REPUBLIC OF THE PHILIPPINES
SUPREME COURT
OJ t
^- 4ij lil,
25
MANII."A,
SENATOR MANUET A. ROXAS, in his
capacity
Chairman,
as
Senate
Committee on Trade and Commerce,
AND SENATOR BENIGNO SIMEON
c. AqurNo III,
Petitioners,
-
G.R. NO.
versus -
180030
For: Certiorari and Mandamus
EXECUTIVE SECRETARY EDUARDO
S.
ERMITA AND NATIONAL
DEVELOPMENT
ECONOMIC
AUTHORITY DIRECTOR-GENERAL
AUGUSTO B. SA}TTOS,
Respondents.
----- x
x ------------
PETITION
PETITIONERS SEN. MANTJEL A. ROXAS AND SEN' BENIGNO
SIMEON C. AQUINO III, by undersigned counsels, respectfully state:
PRXFATORY STATEMENT
Senate of the Phitippines v. Ermita, 488 SCRA 1
(2006), this Honorable Court expressly rejected the absolutist approach to
executive privilege. "Absent then a statement of the specific basis of a
claim of executive privilege, there is no way of determining whether it
falls under one of the traditional privileges, or whether, given the
In the case of
circumstances in which
declared the Court.
it is made, it
should be respected" (Id' At p' 64)
Thus, with respect to minutes of discussions in closed door cabinet
meetings, the Supreme Coun declared: "In stating its objection to
.,.... r
.
...rli*IE
that
claimant's interrogatories' government asserts' and nothing more'
OD
ooinion that noq:dicclgEurg-l$-desl ed to
not shown - nor even alleged - that those who evaluated claimant's
product were involved in internal policymaking' generally' or in this
particular instance. Privilege cannot be set up by an unsupported ciaim'
th. f".t, upon which the privilege is based must be established'"
And with regard to government reports and documents' as for
instance the Proiect Evaluation Report of NEDA dated March 26' 2007 '
the iustification Put up by Respondents is patently an improper assertion
of executive privilege. Heid the Supreme Court in the Seirate v' Ermita:
and proper claim of executive privilege requires a
speciflc designation and description of the documents within its scope
as *e11 as precise and certain reasons for pteseruing their
confidentiality. Without this specificity, it is impossible for a court to
be
analyze the claim short of disclosute of the very thing sought to
protected. As it stands now, the Court has little more than its t@
gorlg sPeculation with which to weigh the applicability of the claim'
(ld'
t4n improperly assetted claim ofpriuilege is ao claim ofpriuilege'"
At p. 65, quoting from U.S v' Article of Drug' 43 F'R'D' 181 (1967)'
A formal
The above Pronouncements of the Honorable Court apply neat\ to
the situation presented in this present Petition. Executive privilege is
at
invoked by Respondent Executive Secretary without any justification
all why the minutes of closed-door Cabinet meetings and the Project
Reporr in question fall within the protection of the privilege' In the
words of the Court, a decent resPect for the House (on' in this case'
Senate) by whose authority the subpoenas issued, would have required
that (he) state (his) reasons for noncompliance upon the return of the
writ" (Ibid. at p.66)' In this case, Respondent Ermita did not even address
matter
his letter to the Senate; he merely told Respondent santos that the
requested by the Senate Committees fall under executive privilege'
ButtheultimateissueinthispresentPetitionraisesamore
transcendental question: Does executive privilege extend to
communicationsinfurtheranceofacourseofcriminalconduct?Thefact
is that, in previous hearings conducted by the Senate Committees' they
have acquired substantial evidence that the information requested
the
concerns criminal acrivity not only by Executive officials but also by
highest official of an independent constitutional Commission'
2
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Hence this Petition so that the Honorable Court can Propdly
weigh the competing interests involved between upholding executive
privilege and the power of Congress to craft legislation designed to
prevent criminal conspiracies at the highest levels of government.
I.
NATURE OF THE PETITION
1.01 This is a petition for Cettiorari
and Mandamus to
nullify the
invocation of executive privilege by Executive Secretary Eduardo S'
Ermita (hereinafter, "Secretary Ermita"), upon the request of National
Economic Development Authority Director General Augusto B. Santos
(hereinafter, Director General Santos), and to compel them to disclose' to
the Senate Committee on Trade and Commerce' through herein
Petitioner as Chairman of said Committee, all pertinent information,
documents, and other materials relative to the National Broadband
Network (NBN) Project that the government entered into with the
People's Republic of China, particularly through ZTE Corporation on 21
April2007.
1.02 The invocation
of
executive privilege
by
Respondents
constitutes grave abuse of discretion that must be corrected through these
special civil actions since there is no appeal or any other plain, adequate
and speedy remedy in the ordinary course thereof.
1.03 Moreover, where what
is assailed is the validity or
constitutionality of the invocation of executive privilege. especially when
the same collides with the power of a Senate committee to conduct
inquiries and investigations in aid of legislation, this Honorable Court has
jurisdiction to pass upon itl - and regardless of the principle of the
hierarchy of courts - by reason of the existence of exceptional and
compelling national interest and serious implications which iustifli the
availment of the extraordinary remedies of writ of certiorari and
prohibition in the first instance.2
1.04 Undoubtedly, the challenge on this invocation of executive
privilege on serious constitutional and jurisprudential grounds, and its
impact on the legal system of this country, makes the instant Petition fall
at once within this
Honorable Court's jurisdiction through
tLie
extraordinary writs of Certiorari and Mandamus, under the constitutional
duty of the Supreme Court to determine whether any branch or
'Gudqnivs. Senga,498 SCRA 671,705 (2006)
Heirs of Benaldo Hirogu. Melinr, G.R. No. 140954, Aprn P,2005.
