Romula vs Senate Committee

7/24/2019 Romula vs Senate Committee

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epublic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 180643 September 4, 2008

ROMULO L. NER,petitioner,vs.SENATE COMMTTEE ON ACCOUNTABLT! O" PUBLC O""CERSAN# N$ESTGATONS, SENATE COMMTTEE ON TRA#E AN#COMMERCE, AN# SENATE COMMTTEE ON NATONAL #E"ENSE

AN# SECURT!,respondents.

RESOLUTON

LEONAR#O%#E CASTRO, J.&

Executive privilege is not a personal privilege, but one that adheres to theOffice of the President. It exists to protect public interest, not to benefit aparticular public official. Its purpose, among others, is to assure that thenation will receive the benefit of candid, objective and untrammeled

communication and exchange of information between the President andhis/her advisers in the process of shaping or forming policies and arriving atdecisions in the exercise of the functions of the Presidenc under the!onstitution. "he confidentialit of the President#s conversations andcorrespondence is not uni$ue. It is a%in to the confidentialit of judicialdeliberations. It possesses the same value as the right to privac of allciti&ens and more, because it is dictated b public interest and theconstitutionall ordained separation of governmental powers.

In these proceedings, this !ourt has been called upon to exercise its power

of review and arbitrate a hotl, even acrimoniousl, debated disputebetween the !ourt#s co'e$ual branches of government. In this tas%, this!ourt should neither curb the legitimate powers of an of the co'e$ual andcoordinate branches of government nor allow an of them to overstep theboundaries set for it b our !onstitution. "he competing interests in thecase at bar are the claim of executive privilege b the President, on the onehand, and the respondent (enate !ommittees# assertion of their power toconduct legislative in$uiries, on the other. "he particular facts andcircumstances of the present case, stripped of the politicall and

emotionall charged rhetoric from both sides and viewed in the light of


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settled constitutional and legal doctrines, plainl lead to the conclusion thatthe claim of executive privilege must be upheld.

)ssailed in this motion for reconsideration is our *ecision dated March +,+-- the 0*ecision01, granting the petition for certiorarifiled b petitioner2omulo 3. 4eri against the respondent (enate !ommittees on

)ccountabilit of Public Officers and Investigations,5"rade and!ommerce,+and 4ational *efense and (ecurit collectivel the0respondent !ommittees01.6

) brief review of the facts is imperative.

On (eptember +7, +--8, petitioner appeared before respondent!ommittees and testified for about eleven 551 hours on matters concerning

the 4ational 9roadband Project the 0494 Project01, a project awarded bthe *epartment of "ransportation and !ommunications 0*O"!01 to :hong;ing "elecommunications E$uipment 0:"E01. Petitioner disclosed that then!ommission on Elections 0!OME3E!01 !hairman 9enjamin )balosoffered him P+-- Million in exchange for his approval of the 494 Project.

@ollowing the ruling in Senate v. Ermita, the foregoing $uestions fallunder conversations and correspondence between the President andpublic officials which are considered executive privilege Almonte v.Vasquez, =.2. A768, +6 Ma 5AAB Chavez v. PEA, =.2. 566+-,Cul A, +--+1. Maintaining the confidentialit of conversations of thePresident is necessar in the exercise of her executive and policdecision ma%ing process. "he expectation of a President to theconfidentialit of her conversations and correspondences, li%e the

value which we accord deference for the privac of all citi&ens, is thenecessit for protection of the public interest in candid, objective, and
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even blunt or harsh opinions in Presidential decision'ma%ing.*isclosure of conversations of the President will have a chilling effecton the President, and will hamper her in the effective discharge of herduties and responsibilities, if she is not protected b the

confidentialit of her conversations.

"he context in which executive privilege is being invo%ed is that theinformation sought to be disclosed might impair our diplomatic as wellas economic relations with the People#s 2epublic of !hina. =iven theconfidential nature in which these information were conveed to thePresident, he cannot provide the !ommittee an further details ofthese conversations, without disclosing the ver thing the privilege isdesigned to protect.

In light of the above considerations, this Office is constrained toinvo%e the settled doctrine of executive privilege as refined in Senatev. Ermita, and has advised (ecretar 4eri accordingl.

!onsidering that (ec. 4eri has been lengthil interrogated on thesubject in an unprecedented 55'hour hearing, wherein he hasanswered all $uestions propounded to him except the foregoing$uestions involving executive privilege, we therefore re$uest that histestimon on +- 4ovember +--8 on the :"E / 494 project bedispensed with.

On 4ovember +-, +--8, petitioner did not appear before respondent!ommittees upon orders of the President invo%ing executive privilege. On4ovember ++, +--8, the respondent !ommittees issued the show'causeletter re$uiring him to explain wh he should not be cited in contempt. On4ovember +A, +--8, in petitioner#s repl to respondent !ommittees, hemanifested that it was not his intention to ignore the (enate hearing andthat he thought the onl remaining $uestions were those he claimed to becovered b executive privilege.


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On the same date, petitioner moved for the reconsideration of the aboveOrder.


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TER LEGSLAT$E POER, AN# NOT MEREL! TERO$ERSGT "UNCTONS.

CONTRAR! TO TS ONORABLE COURTS #ECSON, TERECAN BE NO PRESUMPTON TAT TE N"ORMATONTEL# N TE NSTANT CASE S PR$LEGE#.

CONTRAR! TO TS ONORABLE COURTS #ECSON, TERES NO "ACTUAL OR LEGAL BASS TO OL# TAT TECOMMUNCATONS ELCTE# B! TE SUB5ECT TREE 37

UESTONS ARE CO$ERE# B! EECUT$E PR$LEGE,CONS#ERNG TAT&

A. TERE S NO SONG TAT TE MATTERS "OR CEECUT$E PR$LEGE S CLAME# CONSTTUTE STATESECRETS.

B. E$EN " TE TESTS A#OPTE# B! TS ONORABLECOURT N TE #ECSON S APPLE#, TERE S NO SONGTAT TE ELEMENTS O" PRES#ENTAL COMMUNCATONS

PR$LEGE ARE PRESENT.

