Shielding the President
Fr. Joaquin G. Bernas, S.J., Philippine Daily Inquirer, 11 February 2008

MANILA, Philippines - The strongest constitutional shield that protects a sitting President is executive immunity from suit. But the shield can be pierced via an assault against executive subordinates. Thus presidents throughout modern constitutional history have attempted to spread their own protective mantle over subordinates. This is done principally through the claim of executive privilege.

In recent months, illustrative of this is the sweeping “gag rule” imposed on officials of the executive department contained in EO 464. And when EO 464 is seen to be in danger of circumvention, the entire executive apparatus can be activated to physically constrain a potential witness from taking the witness stand. And when this fails, the executive arm can be converted into a hornet’s nest of exculpatory lies. Does this seem unreal to you?

For its part Congress has the inherent constitutional power to conduct hearings in aid of legislation. This inherent power, merely implicit in previous Constitutions, is now explicit in the 1987 Constitution. What happens, however, when this congressional power is confronted with the claim of executive privilege by authority of the President?

The claim of executive privilege can arise when the witness is already before an investigating body; but it can also arise when a potential witness is still deliberating whether he or she should answer congressional summons.

When executive privilege is claimed during a hearing, it is now established jurisprudence that Congress can detain a witness until he or she answers a legitimate question. We have had instances of this in our own constitutional history. But it is also established jurisprudence that in such a situation a witness can ask the Court to determine whether the question is legitimate or whether the question is a violation of executive privilege. We do have jurisprudence on what are covered by executive privilege and on the correct manner of claiming executive privilege.

It becomes more problematic, however, if a potential witness refuses to appear before an investigating body on the claim of executive privilege. What can Congress do in such a situation?

We have no clear Philippine jurisprudence on what Congress may do should a witness refuse to honor a subpoena, although in the past our Congress has ordered the arrest of a reluctant witness. There is American jurisprudence which justifies such congressional action. American jurisprudence, from where we have borrowed the law on congressional investigations, recognizes the power of Congress to punish for contempt one who refuses to comply with a subpoena issued by a congressional investigating body.

Ordinarily, however, as American commentators point out, Congress does not directly exercise this power to order the arrest but instead requests executive officials to initiate judicial contempt proceedings.

One can readily see, however, that such a procedure can make things very difficult for congressional investigators. This is what the Senate is facing today. In the first place, if it is the executive department itself that is interested in blocking the investigation, the cooperation of executive officials cannot be expected. Events in the past few days make this glaringly clear. In the second place, if Congress should bring the matter to the judicial contempt process, the provisions on the Bill of Rights on criminal procedure can come into play. In which case, Congress might as well give up the attempt.

I realize that the Senate has issued a warrant for the arrest of Romulo Neri and Neri has brought the matter to the Supreme Court. For this reason, I will not attempt to guess what the Supreme Court will or should do. All I will cite at the moment is what the Court has said in the past: namely that, if executive privilege is not claimed, “Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance.” But the Court has not specified what the “necessary legal means” are. And we are awaiting what the Court will do because Neri has claimed executive privilege.

On the matter of what may be covered by executive privilege and on the matter of how to claim executive privilege we do have definite guidelines from our Supreme Court. As the Court has said, executive privilege is not just one privilege but a cluster of privileges covering different subject matters. It can cover crucial military or diplomatic objectives, the identity of persons who supply information of violations of law, or internal deliberations within the executive office. Neri must make his claim under one of these. However, the Court also said that when asserted, it must be asserted in specific terms. How specific must Neri be should he claim privilege under “internal deliberations within the executive office”?

Finally, our Court has said that the presumption is against executive privilege. Neri must prove that what might be asked of him is covered. Should he not therefore wait until the question is asked?

The recent revelations of Rodolfo Lozada Jr. have heightened public interest in what Neri might say. Will he confirm or deny the revelations of his friend Lozada? Important as this is for the public, it is also important for Neri himself because some aspects of Lozada’s testimony have clearly painted him black as a willing co-conspirator in the ZTE scandal

Greed, panic, lies; is justice next?