CONSITUTIONAL LAW 1

NERI Vs. SENATE COMMITEE 

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

Topic: Clarification of the Senate-as-a-continuing body.

Carpio. J., DISSENTING

FACTS:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the People’s Republic of China.

The Senate passed various resolutions relative to the NBN deal.

On May 14, 2007 There was Mid-term/Senatorial Election.

On the September 18, 2007 hearing Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA.

Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared in one hearing wherein he was interrogated for 11 hrs and during which he admitted that Abalos of COMELEC tried to bribe him with P200M in exchange for his approval of the NBN project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking “executive privilege”. In particular, he 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.

He later refused to attend the other hearings and Ermita sent a letter to the senate averring that the communications between GMA and Neri are privileged and that the jurisprudence laid down in Senate vs Ermita be applied. He was cited in contempt of respondent committees and an order for his arrest and detention until such time that he would appear and give his testimony.

Neri filed this present petition asking the Court to nullify both the Show Cause Letter and the Contempt Order for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and stressed that his refusal to answer the three questions was anchored on a valid claim to executive privilege in accordance with the ruling in the landmark case of Senate vs. Ermita.

On 5 February 2008, the Court issued a resolution requiring respondents to Comment on the Petition and supplemental petition and to observe the status quo prevailing prior to respondents' Order of 30 January 2008. The Court further resolved to set the Petition for hearing on the merits and on the Status Quo Ante Order on 4 March 2008.

  

After the oral arguments, the Office of the Solicitor General (OSG) filed on 17 March 2008 a Motion for Leave to Intervene and to Admit Attached Memorandum. The OSG argues that petitioners discussions with the President are covered by executive privilege. The OSG assails the validity of the Senates Rules of Procedure Governing Inquiries in Aid of Legislation on the ground of lack of publication. On 18 March 2008, the Court granted the OSGs motion to intervene. In his Petition, petitioner alleges that the invocation of executive privilege is well founded. Petitioner claims that his candid discussions with the President were meant to explore options in crafting policy decisions. Petitioner further argues that the invocation of executive privilege was timely, upon authority of the President, and within the parameters laid down in Senate v. Ermita and United States v. Reynolds. Petitioner also maintains that his non-appearance at the 20 November 2007 hearing was due to the order of the President herself, invoking executive privilege. Therefore, petitioner asserts that the show cause order was issued with grave abuse of discretion, hence void.

Petitioner assails the validity of the Rules of Procedure because they have not been duly published for the 14th Congress. Respondents counter that the Senate is a continuing legislative body. Respondents argue that as a continuing body, the Senate does not have to republish the Rules of Procedure because publication of the Rules of Procedure in the 13th Congress dispenses with republication of the Rules of Procedure in subsequent Congresses.

ISSUE/RULLING:

l Whether or not the Senate under the 1987 Constitution is a continuing body.

No. Since the Senate under the 1935 Constitution always had two-thirds of its membership filled up except for vacancies arising from death or resignation, the Senate always maintained a quorum to act as a legislative body. Thus, the Senate under the 1935 Constitution continued to act as a legislative body even after the expiry of the term of one-third of its members. This is the rationale in holding that the Senate under the 1935 Constitution was a continuing legislative body. The present Senate under the 1987 Constitution is no longer a continuing legislative body for the present senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress.

l Is the Senate Rules of Procedure Governing Inquiries in Aid of Legislation were duly published.

No. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators.

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Taada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation,[86] precluding any other form of publication. Publication in accordance with Taada is mandatory to comply with the due process requirement because the Rules of Procedure put a persons liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate.

Due process requires that fair notice be given to citizens before rules that put their liberty at risk take effect. The failure of the Senate to publish its Rules of Procedure as required in Section 22, Article VI of the Constitution renders the Rules of Procedure void. Thus, the Senate cannot enforce its Rules of Procedure.

The Constitution requires that the Legislature publish its rules of procedure on the conduct of legislative inquiries in aid of legislation. There is no dispute that the last publication of the Rules of Procedure of the Senate Governing the Inquiries in Aid of Legislation was on 1 December 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress. There is also no dispute that the Rules of Procedure have not been published in newspapers of general circulation during the current 14th Congress. However, the Rules of Procedure have been published continuously in the website of the Senate since at least the 13th Congress. In addition, the Senate makes the Rules of Procedure available to the public in pamphlet form.