NERI 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: Petition for certiorari was filed by petitioner Romulo L. Neri against the respondent Senate Committees on Accountability of Public Officers and Investigations Trade and Commerce and National Defense and Security concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c) whether or not she directed him to approve it As a result, the Senate cited him for contempt. ISSUES: (1) whether or not there is a recognized presumptive presidential communications privilege in our legal system; (2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive privilege; (3) whether or not respondent Committees have shown that the communications elicited by the three (3) questions are critical to the exercise of their functions; and (4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order. HELD: 1. Yes, there Is a Recognized Presumptive Presidential Communications Privilege.Presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. The Court articulated in these cases that "there are certain types of information which the government may withhold from the public," that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters"; and that "the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power - the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom. 2. Yes,there Are Factual and Legal Bases to Hold that the Communications Elicited by the Three (3) Questions Are Covered by Executive Privilege. Communications elicited by the three (3) questions are covered by executive privilege because the elements of the presidential communications privilege are present. A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential power." The fact that a power is subject to the concurrence of another entity does not make such power less executive."Quintessential" is defined as the most perfect embodiment of something, the concentrated essence of substance.On the other hand, "non-delegable" means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the obligor.25 The power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government by no means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the President does not render the power to pass law executive in nature. This is because the power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in nature because of conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged in the Office of the President. B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential communications privilege but, in any case, it is not conclusive. In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her official family.In determining which test to use, the main consideration is to limit the availability of executive privilege only to officials who stand proximate to the President, not only by reason of their function, but also by reason of their positions in the Executive’s organizational structure. C. The President’s claim of executive privilege is not merely based on a generalized interest; and in balancing respondent Committees’ and the President’s clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency, accountability and disclosure of information. It must be stressed that the President’s claim of executive privilege is not merely founded on her generalized interest in confidentiality.It is easy to discern the danger that goes with the disclosure of the President’s communication with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds between officials of the Philippines and China. Whatever the President says about the agreement - particularly while official negotiations are ongoing - are matters which China will surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as economic relations with the People’s Republic of China. In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the public’s right to information or diminish the importance of public accountability and transparency. The Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed his willingness to do so. The decision merely excludes from the scope of respondents’ investigation the three (3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be compelled to appear before respondents to answer the said questions. The COur discussed the reasons why these answers are covered by executive privilege. That there is a recognized public interest in the confidentiality of such information is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute right.Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly in aid of legislation, not the people’s right to public information. 3.Yes, respondent Committees failed to Show that the Communications Elicited by the three questions are critical to the exercise of their functions to reiterate, this Court recognizes respondent Committees’ power to investigate the NBN Project in aid of legislation.While it is true that no impeachment proceeding has been initiated, however, complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for criminal conduct. 4.Yes,respondent committees committed grave abuse of discretion in issuing the contempt order. Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that should have been granted by respondent Committees. In the present case, the Court’s exercise of its power of judicial review is warranted because there appears to be a clear abuse of the power of contempt on the part of respondent Committees. As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is hereby DENIED.