doctrines: judicial privilege

If the doctrine on executive privilege is nothing but a constitutional myth then judicial privilege is a mythical monster against the freedom of information enshrined in Article III on the Bill of Rights of the '87 Philippine Constitution.

The charter expressly provides: " SEC. 7. - The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law."

There are no known exceptions as far as i know except that the demand for information should not burden the bureaucracy in the manner of preparation with regard to matters of public record demanded by its citizen. We are after all in the 'age of information' and technology is the tool in which the right is sufficiently served.

That was before Ermita v. Senate came. There are also qualified exceptions towards state secrets with regard to the 'security of the state'. 

However, in the Supreme Court, where citizens invoke its adjudicative power with regard to controversies to enforce a right that was violated, the beast just doesn't square off.

In addition, a party litigant may invoke to keep the record of a decided case in private and not be a part of the public records but which is of course a different matter as this matter has got something to do with the individual's right to privacy. It is not something that the court may invoke. It is not the right of the court.


references:
        code on information
        lord bingham on the rule of law

UPDATES: Neri v. Senate Committee/ on Notice

The matter on the publication of the 'Senate Rules' allegedly, being one of the reasons why Neri's petition was granted, was not thoroughly covered in the courts' deliberation. The issue was not thoroughly exhausted in the oral arguments. It was just mentioned in passing. Strange, to think that there were only two paramount basis for the decision.

ISSUE: the fact of notice to the respondent.

It was allegedly received on the day or the day before the decision was handed. Therefore, the Senate was not afforded due process under the given circumstances.

The manner of sending a copy to the pleadings between the Executive and the Legislature took one week to be delivered. This is the oldest trick in the book. Considering further that this is a controversy between the two great powers of government, the manner of giving notice stinks to high heavens. Though admittedly acceptable within the legal circles, I think it should not be tolerated in this instance. These institutions have all the resources and the capability to send due proper notice. Yet, the Executive decided to send it by 'snail-mail'..yea, The Philippine Postal Service on registered mail. Which is considered as a valid service of summon under this jurisdiction. However, definitely a deliberate intent to misinform. There should be no surprises in a legal battle.

Given the premises. Undeniably, there are lawyers who 'prostitute' the legal profession and give it a bad reputation. The act fails the spirit of ethical standard. It almost makes me laugh. I should say that the person responsible for this should be disbarred and hanged in the gallows. It is a matter of public interest and not a minor controversy. Have you no shame?

"You're almost a good laugh, but you're really a cry"- David Gilmore/PinkFloyd/Animals

Case Digest: Neri v. Senate Committee

This is a case digest from a young collegiala by the pen-name SwityCake@phBAR. I'm posting it here in full and will go through it and add comments in the process.

From: switycake
To: raj
Posted: Fri Apr 04, 2008 3:20 pm
Subject: neri vs senate cmtes Quote message
Case Digest for Neri vs. Senate

FACTS:

A petition for certiorari1 was filed by petitioner Neri assailing the “show cause letter” dated November 22, 2007 and a subsequent order to cite petitioner in contempt more than a month later, January 30, 2008. Both documents were filed by the Senate Committees headed by the Senate Committee on Accountability of Public Officers and Investigations otherwise known as the Blue Ribbon Committee.

The antecedent events occurred previous to the issuance of the order and facts that have been culled up during the investigation are as follows:

The Department of Transportation and Communication (DOTC) entered into a contract with Zhing Xing Telecommunications Equipment (ZTE) on April 21, 2007 for the purpose of supplying equipment and services of a National Broadband Network (NBN) Project.

The full consideration amount of US$329,481,290 (Php 16 Billion) is to be financed by the People’s Republic of China.

In conjunction with the investigation, several resolutions to fill in legislative deficiencies were filed in Procurement law and executive-diplomatic treatises and agreements.

Simultaneously, this investigation resulted into the proposal of three pending bills in the Senate. Senate Bill No, 1793 was filed to subject treaties or executive agreements involving funding of projects to the scope of RA 9184 or the Government Procurement Reform Act.

Another bill was filed to impose safeguards in contracting loans classified as Official Development Assistance (ODA), and finally, a bill requiring concurrence to international and executive agreements.

The Senate Committees initiated the investigation by inviting officials and persons involved in the specified project. Secretary Romulo L. Neri was one of those invited to the hearings. On three occasions the Petitioner was invited, he only appeared once.

