Neri v. Senate Committee

EN BANC "

[G.R. No. 180643, September 04, 2008] "

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.

R E S O L U T I O N "

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution. The confidentiality of the President's conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers.

In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acrimoniously, debated dispute between the Court's co-equal branches of government. In this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the claim of executive privilege by the President, on the one hand, and the respondent Senate Committees' assertion of their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the present case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld.

Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the petition for "certiorari "filed by petitioner Romulo L. Neri against the respondent Senate Committees on Accountability of Public Officers and Investigations,[1] "Trade and Commerce,[2] "and National Defense and Security (collectively the "respondent Committees").[3]

A brief review of the facts is imperative.

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 petitioner's 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,[4] "(b) "whether or not she directed him to prioritize it,[5]and "(c) "whether or not she directed him to approve it.[6]

Respondent Committees persisted in knowing petitioner's answers to these three questions by requiring him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioner's testimony on the ground of executive privilege.[7] "The letter of Executive Secretary Ermita pertinently stated:

Following the ruling in "Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; "Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations.

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 cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in "Senate v. Ermita, and has advised Secretary Neri accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioner's reply to respondent Committees, he manifested that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege. He also manifested his willingness to appear and testify should there be new matters to be taken up. He just requested that he be furnished "in advance as to what else" he "needs to clarify."

Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), 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.

On the same date, petitioner moved for the reconsideration of the above Order.[8] "He insisted that he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, but respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for "certiorari "he previously filed with this Court on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest and detention.

Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) on February 1, 2008. In the Court's Resolution dated February 4, 2008, the parties were required to observe the status quo prevailing prior to the Order dated January 30, 2008.

On March 25, 2008, the Court granted his petition for "certiorari "on two grounds: "first,the communications elicited by the three (3) questions were covered by executive privilege; and "second, "respondent Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject communications as falling under the "presidential communications privilegebecause "(a) "they related to a quintessential and non-delegable power of the President,(b) "they were received by a close advisor of the President, and "(c) "respondent Committees failed to adequately show a compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion in issuing the contempt order because(a) "there was a valid claim of executive privilege, "(b) "their invitations to petitioner did not contain the questions relevant to the inquiry, "(c) "there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order, "(d)they violated Section 21, Article VI of the Constitution because their inquiry was not in accordance with the "duly published rules of procedure," and "(e) "they issued the contempt order arbitrarily and precipitately.

On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following grounds:

I

CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.

II

CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE CAN BE NO PRESUMPTION THAT THE INFO RMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.

III

CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE IS NO FACT UAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:

1. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.
2. EVEN IF THE TESTS ADO PTED BY THIS HON ORABLE COURT IN THE DECISION IS A PPL IED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.
3. ON THE CONTRARY, THERE IS ADEQUATE SHOW ING OF A COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
4. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS' PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.
5. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.

IV

CONTRARY TO THIS HON ORABLE COURT'S DECISION, RESPONDENTS DID NOT COMM IT G RAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT:

1. THERE IS NO LEG IT IMAT E CLAIM OF EXECUTIVE PR IVIL EGE IN THE INSTANT CASE.
2. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN "SENATE V. ERMITA.
3. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES.
4. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSG'S INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.
5. RESPONDENTS' ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege to the facts of the case. He further submits the following contentions: "first,the assailed Decision did not reverse the presumption against executive secrecy laid down in "Senate v. Ermita; "second, "respondent Committees failed to overcome the presumption of executive privilege because it appears that they could legislate even without the communications elicited by the three (3) questions, and they admitted that they could dispense with petitioner's testimony if certain NEDA documents would be given to them; "third, "the requirement of specificity applies only to the privilege for State, military and diplomatic secrets, not to the necessarily broad and all-encompassing presidential communications privilege; "fourth, "there is no right to pry into the President's thought processes or exploratory exchanges; "fifth, "petitioner is not covering up or hiding anything illegal; "sixth, "the Court has the power and duty to annul the Senate Rules; "seventh, "the Senate is not a continuing body, thus the failure of the present Senate to publish its "Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) "has a vitiating effect on them; "eighth, "the requirement for a witness to be furnished advance copy of questions comports with due process and the constitutional mandate that the rights of witnesses be respected; and "ninth, "neither petitioner nor respondent has the final say on the matter of executive privilege, only the Court.

For its part, the Office of the Solicitor General maintains that: "(1) "there is no categorical pronouncement from the Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence, there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the Constitution; "(2) "presidential communications enjoy a presumptive privilege against disclosure as earlier held in "Almonte v. Vasquez[9] "and "Chavez v. Public Estates Authority (PEA)[10]; "(3) "the communications elicited by the three (3) questions are covered by executive privilege, because all the elements of the presidential communications privilege are present; "(4) "the subpoena "ad testificandum "issued by respondent Committees to petitioner is fatally defective under existing law and jurisprudence; "(5) "the failure of the present Senate to publish its "Rules "renders the same void; and "(6) "respondent Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees' objection to the Resolution dated March 18, 2008 (granting the Office of the Solicitor General's Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation of the Decision in this case is foreclosed by its untimeliness.

The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:

(1)	whether or not there is a recognized presumptive presidential communications privilege in our legal system;
(2)	whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive privilege;
(3)	whether or not respondent Committees have shown that the communications elicited by the three (3) questions are critical to the exercise of their functions; and
(4)	whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order.

We shall discuss these issues "seriatim.

I "

There Is a Recognized Presumptive
Presidential Communications Privilege

Respondent Committees ardently argue that the Court's declaration that presidential communications are presumptively privileged reverses the "presumption" laid down inSenate v. Ermita[11] "that "inclines heavily against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred in relying on the doctrine in "Nixon.

Respondent Committees argue as if this were the first time the presumption in favor of the "presidential communications privilege "is mentioned and adopted in our legal system. That is far from the truth. The Court, in the earlier case of "Almonte v. Vasquez,[12] "affirmed that the "presidential communications privilege "is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Even "Senate v. Ermita,[13] "the case relied upon by respondent Committees, reiterated this concept. "There, the Court enumerated the cases in which the claim of executive privilege was recognized, among them "Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),[14] "andChavez v. PEA.[15] "The Court articulated in these cases that "there are certain types of information which the government may withhold from the public,[16]" that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters";[17] "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."[18]

Respondent Committees' observation that this Court's Decision reversed the "presumption that inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but the decision must be considered in its entirety.[19]

Note that the aforesaid presumption is made in the context of the circumstances obtaining in "Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision in the said case reads:

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation tocertain types of information of a sensitive character. While executive privilege is a constitutional concept, a "claim "thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any "recognition that executive officials are exempt "from the duty to disclose information "by the mere fact of being executive officials. "Indeed, "the extraordinary character of theexemptions "indicates that the presumption inclines heavilyagainst "executive secrecy and in favor of disclosure. "(Emphasis and underscoring supplied)

Obviously, the last sentence of the above-quoted paragraph in "Senate v. Ermita "refers to the "exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the Executive Branch. This means that "when an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, "claims to be exempt from disclosure, there can be "no presumption of authorization to invoke executive privilege given by the President "to said executive official, such that the presumption in this situation inclines heavily against executive secrecy and in favor of disclosure. "

Senate v. Ermita "[20]expounds on the premise of the foregoing ruling in this wise:

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the President's authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence.

Such "presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which iscrucial "to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is "necessary "to the discharge of "highly important "executive responsibilities. 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 privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President", which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees' investigation. Thus, the factual setting of this case markedly differs from that passed upon in "Senate v. Ermita. "

Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in "Senate v. Ermita,[21] "to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction.It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States.

Schwart defines executive privilege as ""the power of the Government to withhold information from the public, the courts, and the Congress. "Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court inAlmonte v. Vasquez. "Almonte "used the term in reference to the same privilege subject of "Nixon. It quoted the following portion of the "Nixondecision which explains the basis for the privilege:

"The expectation of a President to the "confidentiality of his conversations and correspondences, "like the claim of confidentiality of judicial deliberations, "for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. "A President and those who assist him must be free 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. "These are the considerations justifying a presumptive privilege for Presidential communications. "The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution "x x x " (Emphasis and italics supplied)

Clearly, therefore, even "Senate v. Ermita "adverts to "a presumptive privilege for Presidential communication," which was recognized early on in "Almonte v. Vasquez. To construe the passage in "Senate v. Ermita "adverted to in the Motion for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the "Senate v. Ermita "and make the same engage in self-contradiction.

Senate v. Ermita[22] "expounds on the constitutional underpinning of the relationship between the Executive Department and the Legislative Department to explain why there should be no implied authorization or presumptive authorization to invoke executive privilege by the President's subordinate officials, as follows:

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. "Only one executive "official "may be exempted from this power - "the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. "It is based on he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom. (Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In fact, "Senate v. Ermita "reiterates jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications."[23]

II

There Are Factual and Legal Bases to "
Hold that the Communications Elicited by the Three (3) Questions Are Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three (3) questions are not covered by executive privilege because the elements of thepresidential communications privilege "are not present.

A. The power to enter into an executive
agreement is a "quintessential and "
non-delegable presidential power."

First, respondent 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 which is required to give its prior concurrence and to report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated essence of substance.[24] "On the other hand, "non-delegable" means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the obligor.[25] "The power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into "executive agreements "without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.[26] "Now, the fact that the President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government by no means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the President does not render the power to pass law executive in nature. This is because the power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in nature because of conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged in the Office of the President.

B. "The "doctrine of operational "
proximity"was laid down precisely "
to limit the scope of the presidential
communications privilege but, in "
any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential communications privilege to communications between those who are `operationally proximate' to the President but who may have "no direct communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in "In re: Sealed Case[27] "precisely to limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity" to direct presidential decision-making, thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decision-making process is adequately protected. "Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. "Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigation and formulating the advice to be given the President on the particular matter to which the communications relate.Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers. "See "AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that matters in determining whether "[t]he President's confidentiality interests" is implicated). "(Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear apparently entertained by respondents) 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. Nevertheless, in circumstances in which the official involved is far too remote, this Court also mentioned in the Decision the "organizational test "laid down in "Judicial Watch, Inc. v. Department of Justice.[28] "This goes to show that the operational proximity test used in the Decision is not considered conclusive in every case. In determining which test to use, the main consideration is to limit the availability of executive privilege only to officials who stand proximate to the President, not only by reason of their function, but also by reason of their positions in the Executive's organizational structure. Thus, respondent Committees' fear that the scope of the privilege would be unnecessarily expanded with the use of the operational proximity test is unfounded.

C. The President's claim of executive
privilege is not merely based on a "
generalized interest; and in "
balancing respondent Committees' "
and the President's clashing
interests, the Court did not disregard "
the 1987 Constitutional provisions "
on government transparency,
accountability and disclosure of
information.

Third, respondent Committees claim that the Court erred in upholding the President's invocation, through the Executive Secretary, of executive privilege because "(a)between respondent Committees' specific and demonstrated need and the President's generalized interest in confidentiality, there is a need to strike the balance in favor of the former; and "(b) "in the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government transparency, accountability and disclosure of information, specifically, Article III, Section 7;[29] "Article II, Sections 24[30] "and 28;[31] "Article XI, Section 1;[32] "Article XVI, Section 10;[33] "Article VII, Section 20;[34] "and Article XII, Sections 9,[35] "21,[36] "and 22.[37]

It must be stressed that the President's claim of executive privilege is not merely founded on her generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita specified "presidential communications privilege "in relation to "diplomatic and economic relations with another sovereign nation "as the bases for the claim. Thus, the Letter stated:

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 this information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. "(emphasis supplied)

Even in "Senate v. Ermita, "it was held that Congress must not require the Executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department.

It is easy to discern the danger that goes with the disclosure of the President's communication with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds between officials of the Philippines and China. Whatever the President says about the agreement - particularly while official negotiations are ongoing - are matters which China will surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as economic relations with the People's Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations as stated in "United States v. Curtiss-Wright Export Corp., "[38] "thus:

The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.

US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent case of "Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al.[39] "upheld the privileged character of diplomatic negotiations. In "Akbayan, "the Court stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in "Chavez v. PCGG "held 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." Even earlier, the same privilege was upheld in "People's Movement for Press Freedom (PMPF) v. Manglapus "wherein the Court discussed the reasons for the privilege in more precise terms.

In "PMPF v. Manglapus, "the therein petitioners were seeking information from the President's representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the petition, stressing that "secrecy of negotiations "with foreign countries is not violative "of the constitutional provisions of freedom of speech or of the press nor "of the freedom of access to information." The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. "Another essential characteristic of diplomacy is its confidential nature. "Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:

"A complicated negotiation ...cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. "Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances... If these reports... should become public... who would ever trust "American Delegations in another conference?(United States Department of State, Press Releases, June 7, 1930, pp. 282-284)

x x x x

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. "As expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly abandoned his thought.

No one who has studied the question believes that such a method of publicity is possible. "In the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted "or offered "on both sides would quickly lead to a widespread propaganda to block the negotiations. "After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. "(The New American Government and Its Works, James T. Young, 4th "Edition, p. 194) (Emphasis and underscoring supplied)

Still in "PMPF v. Manglapus, the Court adopted the doctrine in "U.S. v. Curtiss-Wright Export Corp. "that the President is the "sole organ "of the nation in its negotiations with foreign countries,viz:

"x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He "makestreaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great arguments of March 7, 1800, in the House of Representatives, ""The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." "Annals, 6th "Cong., col. 613... (Emphasis supplied; underscoring in the original)

Considering that the information sought through the three (3) questions subject of this Petition involves the President's dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress may peremptorily inquire into not only official, documented acts of the President but even her confidential and informal discussions with her close advisors on the pretext that said questions serve some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can effectively discharge constitutional functions in the face of intense and unchecked legislative incursion into the core of the President's decision-making process, which inevitably would involve her conversations with a member of her Cabinet.

With respect to respondent Committees' invocation of constitutional prescriptions regarding the right of the people to information and public accountability and transparency, the Court finds nothing in these arguments to support respondent Committees' case.

There is no debate as to the importance of the constitutional right of the people to information and the constitutional policies on public accountability and transparency. These are the twin postulates vital to the effective functioning of a democratic government. The citizenry can become prey to the whims and caprices of those to whom the power has been delegated if they are denied access to information. And the policies on public accountability and democratic government would certainly be mere empty words if access to such information of public concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the public's right to information or diminish the importance of public accountability and transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope of respondents' investigation the three (3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be compelled to appear before respondents to answer the said questions. We have discussed the reasons why these answers are covered by executive privilege. That there is a recognized public interest in the confidentiality of such information is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute right.

Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to information. By their wording, the intention of the Framers to subject such right to the regulation of the law is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to information, thus:

Article III, Sec. 7. "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 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.

Article II, Sec. 28. "Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. "(Emphasis supplied)

In "Chavez v. Presidential Commission on Good Government,[40] "it was stated that there are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: "(1) "national security matters, "(2)trade secrets and banking transactions, "(3) "criminal matters, and "(4) "other confidential information. National security matters include state secrets regarding military and diplomatic matters, as well as information on inter-government exchanges prior to the conclusion of treaties and executive agreements. "It was further held that even where there is no need to protect such state secrets, they must be "examined in strict confidence and given scrupulous protection." "

Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly "in aid of legislation, "not the people's right to public information. This is the reason why we stressed in the assailed Decision the distinction between these two rights. As laid down in "Senate v. Ermita, ""the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a "subpoena duces tecum "issued by Congress" and "neither does the right to information grant a citizen the power to exact testimony from government officials." As pointed out, these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and petitioner Neri and that there was no prior request for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's right to information.

For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by executive privilege. "

III.

Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions "
Are Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.

At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees' inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees' power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose of respondent Committees' questions can be sufficiently supported by the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of privilege can only be overturned by "a showing of compelling need "for disclosure of the information covered by executive privilege.

In the Decision, the majority held that "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." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are necessary in the discharge of their legislative functions, among them, "(a) "to consider the three (3) pending Senate Bills, and "(b) "to curb graft and corruption.

We remain unpersuaded by respondents' assertions.

