Freebie-lege

Freebie-lege | Daily Tribune

In justifying its snub of the hearing of Senator Imee Marcos’ committee a few days ago, the Palace, through the Executive Secretary (ES), invoked the doctrine of “executive privilege.”

In a letter to Senator Marcos, the ES said that those invited to the initial hearing — Cabinet secretaries, police officials and heads of government agencies — had said enough, and that whatever information Marcos’s Committee on Foreign Relations would seek to elicit further would fall within the purview of confidential matters falling under executive privilege.

Referencing the letter, the comedy show called the “Regular Press Briefing of the Presidential Communications Office” said Bersamin was not out to obstruct the Senate probe or prevent high executive branch officials from attending, but the Supreme Court had already “upheld” the doctrine of executive privilege. Thus, none of the Cabinet members and other executive officials attended the second hearing, underscoring the government’s propensity for double talk.

While the ES, as a former Chief Justice, was quite careful and nuanced about wording his letter to ensure that no statements ran afoul of the rulings of the court he once headed, PCO’s Castro was reckless, brandishing the doctrine of executive privilege as if it were a talisman the mere invocation of which would excuse those in the executive from attending Senate hearings and providing needed information in aid of legislation.

The principle of executive privilege had been exhaustively discussed in Senate v. Executive Secretary Ermita and Neri v. Blue Ribbon Committee. It would do presidential mouthpieces well to read these decided cases carefully so they would know that there is no carte blanche for withholding information from the Legislature in a matter that is smack dab within the latter’s constitutional powers.

Rather, it requires a delicate balancing act as to the power of the President not to disclose information that may compromise the candid exchange of data and discussion between and among those of his bosom confidence, the prerogatives of the Legislature to acquire facts, and the right of the people to transparency, to access information on matters of public concern, public accountability, etc. as a constitutional entitlement.

This balance the Supreme Court in Neri and other cases sought to achieve by acknowledging that while executive privilege is an inseparable adjunct of executive power, and that an invocation thereof by the Chief Executive is presumptively valid, it must nonetheless be subject to a narrow interpretation, being a derogation of the constitutional powers of the Legislature.

Thus, being a generalized claim made against a specific function of a co-equal branch, it must be applied restrictively. In Neri, the requisites by which the dispensation may be granted are limited to those wherein revelation may result in dire effects to international diplomacy or national security; communication between and among those with which the President is in close operational proximity (meaning, his alter egos), connected with the laying down of policy (as opposed to its implementation); and that it can be invoked only in cases of specific topics and not as an all-encompassing shield against all forms of inquiry.

On these points, the government may be hard-pressed. There were no diplomatic communications involved in the arrest of former President Duterte, as we had withdrawn since 2019 from the Rome Statute, the supposed treaty basis for the International Criminal Court warrant. The arrangement with Interpol, on the other hand, is not a treaty, but a mere agreement which is non-obligatory. There are no government-to-government interactions here. And, with respect to the others invited (Generals Torre and Marbil, for instance), they are not in that species of officials that enjoy “close proximity” to the President as to be advising him on policy issues.

Executive privilege is not a freebie, not a “get-out-of-jail” card for the executive. It is an instrument to strengthen the division of powers provided for in the Constitution, not a tool for its dilution.