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Sounding Board
The limits of ‘executive privilege’

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 23:52:00 02/17/2008

Filed Under: Politics

MANILA, Philippines - In the flurry of current investigations, every time an executive officer is summoned by an investigating body the knee jerk reaction of the executive arm is to refuse to appear on the ground of executive privilege. Is executive privilege really such a powerful tool and an all-enveloping mantle that it can thwart attempts to uncover unsavory or even incriminating truth kept within the secret bosom of the powerful?

Easy appeal to executive privilege emanates from EO 464, the ?gag rule? imposed on executive officials. National tension can subside if this EO is withdrawn even if its withdrawal should aggravate the tension of some executive officials.

Executive privilege is a subject which was extensively discussed by the Supreme Court in Senate v. Ermita. Secretary Ermita himself has distinguished himself as the trigger man of executive privilege. Significantly, however, the very first sentence of that decision says, ?A transparent government is one of the hallmarks of a truly republican state.? But the hallmark of our state now, thanks to EO 464, is obfuscation and prevarication.

But what is executive privilege? In simplest terms, it is the power of the President to withhold certain types of information from the courts, the Congress and ultimately the public. The types of information include those which are of a nature that disclosure would subvert military or diplomatic objectives, or information about the identity of persons who furnish information of violations of law, or information about internal deliberations comprising the process by which government decisions are reached.

Of these types of information perhaps the trickiest ones are those about internal deliberations leading to a government decision. But the decision itself, once reached, unless it is about confidential military or diplomatic matters, can become a matter of public concern. Certainly, for instance, if a decision reached is criminal, it cannot be privileged.

On this subject of internal deliberations the Court in an earlier decision had occasion to say this: ?On the other hand, when the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security secrets but on a general public interest in the confidentiality of his conversations, courts have declined to find in the Constitution an absolute privilege of the President against a subpoena considered essential to the enforcement of criminal laws.? For this reason, the silence of Secretary Romulo Neri is very disturbing.

More to the point, Ermita said, ?Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.?

Put differently, our Court has said that a claim of privilege may be valid or not ?depending on the ground invoked to justify it and the context in which it is claimed. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.? From this the Court has concluded that it is not for one claiming executive privilege ?to unilaterally determine that respondents? duly-issued subpoena should be totally disregarded.?

One must also see executive privilege vis-à-vis the power of Congress to use compulsory process. ?While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. . . . Only one executive official may be exempted from this power?the President.?

Another point which the Court has emphasized in Ermita is that a claim of privilege must be stated with sufficient particularity to enable Congress or the court to determine its legitimacy. ?Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected.? The lack of specificity renders an assessment of the potential harm resulting from disclosure impossible. However, 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.

In conclusion, the President would do the nation a great favor if she were to withdraw Executive Order 464. Because it is justifiably seen as a serious obstacle to the discovery of truth, it is a major cause of the growing outcry of the public against the current administration.

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