2
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*'.
aigt*b*..
instrumentality
of the government has committed grave abuse df
discretion.
II.
STATEMENT OF MATERIAL DATES
2.01 Director General Santos invoked executive privilege through
a letter dated 24 October 2007 addressed to the Senate in response to the
request for copies of the minutes of the NEDA-ICC meetings relative to
the NBN project. In support ofDirector General Santos'invocation ofthe
executive privilege is a letter-instruction dated 28 September 2007 from
Respondent Secretary Ermita. Both letters were received by the Senate
on 25 October 2007. This petition is, therefore, being instituted before
this Honorable Court within the reglementary period of sixty (60) days
from receint of the said letters.
il.
PARTIES
Senator Manuel A. Roxas (hereinafter, "Sen. MAR
Roxas"), of legal age, Filipino, and is a member of the Philippine Senate,
with office address at the 5th floor, GSIS Building, Senate of the Republic
of the Philippines, Roxas Boulevard, 1308 Pasay City, where he may be
3.01 Petitioner
served
with summons and other court processes.
Roxas is currently the Chairman of
the Senate Committee on Trade and Commerce, which has the power to
3.02 Petitioner Senator MAR
conduct inquiries and investigations, in aid of legislation, on matters of
public interest and national concern, as well as to issue subpoenas in
relation thereto, pursuant
to
Section 21, Article
VI of the 1987
Constitution.
3.03 Petitioner Senator Benigno Simeon C. Aquino III
(hereinafter, "Sen. Benigno Aguino"), of legal age, Filipino, and is a
member of the Philippine Senate, with office address at the 5th floor,
GSIS Buitding, Senate of the Republic of the Philippines, Roxas
Boulevard, 1308 Pasay City, where he may be served with summons and
other court processes.
3.04 The rights of the Senate, and of the Senate Committee on
Trade and Commerce in particular, as well as of petitioners Sen. MAR
Roxas and Sen. Benigno Aquino as legislators, are now being infringed
upon by the unjustified refusal of Secretary Ermita and Director General
*.tia{gti{&;;,-!..*"'{di.ilfl
Santos to heed the subpoena duces tecumdated 3 october 2007 issued by
Public Officers and
the Senate Committees on Accountability
of
Investigations (Blue Ribbon), Trade and Commerce & National Defense
and Security (hereinafter, the "senate Committees") and hence, gives
them the requisite locus standi to file the instant Petition, following the
Honorable Court's pronouncement in Senate of the Philippines vs'
Ermita, 488 SCRA 1 (2006).
3.04 The Senate, particularly
the
Committee headed by
Petitioner, srands to suffer imminent and material injury, as it has already
sustained the same with the unjustified invocation of executive privilege
by Secretary Ermita and Director General Santos. Such repeated, but
baseless and invalid, invocation of executive privilege, not only unduly
and directly interferes with and impedes the valid exercise of the powers
and functions of Petitioner as Senator of the Repubiic but also conceals
information of great public concern and interest.
4.01 Respondent Hon. Eduardo S. Ermita is cdrrently the
Executive Secretary, with office address at The office of the Execurive
Secretary, Malacafrang Palace, San Miguel, 1005 Manila, where he may
be served with pleadings and other court Processes.
4.02 Respondent Augusto B. Santos is currently the Director
General of the National Economic Development Authority, with office
address at No. 12 Saint Josemaria Escriva Drive, Ortigas Center, 1605
Pasig City, where he may be served
with summons and other
processes
of
this Honorable Court.
IV,
STATEMENT OF FACTS AND CASE
5.0i On 21 April 2007, the Department of Transportation and
Communications (DOTC), through Secretary Leandro R. Mendoza, and
ZTE Corporation (ZTE), through its Vice President Yu Yong, executed in
Boao, China, a "Contract For the Supply of Equipment and Services for
the National Broadband Network Project" worth US$329,48I'290
(approx. Php16 Billion), which signing was witnessed and attended also
by President Gloria Macapagal-Arroyo (PGMA)' who took time out from
her multifarious duties iust to witness the signing thereof' The ZTE
contract will be financed through a loan that will be extended by the
People's Repubiic of China, through the Export-ImPort Bank of China'
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The said contract was approved by the National
Economic Development Authority (NEDA) on 29 March 2007'
5.01.01
5.02 Thereafter, the supply conract with Z'tE for rhe
estabiishment of a National Broadband Network (NBN) has been
shrouded in mystery and buffeted by controversies, with allegations of
,,overpricing" of around Php100 Million and "kickback commissionsl'
involving high-ranking government officials, and other anomalies
includin!, but not limited to, theft of the said contract, collusion' and
political pressures. Furthermore, the ZTE contract has been widely
'white
criticized by the private sector and the academe as being another
elephant, and that there is no sound basis for the establishment of an
NBN project.
