The Question Hour: Executive Privilege: An Analysis on the Limits of Executive Privilege

By Virgil B. Vallecera

Executive. Legislative. Judicial. It’s been quite awhile since these branches danced in one tune: Corruption, and by virtue of extension, the ZTE-NBN fiasco. It not only proves how checks and balances work in this democratic society, but also fuels one strong notion: That Filipinos—and by virtue of extension, the three branches—are very hard to unite in one good cause, but are very easy when in it comes to scandals and sinners.

Lately, the three branches are converged Tuesday to settle the question on Executive Privilege.

The Executive privilege is the strongest constitutional mantle that shields a sitting President and his/her executive subordinates from congressional inquiries that demand disclosure of sensitive information regarded as vital to national interest. As a matter fact, this was best manifested—,damned, and dumped—in the ‘gag rule’ EO 464.

For its part, the Congress has the inherent constitutional power to conduct hearings in aid of legislation as it is an explicit inherent power in the 1987 Constitution. But what happens when this congressional power is confronted with the claim of executive privilege?

As what I’ve understood, 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.

However, as what happened to Norberto Gonzales, when executive privilege is invoked during a hearing, Congress can detain a witness until he answers a legitimate question. But in such a situation a witness also has the right to ask the Court to determine whether the question in question is legitimate.

It becomes more tricky, if a witness refuses to appear before any public inquiry on the claim of executive privilege. What can Congress do in such a situation?

Since the Constitution failed to clear things about the parameters covered by executive privilege and about how to claim executive privilege, this is where the Supreme Court comes in.

As the Court has said when it scrapped EO 464 last April 2006, executive privilege is not just one privilege but a set of privileges that range from “crucial military or diplomatic agenda, the identity of persons who supply information of violations of law, or internal deliberations within the executive office.” It is then the job for the camp of former socioeconomic and planning secretary Romulo Neri to make his claim under one of these criteria.

However, the Court also said Tuesday that when executive privilege is asserted, it must be asserted in specific terms. It’s up to Neri how specific he should be if he claims the privilege under “internal deliberations within the executive office”?

The Supreme Court has said that the presumption is against executive privilege, since there was a precedence of a crime of bribery. And court jurisprudence says that no one can assert executive privilege to cover up a crime. Associate Justice Antonio Carpio even extracted from Neri’s legal counsel Antonio Bautista that instead of having a probe on the “privileged” and freewheeling conversation between Neri and the President, the Senate should “dwell on the impact of bribery scandals.” And by this, Carpio said that such is no longer a question of presumption but a fact in itself of the commission of a crime.

The revelations of Jun Lozada have heightened public interest in what Neri might say. It’s up to Neri whether to tell the truth or not? Either way, it is also important for Neri himself to be true because some aspects of Lozada’s testimony have already painted him black.