EN BANC

Agenda for March 25, 2008

G.R. No. 180643 (Romulo L. Neri, in his capacity as

Chairman of the Commission on Higher Education and as former
Director General of the National Economic & Development
Authority (NEDA) v. Senate Committee on Accountability of
Public Officers and Investigations, et al.)

Promulgated:

March 25, 2008

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S E P A R A T E C O N C U R R I N G O P I N I O N

VELASCO, JR., J .:

This case turns on the privileged nature of what the

petitioner, as then NEDA Director-General, discussed with the
President regarding the scuttled ZTE-NBN contract juxtaposed
with the authority of respondents Senate committees to look,
in aid of legislation, into what was discussed.

On September 26, 2007, petitioner, on invitation of the

respondents, testified on the ZTE-NBN contract and the bribe
dangled in connection thereto. When queried on what he
discussed with the President after he divulged the bribe
offer, petitioner declined to disclose details of their
conversations which he deemed privileged. Anticipating to be
asked on the same subject and on order of the President
invoking executive privilege, petitioner sent regrets on his
inability

to

appear

in

the

November

20,

2007

hearing.

Respondents then asked the petitioner to explain why he

should not be cited for contempt. Explain petitioner did,
with

request

that

he

be

furnished

in

advance

with

questionnaires should respondents desire to touch on new

matters. The contempt threat, which would eventually be
carried out with the issuance of an arrest order, is cast
against
straight

backdrop
hours

that

with

saw

the

petitioner

investigation

staying

for

committees

11
and

answering all their questions, save those he deemed covered

by executive privilege.
Congressional investigations to elicit information in
aid of legislation are valid exercise of legislative power,
just as the claim of executive privilege is a valid exercise
of executive power. In the Philippine setting, the term
executive privilege means the power of the President to
withhold certain types information from the courts, the
Congress, and ultimately the public.[1] Apart from diplomatic
and

military

secrets

and

the

identity

of

government

informers, another type of information covered by executive

privilege relates to information about internal deliberations

comprising the process by which government decisions are
reached or policies formulated.[2] U.S. v. Nixon explains the
basis for the privilege in the following wise:

The expectation of a President to the confidentiality

of his conversation and correspondences, like the claim of
confidentiality of judicial deliberations x x x has all the
values to which we accord deference for the privacy of all
citizens. x x x A President and those who assist him must be
free to explore alternatives in the process of shaping
policies and making decisions and to do so in a way many
would be unwilling to express privately. These are the
considerations justifying a presumptive privilege for
Presidential communications.[3]

Authorities

are

agreed

that

executive

privilege

is

rooted on the doctrine of separation of powers, a basic

postulate that forbids one branch of government to exercise
powers belonging to another co-equal branch; or for one
branch to interfere with the others performance of its
constitutionally-assigned

functions.

It

recognition

doctrine

that

of

conversations,
closed-door

the

correspondences,

Cabinet

meetings

or
which,

is

partly

in

presidential

discussions
like

during

internal-

deliberations of the Supreme Court x x x or executive

sessions of either house of Congress x x x cannot be pried
open by a co-equal branch of government.[4] And as the Court
aptly observed in Gudani v. Senga,[5] the fact that the
executive branch is an equal branch to the legislative
creates a wrinkle to any basic rule that persons summoned to

testify before Congress must do so.

So, was the eventual issuance of the assailed citation
and

arrest

order

justified

when

the

duly

subpoenaed

petitioner declined to appear before the respondents hearing

through a claim of executive privilege By Order of the
President? I turn to the extent and limits of the legislative
power of inquiry in aid of legislation.

What was once an implicit authority of Congress and its

committees to conduct hearings in aid of legislationwith the
concomitant power necessary and proper for its effective
discharge[6] is now explicit in the 1987 Constitution.[7] And
this power of inquiry carries with it the authority to exact
information

on

matters

which

Congress

is

competent

to

legislate, subject only to constitutional restrictions.[8] The

Court, in Arnault v. Nazareno,[9] acknowledged that once an
inquiry is established to be within the jurisdiction of a
legislative body to make, the investigation committee has the
power to require the witness to answer any question pertinent
to the subject of the inquiry and punish a recalcitrant or
unwilling witness for contempt. But Bengson v. Senate Blue

Ribbon Committee[10] made it abundantly clear that the power

of Congress to conduct inquiries in aid of legislation is not
absolute or unlimited.

Section 21, Article VI of the Constitution providing:

The Senate or the House of Representatives or any

its respective committees may conduct inquiries in aid
legislation in accordance with its duly published rules
procedure. The rights of persons appearing in or affected
such inquiries shall be respected.

of
of
of
by

establishes what we tagged in Senate v. Ermita (Ermita) as

crucial safeguards that circumscribe the legislative power of
inquiry. The provision thus requires the inquiry to: (1)
properly be in aid of legislation, else, the investigating
committee acts beyond its power; without a valid legislative
purpose, a congressional committee is without authority to
use the compulsory process otherwise available in the conduct
inquiry in aid of legislation;[11] (2) be done in accordance
with duly published rules of procedure, irresistibly implying
the constitutional infirmity of an inquiry conducted without
or in violation of such published rules; and (3) respect the
rights of persons invited or subpoenaed to testify, such as
their right against self-incrimination and to be treated in
accordance with the norms individuals of good will observe.

The Communications between Petitioner

and the President are Covered by Executive Privilege;
the Privilege was Properly Claimed by and for Petitioner