CHAPTER 4 EXECUTIVE PRIVILEGE From Bernas, A Living Constitution: Arroyo Prsidency, Part II.

1. A RELIGION OF SECRECY I was struck dumb with astonishment at the sentiments . . . [t]hat the executive alone shall have the right of judging what shall be kept secret, and what shall be made public, and that the representatives of a free people, are incompetent to determine on the interests of those who delegated them. --Benjamin Franklin. Bureaucracy naturally welcomes a poorly informed and hence a powerless parliament--at least in so far as ignorance somehow agrees with the bureaucracy's interests. --Max Weber Ironically, three months before the Watergate scandal, former President Richard M. Nixon had this quote: [W]hen information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, andeventually-incapable of determining their own destinies. But in Watergate he sought to keep the people ignorant. Arthur Schlesinger, Jr. wrote in his The Imperial Presidency that a religion of secrecy serves as an allpurpose means by which the American Presidency [may] dissemble its purposes, bury its mistakes, manipulate its citizens, and maximize its power. But is executive privilege without constitutional foundation? This was the view of Raul Berger in his book Executive Privilege: a Constitutional Myth. Most scholars, together with the U.S. and Philippine Supreme Court, do not agree with Berger. Indeed, executive privilege did not yet have that name when Washington denied congressional request for presidential material regarding the failure of a 1791 military expedition by General Arthur St. Clair against American Indians. Thomas Jefferson withheld correspondence deemed secret from both the public and Congress. So did James Madison and later President Monroe and much later Eisenhower. Early Presidents all recognized that executive privilege occasionally was necessary for the effective discharge of the Presidents duties. But it was not until the Nixon Presidency that the U.S. Supreme Court officially baptized presidential secrecy with a name. The Court recognized the necessity for the president to be able to consult with his advisers without fear of public disclosure of their advise. Averell Harriman expressed it well: [T]he President is entitled to receive the frank views of his advisers and therefore must be able to protect the personal or confidential nature of their communications with him. So did William P. Bundy: [I]f officers of an administration should come to feel that their confidential advice would be disclosed, short of a period of many years, I do believe that the consequences in terms of honesty, candor, courage, and frankness within the executive branch could be very serious indeed. In United States v. Nixon, the Supreme Court agreed: The valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties ... 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. ... [T]he confidentiality of Presidential communications has ... constitutional underpinnings .... The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. Like any good thing, however, executive privilege can be misused and abused. It has been. Observers give numerous examples, especially after the Watergate period. As one scholar noted, such examples give executive privilege a bad reputation. For this reason Presidents Ford, Carter and the older Bush avoided using the words executive privilege and protected secrecy through other means.

No amount of exorcism, however, will drive away executive privilege. After all, it has its legitimate place. What is needed is a proper balance. Towards this end there are certain basic guidelines that must be kept in mind. First, in a constitutional regime that is predicated on official accountability, executive privilege must be the exception and executive transparency the rule. Second, since executive privilege is not an unfettered power, Congress has the right and sometimes the duty to challenge presidential claims of privilege. This is especially true when the presidential claim is not based on the need to protect national security or to protect the privacy of Cabinet deliberations when needed in the public interest. Third, both sides of the debate must recognize that there are no precise boundary lines that divide transparency and secrecy. The precise demarcation lines cannot be determined in advance. The lines must be determined through the political dynamics of separation of powers. In the end, the Court must draw the line, if need be, after an in camera (in chamber) hearing. For that matter, the limits on the often abused power of legislative enquiry in aid of legislation or the oversight function of Congress are not clear either. But there can be times when the conflict between Congress and Executive can become a case of an irresistible force facing an immovable wall. Congress, however, is not without weapons to batter the wall. Aside from its subpoena and contempt powers, Congress can also withhold support for presidential agenda or tighten its control of government purse strings. The ultimate weapon, of course, is impeachment or the threat thereof. 1 October 2007 2. AN E.O. 464 CATECHISM1 [Legislative] hearings have served an important role in ventilating issues of profound national concern. In fact, the modern function of hearings is often simply to focus the national attention and place a pressing issue on the nations agenda. Some might say that, in certain legislative sessions, such consciousness raising ranks among Congress most constructive accomplishment. -- Lawrence Tribe Pardon me if the catechist in me should come out, but there is so much confusion about E.O. 464 that I thought the catechetical method might be the clearest approach. So, here goes: Q. Is Executive Order 464 still alive? A. The Supreme Court in Senate v. Ermita said: Sections 2(b) and 3 of Executive Order No. 464 . . . are declared VOID. Sections 1 and 2(a) are, however, VALID. Q. What does the voided Sections 3 say? A. It says: All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. Q. Who are the officials in Section 2(b) referred to in Section 3. A. They are: Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;

