Lawyer Nepomuceno Malaluan is a trustee of the Action for Economic Reforms and co-convenor of the Access to Information Network (ATIN).

THREE QUESTIONS would be left unanswered should the Supreme Court refuse 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 socioeconomic 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 Senator 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.

Read full text of paper (in .pdf, 5pp.).