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Case Digest for Neri vs.

Senate FACTS: A petition for certiorari1 was filed by petitioner Neri assailing the show cause letter dated November 22, 2007 and a subsequent order to cite petitioner in contempt more than a month later, January 30, 2008. Both documents were filed by the Senate Committees headed by the Senate Committee on Accountability of Public Officers and Investigations otherwise known as the Blue Ribbon Committee. The antecedent events occurred previous to the issuance of the order and facts that have been culled up during the investigation are as follows: The Department of Transportation and Communication (DOTC) entered into a contract with Zhing Xing Telecommunications Equipment (ZTE) on April 21, 2007 for the purpose of supplying equipment and services of a National Broadband Network (NBN) Project. The full consideration amount of US$329,481,290 (Php 16 Billion) is to be financed by the Peoples Republic of China. In conjunction with the investigation, several resolutions to fill in legislative deficiencies were filed in Procurement law and executive-diplomatic treatises and agreements. Simultaneously, this investigation resulted into the proposal of three pending bills in the Senate. Senate Bill No, 1793 was filed to subject treaties or executive agreements involving funding of projects to the scope of RA 9184 or the Government Procurement Reform Act. Another bill was filed to impose safeguards in contracting loans classified as Official Development Assistance (ODA), and finally, a bill requiring concurrence to international and executive agreements. The Senate Committees initiated the investigation by inviting officials and persons involved in the specified project. Secretary Romulo L. Neri was one of those invited to the hearings. On three occasions the Petitioner was invited, he only appeared once. On another occasion the Respondent Committees invited Jose De Venecia, III who revealed that there were high officials pushing for the project. The project was originally to be realized manifested on a Build-Operate-Transfer (BOT) basis but soon, the witness found out it was converted into a government-to-government project. The aforesaid project involved the

Republic of the Philippines and Peoples Republic of China and is to be financed by a grant of loan by the latter. Petitioner Neri who testified on September 26, 2007 disclosed that Commission on Elections (COMELEC) Commissioner Benjamin Abalos offered him a P200 million bribe to prioritize the project. That particular hearing lasted eleven hours. Neri, according to his testimony, immediately informed President Arroyo of the attempt him but he was instructed by her not to accept it. However, when Neri was probed to elaborate on the matters pertaining to the NBN deal with the President, he refused to answer the question on the ground of executive privilege. He refused to answer the following questions: Whether or not the President followed up the NBN Project. Whether or not she directed him to prioritize it. Whether or not she directed him to approve. Adamant as they could be, the respondent summoned the petitioner once again on November 20, 2007. However, Executive Secretary Ermita wrote on November 15, 2007 to dispense with Neris testimony as this was covered by executive privilege. On the appointed date of the inquiry, petitioner did not appear in the proceedings. As a consequence, the Senate issued a show cause letter demanding that Neri to explain why he failed to appear before them and why he should not be cited in contempt. The Petitioner replied that it was not his intention to snub the hearings and that he thought he was going to be asked the three remaining questions covered by executive privilege. Moreover, with the assistance of counsel, Atty. Antonio R. Bautista, the Petitioner claimed that his non-appearance was upon order of the President and his conversation with her involved delicate national security and matters contingent to the impact of high ranking officials embroiled in bribery which probably results to loss of investor confidence in the country. The Petitioner also requested that he be furnished with other questions in advance so he may adequately prepare himself. When Senates inquiry was in recess, Petitioner filed a petition for Certiorari berating the show cause letter.

Meanwhile, Respondents found Neris explanation unsatisfactory and moved to cite him in contempt and to order the sergeant-at-arms to arrest and detain him at the Senate until such time he speaks up on the matter. Neri moved for the reconsideration of the above order. He alleged that he did not display a demeanor worthy of contempt and arrest. He reiterated that he was willing to accommodate any endeavor to shed light into the issue, provided he be furnished with questions in advance, a request which respondents did not heed. On February 5, 2008 the Supreme Court issued a Status Quo Ante Order 2(a) enjoining respondents from implementing their contempt order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the contempt order and (c) requiring respondents to file their comment3. Petitioner asserts that both the show cause letter and contempt order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Again, petitioner underscores that any conversation or correspondence between cabinet members and the President are confidential since discussions involved the impact of exploring options in making policy decisions. While Petitioner claims that the parameters have been laid down in Senate vs. Ermita, respondents insist the contrary. They argue that Neris testimony is substantial in the investigation in aid of legislation, that there is no valid justification for petitioner to claim executive privilege, that there was no abuse in discretion when respondent ordered the arrest of petitioner and that petitioner has not come to court with clean hands. It was further ventilated by the respondent that the claim of executive privilege in this case will prejudice the right to public information clause, that the President ensure that he faithfully execute laws, that public office is a public trust, full public disclosure of all transaction of public interest, due process clause and the principle of separation of powers. ISSUES: Are the communications elicited by the subject three questions covered by executive privilege? Did respondent Committees commit grave abuse of discretion in issuing the contempt Order? DISCUSSION:

The court used Senate vs. Ermita as a sort of a yardstick in deciding this case. Senate makes a distinction between legislative and oversight powers of Congress quoting Sections 214 and 225 of Article VI of the Constitution. The Senate describes that Section 21 relates that the power to inquire in aid of legislation is to gather information and improve lapses in legislation, while Section 22 pertains to the power of Congress to call for a question hour as it exercises its oversight power. The purported power is to ascertain that the executive branch does not arbitrarily exercise abuse of power. In circumspect, the above distinctions as the court ruled gives birth to the interpretation of these two provisions. As respondents invoked Section 22, Article VI Congress cannot compel the appearance of executive officials. The court quoted Senate vs. Ermita on this matter. The following are further elucidated by the court: That the three questions are covered by executive privilege. The power to investigate in the light of question hour may be broad but possesses limitations. To be valid it must be done in accordance to published rules of procedure of either houses and that rights of persons appearing be respected. That in spite of the revocation of E.O 464, the executive privilege remains to due to its constitutional juncture. The court makes distinction between the case at bar and the Nixon case. The latter involves a criminal prosecution and the former a congressional inquiry. The judicial department has to the power to compel persons to unveil confidential information in the administration of justice while the legislative has not even if it is a search for truth. An investigation in aid of legislation is not a judicial process to prosecute officials. Therefore, the privilege was properly invoked. Petitioner did not act worthy of any contempt as he even subjected himself to an eleven-hour questioning. The issue on the right to public information is subject to limitation as provided by law6. The Senate failed to furnish petitioner his request of providing him questions in advance and include a publication its revised rules thus invalidating the contempt order. The court further ruled that the right of the citizen of information is not equated with Senates power to summon officials or persons to an inquiry, vice versa. Claim of executive privilege is properly invoked because the formal requisites mandate that it is the head of the department that initiates it and that it should be done in writing. It should also involve highly confidential

information such as military secrets and diplomatic treatises to qualify for the privilege. The Senate committed a grave abuse of discretion because besides a valid claim of executive privilege, they curtly disregarded petitioners reasons for abstaining from the inquiry. The responded still went ahead with the contempt order thus denying the petitioner due process of law. With regard to the respondents allegation that the court abandoned its sacred duty to maintain the doctrine of separation of powers and check and balances in government, it simply proposed a negotiation as an alternate venue for settling controversies and avoid the cumbersome process of judicial review. It simply tried to avert a constitutional crisis looming in the horizon. Respondent committee should have exercised the same restraint, after all, the petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. This is concomitant with the doctrine of separation of powers and the mandate to observe respect to a co-equal branch of government. RULING: WHEREFORE, the petition is hereby GRANTED. The subject Ordered January 30, 2008, citing Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified.

Petition for Certiorari assailing the Show Cause Letter (Nov. 22, 2007) and Contempt Order (Jan. 30, 2008) issued by respondent Senate Committee against petitioner Neri (former Director General of NEDA) April 21, 2007 DOTC entered into a contract with ZTE for the supply of equipment and services for the NBN Project amounting to P16 Billion. The project was to be financed by the Peoples Republic of China Petitioner was summoned by respondents to appear and testify in the investigation on the NBN Project on a number of dates, however, he attended only on the Sept. 26 hearing. Sept. 18, 2007 businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the Project initially approved as a Build-Operate-Transfer project, but on March 29, 2007, NEDA acquiesced to convert it into a government-to-government project to be financed through a loan from the Chinese government. Sept. 26, 2007 petitioner testified before respondent Committees for 11 hours. He disclosed that COMELEC Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the project, and he informed President Arroyo about the bribery attempt. When probed further on what they discussed, petitioner refused to answer 3 questions, invoking executive privilege: - WON President Arroyo followed up the NBN Project - WON she directed him to prioritize it - WON she directed him to approve Respondents issued a Subpoena Ad Testificandum, requiring petitioner to appear and testify on Nov. 20, 2007. However, a Letter (Nov. 15, 2007) by Executive Secretary Ermita requested respondents to dispense with petitioners testimony on the ground of executive privilege that covers above questions, maintaining that the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process and for the protection of the public interest disclosure of information might impair our diplomatic and economic relations with China.

Neri vs. Senate Committee on Accountability of Public Officers and Investigations Ponente: Leonardo-De Castro, J.

Nov. 22, 2007 respondents issued the Show Cause Letter requiring him to explain why he should not be cited in contempt. On Nov. 29, petitioner replied that it was not his intention to ignore the hearing and he thought the only remaining questions were those he claimed to be covered by executive privilege. He further requested to be furnished in advance as to what else he needs to clarify. In a letter by his counsel, it was stated that it was upon the order of the President that he did not appear, and that the conversation with the president dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal. Jan. 30, 2008 respondents found petitioners explanations unsatisfactory, and without responding to his reply, issued the Order citing him in contempt and ordering his arrest and detention at the Office of the Senate SergeantAt-Arms until he gives his testimony. The parties were directed to manifest to the Court if they were amenable to the Courts proposal of allowing petitioner to immediately resume his testimony before the respondents to answer other questions without prejudice to the decisions on the merits of this petition Senate disagreed. OSG Motion for Leave to Intervene: - Communications between petitioner and President are covered by the executive privilege. - Petitioner was not summoned by respondent in accordance with the power to inquiries in aid of legislation as laid down in Sec. 21, Art. 6, Constitution and Senate v. Ermita March 6, 2008 President Arroyo issued Memorandum Ciruclar No. 151, revoking EO 464 and Memorandum Circular N. 108, advising officials and employees to abide by the Consitution, existing laws and jurisprudence (Senate v. Ermita) when they are invited to legislative inquiries in aid of legislation. *Sec. 21, Art. 6 of Constitution Legislative powers of Congress relates to the power to conduct inquiries in aid of legislation aim is to elicit information that may be used for legislation can compel the appearance of executive officials

*Sec. 22, Art. 6 of Constitution Oversight powers of Congress relates to the power to conduct a question hour to obtain information in pursuit of Congress oversight function cannot compel the appearance of executive officials *Principle of Separation of Powers - executive branch cannot frustrate power of Congress to legislate by refusing to comply with its demands of information - power of judicial review is available right of Congress to conduct inquiries in aid of legislation is susceptible to abuse subject to certiorari (Sec. 1, Art. 8, Constitution) Issues and Ratio: 1. WON the communications elicited by the 3 questions are covered by Executive Privilege. (YES. 2 reasons) *Power of Congress to conduct inquiries in aid of legislation broad legislative cannot legislate wisely/effectively in the absence of information respecting the conditions which the legislation is intended to affect/change compulsory process to enforce it limitations validity: done in accordance with the Senate or House duly published rules of procedure and the rights of persons appearing/affected be respected. Such power extends to executive officials and exemption can only be through a valid claim of executive privilege. a. There is a recognized claim of executive privilege despite revocation of EO 464. Concept of executive privilege has constitutional underpinnings. US v. Nixon public interest: preserve confidentiality of conversations that take place in the Presidents performance of his official duties (presidential communications privilege) Presidents generalized interest in confidentiality provide him and those who assist him with freedom to explore alternatives in the process of shaping policies and making decisions. In Re: Sealed Case 2 kinds of executive privilege: (1) Presidential communications privilege communications, documents or other materials that reflect presidential decision-making and deliberations which President believes should remain confidential decision making of the President

