Voting 9 to 6, the justices of the Supreme court upheld the right of former NEDA Chief Romulo Neri to invoke executive privilege in refusing to further testify before the Senate. The decision in the case of “Romulo Neri vs. Senate Committee on Accountability of Public Officers and Investigations, Senate Committee on Trade and Commerce, and Senate Committee on National Defense and Security” was penned by Justice Teresita J. Leonardo de Castro, and concurred in by Justices Quisumbing, Corona, Tinga, Nazario, Velasco, Nachura, Reyes and the newly-appointed Justice Arturo Brion. All of the concurring justices, except for Justice Leo Quisumbing, are appointees of President Arroyo.

Chief Justice Reynato Puno, dissented together with Justices Santiago, Martinez, Carpio-Morales and Azcuna. Justice Antonio Carpio issued a dissenting and concurring opinion which, in essence, sides with the dissenting magistrates.

In the words of the Court:

As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others.

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit:

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.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process” and, that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations.

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.

The Court went on to say that the Respondent Committees’ contention that the undue invocation of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern could have been sustained if petitioner Neri did not appear before them at all. But petitioner Neri made himself available to the Senate Committees during the September 26, 2007 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege.

The Court said that the claim of executive privilege was properly invoked and the Senate issuance the contempt order against Neri was in grave abuse of discretion.

In conclusion, the Court said:

In this present crusade to “search for truth,” we should turn to the fundamental constitutional principles which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted exercise of power. The Court’s mandate is to preserve these constitutional principles at all times to keep the political branches of government within constitutional bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and uphold the Rule of Law.

WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 3008, citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified.

In his 120-page dissenting opinion, CJ Puno said it was “self-evident” that the three questions sought to be asked were pertinent to the Senate inquiry, specifically whether Ms Arroyo had followed up on the NBN project after she was told of a bribe offer, whether Neri was directed to give it priority and whether she had ordered him to approve the deal after she was told about the bribery. Puno said the Senate would be hampered in fulfilling its responsibilities if it failed to get the information it was seeking from Neri, which was why he should be compelled to answer the three questions. As to whether there was any wrongdoing, that could be addressed later. The important thing was to avoid conflicts in the exercise of constitutional powers by the three branches of government, as this would have a destabilizing effect, according to the Chief Justice. In Puno’s view, the Court cannot look behind the reasons for the Senate investigation and rule on their validity, thus:

The short answer to petitioner’s argument is that the motive of respondent Senate committees in conducting their investigation and propounding their questions is beyond the purview of the Court’s power of judicial review.

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.

Of course, CJ Puno did not have the numbers.

This will allow Secretary Neri, and Malacanang, to sleep better at night as, unless the Court reverses itself upon motion by the losing respondents (an extremely remote possibility),Neri and members of the President’s official family now have the full weight of the Supreme Court behind their refusal to testify at future Senate hearings. Even if they appear, they will not provide the answers the Senate and the people are looking for and simply hide behind the skirts of executive privilege. Neri was a big fish that got away, leaving Jun Lozada and party high and dry.

Unless the Senate has another “surprise witness” in the wings, its investigation into the ZTE scandal is bound to run out of steam.

The Inquirer fears that the decision rendered by a divided court will now be used as justification for further venality.

Raul Pangalangan explains why the abdications of duty by institutions like the Department of Justice and Ombudsman, which are supposed to spearhead criminal investigations, has forced the Senate to step into the breach and why the Neri vs. Senate ruling is well-reasoned but bent.

Randy David discusses the perils of a prolonged stalemate between our government institutions and our narrowing options.

Already, the official Palace line, citing the SC decision, is the the Senate cannot compel members of the Cabinet and other executive branch officials to face its inquiries in aid of legislation and all its previous hearings may be regarded to have been “null and void”.

Amando Doronila bewails the Neri decision as a rollback of democratic checks and balances, and has made the SC a virtual instrument of censorship and of a prop of the already all-too-powerful executive to evade transparency in governance. By putting the weight of its judicial authority and its prestige behind the executive’s claims, it has given credence to the lie that the Palace is justified in conducting its affairs in secrecy, beyond public scrutiny.