Executive Privilege in the ZTE-NBN Controversy

The Senate or the House of Representatives or any of their respective committees may conduct inquiries in aid of legislation. They may also request the heads of departments to appear before them and be heard on any matter pertaining to their departments. The prerogative to request the heads of departments to appear in order to elicit information, sometimes referred to as the “question hour”, constitutes the oversight function of Congress in respect to the executive. In keeping with the system of separation of powers, Congress may only “request” and appearance is discretionary on the part of department heads. In contrast, when the inquiry is “in aid of legislation”, appearance is compulsory, with an attendant power to punish for contempt.  To be “in aid of legislation”, the inquiry must be material or necessary to the exercise of a power vested by the Constitution in Congress, such as to legislate, or to expel a member. To compel an answer, the question need not of itself be material to a proposed legislation, but only that it be material or pertinent to the subject of the inquiry.

While extensive, inquiry in aid of legislation is not absolute or unlimited. The rights of persons appearing in or affected by such inquiries, such as the rights to due process and to not be compelled to testify against one’s self, must be respected.

Executive Privilege as Exception

In September 2005, another species of limitation to Congressional power of inquiry gained prominence. Around this time, the Committee of the Senate as a whole issued invitations to various executive officials to appear as resource speakers in an inquiry on alleged overpricing and unlawful provisions of a government contract covering the North Luzon Railways (North Rail) project. The Senate Committee on National Defense and Security also issued invitations to various officials of the Armed Forces in relation to its inquiry into the alleged role of the military in election fraud, and in the wire-tapping of the President’s telephone conversations. On 28 September 2005, then Senate President Franklin Drilon received a letter from Executive Secretary Eduardo Ermita informing him that the invited executive officials cannot attend the hearings without the consent of the President, pursuant to Executive Order 464 issued by the President on the same day. A similar communication was sent by the Chief of Staff of the Armed Forces to the chairman of the Committee on National Defense and Security. Two officers of the Armed Forces who attended the scheduled hearings without the approval of the President were relieved from their military posts and made to face court martial proceedings.

Section 1 of EO 464 required all heads of departments of the Executive to secure the consent of the President prior to appearing before Congress in accordance with Article VI, Section 22 of the Constitution. Section 2 (a) gave an enumeration of classes of information between the President and public officers covered by executive privilege, and section 2 (b) gave an enumeration of public officers covered by the EO. Section 3 provided that the public officers enumerated under Section 2 (b), in addition to heads of departments as stated in Section 1, shall likewise secure prior consent of the President before appearing in Congress to ensure, among others, adherence to the rule on executive privilege.

The Senate and other parties raised the matter with the Supreme Court in the case of Senate vs. Ermita (G.R. No. 169777, 20 April 2006). In its decision, the Supreme Court held that Section 1 must be construed as limited in its application to appearances of department heads in the question hour where attendance is meant to be discretionary by Article VI, Section 22 of the Constitution. It cannot be applied to appearances of department heads in inquiries in aid of legislation under Article VI, Section 21 of the Constitution where appearance is mandatory, exempting only a valid claim of executive privilege. Sections 3 and 2 (b) were declared invalid for allowing an implied claim of privilege. The Court said that an implied claim of privilege is invalid per se since it leaves Congress in the dark on how the requested information could be classified as privileged. The effect of this is to severely frustrate the power of inquiry of Congress. Section 2 (a) was not invalidated as it merely provides guidelines, binding only on executive officials and not conclusive on the other branches of government, on what is covered by executive privilege.

From the court ruling we can distill the parameters of a claim of executive privilege as an exception to the breadth of the Congressional power of inquiry:

Executive privilege is recognized only in relation to certain types of information of a sensitive character. The Supreme Court cited various sources that point to the different types of information that may be recognized as privileged. These may include state secrets regarding military, diplomatic and other national security matters, as well as presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.

That a type of information is recognized as privileged does not mean that it would be considered privileged in all instances. In determining the validity of a claim of privilege, it is not enough to determine whether the information falls in any of the recognized privileges, it must also be asked whether the privilege should be honored in a given procedural setting. Thus, a claim thereof may be valid or not depending on the ground invoked and the context in which it is made.