5.03 Thus, by reason of the highly controversial, and apparently
with ZTE, the Senate Committees
conduct an inquiry and investigation, in aid of
anomalous, nature of the NBN project
were prompted
to
Iegislation, of the same, uPon the instance of the following:
a)
Philippine Senate Resoiution No. 127, introduced by Senator Aquilino Q
Pimentel, Jr., entitled:
P.ESOLUTION
DIRECTINGTIIE BLI,JE RIBBON COMMITTEE AND THE
COMMITTEE ON TRADE AI'ID INDUSTRY TO IIWESTIGATE' IN
AID OF LEGISLATION, THE CIRCUMSTANCES LEADING TO THE
APPROVAL OF THE BROADBAND CONTRACT WITH ZTE AND
THE ROLE PLAYED BYTHE OFFICIALS CONCERNED IN GETTING
IT CONSUMMATED, AND TO MAKE RECOMMENDATIONS TO
HALE TO THE COURTS OF II.W, THE PERSONS RESPONSIBLE
FORANYANOMALY IN CONNECTION THEREWITH AND TO
PLUG LOOPHOLES, IF AI{']T, IN THE BOT LAv/ AND OTHER
PERTINENT LEGISIATIONS.
b)
!
Philippine Senate Resolution No' 129, introduced by Senator Panfilo M'
Lacson, entitled:
RESOTUTION
DIRECTING THE COMMITTEE ON NAfiONAL DEFENSE AND
sEcuRITY TO CONDUCT AN INqUIRY IN AID oF LEGISLATION
INTO THE NATIONAL SECURITY IMPLICATIONS OF AWARDING
THE NATIONAL BROADBAND NETWORK CONTRACT Tb THE
CHINESE FIRM ZHONG )(ING TELECOMMUMCATIONS
EqUIPMENT COMPAI'{Y LIMTTED GTE CORPORATION)' WITH
TTIE END IN VIEW OF PROVIDING REMEDIAI LEGISLATION
iilEii8$afi-r8Bgilii&!la;,"-*;.+;.ri,
THAT WILL FURTHER PROTECT OUR NATIONAL SOVEREIGNTY
SECURITY AND TERRITORIAL INTEGRITY.
c)
Privilege Speech of Senator Panfilo M. Lacson delivered on 11 September
2007, entitled " Legacy of Corruption."
d)
Philippine Senate Resolution No. 136, introduced by Senator Miriam Defensor
Santiago, entitled:
RESOLUTTON
DIRXCTINGTT{E PROPER SENATE COMMITITE TO CONDUCT
AN INQUIRY, IN AID OF LEGISI.ATION' ON THE LEGAL AND
ECONOMIC JUSTIFICATION OF TIIE NATIONAL BROADBAND
NETWORK (NBI9 PROJECT OF THE GOVERNMENT.
e)
f\
t,t
Senator Miriam Defensor Santiago delivered on 24
September 2007, entitled " International Agreements in constirutional Law:
The Suspended RP-China (ZTE) Loan Agreement"'
Philinnine
Senate Resolution No. 144, introduced by Senator MAR Roxas,
.
Privilege Speech
of
entitled:
ARESOLUTION
URGING PRESIDENT GLORIA MAAPAGAL.ARROYO TO DIRECT
THE CANCELI"{'TION OFTTIE ZTE CONTRACT.
5.04 By reason of the aforementioned resolutions and
sPeeches,
the Senate Committees have conducted hearings to inquire into and
investigate, in aid oflegislation, the NBN project.
5.05 Furthermore, there are three pending bills in the Senate at
present, consideration of which requires further investigation by the
Senate Committees. These bills are:
a)
Senate
Bili No.
1793, introduced by Senator MAR Roxas, entitled:
ANACT
SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIYE AGREEMENTS
N.N/OLVING zuNDING INTHE PROCUREMENT OF INFRASTRUCTURE
PROJECTS, GOODS, AND CONST'LTING SERVICES, TO BE INCLUDED IN THE
scoPE AND APPLICATION OF PHILIPPINE PROCUREMThI,ILAWS'
AMENDING FOR THE PURPOSE REPI,JBLIC ACT NO' 9 184, OTHERWISE
KNOWN AS THE GOVERNMENT PROCTJREMENT REFORM ACT' AND FOR
OTHER PIJRPOSES.
.
.
,
.
,.-,!iiEc!aiiilllu!*
b)
Senate
Bill No.
1794, introduced by Senator MAR Roxas' entitled:
ANACT
IMPOSING SAFEGUARDS IN CONTMCTING LOANS CI-ASSIFIED AS OFFICIAL
DHTELoPMENT AssIsTANcE, AMENDING FoR THE PIJRPoSE REPUBLIC AcT
NO.SIS2,ASAMENDEDBYREPUBLICACTNO.3555,OTHERWISEKNOWNAS
TIIEoFFICIALDEVELoPMENTASSISTANCEAcToF1996,ANDFoRoTHER
PTJRPOSES.
c)
Senate Bill
entitled:
No. 1317, introduced by
Senator Miriam Defensor SantiaSo'
ANACT
MANDATINGcoNcURRENcEToINTERNATIoNALAGREEMENTSAND
D(ECUTTVE AGRSEMENTS.
