ROMULO L.

NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND
SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
FACTS

A petition for certiorari 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 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.

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:

1. Whether or not the President followed up the NBN Project.
2. Whether or not she directed him to prioritize it.
3. Whether or not 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.

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 ignore the hearing
and he thought the only remaining questions were those he claimed to be
covered by executive privilege. 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. Respondents found Neris explanation
unsatisfactory and moved to cite him in contempt and to order the sergeant-atarms 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.
(c) Requiring respondents to file their comments.

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.

On 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.
ISSUES

Whether or not the communications elicited by the Three (3) questions are
covered by Executive Privilege.
Whether or not respondent Committees committed grave abuse of discretion in
issuing the Contempt Order.
HELD

The court used Senate vs. Ermita 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.
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 elevenhour questioning. The issue on the right to public information is subject to limitation as
provided by law. The Senate failed to furnish petitioner his request of providing him
questions in advance and includes 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.
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.