9 SC justices uphold executive privilege invoked by Neri

DID Gloria Macapagal-Arroyo follow up the national broadband network (NBN) project with then socioeconomic planning secretary Romulo Neri? Was Neri dictated to prioritize the Chinese firm ZTE Corporation? Did Arroyo tell him to go ahead and approve the project despite being told about the alleged bribe?

These questions may no longer be asked of Neri by senators investigating the scandal-tainted $329-million NBN deal as the Supreme Court, in a 9-6 vote this afternoon, upheld Neri’s invocation of executive privilege over them.

In a majority decision penned by Associate Justice Teresita Leonardo-de Castro, all nine justices were convinced that the communications elicited by the three questions are covered by the presidential communications privilege.

The magistrates agreed with Executive Secretary Eduardo Ermita’s claim of executive privilege for Neri on behalf of Arroyo as, first, “fall(ing) under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process” and, second, that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.”

Read the majority decision here.

“Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations,” read the decision.

Further explaining the validity of the presidential communications privilege, de Castro wrote:

“First, the communications relate to a ‘quintessential and non-delegable power’ of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.

“Second, the communications are ‘received’ by a close advisor of the President. Under the ‘operational proximity’ test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.”

By virtue of the “legitimate claim of executive privilege,” the justices also ruled that the Senate committees committed grave abuse of discretion in issuing a contempt order against Neri. The justices also declared the Senate hearings on the NBN scandal “procedurally infirm” for not having duly published its rules of procedures governing inquiries in aid of legislation.

Moreover, the justices shot down the Senate’s argument that granting Neri’s claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern.

“The right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people’s right to public information. The former cannot claim that every legislative inquiry is an exercise of the people’s right to information,” argued de Castro, the former Sandiganbayan justice who convicted former President Joseph Estrada for plunder in September last year.

The decision was concurred in by fellow Associate Justices Leonardo Quisumbing, Renato Corona, Dante Tinga, Eduardo Nachura, Ruben Reyes, Nenita Chico-Nazario, Presbitero Velasco, and Arturo Brion.

Except for Quisumbing, who was appointed in 1993 by former President Fidel V. Ramos, all SC justices are Arroyo appointees, including the newly appointed Brion, Arroyo’s former labor secretary. Biron was not yet an SC justice when the Court heard oral arguments on Neri’s petition.

Four other Arroyo-appointed justices, however, dissented with the majority — Justices Antonio Carpio, Conchita Carpio Morales, Adolf Azcuna, and Alicia Austria-Martinez. They joined Justice Consuelo Ynares-Santiago and Chief Justice Reynato Puno in his dissenting opinion.

Ynares-Santiago was named to the Supreme Court by Estrada. Puno, though a Ramos appointee, was later appointed chief justice by Arroyo.

As of this time, Puno’s dissenting opinion is yet to be made available on the Supreme Court website. But in explaining why she dissented, Ynares-Santiago said the President does not have an unlimited discretionary privilege to withhold information from Congress, the judiciary or the public, even if the claim is founded on one of the traditional privileges covered by the doctrine on executive privilege.

Read the following separate opinions:

• Ynares-Santiago’s dissenting opinion
• Carpio’s dissenting and concurring opinion
• Corona’s concurring opinion
• Carpio Morales’s dissenting opinion
• Tinga’s concurring opinion
• Nachura’s concurring opinion

Citing the Court’s decision in Senate v. Ermita, the lady justice pointed out that a claim of executive privilege may be valid or not depending on the ground invoked to justify it and the context in which it is made. “In this sense, therefore, executive privilege is not absolute,” she said, adding that the doctrine applies only to certain types of information of a sensitive character that would be against the public interest to divulge. Besides, as also held in Senate v. Ermita, the necessity for non-disclosure must be of such high degree as to outweigh public interest.

“Petitioner (Neri) miserably failed to demonstrate that the reasons for his non-disclosure far outweigh public interest…He failed to show how disclosure of the presidential conversations would affect the country’s military, diplomatic and economic affairs, as he so asserted to the Senate Committees and before this Court,” Ynares-Santiago maintained.

“In fact, his counsel admitted that no military secrets were involved in the conversations, only military ‘concerns.’ Neither did the conversations necessarily refer to diplomatic secrets, but only to ‘our relationship in general with a friendly foreign power.’ These generalized claims do not suffice to justify his refusal to disclosure.”

Executive privilege, said Carpio Morales, cannot be invoked when “Congress has gathered evidence that a government transaction is attended by corruption, and the information being withheld on the basis of (the) privilege has the potential of revealing whether the Executive merely tolerated the same, or worse, is responsible therefor.”

“It should be sufficient for Congress to show — for overcoming the privilege — that its inquiry is in aid of legislation,” she counseled.

Carpio also argued that Ermita’s invocation of executive privilege to the Senate Committees is void because “executive privilege cannot be used to hide a crime; the invocation of executive privilege lacks specificity; and the three questions for which executive privilege is claimed can be answered without disclosing confidential Presidential communications or diplomatic secrets.”

He, however, concurred with the majority that the Senate’s rules of procedure are void for lack of publication; and the Senate Committees’ order citing Neri in contempt and directing his arrest is void for lack of published rules governing the conduct of inquiries in aid of legislation.