5.06 The Senate, through a letter dated 26 September 2007'
requested from Director General Santos copies of the minutes of the
NEDA-ICC Meetings relarive to the deliberations on the NBN project. A
certified true coPy of the Senate letter dated 26 September 2007 is
attached hereto as Annex "A" and made an integral Part hereof'
5.07 The Senate, then, received a copy of NEDA letter dated 3
october 2007 whereby Director General Santos refused to furnish to the
Senate the request for documents on the ground that the request for
documents is covered by the executive privilege, to wit:
Your request is covered by the executive privilege' The
discussions in closed-door Cabinet and NEDA meetings
are considered executive privilege and necessarily' the
minutes of said closed-door meetings are also covered by
executive Privilege.
Funher, the NBN project is not yet a finalized project'
and it is therefore Premature to lelease documents prior
to the conclusion of all implementing agreements under
the framework of an executive agreement'
A certified true copy of the NEDA letter dated 3 october 2007 is attached
hereto as Annex "B" and made an integral part hereof'
5.08 Thereafter, a subpoena duces tecum dated 3 October
nras issued by the Senate Committes addressed to, and served on'
2007
Director
General Sanros, which required him to submit the following described
documents:
-,rri*"
a)
b)
c)
d)
4
Copies of the minutes of NEDA-ICC meetings relative to
the NBN Proiect;
Outline of events of the NBN Project;
Timeline of Projects from 2005 to 2007;
Historical Events re NBN-ZTE Project from ICC,
Cabinet Committee to NEDA aPProval; and
Track Record ofthe Government which has economic
benefits
-
MRT, LRT
A cenified true copy of the subpoena duces tecum dated 3 October 2007
is attached hereto as Annex "C" and made an integral part hereof'
5.09 On 24 October 2007, the Senate received a copy of NEDA
letter dated 24 October 2007 whereby Director General Santos refused to
furnish to the Senate Committees the requested documents on the
ground that the same is covered by executive privilege. The letter, in
Dart, stated:
With respect to the Minutes of the NEDA-ICC meetings
relative to the NBN Project, the Minutes cover
discussions in closed-door Cabinet and NEDA meetings,
as well as internal deliberations of government officials
by which government decisions are made or policies
formulated are covered by executive privilege (Chavez
us. PCGG, G.R. 130716, 9 December 1998; Senate us'
Ermita, 488 SCRA l, 2006). We also have a directive
from the Office of the Executive Secretary not to release
the said documents on the same ground'
A certified true copy of the NEDA
letter dated 24 October 2007
is
attached hereto as Annex "D" and made an integral part hereof'
General Santos relies on
the letter dated 28 September 2007 of Secretary Ermita, which, in part,
5.i0 In support of his position, Director
states:
Please be informed that discussions in closed-door
Cabinet and meetings are considered executive privilege
(Chavez vs. PCGG, G.R. 130716, 9 December 1998;
Senate vs. Ermita, 488 SCRA 1, 2006). Necessarily,
minutes of said closed-door meetings are also covered by
executive privilege. If internal deliberations, debates and
positions of Cabinet members can be compelled to be
disclosed, Cabinet officials will be unduly hampered in
giving their frank, fuIl, and ftee exchange of views in the
shaping of decisions, policies and actions affecting the'
nation. In this case, the context in which executive
.
.,-1i,"- .,;***ee.,*"*,.,{*.ol{.ilifl8l
privilege is being invoked is that the information sought
to be disclosed goes into the question of whether or not
we will honor our agreements with the People's
Republic of China (PROC), which if disclosed mig\g
have negative implications in our diplomatic as well as
economic relations with PROC.
A certified tme copy of Secretary Ermita's letter dated 28 September 2007
is attached hereto as Annex "E" and made an integral part hereof.
5.1
1
Hence, the instant petition for Certiorari and Mandamus.
v.
ARGITMENTS
6.01 THE II{VOCATION
OF EXECUTIVE PRIVILEGE BY
IN THIS
CASE INFRINGES UPON THE
CONSTITUTIONAL POWER OF INqUIRY VESTED IN
RESPONDENTS
CONGRESS AND HENCE,
CONSTITI]TION.
VIOIj,TES THE
L987
6.02 RESPONDENTS SECRETARY ERMITA AI''ID
DIRXCTOR GENERAI SAI\TTOS HAVE NO VALID
GROUND IN THE INVOCATION OF E)(ECUTIVE
PRIVILEGE AND HENCE, THERE CAN BE NO JUST
RECOGNITION OF THE SAME.
6.03 HGCUTIVE PRTVITEGE DOES NOT EXTEND TO
CRIMINAL ACTIVITIES LIKX THE BRIBERY
ALLEGATIONS OF TINPRJCEDENTED MAGNITUDE
INVOLVED IN THE NBN PROIECT, PURSUANT TO THE
RULING OF THE SUPREME COURT TN ALMONTE US.
U'ASQWZ GR NO. 95367 AI'ID UNITED STATES W.
NrxoN,418
U.S. 683 (1974).
