Executive privilege or executive folly?

First posted 00:56am (Mla time) Oct 03, 2005
By Fr. Joaquin G. Bernas, S.J.
Inquirer News Service

WITH OR WITHOUT PRAYER BEADS, THE APOLogists for Executive Order No. 464 have been devoutly reciting the mantra of executive privilege to the point of firmly believing in the ruse as constitutional dogma. But it is hard to believe that the recitation is not being done tongue in cheek.

I must admit that EO 464 is very cleverly crafted. It projects one-half of the pertinent Supreme Court decisions, but it carefully hides from the eyes of the unwary the other half. Let us unravel the obfuscation.

Begin with Chavez v. Presidential Commission on Good Government. The high court's decision in that case is cited as saying that conversations and correspondence between the President and public officials are privileged. This is because "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process." Once a firm decision, however, has been reached, like who will pay for the Venable contract, the conclusion reached is a matter of public concern no longer covered by privilege.

Incidentally, the same decision also says that "In determining whether or not a particular information is of public concern, there is no rigid test which can be applied. 'Public concern' like 'public interest' is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public." In other words, a mere assertion of executive privilege does not terminate the debate. In the end, an unbiased referee must decide.

The work of the referee is illustrated by another case cited by EO 464, Almonte v. Vasquez. Correctly again, the decision is cited as saying that military, diplomatic and other national security matters should not be divulged. The Chavez case says the same. But when you look at the other half of the Almonte case, you will see that Almonte's reliance on executive privilege was rejected as a ruse. He was told by the Court to come clean.

In the present controversy, Malacañang has relied mainly on a distorted reading of Article VI, Sec. 22. The provision says that if a head of a department wants to appear in Congress on his own initiative, he needs the approval of Congress. However, when a department head's appearance is requested by Congress, he does not need the consent of the President. But when the security of the state and public interest so require, the President should ask in writing that the matter be heard in executive session. Malacañang, however, reads Sec. 22 as a royal prerogative to prevent any executive official from appearing in Congress. The President's power of control over executive officials is over their judgment and not over their lives or movements which may be required by legitimate summons.

In all of this, one must look at the distinction between appearance under Sec. 22 and appearance under Sec. 21. In Sec. 22, Congress exercises its "oversight function" to see whether laws are being properly or effectively implemented. Here the President has a degree of participation because it involves the execution of laws. In Sec. 21, Congress conducts investigations in the exercise of its legislative function. For that purpose, the Constitution gives Congress the power to summon witnesses. The President has no authority whatsoever to block legislative investigations. In legislation, the President's role arises only when a bill is presented for approval or veto.

If an analogy must be made, the appearance of executive officers in Congress may be compared generally with the appearance of a witness in a criminal investigation. If the witness is not the accused, he may not refuse to take the witness stand. He can raise his defense only after a question is asked. Like such witness, the executive official must heed congressional summons. But when an improper question is asked, that is the time to resort to a plea of executive privilege, not earlier.

The "head of a department," who is told by the President not to appear in a Sec. 22 hearing, is similarly situated to an accused in a criminal case. Just as the accused may refuse to take the witness stand, the head of a department, prevented by the President, may refuse to heed the request of Congress.

Finally, I am also aware that legislators may be carried away by emotion or bias or showmanship in the conduct of legislative investigations under Section 21. Legislative investigations can sometimes appear to be not so much in aid of legislation as in aid of prosecution or reelection. But this is an almost inevitable consequence of two facts: first, legislators compete for election and popularity; and second, Congress has plenary legislative power, that is, Congress can legislate on any subject matter under the sun. Thus, not even the Court should try to second guess what Congress might do with the results of investigations. Investigations may be held not merely in support of pending bills but they may also be conducted in search of what bills to file. In such broad and free-wheeling process, abuses can and do take place. But such abuses are not a legitimate reason for seriously obstructing the process. There is neither wisdom nor legitimacy in burning a house to roast a piglet.