C. ON TE CONTRAR!, TERE S A#EUATE SONG O" ACOMPELLNG NEE# TO 5UST"! TE #SCLOSURE O" TEN"ORMATON SOUGT.

#. TO UPOL# TE CLAM O" EECUT$E PR$LEGE N TENSTANT CASE OUL# SEROUSL! MPAR TERESPON#ENTS PER"ORMANCE O" TER PRMAR!"UNCTON TO ENACT LAS.

E. "NALL!, TE CONSTTUTONAL RGT O" TE PEOPLE TON"ORMATON, AN# TE CONSTTUTONAL POLCES ONPUBLC ACCOUNTABLT! AN# TRANSPARENC! OUTEGTE CLAM O" EECUT$E PR$LEGE.

$

CONTRAR! TO TS ONORABLE COURTS #ECSON,RESPON#ENTS ## NOT COMMT GRA$E ABUSE O"


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#SCRETON N SSUNG TE ASSALE# CONTEMPT OR#ER,CONS#ERNG TAT&

A. TERE S NO LEGTMATE CLAM O" EECUT$E PR$LEGEN TE NSTANT CASE.

B. RESPON#ENTS ## NOT $OLATE TE SUPPOSE#REUREMENTS LA# #ON NSENATE V. ERMITA.

C. RESPON#ENTS #UL! SSUE# TE CONTEMPT OR#ER NACCOR#ANCE T TER NTERNAL RULES.

#. RESPON#ENTS ## NOT $OLATE TE REUREMENTSUN#ER ARTCLE $, SECTON 21 O" TE CONSTTUTON

REURNG TAT TS RULES O" PROCE#URE BE #UL!PUBLSE#, AN# ERE #ENE# #UE PROCESS EN TECOURT CONS#ERE# TE OSGS NTER$ENTON ON TSSSUE TOUT G$NG RESPON#ENTS TE OPPORTUNT!TO COMMENT.

E. RESPON#ENTS SSUANCE O" TE CONTEMPT OR#ER SNOT ARBTRAR! OR PRECPTATE.

In his !omment, petitioner charges respondent !ommittees with

exaggerating and distorting the *ecision of this !ourt.


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constitutional mandate that the rights of witnesses be respectedB and ninth,neither petitioner nor respondent has the final sa on the matter ofexecutive privilege, onl the !ourt.

@or its part, the Office of the (olicitor =eneral maintains that> 11 there is nocategorical pronouncement from the !ourt that the assailed Orders wereissued b respondent !ommittees pursuant to their oversight functionBhence, there is no reason for them 0to ma%e much0 of the distinctionbetween (ections +5 and ++, )rticle GI of the !onstitutionB 21 presidentialcommunications enjo a presumptive privilege against disclosure as earlierheld inAlmonte v. VasquezAand Chavez v. Pulic Estates

Authorit!PEA15-B 61 the communications elicited b the three 31$uestions are covered b executive privilege, because all the elements ofthe presidential communications privilege are presentB 41 the subpoena ad

testificandumissued b respondent !ommittees to petitioner is fatalldefective under existing law and jurisprudenceB 91 the failure of the present(enate to publish its Rulesrenders the same voidB and 61 respondent!ommittees arbitraril issued the contempt order.

Incidentall, respondent !ommittees# objection to the 2esolution datedMarch 5, +-- granting the Office of the (olicitor =eneral#s Motion for3eave to Intervene and to )dmit )ttached Memorandum1 onl after thepromulgation of the *ecision in this case is foreclosed b its untimeliness.

"he core issues that arise from the foregoing respective contentions of theopposing parties are as follows>

11 whether or not there is a recogni&ed presumptive presidentialcommunications privilege in our legal sstemB

21 whether or not there is factual or legal basis to hold that thecommunications elicited b the three 61 $uestions are covered bexecutive privilegeB

31 whether or not respondent !ommittees have shown that thecommunications elicited b the three 61 $uestions are critical to theexercise of their functionsB and

41 whether or not respondent !ommittees committed grave abuse ofdiscretion in issuing the contempt order.

De shall discuss these issues seriatim.
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There Is a Recognized PresumtivePresidentia! "ommunications Privi!ege

2espondent !ommittees ardentl argue that the !ourt#s declaration thatpresidential communications are presumptivel privileged reverses the0presumption0 laid down in Senate v. Ermita55that 0inclines heavil againstexecutive secrec and in favor of disclosure.0 2espondent !ommitteesthen claim that the !ourt erred in reling on the doctrine in 4ixon.

2espondent !ommittees argue as if this were the first time the presumptionin favor of thepre'()e*t(+ -omm*(-+t(o*' pr(/(eeis mentioned andadopted in our legal sstem. "hat is far from the truth. "he !ourt, in theearlier case ofAlmonte v. Vasquez,5+affirmed that the pre'()e*t(+-omm*(-+t(o*' pr(/(eeis fundamental to the operation of government

and inextricabl rooted in the separation of powers under the !onstitution.Even Senate v. Ermita,56the case relied upon b respondent !ommittees,reiterated this concept. "here, the !ourt enumerated the cases in which theclaim of executive privilege was recogni&ed, among themAlmonte v.Chavez, Chavez v. Presidential Commission on Good Government"PCGG#,5?and Chavez v. PEA.5"he !ourt articulated in these cases that0there are certain tpes of information which the government ma withholdfrom the public,570 that there is a 0governmental privilege against publicdisclosure with respect to state secrets regarding militar, diplomatic andother national securit matters0B58and that 0t:e r(:t to (*;orm+t(o* )oe'

*ot epr(/(ee) (*;orm+t(o* *)er t:e'ep+r+t(o* o; po?er', b@ ?:(-: t:e Cort me+*t Pre'()e*t(+-o*/er'+t(o*', -orre'po*)e*-e', +*) )('-''(o*' (* -o'e)%)oorC+b(*et meet(*'.05

2espondent !ommittees# observation that this !ourt#s *ecision reversedthe 0presumption that inclines heavil against executive secrec and infavor of disclosure0 arises from a piecemeal interpretation of the said*ecision. "he !ourt has repeatedl held that in order to arrive at the true

intent and meaning of a decision, no specific portion thereof should beisolated and resorted to, but the decision must be considered in itsentiret.5A

4ote that the aforesaid presumption is made in the context of thecircumstances obtaining in Senate v. Ermita, which declared void (ections+b1 and 6 of Executive Order E.O.1 4o. ?7?, (eries of +--. "he pertinentportion of the decision in the said case reads>

