ROMULO L.

NERI, Petitioner, versus SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC

OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY, Respondents.

TITLE Neri vs. Senate Committee on Accountability of Public Officers and

Investigations, 549 SCRA 77, March 25, 2008

GR NUMBER 180643

DATE March 25, 2008

PONENTE LEONARDO-DE CASTRO, J.

NATURE/KEYWORDS Separation of powers, Executive privilege

FACTS In the interim, on December 7, 2007, petitioner filed with this Court the
present petition for certiorari assailing the show cause Letter dated
November 22, 2007.
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 amounting to approximately P16 Billion
Pesos.
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 was summoned to appear and
testify on three days. However, he attended only one hearing, claiming he
was "out of town" during the other dates.
On September 26, 2007, petitioner testified before respondent Committees
for eleven (11) hours. However, when probed further on what they
discussed about the NBN Project, petitioner refused to answer, invoking
"executive privilege". In particular, he 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.
Unrelenting, respondent Committees issued a Subpoena Ad Testificandum
to petitioner, requiring him to appear and testify on November 20, 2007.
However, in the Letter dated November 15, 2007, Executive Secretary
Eduardo R. Ermita requested respondent Committees to dispense with
petitioner's testimony on the ground of executive privilege.
On November 20, 2007, petitioner did not appear before respondent
Committees. Thus, on November 22, 2007, the latter issued the show cause
Letter requiring him to explain why he should not be cited in contempt.
On November 29, 2007, petitioner replied to respondent Committees,
manifesting 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.
 The Senate Committee issued the Order dated January 30, 2008, citing
him 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. He also mentioned the petition for certiorari he filed on December 7,
2007. According to him, this should restrain respondent Committees from
enforcing the show cause Letter "through the issuance of declaration of
contempt" and arrest.
Petitioner contends that respondent Committees' show cause Letter and
contempt Order were issued with grave abuse of discretion amounting to
lack or excess of jurisdiction. He stresses that his conversations with
President Arroyo are "candid discussions meant to explore options in
making policy decisions."
Respondent Committees assert the contrary. They argue that (1)
petitioner's testimony is material and pertinent in the investigation
conducted in aid of legislation; (2) there is no valid justification for petitioner
to claim executive privilege; (3) there is no abuse of their authority to order
petitioner's arrest; and (4) petitioner has not come to court with clean hands.
On March 6, 2008, President Arroyo issued Memorandum Circular No.
151, revoking Executive Order No. 464 and Memorandum Circular No. 108.
She 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.

ISSUE(S) 1. Are the communications elicited by the subject three (3) questions
covered by executive privilege?
2. Did respondent Committees commit grave abuse of discretion in issuing
the contempt Order?

RULING(S) 1. YES. The power of Congress to conduct inquiries in aid of legislation is

broad but it has limitations. To be valid, it is imperative that it is done in
accordance with the Senate or House duly published rules of procedure
and that the rights of the persons appearing in or affected by such inquiries
be respected unless there is a valid claim of executive privilege. At this
juncture, it must be stressed that 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. 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 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.
2. YES. Respondent Committees committed grave abuse of discretion in
issuing the contempt Order in view of five (5) reasons.
a. First, there being a legitimate claim of executive privilege, the issuance
of the contempt Order suffers from constitutional infirmity.
b. Second,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." Compliance with this
requirement is imperative, both under Sections 21 and 22 of Article VI
of the Constitution. This must be so to ensure that the rights of both
persons appearing in or affected by such inquiry are respected as
mandated by said Section 21 and by virtue of the express language of
Section 22. Unfortunately, despite petitioner's repeated demands,
respondent Committees did not send him an advance list of questions.
c. Third, only a minority of the members of the Senate Blue Ribbon
Committee was present during the deliberation. Clearly, the needed
vote is a majority of all the members of the Committee. Apparently,
members who did not actually participate in the deliberation were made
to sign the contempt Order. Thus, there is a cloud of doubt as to the
validity of the contempt Order dated January 30, 2008.
d. Fourth, that respondent Committees likewise violated Section 21 of
Article VI of the Constitution, requiring that the inquiry be in accordance
with the "duly published rules of procedure."
e. Fifth, 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.