(separation of powers) (2) Deliberative process privilege advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated decision-making of the Executive Officials (common law privilege). The officials covered by the former are those functions that form the core of presidential authority that are quintessential and non-delegable Presidential power (commander in chief power, appointment/removal power, power to grant pardons/reprieves, etc) Courts ruled that Executive has a right to withhold documents that might reveal military/state secrets, identity of government informers, information related to pending information and foreign relations. Chavez v. PCGG secrets regarding military, diplomatic and other security matters. Chavez v. PEA Presidential conversations, correspondences in closed-door Cabinet meetings SC: Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the 3 questions fall under the conversation and correspondence between the President and public officials necessary in her executive and policy decision-making process disclosure might impair diplomatic & economic relations with Peoples Republic of China (Presidential Communications Privilege and Executive Privilege on matters relating to Diplomacy or Foreign Relations) - communications relate to a quintessential and non-delegable power (enter into an executive agreement w/ other countries w/o concurrence w/ Legislature) - communications are received by a close advisor of the President (operational proximity test petitioner is a member of the cabinet) - no adequate showing of a compelling need that would justify the limitation of the privilege. No categorical explanation from respondents to show a compelling need for the answers to the questions, and veer more towards exercise of legislative oversight function (Sec. 22, Art. 6) Respondents: a claim of executive privilege does not guard against a possible disclosure of a crime/wrongdoing (US v Nixon specific need for evidence in pending criminal trial outweighs Presidents interest in confidentiality) SC: information in this case is elicited not in a criminal proceeding but a legislative inquiry. The validity of exectuve privilege depends not only on the ground invoked but also on the procedural setting/context which the claim is made.

Respondent: the grant of executive privilege violates constitutional provisions on the right of the people to information on matters of public concern (Sec. 7, Art. 3, Constitution) SC: Petitioner made himself available to them during the Sept. 26 hearing, questioned for 11 hours, and expressly manifested willingness to answer more questions except the 3 covered by executive privilege. Peoples right to information is limited by law (RA 6713, Sec. 7; RPC, Art. 229; RA 3019, Sec. 3(k); and Rules of Court, Rule 130, Sec. 24 (e)). The information in this case is classified as confidential wherein there is public interest in its confidentiality. Not every legislative inquiry is an exercise of peoples right to information. b. The claim of executive privilege is properly invoked. The letter (Nov. 17, 2007) of Executive Secretary Ermita satisfies the requirement for a formal claim of executive privilege (a precise and certain reason for preserving confidentiality). It serves as the formal claim of privilege: this Office is constrained to invoke the settled doctrine of executive privilege (Secretary v. Ermita), and the Office of the President has advised Sec. Neri accordingly The information if disclosed might impair diplomatic and economic relations with Peoples Republic of China. The grounds were specific enough so as not to leave respondent in the dark on how the requested information could be classified as privileged. Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of information which the privilege sought to protect respect to a co-equal department. 2. WON respondent Committees committed grave abuse of discretion in issuing the Contempt Order. YES. 5 reasons: There was a legitimate claim of executive privilege therefore the Order suffers from constitutional infirmity Committees did not comply with the requirement (Senate v. Ermita) that the invitations should contain the possible needed statute which prompted the inquiry, the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof. Compliance is imperative, both under Sec. 21 and 22 of Art. 6 of Constitution, to

ensure rights of persons appearing and affected by the inquiry are respected. It is revealed in the transcript that the proceeding on Jan. 30, 2008 had only a minority of the members of the Senate Blue Ribbon Committee present during the deliberation (7 only). Sec. 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that a vote of majority of its members may punish any witness for contempt. Members who did not actually participate in the deliberation were made to sign the contempt Order, and its validity is doubted. Sen. Pimentel insisted that the quorum of the committee was only 2 and that the will of the lead committee prevails over all the other. The Court finds merit in the argument of the OSG that respondent violated Sec. 21, Art. 6 of the Constitution requiring that the inquiry be in accordance with the duly published rules of procedure, which the respondents failed to meet therefore its hearings were procedurally infirm. Respondents issuance of the contempt Order were arbitrary and precipitate because it did not pass upon the claim of executive privilege and inform the petitioner of their ruling, curtly dismissed his explanation as unsatisfactory and simultaneously issued the Order. Petitioner was not an unwilling witness and manifested his willingness to testify. Respondents denied him due process of law.

Court was also accused of attempting to abandon its constitutional duty when it required parties to consider a proposal that would lead to a possible compromise it was only to test a tool that other jurisdictions find to be effective in settling similar cases to avoid a piecemeal consideration of the questions for review. Much of this spirit of compromise is reflected in the generality of language foundi n the Constitution (US v. American Tel. & Tel Co.). Judgment: Petition Granted. Contempt Order Nullified. Dissent: Puno, J. The principle of separation of powers is not absolute a hermetic sealing off of the 3 branches of government from one another would preclude the establishment of a nation capable of governing itself effectively. System of checks and balances the power of congressional oversight to enhance its understanding of and influence over implementation of legislation it has enacted review/investigation of executive branch