E.O. 464 was a sweeping claim of executive privilege entitled "ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and Such other officers as may be determined by the President. Q. Are there any officials whom the President may prevent from testifying? A. If the hearing is an inquiry in the exercise of congressional oversight function under Article VI, Section 22, Department Secretaries may not appear without the prior consent of the President. This is repeated in Section 1 of E.O. 464 which the Supreme Court declared valid. If the hearing is in aid of legislation under Article VI, Section 21 of the Constitution, anyone, except the President and Justices of the Supreme Court may be summoned. Q. If the President cannot use E.O. 464 to block the testimony of officials enumerated in Section 2(b) above, can she still prevent testimony? A. Yes, by claiming that the testimony being sought is covered by executive privilege. Q. What is executive privilege? A. It is the constitutionally recognized right of the President to withhold certain types of information from Congress, from the courts or from the public. Q. What types of information can be covered by executive privilege? A. Section 2(a) of E.O. 464, upheld as valid by the Supreme Court, enumerates the following which are taken from earlier decisions: 1. Conversations and correspondence between the President and the public official covered by this executive order 2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged; 3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements; 4. Discussion in closed-door Cabinet meetings; 5. Matters affecting national security and public order. Q. Who may claim executive privilege? A. Only the President or a high official who, after consultation with the President, is authorized by her to claim the privilege. Q. Must every claim of executive privilege based on the above enumeration be honored? A. No. The Court in Senate v. Ermita said that in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting. Thus it is not for one claiming executive privilege to unilaterally determine that a duly-issued Subpoena should be totally disregarded. Q. Who then determines whether the claimed privilege should be honored? A. The Court. Thus, for instance, when the Nixon administration claimed privilege for certain tapes about the Watergate break-in, the Court, after looking at the claimed privilege behind closed doors, held that the tapes were not covered by privilege and should be released. For this reason, our Court also said that Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected. The lack of specificity renders an assessment of the potential harm resulting from disclosure impossible. Q. What was the opening sentence of the Court in its decision on E.O. 464. A. A transparent government is one of the hallmarks of a truly republican state. Q. The Pr esident has formed a legal team to study what to do with the appeal of the Bishops to abandon E.O. 464. What should they say?

A. They should say, Madam President, read Senate v. Ermita and obey it and thereby begin the process of your salvation. 25 February 2008 3. MORE ON EXECUTIVE PRIVILEGE? 15 October 2007 Executive privilege is, nonetheless, not a clear or unitary concept. It . . . may be more accurate to speak of executive privileges, since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations. . . . 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. . . . The quotation is from the recent case of Senate v. Ermita (2006) involving Executive Order 464. It is clear from this that the Supreme Court recognizes executive privilege as a constitutional concept. But it is also clear that Court sees the phrase executive privilege not as a magical incantation which produces effect from mere utterance. If I may use a phrase in sacramental theology, it does not work ex opere operato. That is, it does not work independently of the person uttering or performing it or the circumstances surrounding it. American courts have had occasion to determine whether a particular claim of privilege is valid or not. The classic case is the one which President Nixon lost. We have also had some cases involving confidentiality of government transactions. Since it is almost certain that a shotgun blasts claiming executive privilege will be challenged in court, it may be good to review how the Supreme Court has handled government claims of confidentiality in the past. These can show us how the Court might or should handle claims of executive privilege in the future. We can begin with Almonte v. Vasquez (1995). This involved a subpoena duces tecum issued by the Ombudsman in response to charges of illegal disbursement of funds. The head of the Economic Intelligence and Investigation Bureau (EIIB) opposed the Ombudsman on the basis, among others, of a claim of privilege. The Court rejected the claim saying that where the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security secrets but on a general public interest in the confidentiality of his conversations the claim must yield to a subpoena considered essential to the enforcement of criminal laws. So the government lost. The claim of privilege again came up in the 1998 case of Chavez v. PCGG. (1999). Here the demand was for the release of information regarding negotiations for a compromise agreement about the Marcos wealth. The Court again said: At the very least, this jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. But where there is no need to protect such state secrets, the privilege may not be invoked to withhold documents and other information, provided that they are examined in strict confidence and given scrupulous protection. In the end the Court directed the PCGG to disclose to the public the terms of any proposed compromise settlement, as well as the final agreement. Again the government lost, but with a consolation prize. The Court said that there was no obligation to disclose intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the exploratory stage. Next came Chavez v. Public Estates Authority (PEA) (2003) which involved a mandamus petition to compel the PEA to disclose all facts on PEAs then on-going renegotiations with Amari Coastal Bay and Development Corporation (AMARI}) to reclaim portions of Manila Bay. The Court said that the obligation to disclose arises once the committee makes its official recommendation and even before a contract is consummated. Requiring a consummated contract will keep the public in the dark until the