In "U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is necessary to resolve the competing interests in a manner that would preserve the essential functions of each branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows:

"... this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. "The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available "for the production of evidence needed either by the prosecution or by the defense.

xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the "right 'to be confronted with the witness against him' and 'to have compulsory process "for obtaining witnesses in his favor.' Moreover, the Fifth Amendment alsoguarantees that no person shall be deprived of liberty without due process of law. "It is the "manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.

In this case "we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. "(emphasis supplied)

xxx xxx xxx

... the allowance of the privilege to withhold evidence that isdemonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. "A "President's acknowledged need for confidentiality "in the communications of his office is "general "in nature, whereas the "constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. "Without access to specific facts a criminal prosecution may be "totally frustrated. The "President's broad interest in confidentiality of communication "will "not be vitiatedby "disclosure of a limited number of conversations preliminarily shown to have some bearing "on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the "generalized interest in confidentiality, it "cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. "The generalized assertion of privilege must yield to the "demonstrated, specific need "for evidence in a pending "criminal trial. "(emphasis supplied)

In the case at bar, we are not confronted with a court's need for facts in order to adjudge liability in a criminal case but rather with the Senate's need for information in relation to its legislative functions. This leads us to consider once again just how critical is the subject information in the discharge of respondent Committees' functions. The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of the President in order to gather information which, according to said respondents, would "aid" them in crafting legislation.

Senate Select Committee on Presidential Campaign Activities v. Nixon[41] "expounded on the nature of a legislative inquiry in aid of legislation in this wise:

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. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like 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. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in "Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. "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. (Emphasis supplied)

Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies. Also, the bare standard of "pertinency" set in "Arnault "cannot be lightly applied to the instant case, which unlikeArnault "involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government.

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. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:

A hard look at "Senate v. Ermita "ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential communications privilege. As shown in the previous discussion, "U.S. v. Nixon, as well as the other related Nixon cases "Sirica "and "Senate Select Committee on Presidential Campaign Activities, et al., v. Nixon "in the D.C. Court of Appeals, as well as subsequent cases "all recognize that there is a presumptive privilege in favor of Presidential communications. The "Almonte case "quoted "U.S. v. Nixon "and "recognized a presumption in favor of confidentiality "of Presidential communications.

The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees to overturn the presumption by demonstrating their specific need for the information to be elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply ageneralized "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. It is not clear what matters relating to these bills could not be determined without the said information sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:

...If respondents are operating under the premise that the president and/or her executive officials have committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation, the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding with such legislation. They could easily presume the worst of the president in enacting such legislation.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with legislations even without petitioner answering the three (3) questions. In other words, the information being elicited is not so critical after all. Thus:

CHIEF JUSTICE PUNO
	So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For instance, question Number 1 whether the President followed up the NBN project. According to the other counsel this question has already been asked, is that correct?
ATTY . AGABIN
	Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
	Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY . AGABIN
	I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
	Why?
ATTY . AGABIN
	For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill to include Executive Agreements had been used as a device to the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
	But the question is just following it up.
ATTY . AGABIN
	I believe that may be the initial question, Your Honor, because if we look at this problem in its factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal involving high government officials.
CHIEF JUSTICE PUNO
	Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without this question?
ATTY . AGABIN
	I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that other government officials who had something to do with the approval of the contract would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
	Again, that is speculative.
ATTY . AGABIN
	That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
	How about the third question, whether the President said to go ahead and approve the project after being told about the alleged bribe. How critical is that to the lawmaking function of the Senate? And the question is may they craft a Bill a remedial law without forcing petitioner Neri to answer this question?
ATTY . AGABIN
	Well, "they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a proposed Bill should have some basis in fact.[42]

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 President's performance of her function. Needless to state this is assumed, by virtue of the presumption.

Anent respondent Committees' bewailing that they would have to "speculate" regarding the questions covered by the privilege, this does not evince a compelling need for the information sought. Indeed, "Senate Select Committee on Presidential Campaign Activities v. Nixon[43] "held that 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 a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the respondent Committees' self-defeating proposition that without the answers to the three (3) questions objected to as privileged, the distinguished members of the respondent Committees cannot intelligently craft legislation.

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.[44] "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.

