Neri Vs. Senate - Validity of Claim To Executive Privilege

Validity of Claim To Executive Privilege

Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the three elements needed to be complied with in order for the claim to executive privilege to be valid. These are: 1.) the protected communication must relate to a quintessential and non-delegable presidential power; 2.) it must be authored, solicited, and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President; and, 3.) it may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence,” and by the unavailability of the information elsewhere by an appropriate investigating authority.

Anent the first element, executive privilege may be validly claimed by the executive department only in cases where the power subject of the legislative inquiry is expressly granted by the Constitution to the President. Such powers include the commander-in-chief, appointing, pardoning, and diplomatic powers. In light of the doctrine of separation of powers, the said powers of the President enjoy a greater degree of confidentiality than other presidential powers. In the present case, Executive Secretary Ermita claimed executive privilege on the argument that the communications elicited by the three questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process,” and that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” It is clear then that the basis of the claim is a matter related to the quintessential and non-delegable presidential power of diplomacy or foreign relations.

As to the second element, the communications were received by a close advisor of the President. Under the “operational proximity” test, petitioner Neri can be considered a close advisor, being a member of the President's Cabinet.

And as to the third element, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to such conversations. In the present case, respondent Committees failed to show a compelling or critical need for the answers to the three questions in the enactment of any law under Sec. 21, Art. VI. Instead, the questions veer more towards the exercise of the legislative oversight function under Sec. 22, Art. VI. As ruled in Senate vs. Ermita, the “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.”