6.04 THE INFORMATION AND DOCUMENTS
OF THE SWPOENA
SUBJECT
DUCES TECUM ARE MATTERS OF
PARAMOUNT PUBLIC INTEREST AND ISSUES OF
GREAT NATIONAL CONCERN AND SIGNIFICANCE,
WHICH SHOULD NOT BE DEFEATED BY THEVERX
I]NQUATIFIED II{VOCATION
OF
DGCI.]'TIVE
PRTYILEGE.
10
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vI.
DISCTJSSION
The
invocation
of
executive
upon the
privilege infringes
constitutional power of inquiry
vested in Congress and hence,
violares the 1987 Constitution.
7.01 At the outset, it must be stressed that the wrongful and
erroneous invocation by Respondents Secretary Ermita and Director
General Santos of the claim of executive privilege violates the following
provisions of the 1987 Constitution:
7.01.01
Section 21. Article VI. which states:
Section 21. The Senate or the House of Representatives
or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons
appearing in, or affected by, such inquiries shall be
respected.
7.07.02
Section 22, Anicle VI, which states:
Section 22. The heads of departments may, upon theit
own initiative, with the consent of the President, or
upon the request of either House, as the rules of each
House shall provide, appear before and be heard by such
House on any matter penaining to their departments.
Written questions shall be submitted to the President of
the
Senate
or the
Speaker
of the House of
Representatives at least three days before their scheduleo
appearance. Interpellations shall not be limited to
written questions, but may cover matters related thereto
When the security of the State or the public interest so
requires and the President so states in writing, the
aDDearance shall be conducted in executive session.
7.0i.03
Section l, Article VI, which states:
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the
ll
i..
,.,,a*;r,ii:i'lii!1i!'*"1,"i*,,
extent reserved to the people by the provision on
initiative and referendum.
7.01.04
Section 1, Article XI, which states:
Section 1. Public office is a public trust. Public officers
and employees must, at all times, be accountable to the
people, serve them with utmost responsibility, integrity,
Ioyalty, and efficiency; act with patriotism and justice,
and lead modest lives.
7.0i.05
Section 7, Article
III, which
states:
Section 7. The right of the people to inforrnation on
matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining
to official acts, transactions, or decisions, as weli as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
7.01.06
Section 4, Article
III, which
states:
Section 4. No law shall be passed abridging the freedom
of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the
government for redress of grievances.
7.0I.07
Section 16, Article XIII, which states:
Section 16. The right
of the people and
their
organizations to effective and reasonable particiPation at
all levels of social, political, and economic decisionmaking shall not be ablidged. The State shall, by law,
facilitate the establishment of adequate consultation
mechanisms.
7.01.08
Section 28, Article II, which states:
Section 28. Subiect to reasonable conditions prescribed
by law, the State adopts and impiements a policy of fulpublic disclosure of all its transactions involving public
interest.
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7.02 The invocation of executive privilege by Secretary Ermita
and Director General Santos, with respect to certain information and
documents relative to the NBN project, tramples not only the
fundamental right of Petitioners as legislators to have access to any and
all needful information for the crafting of significant and sound
Iegislative measures, but also disregards the time-honored constitutional
right to information of the Filipino people.
Secretary Ermita
and
Director
General Santos have no valid ground
in the invocation of
executive
privilege and hence, there can be no
just recognition of the same.
8.01 The claim of executive privilege by Secretary Ermita and
Director General Santos does not rest on any need to protect military,
diplomatic, or national security secrets, but merely on a general public
interest in the confidentiality of such information. Thus, the same must
yield to a subpoena considered essential to the crafting and enactment of
laws, of which there are now at least three pending bills, namely: a)
Senate Bill No. 1793; b) Senate Bill No. 1794; c) Senate Bill No. 1317. It is
precisely the goal ofSenate investigations and inquiries to determine the
loopholes in our present procurement law as well as the use of the device
of executive agreements to circumvent the bidding requirements in our
BOT laws.
8.02 Where there is no need to protect any such state
secrets,
executive privilege cannot be invoked to withhold documents and other
information pertinent to the functions of Petitioners as legislators to
conduct inquiries and investigations in aid of legislation, considering that
the information to be examined will be done in "strict confidence" anc
under "scrupulous protection," in compliance with what is mandated in
Chavez vs. PCGG.
8.03 In the case at bar, Petitioners are in genuine need of the
information and documents relative to the NBN project, sought through
the subpoena duces tecum dated 3 October 2007, as this will significantly
aid in the enactment of necessary legislative measures.
8.03.01
As a matter of fact, Petitioner Sen. MAR Roxa's
has already filed two Senate bills in this respect a) Senate Bill No.
1793, which seeks to amend Republic Act No. 9184, otherwise
known as the Government Procurement Reform AcC and b) Senate
Bill No. 1794, which seeks to amend Republic Act No. 8182'
otherwise known t]r'e Official Development Assistance Act.
8.03.02
Additionally, Senate Bill No. 1317, entitled "An
Act Mandating Concurrence to International Agrcements and
Executive Agreements," was introduced by Sen. Miriam Defensor
Santiago.
8.03.03
Without a doubt, therefore, the information
"rri
documents, which are, copies of the minutes of the NEDA-ICC
meeting relative to the NBN project, are quite essential and
significant to the enactment of the proposed amendments to
Government Procurement Reform Act and Official Development
Assistance Act.
