Published — July 16, 2022
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
After reading “Executive Powers of the President: Executive Privilege”, read also “What is the pardoning power of the President?”
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Executive privilege is the power of the Government to withhold information from the public, the courts, and the Congress.
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Executive privilege is a right vested in the President which she may validly exercise within her sphere of executive power.
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There are two kinds of executive privilege. First is the Presidential Communication Privilege and second is the Deliberative Process Privilege.
Executive privilege is the right of the President and high-level officials authorized by her to withhold information from Congress, from the courts, and ultimately from the public.
Jurisprudence says:
Simply put, executive privilege is “the power of the Government to withhold information from the public, the courts, and the Congress.” It is also defined as “the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” It must be stressed that executive privilege is a right vested in the President which she may validly exercise within her sphere of executive power. The President can validly invoke executive privilege to keep information from the public and even from co-equal branches of the Government, i.e., the Legislature and the Judiciary. (Romulo L. Neri vs. Senate Committee on Accountability and Public Officers and Investigations, G.R. No. 180643, March 25, 2007)
Since the executive power belongs to the President, only the President can invoke it. The Executive Secretary, as an exception to the rule, can invoke the privilege on behalf of the President.
Jurisprudence says:
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is “By order of the President,” which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. (Senate of the Philippines vs. Ermita, G.R. No. 169777, April 20, 2006)
In invoking the executive privilege, it requires a specific designation and description of its scope.
Jurisprudence says:
A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. (Senate of the Philippines vs. Ermita, G.R. No. 169777, April 20, 2006)
There are two (2) kinds of executive privilege. First is the Presidential Communication Privilege. This kind of executive privilege applies to the decision-making of the president and his staff and is rooted in the Doctrine of Separation of Powers.
Jurisprudence says:
Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. (Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002)
The second kind of executive privilege is the Deliberative Process Privilege. The deliberative process privilege is lesser in scope than the presidential communications privilege. Its coverage and duration are limited. It stands to reason that the privilege may be waived unless the information concerns national security, diplomatic relations, or public order.
Jurisprudence says:
The deliberative process privilege is a privilege that an officer of an executive department may invoke to prevent public disclosure of any information that may compromise its decision-making capability. Its purpose “rests most fundamentally on the belief that were agencies forced to operate in a fishbowl, frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer.” (Separate Concurring Opinion of Justice Leonen in the case of Department of Foreign Affairs vs. BCA International Corporation, G.R. No. 210858, June 29, 2016)
The purpose of the Deliberative Process Privilege is to prevent subjecting an agency’s decision-making process to public opinion before any definite policy action has been made.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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