PUNO’S TAKE ON EXECUTIVE PRIVILEGE

After discussing the legislative’s power to investigate, Chief Justice Reynato Puno tackled executive privilege next. The majority decision also has a discussion on executive privilege, which you may want to read: The circle is complete: on executive privilege.

Defining Executive Privilege

Puno has chosen to define executive privilege as “the right of the President and high-level executive branch officials to withhold information from Congress, the courts, and the public.” Both US and Philippine constitutions do not explicitly mention that term, though most jurists believe it is constitutionally based.

He then traced the history of the concept of executive privilege and its use throughout jurisprudence. I will skim a bit on this section, as most of these were already discussed in Justice Teresita de Castro’s majority opinion.

* George Washington had established this doctrine (“As the first of every thing in our situation will serve to establish a precedent, it is devoutly wished on my part that these precedents may be fixed on true principles.”) when he withheld information from a congressional committee that was investigating a military expedition against native Americans. Washington asserted that while disclosure is in the public’s best interest, he was withholding information that would injure the public.

* In another case, Washington allowed partial disclosure of documents regarding correspondence between the French government and the American minister, and between the minister and the Secretary of State, alleging that information could prove damaging to public interest.

* In US v. Burr [25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14,692d)], Thomas Jefferson (who staunchly defended executive secrecy – Gloria Arroyo must be a fan of his) was ordered by the Court to submit a letter that was subject of a subpoena duces tecum (I think everyone knows what this means, watching the Estrada impeachment telenovela) concerning Vice President Aaron Burr who was on trial for treason. In that decision, the Court noted that submitting the letter would advance the cause of justice (which a chief executive has the duty to seek – take that, Gloria). This case established the fact that executive privilege is not absolute, and that the interests in secrecy must be weighed against the interests in disclosure.

* Succeeding administrations continued exercising this privilege without batting an eyelash (Puno’s phrase is “without much hesitation”), until US v. Nixon [418 U.S. 683 (1974) – Link].

* And this is funny: “The latest trend has become for Presidents to assert executive privilege, retreat the claim and agree to disclose information under political pressure.” Well, probably not.

He concluded that this privilege is strongest when used on a legitimate need and most specially to serve the public interest.

Kinds of Executive Privileges

Justice de Castro has already discussed this section, so I’ll just give a cursory look at Justice Puno’s discussion. He outlined four kinds of executive privilege as defined in jurisprudence:

1. Military and state secrets. Claimed when disclosure is inimical to national security, or impairs defense capabilities, discloses information-gathering methods or capabilities, or disruption of diplomatic relations. Neri, through Executive Secretary Eduardo Ermita, invoked diplomatic relations with China as reason for claiming executive privilege.

2. Presidential communications privilege. Discussed by de Castro. Also invoked by Neri.

3. Deliberative process. Allowing full disclosure of deliberations will be inimical to frank exchange of ideas.

4. Law enforcement privilege. ” The law enforcement privilege protects against the disclosure of confidential sources and law enforcement techniques, safeguards the privacy of those involved in a criminal investigation, and otherwise prevents interference with a criminal investigation.” Logical.

Presidential Communications Privilege in Philippine Jurisprudence

After tracing its history, Puno discusses executive privilege in the Philippine judicial context.

* Almonte v. Vasquez [G.R. No. 95367, May 23, 1995, 244 SCRA 286]. Jose T. Almonte, then Commissioner of Economic Intelligence and Investigation Bureau (EIIB) and Villamor C. Perez, chief of EIIB’s Budget and Fiscal Management Division were being investigated by the Office of the Ombudsman. An anonymous letter alleged that funds saved from unfilled positions in the EIIB had been illegally disbursed. The Ombudsman required EIIB to produce documents relating to Personal Services Fund for year 1998. Petitioner Almonte et al refused to comply. The Supreme Court denied the petition on the grounds that no diplomatic or military secrets would be divulged by the submission of EIIB personnel records.

* Chavez v. PCGG [G.R. No. 130716, December 9, 1998, 299 SCRA 744]. Francisco Chavez filed a taxpayer’s petition to compel the Presidential Commission on Good Government (PCGG) to make public all documents and negotiations (ongoing or perfected) related to compromise with the Marcos family regarding ill-gotten wealth. The Supreme Court granted the petition since the right of information is guaranteed by the Bill of Rights, though the court acknowledged restrictions on the right, eg. national security matters. Both Almonte and Chavez did not fall under the category of Presidential communications.

* Senate v. Ermita [G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006)]. I think everyone knows this case, but to refresh our memories: After a series of investigations by the Senate, culminating with National Security Adviser Norberto Gonzales eating a banana, Gloria Arroyo issued Executive Order 464, requiring all heads of the executive department plus officers of the Armed Forces of the Philippines and Philippine National Police to secure consent of the President before appearing in congressional investigations. This EO was used as an excuse by official to skip hearings by the Senate on several issues. You know how this went.

US v. Nixon

After giving background information on executive privilege, Justice Puno examined US v. Nixon. The case stemmed from a break-in at the Democratic National Committee (DNC) headquarters in the Watergate Hotel. June 17, 1972 (four and half months before the US presidential elections), police had discovered five men inside DNC carrying electronic equipment, camera, and cash. They are part of the Committee to Re-elect the President’s (CRP, Nixon’s campaign organization in 1972) intelligence gathering plan; their planned to fix a defective bugging device placed a month before on the DNC chair’s phone.

A grand jury, formed to investigate the scandal, issued through Special Prosecutor Archibald Cox a subpoena duces tecum to Nixon, requiring him to submit tape recordings and documents enumerated in an attached document. Nixon withheld several tape recordings, claiming that “the President is not subject to the compulsory process of the courts.” The District Court of the District of Columbia Judge John Sirica ordered Nixon or any of his subalterns to explain the reason why the said tapes should not be produced as evidence.

The Court had decided that it had jurisdiction to decide the issue of privilege and it had the authority to enforce the subpoena. Nixon appealed the decision in the US Court of Appeals, which was decided in Nixon v. Sirica [487 F. 2d 700]. It upheld Sirica’s decision, and Nixon did not appeal this ruling.

The grand jury filed a criminal case against John Mitchell, head of CRP, and several other people. The Special Prosecutor filed a motion for a subpoena duces tecum to produce before trial tapes and documents “relating to precisely identified conversations and meetings of President Nixon.” Nixon moved to quash the motion, citing executive privilege. The Special Prosecutor then filed a petition to the Supreme Court, which upheld the District Court in US v. Nixon.