action by legislatures corollary power of investigation. Standard justification: presumed need for new/remedial legislation (investigations in aid of legislation) Legislative power of investigation includes power of contempt or process to enforce (Arnault v. Nazareno) incidental to/implied in legislative function cannot legislate wisely/effectively in the absence of information respecting the conditions which the legislation is intended to affect/change 2 requirements for the valid exercise of power of investigation and contempt of witness for contumacy: existence of a legislative purpose (in aid of legislation) and pertinency of the question propounded. Validity of the claim of executive privilege depends on the ground invoked to justify it and the context in which it is made. Presidential communications are presumptively privileged. To overcome the presumption, there must be sufficient showing/demonstration of specific need for the withheld information. 2 standards: evidentiary and constitutional. Function Impairment Test the Court weighs how the disclosure of the withheld information would impair the Presidents ability to perform his constitutional duties more than nondisclosure would impair other branchs ability to perform its constitutional functions. The SC cannot assess the validity of the claim of the Executive Secretary because paucity of explanation on on how diplomatic secrets will be exposed at the expense of our national interest if petitioner answers disputed questions. SC cannot determine whether there is reasonable danger if petitioner answers Court cannot engage in guesswork. It is self-evident that the assailed questions are pertinent to the subject matter of legislative investigation and have direct relation to the subject and pending Senate bills. Petitioner: respondents were seeking to establish the culpability of the President or the anomalies in the NBN-ZTE Contract. SC: motive of the Senate Committees in conducting their investigation is beyond the purview of the Courts power of judicial review questions are pertinent and there is no effective substitute for the information sought. Senate Rules of Procedure Governing Inquiries in Aid of Legislation is assailed as invalid for failure to be republished not a continuing body membership changes every 3 years (election) Senators have traditionally considered the Senate as a continuing body despite the change of part of its membership after an election does not cease its labor, Committees continue their work. By tradition, custom and practice, the Senate does not republish its rules especially when the same has not undergone any material change. Existing rules which have already undergone publication should be deemed adopted and

continued regardless of election of new members. Internal rules respect for co-equal branch. Respondent Senate Committees have good reasons in citing Neri for contempt for failing to appear on Nov. 20 hearing. There is no basis for petitioner and Executive Secretary to assume that petitioners further testimony will be limited only ton the 3 disputed questions.

Puno asserts that the three questions are pertinent to the subject matter of the Senate inquiry. The questions have direct relation both to the subject of the inquiry and the pending bills. The three questions are pertinent to at least three subject matters of the Senate investigation: (1) possible anomalies in the consummation of the NBN-ZTE Contract in relation to the Build-Operate-Transfer Law and other laws (P.S. Res. No. 127); (2) national security implications of awarding the NBN Project to ZTE, a foreign-owned corporation (P.S. Res. No. 129); and (3) legal and economic justification of the NBN Project (P.S. Res. No. 136). The said questions are also pertinent to pending legislation: (1) the subjection of international agreements involving funds for the procurement of infrastructure projects, goods and consulting services to Philippine procurement laws (Senate Bill No. 1793); (2) the imposition of safeguards in the contracting of loans classified under Official Development Assistance (Senate Bill No. 1794); and (3) the concurrence of the Senate in international and executive agreements (Senate Bill No. 1317). Is the information available elsewhere?

The circle is complete: Puno finds in favor of the Senate PERTINENCE AND AVAILABILITY OF INFORMATION ELSEWHERE In the previous installment, Chief Justice Reynato Puno discussed in his dissenting opinionon Neri v. Senate how to overcome the claims of executive privilege as stated in Romulo Neris petition: diplomatic, military, and national security secrets; and presidential communications privilege. He debunked the first claim, and began tackling the second one. Here is the continuation. Is the Question Pertinent? These are the three questions that Neri refused to answer: a) Whether the President followed up the (NBN) project? b) Were you dictated to prioritize the ZTE? c) Whether the President said to go ahead and approve the project after being told about the alleged bribe? Now, to test the pertinency of the questions to the subject of the Senate inquiry, Puno outlined the resolutions, titles of privilege speeches, and pending bills that give purpose to the legislative inquiry. I will not be quoting them here.

