Philippine decisions on this matter cite the landmark case U.S. v. Nixon, 418 U.S. 683 (1974), where the U.S. Supreme Court rejected U.S. President Richard Nixon’s claim of absolute executive privilege of immunity from judicial review over high-level government communications. The U.S. SC held that, against the role of the judicial branch to administer justice in criminal cases, the confidentiality of high-level government communications cannot be protected by executive privilege “absent a claim of need to protect military, diplomatic, or sensitive national security secrets”.
Thus, Nixon’s broad claim of “public interest” in the confidentiality of his communications was deemed insufficient basis to protect them as privileged and so he was compelled to surrender his audiotaped conversations and documents which were subpoenaed in connection with criminal cases (including conspiracy to defraud the U.S. and obstruction of justice) filed against some members of his administration. Days later, fearing certain impeachment, Nixon resigned.
Ah, sweet justice, where are you when we need you?
Anyway, lest we digress, the latest Philippine decision on the matter is Senate of the Philippines, et al. vs. Eduardo R. Ermita, et al. (G.R. No. 169777, April 25, 2006) where the Supreme Court (in citing U.S. v. Nixon and other similar cases) likewise acknowledged that the principle of executive privilege is not absolute and that 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 … Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.”
Thus, in striking down provisions of Executive Order No. 464 (series of 2005)[1], the SC held that -
As far as it required government officials to first secure the President’s consent prior to appearing before Congress, such was invalid as it “is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress.”
As far as it allowed government officials to invoke executive privilege on their own, such was likewise invalid. “In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is “By order of the President,” which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy.”
The SC concluded that –
“Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected.” [emphasis supplied]
So the next time any government official clams up citing executive privilege in connection with a Congressional hearing (in aid of legislation) remember that:
1) such can only be done by the President or by the Executive Secretary upon authority of the President, and
2) the reason/s why the information is deemed protected by executive privilege must be specified. It is improper for any other government official, however high-level, to invoke executive privilege on his own. And mere claims of ‘confidentiality” or “public interest” are clearly insufficient.
In time, to avoid further confusion and misuse of the principle, it is hoped that a ruling can be made stating specifically that executive privilege shall not prevail to hide crimes and misdemeanors by any government official.
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