Executive privilege may be invoked in relation to specific categories of information, but not to categories of persons.

A claim of privilege, being a claim of exception, the grounds therefore must be clearly asserted and not merely implied. However, Congress must not require the executive to state the reasons for the claim with such particularity as to in fact disclose the information.

In light of the highly exceptional nature of the privilege, the power to invoke the privilege is limited to the President, but may authorize the Executive Secretary to invoke the privilege on his or her behalf provided that the Executive Secretary states that it is “By order of the President”.

When an executive official being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege.

The extraordinary character of exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.

Invoking Executive Privilege in the ZTE-NBN Inquiry

The issue of executive privilege came up again in the Senate inquiry into the $329-million national broadband network (NBN) government contract with ZTE Corp. of China. The inquiry is being conducted jointly by the Blue Ribbon Committee, the Committee on Trade and Commerce, and the Committee on National Defense and Security.

In the hearing on 26 September 2007, among the witnesses who testified was former NEDA Secretary General Romulo Neri. As NEDA Secretary General, Sec. Neri was Co-Chairperson of the Investment Coordination Committee – Cabinet Committee (ICC-CC), the body tasked with reviewing and evaluating the technical, financial, economic and social merits of major capital and development projects. A key highlight in Sec. Neri’s testimony was his claim of an offer of “200” made by former COMELEC Chairman Benjamin Abalos, which he interpreted to mean a PhP200 million bribe offer for the approval of the contract with ZTE. On questioning by Senator Panfilo Lacson whether he reported the incident to the President, he said he informed the president about the offer by phone, who in turn instructed him not to take it. On further questioning later on by Senator Francis Pangilinan and Senator Loren Legarda on whether there were subsequent discussions between him and the President on the bribe offer and the approval of the ZTE contract, Sec. Neri invoked executive privilege of Presidential conversations with cabinet officials, citing Section 2 (a) of EO 464. The hearing ended without resolution on the claim of executive privilege.

On 13 November, the Senate joint committees issued a subpoena addressed to Sec. Neri ordering him to again appear on 20 November 2007. On 15 November 2007, Executive Secretary Eduardo Ermita, by order of the President, wrote Senate Blue Ribbon Committee Chairman Alan Peter Cayetano requesting that Sec. Neri’s scheduled testimony be dispensed with, invoking executive privilege. On 22 November 2007, the Senate joint committees wrote Sec. Neri requiring him to show cause why he should not be cited in contempt for failure to appear in the 20 November 2007 hearing. On 29 November 2007, in compliance to the show cause order, Sec. Neri wrote the committee, with a letter of his counsel attached, reiterating earlier position of the executive secretary and requesting that he be furnished questions in advance should new matters be asked. In addition to the letter-compliance, Sec. Neri filed on 27 December 2007 a petition for certiorari before the Supreme Court questioning the validity of the show cause order, upon the ground that his non-appearance was justified by a proper invocation of executive privilege. On 30 January 2008, the Senate joint committees issued an order citing Sec. Neri in contempt and ordered the Senate sergeant-at-arms to arrest and detain him until he appears and gives his testimony. In response, on 1 February 2008, Sec. Neri filed a supplemental petition for certiorari questioning the validity of the order of arrest, with application for a temporary restraining order or preliminary injunction. On 5 February 2008, the Supreme Court issued a status quo ante order, thereby preventing the arrest of Sec. Neri. On 4 March 2008 the Supreme Court heard oral arguments on the petition, in the course of which it proposed an interim compromise to proceed with the testimony of Sec. Neri without going into the questions for which he claimed executive privilege, while the final resolution of the petition is pending. The Senate rejected the compromise, opting instead to await the final resolution of the issues raised in the petition.

