INVOKING EXECUTIVE PRIVILEGE IN THE ZTE-NBN INQUIRY
But as we have seen, the issue of executive privilege would come again in the Senate inquiry into the controversial NBN deal. The inquiry is being conducted jointly by the Blue Ribbon Committee, the Committee on Trade and Commerce, and the Committee on National Defense and Security.

Neri was not the first witness to testify at the hearing on the deal, but he was among those who was most awaited by the media. As NEDA chief, Neri was co-chairperson of the Investment Coordination Committee – Cabinet Committee (ICC-CC), the body tasked to review and evaluate the technical, financial, economic, and social merits of major capital and development projects.

A key highlight in Neri’s September 26, 2007 testimony was his claim of an offer of “200” made by former Commission on Elections Chairperson Chairman Benjamin Abalos, which he interpreted to mean a P200-million bribe offer for the approval of the ZTE contract. Asked by Senator Panfilo Lacson whether he reported the incident to the president, Neri replied that he had informed the president about the offer by phone, and that he was then instructed not to take the money. Later, Senator Francis Pangilinan and Senator Loren Legarda asked him whether there were subsequent discussions between him and the president on the bribe offer and the approval of the ZTE contract. At that point, Neri invoked executive privilege of presidential conversations with cabinet officials, citing Section 2 (a) of EO 464. The hearing ended without resolution on the claim of executive privilege.

On November 13, 2007 the Senate joint committees issued a subpoena addressed to Neri ordering him to again appear on November 20. On November 15, Executive Secretary Eduardo Ermita, by order of the president, wrote Senate Blue Ribbon Committee Chairman Alan Peter Cayetano requesting that Neri’s scheduled testimony be dispensed with, invoking executive privilege.

Seven days later, the Senate joint committees wrote Neri requiring him to show cause why he should not be cited in contempt for failure to appear in the November 20 hearing. On November 29, in compliance to the show cause order, Neri wrote the committee, with a letter of his counsel attached, reiterating the executive secretary’s earlier position and requesting that he be furnished questions in advance should new matters be asked. In addition to the letter-compliance, Neri filed on December 27 a petition for certiorari before the Supreme Court questioning the validity of the show cause order, upon the ground that his non-appearance was justified by a proper invocation of executive privilege.

On January 30, 2008 the Senate joint committees issued an order citing Neri in contempt and ordered the Senate sergeant-at-arms to arrest and detain him until he appears and gives his testimony. In response, on February 1, Neri filed a supplemental petition for certiorari questioning the validity of the order of arrest, with application for a temporary restraining order or preliminary injunction.

The Supreme Court issued a status quo ante order four days later, thereby preventing Neri’s arrest. On March 4 the Supreme Court heard oral arguments on the petition, in the course of which it proposed an interim compromise to proceed with Neri’s testimony without going into the questions for which he claimed executive privilege, while the final resolution of the petition is pending. The Senate rejected the compromise, opting instead to await the final resolution of the issues raised in the petition.

Evaluated against the parameters set by the Supreme Court in Senate vs. Ermita, the claim of executive privilege must fail. In terms of class of information sought, they do not fall within state secrets regarding military, diplomatic, and national security matters. The bare assertion that the disclosure of the information might impair the country’s diplomatic as well as economic relations with the People’s Republic of China, and that they deal with delicate and sensitive security and diplomatic matters, do not meet the standard of a proper assertion of executive privilege. Mere recital of suppositions or conclusions, without precise and compelling reasons based upon facts that can be established, is contempt of the Congressional power and obstruction of its processes.

The questions for which executive privilege was claimed, as summarized by Secretary Ermita himself, were as follows: whether the president followed up the NBN project; whether Neri was dictated to prioritize ZTE; and whether the president said to go ahead and approve the projects after being told about the alleged bribe. The probable answers to these questions on their face cannot be reasonably linked to the enumerated categories of state secrets — thus, in Neri’s testimony in the Senate as well as in his counsel’s answers to clarificatory questions in oral argument, no specific and direct military, diplomatic, or national security harm was cited.

What is left is the claim of privileged conversations and correspondence between the president and public officials, sometimes referred to as deliberative process or presidential communications privilege. Indeed what are asked relate to conversations that transpired between the president and one of her Cabinet officials.

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