|
(Second
Installment of the Dissenting Opinion of Chief Justice
Reynato Puno on the question of Executive Privilege raised
by former Neda chief Romulo Neri against three Senate
committees hearing the NBN-ZTE deal. The Senate is to
submit on April 8 its motion for reconsideration of the
9-6 vote in Neri’s favor).
IV. Test
and Procedure to Determine the Validity of the Invocation
of Executive Privilege Covering Presidential
Communications in a Legislative Inquiry
In US v.
Nixon, the leading US case on executive privilege, the US
Supreme Court emphasized that its ruling addressed “only
the conflict between the President’s assertion of a
generalized privilege of confidentiality and the
constitutional need for relevant evidence in criminal
trials”[111]
and that the case was not concerned with the balance
“between the President’s generalized interest in
confidentiality…and congressional demands for
information.”[112]
Nonetheless, the Court laid down principles and
procedures that can serve as torch lights to illumine us
on the scope and use of Presidential communication
privilege in the case at bar. Hence, it is appropriate to
examine at length US v. Nixon.
A. US v.
Nixon
1.
Background Proceedings
US v.
Nixon[113]
came about because of a break-in at the Democratic
National Committee (DNC) headquarters in the Watergate
Hotel. In the early morning of June 17, 1972, about
four-and-a-half months before the US Presidential
election, police discovered five men inside the DNC
offices carrying electronic equipment, cameras and large
sums of cash. These men were operating as part of a larger
intelligence-gathering plan of the Committee to Re-elect
the President, President Richard Nixon’s campaign
organization for the 1972 election. Their mission was to
fix a defective bugging device which had been placed a
month before on the telephone of the DNC chairperson.
Their orders came from the higher officials of the CRP.[114]
A grand
jury[115]
was empanelled to investigate the incident. On July
23, 1973, Watergate Special Prosecutor Archibald Cox,[116]
acting on behalf of the June 1972 grand jury, caused
to be issued a subpoena duces tecum to President Nixon in
the case In re Grand Jury Subpoena Duces Tecum Issued to
Richard M. Nixon, or any Subordinate Officer, Official, or
Employee with Custody or Control of Certain Documents or
Objects[117]
in the District Court of the District of Columbia with
Honorable John J. Sirica as District Judge. The subpoena
required President Nixon to produce for the grand jury
certain tape recordings and documents enumerated in an
attached schedule.
President
Nixon partially complied with the subpoena, but otherwise
declined to follow its directives. In a letter to the
Court that issued the subpoena, the President advised that
the tape recordings sought would not be provided, as he
asserted that the President is not subject to the
compulsory process of the courts.[118]
The Court ordered the President or any appropriate
subordinate official to show cause “why the documents and
objects described in [the subpoena] should not be produced
as evidence before the grand jury.”
After the
filing of briefs and arguments, the Court resolved two
questions: (1) whether it had jurisdiction to decide the
issue of privilege, and (2) whether it had authority to
enforce the subpoena duces tecum by way of an order
requiring production for inspection in camera. The Court
answered both questions in the affirmative.[119]
President
Nixon appealed the order commanding him to produce
documents or objects identified in the subpoena for the
court’s in camera inspection. This appeal in the Court of
Appeals of the District of Columbia Circuit was the
subject of Nixon v. Sirica.[120]
The central issue addressed by the D.C. Court of
Appeals was whether the President may, in his sole
discretion, withhold from a grand jury evidence in his
possession that is relevant to the grand jury’s
investigations.[121]
It overruled the President’s invocation of executive
privilege covering Presidential communications and upheld
the order of the District Court ordering President Nixon
to produce the materials for in camera inspection subject
to the procedure it outlined in the case. President Nixon
did not appeal the Court’s ruling.
As a
result of the investigation of the grand jury, a criminal
case was filed against John N. Mitchell, former Attorney
General of the US and later head of the Committee to
Re-elect the President, and other former government
officials and presidential campaign officials in US v.
Mitchell[122]
in the District Court of the District of Columbia. In
that case, the Special Prosecutor filed a motion for a
subpoena duces tecum for the production before trial of
certain tapes and documents relating to precisely
identified conversations and meetings of President Nixon.