@rom the above discussion on the meaning and scope of executive

privilege, both in the Fnited (tates and in this jurisprudence, a clearprinciple emerges. Executive privilege, whether asserted against
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!ongress, the courts, or the public, is recogni&ed onl in relationto certain t!$es of information of a sensitive character. Dhileexecutive privilege is a constitutional concept, a -+(mthereof mabe valid or not depending on the ground invo%ed to justif it and the

context in which it is made. 4oticeabl absent is an recognition thatexecutive officials are exempt from the dut to discloseinformation b the mere fact of being executive officials. Indeed, t:ee


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In light of this highl exceptional nature of the privilege, the !ourtfinds it essential to limit to the President the power to invo%e theprivilege. (he ma of course authori&e the Executive (ecretar toinvo%e the privilege on her behalf, in which case the Executive

(ecretar must state that the authorit is 09 order of the President0,which means that he personall consulted with her. "he privilegebeing an extraordinar power, it must be wielded onl b the highestofficial in the executive hierarch. In other words, the President manot authori&e her subordinates to exercise such power. "here is evenless reason to uphold such authori&ation in the instant case wherethe authori&ation is not explicit but b mere silence. (ection 6, inrelation to (ection +b1, is further invalid on this score.

"he constitutional infirmit found in the blan%et authori&ation to invo%e

executive privilege granted b the President to executive officials in (ec.+b1 of E.O. 4o. ?7? does not obtain in this case.

In this case, it was the President herself, through Executive (ecretarErmita, who invo%ed executive privilege on a specific matter involving anexecutive agreement between the Philippines and !hina, which was thesubject of the three 61 $uestions propounded to petitioner 4eri in thecourse of the (enate !ommittees# investigation. "hus, the factual setting ofthis case mar%edl differs from that passed upon in (enate v. Ermita.

Moreover, contrar to the claim of respondents, the *ecision in this presentcase hews closel to the ruling in Senate v. Ermita,+5to wit>

Executive rivi!ege

T:e p:r+'e e


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0"he expectation of a President to the confidentia!it# of hisconversations and corresondences, (e t:e -+(m o;-o*;()e*t(+(t@ o; )(-(+ )e(ber+t(o*', for example, he has all thevalues to which we accord deference for the privac of all citi&ens

and, added to those values, is the necessit for protection of thepublic interest in candid, objective, and even blunt or harsh opinionsin Presidential decision'ma%ing.A President and those %ho assisthim must e free to e&$lore alternatives in the $rocess of sha$ing

$olicies and ma'ing decisions and to do so in a %a! man! %ould eun%illing to e&$ress e&ce$t $rivatel!. T:e'e +re t:e -o*'()er+t(o*'

't(;@(* + pre'mpt(/e pr(/(ee ;or Pre'()e*t(+-omm*(-+t(o*'. T:e pr(/(ee (' ;*)+me*t+ to t:e oper+t(o*o; o/er*me*t +*) (*e


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the domain of the Executive, the said presumption dictates that the samebe recogni&ed and be given preference or priorit, in the absence of proofof a compelling or critical need for disclosure b the one assailing suchpresumption. )n construction to the contrar will render meaningless the

presumption accorded b settled jurisprudence in favor of executiveprivilege. In fact, Senate v. Ermitareiterates jurisprudence citing 0theconsiderations justifing a presumptive privilege for Presidentialcommunications.0+6

There Are $actua! and %ega! &ases to'o!d that the "ommunications E!icited (# the

Three )*+ ,uestions Are "overed (# Executive Privi!ege

2espondent !ommittees claim that the communications elicited b thethree 61 $uestions are not covered b executive privilege because theelements of the pre'()e*t(+ -omm*(-+t(o*' pr(/(eeare not present.

A. The o-er to enter into an executive agreement is a/uintessentia! and non0de!ega(!e residentia! o-er.

$irst, respondent !ommittees contend that the power to secure a foreignloan does not relate to a 0$uintessential and non'delegable presidential

power,0 because the !onstitution does not vest it in the President alone,but also in the Monetar 9oard which is re$uired to give its priorconcurrence and to report to !ongress.

"his argument is unpersuasive.

"he fact that a power is subject to the concurrence of another entit doesnot ma%e such power less executive. 0Huintessential0 is defined as themost perfect embodiment of something, the concentrated essence ofsubstance.+?On the other hand, 0non'delegable0 means that a power or

dut cannot be delegated to another or, even if delegated, the responsibilitremains with the obligor.+"he power to enter into an executive agreementis in essence an executive power. "his authorit of the President to enterinto executive agreements without the concurrence of the 3egislature hastraditionall been recogni&ed in Philippine jurisprudence.+74ow, the factthat the President has to secure the prior concurrence of the Monetar9oard, which shall submit to !ongress a complete report of its decisionbefore contracting or guaranteeing foreign loans, does not diminish theexecutive nature of the power.
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"he inviolate doctrine of separation of powers among the legislative,executive and judicial branches of government b no means prescribesabsolute autonom in the discharge b each branch of that part of thegovernmental power assigned to it b the sovereign people. "here is the

corollar doctrine of chec%s and balances, which has been carefullcalibrated b the !onstitution to temper the official acts of each of thesethree branches. "hus, b analog, the fact that certain legislative actsre$uire action from the President for their validit does not render such actsless legislative in nature. ) good example is the power to pass a law. )rticleGI, (ection +8 of the !onstitution mandates that ever bill passed b!ongress shall, before it becomes a law, be presented to the Presidentwho shall approve or veto the same. "he fact that the approval or vetoingof the bill is lodged with the President does not render the power to passlaw executive in nature. "his is because the power to pass law is generall

a $uintessential and non'delegable power of the 3egislature. In the samevein, the executive power to enter or not to enter into a contract to secureforeign loans does not become less executive in nature because ofconditions laid down in the !onstitution. "he final decision in the exerciseof the said executive power is still lodged in the Office of the President.

&. The doctrine of oerationa! roximit# -as !aid do-n recise!# to!imit the scoe of the residentia! communications rivi!ege (ut1 inan# case1 it is not conc!usive.