Examining the Grounds and Balancing the Interests

In Sec. Ermita’s letter to the Senate Blue Ribbon Committee dated 15 November 2007, in Sec. Neri’s and his counsel’s letters to the joint committees, and in Sec. Neri’s petition before the Supreme Court, the following are propounded as justification for the invocation of executive privilege:

(1)The questions cover “conversations and correspondence between the President and public officials which are considered executive privilege”, citing the cases of Almonte vs. Vasquez  (G.R. No. 95367, 23 May 1995) and Chavez vs. PEA (G.R. No. 133250, 9 July 2002). The confidentiality of said conversations is necessary for the protection of public interest in candid, objective and even blunt or harsh opinions in Presidential decision-making.

(2)The information sought to be disclosed might impair the country’s diplomatic as well as economic relations with the People’s Republic of China.

(3)The conversations with the President dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines.

Evaluated against the parameters set by the Supreme Court in Senate vs. Ermita, the claim of executive privilege must fail. In terms of class of information sought, they do not fall within state secrets regarding military, diplomatic and national security matters. The bare assertion that the disclosure of the information might impair the country’s diplomatic as well as economic relations with the People’s Republic of China, and that they deal with delicate and sensitive security and diplomatic matters, do not meet the standard of a proper assertion of executive privilege. Mere recital of suppositions or conclusions, without precise and compelling reasons based upon facts that can be established, is contempt of the Congressional power and obstruction of its processes.

The questions for which executive privilege was claimed, as summarized by Secretary Ermita himself, were as follows: whether the president followed-up the NBN project; whether Neri was dictated to prioritize ZTE; and whether the President said to go ahead and approve the projects after being told about the alleged bribe. The probable answers to these questions on their face cannot be reasonably linked to the enumerated categories of state secrets – thus, in Sec. Neri’s testimony in the Senate as well as in hid counsel’s answers to clarificatory questions in oral argument, no specific and direct military, diplomatic or national security  harm was cited.

What is left is the claim of privileged conversations and correspondence between the President and public officials, sometimes referred to as deliberative process or presidential communications privilege. Indeed what are asked relate to conversations that transpired between the president and one of her cabinet officials.

What must be emphasized, however, is that privileged conversations and correspondence is accorded a lower privilege than state secrets. In the case of US vs. Nixon (418 US 683, 24 July 1974) that is cited in Senate vs. Ermita, it is emphasized that “when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arise. In US vs. Nixon, the clash of interest was against the fair administration of criminal justice, specifically against a subpoena for the production of evidence in a pending criminal case.

In Sec. Neri’s assertion, the claim of a generalized interest in confidentiality of the President’s conversation must be weighed against the Congressional power of inquiry and the people’s right to information, both values also flowing from the Constitutional wellspring.

The purpose of the legislative inquiry is clear from Senate Resolution No. 127, which is to plug loopholes in the BOT law and other pertinent legislations, such as the government procurement law. The information sought to be disclosed is clearly germane and essential to the subject of the inquiry. They relate to official executive actions of the President relating to a major capital or development project, with strong allegation of fraud, that should be covered by existing statutes and regulations. What the actions were, and how they were arrived at, are information necessary for the evaluation and revision of the said statutes and regulations.

The claim of a generalized interest in confidentiality of the President’s conversation must also be weighed against the right of people to information on matters of public concern. While the conflict appears to be primarily between executive privilege and the Congressional power of inquiry, the Supreme Court in Senate vs. Ermita has noted that the people’s right to information is also involved. Thus:

To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern.  The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress — opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression.  x x x

x x x

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislature’s power of inquiry.

The interest of the people in the information being withheld by the claim of executive privilege is clearly overriding. The search for truth now reverberates across the nation, on a matter conclusively of public interest as it involves national indebtedness, disbursement of funds, adherence to laws, and public accountability and trust.

Finally, Senate vs. Ermita also emphasizes the importance of the context in which the privilege is invoked. In Sec. Neri’s case, the privilege is invoked in the context of strong direct documentary and testimonial evidence of large scale corruption. Altogether there are very clear earmarks of executive privilege being used to cover-up wrongdoing, rather than serve legitimate public purpose.

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