Friday, December 12, 2008

Neri Vs. Senate

Neri vs. Senate
G.R. No. 180643, March 25, 2008

Former NEDA Director General Romulo Neri testified before the Senate for 11 hours relating to the ZTE-NBN mess. However, when probed further on what he and the President discussed about the NBN Project, he refused to answer, invoking “executive privilege”. In particular, he refused to answer 3 questions:

(a) whether or not President Arroyo followed up the NBN Project
(b) whether or not she directed him to prioritize it
(c) whether or not she directed him to approve it

Unrelenting, the Senate Committees issued a Subpoena Ad Testificandum to Neri, requiring him to appear and testify on November 20, 2007. However, Executive Secretary Eduardo R. Ermita requested the Senate Committees to dispense with Neri’s testimony on the ground of executive privilege. In his letter, Ermita said “that the information sought to be disclosed might impair our diplomatic as well as economic relations with China.” Neri did not appear before the Committees. As a result, the Senate issued an Order citing him in contempt and ordered his arrest and detention until such time that he would appear and give his testimony.

Are the communications elicited by the subject three (3) questions covered by executive privilege?


Yes. The Communications elicited by the 3 Questions are covered by Executive Privilege. xxx “we are convinced that the communications elicited by the 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 Arroyo’s 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.

The Senate contends that the grant of the executive privilege violates the “Right of the people to information on matters of public concern”. Is the senate correct?

ANSWER: No. While Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. The right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people’s right to public information. The distinction between such rights is laid down in Senate v. Ermita: There are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, 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. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen. (visit

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking E.O. 464. Is there a recognized claim of executive privilege despite the revocation of E.O. 464?

ANSWER: Yes. The revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings.

In Senate v. Ermita, the executive privilege should be invoked by the President or through the Executive Secretary “by order of the President.” Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President?

ANSWER: Yes. The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that “this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.” Obviously, he is referring to the Office of the President. That is more than enough compliance.

May the Congress require the executive to state the reasons for the claim with particularity?

ANSWER: No. The 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 to a coordinate and co-equal department. (Senate v. Ermita)

Is the contempt and arrest Order of Neri valid?

ANSWER: No. There being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. The respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should 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.” The SC also find merit in the argument of the OSG that respondent Committees violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the “duly published rules of procedure.” The respondent Committees’ issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as “unsatisfactory” and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. (Neri vs. Senate, G.R. No. 180643, March 25, 2008)

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