The President, claiming executive privilege, moved to
quash the subpoena. The District Court, after treating the
subpoenaed material as presumptively privileged, concluded
that the Special Prosecutor had made a sufficient showing
to rebut the presumption and that the requirements for a
subpoena had been satisfied. The Court then issued an
order for an in camera examination of the subpoenaed
material. The Special Prosecutor filed in the US Supreme
Court a petition for a writ of certiorari which upheld the
order of the District Court in the well-known case US v.
Nixon.[123]
2.
Rationale of Presidential Communications Privilege
For the
first time in 1974, the US Supreme Court recognized the
Presidential communications privilege and the qualified
presumption in its favor in US v. Nixon. The decision
cited two reasons for the privilege and the qualified
presumption: (1) the “necessity for protection of the
public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making”[124]
and (2) it “… is fundamental to the operation of
Government and inextricably rooted in the separation of
powers under the Constitution.”[125]
a. Public
Interest in Candor or Candid Opinions in Presidential
Decision-making
In support
of the first reason, the Nixon Court held that “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.[126]
The Nixon
Court pointed to two bases of this need for
confidentiality. The first is common sense and experience.
In the words of the Court, “the importance of this
confidentiality is too plain to require further
discussion. Human experience teaches that those who expect
public dissemination of their remarks may well temper
candor with a concern for appearances and for their own
interests to the detriment of the decision-making
process.”[127]
The second
is the supremacy of each branch in its own sphere of
duties under the Constitution and the privileges flowing
from these duties. Explained the Court, viz: “Whatever the
nature of the privilege of confidentiality of Presidential
communications in the exercise of Art. II [presidential]
powers, the privilege can be said to derive from the
supremacy of each branch within its own assigned area of
constitutional duties. Certain powers and privileges flow
from the nature of enumerated powers; the protection of
the confidentiality of Presidential communications has
similar constitutional underpinnings.”[128]
In this case, the Special Prosecutor seeking access to
the tape recordings of conversations of the President
argued that the US Constitution does not provide for
privilege as to the President’s communications
corresponding to the privilege of Members of Congress
under the Speech and Debate Clause. But the Nixon Court
disposed of the argument, viz: “[T]he silence of the
Constitution on this score is not dispositive. ‘The rule
of constitutional interpretation announced in
McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, that
that which was reasonably appropriate and relevant to the
exercise of a granted power was to be considered as
accompanying the grant, has been so universally applied
that it suffices merely to state it.’”[129]
b.
Separation of Powers
The Nixon
Court used separation of powers as the second ground why
presidential communications enjoy a privilege and
qualified presumption. It explained that while the
Constitution divides power among the three coequal
branches of government and affords independence to each
branch in its own sphere, it does not intend these powers
to be exercised with absolute independence. It held, viz:
“In designing the structure of our Government and dividing
and allocating the sovereign power among three coequal
branches, the Framers of the Constitution sought to
provide a comprehensive system, but the separate powers
were not intended to operate with absolute independence.
‘While the Constitution diffuses power the better to
secure liberty, it also contemplates that practice will
integrate the dispersed powers into a workable government.
It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.’” (emphasis
supplied)[130]
Thus,
while the
Nixon Court recognized the Presidential communications privilege
based on the independence of the executive branch, it also
considered the effect of the privilege on the effective
discharge of the functions of the judiciary.
3. Scope
of the Presidential Communications Privilege
The scope
of Presidential communications privilege is clear in US v.
Nixon. It covers communications in the “performance of the
President’s responsibilities”[131]
“of his office”[132]
and made “in the process of shaping policies and
making decisions.”[133]
This scope was affirmed three years later in Nixon v.
Administrator of General Services.[134]
4.
Qualified Presumption in Favor of the Presidential
Communications Privilege
In US v.
Nixon, the High Court alluded to Nixon v. Sirica which
held that Presidential communications are “presumptively
privileged” and noted that this ruling was accepted by
both parties in the case before it.[135]
In Nixon v. Sirica, the D.C. Court of Appeals, without
expounding, agreed with the presumptive privilege status
afforded to Presidential communications by its precursor
case In re Subpoena for Nixon in the D.C. District Court.[136]
The latter case ushered the birth of the presumption
in the midst of a general disfavor of government
privileges. In In re Subpoena for Nixon, the D.C. District
Court began with the observation that “a search of the
Constitution and the history of its creation reveal a
general disfavor of government privileges…”[137]
In deciding whether the Watergate tapes should be
covered by a privilege, the Court acknowledged that it
must accommodate two competing policies: one, “the need to
disfavor privileges and narrow their application as far as
possible”; and two, “the need to favor the privacy of
Presidential deliberations” and “indulge in a presumption
in favor of the President.” The Court tilted the balance
in favor of the latter and held that “respect for the
President, the Presidency, and the duties of the office,
gives the advantage to this second policy.”[138]
The Court
explained that the need to protect Presidential privacy
and the presumption in favor of that privacy arises from
the “paramount need for frank expression and discussion
among the President and those consulted by him in the
making of Presidential decisions.”
[139] (emphasis supplied)
5.
Demonstrable Specific Need for Disclosure Will Overcome
the Qualified Presumption
The Nixon
Court held that to overcome the qualified presumption,
there must be “sufficient showing or demonstration of
specific need” for the withheld information on the branch
of government seeking its disclosure. Two standards must
be met to show the specific need: one is evidentiary; the
other is constitutional.
a.
Evidentiary Standard of Need
In US v.
Nixon, the High Court first determined whether the
subpoena ordering the disclosure of Presidential
communications satisfied the evidentiary requirements of
relevance, admissibility and specificity under Rule 17(c)
of the Federal Rules of Criminal Procedure. Rule 17(c)
governs all subpoenas for documents and materials made in
criminal proceedings. In the 1997 In re Sealed Case
(Espy),[140]
the D.C. Court of Appeals held that there must also be
a showing that “evidence is not available with due
diligence elsewhere” or that the evidence is particularly
and apparently useful as in that case where an immediate
White House advisor was being investigated for criminal
behavior. It explained that the information covered by
Presidential communication privilege should not be treated
as just another specie of information. Presidential
communications are treated with confidentiality to
strengthen the President in the performance of his duty.
b.
Demonstrable Specific Need for Disclosure to be Balanced
with the Claim of Privilege using the Function Impairment
Test
The claim
of executive privilege must then be balanced with the
specific need for disclosure of the communications on the
part of the other branch of government. The “function
impairment test” was utilized in making the balance albeit
it was not the term used by the Court. By this test, the
Court weighs how the disclosure of the withheld
information would impair the President’s ability to
perform his constitutional duties more than nondisclosure
would impair the other branch’s ability to perform its
constitutional functions. It proceeded as follows:
First, it
assessed how significant the adverse effect of disclosure
is on the performance of the functions of the President.
While affording great deference to the President’s need
for complete candor and objectivity from advisers, the
Nixon Court found that the interest in confidentiality of
Presidential communications is not significantly
diminished by production of the subject tape recordings
for in camera inspection, with all the protection that a
district court will be obliged to provide in infrequent
occasions of a criminal proceeding. It ruled, viz:
… The
President’s need for complete candor and objectivity from
advisers calls for great deference from the courts.
However, when the privilege depends solely on the broad,
undifferentiated claim of public interest in the
confidentiality of such conversations, a confrontation
with other values arises. Absent a claim of need to
protect military, diplomatic, or sensitive national
security secrets, we find it difficult to accept the
argument that even the very important interest in
confidentiality of Presidential communications is
significantly diminished by production of such material
for in camera inspection with all the protection that a
district court will be obliged to provide.[141]
xxx xxx
xxx
… The
interest in preserving confidentiality is weighty indeed
and entitled to great respect. However, we cannot conclude
that advisers will be moved to temper the candor of their
remarks by the infrequent occasions of disclosure because
of the possibility that such conversations will be called
for in the context of a criminal prosecution. [142]
Second, it
considered the ill effect of nondisclosure of the withheld
information on the performance of functions of the
judiciary. The Nixon Court found that an absolute,
unqualified privilege would impair the judiciary’s
performance of its constitutional duty to do justice in
criminal prosecutions. In balancing the competing
interests of the executive and the judiciary using the
function impairment test, it held:
The
impediment that an absolute, unqualified privilege would
place in the way of the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions
would plainly conflict with the function of the courts
under
Art. III.
xxx xxx
xxx
To read
the Art. II powers of the President as providing an
absolute privilege as against a subpoena essential to
enforcement of criminal statutes on no more than a
generalized claim of the public interest in
confidentiality of nonmilitary and nondiplomatic
discussions would upset the constitutional balance of ‘a
workable government’ and gravely impair the role of the
courts under
Art. III.
xxx xxx
xxx
Since we
conclude that the legitimate needs of the judicial process
may outweigh Presidential privilege, it is necessary to
resolve those competing interests in a manner that
preserves the essential functions of each branch.[143]
xxx xxx
xxx
… this
presumptive privilege must be considered in light of our
historic commitment to the rule of law. This is nowhere
more profoundly manifest than in our view that ‘the
twofold aim [of criminal justice] is that guilt shall not
escape or innocence suffer.’
Berger v. United States, 295 US, at 88, 55 S.Ct., at 633.
We have elected to employ an adversary system of
criminal justice in which the parties contest all issues
before a court of law. The need to develop all relevant
facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be
defeated if judgments were to be founded on a partial or
speculative presentation of the facts. The very integrity
of the judicial system and public confidence in the system
depend on full disclosure of all the facts, within the
framework of the rules of evidence. To ensure that justice
is done, it is imperative to the function of courts that
compulsory process be available for the production of
evidence needed either by the prosecution or by the
defense.[144]
xxx xxx
xxx
The right
to the production of all evidence at a criminal trial
similarly has constitutional dimensions. The Sixth
Amendment explicitly confers upon every defendant in a
criminal trial the right ‘to be confronted with the
witnesses against him’ and ‘to have compulsory process for
obtaining witnesses in his favor.’ Moreover, the Fifth
Amendment also guarantees that no person shall be deprived
of liberty without due process of law. It is the manifest
duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and
admissible evidence be produced.
In this
case we must weigh the importance of the general privilege
of confidentiality of Presidential communications in
performance of the President’s responsibilities against
the inroads of such a privilege on the fair administration
of criminal justice.[145]
(emphasis supplied)
xxx xxx
xxx
… the
allowance of the privilege to withhold evidence that is
demonstrably relevant in a criminal trial would cut deeply
into the guarantee of due process of law and gravely
impair the basic function of the courts. A President’s
acknowledged need for confidentiality in the
communications of his office is general in nature, whereas
the constitutional need for production of relevant
evidence in a criminal proceeding is specific and central
to the fair adjudication of a particular criminal case in
the administration of justice. Without access to specific
facts a criminal prosecution may be totally frustrated.
The President’s broad interest in confidentiality of
communications will not be vitiated by disclosure of a
limited number of conversations preliminarily shown to
have some bearing on the pending criminal cases.
We
conclude that when the ground for asserting privilege as
to subpoenaed materials sought for use in a criminal trial
is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration
of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need
for evidence in a pending criminal trial.[146]
(emphasis supplied)
Third, the
Court examined the nature or content of the communication
sought to be withheld. It found that the Presidential
communications privilege invoked by President Nixon
“depended solely on the broad, undifferentiated claim of
public interest in the confidentiality”[147]
of his conversations. He did not claim the need to
protect military, diplomatic, or sensitive national
security secrets.[148]
Held the Court, viz:
… He
(President Nixon) does not place his claim of privilege on
the ground that they are military or diplomatic secrets.
As to these areas of Art. II duties the courts have
traditionally shown the utmost deference to Presidential
responsibilities…
In
United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97
L.Ed. 727 (1953), dealing with a claimant’s demand for
evidence in a Tort Claims Act case against the Government,
the Court said: ‘It may be possible to satisfy the court,
from all the circumstances of the case, that there is a
reasonable danger that compulsion of the evidence will
expose military matters which, in the interest of national
security, should not be divulged. When this is the case,
the occasion for the privilege is appropriate, and the
court should not jeopardize the security which the
privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in
chambers.’
Id., at 10.
No case of
the Court, however, has extended this high degree of
deference to a President’s generalized interest in
confidentiality.
Nowhere in
the Constitution, as we have noted earlier, is there any
explicit reference to a privilege of confidentiality, yet
to the extent this interest relates to the effective
discharge of a President’s powers, it is constitutionally
based.[149]
(emphasis supplied)
In
balancing the competing interests of the executive and
judicial branches of government, the
Nixon Court emphasized that while government privileges are
necessary, they impede the search for truth and must not
therefore be lightly created or expansively construed. It
held, viz:
The
privileges referred to by the Court are designed to
protect weighty and legitimate competing interests. Thus,
the Fifth Amendment to the Constitution provides that no
man ‘shall be compelled in any criminal case to be a
witness against himself.’ And, generally, an attorney or a
priest may not be required to disclose what has been
revealed in professional confidence. These and other
interests are recognized in law by privileges against
forced disclosure, established in the Constitution, by
statute, or at common law. Whatever their origins, these
exceptions to the demand for every man’s evidence are not
lightly created nor expansively construed, for they are in
derogation of the search for truth.[150]
6. In
Camera Determination of Information to be Disclosed
After
determining that the Special Prosecutor had made a
sufficient showing of a “demonstrable specific need” to
overcome the qualified presumption in favor of the
Presidential communications privilege, the High Court
upheld the order of the D.C. District Court in US v.
Mitchell that an in camera examination of the subpoenaed
material was warranted. Its purpose was to determine if
there were parts of the subpoenaed material that were not
covered by executive privilege and should therefore be
disclosed or parts that were covered by executive
privilege and must therefore be kept under seal.
The US
Supreme Court acknowledged that in the course of the in
camera inspection, questions may arise on the need to
excise parts of the material that are covered by executive
privilege. It afforded the D.C. District Court the
discretion to seek the aid of the Special Prosecutor and
the President’s counsel for in camera consideration of the
validity of the particular excisions, whether on the basis
of relevancy or admissibility, or the content of the
material being in the nature of military or diplomatic
secrets.[151]
In
excising materials that are not relevant or not admissible
or covered by executive privilege because of their nature
as military or diplomatic secrets, the High Court
emphasized the heavy responsibility of the D.C. District
Court to ensure that these excised parts of the
Presidential communications would be accorded that “high
degree of respect due the President,” considering the
“singularly unique role under Art. II of a President’s
communications and activities, related to the performance
of duties under that Article … a President’s
communications and activities encompass a vastly wider
range of sensitive material than would be true of any
‘ordinary individual.’”[152]
It was “necessary in the public interest to afford
Presidential confidentiality the greatest protection
consistent with the fair administration of justice.”[153]
Thus, the High Court sternly ordered that until
released by the judge to the Special Prosecutor, no in
camera material be revealed to anyone, and that the
excised material be restored to its privileged status and
returned under seal to its lawful custodian.[154]
The
procedure enunciated in US v. Nixon was cited by the Court
of Appeals of the District of Columbia Circuit in the 1997
case In re Sealed Case (Espy).[155]
B.
Resolving the Case at Bar with the Aid of US v. Nixon and
Other Cases
1.
Procedure to Follow When Diplomatic, Military and National
Security Secrets Privilege is Invoked
In the
case at bar, Executive Secretary Ermita’s letter
categorically invokes the Presidential communications
privilege and in addition, raises possible impairment of
diplomatic relations with the People’s Republic of China.
Hence, the letter states, viz:
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 (Secretary Neri) cannot provide the Committee any
further details of these conversations, without disclosing
the very thing the privilege is designed to protect.[156]
(emphasis supplied)
As
afore-discussed, this Court recognized in Almonte v.
Vasquez[157]
and Chavez v. PCGG[158]
a governmental privilege against public disclosure of
state secrets covering military, diplomatic and other
national security matters. In US v. Reynolds,[159]
the US Supreme Court laid down the procedure for
invoking and assessing the validity of the invocation of
the military secrets privilege, a privilege based on the
nature and content of the information, which can be
analogized to the diplomatic secrets privilege, also a
content-based privilege. In Reynolds, it was held that
there must be a formal claim of privilege lodged by the
head of the department that has control over the matter
after actual personal consideration by that officer. The
court must thereafter determine whether the circumstances
are appropriate for the claim of privilege, without
forcing a disclosure of the very thing the privilege is
designed to protect.[160]
It was stressed that “[j]udicial control over the
evidence in a case cannot be abdicated to the caprice of
executive officers…”[161]
It is possible for these officers “to satisfy the
court, from all the circumstances of the case, that there
is a reasonable danger that compulsion of the evidence
will expose military matters which, in the interest of
national security, should not be divulged. When this is
the case, the occasion for the privilege is appropriate,
and the court should not jeopardize the security which the
privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in
chambers.”[162]
It was further held that “(i)n each case, the showing
of necessity which is made will determine how far the
court should probe in satisfying itself that the occasion
for invoking the privilege is appropriate.”[163]
Thus, the
facts in Reynolds show that the Secretary of the Air Force
filed a formal “Claim of Privilege” and stated his
objection to the production of the document “for the
reason that the aircraft in question, together with the
personnel on board, were engaged in a highly secret
mission of the Air Force.”[164]
The Judge Advocate General of the US Air Force also
filed an affidavit, which asserted that the demanded
material could not be furnished “without seriously
hampering national security, flying safety and the
development of highly technical and secret military
equipment.”[165]
On the record before the trial court, it appeared that
the accident that spawned the case occurred to a military
plane that had gone aloft to test secret electronic
equipment.[166]
The Reynolds Court found that on the basis of all the
circumstances of the case before it, there was reasonable
danger that the accident investigation report would
contain references to the secret electronic equipment that
was the primary concern of the mission, which would be
exposed if the investigation report for the accident was
disclosed.[167]
In the
case at bar, we cannot assess the validity of the claim of
the Executive Secretary that disclosure of the withheld
information may impair our diplomatic relations with the
People’s Republic of China. There is but a bare assertion
in the letter of Executive Secretary Ermita that 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.” There is absolutely no
explanation offered by the Executive Secretary on how
diplomatic secrets will be exposed at the expense of our
national interest if petitioner answers the three disputed
questions propounded by the respondent Senate Committees.
In the Oral Argument on March 4, 2008, petitioner Neri
similarly failed to explain how diplomatic secrets will be
compromised if the three disputed questions are answered
by him.[168]
Considering this paucity of explanation, the Court cannot
determine whether there is reasonable danger that
petitioner’s answers to the three disputed questions would
reveal privileged diplomatic secrets. The Court cannot
engage in guesswork in resolving this important issue.
Petitioner
Neri also invokes executive privilege on the further
ground that his conversation with the President dealt with
national security matters. On November 29, 2007,
petitioner wrote to Senator Alan Peter S. Cayetano as
Chairperson of the Committee on Accountability of Public
Officers and Investigations in reply to the respondent
Senate Committees’ Show Cause Order requiring petitioner
to explain why he should not be cited for contempt for
failing to attend the respondent Senate Committees’
November 20, 2007 hearing. Petitioner attached to his
letter the letter of his lawyer, Atty. Antonio Bautista,
also dated November 29, 2007. In this letter, Atty.
Bautista added other reasons to justify petitioner’s
failure to attend the Senate hearings. He stated that
petitioner’s “conversations with the President dealt with
delicate and sensitive national security and diplomatic
matters relating to the impact of the bribery scandal
involving high government officials and the possible loss
of confidence of foreign investors and lenders in the
Philippines.”[169]
In his Petition, Neri did not use the term “national
security,” but the term “military affairs,” viz:
Petitioner’s discussions with the President were candid
discussions meant to explore options in making policy
decisions (see Almonte v. Vasquez, 244 SCRA 286 [1995]).
These discussions dwelt on the impact of the bribery
scandal involving high Government officials on the
country’s diplomatic relations and economic and military
affairs, and the possible loss of confidence of foreign
investors and lenders in the
Philippines.[170]
In Senate
v. Ermita, we ruled that only the President or the
Executive Secretary, by order of the President, can invoke
executive privilege. Thus, petitioner, himself or through
his counsel, cannot expand the grounds invoked by the
President through Executive Secretary Ermita in his
November 15, 2007 letter to Senator Alan Peter S. Cayetano.
