i Report Online | Executive Privilege Versus Public Interest

8 MARCH 2008

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RELEVANT DOCUMENTS

RELEVANT LINKS

PCIJ BLOG | NERI AND EXECUTIVE PRIVILEGE: A TIMELINE
HAS NEDA GONE NADA?

THIS MONTH'S FEATURES — HIMIG PINOY

MAD OVER MONEY

2007 FEATURES

PUBLIC EYE

CROSSBORDER

2006 FEATURES

i R E P O R T — E X E C U T I V E P R I V I L E G E V E R S U S P U B L I C I N T E R E S T

BALANCING THE INTERESTS
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.

The purpose of the legislative inquiry is clear from Senate Resolution No. 127, which is to plug loopholes in the Build-Operate-Transfer 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, which 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 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.

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

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