contract, which may be grossly disadvantageous to the government or even illegal, becomes a fait accompli. This negates the State policy of full transparency on matters of public concern. The big one, of course, was Senate v. Ermita where the Supreme Court dealt with the shotgun blast of E.O. 464. The Court did say that E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the information in the possession of these officials. At the same time, however, the Court said that information may be withheld even from Congress. And since the issue was about the sweeping gag order in EO 464 and not about specific information being sought by Congress, Senate v. Ermita left things hanging. Similarly Gudani v. Senga (2006), which involved an army generals appearance before the Senate, left jurisprudence hanging. Although the case came up in the wake of E.O. 464, it was not decided on the basis of executive privilege. It was decided on the basis of the Presidents Commander in Chief power which can demand obedience from subordinates. As to executive privilege, the Court said, the Senate could have filed an action with the courts to compel the commanding officers or the Commander-in-Chief to allow petitioners to testify before it. Under such procedure, the legality of the order could have been put in issue directly before the Court since the Senate is well capacitated to argue why its prerogative in compelling the testimony of petitioners should supersede that of the Commander-in-Chief in preventing or withholding such testimony. But no challenge came from the Senate. There you have it. Gudani v. Senga was an invitation to the Senate to bring up specific cases in defense of its prerogative to compel testimony. The Senate did not rise to the challenge.

4. SHIELDING THE PRESIDENT 11 February 2008 The strongest constitutional shield that protects a sitting President is executive immunity from suit. But the shield can be pierced via an assault against executive subordinates. Thus presidents throughout modern constitutional history have attempted to spread their own protective mantle over subordinates. This is done principally through the claim of executive privilege. In recent months, illustrative of this is the sweeping gag rule imposed on officials of the executive department contained in E.O. 464. And when E.O. 464 is seen to be in danger of circumvention, the entire executive apparatus can be activated to physically constrain a potential witness from taking the witness stand. And when this fails, the executive arm can be converted into a hornets nest of exculpatory lies. Does this seem unreal to you? For its part Congress has the inherent constitutional power to conduct hearings in aid of legislation. This inherent power, merely implicit in previous Constitutions, is now explicit in the 1987 Constitution. What happens, however, when this congressional power is confronted with the claim of executive privilege by authority of the President? The claim of executive privilege can arise when the witness is already before an investigating body; but it can also arise when a potential witness is still deliberating whether he or she should answer congressional summons. When executive privilege is claimed during a hearing, it is now established jurisprudence that Congress can detain a witness until he or she answers a legitimate question. We have had instances of this in our own constitutional history. But it is also established jurisprudence that in such a situation a witness can ask the Court to determine whether the question is legitimate or whether the question is a violation of executive privilege. We do have jurisprudence on what are covered by executive privilege and on the correct manner of claiming executive privilege. It becomes more problematic, however, if a potential witness refuses to appear before an investigating body on the claim of executive privilege. What can Congress do in such a situation? In the past our Congress has ordered the arrest of a reluctant witness. There is American jurisprudence which justifies such congressional action. American jurisprudence, from where we have borrowed the law on

