G.R. No.

180643
March 25, 2008
En Banc: LEONARDO-DE CASTRO, J.:
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,
respondents
Case:
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 hours 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 on:
A. Whether or not President Arroyo followed up the NBN Project,
B. Whether or not she directed him to prioritize it, and
C. Whether or not she directed him to 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.

Issues:
1. Whether or not there was a recognized presumptive presidential
communication privilege in our legal system?
2. Whether or not there was factual or legal basis to hold that the
communication elicited by the 3 questions were covered by
executive privilege?
3. Whether or not the Committees have shown that the
communication elicited by the 3 questions were critical to the
exercise of their functions?
4. Whether the Committees committed grave abuse of discretion in
issuing the contempt order?
Held:
1. Yes.
In Almonte vs. Vasquez, the Court affirmed that the presidential
communication privilege is fundamental to the operation of
government and inextricably rooted in the separation of powers
under the Constitution.
The Court articulated that there are certain types of information
which the government may withhold from the public, that there is
governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national
security matters; and that the right to information does not
extend to matters recognized as privileged information under the
separation of powers, by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door
Cabinet meetings.
2. Yes.
The committees contend that the power to secure a foreign loan
does not relate to a quintessential and non-delegable presidential
power, because the Constitution does not vest it in the President
alone, but also in the Monetary Board. Quintessential is defined as
the most perfect embodiment of something, the concentrated
essence of substance. Non-delegable means that a power or duty
cannot be delegated to another or, even if delegated, the
responsibility remains with the obligor.

The power to enter into an executive agreement is in essence an

executive power and the final decision in the exercise of the said
executive power is still lodged in the Office of the President even
when it has to secure the prior concurrence of the Monetary Board
because it is only a form of check and balance.
The committees contend that the application of the doctrine of
operational proximity for the reason that it may be misconstrued
to expand the scope of the presidential communications privilege to
communications between those who are operationally proximate
to the President by who may have no direct communications with
her. In the case at bar, the danger is absent because the official
involved here is a member of the Cabinet, thus, properly within the
term advisor of the President; in fact, her alter ego and a member
of her official family.
The committees contend that the Court erred in upholding the
Presidents invocation, through Exec. Sec., of executive privilege
because between Committees specific and demonstrated need and
the Presidents generalized interest in confidentiality, there is a
need to strike the balance in favor of the former. It must be stressed
that the Presidents claim of executive privilege is not merely
founded on her generalized interest in confidentiality. The letter
dated Nov. 15 of Exec. Sec. Ermita specified presidential
communications privilege in relation to diplomatic and economic
relation with another sovereign nation as the basis for the claim.
The privileged character of diplomatic negotiations has been
recognized in this jurisdiction that information on inter-government
exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of
national interest. In the balancing of interest, the Court disregarded
the provisions of the 1987 Constitution on government
transparency, accountability, and disclosure of information
The constitutional provisions cited by the committees do not
espouse an absolute right to information. It must be emphasized
that the assailed decision did not enjoin the committees from
inquiring into the NBN Project. All that is expected from them is to
respect matters that are covered by executive privilege.
3. No.
The committees contend that the information elicited by the 3
questions are necessary in the discharge of their legislative
function, among them:
a. To consider the 3 pending Senate bills, there is simply a
generalized assertion that the information is pertinent to the

exercise of the power to legislate and a broad and non-specific

reference to pending Senate Bills and it is further expressed
by the counsel of Committees that even without Neri
answering the 3 questions, the Senate can still come up with
legislations.
b. To curb graft and corruption, the potential culpability of high
government officials in a given government transaction is not a
task for the Senate to perform. The role of the Legislature is to
make laws, not to determine anyones guilt of a crime or
wrongdoing.
4. Yes.
The committees contended that the ruling in Senate v. Ermita,
requiring invitations or subpoenas to 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 is not provided for by the Constitution
and is merely an obiter dictum. An unconstrained congressional
investigative power, like an unchecked Executive, generates its own
abuses.
The requirements set forth in Senate v. Ermita are modest
mechanisms that would not unduly limit Congress power. Witnesses
should be adequately informed what matters are to be covered by
the inquiry. It will allow them to prepare the pertinent information
and documents.
The language of Section 21 Article. 6 of the Constitution requiring
that the inquiry be conducted in accordance with the duly published
rules of procedure are categorical. It should likewise be stressed that
not all orders issued or proceedings conducted pursuant to the
subject rules are null and void. Only those that result in violation of
the rights of witnesses should be considered null and void,
considering that the rationale for the publication is to protect the
rights of witnesses as expresses in Section 21 Article 6 of the
Constitution.