Second, respondent !ommittees also see% reconsideration of theapplication of the 0doctrine of operational proximit0 for the reason that 0itmabe misconstrued to expand the scope of the presidentialcommunications privilege to communications between those who areoperationall proximate# to the President but who ma have 0no directcommunications with her.0

It must be stressed that the doctrine of 0operational proximit0 was laiddown in In re( Sealed Case+8precisel to limit the scope of the presidential

communications privilege. "he F.(. court was aware of the dangers that alimitless extension of the privilege ris%s and, therefore, carefull cabined itsreach b explicitl confining it to Dhite


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the confidentialit of the President#s decision'ma%ing process isade$uatel protected. Not e/er@ per'o* ?:o p+@' + roe (* t:e)e/eopme*t o; pre'()e*t(+ +)/(-e, *o m+tter :o? remote +*)remo/e) ;rom t:e Pre'()e*t, -+* D+(;@ ;or t:e pr(/(ee. *

p+rt(-+r, t:e pr(/(ee ':o) *ot e


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and b1 in the balancing of interest, the !ourt disregarded the provisions ofthe 5A8 Philippine !onstitution on government transparenc,accountabilit and disclosure of information, specificall, )rticle III, (ection8B+A)rticle II, (ections +?6-and +B65)rticle ;I, (ection 5B6+)rticle ;GI,

(ection 5-B

66

)rticle GII, (ection +-B

6?

and )rticle ;II, (ections A,

6

+5,

67

and++.68

It must be stressed that the President#s claim of executive privilege is notmerel founded on her generali&ed interest in confidentialit. "he 3etterdated 4ovember 5, +--8 of Executive (ecretar Ermitaspecified pre'()e*t(+ -omm*(-+t(o*' pr(/(eein relationto )(pom+t(- +*) e-o*om(- re+t(o*' ?(t: +*ot:er 'o/ere(* *+t(o*asthe bases for the claim. "hus, the 3etter stated>

T:e -o*te

"he nature of foreign negotiations re$uires caution, and their successmust often depend on secrec, and even when brought to aconclusion, a full disclosure of all the measures, demands, or

eventual concessions which ma have been proposed orcontemplated would be extremel impolitic, for this might have a
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pernicious influence on future negotiations or produce immediateinconveniences, perhaps danger and mischief, in relation to otherpowers. "he necessit of such caution and secrec was one cogentreason for vesting the power of ma%ing treaties in the President, with

the advice and consent of the (enate, the principle on which thebod was formed confining it to a small number of members. "oadmit, then, a right in the

Pr(/(ee) -:+r+-ter o; )(pom+t(- *eot(+t(o*'

"he privileged character of diplomatic negotiations has beenrecogni&ed in this jurisdiction. In discussing valid limitations on theright to information, the !ourt in Chavez v. PCGGheld that0information on inter'government exchanges prior to the conclusionof treaties and executive agreements ma be subject to reasonablesafeguards for the sa%e of national interest.0 Even earlier, the same

privilege was upheld in Peo$le0s 1ovement for Press 2reedom"P1P2# v. 1angla$uswherein the !ourt discussed the reasons forthe privilege in more precise terms.

In P1P2 v. 1angla$us, the therein petitioners were see%inginformation from the President#s representatives on the state of thethen on'going negotiations of the 2P'F( Militar 9ases )greement."he !ourt denied the petition, stressing that 0'e-re-@ o;*eot(+t(o*' ?(t: ;ore(* -o*tr(e' (' *ot /(o+t(/eof the

constitutional provisions of freedom of speech or of the press nor o;t:e ;ree)om o; +--e'' to (*;orm+t(o*.0 "he 2esolution went on tostate, thus>

T:e *+tre o; )(pom+-@ reD(re' -e*tr+(=+t(o* o;+t:or(t@ +*) e


17/38

A -omp(-+te) *eot(+t(o* I-+**ot be -+rr(e)t:ro: ?(t:ot m+*@, m+*@ pr(/+te t+' +*))('-''(o*, m+* to m+*J m+*@ te*t+t(/e 'e't(o*'+*) propo'+'. #ee+te' ;rom ot:er -o*tr(e' -ome

+*) te @o (* -o*;()e*-e o; t:e(r trobe' +t :ome+*) o; t:e(r )(;;ere*-e' ?(t: ot:er -o*tr(e' +*) ?(t:ot:er )ee+te'J t:e@ te @o o; ?:+t t:e@ ?o) )o*)er -ert+(* -(r-m't+*-e' +*) ?o) *ot )o *)erot:er -(r-m't+*-e'I ; t:e'e report'I ':o)be-ome pb(-I ?:o ?o) e/er tr't Amer(-+*#ee+t(o*' (* +*ot:er -o*;ere*-eKFnited (tates*epartment of (tate, Press 2eleases, Cune 8, 5A6-, pp.++'+?1

x x x x

T:ere (' ;reDe*t -r(t(-('m o; t:e 'e-re-@ (* ?:(-:*eot(+t(o* ?(t: ;ore(* po?er' o* *e+r@ + 'be-t' ('-o*-er*e). T:(', (t (' -+(me), (' (*-omp+t(be ?(t: t:e'b't+*-e o; )emo-r+-@. )s expressed b one writer, 0It canbe said that there is no more rigid sstem of silence anwherein the world.0 E.C. Joung, 3oo%ing 9ehind the !ensorship, C.9. 3ipincott !o., 5A61 President Dilson in starting his effortsfor the conclusion of the Dorld Dar declared that we must have

0open covenants, openl arrived at.0


18/38

0x x x In this vast external realm, with its important,complicated, delicate and manifold problems, the Presidentalone has the power to spea% or listen as a representative ofthe nation.


19/38

"his !ourt did not rule that the (enate has no power to investigate the 494Project in aid of legislation. "here is nothing in the assailed *ecision thatprohibits respondent !ommittees from in$uiring into the 494 Project. "hecould continue the investigation and even call petitioner 4eri to testif

again.