congressional investigations, recognizes the power of Congress to punish for contempt one who refuses to comply with a subpoena issued by a congressional investigating body. Ordinarily, however, as American commentators point out, Congress does not directly exercise this power to order the arrest but instead requests executive officials to initiate judicial contempt proceedings. One can readily see, however, that such a procedure can make things very difficult for congressional investigators. In the first place, if it is the executive department itself that is interested in blocking the investigation, the cooperation of executive officials cannot be expected. Events in the past few days involving Romulo Neri2 make this glaringly clear. In the second place, if Congress should bring the matter to the judicial contempt process, the provisions on the Bill of Rights on criminal procedure can come into play. In which case, Congress might as well give up the attempt. I realize that the Senate has issued a warrant for the arrest of Romulo Neri and Neri has brought the matter to the Supreme Court. For this reason, I will not attempt to guess what the Supreme Court will or should do. All I will cite at the moment is what the Court has said in the past: namely that, if executive privilege is not claimed, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. But the Court has not specified what the necessary legal means are. And we are awaiting what the Court will do because Neri has claimed executive privilege. On the matter of what may be covered by executive privilege and on the matter of how to claim executive privilege we do have definite guidelines from our Supreme Court. As Our Court has said, executive privilege is not just one privilege but a cluster of privileges covering different subject matters. It can cover crucial military or diplomatic objectives, the identity of persons who supply information of violations of law, or internal deliberations within the executive office. Neri must make his claim under one of these. However, the Court also said that when asserted, it must be asserted in specific terms. How specific must Neri be should he claim privilege under internal deliberations within the executive office? Finally, our Court has said that the presumption is against executive privilege. Neri must prove that what might asked of him is covered. Should he not therefore wait until the question is asked? The recent revelations of Rodolfo Lozada Jr., a friend of Neri, which implicated the President have heightened public interest in what Neri might say. Will he confirm or deny the revelations of his friend Lozada? Important as this is for the public, it is also important for Neri himself because some aspects of Lozadas testimony have clearly painted him black as a willing co-conspirator in the ZTE scandal.

5. THE LIMITS OF EXECUTIVE PRIVILEGE In the flurry of current investigations, every time an executive officer is summoned by an investigating body the knee jerk reaction of the executive arm is to refuse to appear on the ground of executive privilege. Is executive privilege really such a powerful tool and an all enveloping mantle that it can thwart attempts to uncover unsavory or even incriminating truth kept within the secret bosom of the powerful? Easy appeal to executive privilege emanates from E.O. 464, the gag rule discussed earlier, imposed on executive officials. National tension can subside if this E.O. is withdrawn even if its withdrawal should raise the blood pressure of some executive officials. Executive privilege is a subject which was extensively discussed by the Supreme in Senate v. Ermita. Secretary Ermita himself has distinguished himself as the trigger man of executive privilege. Significantly, however, the very first sentence of that decision says, A transparent government is one of the hallmarks of a truly republican state. But the hallmark of our state now , thanks to E.O. 464, is obfuscation and prevarication.

Neri was being summoned to testify before the Senate regarding the ZTE scandal involving an aborted multi-million dollar contract for a National Broadband Network which implicated President Gloria Macapagal Arroyo.

But what is executive privilege? In simplest terms, it is the power of the President to withhold certain types of information from the courts, the Congress, and ultimately the public. The types of information include those which are of a nature that disclosure would subvert military or diplomatic objectives, or information about the identity of persons who furnish information of violations of law, or information about internal deliberations comprising the process by which government decisions are reached. Of these types of information perhaps the trickiest ones are those about internal deliberations leading to a government decision. But the decision itself, once reached, unless it is about confidential military or diplomatic matters, can become a matter of public concern. Certainly, for instance, if a decision reached is criminal, it cannot be privileged. On this subject of internal deliberations the Court in an earlier decision had occasion to say this: On the other hand, when the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security secrets but on a general public interest in the confidentiality of his conversations, courts have declined to find in the Constitution an absolute privilege of the President against a subpoena considered essential to the enforcement of criminal laws. For this reason, the persistent silence of Secretary Neri is very disturbing. More to the point, Ermita said, Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. Put differently, our Court has said that a claim of privilege may be valid or not depending on the ground invoked to justify it and the context in which it is claimed. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting. From this the Court has concluded that it is not for one claiming executive privilege to unilaterally determine that respondents duly-issued Subpoena should be totally disregarded. One must also see executive privilege vis--vis the power of Congress to use compulsory process. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. . . . Only one executive official may be exempted from this power the President. Another point which the Court has emphasized in Ermita is that a claim of privilege must be stated with sufficient particularity to enable Congress or the court to determine its legitimacy. Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected. The lack of specificity renders an assessment of the potential harm resulting from disclosure impossible. However, 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. In conclusion, the President would do the nation a great favor if she were to withdraw Executive Order 464. Because it is justifiably seen as a serious obstacle to the discovery of truth, it is a major cause of the growing outcry of the public against the current administration. 18 February 2008 6. THE SUGGESTED COMPROMISE Like many others I have been trying to figure out what exactly came out of the Supreme Court hearing last Tuesday. The hearing was about the refusal of Romulo Neri, Jr to appear before a Senate investigation body to answer certain questions regarding the aborted National Broadband contract. For now two things at least are clear. First, it was admitted that crimes, e.g. bribery, are not covered by executive privilege. Second, it was also clear that Neris lawyer, Antonio Bautista, could not specify what

