of the executive branch will become “sequestered” from public view. 

2. The decision also stated that the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.  This means that the privilege protects not only the deliberative or advice portions of documents, i.e., communications made in the process of arriving at presidential decisions, but also factual material or information concerning decisions already reached by the President. 

How will the decision affect other investigations?

The decision makes it easy for the President to invoke executive privilege, since what is required is only that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” This in effect will  enable the use of executive privilege to hide misconduct or crime. According to Fr. Bernas, S.J., the implication of the ruling is that once the “presidential communications privilege” is invoked, no evidence is needed to support it even if there are valid reasons for disclosing the information sought. “This would revolutionize the doctrine in a manner that can affect all other investigations.  This can, for instance, hamper effective use of the … writ of amparo and writ of habeas data.  It can also cripple efforts to battle official corruption ….”

In particular, what is the effect of the decision on the Senate’s power to conduct inquiries in aid of legislation?

The decision severely limits the Senate’s power of legislative inquiry and its ability to investigate government anomalies in aid of legislation.  The decision encroaches upon matters internal to the Senate as an institution separate from and co-equal to other branches of government. 

The decision, for instance, requires the Senate to give its questions in advance of its hearings.  But this is a requirement applicable only to the question hour and not to inquiries in aid of legislation.  Moreover, it is impractical, since follow-up questions of Senators will be difficult to anticipate.

The decision also requires the Senate to publish its rules of procedure on legislative inquiries every three years.  But the Senate  traditionally considered as a continuing body.  Senate committees continue to work even during senatorial elections.   By tradition and practice, the Senate does not re-publish its rules.  To require publication of its rules every three years is unnecessary and inconsistent with its tradition and practice. 

Did the Supreme Court ruling establish a doctrine on executive privilege?

No.  Although the vote is 9 – 6 in favor of upholding the claim of executive privilege, two of the nine Justices concurred merely in the result, while one Justice argued not on the basis of executive privilege.  Hence, only six out of the nine Justices explained their votes in favor of the claim  of executive privilege.  Six out of a total of 15 Justices do not establish a doctrine. 

Can the Senate continue with its investigations despite the Supreme Court ruling?

The decision does not stop the Senate from continuing with its investigations and from undertaking other inquiries, although the government has already declared that officials will not appear unless the Senate rules are first published. Should Neri (and other officials) appear, the Senate can ask him questions other than the three questions.  But Neri may again invoke executive privilege on other questions, which could result in another case before the Supreme Court, and the cycle may be repeated again and again. Such a situation, particularly where there appears to be a pattern of concealment in government activities,  will ultimately be harmful to public interest.   

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Sounding Board
A dangerously crippling decision

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:30:00 03/31/2008

MANILA, Philippines - Without resorting to the language of Governor Salceda, indeed it can be said that the President is the luckiest woman. The Court could have decided that Romulo Neri should answer the three questions pregnant with cloudy foreboding: (a) Whether the President followed up the NBN project; (b) Whether the President directed him to prioritize the ZTE; (c) Whether the President said to go ahead and approve the project after being told about the alleged bribe.

But the Court placed all three questions under executive privilege, and nothing derogatory to the woman, if there was any, as many thought, could come out.

The interest of this piece, however, is not about derogatory imputations but about the scope of executive privilege. Executive privilege, as almost everyone knows by now, is the prerogative of the President to withhold certain types of information from Congress, from the courts and from the public. It is a constitutional right of the President which she alone can claim, but she might also direct the executive secretary to claim it.

Thus, Secretary Ermita, presumably by authority of the President, wrote to the Senate: “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’s Republic of China. Given the confidential nature in which these information were conveyed to the President, he [Neri] cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.” Neri also added (also by authority of the President?) that his answers might endanger national security.

The type of executive privilege claimed here is “presidential communication privilege.” Presidential communication is presumptively privileged; but the presumption is subject to rebuttal. Thus, whoever challenges it must show good and valid reasons related to the public welfare.

What reason did the Senate have? Recall that this was in the course of a legislative investigation occasioned by, among others, pending bills about foreign loans. The topic of foreign loans is special. It is not the sole domain of the President. Under our Constitution foreign loans may be incurred by the President but only with the prior consent of the Monetary Board and in accordance with laws passed by Congress. Hence the Senate had very good reason for finding out how the ZTE-NBN loans were handled and how the very unique experience under it which had attracted national interest could contribute to legislation.

