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115

ROMULO
L.
NERI
vs.
SENATE AUTHOR:
COMMITTEE ON ACCOUNTABILITY OF NOTES: (if applicable)
PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND
COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY
G.R. No. 180643
March 25, 2008
TOPIC: Executive privilege
PONENTE: LEONARDO-DE CASTRO, J.
FACTS:
1. 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.
2. 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.
3. 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 hrs 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.
4. 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.
5. 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.

ISSUE: Whether or not the communications elicited by the subject three (3) questions covered by executive
privilege
HELD: YES.The communications are covered by executive privilege
DISPOSITIVE: WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008,
citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is
hereby nullified.

RATIO:
The revocation of EO 464 (advised executive officials and employees to follow and abide by the Constitution,
existing laws and jurisprudence, including, among others, the case of Senate v. Ermita when they are invited to
legislative inquiries in aid of legislation.), does not in any way diminish the concept of executive privilege. This
is because this concept has Constitutional underpinnings.
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 area of military and foreign relations. Under
our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and
diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these powers
may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of 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 judicial test is that an advisor must be in operational proximity with the President.
3) The presidential communications privilege remains a qualified privilege that 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 case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the
communications elicited by the three (3) 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 Peoples
Republic of China. Simply put, the bases are presidential communications privilege and executive privilege on
matters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions
are covered by the presidential communications privilege. First, the communications relate to a quintessential
and non-delegable power of the President, i.e. the power to enter into an executive agreement with other
countries. This authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are
received by a close advisor of the President. Under the operational proximity test, petitioner can be
considered a close advisor, being a member of President Arroyos cabinet. And third, 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.
Respondent Committees further contend that the grant of petitioners claim of executive privilege violates the
constitutional provisions on the right of the people to information on matters of public concern.50 We might have
agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available
to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he
expressly manifested his willingness to answer more questions from the Senators, with the exception only of
those covered by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides:
The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

CASE LAW/ DOCTRINE:


DISSENTING/CONCURRING OPINION(S):

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