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Nov 10, 2008

G.R. No. 180643, March 25, 2008

  • Legislative Inquiry in Aid of Legislation vs. Legislative Inquiry during Question Hour
  • Elements of Presidential Communications Privilege
  • Exception to Executive Privilege


This is regarding the contract entered into by DOTC with ZTE for the supply of equipment and services for the NBN Project. In connection with this NBN Project, Senate passed various Resolutions and pending bills, which it then used as basis for initiating an investigation.

One of the cabinet officials invited to appear before the Senate during the investigation was Petitioner, who was Director General of NEDA at the time. During the 11-hour questioning, Petitioner invoked executive privilege and refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not she directed him to prioritize it, and (c) whether or not she directed him to approve.

In view of his refusal, the Senate Blue Ribbon Committee issued a subpoena ad testificandum, to which Petitioner replied that he was willing to testify to other matters besides those three questions covered by “executive privilege” and that he wanted to be furnished beforehand matters to be taken up during the inquiry so that he may adequately prepare therefor. Executive Secretary Ermita also sent a letter to the Blue Ribbon, affirming that indeed those three questions mentioned were covered by “executive privilege” because such information if disclosed might impair diplomatic as well as economic relations with the People’s Republic of China. As such, the Office of the President has ordered Petitioner not to answer those questions.

Nevertheless, the Blue Ribbon issued a show cause Letter and a contempt Order against Petitioner. Thus, this case.

  • Are the communications elicited by the subject three (3) questions covered by executive privilege?


IN AID OF LEGISLATION: Scope and Limitations --

The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected.

The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege.

Is there recognized claim of executive privilege despite revocation of E.O. 464? At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings.


1) The protected communication must relate to a “quintessential and non-delegable presidential power.”

2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. 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.

Respondent Committees failed to show a compelling or critical need: xxx presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations xxxx Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.” It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner of inquiry is conducted.

EXCEPTION TO EXECUTIVE PRIVILEGE: “Demonstrated, specific need for evidence in pending criminal trial” (US v. Nixon) does not apply --

In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the US Court was quick to “limit the scope of its decision.” It stressed that it is “not concerned here with the balance between the President’s generalized interest in confidentiality xxx and congressional demands for information.” Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.

Executive Privilege vis-a-vis Right of the People to Information on Matters of Public Concern

The right to public information, like any other right, is subject to limitation. The provision (Section 7, Article III) itself provides the limitations, i.e. as may be provided by law. Some of these laws are Sec. 7, RA 6713, Art. 229, RPC, Sec. 3(k), RA 3019, and Sec. 24(e), Rule 130, ROC. These are in addition to what our body of jurisprudence clarifies as confidential and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind.

Legislative Inquiry in Aid of Legislation vis-a-vis Right of the People to Information on Matters of Public Concern: More than anything else, though, 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. xxx

The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases.


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