April - May 2008
2015 or bust?

An absolute privilege

THREE QUESTIONS would be left unanswered should the Supreme Court refuse to budge on its March 25, 2008 ruling in the Neri v. Senate Committee case. Equally — if not more — important, however, is the final decision’s bearing on how the executive and the court would hence be dealing with questions involving presidential communications in Congressional inquiries. This is why transparency and accountability advocates are hoping that the Supreme Court will reconsider and allow the Senate to compel disclosure over the claim of executive privilege.

The Supreme Court had held that the Senate could not compel former socioeconomic planning secretary Romulo Neri to answer three questions asked of him during the hearing on the national broadband network (NBN) deal because these are covered by executive privilege. These questions sought to discover: whether the president followed up the NBN project; whether Neri was dictated to prioritize the Chinese state firm that is more popularly known by its acronym ZTE; and whether the president said to go ahead and approve the project after being told of an interested party’s alleged attempt to bribe Neri.

A closer look at the decision may point to the conclusion that a reconsideration may indeed be justified.

The formal claim of executive privilege regarding the three questions was contained in a letter by Executive Secretary Eduardo Ermita to Senator Alan Peter Cayetano, chairman of the Senate Blue Ribbon Committee. The letter was sent in the course of the Senate inquiry into the NBN deal. The bases for the claim were presidential communications privilege and executive privilege on matters relating to diplomacy. Specifically, the letter stated in part that the questions “fall under conversations and correspondence between the President and executive officials, which are considered executive privilege.” It added, “(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.”

In previous cases, the Court has already intimated the recognition of presidential communications privilege. A quote from U.S. v. Nixon that now appears to be a definitive basis for the recognition of the privilege was first used in the case of Almonte v. Vasquez.

Transparency advocates say the public may end up the loser should the Supreme Court decision upholding executive privilege in Romulo Neri’s case become final. [photo courtesy of the Senate]

The quote, which also surfaced in Senate v. Ermita, reads: “The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.”

In addition to the presidential communications privilege, there are also information that because of their sensitive character may be allowed to be kept from public disclosure. Among the oft-cited examples are state secrets regarding military, diplomatic, and national security matters.

Three elements

In Neri v. Senate, the Court held that Ermita’s letter constitutes a proper invocation of the executive privilege. The Court also put forward three elements of the presidential communications privilege: (1) The protected communication must relate to a “quintessential and non-delegable presidential power”; (2) The communication must be authored or solicited and received by a close advisor of the president or the president himself or herself, with the advisor being in operational proximity with the president; and (3) The presidential communications privilege is a qualified privilege that may be overcome by a showing of adequate need, such that the information likely contains important evidence that is unavailable elsewhere.

The first element suggests that presidential communications are accorded a higher degree of confidentiality when its subject relates to a power that the Constitution textually grants to the president. Or as Supreme Court Chief Justice Reynato Puno noted in his dissent, the more concentrated the power is in the president, the greater the need for confidentiality.

The second element defines which officials can be covered by the privilege. It is not confined to communications authored or solicited and received by the president, but also communications authored or solicited and received by a close advisor in operational proximity to the chief executive. Thus, even communications that has not reached the president himself or herself may be covered. But there is a limit on the subject of the communications not seen by the president — as provided by the first element. That is, in addition to having involved a close advisor, it also relates to a classic and non-delegable power of the president.

The final element is perhaps the most important. It embodies the Court’s view that presidential communications are presumptively privileged, but that it may be overcome by a showing of adequate need. In other words, the privilege is not absolute.

Evaluating the presidential communications privilege claim, the Court in sum held that the first element was satisfied as the communications relate to a “quintessential and non-delegable presidential power,” i.e. the power to enter into an executive agreement with other countries. It also held that that the second element was satisfied, as the communications were “received” by a close advisor of the president, a cabinet member, who meets the “operational proximity” test. Finally, the Court held that there was no adequate showing of a compelling need that would justify the limitation of the privilege.

‘Characterizing’ communications

A minor point that may be raised against the Court decision is its characterization of the subject communications as relating to the power of the president to enter into executive agreements. In the entirety of the NBN deal, the president was performing acts relating to various functions, including borrowing and entering into executive agreements with respect to the loan from China, and approval of development projects with respect to the NBN project itself. The exercise of each of these functions may be related more directly or more remotely with the communications involved. Looking at the questions, it is evident that these relate more closely to the approval of a development project, than to entering into executive agreements. The authority over the approval of development projects is more dispersed, and not as “quintessential and non-delegable” as entering into executive agreements.

The crux of the decision, though, lies in the Court’s determination on the third element: on whether or not the Senate was able to overcome the qualified presumption that the presidential communications asked for are privileged. Here the Court was divided by a vote of nine to six, with the minority asserting that the presumption of privilege was overcome by overriding interest.

But the finding of the majority on this crucial issue, expressed in the decision penned by Justice Leonardo de Castro, is that “the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law.” The Court added that the questions instead “veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article.”

The first statement is significant because it is the showing of that critical need for the information in the performance of the Senate’s power to legislate that will hurdle the presumption of privilege and trigger the necessary balancing of the interests involved. These clashing interests are the president’s interest in the expectation of confidentiality of her conversations and correspondence, and the protection of the public interest in the candid, objective, and even blunt or harsh opinions in presidential decision-making on one hand, and the legislature’s interest for the requisite information to aid wise and effective legislation on the other.

