OPINION

By JUSTICE CONCHITA CARPIO-MORALES

The three questions posed clearly require disclosure of Romulo Neri’s conversations with the President in his capacity as adviser

Executive Order No. 464 (E.O. 464) practically became a dead letter upon the promulgation of Senate v. Ermita and was formally interred by Memorandum Circular No. 151. Its ashes have since fertilized the legal landscape on presidential secrecy.

E.O. 464 allowed executive officials not to attend investigations conducted by Congress in aid of legislation by the mere invocation of that Order, without having to explain the specific reasons why the information being requested of them may not be disclosed.

When, however, the Court in Senate v. Ermita interpreted Section 1 of that Order as applying only to the "question period" and Section 2(a) as merely a non-binding expression of opinion, and invalidated Sections 2(b) and 3 for they allowed executive officials not to attend legislative investigations without need of an explicit claim of executive privilege, E.O. 464 became powerless as a shield against investigations in aid of legislation.

There are actually two kinds of privilege being claimed herein – the presidential communications and diplomatic secrets privilege.

The general criteria for evaluating claims of privilege have been laid down in Senate v. Ermita, to wit: "In determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting."

To assert that certain information falls under a recognized privilege is to allege that disclosure thereof may be harmful to the public interest. It would be impossible for the courts, however, to determine whether a potential harm indeed exists were the Executive allowed to claim the privilege without further explanation. Hence, the ruling in the same case of Senate v. Ermita that claims of privilege should state specific reasons for preserving confidentiality.

When the privilege being invoked against a subpoena ad testificandum is that for presidential communications, such specificity requirement is not difficult to meet, for it need only be evident from the questions being asked that the information being demanded pertains to conversations between the President and her adviser.

In petitioner’s case, the three questions posed by respondent Committees clearly require disclosure of his conversations with the President in his capacity as adviser.

This is obvious from Senator Pangilinan’s question as to whether the President followed up on the issue of the NBN project – meaning, whether there were further discussions on the subject between the President and petitioner.

Likewise, both Senator Legarda’s query on whether petitioner discouraged the President from pursuing the project, and Senator Pia Cayetano’s question on whether the President directed petitioner to approve the project even after being told of the alleged bribe, manifestly pertain to his conversations with the President.

While Senator Legarda’s question – "Has there been any government official higher than you who dictated that the ZTE project be prioritized or given priority?" – does not necessarily require disclosure of petitioner’s conversations with the President, petitioner has interpreted the same to mean "Has the President dictated you to prioritize the ZTE project?"

The invocation of privilege is thus limited to this more specific question. Limited in this manner, requiring the Executive to explain more precisely how this question would involve petitioner’s conversation with the President might compel him to disclose the very thing which the privilege was meant to protect. The reasons already provided must thus be considered sufficiently precise.

Compared to claims of the presidential communications privilege, it is more difficult to meet the specificity requirement in claims of the diplomatic secrets privilege, for the Executive must be able to establish a connection between the disclosure of the information being sought with the possible impairment of our diplomatic relations with other nations.

The claim of privilege for diplomatic secrets fails to establish this connection. It has not been shown how petitioner’s response to any of the three questions may be potentially injurious to our diplomatic relations with China.

Even assuming that the three questions were answered in the negative – meaning that the President did not follow up on the NBN project, did not dictate upon petitioner to prioritize the ZTE, and did not instruct him to approve the NBN project – it is not clear how our diplomatic relations with China can be impaired by the disclosure thereof, especially given that the supply contract with ZTE was, in fact, eventually approved by the President.

If, on the other hand, the answers to the three questions are in the affirmative, it would be even more difficult to see how our relations with China can be impaired by their disclosure.

The second criterion laid down in Senate v. Ermita, namely, whether the privilege should be honored in the given procedural setting, need only be applied, in petitioner’s case, to the claim of privilege based on presidential communications, the claim of privilege based on diplomatic secrets having been already ruled out in the immediately foregoing discussion.

A claim of privilege, even a legitimate one, may be overcome when the entity asking for information is able to show that the public interest in the disclosure thereof is greater than that in upholding the privilege.

Thus, a government agency that seeks to overcome a claim of the presidential communications privilege must be able to demonstrate that access to records of presidential conversations, or to testimony pertaining thereto, is vital to the responsible performance of that agency’s official functions.

Parenthetically, the presumption in favor of confidentiality only takes effect after the Executive has first established that the information being sought is covered by a recognized privilege. The burden is initially with the Executive to provide precise and certain reasons for upholding his claim of privilege, in keeping with the more general presumption in favor of transparency. Once it is able to show that the information being sought is covered by a recognized privilege, the burden shifts to the party seeking information, who may still overcome the privilege by a strong showing of need.

Turning now to the present controversy, respondent Committees must be held to have made a strong showing of need, one that certainly suffices to overcome the claim of privilege in this case.

Respondents assert that there is an urgent need for remedial legislation to regulate the obtention and negotiation of official development assisted (ODA) projects because these have become a rich source of "commissions" secretly pocketed by high executive officials.

They claim that the information which they are trying to elicit from petitioner relative to the NBN project is essential and crucial to the enactment of proposed amendments to the Government Procurement Reform Act (R.A. No. 9184) and the Official Development Assistance Act (R.A. No. 8182), so that Congress will know how to plug the loopholes in these statutes and thus prevent a drain on the public treasury.

On matters not having to do with the apparent overpricing of the NBN project and the alleged bribe offer, respondents no longer have a showing of need sufficient to overcome the privilege. The intrusion into these conversations pursuant to this opinion would thus be a limited one.

In that light, it is hard to see how the impairment of the public interest in candid opinions in presidential decision-making can, in this case, outweigh the immense good that can be achieved by well-crafted legislation reforming the procurement process.

Still, there is another reason for considering respondents’ showing of need as adequate to overcome the claim of privilege in this case.

Notably, both parties unqualifiedly conceded to the truism laid down in the Senate Select case that "the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing."

When, as in this case, Congress has gathered evidence that a government transaction is attended by corruption, and the information being withheld on the basis of executive privilege has the potential of revealing whether the Executive merely tolerated the same, or worse, is responsible therefore, it should be sufficient for Congress to show – for overcoming the privilege – that its inquiry is in aid of legislation.

These are excerpts from Justice Carpio Morales’s dissenting opinion in the Neri v. Senate case. She voted in favor of the Senate. The author wrote the majority opinion in Senate v. Ermita.