In "Bengzon, Jr. v. Senate Blue Ribbon Committee,[45] "this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.[46] "(Emphasis supplied)

There, the Court further ratiocinated that "the contemplated inquiry "by respondent Committee is not really `in aid of legislation' because it "is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the "Anti-Graft and Corrupt Practices Act, "a matter that appears more within the province of the courts rather than of the Legislature."[47] "(Emphasis and underscoring supplied)

The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the President.[48] "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 anyone's 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.

Respondent Committees claim that they are conducting an inquiry "in aid of legislationand a "search for truth," which in respondent Committees' view appears to be equated with the search for persons responsible for "anomalies" in government contracts.

No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the investigation of the role played by each official, the determination of who should be haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are indefensible. There is no Congressional power to expose for the sake of exposure.[49] "In this regard, the pronouncement inBarenblatt v. United States[50] "is instructive, thus:

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. (Emphasis supplied.)

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."[51] "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.

Should respondent Committees uncover information related to a possible crime in the course of their investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of government. Thus, the Legislature's need for information in an investigation of graft and corruption cannot be deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the information covered by the three (3) questions subject of the petition.

Corollarily, respondent Committees justify their rejection of petitioner's claim of executive privilege on the ground that there is no privilege when the information sought might involve a crime or illegal activity, "despite the absence of an administrative or judicial determination to that effect. Significantly, however, in "Nixon v. Sirica,[52] "the showing required to overcome the presumption favoring confidentiality turned, "not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. "

Respondent Committees assert that "Senate Select Committee on Presidential Campaign Activities v. Nixon "does not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at present. The Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however, complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for criminal conduct.

Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial proceedings which do not affect substantive rights need not be observed by the Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings by a competent court or body.

IV "

Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because "(1) "there is no legitimate claim of executive privilege; "(2) "they did not violate the requirements laid down in "Senate v. Ermita; "(3)they issued the contempt order in accordance with their internal "Rules; "(4) "they did not violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their "Rules; and "(5) "their issuance of the contempt order is not arbitrary or precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no reason to discuss it once again.

Respondent Committees' second argument rests on the view 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.

On the contrary, the Court sees the rationale and necessity of compliance with these requirements.

An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses. Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse) have been raised many times.[53] "Constant exposure to congressional subpoena takes its toll on the ability of the Executive to function effectively. The requirements set forth in "Senate v. Ermita "are modest mechanisms that would not unduly limit Congress' power. The legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S. case, "Kilbourn v. Thompson.[54] "Likewise, witnesses have their constitutional right to due process. They should be adequately informed what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent information and documents. To our mind, these requirements concede too little political costs or burdens on the part of Congress when viewed vis-à-vis the immensity of its power of inquiry. The logic of these requirements is well articulated in the study conducted by William P. Marshall,[55] "to wit:

A second concern that might be addressed is that the current system allows committees to continually investigate the Executive without constraint. "One process solution addressing this concern is to require each investigation be tied to a clearly stated purpose. "At present, the charters of some congressional committees are so broad that virtually any matter involving the Executive can be construed to fall within their province. Accordingly, investigations can proceed without articulation of specific need or purpose. A requirement for a more precise charge in order to begin an inquiry should immediately work to limit the initial scope of the investigation and should also serve to contain the investigation once it is instituted. "Additionally, to the extent clear statements of rules cause legislatures to pause and seriously consider the constitutional implications of proposed courses of action in other areas, they would serve that goal in the context of congressional investigations as well.

The key to this reform is in its details. A system that allows a standing committee to simply articulate its reasons to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the system must be designed in a manner that imposes actual burdens on the committee to articulate its need for investigation and allows for meaningful debate about the merits of proceeding with the investigation.(Emphasis supplied)

Clearly, petitioner's request to be furnished an advance copy of questions is a reasonable demand that should have been granted by respondent Committees.

Unfortunately, the Subpoena "Ad Testificandum "dated November 13, 2007 made no specific reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely commanded him to "testify on what he knows relative to the subject matter under inquiry."

Anent the third argument, respondent Committees contend that their "Rules of Procedure Governing Inquiries in Aid of Legislation "(the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of government, however, when a constitutional requirement exists, the Court has the duty to look into Congress' compliance therewith. We cannot turn a blind eye to possible violations of the Constitution simply out of courtesy. In this regard, the pronouncement in "Arroyo v. De Venecia[56] "is enlightening, thus:

"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals.

