Tuesday, April 25, 2006

EO 464, the Power of Inquiry, Executive Privilege, and the Many Ways of Skinning a Cat (Part 2)

This post is a few days late, and before it becomes stale (what with the new Supreme Court decision declaring the calibrated Pre-emptive Response policy of the government as unconstitutional) I will now continue with the analysis I began a post back.

In the earlier post, I stated that the invalidation of Section 2(b) and Section 3 of EO 464 appears to be inconsequential to the Government, because the decision allows some information to be covered by executive privilege, for so long as the President deems it so. The trick, therefore, is in the classification of information, which is a prerogative of the executive.

In providing support to the dispositive portion of the decision, the Supreme Court traced the history of the legislative power of inquiry under the 1987 and 1973 Constitutions and the classic case of Arnault v. Nazareno at the time when the 1935 Constitution was in place.

The Court said that,

"As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof."

The Court further ruled that if abused, the power of inquiry is subject to judicial review. The Court then drops a bomb at the conclusion of the discussion:

"Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of 'executive privilege.'"

The Court proceeded to define the nature of executive privilege after acknowledging that the concept originated from the Americans. The Court said,

“Schwartz defines executive privilege as “the power of the Government to withhold information from the public, the courts, and the Congress.” Similarly, Rozell defines it as “the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.”

The Court then ruled that there may be three possible types of the privilege. One variety of the privilege is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer’s privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

The Court then looked into the US vs. Nixon case and several leading Philippine decisions on executive privilege before concluding that executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character.

The Court said,

“While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. “

When I got to this part, I was grinning, because it declared that the presumption is that all information is public in character, and executive secrecy is not favored.

Then the Court proceeded to dissect Section 1 of EO 464 and distinguished between the power of inquiry under the Question Hour and the power of inquiry in aid of legislation. The Court rummaged through the records of the deliberations of the Constitutional Commission (CONCOM), and found that the CONCOM willed it so that the power of inquiry during the Question Hour may not be enforced against heads of departments without the consent of the President. The rule, however, is different with respect to the exercise of the power of inquiry in aid of legislation. The Court said, the President’s consent is not required for inquiries in aid of legislation, and only a claim of executive privilege by the President or the Executive Secretary may excuse the non-appearance of the heads of department.

The Court then proceeded with the analysis that whenever EO 464 is invoked by an executive official, there is actually an implied assertion that the official is in possession of information that is privileged in character. Then, at this point, the Court struck this implied assertion as invalid, because executive privilege, by its nature should be concretely asserted. The Court said,

"A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected."

Then the Court swung back in favor of Executive Privilege by declaring that Congress, however, "must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect... To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.

And this is the operative line that creative legal minds can exploit to be able to invoke executive privilege as a means to escape public accountability: injurious disclosure. Injurious to whom? The incumbent President or the State? As Dean Jorge Bocobo, puts it, the Supreme Court took away the bullets but left the gun in the hands of the President. Already I can hear the Executive Secretary claiming that continuing the Senate inquiry on the Venable Contract would result in injurious disclosure of state secrets. The same is true with the inquiry on the military participation in the cheating during the 2004 presidential elections. The Executive Secretary could claim that it would result in injurious disclosure that would weaken the morale of the military as an institution. The same spin could be made on the investigation on the fertilizer scam. Of course, the Supreme Court said that it has the power to review whether the assertion of executive privilege is proper. But the question is will the Supreme Court's exercise of the power of judicial review ever be timely?

There are many ways of skinning a cat, as the cliche goes. While for now the heads of department may not simply invoke EO 464 to evade inquiries in aid of legislation, they could still evade them by claiming 'executive privilege' and "injurious disclosure". It's all a matter of legal semantics. Instead of an appeal, I would expect the Government to revise EO 464, and integrate the catch phrase: "injurious disclosure" in the guidelines. For this reason, I do not expect any Senate inquiriy on the Venable Contract, military participation in 2004 elections, and other investigations stalled by EO 464 to reopen for now or forever.

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