Executive Privileges: What are they

The Philippine Supreme court recently released its decision deciding in favor of Executive Privilege rather than the public's right to information. In its decision, SC held that the conversation between Romulo Neri and President Arroyo regarding the zTE NBN deal is covered by executive Privileges. So basically what are executive privileges. Below is a quotation from the landmark case Senate of the Philippines v. Ermita. This case discusses the constitutionality of EO 464.

SENATE OF THE PHILIPPINES V. ERMITA
Carpio Morales, J:

Executive privilege:

The phrase “executive privilege” is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States.

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.”

Executive privilege is, nonetheless, not a clear or unitary concept. It has encompassed claims of varying kinds. Tribe, in fact, comments that while it is customary to employ the phrase “executive privilege,” it may be more accurate to speak of executive privileges “since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations.”

One variety of the privilege, Tribe explains, 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.

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x” (Emphasis and underscoring supplied)

The entry in Black’s Law Dictionary on “executive privilege” is similarly instructive regarding the scope of the doctrine.

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, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive’ domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.(Emphasis and underscoring supplied)


That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.

The leading case on executive privilege in the United States is U.S. v. Nixon, decided in 1974. In issue in that case was the validity of President Nixon’s claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the President’s general interest in the confidentiality of his conversations and correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President’s powers. The Court, nonetheless, rejected the President’s claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare. Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washington’s refusal to turn over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue. However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the President’s privilege over his conversations against a congressional subpoena. Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena.

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege:

“The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x ” (Emphasis and underscoring supplied)


Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information. Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG, the Court held that this jurisdiction recognizes the common law holding that there is a “governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters.” The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority, the Court ruled that the right to information does not extend to matters recognized as “privileged information under the separation of powers,” by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. 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. 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.

R.A 9492

Republic Act No. 9492 July 25, 2007
AN ACT RATIONALIZING THE CELEBRATION OF NATIONAL HOLIDAYS AMENDING FOR THE PURPOSE SECTION 26, CHAPTER 7, BOOK I OF EXECUTIVE ORDER NO. 292, AS AMENDED, OTHERWISE KNOWN AS THE ADMINISTRATIVE CODE OF 1987
Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled:

SECTION 1. Section 26, Chapter 7, Book I of Executive Order No. 292, as amended, otherwise known as the Administrative Code of 1987, is hereby amended to read as follows:
"Sec. 26, Regular Holidays and Nationwide Special Days. ? (1) Unless otherwise modified by law, and or proclamation, the following regular holidays and special days shall be observed in the country:

a) Regular Holidays
New year's Day-January 1

Maundy Thursday-Movable date

Good Friday -Movable date

Eidul Fitr -Movable date

Araw ng Kagitingan(Bataaan and Corregidor Day)-Monday nearest April 9

Labor Day-Monday nearest May 1

Independence Day-Monday nearest June 12

National Heroes Day -Last Monday of August

Bonifacio Day -Monday nearest November 30

Christmas Day -December 25

Rizal Day-Monday nearest December 30

b) Nationwide Special Holidays:

Ninoy Aquino Day -onday nearest August 21

All Saints Day -November 1

Last Day of the Year-December 31

c) In the event the holiday falls on a Wednesday, the holiday will be observed on the Monday of the week. If the holiday falls on a Sunday, the holiday will be observed on the Monday that follows:

Provided, That for movable holidays, the President shall issue a proclamation, at least six months prior to the holiday concerned, the specific date that shall be declared as a nonworking day:

Provided, however, The Eidul Adha shall be celebrated as a regional holiday in the Autonomous Region in Muslim Mindanao."

SEC. 2. All laws, orders, presidential issuances, rules and regulations or part thereof inconsistent with this Act are hereby repealed or modified accordingly.

SEC. 3. This Act shall take effect after fifteen (15) days following its publication in at least two newspapers of general circulation.
Approved,
JOSE DE VENECIA JR.Speaker of the House of Representatives
MANNY VILLARPresident of the Senate
This Act which originated in the Senate was finally passed by the Senate and the House of Representatives on January 30, 2007 and February 7, 2007, respectively.
ROBERTO P. NAZARENOSecretary GeneralHouse of Represenatives
OSCAR G. YABESSecretary of Senate
Approved: July 25, 2007
GLORIA MACAPAGAL-ARROYOPresident of the Philippines

Freedom of Religion: Ecclesiastical affairs according to Philippine Jurisprudence

G.R. No. 124382. August 16, 1999
Pastor Dionisio Austria v. NLRC
Kapunan, J:

"An ecclesiastical affair is “one that concerns doctrine, creed, or form or worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership.Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with which attached religious significance."

Freedom of Religion: Jurisprudence

G.R. No. 119673. July 26, 1996
Iglesia ni Cristo v. Court of Appeals
Puno, J:

"Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth."