The circle is complete: on presidential communications 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.


The circle is complete: historical overview of 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.


The circle is complete: on legislative power of investigation


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.


The circle is complete: on executive privilege


The decision and the dissenting opinions made an exposition on executive privilege, which sounds like a lecture on the topic.

US v. Nixon is the most celebrated case regarding executive privilege. Justice de Castro outlined what she called as presidential communications privilege. In US v. Nixon, it serves public interest if “the confidentiality of conversations that take place in the President’s performance of his official duties.” is maintained. The US Court deemed this privilege necessary as to provide “the President and those who assist him… with freedom 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.”

In another case, In re: Sealed Case, executive privilege is further refined. According to the US Court of Appeals, there are two kinds:

(1) The presidential communications privilege, which pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” This privilege, says de Castro, applies to the President’s decision making, rooted in the principle of separation of powers. It covers “documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.” Justice de Castro asserts that “congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege.”

There are three elements that apply:

a. The protected communication must relate to a “quintessential and non-delegable presidential power.”

b. The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

c. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.

(2) Deliberative process privilege, which encompasses “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” This applies to deliberations and decisions made by executive officials, based on common law privilege.

Also, in the same case (In Re Sealed Case), the decision defines who are covered by this privilege:

In Re Sealed Case confines the privilege only to White House Staff that has “operational proximity” to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as “quintessential and non-delegable Presidential power,” such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties etc.

To be specific, executive privilege applies to documents and/or communications that might reveal military or state secrets, identity of government informers, and information relating to pending investigations; it is also applied in the field of foreign relations. The applicable Philippine judicial decisions are Chavez v. PCGG [360 Phil. 133 (1998)], Chavez v. PEA [ 314 Phil. 150 (1995)], and Senate v. Ermita.

In the case at hand, Ermita claims executive privilege on the grounds of presidential communications privilege and foreign relations. Justice de Castro is convinced that the three questions are covered by executive privilege. She based her conclusion on the following:

* The communication refers to the President’s power to enter into an executive country with other states, which is a “quintessential and non-delegable” power of the President. This power does not require concurrence of the Congress.
* The communications are directed to a close advisor of the President, which is within the operational proximity of the President.
* There is no compelling need to limit the privilege, and that information is available elsewhere.

Justice de Castro expounded on her third assertion. In US v. Nixon, the Court said that a claim of executive privilege must be balanced against other interests; it is not absolute. It can only be overcome “by mere showing of public need by the branch seeking access to conversations.” She claims that the Senate committees have not categorically shown “a compelling or citical need for the answers to the three (3) questions in the enactment of a law.”

On the argument that executive privilege does not apply on cases where a possible crime or wrongdoing can be disclosed, she agrees and does not dispute the fact. However, she says that in US v. Nixon, the information was requested for a pending criminal investigation and not for a legislative inquiry. Here, her reasons get a bit iffy:

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.

On the argument that the right of the people to information on matters of public concern outweighing executive privilege, she disagrees because Neri did appear, and that he expressed his willingness to answer more questions other than the three. Besides, she says, the right to information is subject to limitation, as stated in Article III, Section 7 of the Constitution. She then stated these limitations as stated in several laws. She also said:

These are in addition to what our body of jurisprudence classifies as confidential and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind.

She also contends that the right of Congress to information in aid of legislation cannot be equated with the people’s right to know. She quotes Senate v. Ermita:

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.

On whether the claim of executive privilege was properly invoked, de Castro says Ermita’s letter satisfies the requirements:

a.) There must be a formal claim of privilege, lodged by the head of the department which has control over the matter. Justice de Castro says the letter by Ermita is enough: “There he expressly states that ‘this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.’ Obviously, he is referring to the Office of the President. That is more than enough compliance.”

b.) A formal and proper claim of executive privilege requires a “precise and certain reason” for preserving their confidentiality. She finds the grounds given by Ermita enough for the Senate to understand why the information is privileged. This requirement is specified in Senate v. Ermita: an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” She quoted Ermita’s letter, which she asserts satisfies the requirement:

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 cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

She then concluded:

At any rate, as held further in Senate v. Ermita, the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department.

That ends the discussion on executive privilege as elucidated by the majority of the justices through Justice de Castro’s decision. To sum up:

The answer to the three questions are covered by executive privilege on the following grounds:

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.


The circle is complete: background

I believe that it is best that lawyers explain to us what Neri v. Ermita means. However, that doesn’t – and shouldn’t – deter us mere laymen from perusing the said decision, comprehending what the justices wanted to say (and hide, obfuscate, or justify), understanding what the decision meant, and analyzing its impact on our daily lives and on our country.

I will try to summarize the decision in several posts.


Romulo Neri testified before the Senate Blue Ribbon, Trade, and Defense Committees about the aborted National Broadband Network. He was asked several questions, but refused to answer three questions:

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?

He refused to answer these questions, citing executive privilege. He then refused to attend subsequent hearings. Executive Secretary Eduardo Ermita instead sent a letter stating the claim of executive privilege:

Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations.

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 cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

Because of his refusal to attend the committee hearings, an arrest order was issued against Neri. He then filed a petition to the Supreme Court to stop the Senate from compelling him to answer the three questions, and to revoke the arrest order.

I have converted the decision by Justice de Castro and the dissent by Chief Justice Puno into PDF. You can get them here:

* The decision by Justice Teresita de Castro on GR No, 180643, Neri v. Ermita
* Dissenting opinion by Chief Justice Reynato Puno on GR No. 180643, Neri v. Ermita


2010 Philippine Elections: Important issues, 4

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?


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


The Half-Rice Club: Care to join?

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.


Action speaks louder than words

The latest on Cris Mendez’s case.

