Art VII, Section 1: Executive Privilege

(14) Romulo L. Neri vs. Senate of the Philippines

G.R. No. 180643, September 4, 2008
Leonardo-de Castro, J.

FACTS:

On September 26, 2007, petitioner, Neri, then the Director General of NEDA appeared
before the Senate during the investigation on the alleged anomalies in the National Broadband
Network (NBN) Project. During the said investigation, invoking executive privilege, he refused
to answer the following questions:
1. Whether or not President Arroyo followed up the NBN Project
2. Whether or not she directed him to prioritize it
3. Whether or not she directed him to approve it
The petitioner reasoned that the information sought to be disclosed might impair our diplomatic
and economic relations with the People’s Republic of China therefore, he cannot disclose said
information.
On the November 20, 2007 hearing, the petitioner did not appear upon orders of the President,
invoking executive privilege. The Senate found his explanations unsatisfactory and cited the
petitioner in contempt and issued an arrest for him. Neri, then filed a petition for certiorari with
urgent TRO contending that the 3 questions were covered by executive privilege and that the
Senate committed a grave abuse of discretion in issuing contempt order. The petition was
granted and the Senate filed a motion for reconsideration.

ISSUE:

Whether the executive privilege invoked by the petitioner was valid

RULING:

Yes. The court ruled that the executive privilege invoked by the petitioner was valid.
Executive privilege as defined by Schwart, is the power of the Government to withhold
information from the public, the courts and the Congress.
The three elements to be able to validly invoke executive privilege are all present:
(1) The protected communication must relate to an essential and non-delegable presidential
power. In the present case, executive privilege on the argument that the communications elicited
by the three questions “fall under conversation and correspondence between the President and
public official” 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”.
(2) It must be authored, solicited, and received by a close advisor of the President or the
President himself. Under the "operational proximity" test, petitioner Neri can be considered a
close advisor, being a member of the President's Cabinet.
(3) it may be overcome by a showing of adequate need, such that the information sought “likely
contains important evidence”.Presidential communications are presumptively privileged and that
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 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.”
Thus, the court denied the Senate’s motion for reconsideration and upheld its first decision.