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The
latest twist in the national broadband network (NBN)
controversy is that the National Economic and
Development Authority (Neda) is invoking executive
privilege in its decision not to furnish the Senate with
relevant documents on the deal.
The same
tack was taken by former Neda director general and now
Commission on Higher Education chairman Romulo Neri when
he appeared in a recent Senate hearing on the NBN
project, and refused to answer further questions from
senators intent on directly linking the Palace to the
controversial deal.
While
the President has already canceled the deal with the
Chinese telecommunications firm ZTE, the Senate
blue-ribbon committee apparently wants to continue its
probe later this month. But Neri has been quoted as
saying that he has nothing more to add to what he has
already said before, and quite possibly would again
invoke “ executive privilege” to keep inquisitive
senators at bay.
But what
is the principle behind “executive privilege?” Internet
research yielded enough information.
In the
United States executive privilege is the power claimed
by the President and other members of the Executive
branch to reject
search warrants and other interventions by the Legislative
and Judicial
branches of government. The concept of executive
privilege is not mentioned in the
US Constitution, but it is considered an element of
the doctrine of separation of powers, and derives from
the supremacy of the Executive branch in its own sphere
of constitutional activity.
Over the
years, US presidents have claimed executive privilege to
protect military, diplomatic, or national security
secrets. The basis of the concept is that a president
cannot be forced to share with other branches of
government certain conversations, actions, or
information if sharing that information could place the
US
foreign relations in jeopardy.
The
first US President, George Washington, invoked the
concept in 1796 when he refused to comply with a request
by the House of Representatives for documents related to
the negotiation of a treaty with
England.
Washington
argued that the Senate alone played a role in the
ratification of treaties and, therefore, the House had
no legitimate claim to the material. He provided the
documents to the Senate, but not the House.
Since
then, successive US presidents, from
Jefferson to Eisenhower to Clinton and George W. Bush, have invoked
the privilege to shield themselves from legislative and
other external interference.
In 1974,
during the Watergate hearings, the prosecution demanded
that President Richard Nixon produce the audiotapes of
conversations he and his colleagues had in the
Oval Office of the
White House. Nixon refused. His lawyers claimed that
executive privilege should extend to certain
conversations between the President and his aides, even
when national security is not at stake. They argued that
in order for aides to give good advice and to truly
explore various alternatives, they had to be candid. If
they were going to issue frank opinions, they had to
know that what they said was going to be kept
confidential.
The US
Supreme Court upheld the claim of executive privilege.
It noted “the valid need for protection of
communications between high-ranking government officials
and those who advise and assist them in the performance
of their manifold duties.”
The same
logic was used by the court in establishing an
“executive immunity” defense for high-office holders
charged with violating citizens’ constitutional rights
in the course of performing their duties.
But the
High Court rejected the notion that the President has an
“ absolute privilege.” It said: “ To read the
Article 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
Article III.”
The
Court held that the larger public interest in obtaining
the truth in the context of a criminal prosecution took
precedence.
Chief
Justice Warren Burger, writing for the majority in US v.
Nixon noted: “Whatever the nature of the privilege of
confidentiality of presidential communications in the
exercise of Article II 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.”
The
concept of executive privilege needs to be elaborated by
our own Supreme Court to put to rest questions about its
nature and scope in the Philippine setting.
My guess
is that anyone from the Cabinet who appears before a
Senate or House investigation will, henceforth, invoke
the concept if the grilling becomes too hot and frenzied
for comfort. After all, if our legislators can claim
parliamentary immunity to shield themselves from getting
sued, why can’t the Executive branch also dig its toes
in and invoke executive privilege to protect itself from
legislative inquiry, on the basis of the separation of
powers that’s a recognized bedrock of a democratic
setup? |
