Section 28, Article II of the Philippine Constitution on the Declaration of Principles and State policies provides that

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

Section 7, Article III of the Constitution on the Bill of Rights, provides that

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

Section 22, Article VI of the Constitution provides:

The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.”

Thus, full public disclosure and the right to information may be subject to lawful limitations. This is the basis for the doctrine of executive privilege, a phrase not expressly mentioned in the Constitution.

Although E.O. 464 has been set aside by President Arroyo, the Executive Branch can still invoke executive privilege, but the good folks from Malacanang will now have to at least show up and explain why. Executive privilege is precisely that, a privilege. There has to be some justification why one should be accorded the prerogative. Cabinet officials cannot just hide behind the skirts of executive privilege forever.

Fr. Joaquin Bernas explains the nature of excutive privilege as follows:

In simplest terms, it is the power of the President to withhold certain types of information from the courts, the Congress and ultimately the public. The types of information include those which are of a nature that disclosure would subvert military or diplomatic objectives, or information about the identity of persons who furnish information of violations of law, or information about internal deliberations comprising the process by which government decisions are reached.

In the case of Senate of the Philippines vs. Eduardo Ermita (G.R. No. 169777 promulgated on April 20, 2006) , the Supreme Court has occasion to extensively discuss the doctrine of executive privilege and point out the infirmities of E.O. 464. In sum, the High Court said that the reasons for which executive privilege is being invoked must be clearly explained. All the President’s men cannot just simply refuse to appear before Congress by baldly asserting, without elaboration, that they are shielded by executive privilege.

Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted.

Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the grounds therefor.

Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible.

Richard Nixon famously tried to invoke executive privilege during the Watergate scandal. The U.S. Supreme Court, speaking through Chief Justice Warren Burger (or Borjer, as Mr. Abalos woud say) rejected Nixon’s claim to an absolute, unqualified executive privilege from the judicial process under all circumstances and ruled that executive privilege does not apply to “demonstrably relevant” evidence in criminal cases. In short, executive privilege cannot be used to cover up criminal wrongdoing.

Not much comfort for GMA there.