When the claim of privilege is disputed by Congress, how and by whom is the dispute to be resolved? US decisions, strewn all over Justice Leonardo-De Castro’s ponencia, say that it is the Court that decides whether the claim of privilege has foundation.

That was the reason why the Court called for the oral argument on the subject. The Court wanted to find out, without compelling Neri to reveal legitimate secrets, how Neri’s answer might affect diplomatic relations and national security. As Chief Justice Puno observed, “The Court cannot engage in guesswork in resolving this important issue.”

Neri was not at the oral argument to explain. When his lawyer was asked to explain, Neri’s lawyer was clueless. His answer, repeated like a mantra, was “I cannot fathom.”

One might also add that, if there was any possible cause for impairment of diplomatic relations with China, one such possible cause would have been the cancellation of the contract. But no diplomatic problem arose from the cancellation.

The Court could have asked for an in camera session for Neri to explain his claim within the hearing of the Court alone. Such a procedure, followed by American practice, could have enabled the Court to sift what was privileged and what was not and then to allow the revelation of what was not privileged. But the Court did not use the procedure, probably because it was already obvious from the oral argument that the claim of privilege could not be sustained. It was, to paraphrase Neri’s lawyer, unfathomable.

But, lo and behold, the ponencia ruled that the matter was covered by executive privilege. Was it fathomed by guesswork, as Puno suggested? That is the way it looks to me.

The implication of this ponencia that shows no effort to look into the underlying substance of the claimed privilege is that once the claim of “presidential communication privilege” is claimed, no evidence is needed to support it even if there are legitimate reasons calling for disclosure. This would revolutionize the doctrine on executive privilege in a manner that can affect all other investigations. This can, for instance, hamper effective use of the recently promulgated writ of amparo and writ of habeas data. It can also cripple efforts to battle official corruption, which is a world-recognized specialty of the Philippines.

But did the Neri decision establish this paralyzing and stifling doctrine? We need to count heads. Two of the nine Justices concurred merely in the result without bothering to explain their concurrence. One Justice chose not to argue from executive privilege. That leaves six of the nine. Six out of 15 do not establish a doctrine, especially since the six concurring opinions might just as well have been unwritten.

The case clearly calls for a reconsideration to give the Court a chance to clarify what doctrine of executive privilege it really wishes to establish. Does the Court want to sublimate guesswork?

such a downer...

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SC: Neri can invoke executive privilege

By Tetch Torres, Maila Ager
INQUIRER.net
First Posted 15:23:00 03/25/2008

MANILA, Philippines -- Commission on Higher Education chairman Romulo Neri can invoke executive privilege and cannot be compelled to attend the Senate’s inquiry into the scandal-tainted national broadband network (NBN) deal, the Supreme Court has ruled.

Malacañang immediately welcomed the decision.

“We respect the decision of the Supreme Court,” Press Secretary Ignacio Bunye said in a statement.

“We hope that that, looking forward, the Senate and the executive can work out mutually acceptable rules on appearances in Senate inquiries in aid of legislation, which will guarantee the rights of resource persons and parties affected by congressional hearings, as stipulated by the Constitution,” he said.

Neri, in his petition and supplemental petition, said his absence from the November 20, 2007 hearing of the Senate inquiry, for which an order for his arrest was issued, was duly answered by Executive Secretary Eduardo Ermita, who invoked executive privilege for the then socioeconomic planning secretary “by order of the president.”

Neri said Malacañang was concerned about “the impact of the bribery scandal involving high government officials on the country’s diplomatic relations and economic and military affairs, and the possible loss of confidence of foreign investors and lenders in the Philippines.”

Neri had earlier appeared before the Senate to say former Commission on Elections commissioner Benjamin Abalos Sr. had allegedly offered him a bribe to endorse the NBN project, which was awarded to China’s ZTE Corp. for $329-million.

The contract was cancelled by President Gloria Macapagal-Arroyo soon after the Senate opened its inquiry into allegations the deal was tainted by kickbacks and overpricing, to which her husband, Jose Miguel, was also implicated.

During subsequent hearings, a witness claimed Arroyo herself had profited from the alleged kickbacks