precisely was being claimed as covered by executive privilege. Neri himself, who could have clarified the matter, was not present. Apparently hoping for an orderly structure for approaching the issue, the Supreme Court has proposed as a compromise (I am not sure if the Court used the word compromise) that Neri appear on Friday but that the Senate should consider three questions Neri had objected to as already asked and answered. But how these would be deemed answered was not clear. Meanwhile, as I write this piece, there is no news yet of whether a compromise has been reached, and there remain important unresolved questions. The first question: If no compromise is reached, will the Court require Neri to appear? Neri had claimed that he had the right not to heed the Senates call. Should the Court require him to appear, it would mean that for the Court the current Senate hearing is not one where the President may prevent a Department Secretary from appearing as provided in Article VI, Section 22. Rather the Court would be saying that the current Senate investigation is one in aid of legislation under Article VI, Section 21. In Senate v. Ermita the Court had said that only the President and Justices of the Supreme Court are exempt from summons to an investigation in aid of legislation. Neri is neither President nor Justice of the Supreme Court. Should Neri still refuse to appear, in effect he would be claiming a right analogous to the right against self incrimination of one who is an accused. An accused can completely refuse to take the witness stand. But if Neri is required to appear, the Court would be saying that the situation of Neri is more analogous to the right against self-incrimination of a witness who is not an accused. A witness who is not an accused may raise the defense of right against self-incrimination only when an incriminating question is asked. He has no right to refuse to take the witness stand altogether. By analogy the Court would be saying that Neri may raise the issue of executive privilege only when a question he deems to be against executive privilege is asked. It should be remembered, moreover, that executive privilege belongs to the President and to nobody else. At most it can be claimed by the Executive Secretary by express authority of the President. Hence Neri must be able to show that after prior consultation with the President he has been instructed to claim executive privilege. Whereupon, following the teaching of Senate v. Ermita and in accordance with the tenor of the questions posed by the justices last Tuesday, he will be asked what exactly he is seeking to hide behind executive privilege. At this stage, and as already mentioned during last Tuesdays hearing, it may become necessary for the Court to examine in chambers the secret sought to be guarded by the executive for the purpose of determining whether indeed the matter can or should be legitimately kept from the eyes of the public. After all, the Senate has to be properly informed if it is to legislate intelligently, and the public generally has a constitutional right to be informed of matters of public concern. Moreover, as already admitted in last Tuesdays hearing, criminal matters are not covered by executive privilege. Where would all this leave the Senate? Two questions need to be answered. Should Neri remain adamant in refusing to appear before the Senate, will the Court uphold the right of the Senate to order the arrest of Neri? To my knowledge there is no existing Philippine jurisprudence which directly answers that question. There is American jurisprudence which recognizes the right of Congress but generally the American practice is to seek the assistance of the executive and the judiciary. Should we follow American practice? Should Neri actually appear but refuse to answer questions which the Senate might consider legitimate, can the Senate order the detention of Neri as it did in the 1950 case of Arnault v Nazareno. This, I believe, will have to be answered by the Court in accordance with the context of the current controversy. As the Court already said in Senate v. Ermita, not every claim of executive privilege is valid; every claim must judged according to the context in which it is claimed. It is evident to me that the Court sees the current case as requiring a delicate balancing of the prerogatives of President, Congress and Court in the context of separation of powers. But the three departments are not separated by impenetrable walls. Within the system of separation there is also a system of checks and balances. The Courts instrument of check and balance is its power to decide what the law is. Ultimately the Court will have to decide whether a specific claim of privilege must be honored under the rule of law. The nation awaits the Courts judgment with bated breath.