8.03.04
Without the subpoenaed documents, Petitioners,
therefore, are effectively denied of their right to access to any and
kinds of usefirl information and consequently, their right to
intelligently craft and propose laws. Verily, Petitioners are
hampered in intelligently studying and proposing legislative
measures by reason of Secretary Ermita and Director General
Santos' absolutist invocation of the claim of executive priviiege'
8.04 It must be noted that executive privilege
is the exception and
hence, executive transparency the rule, as can be gleaned from the ruiing
in Senate vs. Ermita, when it was held that:
Certainly, Congress has the right to know why the
requested information
executive considers the
privileged. It does not suffice to merely declare that the
President, or an authorized head of office, has
determined that it is so, and that the President has not
overturned that determination. Such declaration leaves
Congress in the dark on how the requested information
could be classified as privileged. (Senate vs. Ermita,
sup14
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8.05 Executive privilege is not absolute, but qualified, and hence,
with corresponding limitations.
8.05.01
Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to
certain tvpes of information of a sensitive character.
8.05.02 It must always be remembered
that the phrase
'executive privilege' is not a 'magical incantation' that can be
invoked easily through sheer whim or caprice.
8.05 Executive Secretary Ermita asserts "that discussions in
closed-door cabinet and NEDA meetings are considered executive
privilege." In short, Executive Secretary Ermita is saying that the cited
discussions are confidential and therefore covered by the executive
privilege. The claim for confidentiality ofinternal deliberations, debates,
and positions of Cabinet members, or conversations must yield to the
need for the public interest if it does not invoke miiitary, diplomatic, or
sensitive national interest. In the case of U.S. vs' Nixon 418 U'S' 633
(1974), the US Supreme Court held:
"However, neither the doctrine of separation of powers'
nor the need for confidentiality of high-levei
communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from
judicial process under all circumstances. The President's
need for complete candor and objectivity from advisers
calls for great deference from the courts. However,
when the privilege depends solely on the broad,
undifferentiated claim of public interest in the
confidentialiry of such conversations, a conftontation
with other values ari.ses. Absent a claim of need to
protect military, drplomatic, or sensitive national
security secrets, we find it diffrcult to accept the
argument that even the very important interest in
confidentiality of Presidential communications is
significantly diminished by production of such material
for in camera inspection with all the protection that a
district court will be obiiged to provide. [418 U.S' 683,
707)"
In this particular instance, the public interest
8.06.01
being protected is the need for remedial legislation, to obviate
overpricing and preclude bribery in public contracts and must
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prevail over confidentiality of the so-called discussions in closeddoor meeting among cabinet members and NEDA ofhcials'
Contrary to the assertion of the Executive
Secretary, there are no diplomatic secrets involved in the ZTE
8.06.02
Broadband deal. True the Chinese government is extending a loan
to the Republic of the Philippines. However, the ZTE Broadband
deal is purely a commercial transaction and does not involve
diplomatic secrets. Besides, the alleged diplomatic and economic
dangers being alleged by respondent Secretary Ermita are' at best'
moot and academic in view of the cancellation by the government
of the contract with ZTE. Equally important, the loan is to the
tune of US$329 Million, a mind-boggling and staggering amount by
any standard, which the Filipino people must Pay for so many years
to come. The Filipino people certainly deserve more effective
remedial acdon so that loan funded projects are well worth
8.07 The ZTE broadband contract was already an
it'
approved
contract prior to its cancellation by President Gloria Macapagal Arroyo'
Likewise as its name implies, the NEDA Project Evaluation Report of
March 26,2007 was already an official NEDA recommendation on the
ZTE Broadband Proiect. Thus, a mere three (3) days after, or on March
29,2007, the NEDA approved the implementation of the NBN Project'
chavez vs. Public Estares Authority and Amari coastal Bay Development
Corporation, GR No. 133250, ]uly 9, 2002, the Supreme Court ruled:
"Information, however, on on-going evaluation or
review of bids or proposals being undertaken by the
bidding or review committee is not immediately
accessible under the right to information. While the
evaluation or review is still on-going, there are no
'official acts, transactions, or decisions' on the bids or
proposals. However, once the committee makes its
official recommendation, there arises a
'definit'e
proposition' on the part of the government. From this
-o-"nr, the public's right to inforrnation attaches, and
any citizen can access all the non-proprietary
information leading to such defrnite proposition' In
Chavez v. PCGG, 33(33) the Court ruled as follows:
'Considering the intent of the ftamers of
the Constitution, we believe that it is
incumbent upon the PCGG and its
officers, as well as other government
reDresentatives,
to
disclose sufficient
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public informations on any
proposed
setdement that they have decided to take
up with the ostensible owners and holders
of ill-gotten wealth. Such information
though, must pertain to definite
propositions
of the
government, not
necessarily ro intra-agency or inter-agency
recommendations or communications
during the stage when common assertio t
are still in the process of being formulated
or are in the 'exploratory' stage. There is
need, of course, to observe the same
restrictions on disclosure of information in
general, as discussed earlier - such as on
matters involving national security,
diplomatic or foreign relations,
intelligence and other
classified
information."
