Is the Executive Privilege Rule absolute?

By Atty. Eduardo T. Reyes III

A recent edict handed down by President Rodrigo Duterte prohibiting cabinet and executive officials from attending the Senate investigation in aid of legislation relative to the government’s transactions with Pharmally Pharmaceutical Corporation, came under fire when Senator Franklin Drilon opined that it is against the constitution. (While writing this column, news came out that some Pharmally executives were arrested for contempt for ignoring a subpoena issued by the Senate. This is still a developing story).

Across the globe, Steve Bannon who is an adviser to former President Donald Trump also invoked executive privilege to ward off a subpoena stemming from a congressional inquiry by the House Select Committee that is investigating the January 6^th insurrection. For this, Bannon was indicted by a federal grand jury for contempt of Congress.

The commonality in the tale of the two governments is the invocation of the Executive Privilege Rule.

Executive Privilege is envisaged both as Constitutional law and Evidential law concepts.

As a law on Evidence

Sec. 24, Rule 130, of the 2019 REVISED RULES ON EVIDENCE (A.M. No. 19-08-15-SC) states that:

“Sec. 24. Disqualification by reason of privileged communications. –

The following persons cannot testify as to matters learned in confidence in the following cases: 

X x x

(e) A public officer cannot be examined during or after his or her tenure as to communications made to him or her in official confidence, when the court finds that the public interest would suffer by the disclosure.” 

What undergirds Executive Privilege is that:  “It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its law; and a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any other person without the permission of the government, the evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications”.(Evidence by Francisco, 1997 Edition). 

As a Constitutional Law precept 

                While the Concept of EXECUTIVE PRIVILEGE (also known as PRESIDENTIAL COMMUNICATIONS PRIVILEGE) embraces in its wingspan, the following:

In “Chavez v. PCGG (299 SCRA 744) it was ruled that there is a privilege against the disclosure on certain matters involving state secrets regarding the following: (a) Military; (b) diplomatic; and, ( c ) other national security matters.

Too, in “Chavez v. Public Estates Authority (384 SCRA 152), it was similarly held that secrets involving military, diplomatic, and national security matters, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information. The right to information does not also extend to presidential conversations, correspondences, and discussions in closed-door cabinet meetings.”

“The invocation involves a delicate “balancing-act” with the Constitutional right of the “people to information on matters of public concern and guarantees access to official records, documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, subject to such limitations as may be provided by law”. (Sec. 7, Art. III [Bill of Rights], Constitution of the Philippines).

 “Chavez v. PCGG (299 SCRA 744) further explains that “the Constitutional right to information includes official information on ongoing negotiations before a final contract, such information does not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national interest. The matters falling under these exceptions, according to the Court, cannot be disclosed even if they constitute definite propositions. Since diplomatic negotiations enjoy a presumptive privilege against disclosure, petitioners need to sufficiently show the existence of a public interest sufficient to overcome the privilege. The court concluded with a finding that the petitioners have failed to present a “sufficient showing of need” in their arguments”.

“Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution. The confidentiality of the President’s conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers.”

But it must be emphasized that Executive Privilege is not absolute. “In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is necessary to resolve the competing interests in a manner that would preserve the essential functions of each branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (ROMULO L. NERI v. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, G.R. No. 180643             September 4, 2008).

To be sure, Executive Privilege cannot be invoked as a shield against investigation and prosecution of a crime. No such privilege can downplay the importance and significance that public interest demands especially when public funds are involved.

(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).