Sounding Board
A dangerously crippling decision
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:30:00 03/31/2008
MANILA, Philippines - Without resorting to the language of Governor Salceda, indeed it can be said that the President is the luckiest woman. The Court could have decided that Romulo Neri should answer the three questions pregnant with cloudy foreboding: (a) Whether the President followed up the NBN project; (b) Whether the President directed him to prioritize the ZTE; (c) Whether the President said to go ahead and approve the project after being told about the alleged bribe.
But the Court placed all three questions under executive privilege, and nothing derogatory to the woman, if there was any, as many thought, could come out.
The interest of this piece, however, is not about derogatory imputations but about the scope of executive privilege. Executive privilege, as almost everyone knows by now, is the prerogative of the President to withhold certain types of information from Congress, from the courts and from the public. It is a constitutional right of the President which she alone can claim, but she might also direct the executive secretary to claim it.
Thus, Secretary Ermita, presumably by authority of the President, wrote to the Senate: “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 [Neri] cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.” Neri also added (also by authority of the President?) that his answers might endanger national security.
The type of executive privilege claimed here is “presidential communication privilege.” Presidential communication is presumptively privileged; but the presumption is subject to rebuttal. Thus, whoever challenges it must show good and valid reasons related to the public welfare.
What reason did the Senate have? Recall that this was in the course of a legislative investigation occasioned by, among others, pending bills about foreign loans. The topic of foreign loans is special. It is not the sole domain of the President. Under our Constitution foreign loans may be incurred by the President but only with the prior consent of the Monetary Board and in accordance with laws passed by Congress. Hence the Senate had very good reason for finding out how the ZTE-NBN loans were handled and how the very unique experience under it which had attracted national interest could contribute to legislation.
When the claim of privilege is disputed by Congress, how and by whom is the dispute to be resolved? US decisions, strewn all over Justice Leonardo-De Castro’s ponencia, say that it is the Court that decides whether the claim of privilege has foundation.
That was the reason why the Court called for the oral argument on the subject. The Court wanted to find out, without compelling Neri to reveal legitimate secrets, how Neri’s answer might affect diplomatic relations and national security. As Chief Justice Puno observed, “The Court cannot engage in guesswork in resolving this important issue.”
Neri was not at the oral argument to explain. When his lawyer was asked to explain, Neri’s lawyer was clueless. His answer, repeated like a mantra, was “I cannot fathom.”
One might also add that, if there was any possible cause for impairment of diplomatic relations with China, one such possible cause would have been the cancellation of the contract. But no diplomatic problem arose from the cancellation.
The Court could have asked for an in camera session for Neri to explain his claim within the hearing of the Court alone. Such a procedure, followed by American practice, could have enabled the Court to sift what was privileged and what was not and then to allow the revelation of what was not privileged. But the Court did not use the procedure, probably because it was already obvious from the oral argument that the claim of privilege could not be sustained. It was, to paraphrase Neri’s lawyer, unfathomable.
But, lo and behold, the ponencia ruled that the matter was covered by executive privilege. Was it fathomed by guesswork, as Puno suggested? That is the way it looks to me.
The implication of this ponencia that shows no effort to look into the underlying substance of the claimed privilege is that once the claim of “presidential communication privilege” is claimed, no evidence is needed to support it even if there are legitimate reasons calling for disclosure. This would revolutionize the doctrine on executive privilege in a manner that can affect all other investigations. This can, for instance, hamper effective use of the recently promulgated writ of amparo and writ of habeas data. It can also cripple efforts to battle official corruption, which is a world-recognized specialty of the Philippines.
But did the Neri decision establish this paralyzing and stifling doctrine? We need to count heads. Two of the nine Justices concurred merely in the result without bothering to explain their concurrence. One Justice chose not to argue from executive privilege. That leaves six of the nine. Six out of 15 do not establish a doctrine, especially since the six concurring opinions might just as well have been unwritten.
The case clearly calls for a reconsideration to give the Court a chance to clarify what doctrine of executive privilege it really wishes to establish. Does the Court want to sublimate guesswork?
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