Contrary to AMARI's contention,
the
commissioners of the 1986 Constitutional Commission
understood that the right to information 'contemplates
inclusion of negotiations leading to the consummation of
the transaction.' Certainly, a consummated contract is
not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise
the right if no contract is consummated, and if one is
consummated, it may be too late for the public to exPose
its defect.
Requiring a consummated contract will keep the
public in the dark until the contract, which may be
grossly disadvantageous to the government or even
illegal, becomes a fait accompli. This negates the State
policy of fulI transparency on matters of public concern,
a situation which the framers of the Constitution could
not have intended. Such a requirement will Prevent the
citizenry from panicipating in the public discussion of
any proposed contract, effectively truncating a basic
right enshrined in the Bill of Rights. We can allow
neither an emasculation of a constitutional right' nor a
retreat by the State of its avowed 'policy of full disclosure
of all its transactions involving public interest."'
.,
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Executive Priuilege does not extend
to criminal activities like the bribery
allegations of unprecedented
magnitude involved
in the NBN
project.
9.01 Even assuming arguendo that NEDA DG Santos is able to
validly invoke executive privilege, and even if he was properly
authorized to do so by the President, the same is nevenheless without
merit as it does not extend to criminal activities like the bribery
allegations of unprecedented magnitude involved in the controversial
NBN project, in observance of the well-enshrined principle laid down in
United States vs. Nixon.
9.02 Two American Scholars on Executive Privilege, Norman
Dorsen and lohn Shattuck. write:
Whatever the effect of these rules in other
circumstances, there shouid be no executive privilege
when the Congress has already acquired substantial
evidence that the information requested concerns
criminal wrong-doing by executive offrcials or
presidential aides. These is obviously an overriding
policy justification for this position, since the opposite
view would permit criminal conspiracies ar the seat of
government to be shrouded by the veil of an advice
privilege. While the risk of abusive congressional
inquiry eists, as the McCarthy experience demonstrares,
the requirement of "substantial evidence" of criminal
wrong-doing should guard against improper use of the
investigative power. (Dorsen & Shattuck, "Executive
Priviiege, The Congress and the Courts," 35 Ohio State
Law Journal I, p. 34 (197 4))
9.03 In Estrada vs. Desierto, G.R. No. 746710-15 and 146738,
2
March 2001, the Supreme Court Z'r: Banc demarcated the strictly limited
scope of executive immunity and executive privilege, thus:
a criticai reading of current literature on
executive immunity wiil reveal a judicial disinclination
to exlrand the priviiege especially when it impedes the
search for truth or impairs the vindication of a right.
Indeed,
The information and
documents
subject
Senate-issued
subpoena duces tecum are matters of
paramount public interest and issues
great national concern and
of the
of
significance, which should not be
defeated by the mere unqualified
invocation of Executive Privilege.
10.01 No less than the 1987 Constitution requires
shall maintain honesty and integrity
that: "The State
in the public
service and take
positive and effective measures against graft and corruption. Subject to
reasonable conditions prescribed by law, the State adopts and implements
a policy of full public disclosure of all its transactions involving public
interest."
10.02
In addition, the 1987 Constitution also mandates rhat: "The
right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by
law."
10.03 Therefore, there is an undeniable constitutional right of the
people to information, as can be clearly seen from the text oithe 1987
Constitution itself, as opposed to the claim of executive privilege, which
is not even textually demonstrable in the 1987 Constitution.
Thus, the information and documents subject
of
the
subpoena duces tecum issued by the Senate relative to the NBN project
are matters of paramount public interest and issues of great national
concern and significance, which should not be defeated by the mere
unqualified invocation of executive privilege.
10.04
To subordinate the constitutional policy of the right
to
information to a broad, and often abused, mantle of executive privilege,
as in this case, constitutes clear and present danger to Philippine
democracy.
10.05
19
.
10.05 The justification put up by the Respondents that disclosure oi
the minutes of the closed-door meetings of the NEDA on the NBN
Project would strain diplomatic relations with China overlooks the fact
that the Senate plays also a crucial role in the conduct of foreign
relations. The Senate is duty-bound to ratify international agreements
entered into by the Executive. The bill introduced by Sen. Santiago seeks
to strengthen this role of the Senate and to preclude the use of executive
agreements to circumvent this constitutionai mandate on the vital role of
the Senate.
By the device of executive agreements, the Executive has
entered into irregular and anomalous transactions involving the NBN
Project. By using executive privilege as a shield, Respondents have
gravely abused their discretion.
10.07
vtl.
RELIEF
WHEREFORX, premises considered, Petitioners Sen. MAR Roxas
and Sen. Benigno Aquino respectfully pray that the Honorable Supreme
Court issue the foilowing:
a)
Writ of Certiorari to nullify the letter of
Respondent Executive Secretary Eduardo
S.
Ermita justifying NEDA Director General
Augusto B. Santos' invalid claim of executive
privilege for being unconstitutional and void;
and
b)
Writ of Mandamus to require and compel
respondent NEDA Director General Augusto B.
Santos to comply with the subpoena duces tecum
dated 3 October 2007 issued by the Philippine
Senate and submit all pertinent information and
documents reiative to the NBN project.
Petitioners Sen. MAR Roxas and Sen' Benigno Aquino aiso
respectfuily pray for other and further relief that may be deemed just arrd
equitable under the premises.
20
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Makati City and Pasig City, for the City of Manila, 25 October 2007
AGABIN VERZOI-A. HERMOSO & I.A,YAOEN
Counsel for Petitioners
26'h Floor Pacific Star Building
Gil Puyat Avenue corner Makati Avenue
Makati City, Metro Manila, Philippines
Tel. No. (632)817-7717
By:
D.a#k-^
PACIflCO A{AGABIN
IBP Lifetime Roll No. 251
PTR No. 0385207/0 1 -3 1 -2007 /Makati City
Roll of Attorneys No. 16609
MCLE [Exempted]
anc
CADIZ &TABAYOYONG
Counsel for Petitioners
Suite 3601, 36'h Floor, The Antel Global Center
No. 3 ]ulia Vargas Avenue, Ortigas Center
1605 Pasig City, Metro Manila, Philippines
Tel. No. (632) 638-0080 to 85
By,
IBP Life
€/,,
///*/a,/
ANSELMO I. CADIZ
ll No. 02819/01-24-2002/Camarines Sur
. 3645693/ 0l -1 0-2007/Pasig City
oll of Attorneys No. 35072
MCLE Exemption No. I-001109
YONG
IBP
Roll
PTR No. 364669A01 -I0-2007lPasig City
Roll of Attorneys No.44133
MCLE Compliance No. I-0003109
,-.
VERINCATION AND CERTIFICATION OF NON-FORT]M SHOPPING
I, MANLIEL A. ROXAS, of legal age, Filipino, with office address at
Room 512, GSIS Building, Philippine Senate, 1308 Pasay City, Metro
Manila, after having been duly sworn in accordance with law, do hereby
certify and state that:
l.
am the Petitioner in the foregoing petition. I hereby attest
that I have caused the preparation of the foregoing Petition, that I have
read the same, and that the allegations contained therein are true and
correct based of my own personal knowledge and,/or on authentic records
I
in my possession.
2, I
have not theretofore commenced any other action or
proceeding involving the same issues in the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other court, agency or
tribunal, and to the best of my knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other court, tribunal or agency.
3. In the event that I should know that a similar action or
proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or the different divisions thereof, or any other court,
agency or tribunal, I undenake to inform the aforesaid courts, agency and
tribunal of the same within five (5) days therefrom.
IN WTINESS WHEREOF. I have hereunto set my hand this 25d
A.ROXAS
+l*{"
SIJBSCRIBED AND SWORN to before me this 25tr day of October
2007 at Makati City, Philippines, affiant exhibiting to me his Passport
No. TT W59076 issued on 1 September 2CI6 at the Department of
Foreign Affairs, Manila.
Doc. No.
Page
No.
4tQ
lf
BookNo.4
;
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Series of2007.
.,.-..4fiW{ffi$&ijs}&&i.$Shiir&i"', r.,,,'
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VERIEICATION AND CERTINCATION OF NON-FORI]M SHOPPING
I, BEMGNO SIMEON C. AQIINO III, of legal age, Filipino, with
office address at the 5s Floor, GSIS Building, Philippine Senate, 1308
Pasay City, Metro Manila, after having been duly sworn in accordance
with law, do hereby certify and state that:
1. I
am one of the Petitioners in the foregoing petition. I
hereby aftest that I have caused the preparation of the foregoing Petition,
that I have read the same, and that the allegations contained therein are
true and correct based of my own personal knowledge and/or on
authentic records in my possession.
2. I
have not theretofore commenced any other action or
proceeding involving the same issues in the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other court, agency or
tribunal, and to the best of my knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals, or differet'ic
divisions thereof, or any other court, tribunal or agency.
3. In the event rhat I should know that a similar action or
proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or the different divisions thereof, or any other court,
agency or tribunal, I undertake to inform the aforesaid courts, agency and
tribunal of the same within five (5) days therefrom.
IN WITNESS WHEREOF. I have hereunto set my hand this 25tb
q
BENIGN
SIMEON C. Aqr.JrNO rrr
Affiant
AI.ID SWORN to before me this 25'h day of October
2007 at Makati City, Phiiippines, afEant exhibiting to me his Passport
No. MM 853421 issued on 13 April 2004 at the Department of Foreign
Affairs. Manila.
STTBSCRIBED
Doc.
No.4>o
;
No. 1I :
Book No. JL ;
Series of2007.
I'lo Nl-.i60
fof Makaii crty
Paee
31,2007
104 H.V. dela Costa slreet
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IBP 693314/Makali CilJ'/O1- j :lJl.i'
'
COPY FT'RNISHED BY PERSONAL SERVICE:
HON. EDUARDO S. ERMITA
Office ofthe Executive Secretary
Malacaflang Palace
1005 San Miguel, Manila
H(PIA}IATION
(PURSUANT TO SECTION 11. RULE 13 OF THE
1997 RULES OF CIVIL PROCEDURE)
This Petition was served on the other parties by registered mail,
following the requirements of the Rules of Court, due to temporary lack
of messengers who can complete personal service and filing.
Regrstry
Receipt No.
?q
SEC.AUGUSTOB.SANTOS caw
National Economic Development Authority
No. 12 Saint ]osemaria Escriva Drive
Ortigas Center, 1605 Pasig City
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street, Legaspi Village
Makati City
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