In his letter, Executive Secretary Ermita invoked only the
Presidential communications privilege and, as earlier
explained, suggested a claim of diplomatic secrets
privilege. But even assuming arguendo that petitioner Neri
can properly invoke the privilege covering “national
security” and “military affairs,” still, the records will
show that he failed to provide the Court knowledge of the
circumstances with which the Court can determine whether
there is reasonable danger that his answers to the three
disputed questions would indeed divulge secrets that would
compromise our national security.
In the
Oral Argument on March 4, 2008, petitioner’s counsel
argued the basis for invoking executive privilege covering
diplomatic, military and national security secrets, but
those are arguments of petitioner’s counsel and can hardly
stand for the “formal claim of privilege lodged by the
head of the department which has control over the matter
after actual personal consideration by that officer” that
Reynolds requires.[171]
Needless
to state, the diplomatic, military or national security
privilege claimed by the petitioner has no leg to stand
on.
2.
Applicability of the Presidential Communications Privilege
The
Presidential communications privilege attaches to the
office of the President; it is used after careful
consideration in order to uphold public interest in the
confidentiality and effectiveness of Presidential
decision-making to benefit the Office of the President. It
is not to be used to personally benefit the person
occupying the office. In In re Subpoena for Nixon[172]
Chief Judge Sirica emphasized, viz: “… [P]rivacy, in
and of itself, has no merit. Its importance and need of
protection arise from ‘the paramount need for frank
expression and discussion among the President and those
consulted by him in the making of Presidential
decisions.’”[173]
In
Kaiser Aluminum & Chemical Corp. v. United States,[174]
in which the term “executive privilege” was first
used, the US Court of Claims emphasized that executive
privilege is granted “for the benefit of the public, not
of executives who may happen to then hold office.”[175]
(emphasis supplied)
The
rationale for the Presidential communications privilege is
enunciated in US v. Nixon.[176]
As aforestated, it is based on common sense and on the
principle that flows from the enumerated powers of the
President and the doctrine of separation of powers under
the Constitution. This rationale was recognized in both
Almonte v. Vasquez and Senate v. Ermita.
It is
worthy to note that US v. Nixon involved the executive and
the judicial branches of government in the context of a
criminal proceeding. In the case at bar, the branches of
government in conflict and the context of the conflict are
different: the conflict is between the executive versus
the legislature in the context of a Senate investigation
in aid of legislation. Be that as it may, the clash of
powers between the executive and the legislature must be
resolved in a manner that will best allow each branch to
perform its designed functions under the Constitution,
using the “function impairment test.” In accord with this
test, it is the Court’s task to balance whether the
disclosure of the disputed information impairs the
President’s ability to perform her constitutional duty to
execute the laws more than nondisclosure would impair the
respondent Senate Committees’ ability to perform their
constitutional function to enact laws.
2. a.
Presidential Communications Enjoy a Qualified Presumption
in Their Favor
The
function impairment test begins with a recognition that
Presidential communications are presumptively privileged.
In their
Comment, respondent Senate Committees contend that
petitioner has the burden of overcoming the presumption
against executive privilege, citing Senate v. Ermita, viz:
From the
above discussion on the meaning and scope of executive
privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts,
or the public, is recognized only in relation to certain
types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive
officials are exempt from the duty to disclose information
by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that
the presumption inclines heavily against executive secrecy
and in favor of disclosure.[177]
(emphasis supplied)
A hard
look at Senate v. Ermita ought to yield the conclusion
that it bestowed a qualified presumption in favor of the
Presidential communications privilege. As shown in the
previous discussion, US v. Nixon, as well as the other
related Nixon cases Sirica[178]
and Senate Select Committee on Presidential Campaign
Activities, et al. v. Nixon[179]
in the D.C. Court of Appeals, as well as subsequent
cases,[180]
all recognize that there is a presumptive privilege in
favor of Presidential communications. The Almonte case[181]
quoted US v. Nixon and recognized a presumption in
favor of confidentiality of Presidential communications.
The
statement in Senate v. Ermita that the “extraordinary
character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of
disclosure”[182]
must therefore be read to mean that there is a general
disfavor of government privileges as held in In Re
Subpoena for Nixon, especially considering the bias of the
1987 Philippine Constitution towards full public
disclosure and transparency in government. In fine, Senate
v. Ermita recognized the Presidential communications
privilege in US v. Nixon and the qualified presumptive
status that the US High Court gave that privilege. Thus,
respondent Senate Committees’ argument that the burden is
on petitioner to overcome a presumption against executive
privilege cannot be sustained.