Ariel Paolo Ante, said to be the one who recruited CA to Sigma Rho, files for certiorari and prohibition with urgent application for injunctive relief against the University of the Philippines’ Student Disciplinary Tribunal. He claims that the SDT is biased against him and has already prejudged the case.

Note that another student involved in CA’s case had filed for a TRO, but was turned down by the court. I hope that Ante suffers the same fate.

The problem with Ante is that he only has himself to blame if people has prejudged him. After all, immediately after CA’s death, he’s been goners. He’s been hiding from the SDT, from the NBI, from the PNP.

Speaking of Palpak na Police, how good are our policemen nowadays? (In the following sentences, I will be talking about the portion of the police force, not all of them.) Well, look at the story above. Ante’s lawyer can contact him, but the police cannot find him.

Another: Student falls prey to drive-by snatching modus. It was the second incident WITHIN A WEEK within Quezon City. With so many high profile crimes at QC (remember the bank robberies that happened within a week also?) you wonder what the PNP is doing.

Simple: it is busy manning checkpoints whenever a rally is scheduled to happen within Metro Manila. Remember the experience of Jhay Rocas last February 29? Well, Coy Caballes reported via Twitter of another PNP checkpoint at Molino in Bacoor, Cavite yesterday. There was a scheduled anti-Gloria Arroyo rally yesterday at Liwasang Bonifacio in Manila.

And speaking of which, Arroyo’s old men believe the worst is over. Yet when there is a rally, they activate Manila Shield. Action speaks louder than words.


Pitiful, 2 (or Malu Fernandez, again)

The subject of a blog post here is at it again. Let me reiterate what I had said then:

As much as I want to react to her ramblings, I cannot. I should say, I will not. Because if I do, this post will turn into the most virulent, and trash-talk filled post ever.

Right now, I pity two people, both of them society columnists who wrote only about who’s rich and who went to what party. They treat those who they feel are inferior to them with disdain and contempt. I pity them because what they write reflects on the shallowness of their minds, the corruptness of their souls, the emptiness of their hearts. I pity them because the more they speak up against their fellow men, the more they lose their humanity.

Just an additional thought: she said this “I’m always a glass half full kinda girl anyway…” My question, madam, is simple: If you are a glass-half-full girl, how come you ranted against your own in that plane on that fateful day? I rest my case, your honor.

No, I will not react to it anymore. Let others do so, and the following did more eloquently that I can ever do:

* Malu Fernandez thinks blogging is a slacker job.
* Acerbic Wits Extraordinaire, At It Again!
* Malu Fernandez gunning for Master Link Baiter of the Year
* Malu Fernandez, again
* Looking for Trouble (updated)
* If she was a lolcat
* Jayvee Fernandez on Malu Fernandez’s latest on blogging
* Malu Fernandez and Blogging As A Slacker Job
* Let us eat dinner
* The Problem With Journalists…
* “Thar she blows again!”
* Malu Fernandez, You Attention Whore You
* Ms. Fernandez on blogging
* Malu Fernandez is Back!
* The Problem With The Problem With Blogging…
* Malu Fernandez: I’m Back Y’all!
* Malu Fernandez is at it again
* Malu Fernandez and the problem with blogging
* Malu Fernandez Share’s Her Observations on What’s Wrong With Blogging (sic)
* Journalist Malu Fernandez vs Pinoy Blogger
* Malu Fernandez Strikes Again: “Blogging is a Slacker Job”
* Blogging: A SLACKER JOB according to Malu Fernandez
* Slacker Job?
* ooops! she did it again! malu fernandez redux
* Malu Fernandez on Blogging
* Blogging is a Slacker Job – Malu Fernandez
* Malu Fernandez a “Victim of Vicious Blogging”
* Shame on YOU MALU!
* Malu Fernandez on blogging
* I Tried to Stay Away But I Can’t
* And So She Does It Again
* Open Letter to Malu Fernandez
* Si Malu Fernandez at ang mga napakong pangako ni Gloria Macapagal-Arroyo
* the malu-gma connect
* Malu Fernandez Hits Bloggers
* Joining the Malu Fernandez bandwagon…bakit ba? hehehe


Justice eludes Cris Mendez

Today would have been Cris Anthony Mendez’s 21st birthday. It should have been a happy family occasion, but it was not meant to be. Instead we have a mother and a brother who is still grieving his death, wondering if justice will be served for CA. Instead we have his friends who are still sorry about such a loss.

While his family and friends are thinking of what-ifs, his killers are on the loose, defiantly taunting the law, wickedly evading justice.

He would have taken the UP Law Aptitude Exam. Knowing that life at law school would be tough, he thought that joining a fraternity would help him. Paolo Ante recruited him. He knew that joining has its perils, but he took a risk, assuming that his future brods would be gentle (since there is a law, but criminals regularly disdains the law).

Yet he died. And still, the criminals are free, living a life of a fugitive, perhaps, but still free. And alive.

And while his family and friends are grieving, Sigma Rhoans are acting as if nothing happened. As if taking a life is as easy as snuffing out a lighted cigarette. I wonder what these Rosigs are doing. Probably thinking of recruitment plans.

The Sigma Rho alumni are no different. While some notable alumni had spoken out (and one of them resigned), most stuck it out, reminiscing the good old days in a round of beer or two, reliving the gauntlet and the rumbles.

“To stand by the side of any brother Sigma Rhoan right or wrong,” so states their basic tenet. Too bad for Mendez, he died soon enough, so the cowards of Sigma Rho abandoned him – besides, he is no brother, technically speaking. Anyway, the facts speak for themselves – the killers are on the run, and Rosigs stand by their brothers. That makes them virtual accomplices to the crime. They’d side with the criminals, and not with justice.

Requiescat in pacem, CA.