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.

Janette Toral posted a call for a discussion of issues relevant to the 2010 Philippine presidential elections, tagging a lot of bloggers in the process.

Instead of one post, I will make a series of post about this topic, and it will be an issue or two per post, hopefully. For every post, I will state an issue, explain why it should be an issue, and share my thoughts on the issue.

In this post, let me tackle something that is close to every Filipino’s heart (or stomach): rice.

In a previous post, I noted the Agriculture Secretary’s call to restaurants and fast food chain stores to reduce their serving of rice, yet the official stance of this regime is that there is no rice crisis nor shortage. However, Arthur Yap’s call, and the fact that Gloria Arroyo had to begask Vietnam for a guaranteed supply of rice speak otherwise.

Your grandparents (or maybe your parents) might have told you once or twice that the Philippines used to be a net exporter of rice. You might have heard an old citizen lament about the current situation. Now that we have become a net importer of rice, we are now dependent on the vagaries of the world rice market, and a contraction in rice supply worldwide affects this country greatly.

The Philippines remains an agricultural country. The fact that we are facing a shortage in the supply of rice is ironic. How have we come to this state?

The agrarian reform situation is a failure. The Sumilao case is a good example (though it seems a compromise has been reached). Also, some beneficiaries had sold their land due to debts incurred in tilling the land – of course, farmers had to buy seeds and fertilizers. The unabated land conversion is another problem – for local governments, conversion means more income via taxes.

Then we have the related infrastructure problems. For farming to be productive, good irrigation is a must. The same can be said for post-harvest facilities – including grain warehouses, modern farming equipment, and farm-to-market roads. It is said that our level of farming is stuck to the 1940s.

For our farmers to be self-sufficient, we must make farming productive. Without the right infrastructure, and pricing their produce very low, farming will remain a losing enterprise.

Why is this an issue? Food sufficiency is important for the country. It means we will no longer be dependent on imports. It means our food supply is not dependent on world price fluctuations. Food sufficiency should be addressed immediately. All sectors involved should have a master plan, preferably legislated so that it could withstand changes in leaders.

What do you think should be done to insure food sufficiency?

—

Previously:

* 2010 Philippine Elections: Important issues, 1
* 2010 Philippine Elections: Important issues, 2
* Eleksyon sa 2010: Mga mahalagang isyu, 3

The weekends saw me hearing the news on TV and radio (err.. Teleradyo) of the Secretary of Agriculture Arthur Yap calling on restaurants to serve half-rice instead of the usual fare. Heck, he even said that the State can use its police powers to enforce the half-rice directive, in case restaurants are recalcitrant.

For the first time, I am in support of a government initiative.

Yap’s idea is good. It is about time, actually. I am troubled by the increasing number of obese people nowadays, and I think serving half-rice will help in reducing obesity. We keep on hearing diatribes from dietricians and nutritionists calling on people to watch their diet, but only to see more obese people nowadays. So a government intervention might be part of the solution to the obesity problem. To be effective, not only should the serving of rice be halved, the price should be increased, too. Make it prohibitive, so that only those who can afford it can get it. This minimized the number of people who can get obese.

Second, it is about time to wean the Filipino people away from dependency on rice. We are a fast-industrializing country on the verge of attaining a first world status in 2010, and a dependency on rice is incoherent with that vision. It is about time we learn to eat Western-style. Let an overflow of imported food stuff flood the country. Seeing Toblerone, Taster’s Choice, and Frito Lays on sari-sari stores is a sign of a booming economy, a symbol of an industrializing country. Let us forget being an agricultural country; it is time to move on.

Besides, we are a net importer of rice, and it is not a good thing. That means we are dependent on rice imports to satisfy demand. It is a waste of foreign currencies, which can be invested into more important things, like a broadband project lead by a politician, or dole outs to rabid government supporters. Also, being a net importer means we are at the mercy of rice exporters, which is not good. Our mother state up north will not take such very lightly.

And so, I suggest that we establish a Half-Rice Club. The purpose of the club is two-fold: the short term goal is to reduce obesity to 10% of total population, to the upper A of the society. The medium term goal is to push forward to first world status by 2020 through veering away from being agricultural-based economy to a highly-industrialized one.

Anyone who wants to be a member, just raise their left foot. Naysayers shall be labeled as destabilizers.