basis of the case study
ISSUE OF THE CASE
are the communications elicited by the subject three (3) questions covered by executive privilege?
Second, did the respondent committees commit grave abuse of discretion in issuing the contempt order?
BASIS OF THE CASE
I
The Communications Elicited by the Subject Three (3) Questions Covered by Executive Privilege
Whether the president followed up the (NBN) project
Were you dictated to prioritize the ZTE
Whether the president said to go ahead and approve the project after being told about the alleged bribe?
The power of congress to conduct in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation intended to affect or change. But the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the SENATE or HOUSE duly published rules of procedure and that rights of the persons appearing in or affected by such inquiries be respected.
The power extended even to the executive officials and the only way for them tobe exempted is through a valid claim of the executive privilege.
A. There is a recognized claim of executive privilege despite the revocation of EO.464
The revocation of EO.464 does not in any way diminish the concept of the privilege. This is because this concept has constitutional underpinnings. Unlike the United States which as further accorded the concept with the statutory status by enacting Freedom of Information Act and Federal Advisory Committee Act, the Philippines has retained is constitutional origination, occasionally interpret by this court.
There are two(2) kinds of executive privilege as the U.S. Court of Appeals delved
1. The presidential communication privilege and The deliberate process privilege
Presidential communications privilege applies to the decision making of the president, while the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of the separation of powers and the president’s unique role;
2. Unlike the deliberative process privilege, the presidential communication privilege applies to document in their entirely, and covers final and post-decisional materials as well as pre-deliberative ones as a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege
The communications elicited by the three questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegate power” of the president, i.e. the power to enter to an executive agreement with other countries. The authority of the president to enter into executive agreements without the concurrence of the legislature has traditionally been recognized in the Philippine jurisprudence. Second, the communications are “received” by a close advisor, being a member of president Arroyo’s cabinet. And third, there is also no adequate and showing of a compelling need that would justify the limitation of privilege and of unavailability of the information elsewhere by an appropriate investigative authority.
The third element was been further discussed. The respondents committees argue that a claim of executive privilege does not guard against possible disclosure of a crime or wrongdoing. Senate stressed that the validity of the claim of the executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made.
It is true that executive cannot, any more than the other branches of the government, in general confidentiality privilege to shield its officials and employees from the investigations by the proper governmental institutions into possible criminal wrong doing.
Respondent committees further contend that the grant of the petitioner’s claim of executive privilege violates constitutional provisions on the right of the people to inform on matters of public concern.
The right of the public information, like any other right, is subject o limitation. Section 7 Article III provides:
The right of the people to inform on matters of public concerns shall be recognized. Access to official records and to documents and the papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afford by the citizen, subject to such limitations as may be provided by the law.
B- The Claim of Executive Privilege is Properly Invoked
Whether the claim is properly invoked by the president
Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodge by the head of the department which has control over the matter. A formal and proper claim of the executive privilege requires a “precise and reason” for preserving their confidentiality.
The letter dated November 17, 2007 of the Executive Secretary Ermita satisfies the requirement. It is a formal claim of the executive privilege. The context in which executive privilege is being invoked is that the information sough to be disclosed might impair our diplomatic as well as economic relations with the foreign country.
II
The Respondent Committees Commit Grave Abuse Of Discretion In Issuing The Contempt Order
Grave abused of discretion means “such Capricious and whimsical exercise of the judgement as equivalent to lack of jurisdiction, or in other words where power is exercised in an arbitrary or despotic manner by the reason of passion or personal hostility and it must be so patent and gross as to amount to an evasion of positive duty to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.”
-Letter dated November 22, 2007- petitioner replied immediately, manifesting that it was not his intention to ignore senate hearing that he thought that the questions are covered by the executive privilege. -Order stated January 30 2008, citing him in contempt of responding committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony.
Respondents committees committed grave abuse of discretion in issuing the contempt order in view of (5) reasons
There are being legitimate claim of executive privilege, the issuance of the contempt order suffers from constitutional infirmity
Respondents committees did not comply with the requirement laid down by Senate v. Ermita
Compliance with this requirements are imperative of sections : 21&22 of Article VI of the constitution
A reading of the transcript of respondent committees’ January 30 2008 proceeding reveals that only a minority of the members of the senate Blue Ribbon Committee was present during the deliberation of Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation
The merit in the argument of the OSG that respondent committees likewise violated Section 21 of Article VI of the constitution, requiring that the inquiry be in accordance with the “duly published rules of procedure”
Respondents committees’ issuance of the contempt order is arbitrary and precipitate. It must be pointed out that the respondent Committees did not first pass upon the claim of the executive privilege and inform petitioner of their ruling. They curtly citing dismissed his explanation as “unsatisfactory” and simultaneously issued the order citing him in contempt and ordering his immediate arrest and detention
are the communications elicited by the subject three (3) questions covered by executive privilege?
