Friday, December 12, 2008

Executive Privilege

Explain the principle of Executive Privilege?

ANSWER: Executive Privilege is power of the government to withhold information from the public, the courts and congress. This privilege, based on the doctrine of separation of powers, exempts the executive from disclosure requirements 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 the appropriate exercise of domestic decisional and policy making functions. (Senate vs. Ermita, GR No. 169777, April 20, 2006)

What are the two kinds of Executive Privilege?

ANSWER: 1. Presidential Communications Privilege
2. Deliberative Process Privilege

What is Presidential Communications Privilege?

ANSWER: Presidential Communications Privilege pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” It is rooted in the constitutional principle of separation of power and the President’s unique constitutional role. Further, it applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones. It is always subject to greater scrutiny than denial of the deliberative process privilege. The following are its elements:
1) it 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.

When is the President’s claim of Executive Privilege (over documents) proper?

ANSWER: A proper claim of exectuive privilege requires a specific description of the documents within its scope as well as the precise reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim. (Senate vs. Ermita, GR No. 169777, April 20, 2006)

What is Deliberative Process Privilege?

ANSWER: Deliberative Process Privilege advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. It applies to decision-making of executive officials and is rooted on common law privilege.

Diplomatic Negotiations are Privileged in Character

Petitioners filed a petition before the SC to obtain from the government the full text of the Japan-Philippines Economic Partnership Agreement or JPEPA “prior to its finalization between the two States parties” as well as the Philippine and Japanese offers submitted during the negotiation process. JPEPA, the first bilateral free trade agreement between the Philippines and another country, has yet to take effect since it still has to obtain Senate concurrence as required under the Constitution. Petitioners invoked their right to information on matters of public concern and the constitutional provisions on transparency. From the nature of the JPEPA as an international trade agreement, the government did not dispute that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. However, they claim that the diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Are the diplomatic negotiations covered under the doctrine of executive privilege?


Yes. The diplomatic negotiations are covered by the doctrine of executive privilege. It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature. As for the Philippine and Japanese offers during JPEPA’s negotiations, the Court ruled that the offers are privileged communications that are confidential in character. “It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that ‘historic confidentiality’ would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations.” The Court also held that to overcome executive privilege, the party demanding the information must show that the information sought is vital not just for satisfaction of curiosity but for effective and reasonable participation in social, political, and economic decision-making. The SC concluded that Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners – both private citizens and members of the House of Representatives – have failed to present a “sufficient showing of need” to overcome the claim of privilege in this case. (GR No. 170516, Akbayan Citizen’s Action Party v. Aquino, July 16, 2008)

Note: The Court noted that the petition “has been largely rendered moot and academic” by the public disclosure of JPEPA’s text after its signing by President Arroyo during the pendency of the petition. The court also explained that the said Decision shall not be interpreted as departing from the ruling in Senate v. Ermita that executive privilege should be invoked by the President or through the Executive Secretary “by order of the President.” (visit

Senate vs. Ermita
GR No. 169777, April 20, 2006

The Senate sent invitations to various officials of the Executive Department to be resource speakers in the investigations regarding the North Rail Project and the alleged wire-tapping incident involving the President in the May 2004 elections. The invitations were reiterated to the same officials, but this time Executive Secretary Ermita sent a reply letter informing the Senate President of the issuance of EO 464, mandating that certain senior officials should first secure the consent of the President before they are allowed to attend Congressional hearings, and that such consent was not yet secured. Can the officials invited refuse to attend the Inquiries conducted by the Senate by Invoking E.O. 464?