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Incidentall, the right primaril involved here is the right of respondent!ommittees to obtain information allegedl in aid of legislation, not thepeople#s right to public information. "his is the reason wh we stressed inthe assailed *ecision the distinction between these two rights. )s laid down

in Senate v. Ermita, 0the demand of a citi&en for the production ofdocuments pursuant to his right to information does not have the sameobligator force as a su$oena duces tecumissued b !ongress0 and0neither does the right to information grant a citi&en the power to exacttestimon from government officials.0 )s pointed out, these rights belong to!ongress, not to the individual citi&en. It is worth mentioning at this juncturethat the parties here are respondent !ommittees and petitioner 4eri andthat there was no prior re$uest for information on the part of an individualciti&en. "his !ourt will not be swaed b attempts to blur the distinctionsbetween the 3egislatureLs right to information in a legitimate legislative

in$uir and the publicLs right to information.

"or -+r(t@, (t m't be emp:+'(=e) t:+t t:e +''+(e) #e-('(o* )() *ote*o(* re'po*)e*t Comm(ttee' ;rom (*D(r(* (*to t:e NBN Proe-t.A t:+t (' e


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In the *ecision, the majorit held that 0there is no ade$uate showing of acompelling need that would justif the limitation of the privilege and of theunavailabilit of the information elsewhere b an appropriate investigatingauthorit.0 In the Motion for 2econsideration, respondent !ommittees argue

that the information elicited b the three 61 $uestions are necessar in thedischarge of their legislative functions, among them, +1 to consider thethree 61 pending (enate 9ills, and b1 to curb graft and corruption.

De remain unpersuaded b respondents# assertions.

In -.S. v. 3i&on, the F.(. !ourt held that executive privilege is subject tobalancing against other interests and it is necessar to resolve thecompeting interests in a manner that would preserve the essential functionsof each branch. "here, the !ourt weighed between presidential privilege

and the legitimate claims of the judicial process. In giving more weight tothe latter, the !ourt ruled that the PresidentLs generali&ed assertion ofprivilege must ield to the demonstrated, specific need for evidence in apending criminal trial.

"he 4ixon !ourt ruled that an absolute and un$ualified privilege wouldstand in the wa of the primar constitutional dut of the Cudicial 9ranch todo justice in criminal prosecutions. "he said !ourt further ratiocinated,through its ruling extensivel $uoted in the

0... this presumptive privilege must be considered in light of ourhistoric commitment to the rule of law. "his is nowhere moreprofoundl manifest than in our view that Lthe twofold aim of criminal

justice1 is that guild shall not escape or innocence suffer.L 9erger v.Fnited (tates, +A F.(., at , (.!t., at 766. De have elected toemplo an adversar sstem of criminal justice in which the partiescontest all issues before a court of law. T:e *ee) to )e/eop +ree/+*t ;+-t' (* t:e +)/er'+r@ '@'tem (' bot: ;*)+me*t+ +*)

-ompre:e*'(/e. T:e e*)' o; -r(m(*+ 't(-e ?o) be )e;e+te)(; )me*t' ?ere to be ;o*)e) o* + p+rt(+ or 'pe-+t(/epre'e*t+t(o* o; t:e ;+-t'. T:e /er@ (*ter(t@ o; t:e )(-(+'@'tem +*) pb(- -o*;()e*-e (* t:e '@'tem )epe*) o* ;)('-o're o; + t:e ;+-t', ?(t:(* t:e ;r+me?or o; t:e re' o;e/()e*-e. To e*'re t:+t 't(-e (' )o*e, (t (' (mper+t(/e to t:e;*-t(o* o; -ort' t:+t -omp'or@ pro-e'' be +/+(+be for theproduction of evidence needed either b the prosecution or b thedefense.

xxx xxx xxx


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"he right to the production of all evidence at a criminal trial similarlhas constitutional dimensions. "he (ixth )mendment explicitlconfers upon ever defendant in a criminal trial ther(:t to be-o*;ro*te) ?(t: t:e ?(t*e'' ++(*'t :(m +*) to :+/e

-omp'or@ pro-e''for obtaining witnesses in his favor.L Moreover,the @ifth )mendment also +r+*tee' t:+t *o per'o* ':+ be)epr(/e) o; (bert@ ?(t:ot )e pro-e'' o; +?. It is the m+*(;e't)t@ o; t:e -ort' to /(*)(-+te t:o'e +r+*tee', and toaccomplish that it is essential that all relevant and admissibleevidence be produced.

In this case ?e m't ?e(: t:e (mport+*-e o; t:e e*er+pr(/(ee o; -o*;()e*t(+(t@ o; Pre'()e*t(+ -omm*(-+t(o*' (*per;orm+*-e o; t:e Pre'()e*t' re'po*'(b((t(e' ++(*'t t:e

(*ro+)' o; '-: + pr(/(ee o* t:e ;+(r +)m(*('tr+t(o* o; -r(m(*+'t(-e. "em$hasis su$$lied#

xxx xxx xxx

...the allowance of the privilege to withhold evidence thatis )emo*'tr+b@ ree/+*t (* + -r(m(*+ tr(+ ?o) -t )eep@ (*tot:e +r+*tee o; )e pro-e'' o; +? +*) r+/e@ (mp+(r t:eb+'(- ;*-t(o* o; t:e -ort'.) Pre'()e*t' +-*o?e)e) *ee);or -o*;()e*t(+(t@in the communications of his office is e*er+in

nature, whereas the-o*'t(tt(o*+ *ee) ;or pro)-t(o* o; ree/+*te/()e*-e (* + -r(m(*+ pro-ee)(* (' 'pe-(;(- +*) -e*tr+ to t:e;+(r +))(-+t(o* o; + p+rt(-+r -r(m(*+ -+'e (* t:e+)m(*('tr+t(o* o; 't(-e.Dithout access to specific facts a criminalprosecution ma betot+@ ;r'tr+te). "he Pre'()e*t' bro+)(*tere't (* -o*;()e*t(+(t@ o; -omm*(-+t(o* will*ot be/(t(+te) b )('-o're o; + (m(te) *mber o; -o*/er'+t(o*'pre(m(*+r(@ ':o?* to :+/e 'ome be+r(*on the pending criminalcases.