Second, did the respondent committees commit grave abuse of discretion in issuing the contempt order?
BASIS OF THE CASE
I
The Communications Elicited by the Subject Three (3) Questions Covered by Executive Privilege
Whether the president followed up the (NBN) project
Were you dictated to prioritize the ZTE
Whether the president said to go ahead and approve the project after being told about the alleged bribe?
The power of congress to conduct in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation intended to affect or change. But the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the SENATE or HOUSE duly published rules of procedure and that rights of the persons appearing in or affected by such inquiries be respected.
The power extended even to the executive officials and the only way for them tobe exempted is through a valid claim of the executive privilege.
A. There is a recognized claim of executive privilege despite the revocation of EO.464
The revocation of EO.464 does not in any way diminish the concept of the privilege. This is because this concept has constitutional underpinnings. Unlike the United States which as further accorded the concept with the statutory status by enacting Freedom of Information Act and Federal Advisory Committee Act, the Philippines has retained is constitutional origination, occasionally interpret by this court.
There are two(2) kinds of executive privilege as the U.S. Court of Appeals delved
1. The presidential communication privilege and The deliberate process privilege
Presidential communications privilege applies to the decision making of the president, while the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of the separation of powers and the president’s unique role;
2. Unlike the deliberative process privilege, the presidential communication privilege applies to document in their entirely, and covers final and post-decisional materials as well as pre-deliberative ones as a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege
The communications elicited by the three questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegate power” of the president, i.e. the power to enter to an executive agreement with other countries. The authority of the president to enter into executive agreements without the concurrence of the legislature has traditionally been recognized in the Philippine jurisprudence. Second, the communications are “received” by a close advisor, being a member of president Arroyo’s cabinet. And third, there is also no adequate and showing of a compelling need that would justify the limitation of privilege and of unavailability of the information elsewhere by an appropriate investigative authority.
The third element was been further discussed. The respondents committees argue that a claim of executive privilege does not guard against possible disclosure of a crime or wrongdoing. Senate stressed that the validity of the claim of the executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made.
It is true that executive cannot, any more than the other branches of the government, in general confidentiality privilege to shield its officials and employees from the investigations by the proper governmental institutions into possible criminal wrong doing.
Respondent committees further contend that the grant of the petitioner’s claim of executive privilege violates constitutional provisions on the right of the people to inform on matters of public concern.
The right of the public information, like any other right, is subject o limitation. Section 7 Article III provides:
The right of the people to inform on matters of public concerns shall be recognized. Access to official records and to documents and the papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afford by the citizen, subject to such limitations as may be provided by the law.
B- The Claim of Executive Privilege is Properly Invoked
Whether the claim is properly invoked by the president
Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodge by the head of the department which has control over the matter. A formal and proper claim of the executive privilege requires a “precise and reason” for preserving their confidentiality.
The letter dated November 17, 2007 of the Executive Secretary Ermita satisfies the requirement. It is a formal claim of the executive privilege. The context in which executive privilege is being invoked is that the information sough to be disclosed might impair our diplomatic as well as economic relations with the foreign country.
II
The Respondent Committees Commit Grave Abuse Of Discretion In Issuing The Contempt Order
Grave abused of discretion means “such Capricious and whimsical exercise of the judgement as equivalent to lack of jurisdiction, or in other words where power is exercised in an arbitrary or despotic manner by the reason of passion or personal hostility and it must be so patent and gross as to amount to an evasion of positive duty to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.”
-Letter dated November 22, 2007- petitioner replied immediately, manifesting that it was not his intention to ignore senate hearing that he thought that the questions are covered by the executive privilege. -Order stated January 30 2008, citing him in contempt of responding committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony.
Respondents committees committed grave abuse of discretion in issuing the contempt order in view of (5) reasons
There are being legitimate claim of executive privilege, the issuance of the contempt order suffers from constitutional infirmity
Respondents committees did not comply with the requirement laid down by Senate v. Ermita
Compliance with this requirements are imperative of sections : 21&22 of Article VI of the constitution
A reading of the transcript of respondent committees’ January 30 2008 proceeding reveals that only a minority of the members of the senate Blue Ribbon Committee was present during the deliberation of Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation
The merit in the argument of the OSG that respondent committees likewise violated Section 21 of Article VI of the constitution, requiring that the inquiry be in accordance with the “duly published rules of procedure”
Respondents committees’ issuance of the contempt order is arbitrary and precipitate. It must be pointed out that the respondent Committees did not first pass upon the claim of the executive privilege and inform petitioner of their ruling. They curtly citing dismissed his explanation as “unsatisfactory” and simultaneously issued the order citing him in contempt and ordering his immediate arrest and detention