Puno contends that there is no substitute for the information being sought from Neri. In the first question, the information cannot be effectively found anywhere, since it refers to the importance of the project to Gloria Arroyo. (P.S. Res. No. 136) On the second question, the information being sought refer to the factors considered by Arroyo in opting for NBN to be done by ZTE via foreign loan. Neri testified that she preferred a no-loan, no-guarantee unsolicited Buildoperate-transfer (BOT) project, which was offered by Amsterdam Holdings Inc. This information is not available elsewhere, as it needed in the inquiry on the legal and economic justification of the NBN project, possible violation of the BOT Law, and in crafting pending bills. (P.S. Res. No. 136, P.S. Res. No. 127, Senate Bill No. 1793, Senate Bill No. 1794)

On the third question, the information cannot be found elsewhere as stated in the previous to question. Puno contends that answers to the three questions cannot be found elsewhere there is no effective substitute. In oral argument, Neris counsel (he did not attend the said event) argued that the Senates motive in asking the three questions was to pin Gloria Arroyo as culpable for alleged anomalies regarding NBE-ZTE deal. Counsel claims that invoking executive privilege does not mean Arroyo is hiding any crime. Puno contends that the motive of senators is beyond the purview of the Courts power of judicial review. Puno then states: So long as the questions are pertinent and there is no effective substitute for the information sought, the respondent Senate Committees should be deemed to have hurdled the evidentiary standards to prove the specific need for the information sought. Besides, in Watkins vs. US, the motives of members of congressional investigating committees will not vitiate an investigation instituted by a House of Congress if that assemblys legislative purpose is being served by the work of the committee. The Balancing Test

executive officials. Puno contends that without the information being sought, the Senate will be hard pressed in amending Government Procurement Reform Act and Official Development Assistance Act to enable Congress to plug the loopholes in these statutes, and that several Senate bills will be crafted based on that information. In short, withholding the information prevents the Senate from crafting specific legislation based on facts and not speculation. Will disclosure of information seriously impair the Presidents ability to perform her duties? Puno quotes an exchange between him and Neris counsel, Atty. Bautista. In that exchange, Puno asked Bautista on how the disclosure would impair the Presidents ability to perform her duties. Based on his answers, Puno asserts that the claim is based on a general claim of a chilling effect (Arbet: like if disclosed, Arroyo believes that any of her people can disclose what they had conversed); that the general claim is unsubstantiated by specific proofs. Bautista could only share his own impression and personal opinion. This is how Puno resolved the balance test: Summing it up, on one end of the balancing scale is the Presidents

After dealing with pertinency of the questions and availability of information, Puno begins the balancing test. The aim of the test is simple. If information is disclosed, would it impair the Presidents ability to perform her duties? If the information is not disclosed, would it impair Congress ability to perform its functions? Which is greater? The balancing test should result in the way that promotes public interest. Will nondisclosure seriously impair Senates performance of its constitutional function to legislate? The Senate asserts in its comment that there is an urgent need for remedial legislation to regulate the obtention (sic) and negotiation of official development assisted (ODA) projects because these have become rich source of commissions secretly pocketed by high

generalized claim of confidentiality of her communications, and petitioners failure to justify a claim that his conversations with the President involve diplomatic, military and national security secrets. We accord Presidential communications a presumptive privilege but the strength of this privilege is weakened by the fact that the subject of the communication involves a contract with a foreign loan. The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank). We also consider the chilling effect which may result from the disclosure of the information sought from petitioner Neri but the chilling effect is diminished by the nature of the information sought, which is narrow, limited as it is to the three assailed questions. We take judicial notice

also of the fact that in a Senate inquiry, there are safeguards against an indiscriminate conduct of investigation. On the other end of the balancing scale is the respondent Senate Committees specific and demonstrated need for the Presidential communications in reply to the three disputed questions. Indisputably, these questions are pertinent to the subject matter of their investigation, and there is no effective substitute for the information coming from a reply to these questions. In the absence of the information they seek, the Senate Committees function of intelligently enacting laws to remedy what is called dysfunctional procurement system of the government and to possibly include executive agreements for Senate concurrence to prevent them from being used to circumvent the requirement of public bidding in the existing Government Procurement Reform Act cannot but be seriously impaired. With all these considerations factored into the equation, we have to strike the balance in favor of the respondent Senate Committees and compel petitioner Neri to answer the three disputed questions. Puno agrees that executive privilege cannot be used to hide a wrongdoing, but it is not the sword that would pierce the Presidential communications privilege. Whether there was a wrongdoing or not, it should be proven in a proper forum; by showing a specific need the privilege would be pierced and only then one can discover if the privilege was used to hide a wrongdoing. March 28th, 2008