De conclude that when the ground for asserting privilege as tosubpoenaed materials sought for use in a criminal trial is based onlon the e*er+(=e) (*tere't (* -o*;()e*t(+(t@, it -+**ot pre/+(o/er t:e ;*)+me*t+ )em+*)' o; )e pro-e'' o; +? (* t:e ;+(r+)m(*('tr+t(o* o; -r(m(*+ 't(-e."he generali&ed assertion ofprivilege must ield to the )emo*'tr+te), 'pe-(;(- *ee)forevidence in a pending -r(m(*+ tr(+. "em$hasis su$$lied#

In the case at bar, we are not confronted with a court#s need for facts in

order to adjudge liabilit in a criminal case but rather with the (enate#sneed for information in relation to its legislative functions. "his leads us to


23/38

consider once again just how critical is the subject information in thedischarge of respondent !ommittees# functions. "he burden to show this ison the respondent !ommittees, since the see% to intrude into the sphereof competence of the President in order to gather information which,

according to said respondents, would 0aid0 them in crafting legislation.

Senate Select Committee on Presidential Cam$aign Activities v.3i&on?5expounded on the nature of a legislative in$uir in aid of legislationin this wise>

"he sufficienc of the !ommitteeLs showing of need has come todepend, therefore, entirel on whether the subpoenaed materials arecritical to the performance of its legislative functions. "here is a cleardifference between !ongressL legislative tas%s and the responsibilit

of a grand jur, or an institution engaged in li%e functions. :(e;+-t%;(*)(* b@ + e('+t(/e -omm(ttee (' *)e*(+b@ + p+rt o; (t't+', e('+t(/e )me*t' *orm+@ )epe*) more o* t:epre)(-te) -o*'eDe*-e' o; propo'e) e('+t(/e +-t(o*' +*)t:e(r po(t(-+ +--ept+b((t@, t:+* o* pre-('e re-o*'tr-t(o* o;p+'t e/e*t'B !ongress fre$uentl legislates on the basis ofconflicting information provided in its hearings. In contrast, theresponsibilit of the grand jur turns entirel on its abilit to determinewhether there is probable cause to believe that certain namedindividuals did or did not commit specific crimes. If, for example, as in

4ixon v. (irica, one of those crimes is perjur concerning the contentof certain conversations, the grand jurLs need for the most preciseevidence, the exact text of oral statements recorded in their originalform, is undeniable. e 'ee *o -omp+r+be *ee) (* t:e e('+t(/epro-e'', +t e+'t *ot (* t:e -(r-m't+*-e' o; t:(' -+'e. Indeed,whatever force there might once have been in the !ommitteeLsargument that the subpoenaed materials are necessar to itslegislative judgments has been substantiall undermined bsubse$uent events. Emphasis supplied1

!learl, the need for hard facts in crafting legislation cannot be e$uatedwith the compelling or demonstrativel critical and specific need for factswhich is so essential to the judicial power to adjudicate actualcontroversies. )lso, the bare standard of 0pertinenc0 set inArnaultcannotbe lightl applied to the instant case, which unli%eArnaultinvolves a conflictbetween two +1 separate, co'e$ual and coordinate 9ranches of the=overnment.

Dhatever test we ma appl, the starting point in resolving the conflicting

claims between the Executive and the 3egislative 9ranches is therecogni&ed existence of the presumptive presidential communications
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privilege. "his is conceded even in the *issenting Opinion of the

) hard loo% at Se*+te /. Erm(t+ought to ield the conclusion that itbestowed a $ualified presumption in favor of the Presidentialcommunications privilege. )s shown in the previous discussion, U.S./. N(


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4umber 5 whether the President followed up the 494 project.)ccording to the other counsel this $uestion has alread beenas%ed, is that correct

ATT!. AGABN

Dell, the $uestion has been as%ed but it was not answered,Jour


26/38

ATT!. AGABN

I thin% it is critical to la the factual foundations for a proposedamendment to the Procurement 3aw, Jour


27/38

)nent respondent !ommittees# bewailing that the would have to0speculate0 regarding the $uestions covered b the privilege, this does notevince a compelling need for the information sought. Indeed,Senate SelectCommittee on Presidential Cam$aign Activities v. 3i&on?6held that while

fact'finding b a legislative committee is undeniabl a part of its tas%,legislative judgments normall depend more on the predictedconse$uences of proposed legislative actions and their politicalacceptabilit than on a precise reconstruction of past events. It added that,normall, !ongress legislates on the basis of conflicting informationprovided in its hearings. De cannot subscribe to the respondent!ommittees# self'defeating proposition that without the answers to the three61 $uestions objected to as privileged, the distinguished members of therespondent !ommittees cannot intelligentl craft legislation.

)nent the function to curb graft and corruption, it must be stressed thatrespondent !ommittees# need for information in the exercise of this functionis not as compelling as in instances when the purpose of the in$uir islegislative in nature. "his is because curbing graft and corruption is merelan oversight function of !ongress.??)nd if this is the primar objective ofrespondent !ommittees in as%ing the three 61 $uestions covered bprivilege, it ma even contradict their claim that their purpose is legislativein nature and not oversight. In an event, whether or not investigating graftand corruption is a legislative or oversight function of !ongress, respondent!ommittees# investigation cannot transgress bounds set b the!onstitution.

In 4engzon+ )r. v. Senate 4lue Rion Committee,?this !ourt ruled>

T:e +o-+t(o* o; -o*'t(tt(o*+ bo*)+r(e' (' + t+' t:+t t:('Cort m't per;orm *)er t:e Co*'t(tt(o*. Moreover, as held ina recent case, 0the political $uestion doctrine neither interposes anobstacle to judicial determination of the rival claims. "he jurisdictionto delimit constitutional boundaries has been given to this !ourt. It

cannot abdicate that obligation mandated b the 5A8 !onstitution,although said provision b no means does awa with the applicabilitof the principle in appropriate cases.?7Emphasis supplied1

"here, the !ourt further ratiocinated that 0t:e -o*temp+te) (*D(r@brespondent !ommittee is not reall in aid of legislation# because (t (' *otre+te) to + prpo'e ?(t:(* t:e r(')(-t(o* o; Co*re'', '(*-e t:e +(mo; t:e (*/e't(+t(o* (' to ;(*) ot ?:et:er or *ot t:e re+t(/e' o; t:ePre'()e*t or Mr. R(-+r)o Lop+ :+) /(o+te) Se-t(o* 9 o; R.A. No. 301,t:eAnti08raft and "orrut Practices Act, + m+tter t:+t +ppe+r' more

?(t:(* t:e pro/(*-e o; t:e -ort' r+t:er t:+* o; t:eLe('+tre.0?8Emphasis and underscoring supplied1
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"he general thrust and the tenor of the three 61 $uestions is to trace thealleged briber to the Office of the President.?Dhile it ma be a worthendeavor to investigate the potential culpabilit of high governmentofficials, including the President, in a given government transaction, it is

simpl not a tas% for the (enate to perform. "he role of the 3egislature is toma%e laws, not to determine anone#s guilt of a crime or wrongdoing. Our!onstitution has not bestowed upon the 3egislature the latter role. Cust asthe Cudiciar cannot legislate, neither can the 3egislature adjudicate orprosecute.

