Saturday, August 2, 2008

Executive Privilege in the Philippines

Executive Privilege

The power of the Government to withhold information from the public, the courts, and the Congress.”

The right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.”

It has encompassed claims of varying kinds. One variety of the privilege, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer’s privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive’ domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege:

“The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh 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. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x ” (Emphasis and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information. Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG, the Court held that this jurisdiction recognizes the common law holding that there is a “governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters.” The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information.

In In Re: Sealed Case, the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” The latter includes ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit:

1) The protected communication must relate to a “quintessential and non-delegable presidential power.”
2) 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.
3) 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.

Senate vs. Ermita, G.R. No. 169777. April 20, 2006
What remains to be valid provision of E.O 464?

In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress (Section 1).

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including (Section 2(a)):

Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995;

Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).


1. For purposes of appearing before the Congress, when is consent of the President necessary? Only when the Congress exercises oversight functions.
2. May oversight functions be facilitated by compulsory process? Yes, if it is made in aid of legislation. In which case, Department heads may be compelled to appear.
3. Is there an instance when a Department Head may refuse to appear in inquiries in aid of legislation? Yes, if he informs the President that the information might be covered by executive privilege and the President invokes the same, he cannot be compelled to appear.
4. Who can invoke executive privilege? Only the President and its Executive Secretary

Neri vs. Senate, G.R. No. 180643, March 25, 2008

The revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings occasionally interpreted only by this Court in various cases.

The Court is convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

Presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article.

AKBAYAN vs. Aquino, G.R. No. 170516, July 16, 2008
Are trade offers and notes during negotiations privileged?

The privilege character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez vs. PCGG held that “information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interests. In PMFF v. Manglapus, the Court stressed that secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom to access to information. An essential characteristic of diplomacy is its confidential nature. Further, the President is the sole organ of the nation in its negotiations with foreign countries. Into the field of negotiations the Senate cannot intrude; and Congress is in itself powerless to invade it.

Applying the principles in PMFF v. Manglapus, while the final text of JPEPA may not be kept perpetually confidential, the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published for historic confidentiality would govern the same.

The Court sees no reason in abandoning the doctrine in PMFF v. Manglapus there being a public policy supporting a privilege for diplomatic negotiations. In our jurisdiction, there is no counterpart of the Freedom to Information Act nor is there any statutory requirement for withholding information. Hence, Philippine Courts when assessing a claim for privilege for diplomatic negotiations are more free to focus directly on the issue of whether the privilege being claimed is indeed supported by public policy.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exceptions. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privilege does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.

There are at least two kinds of public interests that must be taken into account. One is the presumed public interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is public interest in favor of disclosure, the existence of which must be shown by the party seeking the information.

Petitioners failed to present the strong and sufficient showing of need to overcome executive privilege. They failed to show that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation

No comments: