By NEPOMUCENO A. MALALUAN
www.pcij.org

THREE QUESTIONS will be left unanswered if the Supreme Court refuses 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 Economic 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 Sen, 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.

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.

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 have 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.

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. (To becontinued)