2espondent !ommittees claim that the are conducting an in$uir in aid oflegislationand a 0search for truth,0 which in respondent !ommittees# viewappears to be e$uated with the search for persons responsible for0anomalies0 in government contracts.

4o matter how noble the intentions of respondent !ommittees are, thecannot assume the power reposed upon our prosecutorial bodies andcourts. "he determination of who is/are liable for a crime or illegal activit,the investigation of the role plaed b each official, the determination ofwho should be haled to court for prosecution and the tas% of coming upwith conclusions and finding of facts regarding anomalies, especiall thedetermination of criminal guilt, are not functions of the (enate. !ongress isneither a law enforcement nor a trial agenc. Moreover, it bears stressingthat no in$uir is an end in itselfB it must be related to, and in furtherance of,

a legitimate tas% of the !ongress, i.e. legislation. Investigations conductedsolel to gather incriminator evidence and 0punish0 those investigated areindefensible. "here is no !ongressional power to expose for the sa%e ofexposure.?AIn this regard, the pronouncement in 4arenlatt v. -nitedStates-is instructive, thus>

Bro+) +' (t (', t:e po?er (' *ot, :o?e/er, ?(t:ot (m(t+t(o*'.(ince !ongress ma onl investigate into the areas in which it mapotentiall legislate or appropriate, it cannot in$uire into matters

which are within the exclusive province of one of the other branchesof the government. 3ac%ing the judicial power given to the Cudiciar, itcannot in$uire into matters that are exclusivel the concern of theCudiciar. 4either can it supplant the Executive in what exclusivelbelongs to the Executive. Emphasis supplied.1

)t this juncture, it is important to stress that complaints relating to the 494Project have alread been filed against President )rroo and otherpersonalities before the Office of the Ombudsman. Fnder our !onstitution,it is the Ombudsman who has the dut 0to (*/e't(+te +*@ +-t or

om(''(o* o; +*@ pb(- o;;(-(+, empo@ee, o;;(-e or +e*-@ ?:e* '-:+-t or om(''(o* +ppe+r' to be (e+, *'t, (mproper, or
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(*e;;(-(e*t.05"he Office of the Ombudsman is the bod properl e$uippedb the !onstitution and our laws to preliminaril determine whether or notthe allegations of anomal are true and who are liable therefor. "he sameholds true for our courts upon which the !onstitution reposes the dut to

determine criminal guilt with finalit. Indeed, the rules of procedure in theOffice of the Ombudsman and the courts are ?e%)e;(*e)and e*'re t:+tt:e -o*'t(tt(o*+@ +r+*tee) r(:t' o; + per'o*', p+rt(e' +*)?(t*e''e' +(e, +re prote-te) +*) '+;e+r)e).

(hould respondent !ommittees uncover information related to a possiblecrime in the course of their investigation, the have the constitutional dutto refer the matter to the appropriate agenc or branch of government."hus, the 3egislature#s need for information in an investigation of graft andcorruption cannot be deemed compelling enough to pierce the

confidentialit of information validl covered b executive privilege. )sdiscussed above, the 3egislature can still legislate on graft and corruptioneven without the information covered b the three 61 $uestions subject ofthe petition.

!orollaril, respondent !ommittees justif their rejection of petitioner#sclaim of executive privilege on the ground that there is no privilege whenthe information sought might involve a crime or illegal activit, )e'p(te t:e+b'e*-e o; +* +)m(*('tr+t(/e or )(-(+ )eterm(*+t(o* to t:+t e;;e-t.(ignificantl, however, in 3i&on v. Sirica,+the showing re$uired to

overcome the presumption favoring confidentialit turned, *ot o* t:e*+tre o; t:e pre'()e*t(+ -o*)-t t:+t t:e 'bpoe*+e) m+ter(+ m(:tre/e+, bt, (*'te+), o* t:e *+tre +*) +ppropr(+te*e'' o; t:e ;*-t(o*(* t:e per;orm+*-e o; ?:(-: t:e m+ter(+ ?+' 'o:t, +*) t:e )ereeto ?:(-: t:e m+ter(+ ?+' *e-e''+r@ to (t' ;;(me*t.

2espondent !ommittees assert that (enate Select Committee onPresidential Cam$aign Activities v. 3i&ondoes not appl to the case at barbecause, unli%e in the said case, no impeachment proceeding has been

initiated at present. "he !ourt is not persuaded. Dhile it is true that noimpeachment proceeding has been initiated, however, complaints relatingto the 494 Project have alread been filed against President )rroo andother personalities before the Office of the Ombudsman. )s the !ourt hassaid earlier, the prosecutorial and judicial arms of government are thebodies e$uipped and mandated b the !onstitution and our laws todetermine whether or not the allegations of anomal in the 494 Project aretrue and, if so, who should be prosecuted and penali&ed for criminalconduct.

3egislative in$uiries, unli%e court proceedings, are not subject to theexacting standards of evidence essential to arrive at accurate factual
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findings to which to appl the law.


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function effectivel. "he re$uirements set forth in Senate v. Ermitaaremodest mechanisms that would not undul limit !ongress# power. "helegislative in$uir must be confined to permissible areas and thus, preventthe 0roving commissions0 referred to in the F.(. case, 5ilourn v.

/hom$son.

?

