By AMADO MACASAET

TOMORROW, March 4, the Supreme Court will deliberate en banc an issue that will determine whether the Office of the President can hide the truth or has an obligation to divulge it.

With Associate Justice Presbiterio Velasco as ponente, the court will determine whether executive privilege covers an order of the President to hide evidence of what is alleged to be a crime.

American jurisprudence says an order to commit a crime, by omission or design, is not covered by executive privilege.

Executive privilege may be necessary where the security of the state is involved. In no other occasion or instance may it be exercised.

Executive Order No. 464 which sought authority for the President not to send cabinet officials to congressional inquiries has been junked, partially anyway, by the Supreme Court together with Proclamation No. 1017 which is variously interpreted as a declaration of martial law, and the policy of Calculated Pre-emptive Response which would have allowed the police to apply brute force on those who protest the sins of government.

EO 464 is partially applicable in specified circumstances, according to the ruling of the Supreme Court. The Arroyo regime wants it absolute.

The danger here, if this issue is resolved in favor of Malacañang, is that it may have the tendency to hide the truth and further embolden an abusive president to commit crimes and get away with them, maybe even after stepping down since executive privilege, affirmed by the Court, legalizes an order to commit a crime. Or at least prevents the public, Congress included, from having access to information that affects public welfare.

The crime is made legal by executive privilege.

Granting full executive privilege has the effect of usurping the powers of Congress to conduct investigations in aid of legislation. Thus remedial legislation becomes impossible because executive privilege hides what needs legal remedies.

Congress is stopped from enacting remedial legislation if it is denied the knowledge or information on what to remedy by absolute executive privilege.

On the other hand, the President has no duty to reveal to the Senate in public hearing secrets that border on the security of the state.

The fallacy of this argument is who determines the security of the state such that the information may not be divulged by the President to Congress.

The National Security Council is supposed to guard national security but previous experience shows that denial of the information to Congress only succeeded in striking fear in the hearts of people precisely because the information about it is not fully divulged to Congress.

Reference is made to extra-judicial killings for which nobody has been held liable precisely because the Office of the President exercises executive privilege. In this case, the privilege translates into what may be described as dictatorial crimes instead of preventing them through disclosure.

But then matters like these may be discussed in executive session with the President herself and her national security adviser. Secrecy is kept.

Executive privilege was invoked by Richard M. Nixon when he agonized through the Watergate scandal.

He refused to surrender the tapes of his conversations with aides on the botched Watergate break-in and subsequent investigation, invoking executive privilege.

But confronted with erasures in the tapes and realizing that he had lost political support in Congress, he decided to resign.

Executive privilege is power that protects the state and its people if it is in the hands of a discerning Chief Executive who realizes that his or her loyalty is to the Constitution and not to his or her politics.

At present, giving the President executive privilege shields her mistakes and sins from public scrutiny.

In a manner of speaking the privilege violates people's rights to access to information.

I cannot understand why a legal team has been formed by Malacañang to determine whether EO 464 will be withdrawn.

It cannot be withdrawn because the Supreme Court so ruled that it may be judiciously exercised. It is the Court at the behest of a citizen which can keep the decision in the statue books as jurisprudence or reverse it in defense of the Constitution.

Therefore the controversy over EO 464 does not become moot and academic if it is withdrawn by Malacañang.

It is precisely because of the ruling that the privilege may be abused although Malacañang can always say it has been withdrawn. The argument is silly. It pulls the wool over the peoples eyes.

It simply cannot be withdrawn because doing so will usurp the functions of the Judiciary.

If the Court upholds the privilege, the investigative powers of a Congress are practically withdrawn.

The privilege is added to the vast powers of the Office of the President.

It is open to excessive abuse.

The question of security of the state as related to the withdrawal or denial of executive problems should be handled in another mode.

The right of the people to know cannot be subverted by the claim of security of the state.

Otherwise the President will always invoke executive privilege when a crime is committed.

The Spratly deal involves the security and sovereignty of the state. Security cannot be the reason Malacañang has not divulged the contents of the agreement with China.

Sometimes, the security of the state is better protected by making public the secrets which are claimed as threats to security.

Executive privilege can go that way.