No. In resolving the issue, the Court delineated between Section 21 (inquiry in aid of legislation) and Section 22 (question hour) of Article VI of the 1987 Constitution. It stated that sections 21 and 22. Article VI, while closely related and complementary to each other," should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued its right to such Information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22 in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which' Congress requires their appearance is "in aid of legislation' under Section 11, the appearance is mandatory. And the only way for department heads to exempt themselves from it is by a valid claim of pr1vllege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power – the President on whom executive power is vested, hence beyond the reach of congress except through the power of impeachment. (Senate vs. Ermita, GR No. 169777, April 20, 2006)

President has absolute authority over the armed forces

The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of massive cheating in the 2004 elections and the surfacing of the “Hello Garci” controversy. President Arroyo issued E.O 164 enjoining officials of the executive department including the military establishment from appearing in any legislative inquiry without her approval. However, the two concluded their testimonies before the Senate in spite the fact that a directive has been given to them. As a result, both of them were relieved of their assignments for allegedly violating the Articles of War and the time honored principle of the “Chain of Command.” May the President prevent a member of the armed forces from testifying before a legislative inquiry?


Yes. Soldiers are constitutionally obliged to obey the President they may dislike or distrust. The ability of the President to prevent military officials from testifying before Congress DOES NOT TURN ON EXECUTIVE PRIVILEGE BUT ON THE CHIEF EXECUTIVE’S POWER AS COMMANDER IN CHIEF to control the actions and speech of the armed forces. Under the Commander in Chief Clause (Art. XVl, section 5), the President has absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law. (Gudani vs. Senga, GR No. 170165, August 15, 2006)

The President can prevent a member of the armed forces from testifying before a legislative inquiry. Is this rule absolute?

ANSWER: No. The rule is not absolute. In as much as it is ill advised for Congress to interfere with the President’s power as Commander-in-Chief, it is similarly detrimental for the President to unduly interfere with Congress right to conduct legislative inquiries. xxx Courts are empowered, under the principle of JUDICIAL REVIEW, to arbitrate disputes between the executive and legislative branches of the government on the proper parameters of power. By this, if the court so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the President has earlier disregarded with notion of officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the court. (Gudani vs. Senga, GR No. 170165, August 15, 2006)

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

Former NEDA Director General Romulo Neri testified before the Senate for 11 hours relating to the ZTE-NBN mess. However, when probed further on what he and the President discussed about the NBN Project, he refused to answer, invoking “executive privilege”. In particular, he refused to answer 3 questions:

(a) whether or not President Arroyo followed up the NBN Project
(b) whether or not she directed him to prioritize it
(c) whether or not she directed him to approve it

Unrelenting, the Senate Committees issued a Subpoena Ad Testificandum to Neri, requiring him to appear and testify on November 20, 2007. However, Executive Secretary Eduardo R. Ermita requested the Senate Committees to dispense with Neri’s testimony on the ground of executive privilege. In his letter, Ermita said “that the information sought to be disclosed might impair our diplomatic as well as economic relations with China.” Neri did not appear before the Committees. As a result, the Senate issued an Order citing him in contempt and ordered his arrest and detention until such time that he would appear and give his testimony.

Are the communications elicited by the subject three (3) questions covered by executive privilege?


Yes. The Communications elicited by the 3 Questions are covered by Executive Privilege. xxx “we are convinced that the communications elicited by the 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. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. 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.

The Senate contends that the grant of the executive privilege violates the “Right of the people to information on matters of public concern”. Is the senate correct?

ANSWER: No. 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. The right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people’s right to public information. The distinction between such rights is laid down in Senate v. Ermita: There are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen.

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking E.O. 464. Is there a recognized claim of executive privilege despite the revocation of E.O. 464?

ANSWER: Yes. 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.

In Senate v. Ermita, the executive privilege should be invoked by the President or through the Executive Secretary “by order of the President.” Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President?

ANSWER: Yes. The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. 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.

May the Congress require the executive to state the reasons for the claim with particularity?

ANSWER: No. 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. (Senate v. Ermita)

Is the contempt and arrest Order of Neri valid?

ANSWER: No. There being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. The respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the “possible needed statute which prompted the need for the inquiry,” along with “the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof.” The SC also find merit in the argument of the OSG that respondent Committees violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the “duly published rules of procedure.” The respondent Committees’ issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as “unsatisfactory” and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. (Neri vs. Senate, G.R. No. 180643, March 25, 2008)

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