WHAT DOES IT MEAN?

Almost a week after the Supreme Court handed down Neri v. Senate, its ramifications are yet to be felt (except on the second part wherein Romulo Neri asked the Court to nullify the Senate’s arrest order; it is now being used by the Fortress lackeys as an excuse not to attend Senate hearings). Its impact has yet to sink in.

First, let me summarize how the decision went. Associate Justice Teresita de Castro wrote the decision, and she says that the three questions that Neri refused to answer are covered by executive privilege for three reasons:

1. The answers to the three questions refer to a conversation between the President and a close advisor. This satisfies the presidential communication privilege and the operational proximity test.
2. The answers refer to an exercise by the President of powers that is “quintessential and non-delegable,” and does not require concurrence of the Senate.
3. There is no compelling need to limit the privilege and disclose the information.

In his dissenting opinion, Chief Justice Reynato Puno disagrees, stating that Executive Secretary Eduardo Ermita’s claim of executive privilege is vague and too generalized, and thus the Court can’t reasonably rule if the answers to the three questions are covered. Arguing that it is covered because it is presumed to be privilege, that presumption is not absolute.

Also, he asserts that non-disclosure means the Senate cannot craft bills based on facts. The questions propounded are pertinent to pending bills, and that the information that the Senate needs cannot be gathered elsewhere.

My View

Executive privilege should be respected, yes, but it should be respected if the claim is valid. The problem with de Castro’s contention is that a formal claim and a generalized invocation are enough to presume the presidential communication is privileged. How can you say that when all Ermita said is that the communication between Neri and Gloria Arroyo is privileged, and that divulging the information might damage our relations with China? So we just take the claim in its face value? It has also unnecessarily shifted the burden of proof to the one opposing the claim of privilege.

The danger here is that Arroyo, through her henchmen, can claim executive privilege when refusing to answer questions from ANY investigating body. All they have to do is to make a formal claim and a vague, generalized invocation of reasons for making that claim. This has the same effect as the way the House of Reprehensibles innoculate Arroyo every year from any valid impeachment attempt. This innoculation, though is semi-permanent. After all, the House has to innoculate its queen once a year; this decision stands, stands as a precedent until overturned by the Court.

Comments by Others

I only know one columnist who was very glad with the Supreme Court’s decision; unfortunately for Alex Magno, he writes for The Philippine Star, who does not maintain permanent URLs for its articles (read: goodluck looking for it). Anyway, I cannot remember his jubilant post, except for the word “slap.”

I will not be surprised if Belinda Cunanan also wrote one like that of Magno; unfortunately for her, I do not read her articles anymore. Oh, she has no reaction yet; her last column was about Egypt.

Ok, so let us begin with what lawyers have to say about this decision.

Former Chief Justice Artemio Panganiban disagrees with the decision; he thinks that the decision has “imprudently expanded executive privilege to cover wrongdoings.” And he called de Castro’s argument about US v. Nixon in context of criminal investigation is not same banana with Neri’s case as “convoluted.”

Noted constitutionalist Fr. Joaquin Bernas explored the ways the Neri petition could have been resolved. He wondered why the Court did not resort to an in camera session to see if the claim is valid. And noting how the oral argument went, Bernas was surprised the majority still ruled for Neri; he asked how did the majority came up with the ruling. His question was: “Was it fathomed by guesswork, as Puno suggested?” He says that it seems to be so.

Atty. Raul Pangalangan concentrated on de Castro’s convoluted argument (former Justice Panganiban’s word, not mine). He claims that the decision “tells the Senate to follow the rules tightly while letting the Executive and the Ombudsman twist, turn, and dishonor the rules they were sworn to uphold.”

Atty. Butch Dado weighed in on the issue early. The decision, he says, allows the Fortress to refuse from testifying and answering questions from future Senate hearings; and even if they appear, they can always invoke executive privilege. The only way now for the Senate to go on, aside from the Court overturning its own decision, is to have another suprise witness.

Abe Margallo dissects the decision, and asserts that the decision clipped the checks-and-balance mechanism granted by the Constitution to the legislature and infringed into the legislature’s power to legislate.

Dean Jorge Bocobo points out a false distinction in de Castro’s decision about the powers of legislation and oversight. Justice de Castro claims that the Senate investigation is an exercise of its oversight function and not in aid of legislation, and thus the Senate cannot compel executive officials to attend.

The Jester-in-Exile is bold enough to predict that 9-6 may yet turn into 0-15, if the Senate files a well-written, well-argued motion for reconsideration (perhaps using the Puno dissent as template). If the Senate fails to act, or see its ” co-equal status to be further emasculated” by the Fortress.

Soliloquyboy thinks the decision is “an example of the travesty our court is slowly becoming.”

The Circle is Complete

Of the nine who voted to grant the Neri petition, eight are appointees of Gloria Arroyo. One of them played golf with Neri. Another was a very recent appointee, who had not participated in the oral argument. One is a phone pal of a Cabinet member. If Newsbreak’s sources are to be believed (and Newsbreak turns out to be correct most of the times), the Fortress had lobbied hard to win.

For this year, nine justices will retire. By 2010, the entire Supreme Court will be composed by appointees by Arroyo, with one remaining – Puno. But what is one against 14?

The circle of damaged institutions is complete.

PS: Well, there is the Senate. But it is damaged goods, and there are well-known fence crossers amongst them.

On this series:

* The circle is complete: background
* The circle is complete: on executive privilege
* The circle is complete: on legislative power of investigation
* The circle is complete: historical overview of executive privilege
* The circle is complete: on presidential communications privilege
* The circle is complete: applying US v. Nixon to Neri v. Ermita
* The circle is complete: Puno finds in favor of the Senate

PERTINENCE AND AVAILABILITY OF INFORMATION ELSEWHERE

In the previous installment, Chief Justice Reynato Puno discussed in his dissenting opinion on Neri v. Senate how to overcome the claims of executive privilege as stated in Romulo Neri’s petition: diplomatic, military, and national security secrets; and presidential communications privilege. He debunked the first claim, and began tackling the second one. Here is the continuation.

Is the Question Pertinent?

These are the three questions that Neri refused to answer:

a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after being told about the alleged bribe?

Now, to test the pertinency of the questions to the subject of the Senate inquiry, Puno outlined the resolutions, titles of privilege speeches, and pending bills that give purpose to the legislative inquiry. I will not be quoting them here.

Puno asserts that the three questions are pertinent to the subject matter of the Senate inquiry. The questions have direct relation both to the subject of the inquiry and the pending bills.

The three questions are pertinent to at least three subject matters of the Senate investigation: (1) possible anomalies in the consummation of the NBN-ZTE Contract in relation to the Build-Operate-Transfer Law and other laws (P.S. Res. No. 127); (2) national security implications of awarding the NBN Project to ZTE, a foreign-owned corporation (P.S. Res. No. 129); and (3) legal and economic justification of the NBN Project (P.S. Res. No. 136). The said questions are also pertinent to pending legislation: (1) the subjection of international agreements involving funds for the procurement of infrastructure projects, goods and consulting services to Philippine procurement laws (Senate Bill No. 1793); (2) the imposition of safeguards in the contracting of loans classified under Official Development Assistance (Senate Bill No. 1794); and (3) the concurrence of the Senate in international and executive agreements (Senate Bill No. 1317).

Is the information available elsewhere?

Puno contends that there is no substitute for the information being sought from Neri. In the first question, the information cannot be effectively found anywhere, since it refers to the importance of the project to Gloria Arroyo. (P.S. Res. No. 136)

On the second question, the information being sought refer to the factors considered by Arroyo in opting for NBN to be done by ZTE via foreign loan. Neri testified that she preferred a no-loan, no-guarantee unsolicited Build-operate-transfer (BOT) project, which was offered by Amsterdam Holdings Inc. This information is not available elsewhere, as it needed in the inquiry on the legal and economic justification of the NBN project, possible violation of the BOT Law, and in crafting pending bills. (P.S. Res. No. 136, P.S. Res. No. 127, Senate Bill No. 1793, Senate Bill No. 1794)

On the third question, the information cannot be found elsewhere as stated in the previous to question. Puno contends that answers to the three questions cannot be found elsewhere – there is no effective substitute.

In oral argument, Neri’s counsel (he did not attend the said event) argued that the Senate’s motive in asking the three questions was to pin Gloria Arroyo as culpable for alleged anomalies regarding NBE-ZTE deal. Counsel claims that invoking executive privilege does not mean Arroyo is hiding any crime. Puno contends that the motive of senators is beyond the purview of the Court’s power of judicial review.

Puno then states: “So long as the questions are pertinent and there is no effective substitute for the information sought, the respondent Senate Committees should be deemed to have hurdled the evidentiary standards to prove the specific need for the information sought.” Besides, in Watkins vs. US, the motives “of members of congressional investigating committees will not vitiate an investigation instituted by a House of Congress if that assembly’s legislative purpose is being served by the work of the committee.”

The Balancing Test

After dealing with pertinency of the questions and availability of information, Puno begins the balancing test. The aim of the test is simple. If information is disclosed, would it impair the President’s ability to perform her duties? If the information is not disclosed, would it impair Congress’ ability to perform its functions? Which is greater? The balancing test should result in the way that promotes public interest.

Will nondisclosure seriously impair Senate’s performance of its constitutional function to legislate? The Senate asserts in its comment that “there is an urgent need for remedial legislation to regulate the obtention (sic) and negotiation of official development assisted (ODA) projects because these have become rich source of ‘commissions’ secretly pocketed by high executive officials.” Puno contends that without the information being sought, the Senate will be hard pressed in amending Government Procurement Reform Act and Official Development Assistance Act to enable Congress to plug the loopholes in these statutes, and that several Senate bills will be crafted based on that information.

In short, withholding the information prevents the Senate from crafting specific legislation based on facts and not speculation.

Will disclosure of information seriously impair the President’s ability to perform her duties? Puno quotes an exchange between him and Neri’s counsel, Atty. Bautista. In that exchange, Puno asked Bautista on how the disclosure would impair the President’s ability to perform her duties. Based on his answers, Puno asserts that the claim is based on a general claim of a chilling effect (Arbet: like if disclosed, Arroyo believes that any of her people can disclose what they had conversed); that the general claim is unsubstantiated by specific proofs. Bautista could only share his own impression and personal opinion.

This is how Puno resolved the balance test:

Summing it up, on one end of the balancing scale is the President’s generalized claim of confidentiality of her communications, and petitioner’s failure to justify a claim that his conversations with the President involve diplomatic, military and national security secrets. We accord Presidential communications a presumptive privilege but the strength of this privilege is weakened by the fact that the subject of the communication involves a contract with a foreign loan. The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank). We also consider the chilling effect which may result from the disclosure of the information sought from petitioner Neri but the chilling effect is diminished by the nature of the information sought, which is narrow, limited as it is to the three assailed questions. We take judicial notice also of the fact that in a Senate inquiry, there are safeguards against an indiscriminate conduct of investigation.

On the other end of the balancing scale is the respondent Senate Committees’ specific and demonstrated need for the Presidential communications in reply to the three disputed questions. Indisputably, these questions are pertinent to the subject matter of their investigation, and there is no effective substitute for the information coming from a reply to these questions. In the absence of the information they seek, the Senate Committees’ function of intelligently enacting laws “to remedy what is called ‘dysfunctional procurement system of the government” and to possibly include “executive agreements for Senate concurrence” to prevent them from being used to circumvent the requirement of public bidding in the existing Government Procurement Reform Act cannot but be seriously impaired. With all these considerations factored into the equation, we have to strike the balance in favor of the respondent Senate Committees and compel petitioner Neri to answer the three disputed questions.

Puno agrees that executive privilege cannot be used to hide a wrongdoing, but it is “not the sword that would pierce the Presidential communications privilege.” Whether there was a wrongdoing or not, it should be proven in a proper forum; by showing a specific need the privilege would be pierced and only then one can discover if the privilege was used to hide a wrongdoing.

APPLYING US V. NIXON TO NERI V. SENATE

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.

PUNO’S TAKE ON EXECUTIVE PRIVILEGE

This post is the continuation of summarizing Chief Justice Reynato Puno’s dissenting opinion on Neri v. Senate. Previously, he discussed executive privilege, its history, application in US and Philippine jurisprudence, and examined US v. Nixon. You may want to read it: The circle is complete: historical overview of executive privilege.

On Presidential Communications Privilege

Puno is concentrating on presidential communications privilege because this is the primary reason why Neri invoked executive privilege. His examination of US v. Nixon was essential in his explanation about this privilege.

