HERSON S.

VALMORES
SMU-LAW
 Executive privilege pertains to the constitutional
prerogative of the President and high-level
officials of the executive department to withhold
information from Congress, the courts and the
public.

 The concept of executive privilege entails a

balancing act between the general democratic
policies on disclosure, accountability and
transparency on one hand, and the need for
presidential secrecy in the name of public
interest on the other.
COVERAGE OF EXECUTIVE PRIVILEGE (as against citizen’s
right to information)

 Matters recognized as privileged information under the

separation of powers which refers to “presidential
conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress,
are recognized as confidential
 “Information on military and diplomatic secrets,
information affecting national security, and information on
investigations of crimes by law enforcement agencies
before the prosecution of the accused, which courts have
long recognized as confidential.”
FUNDAMENTAL PRINCIPLES

1. While executive privilege could effectively ward off the

compelling power of Congress when it is in the exercise of its
power of legislative inquiry under Section 21, Article VI of the
1987 Constitution, the exemption does not extend to
department heads of the Executive Department

2. While executive privilege is a constitutional concept, it does

not grant the President the authority to altogether resist or
disregard the power of inquiry by the Legislature and by the
courts in the exercise of their respective constitutional duties.
To assert executive privilege, it must be formally claimed. A
formal claim of the privilege presupposes that an executive
official must show that the information possessed by him is of
“sensitive character” by providing “precise and certain reasons
for preserving the confidentiality of requested information.”
3. Upon the other hand, 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. A useful analogy in determining the requisite
degree of particularity would be the privilege against self-
incrimination.”

4. The requested information becomes “presumptively privileged”

once a formal claim is made. This means that the privileged
could only be overcome by showing that the interest of
disclosure outweighs the interest of secrecy.

5. In instances when the invocation of executive privilege comes

in direct conflict with other constitutionally recognized
interest, it becomes the duty of the judiciary to balance these
interests rests “in the manner that preserves the essential
function” of each Department of government.
Communications that are within the protective
ambit of executive privilege

1. Presidential communications privilege “pertains

to communications, documents or other
materials that reflect presidential decision-
making and deliberations and that the
President believes should remain confidential.”
2. Deliberative process privilege, which is of
common law origin, embraces “advisory
opinions, recommendations and deliberations
comprising part of a process by which
governmental decisions and policies are
formulated.”
Deliberative process privilege shall be upheld if

1. The protected communication must related to a

“quintessential and non-delegable presidential
power;”
2. The communication must be “received” by a close
advisor to the President pursuant to the
“operational proximity” test. These close advisors
must be one whose functions “form the core of
presidential authority involving xxx quintessential
and non-delegable presidential power;” and
3. Failure to forward a valid justification for a
limitation of the privilege.
PRESIDENTIAL COMMUNICATIONS PRIVILEGE V. DELIBERATIVE
PROCESS PRIVILEGE

1. The presidential communications privilege applies to decision-

making of the President while the deliberative process covers
the decision-making of executive officials;
2. Unlike the deliberative process privilege, the presidential
communications privilege applies to documents in their
entirety, and covers final and post-decisional materials as well
as pre-deliberative ones;
3. The presidential communications privilege is rooted in the
constitutional principle of separation of powers and the
President’s unique constitutional role; the second on common
law privilege; and
4. Congressional or judicial negation of the presidential
communications privilege is always subject to greater scrutiny
than denial of the deliberative process privilege.
NOTE:

 Executive privilege does not end after the tenure of

the President. Information covered by the privilege
remains confidential even after the expiry of the
terms of office of the President, Cabinet members
and presidential advisers. Even death does not
extinguish the confidentiality of information covered
by executive privilege. This is consistent with the
principle that executive privilege attaches to the
information and not to the person.

 Executive privilege is for the benefit of the State and

not for the benefit of the office holder. For this
reason it cannot be invoked to hide a crime.