The circle is complete: applying US v. Nixon to Neri v. Ermita


After discussing the historical overview of executive privilege, expounding on presidential communication privilege, and examining US v. Nixon at length, Chief Justice Reynato Puno applied all of these in resolving the petition file by Romulo Neri.

Diplomatic, Military, National Security Secrets Privilege is Invoked

In the petition, Executive Secretary Eduardo Ermita specifically and categorically invoked the presidential communications privilege. For good measure, he added the bogey that disclosure would impair our country’s diplomatic relations with China. Revisiting his letter, Ermita said:

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which these information were conveyed to the President, he (Secretary Neri) cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

Almonte v. Vasquez and Chavez v. PCGG acknowledge executive privilege in terms of state secrets: military, diplomatic, and national security concerns. US v. Reynolds outlined the procedure on how to invoke and assess the validity of the invocation of the military secrets privilege, which Puno believes can be used in diplomatic secrets privilege. This case holds that there must be a formal claim of executive privilege, done by the head of a department that has control over the material. The role of the court is to determine whether the circumstances are appropriate for the claim, without disclosing the very material that the privilege is designed to protect.

The officer invoking the claim must satisfy the court that there is reasonable danger that disclosure will expose military matters, which should not be divulged in the interest of national security.

Puno contends that the Court cannot assess the validity of the claim by Ermita that disclosure may impair relations with China. Ermita only made an assertion and no explanation was given on how diplomatic secrets will be exposed if Neri answers the three questions. In the oral arguments, Neri’s counsel failed to explain how diplomatic secrets will be exposed if Neri answers the three questions. The Court therefore cannot determine whether there is reasonable danger that diplomatic secrets will be revealed if Neri answered the three questions. He said, “The Court cannot engage in guesswork in resolving this important issue.” (Which the majority did, anyway.)

Neri also claimed executive privilege on the grounds that his conversation with Gloria Arroyo dealt with national security matters. Further, in his reply to the Senate’s show cause order, he attached a letter by Atty. Antonio Bautista, who added more reasons: Neri’s “conversations with the President dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines.” But Neri did not use the term “national security,” instead he used “military affairs.”

Senate v. Ermita ruled that only the President or the Executive Secretary, by order of the President, can claim executive privilege. Neri, by himself or through counsel, cannot expand the grounds invoked by Gloria Arroyo through Ermita. Thus, the grounds aside from what are claimed by Ermita are invalid.

Arguing that Neri can invoke other grounds aside from that claimed by Ermita, he still failed to provide the Court information so that the Court can determine whether there is reasonable danger that national security secrets would be divulged if Neri answers the three questions.

Again, in oral argument, Neri’s counsel (Neri did not attend the oral argument) claimed that the basis for the claim includes diplomatic, military, and national security secrets, but these were arguments by Neri’s counsel; it did not satisfy the requirement that US v. Reynolds required: “formal claim of privilege lodged by the head of the department which has control over the matter after actual personal consideration by that officer.” (From how I read this, it should be Arroyo or Ermita who should justify the claim.)

Puno’s last say on this: “Needless to state, the diplomatic, military or national security privilege claimed by the petitioner has no leg to stand on.”

Presidential Communications Privilege is Invoked

Puno emphasizes that while the presidential communications privilege should be respected, it is not to be used for personal benefit of the President, and that this privilege should be “for the benefit of the public, not of executives who may happen to then hold office.”

The rationale for this privilege, as stated in US v. Nixon, is based on (1) common sense and (2) on the principle that flows from the enumerated powers of the President and the doctrine of separation of powers under the Constitution. Both of these were recognized in Almonte v. Vasquez and Chavez v. PCGG.

Note, however, the US v. Nixon is a criminal case. Neri’s petition involves the executive and the legislative. (Justice de Castro used this argument to grant Neri’s petition using her context test:

Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.


Puno contends, however, that the tension of power between the executive and the legislature must be resolved using the function impairment test. In this test, the Court must balance whether the disclosure impairs the President’s ability to perform here duty more than non-disclosure would impair the Senate’s ability to perform their duty.

Starting the function impairment test, Puno recognizes that presidential communications are presumed to be privileged. The Senate contends that Neri has the burden of overcoming the presumption against executive privilege, citing Senate v. Ermita. However, based on US v. Nixon, the privilege is presumed – the burden of overcoming executive privilege is on the Senate.

So, recognizing that presidential communications are presumed to be privileged, the Court should determine the strength of the presumption. Puno contends that the “stronger the presumption, the greater the demonstrable need required to overcome the presumption; conversely, the weaker the presumption, the less the demonstrable need required to overcome the presumption.”

Puno states that to determine the strength of the presumption, the Court has to look where the Charter committed the power in question. In US v. Nixon, the presidential communications privilege rest on the President. Therefore, the more concentrated the power is in the President, the stronger the presumption; the more shared or diffused the power is with other branches or agencies of government, the weaker the presumption. This contention by Puno is important when reading his next assertion.

The subject of the Senate inquiry (where Neri was a witness) is a foreign loan agreement contracted by the President with China. The power of the President to contract or guarantee foreign loans is shared with the Bangko Sentral ng Pilipinas through the Money Board. Witness Article VII, Section 20 of the Constitution:

Sec. 20. The president may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

Corollary to that, Article XII, Section 20 states that majority of the Board shall come from the private sector.

While Puno did not give a definite conclusion to this line of argument, from my own understanding, he is saying that since the subject matter of the Senate inquiry is about the NBN deal being a loan from a Chinese company, this power to contract a loan is shared with the Monetary Board. And since this power is shared, the presumption that Neri’s communication with Arroyo becomes weaker.

Puno outlined other factors to consider when determining the strength of the presumption: (1) time of disclosure, whether contemporaneous or open; (2) level of detail, whether full text or whole conversations or summaries; (3) audience, whether the general public or a select few; (4) certainty of disclosure, whether information is disclosed as a matter of course or upon request; (5) frequency of disclosure; and (6) form of disclosure, whether live testimony or recorded conversation or affidavit. The type of information is also considered, whether military, diplomatic, or national security matters.

After testing the strength of the presumption that presidential communications are privileged, Puno starts determining whether the Senate has proven that it needs the information to overcome the presumption in favor of executive privilege.

Using the evidentiary standard of need, the Senate needs to prove that the privileged information is relevant, admissible, and specific, as stated in US v. Nixon. However, Nixon is a criminal case, while the petition pertains to the Senate inquiry, which is not bound by the evidentiary standard.

The requirement in legislative inquiries is that the question seeking the withheld information must be pertinent. The rule of pertinency is upheld in Arnault:

a. The investigating committee has the power to require a witness to answer a question pertinent to that investigation.
b. Every question that is asked must be material or pertinent to the subject matter of the investigation.
c. The question’s materiality must be determined by its direct relation to the subject of the investigation, not by its indirect relation to any proposed or possible bills.
d. “The necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question.”

Also, to satisfy the evidentiary need, it must be proven that “evidence is not available with due diligence elsewhere” or that the evidence is particularly and apparently useful.

To overcome the presumption of privilege, Puno asks if the question is pertinent and if information is available elsewhere.