In US v. Nixon, the US Supreme Court recognized the presidential communications privilege. This decision cited two reasons for the privilege.

1. Public interest in candor or candid opinions in presidential decision-making. “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” The Court posited two reasons why this is necessary:

a. Common sense and experience. If the decision-making process is open, participants would be constrained to watch their language and temper candor, when candor is what is needed in decision making.

b. The supremacy of each branch in its own sphere of duties. “Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II (presidential) powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.”

2. Separation of powers. While the US Constitution divides power among three co-equal branches and grants independence to each, US v. Nixon holds that this separation is not intended to be exercised with absolute independence. While recognizing the presidential communications privilege based on separation of powers, the US Supreme Court also considered the effect of the privilege on the judiciary’s effective discharge of its duties.

According to Justice Puno, US v. Nixon has clearly defined the scope of presidential communications privilege.

It covers communications in the “performance of the President’s responsibilities” “of his office” and made “in the process of shaping policies and making decisions.”

Nixon v. Sirica asserts that presidential communications are presumed to be privileged as stated in In re Subpoena for Nixon [487 F.2d 700 at 717]. Puno noted that this presumption came at a time when there was a general disfavor of government privileges. In that In re case, the Court explained that in balancing the need to disfavor privileges and the need to favor the privacy of presidential deliberations, it sided in favor of the privilege, citing the need to respect the President, its office, and the duties of the office. (See above discussion re: US v. Nixon recognizing presidential communications privilege.)

Overcoming the Presumption of Presidential Communications as Privileged

Now to overcome that presumption, US v. Nixon asserts that there must be demonstrable specific need. Two standards must be met to overcome the presumption.

1. Evidentiary standard of need. The evidentiary requirements are relevance, admissibility, and specificity. The Supreme Court in US v. Nixon used this standard whether the subpoena overcomes the presumption of executive privilege. In addition, the In re Sealed Case [In re Sealed Case (Espy), 121 F3d 729 at 754], the DC Court of Appeals asserted that before the privilege is overcome, it must be shown that “evidence is not available with due diligence elsewhere” or that the evidence “is particularly and apparently useful.”

2. Function impairment test. Used in making the balance, the Court weighs how the disclosure would impair the President’s ability to perform his duties more than nondisclosure would impair the other’s branch ability to do its job.

In US v. Nixon, the Court assessed how significant would be the adverse effect of disclosure in the performance of the President’s functions. The Court ruled that “the interest in confidentiality of Presidential communications is not significantly diminished by production of the subject tape recordings for in camera inspection, with all the protection that a district court will be obliged to provide in infrequent occasions of a criminal proceeding.”

Then, it assessed the bad effects of nondisclosure on the judiciary’s performance of its duties. The Court ruled that by withholding information, the judiciary cannot perform its duty to render justice in criminal cases.

Checking on the nature or content of the communication that was withheld, the Court found that Nixon’s claim “depended solely on the broad, undifferentiated claim of public interest in the confidentiality” of his conversations. There was no claim to protect diplomatic, military, and state secrets.

The Court also held that while executive privilege is necessary, in Nixon’s case it impedes the search for truth and “must not therefore be lightly created or expansively construed.”

After the discussion on overcoming this presumption, Justice Puno began tackling the in camera (within chambers) determination of information to be disclosed, again referring to US v. Nixon and related cases, specifically on US v. Mitchell. The in camera inspection is necessary to excise parts of the material because these are validly covered by executive privilege.

Given the previous discussion, Justice Puno now begins to discuss how to resolve Neri’s petition.

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.

ON DISCLOSURE AND SECRECY, SEPARATION OF POWERS, AND THE LEGISLATIVE POWER OF INQUIRY

After Justice Teresita de Castro’s decision, it is now time to summarize Chief Justice Reynato Puno’s whopping 100+ page dissenting opinion on Neri v. Ermita.

Justice Puno first discussed the doctrine of executive privilege as “tension between disclosure and secrecy in a democracy.” He quoted several provisions in the 1987 Philippine Constitution regarding disclosure.

On Secrecy and Disclosure

* Article III, Section 7: 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.

* Article II, Section 24: The State recognizes the vital role of communication and information in nation-building.

* Article II, Section 28: 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.

