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Executive Privilege
1. 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)

2. What are the two kinds of Executive Privilege?

ANSWER: 1. Presidential Communications Privilege

2. Deliberative Process Privilege

3. 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.

4. 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)
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5. 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.

6. 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?

SUGGESTED ANSWER:

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
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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 fellester.blogspot.com)

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?

SUGGESTED ANSWER:

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
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power of impeachment. (Senate vs. Ermita, GR No. 169777, April 20,

2006)

7. 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?

SUGGESTED ANSWER:

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
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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?

SUGGESTED ANSWER:

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
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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)