6 March 2008 7. ANATOMY OF A REJECTED COMPROMISE The Senate rejected the offer made by Chief Justice Puno to allow Secretary Neri to appear in the Senate in exchange for the Senate not asking the questions to which Neri had objected. What were these questions? There were three: (1) Did the President follow up the NBN project? (2) Were you dictated to prioritize the ZTE? (3) Did the President say to go ahead with the project after being told about alleged bribe? If Neris answers to these questions is No, he would be saying that, although he has been hard to catch, he is not hiding anything. A negative answer might be a perjury, but unless there is evidence to the contrary, perjury might be hard to prove. It would be Neris word against, e.g., Lozadas, especially since the paper trail seems nowhere to be found. On the other hand, from the fact that Neri does not want to answer these questions one would logically conclude that the truthful answers could compromise the Prsident and that he does not want to do that. Hence, when the Court asked the Senators whether they would be willing to forego the questions, how is one to read the Courts offer? There are two ways of answering that question, one charitable and the other malicious. The charitable answer is what I suggested in my article last Thursday, namely that the Court was simply looking for an orderly way of dealing with the claimed privilege in the context of separation of powers. Or, as Midas Marquez of the Supreme Court staff has put it, the Court simply wanted to gather all the different claims of privilege and tackle them all together. The malicious explanation would be that the Court did not want a head on collision with the Executive and wanted instead the help of the Senate to rescue the Court from a difficult decision. You, dear reader, can choose the explanation you want to attribute to the Court. But the fact now is that the Senate has rejected the offer. The Senates reason, as expressed by Senate President Villar, is that accepting the offer would weaken the Senate as an institution. Let us try to understand what Villar means by this. We must remember that the case filed in Court by Neri asks the Court to prevent the Senate from compelling him to appear and testify. In Villars view and that of other Senators, to accept the Courts offer would mean a waiver of its right to compel the attendance of a witness. But does the Senate have such right? Clearly in Villars view the Senate has the right based on jurisprudence which antedates even the 1935 Constitution. Villar and his colleagues, trained lawyers some of them, must be relying on the 1927 case of McGrain v. Daugherty which held that Congress has the power to authorize agents to arrest and bring before it a witness who refuses to comply with a congressional subpoena. In Villars view acceptance of the Courts offer would be a relinquishment of this power and pro tanto a diminution of congressional power with possible consequence to future Congresses. Villar and his colleagues do not wish to be responsible for the enfeeblement of the Senate. The problem with McGrain v. Daugherty, however, is that the case involved a private person and not an executive official claiming executive privilege. For that matter this authority has not been claimed by the US Congress since McGrain. Instead the practice of Congress is to declare the recalcitrant witness in contempt and to ask the Attorney General to prosecute him for refusal to heed a subpoena. We do have Article 150 of the Revised Penal Code which punishes refusal to heed a subpoena of Congress. Can you imagine the Secretary of Justice or the Ombudsman prosecuting Neri for refusal to heed the Senates call? Hard to imagine, knowing where their sympathies lie! At any rate, the Senate has thrown the ball back to the Supreme Court. For its part the Court has said that it will decide the case in a matter of weeks. I will not speculate on how the Court will decide the case. But from the way the Puno Court has been waging a campaign for the protection of rights through the writ of habeas corpus, the writ of amparo, and the

writ of habeas data, I would not want to see the Court as being willing to be an instrument for the enfeeblement of democratic institutions. What then do I hope to see? I hope see witnesses coming forward when summoned as witnesses and answering questions asked and, where proper, claiming that the President has instructed them to claim executive privilege. I hope to see such witnesses being required to elucidate on what privilege they are claiming and submitting such claim for judgment by the Court, if need be, in chambers. I am confident that the Court will be able to examine the claims presented before it and sift what is truly privileged and what is an attempt to hide wrongdoing. Among the roles of the judiciary is the exercise of the power of judicial review. The power is a twoedged sword. It can either legitimize or exorcise. Thus in the current controversy the Court will either legitimize the power of the Senate to compel a witness who refuses to heed a subpoena and in the process rebuff Neri and his superiors resistance to the Senate; or it will legitimize Neris refusal to testify and in the process clip the power of to the Senate to compel defiant witnesses. The Senate had occasion in 1950 to detain an uncooperative witness in Arnault v.Nazareno. But in that case Arnault was already before the Senate. The Neri case now is different. The Senate already had him the first time, but they let him go, and Neri now is saying Catch me, if you can. Will the Court help the Senate? 10 March 2008 8. A DANGEROUSLY CRIPPLING DECISION Without resorting to the colorful language of Governor Salceda describing the President, indeed it can be said that she is the luckiest woman. The Court could have decided that Romulo Neri should answer the three questions pregnant with cloudy forebodings: (a) Whether the President followed up the (NBN) project; (b) Whether the President directed him to prioritize the ZTE? (c) Whether the President said to go ahead and approve the project after being told about the alleged bribe? But the Court placed all three questions under executive privilege, and nothing derogatory to the woman, if there was any, as many thought, could come out. The interest of this piece, however, is not about derogatory imputations but about the scope of executive privilege. Executive privilege, as almost everyone knows by now, is the prerogative of the President to withhold certain types of information from the Congress, from the courts, and from the public. It is a constitutional right of the President which she alone can claim; but she might also direct the Executive Secretary to claim it. Thus, Secretary Ermita, presumably by authority of the President, wrote to the Senate: 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 Peoples Republic of China. Given the confidential nature in which these information were conveyed to the President, he [Neri] cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. Neri also added (also by authority of the President?) that his answers might endanger national security. The type of executive privilege claimed here is presidential communication privilege. Presidential communication is presumptively privileged; but the presumption is subject to rebuttal. Thus, whoever challenges it, must show good and valid reasons related to the public welfare. What reason did the Senate have? Recall that this was in the course of a legislative investigation occasioned by, among others, pending bills about foreign loans. The topic of foreign loans is special. It is not the sole domain of the President. Under our Constitution foreign loans may be incurred by the President but only with the prior consent of the Monetary Board and in accordance with laws passed by Congress. Hence the Senate had very good reason for finding out how the ZTE-NBN loans were handled

and how the very unique experience under it, which had attracted national interest, could contribute to legislation. When the claim of privilege is disputed by Congress, how and by whom is the dispute to be resolved? US decisions, strewn all over Justice Leonardo-De Castros ponencia, say that it is the Court that decides whether the claim of privilege has foundation. That was the reason why the Court called for the oral argument on the subject. The Court wanted to find out, without compelling Neri to reveal legitimate secrets, how Neris answer might affect diplomatic relations and national security. As Chief Justice Puno observed, The Court cannot engage in guesswork in resolving this important issue. Neri was not at the oral argument to explain. When his lawyer was asked to explain, Neris lawyer was clueless. His answer, repeated like a mantra, was I cannot fathom. One might also add that, if there was any possible cause for impairment of diplomatic relations with China, one such possible cause would have been the cancellation of the controversial contract. But no diplomatic problem arose from the cancellation. The Court could have asked for an in camera session for Neri to explain his claim within the hearing of the Court alone. Such a procedure, followed by American practice, could have enabled the Court to sift what was privileged and what was not and then to allow the revelation of what was not privileged. But the Court did not use the procedure, probably because it was already obvious from the oral argument that the claim of privilege could not be sustained. It was, to paraphrase Neris lawyer, unfathomable. But, lo and behold, the ponencia ruled that the matter was covered by executive privilege. Was it fathomed by guess work, as Puno suggested? That is the way it looks to me. The implication of this ponencia that shows no effort to look into the underlying substance of the claimed privilege is that once the claim of presidential communication privilege is claimed, no evidence is needed to support it even if there are legitimate reasons calling for disclosure. This would revolutionize the doctrine on executive privilege in a manner that can affect all other investigations. This can, for instance, hamper effective use of the recently promulgated writ of amparo and writ of habeas data. It can also cripple efforts to battle official corruption, which is a world=recognized specialty of the Philippines. But did the Neri decision establish this paralyzing and stifling doctrine? We need to count heads. Two of the nine justices concurred merely in the result without bothering to explain their concurrence. One Justice chose not to argue from executive privilege. That leaves six of the nine. Six out of fifteen do not establish a doctrine, especially since the six concurring opinions might just as well have been unwritten. The case clearly calls for a reconsideration to give the Court a chance to clarify what doctrine of executive privilege it really wishes to establish. Does the Court want to sublimate guesswork? 31 March 2008 9. AN INVITATION TO COURT GREATNESS In my last column on the Neri decision I singled out what I considered the most dangerous part of the decision, namely its treatment of executive privilege. It amounted to giving the President a free hand in deciding what matters are covered by executive privilege. It did not even bother to determine what precisely the President was claiming as covered by executive privilege. Thus it severely curtailed the power not just of the Senate but also of other investigating bodies. In addition the Court also surrendered its own authority to decide whether a claim of privilege was valid or not. It was a supine surrender to the President. There are even those who say that the Court, peopled with Arroyo appointees, is covering up for mistakes of the President. I should not go so far. But the decision certainly gives the impression that the heart has reasons which reason is unwilling to understand or even question. The least I would expect the Court to do is listen to Romulo Neri in camera and, out of what it hears, sift what is privileged and not privileged. What is truly privileged can remain hidden but what is not should