* Article XI, 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, loyalty and efficiency, act with patriotism and justice, and lead modest lives.

* Article XII, Section 21: Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign laws obtained or guaranteed by the Government shall be made available to the public.

(In his dissenting opinion on the Web, there was a typo, as National Economy and Patrimony is Article XII, not Article XI as stated in the opinion:

A more specific provision on availability of information is found in Section 21 of Article XI, National Economy and Patrimony, which states, viz:

Sec. 21. Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign laws obtained or guaranteed by the Government shall be made available to the public.

There is no Section 21 in Article XI. He must really be that disappointed with his colleagues to commit that typo.)

* Article XVI, Section 10: The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

Puno believes that disclosure and access to information allow the people to be involved in the political system, quoting Thomas Jefferson: “if a nation expects to be ignorant and free in a state of civilization, it expects what never was and will never be.”

On Separation of Powers

After that, he begins outlining the principle of the separation of powers and how the government operates. He says that the powers are separated to avert tyranny, but this separation is not absolute or else government will not function. “It enjoins upon its branches separateness but interdependence, and autonomy but reciprocity,” Puno referring to our Constitution. The delineation between the three branches is fashioned on “common sense” and “necessities of governmental coordination.” He then quoted Angara v. Electoral Commission [63 Phil. 139 (1936)]:

Each department of the government has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely restrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government.

The Power of the Legislative to Investigate

Next on his discussion is the power of the legislative branch to investigate and cite witnesses in contempt. According to Puno, the legislature has the power to look into administrative actions and decisions, the exercise of administrative actions under the acts of the Congress, and to look into compliance with the intent of the laws.

Also, this power is necessary so that the Congress can “enhance its understanding of and influence over implementation of legislation it has enacted.” It can exercise oversight through review or investigation of actions made by the executive department. One means to exercise oversight is legislation and power of investigation. Congress investigates so that it can craft new or amend laws.

Chief Justice Puno cited the applicable provisions for the legislature’s power to investigate in the 1973 and 1987 Charters (there was no explicit provision in the 1935 Constitution).

He outlined two requirements for the valid exercise of the power of investigation:

1. It must be in aid of legislation. The power to investigate covers everything that concerns the administration of existing laws, and to propose new ones. The “improper motives” of members of congressional committees does not invalidate an investigation, as long as it is in aid of legislation. The legislature can only investigate areas in which it may legislate or appropriate (ie, budget). The judiciary has no authority to intervene on the basis of motives alone, even if the exercise is purely for exposure (pa-pogi), as long as the Congress “acts in pursuance of its constitutional power of investigation.”

He cited Arnault v. Nazareno [87 Phil. 29 (1950)] to support his assertion. In that case, Jean Arnault was a witness to a Senate investigation of certain real estate deals, which was allegedly disadvantageous to the government (Php 5 million pesos, sounds familiar). Arnault refused to answer a question, so he was cited into contempt. He filed for a petition of habeas corpus, asserting that the Senate had no power to cite him in contempt, that the answer to the question was not pertinent to the investigation, that it would not serve any intended legislation, and it would be tantamount to self-incrimination.

The Supreme Court at that time upheld the Senate’s power to investigate the said deals (Buenavista and Tambobong Estates deal). The decision cited Senate Resolution 8 that created a special committee to investigate the deal: “It shall be the duty of the said Committee to determine whether the said purchase was honest, valid, and proper and whether the price involved in the deal was fair and just, the parties responsible therefor, and any other facts the Committee may deem proper in the premises…”

The Court contends that the Senate has the authority to investigate because:

a. The transaction involved public funds, and Congress is the guardian (it had the power of the purse, but not anymore under this regime-Arbet).
b. The deal involved agencies created by Congress and officers whose powers can be regulated and abolished by Congress.
c. Three bills were approved as a result of the investigation.

In conclusion, Justice Puno asserts that the power exercised by a legislative committee must be within the authority delegated to it and within the competence of Congress to bestow upon the committee.

2. The questions must be pertinent. The question itself is in the ultimate area of the investigation, “a usual and necessary stone in the arch of a bridge over which an investigation must go.” The Arnault case states the rule on pertinency.

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.”

Arnault’s petition for habeas corpus was denied on the grounds that the question asked was material to the investigation, and is not self-incriminatory.