Lawyers Denounce Administration’s Abuse of Executive Privilege

Sec. Neri liable for perjury if he lies in Senate investigation

The claim to executive privilege by Pres. Gloria Arroyo is without constitutional basis and she should not use this amorphous doctrine in suppressing the truth behind the corruption that accompanied the NBN-ZTE transaction. Executive Order 464 has been essentially declared unconstitutional and statements by executive officials about negotiating its revocation with the CBCP is intended to mislead the bishops since EO 464 has been essentially declared unconstitutional and there is nothing to revoke on the part of the President. We believe that the essence of the CBCP statement is not the revocation of EO 464 but rather, a demand against the abuse of executive privilege and the need for Pres. Arroyo to allow her subordinates to testify in congressional investigation.

Executive privilege is not written in the Philippine Constitution but is a recognized doctrine in US jurisprudence. It must be noted it is only used if the withholding of the information is necessary to the discharged of “highly important executive responsibilities” as defined by Black’s Legal Dictionary:

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations,

Withholding of information is without legal basis

Attempts by executive officials such as Sec. Romulo Neri to withhold information is without legal or constitutional basis under EO 464 or the doctrine of executive privilege.

Firstly, Section 2 (b) and Section 3 Executive Order 464 have been declared unconstitutional by the Supreme Court in Bayan Muna vs. Ermita et al [GR 169659] and the later case of Senate vs. Ermita [GR 169777]. Section 2 (b) contains the list of officials who need presidential permission before they can attend congressional hearings. Section 3 is the meat of EO 464 because it contains the provision on the need for ‘presidential consent’ and its nullity renders the entire executive order useless to wit:

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to x x x

The Court declared both section 2(b) and section 3 invalid. The Court’s declaration on the validity of Section 1 which merely restates Section 22 of the 1987 Constitution and Section 2 (a) which only outlines the “opinion” of Pres. Arroyo on who is covered by executive privilege is of no consequence at all according to the Supreme Court and should not bind other public officials:

“In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege.”

Secondly, Executive Privilege cannot be used to hide a crime. This was the decision in the case of US vs. Nixon where the US court declared that :

“To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Article III.”

Because then Pres. Richard Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence and ordered Pres. Nixon to submit the Watergate tapes.

In fact, even US Presidents who normally use executive privilege have declared that it cannot be used to cover up a crime. The Clinton Administration announced that “[i]n circumstances involving communications relating to investigations of personal wrongdoing by government officials, it is our practice not to assert executive privilege, either in judicial proceedings or in congressional investigations and hearings.”

Similarly, the Reagan Administration policy was to refuse to invoke executive privilege when faced with allegations of illegal or unethical conduct: “[T]he privilege should not be invoked to conceal evidence of wrongdoing or criminality on the part of executive officers.”

Thirdly, the claim to executive privilege is intended to suppress the truth on corruption by public officials. EO 464 was issued during the investigation on the Northrail project. Now, executive privilege is used to derail the investigation in the NBN deal. It is not intended to shield acts of public officials from scrutiny. This doctrine which is not written in the constitution is trumped by the express constitutional provision on the power of Congress to conduct inquiries and the peoples’ right to information.

Sec. Neri cannot now belatedly claim that the privilege was invoked because it could endanger diplomatic relations with China. Overpricing or taking a commission in a government contract is a crime under Philippine laws and claims to diplomatic or military issues, even if true, cannot be used to withhold information from official investigation. NUPL warns Sec. Neri that should he lie before a Senate investigation or invent a story related to diplomatic relations with China, he is committing perjury punishable with prision correccional under Article 183 of the Revised Penal Code. Pres. Arroyo will not be in power forever, and public officials are warned that they will have to account to the people for graft and other crimes committed during Pres. Arroyo’s administration.

NUPL believes that Sec. Neri should be allowed to tell the whole truth and nothing but the truth in the Senate investigation on the ZTE-NBN anomaly or any other official tribunal. We demand that executive officials should desist from confusing the people and CBCP by ‘negotiating’ the revocation of the defunct EO 464. The essence of the peoples’ demand is that Pres. Gloria Arroyo should not use executive privilege in covering up the anomalies in the NBN ZTE deal. We ask the Supreme Court to decisively rule on the issue and confirm the right of the people to know the truth behind the ZTE-NBN anomalies. The people have the right to know and demand that all public officials who violated our laws in the transaction be immediately prosecuted. Committing a crime is a culpable act and not a privilege.

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