United States v. Ballin, Joseph & Co., the rule was stated thus: `The Constitution empowers each House to determine its rules of proceedings.It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained."

In the present case, the Court's exercise of its power of judicial review is warranted because there appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the "Rules "provides that:

"The Committee, "by a vote of majority "of all its members, may punish for contempt any witness before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." "(Emphasis supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could hardly fulfill the majority requirement needed by respondent "Committee on Accountability of Public Officers and Investigations "which has a membership of seventeen (17) Senators and respondent "Committee on National Defense and Security "which has a membership of eighteen (18) Senators. With respect to respondent "Committee on Trade and Commercewhich has a membership of nine (9) Senators, only three (3) members were present.[57] "These facts prompted us to quote in the Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to deliberate and vote on the contempt order.

When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively signed for the Senate in plenary session.[58]

Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the contempt order was prepared and thereafter presented to the other members for signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful representation of the proceedings that took place on said date. Records clearly show that not all of those who signed the contempt order were present during the January 30, 2008 deliberation when the matter was taken up.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation "in accordance with its duly published rules of procedure. "The rights of person appearing in or affected by such inquiries shall be respected.(Emphasis supplied)

All the limitations embodied in the foregoing provision form part of the witness' settled expectation. If the limitations are not observed, the witness' settled expectation is shattered. Here, how could there be a majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which the matter has been fully deliberated upon. There is a greater measure of protection for the witness when the concerns and objections of the members are fully articulated in such proceeding. We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish. This is especially true here where what is involved is the contempt power. It must be stressed that the "Rules "are not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in the proper observance of the "Rules.

Having touched the subject of the "Rules, we now proceed to respondent Committees' fourth argument. Respondent Committees argue that the Senate does not have to publish its "Rules "because the same was published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish theRules, "unless the same is repealed or amended.

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate "as an institution "is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states:

RULE XLIV "
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied)

Undeniably from the foregoing, all pending matters and proceedings, "i.e. "unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered "terminated "upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, "not in the same status, but as if presented "for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate's main rules of procedure) states:

RULE LI "

AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. "At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may "endorse the Rules to the appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. (emphasis supplied)

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules "shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. (emphasis supplied)

Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of "each "session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the "Rules. The "Rules "simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation."[59] "The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the "Rules "(on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the "duly published rules of procedure "is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.

Lest the Court be misconstrued, 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 expressed in Section 21, Article VI of the Constitution. "Sans "such violation, orders and proceedings are considered valid and effective.

Respondent Committees' last argument is that their issuance of the contempt order is not precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive official under the direct control and supervision of the Chief Executive. "Why punish petitioner for contempt when he was merely directed by his superior? "Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing.

On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on Executive Secretary Ermita's claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The same haste and impatience marked the issuance of the contempt order, despite the absence of the majority of the members of the respondent Committees, and their subsequent disregard of petitioner's motion for reconsideration alleging the pendency of his petition for "certiorari "before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political branches of government. In a free and democratic society, the interests of these branches inevitably clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it is imperative for the continued health of our democratic institutions that we preserve the constitutionally mandated checks and balances among the different branches of government.

In the present case, it is respondent Committees' contention that their determination on the validity of executive privilege should be binding on the Executive and the Courts. It is their assertion that "their "internal procedures and deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees' paradigm of checks and balances, what are the checks to the Legislature's all-encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse.

While this Court finds laudable the respondent Committees' well-intentioned efforts to ferret out corruption, even in the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it by the Constitution and granted instead to the other branches of government.

There is no question that any story of government malfeasance deserves an inquiry into its veracity. As respondent Committees contend, this is founded on the constitutional command of transparency and public accountability. The recent clamor for a "search for truth" by the general public, the religious community and the academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power. However, the best venue for this noble undertaking is not in the political branches of government. The customary partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test of the constitutional guarantee of due process of law. We believe the people deserve a more exacting "search for truth" than the process here in question, if that is its objective.

WHEREFORE, "respondent Committees' Motion for Reconsideration dated April 8, 2008 is hereby "DENIED.

SO ORDERED.