be allowed to emerge from the darkness of Hades. Unless this is done the Court will be seen as refusing to hear or reveal the truth. See no evil, hear no evil. A lesser anomaly in the decision is its rejection of the manner in which the Senate approved its show cause order to Secretary Neri. The Senate approved the order through the collection of a sufficient number of signatures. It is not for the Court to tell the Senate what its voting procedure should be. As our own Court said in 1960, Courts have declared that the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting them. And it has been said that Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body. Provided, of course, private rights are not violated. The Court too does modify or even dispense with its own rules. What is good for the goose should be good for the gander. How about the requirement that in summoning witnesses the Senate should reveal the questions it intends to ask? Here I believe that a distinction should be made between hearings under Sections 21 and 22 of Article VI. Section 22, which deals with the oversight function of Congress, imposes that requirement when Congress summons department heads. The reason for that can be gathered from the history of the provision when it first appeared in the 1935 Constitution. It was a special gesture to department heads based on the recognition that department heads are alter egos of the President. Investigations under Section 21, like the Neri hearing, are not bound by such requirement. It is true that Senate v. Ermita suggested it. But it was just that, a suggestion, even if a reasonable suggestion. Senate v. Ermita seemed to be more sensitive to the autonomy of the Senate than Neri v. Senate is. What was a suggestion in Senate v. Ermita has been made an imperative obligation by Neri v. Senate. This is another incursion into the domain of the Senate. How about the requirement of the publication of rules for hearings. There is no doubt that publication of House rules is now a constitutional requirement. This requirement was not found in the 1935 Constitution. For that matter, under the 1935 Constitution the power of legislative investigation was just recognized as an implicit power. The power first became explicit under the 1973 Constitution which also made explicit the requirement that the rights of witnesses be respected and that the rules be published. Having said that, however, we must still ask how the rules should be published. The Constitution does not say how. Certainly with the development of the technology of communications today there are various ways of effectively communicating information. Publication in the internet is one of them. But must the rules be published every time that new Senators are elected every three years? Statutes are not republished every time there is a new Congress. Neither are ordinances periodically republished. Even the Martial Law presidential decrees remain until repealed by Congress or declared unconstitutional. True, during the period between the expiration of the term of twelve senators and the swearing in of the newly elected senators the remaining twelve senators cannot do business. But why should such fact have the effect of abolishing rules previously promulgated? Such rules should disappear only if rejected by the newly formed Senate. Finally, there seems to be a tinge of colonial hangover when there is undiscriminating adherence to American jurisprudence on executive privilege. American jurisprudence on executive privilege grew not only out of the American ethos but also out of what Holmes called the necessarily grand ambiguities of the American constitutional text. The Philippine constitutional text contains explicit provisions on transparency and official accountability which do not appear in the American text. It is unfortunate if the Court should allow American jurisprudence to paper over official wrongdoing when the Philippine constitutional text as well as the Philippine public are screaming for transparency and accountability. That is an attitude understandable in Malacaang officials defending the executive ramparts; but it ill befits the Court. 14 April 2008