'CHARACTERIZING' COMMUNICATIONS
A minor point that may be raised against the Court decision is its characterization of the subject communications as relating to the power of the president to enter into executive agreements. In the entirety of the NBN deal, the president was performing acts relating to various functions, including borrowing and entering into executive agreements with respect to the loan from China, and approval of development projects with respect to the NBN project itself. The exercise of each of these functions may be related more directly or more remotely with the communications involved. Looking at the questions, it is evident that these relate more closely to the approval of a development project, than to entering into executive agreements. The authority over the approval of development projects is more dispersed, and not as “quintessential and non-delegable” as entering into executive agreements.

The crux of the decision, though, lies in the Court’s determination on the third element: on whether or not the Senate was able to overcome the qualified presumption that the presidential communications asked for are privileged. Here the Court was divided by a vote of nine to six, with the minority asserting that the presumption of privilege was overcome by overriding interest.

But the finding of the majority on this crucial issue, expressed in the decision penned by Justice Leonardo de Castro, is that “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.” The Court added that the questions instead “veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article.”

The first statement is significant because it is the showing of that critical need for the information in the performance of the Senate’s power to legislate that will hurdle the presumption of privilege and trigger the necessary balancing of the interests involved. These clashing interests are the president’s interest in the expectation of confidentiality of her conversations and correspondence, and the protection of the public interest in the candid, objective, and even blunt or harsh opinions in presidential decision-making on one hand, and the legislature’s interest for the requisite information to aid wise and effective legislation on the other.

The second statement amplifies the first; the questions, not being pursuant to a legislative intent, must be solely for the purpose of exercising the function of oversight. Oversight generally involves looking into the administration of existing laws or probing into government corruption or inefficiency. Such distinction is important because in Senate v. Ermita, the Court had said that the appearance of department heads is mandatory only in inquiries in aid of legislation. When it is only in pursuit of the oversight function, Congress may only request the appearance of department heads. Extending the argument, there is a greater right of Congress to information in inquiries in aid of legislation than in inquiries solely in oversight.

QUESTIONABLE FACTUAL BASIS?
The determination of the Court, when it states that the record is bereft of any categorical explanation to show compelling or critical need for the answers to the questions in the enactment of a law, is open to question in terms of its factual basis. It is on record that the Senate pleaded the materiality and pertinence of Neri’s testimony to legislation. In its comment, it enumerated the bills that have been filed, and to which the inquiry was related. These include: Senate Bill 1793, which seeks to amend Republic Act No. 9184, or the procurement law; Senate Bill 1794, which seeks to amend Republic Act No. 8182, otherwise known as the Official Development Assistance Act; and Senate Bill No. 1317, entitled “An Act Mandating the Concurrence to International Agreements and Executive Agreements.”

On the materiality and importance of the information asked, the Senate emphasized that the refusal to answer effectively denies the Senate access to “useful information and consequently, (its) right to intelligently craft and propose laws to remedy what is called a dysfunctional procurement system of the government.” It added that the Senate is “hampered in intelligently studying and proposing what Congress should include in the proposed bill to include executive agreements for Senate concurrence, which agreements can be used by the Executive to circumvent the requirement of public bidding in the existing Government Procurement Reform Act.”

Also on record were the answers of the Senate counsel to clarificatory questions propounded by Chief Justice Puno. The exchange, which is quoted in Puno’s dissenting opinion, expounds on the importance that the answers to each of the questions will have on legislation.

At the very least, the Court in its decision should have passed upon and evaluated these categorical explanations, rather than broadly sweeping them aside. Such evaluation of the Senate’s showing of need was precisely what Chief Justice Puno did in his dissenting opinion, and he arrived at the conclusion that the questions were pertinent to pending legislation, that there were no effective substitute for the information sought, and that Neri’s refusal to answer the three questions would seriously impair the Senate’s function of crafting specific legislation pertaining to procurement and concurring in executive agreements based on facts and not speculation.