Neri vs.

Senate Committee on Accountability of Public Officers and Investigations

September 4, 2008

FACTS:
On September 26, 2007, petitioner appeared before respondent Committees and
testified for about eleven (11) hours on matters concerning the National Broadband
Project (the "NBN Project"), a project awarded by the Department of Transportation and
Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE").
Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman
Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN
Project. He further narrated that he informed President Gloria Macapagal Arroyo
("President Arroyo") of the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on President Arroyo and petitioners discussions
relating to the NBN Project, petitioner refused to answer, invoking "executive privilege."
To be specific, petitioner refused to answer 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 it.
Respondent Committees persisted in knowing petitioners answers to these three
questions by requiring him to appear and testify once more on November 20, 2007.
Petitioner did not appear before respondent Committees upon orders of the President
invoking executive privilege.
The respondent Committees issued the show-cause letter requiring him to explain
why he should not be cited in contempt. Respondent Committees found petitioners
explanations unsatisfactory in his reply. Without responding to petitioners request for
advance notice of the matters that he should still clarify, respondent issued the Order,
citing petitioner in contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-at-Arms until such time that he would
appear and give his testimony.
Petitioner moved for the reconsideration of the Order and then filed his
Supplemental Petition for Certiorari. The Court granted his petition for certiorari.
Respondent Committees filed the present motion for reconsideration.

ISSUE: Whether or not the Legislative Branch can assert their power to conduct
legislative inquiries after respondent invoked Executive Privilege

RULING:
The doctrine of executive privilege is thus premised on the fact that certain
information must, as a matter of necessity, be kept confidential in pursuit of the public
interest.

The sufficiency of the Committee's showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are critical to the performance of its
legislative functions. While fact-finding by a legislative committee is undeniably a part of
its task, legislative judgments normally depend more on the predicted consequences of
proposed legislative actions and their political acceptability, than on precise
reconstruction of past events; Congress frequently legislates on the basis of conflicting
information provided in its hearings. We see no comparable need in the legislative
process, at least not in the circumstances of this case. Indeed, whatever force there
might once have been in the Committee's argument that the subpoenaed materials are
necessary to its legislative judgments has been substantially undermined by
subsequent events.
Whatever test we may apply, the starting point in resolving the conflicting claims
between the Executive and the Legislative Branches is the recognized existence of the
presumptive presidential communications privilege.
The failure of the counsel for respondent Committees to pinpoint the specific need
for the information sought or how the withholding of the information sought will hinder
the accomplishment of their legislative purpose is very evident in the above oral
exchanges. Due to the failure of the respondent Committees to successfully discharge
this burden, the presumption in favor of confidentiality of presidential communication
stands. The implication of the said presumption, like any other, is to dispense with the
burden of proof as to whether the disclosure will significantly impair the Presidents
performance of her function. Needless to state this is assumed, by virtue of the
presumption.
The general thrust and the tenor of the three (3) questions is to trace the alleged
bribery to the Office of the President. While it may be a worthy endeavor to investigate
the potential culpability of high government officials, including the President, in a given

government transaction, it is simply 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.
Our Constitution has not bestowed upon the Legislature the latter role. Just as the
Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.
Motion for reconsideration is DISMISSED.

Note:
Anent the function to curb graft and corruption, it must be stressed that respondent
Committees need for information in the exercise of this function is not as compelling as
in instances when the purpose of the inquiry is legislative in nature. This is because
curbing graft and corruption is merely an oversight function of Congress. And if this is
the primary objective of respondent Committees in asking the three (3) questions
covered by privilege, it may even contradict their claim that their purpose is legislative in
nature and not oversight. In any event, whether or not investigating graft and corruption
is a legislative or oversight function of Congress, respondent Committees investigation
cannot transgress bounds set by the Constitution.
Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the areas in which it may potentially legislate or appropriate, it cannot
inquire into matters which are within the exclusive province of one of the other branches
of the government. Lacking the judicial power given to the Judiciary, it cannot inquire
into matters that are exclusively the concern of the Judiciary. Neither can it supplant the
Executive in what exclusively belongs to the Executive.
At this juncture, it is important to stress that complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the Office of
the Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to
investigate any act or omission of any public official, employee, office or agency when
such act or omission appears to be illegal, unjust, improper, or inefficient." The Office of
the Ombudsman is the body properly equipped by the Constitution and our laws to
preliminarily determine whether or not the allegations of anomaly are true and who are
liable therefor. The same holds true for our courts upon which the Constitution reposes
the duty to determine criminal guilt with finality. Indeed, the rules of procedure in the

Office of the Ombudsman and the courts are well-defined and ensure that the
constitutionally guaranteed rights of all persons, parties and witnesses alike, are
protected and safeguarded.