BY ATTY. JULIUS GREGORY B. DELGADO
ON EXECUTIVE PRIVILEGE
The nation has witnessed yet another spectacle in our Senate after top government and law enforcement officials were summoned to appear before one of its committees in an investigation probing the service by the Interpol of the Warrant of Arrest from the International Criminal Court leading to the transport of former President Rodrigo Roa Duterte to the ICC at The Netherlands. Upon being questioned what really transpired and who gave the orders to whom, the Doctrine of Executive Privilege was invoked. What is the Doctrine of Executive Privilege?
In the case of Romulo Neri vs. Senate Committee on Accountability of Public Officers and Investigations, et al., G.R. No. 180643 (March 25, 2008), citing the cases of Senate vs. Ermita, G.R. No. 169777 (April 20, 2006), Almonte vs. Vasquez, G.R. No. 95637 (March 23, 1995) and Chavez vs. Philippine Estates Authority, G.R. No. 133250 (July 9, 2002), the Supreme Court restated and summarized the said doctrine as confidential conversations and correspondence between the President and public officials which is necessary in the exercise of her executive and policy making process. The Court held that the expectation of the President to the confidentiality of his or her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. The Court further held that disclosure of conversations of the President will have a chilling effect on the President and will hamper him or her in the effective discharge of his or her duties, if he or she is not protected of her conversations.
In Neri vs. Senate Committee, supra, then National Economic Development Authority Secretary Romulo Neri refused to answer or give further information when pressed for the bribery allegation against former COMELEC Chairman Benjamin Abalos in connection with the ZTE Broadband Deal. Neri filed the case with the Supreme Court after being cited in contempt for refusing to testify further invoking the Doctrine of Executive Privilege. The Court held that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.
In Neri vs. Senate Committee, supra, the Court, citing earlier jurisprudence, held that “there are types of information which the government may withhold from the public,” that there is a “governmental; privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters”, and 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.”
Applying the above-cited jurisprudence in the recent investigation concerning the arrest of former President Rodrigo Roa Duterte, can the top officials invoke the Doctrine of Executive Privilege in the coordination and implementation of the Warrant of Arrest from the ICC coursed through the Interpol? With respect to the conversation and coordination of the President with representatives of the Interpol and with the implementing public officials, it is my opinion that it can be invoked since it is akin to diplomatic correspondence. However, with respect to the actual implementation on the ground, particularly on the question if the rights of the former President under the Rome Statute and our domestic laws have been protected, it is not a subject to executive privilege. It is my humble opinion that the Congress may propound questions to enact measures or strengthen our laws regarding implementation of Warrants of Arrest from Interpol or our extradition process.
Another question was thrown if an illegal order which tramples upon the Constitutional rights and civil liberties of a citizen is protected by this Doctrine of Executive Privilege? Or what if in the future a President calls a top election official to ensure his or her victory by rigging an election, will that be protected by the Doctrine of Executive Privilege? Let us wait for the Supreme Court to settle these questions in the future.