3i%ewise, witnesses have their constitutional right to dueprocess. "he should be ade$uatel informed what matters are to becovered b the in$uir. It will also allow them to prepare the pertinentinformation and documents. "o our mind, these re$uirements concede toolittle political costs or burdens on the part of !ongress when viewed vis'N'vis the immensit of its power of in$uir. "he logic of these re$uirements iswell articulated in the stud conducted b Dilliam P. Marshall,to wit>

) second concern that might be addressed is that the current sstemallows committees to continuall investigate the Executive without

constraint. O*e pro-e'' 'ot(o* +))re''(* t:(' -o*-er* (' toreD(re e+-: (*/e't(+t(o* be t(e) to + -e+r@ 't+te) prpo'e.)tpresent, the charters of some congressional committees are so broadthat virtuall an matter involving the Executive can be construed tofall within their province. )ccordingl, investigations can proceedwithout articulation of specific need or purpose. ) re$uirement for amore precise charge in order to begin an in$uir should immediatelwor% to limit the initial scope of the investigation and should alsoserve to contain the investigation once it is instituted.A))(t(o*+@, tot:e e


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commanded him to 0testif on what he %nows relative to the subject matterunder in$uir.0

)nent the third argument, respondent !ommittees contend that their Rulesof Procedure Governing Inquiries in Aid of Legislationthe 02ules01 arebeond the reach of this !ourt. Dhile it is true that this !ourt must refrainfrom reviewing the internal processes of !ongress, as a co'e$ual branch ofgovernment, however, when a constitutional re$uirement exists, the !ourthas the dut to loo% into !ongress# compliance therewith. De cannot turn ablind ee to possible violations of the !onstitution simpl out of courtes. Inthis regard, the pronouncement inArro!o v. ,e Venecia7is enlightening,thus>

0!ases both here and abroad, in varing forms of expression, all

den to the courts the power to in$uire into allegations that, inenacting a law, a "he!onstitution empowers each


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membership of eighteen 51 (enators. Dith respect torespondent Committee on /rade and Commercewhich has a membershipof nine A1 (enators, onl three 61 members were present.8"hese factsprompted us to $uote in the *ecision the exchanges between (enators

)lan Peter !aetano and )$uilino Pimentel, Cr. whereb the former raisedthe issue of lac% of the re$uired majorit to deliberate and vote on thecontempt order.

Dhen as%ed about such voting during the March ?, +-- hearing beforethis !ourt, (enator @rancis Pangilinan stated that an defect in thecommittee voting had been cured because two'thirds of the (enatorseffectivel signed for the (enate in plenar session.

Obviousl the deliberation of the respondent !ommittees that led to the

issuance of the contempt order is flawed. Instead of being submitted to afull debate b all the members of the respondent !ommittees, the contemptorder was prepared and thereafter presented to the other members forsigning. )s a result, the contempt order which was issued on Canuar 6-,+-- was not a faithful representation of the proceedings that too% place onsaid date. 2ecords clearl show that not all of those who signed thecontempt order were present during the Canuar 6-, +-- deliberationwhen the matter was ta%en up.

(ection +5, )rticle GI of the !onstitution states that>

"he (enate or the


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RULE LAMEN#MENTS TO, OR RE$SONS O", TE RULES

SEC. 136. )t the start of each session in which the (enators electedin the preceding elections shall begin their term of office, thePresident ma endorse the 2ules to the appropriate committee foramendment or revision.

"he 2ules ma also be amended b means of a motion which shouldbe presented at least one da before its consideration, and the voteof the majorit of the (enators present in the session shall bere$uired for its approval. emphasis supplied1

RULE L

#ATE O" TANG E""ECT

SEC. 13F. "hese 2ules shall ta%e effect on the date of their adoptionand shall remain in force until the are amended or repealed.emphasis supplied1

(ection 567 of the (enate 2ules $uoted above ta%es into account the newcomposition of the (enate after an election and the possibilit of theamendment or revision of the 2ules at the start of eachsession in which thenewl elected (enators shall begin their term.


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If it was the intention of the (enate for its present rules on legislativein$uiries to be effective even in the next !ongress, it could have easiladopted the same language it had used in its main rules regardingeffectivit.

3est the !ourt be misconstrued, it should li%ewise be stressed that not allorders issued or proceedings conducted pursuant to the subject Rulesarenull and void. Onl those that result in violation of the rights of witnessesshould be considered null and void, considering that the rationale for thepublication is to protect the rights of witnesses as expressed in (ection +5,

)rticle GI of the !onstitution. Sanssuch violation, orders and proceedingsare considered valid and effective.

2espondent !ommittees# last argument is that their issuance of the

contempt order is not precipitate or arbitrar. "a%ing into account the totalitof circumstances, we find no merit in their argument.

)s we have stressed before, petitioner is not an unwilling witness, andcontrar to the assertion of respondent !ommittees, petitioner did notassume that the no longer had an other $uestions for him.


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On a concluding note, we are not unmindful of the fact that the Executiveand the 3egislature are political branches of government. In a free anddemocratic societ, the interests of these branches inevitabl clash, buteach must treat the other with official courtes and respect. "his !ourt

wholeheartedl concurs with the proposition that it is imperative for thecontinued health of our democratic institutions that we preserve theconstitutionall mandated chec%s and balances among the differentbranches of government.

In the present case, it is respondent !ommittees# contention that theirdetermination on the validit of executive privilege should be binding on theExecutive and the !ourts. It is their assertion that theirinternal proceduresand deliberations cannot be in$uired into b this !ourt supposedl inaccordance with the principle of respect between co'e$ual branches of

government. Interestingl, it is a courtes that the appear to be unwilling toextend to the Executive on the matter of executive privilege1 or this !ourton the matter of judicial review1. It moves this !ourt to wonder> Inrespondent !ommittees# paradigm of chec%s and balances, what are thechec%s to the 3egislature#s all'encompassing, awesome power ofinvestigation It is a power, li%e an other, that is susceptible to graveabuse.

Dhile this !ourt finds laudable the respondent !ommittees# well'intentioned efforts to ferret out corruption, even in the highest echelons of

government, such loft intentions do not validate or accord to !ongresspowers denied to it b the !onstitution and granted instead to the otherbranches of government.

"here is no $uestion that an stor of government malfeasance deservesan in$uir into its veracit. )s respondent !ommittees contend, this isfounded on the constitutional command of transparenc and publicaccountabilit. "he recent clamor for a 0search for truth0 b the generalpublic, the religious communit and the academe is an indication of a

concerned citi&enr, a nation that demands an accounting of an entrustedpower.


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SO OR#ERE#.

Documents

Romula vs Senate Committee