On another occasion the Respondent Committees invited Jose De Venecia, III who revealed that there were high officials pushing for the project. The project was originally to be realized manifested on a Build-Operate-Transfer (BOT) basis but soon, the witness found out it was converted into a government-to-government project. The aforesaid project involved the Republic of the Philippines and People’s Republic of China and is to be financed by a grant of loan by the latter.

Petitioner Neri who testified on September 26, 2007 disclosed that Commission on Elections (COMELEC) Commissioner Benjamin Abalos offered him a P200 million bribe to prioritize the project. That particular hearing lasted eleven hours. Neri, according to his testimony, immediately informed President Arroyo of the attempt him but he was instructed by her not to accept it.

However, when Neri was probed to elaborate on the matters pertaining to the NBN deal with the President, he refused to answer the question on the ground of executive privilege.

He refused to answer the following questions:

Whether or not the President followed up the NBN Project.
Whether or not she directed him to prioritize it.
Whether or not she directed him to approve.
Adamant as they could be, the respondent summoned the petitioner once again on November 20, 2007. However, Executive Secretary Ermita wrote on November 15, 2007 to dispense with Neri’s testimony as this was covered by executive privilege.

On the appointed date of the inquiry, petitioner did not appear in the proceedings. As a consequence, the Senate issued a show cause letter demanding that Neri to explain why he failed to appear before them and why he should not be cited in contempt.

The Petitioner replied that it was not his intention to snub the hearings and that he thought he was going to be asked the three remaining questions covered by executive privilege.

Moreover, with the assistance of counsel, Atty. Antonio R. Bautista, the Petitioner claimed that his non-appearance was upon order of the President and his conversation with her involved delicate national security and matters contingent to the impact of high ranking officials embroiled in bribery which probably results to loss of investor confidence in the country.

The Petitioner also requested that he be furnished with other questions in advance so he may adequately prepare himself.

When Senate’s inquiry was in recess, Petitioner filed a petition for Certiorari berating the show cause letter.

Meanwhile, Respondents found Neri’s explanation unsatisfactory and moved to cite him in contempt and to order the sergeant-at-arms to arrest and detain him at the Senate until such time he speaks up on the matter. Neri moved for the reconsideration of the above order. He alleged that he did not display a demeanor worthy of contempt and arrest. He reiterated that he was willing to accommodate any endeavor to shed light into the issue, provided he be furnished with questions in advance, a request which respondents did not heed.

On February 5, 2008 the Supreme Court issued a Status Quo Ante Order 2(a) enjoining respondents from implementing their contempt order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the contempt order and (c) requiring respondents to file their comment3.

Petitioner asserts that both the show cause letter and contempt order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Again, petitioner underscores that any conversation or correspondence between cabinet members and the President are confidential since discussions involved the impact of exploring options in making policy decisions.

While Petitioner claims that the parameters have been laid down in Senate vs. Ermita, respondents insist the contrary. They argue that Neri’s testimony is substantial in the investigation in aid of legislation, that there is no valid justification for petitioner to claim executive privilege, that there was no abuse in discretion when respondent ordered the arrest of petitioner and that petitioner has not come to court with clean hands.

It was further ventilated by the respondent that the claim of executive privilege in this case will prejudice the right to public information clause, that the President ensure that he faithfully execute laws, that public office is a public trust, full public disclosure of all transaction of public interest, due process clause and the principle of separation of powers.

ISSUES:

Are the communications elicited by the subject three questions covered by executive privilege?
Did respondent Committees commit grave abuse of discretion in issuing the contempt Order?
DISCUSSION:

The court used Senate vs. Ermita as a sort of a yardstick in deciding this case. Senate makes a distinction between legislative and oversight powers of Congress quoting Sections 214 and 225 of Article VI of the Constitution.

The Senate describes that Section 21 relates that the power to inquire in aid of legislation is to gather information and improve lapses in legislation, while Section 22 pertains to the power of Congress to call for a question hour as it exercises its oversight power. The purported power is to ascertain that the executive branch does not arbitrarily exercise abuse of power.

In circumspect, the above distinctions as the court ruled gives birth to the interpretation of these two provisions. As respondents invoked Section 22, Article VI Congress cannot compel the appearance of executive officials. The court quoted Senate vs. Ermita on this matter.

