Time & Circumstances: Mar 25, 2008

The en banc decision of 9-6 is in itself telling of the matter. I am reminded of my professor in the college of law who said: "watch for the dissenting opinions, they tend to be the dominant stand and will sooner or later prevail.

Here are some substantial points I gathered as I went through the ponecia. I do admit that I was more absorbed in the dissenting opinion of the Chief Justice. Which is very methodical, forceful, and strong.

1. ..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.
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COMMENT: A confirmed act of bribery is not compelling enough?

2. ...in relation to her executive and policy decision-making process and diplomatic secrets.

3. ...we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.
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4. Thus, 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.
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Comments: Due to the fact that The Senate is the only constitutional body that is elected broadly on a national level, it is closest to the Sovereign Collective Will of the people acting as an assembly. In contrast with that of the Lower House whose representative is elected by district one per 500k of the population. Besides, whatever grandstanding that may be maliciously attributed to an inquiry is very much overshadowed by the need for the people to know what is really happening in the corridors of power. After all it is the ordinary citizen who carry's the burden of paying taxes. It is not only a matter of transparency but also accountability.

5. 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 cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.
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Comment: This is the justification of Sec. Ermita with regard to invoking the 'executive privilege'. just one question sir, what kind of diplomatic and economic relation with China are you trying to protect? I did not know that bribery is being protected by the government. Are you saying that it is the policy of China to bribe foreign governments and that the relationship is reciprocal? It is therefore safe to say and logical given the premises that it is the policy of the present government to accept and negotiate for bribes.However, policy is a matter of public interest. You see sir, you are caught up in your 'web of lies'.

6. Justice Reed, sitting on the U.S. Court of Claims, wrote: “The power must lie in the courts to determine Executive Privilege in litigation.... (T)he privilege for intra-departmental advice would very rarely have the importance of diplomacy or security”.

7. Thus, as early as 1807, the Burr case established the doctrine that the President's authority to withhold information is not absolute, the President is amenable to compulsory process, and the interests in secrecy must be weighed against the interests in disclosure.[83]

8. The administration of President Richard Nixon produced the most significant developments in executive privilege. Although his administration initially professed an “open” presidency in which information would flow freely from the executive to Congress to the public, executive privilege during this period was invoked not for the protection of national security interests, foreign policy decision-making or military secrets as in the past, but rather to keep under wraps politically damaging and personally embarrassing information.

9. The history of executive privilege shows that the privilege is strongest when used not out of a personal desire to avoid culpability, but based on a legitimate need to protect the President’s constitutional mandate to execute the law, to uphold prudential separation of powers, and above all, to promote the public interest.

10. The ground involved in the case at bar, as stated in the letter of Secretary Ermita, is Presidential communications privilege on information that “might impair our diplomatic as well as economic relations with the People’s Republic of China.”

11. While the Court alluded to U.S. v. Nixon and made pronouncements with respect to Presidential communications, a closer examination of the facts of Almonte would reveal that the requested information did not refer to Presidential communications, but to alleged confidential government documents. Likewise, U.S. v. Nixon specifically confined its ruling to criminal proceedings, but Almonte was about a prosecutorial investigation involving public interests and constitutional values different from a criminal proceeding.

12. Such information, however, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the “exploratory” stage.

13. In this case, the Court again alluded to U.S. v. Nixon and also recognized that Presidential communications fall under the mantle of protection of executive privilege in the setting of a legislative inquiry. But since the issue for resolution was the constitutionality of EO No. 464 and not whether an actual Presidential communication was covered by the privilege, the Court did not have occasion to rule on the same.

14. “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 U.S. 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.’”

15. 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 U.S. 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.”

comments: This is the most glaring truth that beckons as a guiding light in the quest for truth and justice.

16. ...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 non-disclosure would impair the respondent Senate Committees’ ability to perform their constitutional function to enact laws.

17. Finally, the following statement of Dorsen and Shattuck is instructive

x x x there should be no executive privilege when the Congress has already acquired substantial evidence that the information requested concerns criminal wrong-doing by executive officials or presidential aides. There is obviously an overriding policy justification for this position, since the opposite view would permit criminal conspiracies at the seat of government to be shrouded by a veil of an advice privilege. While the risk of abusive congressional inquiry exists, as the McCarthy experience demonstrates, the requirement of “substantial evidence” of criminal wrong-doing should guard against improper use of the investigative power.

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misc. comments:
@phBAR:
raj: I was taken aback by the SC decision on the Neri case. The ponecia was very shallow and lame. However, I was appeased by the dissenting opinion of the Chief Justice which was very thorough, incisive, and enlightening.

If you try to place the two side-by-side with each other. You will find the other a 'shame'.

Thank you CJ Puno for your decision!
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It seems to me that Executive Privilege may only be exercised in the absence of an irregularity or abuse. It cannot be invoked in the presence of a controversy. One, there is a need for a document that should be released to the public as a result of the executive-decision-making-process. In the presence of such an existing public document which binds the government in a contract, the process of coming into a decision may not be looked into. This is candor in communication and executive interaction. Herein lies a valid exercise of the privy. 'Nawala ba yung contract'?, all the more is there a need to demolish the invocation of the privy. Stinks of a cover-up! Rule on presumption of evidence: The person having possession of an evidence is presumed to be negatively affected if the evidence is disclosed or the non-disclosure of such an evidence by a person who is presumed to possess it by virtue of an office in the regular performance of a duty /responsibility/function may be held liable in the presence of an allegation of wrongdoing and will incriminate the person charged.

Again, it is exercised with a presumption of regularity of performance. That indeed, the President has decided in good faith and in the observance of the proper conduct in arriving at such a decision. While a questionable contract decided on should never be shielded by such a privy. Pure common sense.