2. b.
Next, the Strength of the Qualified Presumption Must be
Determined
Given the
qualified presumption in favor of the confidentiality of
Presidential communications, the Court should proceed to
determine the strength of this presumption as it varies in
light of various factors. Assaying the strength of the
presumption is important, as it is crucial in determining
the demonstrable specific need of the respondent Senate
Committees in seeking the disclosure of the communication
in aid of its duty to legislate. The stronger the
presumption, the greater the demonstrable need required to
overcome the presumption; conversely, the weaker the
presumption, the less the demonstrable need required to
overcome the presumption.
A primary
factor to consider in determining the strength of the
presumption is to look where the Constitution textually
committed the power in question. US v. Nixon stressed that
the Presidential communications privilege flows from the
enumerated powers of the President. The more concentrated
power is in the President, the greater the need for
confidentiality and the stronger the presumption;
contrariwise, the more shared or diffused the power is
with other branches or agencies of government, the weaker
the presumption. For, indisputably, there is less need for
confidentiality considering the likelihood and expectation
that the branch or agency of government sharing the power
will need the same information to discharge its
constitutional duty.
In the
case at bar, the subject matter of the respondent Senate
Committees’ inquiry is a foreign loan agreement contracted
by the President with the People’s Republic of
China.
The power of the President to contract or guarantee
foreign loans is shared with the Central Bank. Article
VII, Section 20 of the 1987 Constitution, provides, viz:
Sec. 20.
The president may contract or guarantee foreign loans on
behalf of the Republic of the
Philippines
with the prior concurrence of the Monetary Board, and
subject to such limitations as may be provided by law. The
Monetary Board shall, within 30 days from the end of every
quarter of the calendar year, submit to the Congress a
complete report of its decisions on applications for loans
to be contracted or guaranteed by the Government or
government-controlled corporations which would have the
effect of increasing the foreign debt, and containing
other matters as may be provided by law. (emphasis
supplied)
In
relation to this provision, the Constitution provides in
Article XII, Section 20 that majority of the members of
the Monetary Board (the Central Bank) shall come from the
private sector to maintain its independence. Article VII,
Section 20 is a revision of the corresponding provision in
the 1973 Constitution. The intent of the revision was
explained to the 1986 Constitutional Commission by its
proponent, Commissioner Sumulong, viz:
The next
constitutional change that I would like to bring to the
body’s attention is the power of the President to contract
or guarantee domestic or foreign loans in behalf of the
Republic of the Philippines. We studied this provision as
it appears in the 1973 Constitution. In the 1973
Constitution, it is provided that the President may
contract or guarantee domestic or foreign loans in behalf
of the Republic of the Philippines subject to such
limitations as may be provided by law.
In view of
the fact that our foreign debt has amounted to $26
billion—it may reach up to $36 billion including
interests—we studied this provision in the 1973
Constitution, so that some limitations may be placed upon
this power of the President. We consulted representatives
of the Central Bank and the National Economic and
Development Authority on this matter. After studying the
matter, we decided to provide in Section 18 that insofar
as the power of the President to contract or guarantee
foreign loans is concerned, it must receive the prior
concurrence of the Monetary Board.
We placed
this limitation because, as everyone knows, the Central
Bank is the custodian of foreign reserves of our country,
and so, it is in the best position to determine whether an
application for foreign loan initiated by the President is
within the paying capacity of our country or not. That is
the reason we require prior concurrence of the Monetary
Board insofar as contracting and guaranteeing of foreign
loans are concerned.
We also
provided that the Monetary Board should submit complete
quarterly report of the decisions it has rendered on
application for loans to be contracted or guaranteed by
the Republic of the Philippines so that Congress, after
receiving these reports, can study the matter. If it
believes that the borrowing is not justified by the amount
of foreign reserves that we have, it can make the
necessary investigation in aid of legislation, so that if
any further legislation is necessary, it can do so.[183]
(emphasis supplied)
To be concluded on Monday, April 7 |