The following are further elucidated by the court:

That the three questions are covered by executive privilege.
The power to investigate in the light of question hour may be broad but possesses limitations. To be valid it must be done in accordance to published rules of procedure of either houses and that rights of persons appearing be respected.
That in spite of the revocation of E.O 464, the executive privilege remains to due to its constitutional juncture.
The court makes distinction between the case at bar and the Nixon case. The latter involves a criminal prosecution and the former a congressional inquiry. The judicial department has to the power to compel persons to unveil confidential information in the administration of justice while the legislative has not even if it is a search for truth. An investigation in aid of legislation is not a judicial process to prosecute officials. Therefore, the privilege was properly invoked.
Petitioner did not act worthy of any contempt as he even subjected himself to an eleven-hour questioning.
The issue on the right to public information is subject to limitation as provided by law6.
The Senate failed to furnish petitioner his request of providing him questions in advance and include a publication its revised rules thus invalidating the contempt order.
The court further ruled that the right of the citizen of information is not equated with Senate’s power to summon officials or persons to an inquiry, vice versa.
Claim of executive privilege is properly invoked because the formal requisites mandate that it is the head of the department that initiates it and that it should be done in writing. It should also involve highly confidential information such as military secrets and diplomatic treatises to qualify for the privilege.
The Senate committed a grave abuse of discretion because besides a valid claim of executive privilege, they curtly disregarded petitioner’s reasons for abstaining from the inquiry. The responded still went ahead with the contempt order thus denying the petitioner due process of law.
With regard to the respondent’s allegation that the court abandoned its sacred duty to maintain the doctrine of separation of powers and check and balances in government, it simply proposed a negotiation as an alternate venue for settling controversies and avoid the cumbersome process of judicial review. It simply tried to avert a constitutional crisis looming in the horizon.
Respondent committee should have exercised the same restraint, after all, the petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. This is concomitant with the doctrine of separation of powers and the mandate to observe respect to a co-equal branch of government.
RULING:

WHEREFORE, the petition is hereby GRANTED. The subject Ordered January 30, 2008, citing Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified.

1 An extraordinary writ issued by a superior court (as the Supreme Court) to call up the records of a particular case from an inferior judicial body. The Supreme Court may also use certiorari to review a decision by the highest court when there is a question as to validity of any treaty or statute on constitutional grounds.



2 An order directing parties to rescind or annul any contract or act and restore parties as if there was no act at all.



3 An expression of an opinion about a remark to a judge or prosecutor about evidence.



4 The Senate or House of Representatives or any of its respective committee may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.



5 The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.



6 Section 17, Article III – The right of information on matter of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

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COMMENTS on the Digest:
1. As a rule of thumb, case digests must be limited to the space of a single piece of yellow pad paper.
2. There is no need for footnotes and the use of elaborate sentences. They are meant to be used by those who are in the legal profession for the purpose of a quickglance.
3. It must be compressed. For example, on the paragraph in the Decision portion that goes.."WHEREFORE, the petition is hereby GRANTED. The subject Ordered....", it would be sufficient to write, "Petition was approved"or"Petition GRANTED." Stating therein the 'rationale' and the 'basis' in law or statute, administrative act, ordinance and regulation. Also the basis in 'equity.'
4. Define the body distinctively. Facts, Issues, then Decision. They should be numbered if there are several contents in each category.
5. Use your own words. Try not to be part of the 'copy-paste battalion.'
Not bad for a start. Amazing in fact. Like they say... "the next is always the best", SATISFACTORY!

Further COMMENTS:
It is unmistakable that the SC has committed a fallacy of argument by attacking the legitimacy of the conduct of the Senate Committee. Under Aristotelian lines it provides;

Attack Fallacies: The best form of defense is sometimes thought to be attack. When an argument is failing, many people will go on the offensive, seeking to destroy the other person's confidence rather than their argument.

Poisoning the Well: Discrediting the person before they speak.

For lack of a better argument. It resorts to saying that the Senate Rules needs to be published. The Senate has spoken by saying that being a continuing body there was no need to re-publish its already long published rules. Only the preceding amendments to its rules needs to be published.

It appears that we have come full circle. What we have now is a Supreme Court that is virtually under trial.

A motion for reconsideration in this instance therefore is to give the court a chance to correct itself.

The most perfidious way of harming a cause consists of defending it deliberately with faulty arguments.

Friedrich Nietzsche,

G.R. No. 180643 on Executive Privilege

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.

The most perfidious way of harming a cause consists of defending it deliberately with faulty arguments.

Friedrich Nietzsche,