The second statement amplifies the first; the questions, not being pursuant to a legislative intent, must be solely for the purpose of exercising the function of oversight. Oversight generally involves looking into the administration of existing laws or probing into government corruption or inefficiency. Such distinction is important because in Senate v. Ermita, the Court had said that the appearance of department heads is mandatory only in inquiries in aid of legislation. When it is only in pursuit of the oversight function, Congress may only request the appearance of department heads. Extending the argument, there is a greater right of Congress to information in inquiries in aid of legislation than in inquiries solely in oversight.

Questionable factual basis?

The determination of the Court, when it states that the record is bereft of any categorical explanation to show compelling or critical need for the answers to the questions in the enactment of a law, is open to question in terms of its factual basis. It is on record that the Senate pleaded the materiality and pertinence of Neri’s testimony to legislation. In its comment, it enumerated the bills that have been filed, and to which the inquiry was related. These include: Senate Bill 1793, which seeks to amend Republic Act No. 9184, or the procurement law; Senate Bill 1794, which seeks to amend Republic Act No. 8182, otherwise known as the Official Development Assistance Act; and Senate Bill No. 1317, entitled “An Act Mandating the Concurrence to International Agreements and Executive Agreements.”

On the materiality and importance of the information asked, the Senate emphasized that the refusal to answer effectively denies the Senate access to “useful information and consequently, (its) right to intelligently craft and propose laws to remedy what is called a dysfunctional procurement system of the government.” It added that the Senate is “hampered in intelligently studying and proposing what Congress should include in the proposed bill to include executive agreements for Senate concurrence, which agreements can be used by the Executive to circumvent the requirement of public bidding in the existing Government Procurement Reform Act.”

Also on record were the answers of the Senate counsel to clarificatory questions propounded by Chief Justice Puno. The exchange, which is quoted in Puno’s dissenting opinion, expounds on the importance that the answers to each of the questions will have on legislation.

At the very least, the Court in its decision should have passed upon and evaluated these categorical explanations, rather than broadly sweeping them aside. Such evaluation of the Senate’s showing of need was precisely what Chief Justice Puno did in his dissenting opinion, and he arrived at the conclusion that the questions were pertinent to pending legislation, that there were no effective substitute for the information sought, and that Neri’s refusal to answer the three questions would seriously impair the Senate’s function of crafting specific legislation pertaining to procurement and concurring in executive agreements based on facts and not speculation.

Legislation and oversight

The determination of the court that the questions veer more toward the exercise of the legislative oversight function is also questionable. The Court implies that a line can be drawn between an inquiry in aid of legislation and an inquiry in the exercise of oversight function. Unfortunately, while there may be instances when an inquiry is undertaken solely in oversight, more often the oversight character of an inquiry is inextricable from a legislative purpose.

It is by being factually informed of the actual workings or administration of existing laws, or of the ways by which wrongdoing such as corruption is committed, that intelligent legislation may be had, whether through the amendment of existing laws or the enactment of new ones. It is because of the reality of this inter-linkage that the Court itself, in Senate v. Ermita, recognized the validity of facilitating oversight through compulsory process when such oversight is performed in pursuit of legislation.

Legislative intent, in the face of a counter-claim that none exists or that the information sought is not material, has been sustained by the Court even under lesser showing of direct relationship than what the Senate did in the Neri case. Specifically, in the case of Arnault v. Nazareno, the Senate through a resolution created a special committee to investigate an allegedly anomalous real-estate deal involving a government body, with the duty “to determine whether the said purchase was honest, valid, and proper and whether the price involved in the deal was fair and just, the parties responsible therefore, and any other facts the Committee may deem proper in the premises.” While the intended legislation was not expressly stated in the resolution, the Court recognized the Senate’s jurisdiction to conduct the investigation, and acknowledged legislative intent.

The ruling in Arnault v. Nazareno finds inspiration from a U.S. court case, McGrain v. Daugherty. That case involved a Senate investigation into various charges of misfeasance and nonfeasance in an executive department. One question passed upon by the court was whether the purpose for which testimony was sought was to obtain information in aid of the legislative function.

The court stated: “It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice — whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers; specific instances of alleged neglect being recited.”

“Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit,” it added. “This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year.”

The court continued, “The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject-matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better; but in view of the particular subject matter was not indispensable. In the Chapman Case, where the resolution contained no avowal, this court pointed out that it plainly related to a subject-matter of which the Senate had jurisdiction, and said: ‘We cannot assume on this record that the action of the Senate was without a legitimate object;’ and also that ‘it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded.’”

Graver implication

By brushing aside, without discussion, the Senate’s pleading of need for the information in aid of legislation, and by casually concluding that the intent of the Senate was solely for oversight, the majority decision was able to stand on the mere presumption of privilege in respect to the subject presidential communications. The Court did not then have to proceed to a proper balancing of the interest embodied in keeping presidential communications secret versus the interest in adequately informing the legislative process. Neither did the majority decision have to go beyond the bare, unsubstantiated assertion of privilege based on diplomatic content.

True, the Court states that the presidential communications privilege is a qualified privilege. Yet from the way this issue was addressed, the majority may well have declared that the presidential communications privilege is absolute; that it is conclusive upon Congress, as well as upon the courts.

And so should the Court ruling be sustained, the Senate and the public would not only be forever denied the answers to three queries (unless the president waives the privilege or the same questions are asked again in another proceeding — such as a criminal trial — and the claim of executive privilege is overruled). Another result would be a situation in which executive privilege reigns supreme, not only in relation to the Congressional power of inquiry in aid of legislation, but also in other constitutional values that finds relevance in the Senate inquiry, such as transparency, accountability, and the people’s right to information.

The president, not the law, rules.

Lawyer Nepomuceno Malaluan is a trustee of the Action for Economic Reforms and co-convenor of the Access to Information Network (ATIN), of which the PCIJ is a member.