Neri v. Senate, G.R. No.

180643, March 25, 2008

Topic: Legislative Investigation
FACTS:
On April 21, 2007, the DOTC entered into a contract with ZTE for the supply of equipment and services
for the NBN Project in the amount of approximately Php16B and was to be financed by the Republic of
China.
The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007 hearing Jose
de Venecia III testified that several high executive officials and power brokers were using their influence
to push the approval of the NBN Project by the NEDA.
One of the cabinet officials invited to appear before the Senate during the investigation was Petitioner
Romulo Neri, who was Director General of NEDA at the time. During the 11-hour questioning, Petitioner
invoked executive privilege and refused to answer the questions on (a) whether or not President Arroyo
followed up the NBN Project, (b) whether or not she directed him to prioritize it, and (c) whether or not
she directed him to approve.
In view of his refusal, the Senate Blue Ribbon Committee issued a subpoena ad testificandum, to which
Petitioner replied that he was willing to testify to other matters besides those three questions covered by
executive privilege and that he wanted to be furnished beforehand matters to be taken up during the
inquiry so that he may adequately prepare therefor. Executive Secretary Ermita also sent a letter to the
Blue Ribbon, affirming that indeed those three questions mentioned were covered by executive
privilege because such information if disclosed might impair diplomatic as well as economic relations
with the Peoples Republic of China. As such, the Office of the President has ordered Petitioner not to
answer those questions.
Nevertheless, the Blue Ribbon issued a show cause Letter and a contempt Order against Petitioner. Thus,
this case.
ISSUES:
1. Whether Neri can invoke executive privilege;
2. Whether the invocation of executive privilege violate Sec. 28, Art. II and Sec. 7, Art. III; and
3. Whether the Committees gravely abused their discretion by holding Neri in contempt.
RULING:
1. The communications elicited by the three questions are covered by executive privilege. The
revocation of EO 464 (advised executive officials and employees to follow and abide by the
Constitution, existing laws and jurisprudence, including, among others, the case of Senate v.
Ermita when they are invited to legislative inquiries in aid of legislation.), does not in any way
diminish the concept of executive privilege. This is because this concept has Constitutional
underpinnings.

The claim of executive privilege is highly recognized in cases where the subject of inquiry relates
to a power textually committed by the Constitution to the President, such as the area of military
and foreign relations. Under our Constitution, the President is the repository of the commanderin-chief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation
of powers, the information relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications privilege:
1. The protected communication must relate to a quintessential and non-delegable
presidential power.
2. The communication must be authored or solicited and received by a close advisor of
the President or the President himself. The judicial test is that an advisor must be in
operational proximity with the President.
3. The presidential communications privilege remains a qualified privilege that may be
overcome by a showing of adequate need, such that the information sought likely
contains important evidence and by the unavailability of the information elsewhere by
an appropriate investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the three (3) questions fall under conversation and
correspondence between the President and public officials necessary in her executive and
policy decision-making process and, that the information sought to be disclosed might impair
our diplomatic as well as economic relations with the Peoples Republic of China. Simply put,
the bases are presidential communications privilege and executive privilege on matters relating to
diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by the
three (3) questions are covered by the presidential communications privilege. First, the
communications relate to a quintessential and non-delegable power of the President, i.e. the
power to enter into an executive agreement with other countries. This authority of the President to
enter into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence. Second, the communications are received by a close
advisor of the President. Under the operational proximity test, petitioner can be considered a
close advisor, being a member of President Arroyos cabinet. And third, there is no adequate
showing of a compelling need that would justify the limitation of the privilege and of the
unavailability of the information elsewhere by an appropriate investigating authority.
2. The petitioner made himself available to them during the September 26 hearing, where he was
questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer
more questions from the Senators, with the exception only of those covered by his claim of
executive privilege. The right to public information and full public disclosure of transactions, like
any other right, is subject to limitation. These include those that are classified by the body of
jurisprudence as highly confidential. The information subject to this case belongs to such kind.

3. The Committees violated Sec. 21, Art. VI of the Constitution for having failed to publish its Rules
of Procedure. Inquiries are required to be in accordance with the duly published rules of
procedure. Without these, the aid of legislation is procedurally infirm.