NERI VS.

SENATE COMMITTEE
MARCH 28, 2013 ~ VBDIAZ

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

G.R. No. 180643, March 25, 2008

FACTS: On April 21, 2007, the Department of Transportation and Communication
(DOTC) entered into a contract with Zhong Xing Telecommunications Equipment
(ZTE) for the supply of equipment and services for the National Broadband Network
(NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion
Pesos). The Project was to be financed by the Peoples Republic of China.
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.

Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon.
He appeared in one hearing wherein he was interrogated for 11 hrs and during which
he admitted that Abalos of COMELEC tried to bribe him with P200M in exchange for
his approval of the NBN project. He further narrated that he informed President
Arroyo about the bribery attempt and that she instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN Project,
petitioner refused to answer, invoking executive privilege. In particular, he refused
to
(a)
(b)
(c)

answer
whether

or

whether
whether

not
or

the
President
not

or

she
not

questions

Arroyo

followed

directed

him

she

directed

up
to

the

on:
NBN

prioritize
him

to

Project,
it,

and

approve.

He later refused to attend the other hearings and Ermita sent a letter to the senate
averring that the communications between GMA and Neri are privileged and that the
jurisprudence laid down in Senate vs Ermita be applied. He was cited in contempt of

respondent committees and an order for his arrest and detention until such time that he
would appear and give his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions covered by
executive privilege?
HELD:
The communications 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 commander-in-chief, appointing, pardoning, and
diplomatic powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications
privilege:
1) The protected communication must relate to a quintessential and non-delegable
presidential

power.

2) The communication must be authored or solicited and received by a close advisor

of the President or the President himself. The judicial test is that an advisor must be in
operational proximity with the President.
3) The presidential communications privilege remains a qualified privilege that may
be overcome by a showing of adequate need, such that the information sought likely

contains important evidence and by the unavailability of the information elsewhere

by an appropriate investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of executive
privilege on the ground that the communications elicited by the three (3) questions
fall under conversation and correspondence between the President and public
officials necessary in her executive and policy decision-making process and, that
the information sought to be disclosed might impair our diplomatic as well as
economic relations with the Peoples Republic of China. Simply put, the bases are
presidential communications privilege and executive privilege on matters relating to
diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited
by the three (3) questions are covered by the presidential communications privilege.
First, the communications relate to a quintessential and non-delegable power of the
President, i.e. the power to enter into an executive agreement with other countries.
This authority of the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence. Second, the communications are received by a close advisor of the
President. Under the operational proximity test, petitioner can be considered a close
advisor, being a member of President Arroyos cabinet. And third, there is no
adequate showing of a compelling need that would justify the limitation of the
privilege and of the unavailability of the information elsewhere by an appropriate
investigating authority.
Respondent Committees further contend that the grant of petitioners claim of
executive privilege violates the constitutional provisions on the right of the people to
information on matters of public concern.50 We might have agreed with such
contention if petitioner did not appear before them at all. But petitioner made himself
available to them during the September 26 hearing, where he was questioned for
eleven (11) hours. Not only that, he expressly manifested his willingness to answer

more questions from the Senators, with the exception only of those covered by his
claim of executive privilege.
The right to public information, like any other right, is subject to limitation. Section 7
of

Article

III

provides:

The right of the people to information on matters of public concern shall be

recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations
as may be provided by law.