Neri Vs. The Senate Committee, G.R. No.

180643
March 25, 2008
Fatcs:
Respondent Committees initiated the investigation by sending invitations to
certain personalities and cabinet officials involved in the NBN Project. Petitioner was
among those invited. He attended only the September 26 hearing. Respondent
Committee issued a Subpoena Ad Testificandum to petitioner, requiring him to
appear and testify on November 20, 2007. However, in the response letter dated
November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent
Committees to dispense with petitioners testimony on the ground of executive
privilege. And to be covered the same for the below specific questions:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project after
being told about the alleged bribe?
On November 22, 2007, the latter issued the show cause letter requiring him to
explain why he should not be cited in contempt. And petitioner herein claimed to be
covered by executive privilege. Respondent Committees found petitioners
explanations unsatisfactory, they issued order citing him in contempt.
Issue:
Whether questions are covered by executive privilege.
Held:
The claim of executive privilege is highly recognized in cases where the
subject of inquiry relates to a power textually committed by the Constitution to the
President, such as the area of military and foreign relations. Under our Constitution,
the President is the repository of the commander-in-chief, appointing, pardoning,
and diplomatic powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence
communications privilege:

cited

provide

the

elements

of

presidential

1) The protected communication must relate to a quintessential and nondelegable 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.

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 inPhilippine
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.