Executive Privilege and the need for an ASEAN Court of Human Rights

In a decision dated 04 September 2008, the Philippine Supreme Court en banc, denied the Motion for Reconsideration filed by the Respondents in the case Romulo Neri v Senate Committee on Accountability, et al., G.R No. 180643. The Supreme Court upheld the argument of the petitioner Neri regarding Executive Privilege, thus giving him legal basis not to answer specific questions raised during the respondents' Senate committee hearing involving the allegedly anomalous government contract with a Chinese company Zhong Xing Telecommunications Equipment [ZTE] Limited for a national broadband service in the Philippines. Thus speak the highest court of the land.

As it always had been in these islands we call our beloved Philippines, the decision elicited varying degrees of reactions from lawyers and cause-oriented groups, among others, ranging from utter disbelief and vehement frustration to complete resignation. Some writers even appear to have derided the majesty and impartiality of the Justices of the Supreme Court by alluding to the fact that the justices who upheld petitioner's claim for executive privilege in the majority decision were appointees of the President Arroyo to the court, conveniently excluding the other fact that some of those who dissented to the majority decision were also appointed to the highest court by the same president.

Since classes in the graduate schools in the UK are yet less than two weeks away, I had the time, occasion and enthusiasm to read the full account of the main case decision as well as the decision on the motion for reconsideration. A lot of issues were involved in the reports but I must say I thoroughly enjoyed the experience.

And let me gingerly jump with trepidation into the cauldron of opinions about this matter.

First, the contract for national broadband network project negotiated by the Philippine government and the ZTE Ltd. is in the nature of a private contract considering that ZTE Ltd. is a publicly listed company. In other words, the negotiation was not between two sovereign states but between a government and a private company. Is it not a basic principle in Philippine constitutional law that a government takes on the mantle of a private individual when it enters into binding private contracts with private entities such as ZTE Ltd? Should executive privilege apply in this context especially with allegations of impropriety amounting to criminal acts?

But then, if indeed there were no underhanded negotiations in the botched broadband deal, why hide behind the skirt of the privilege? Why refuse open disclosure? It would have improved the otherwise battered image of the presidency and regain precious ground in the battle for the people's rapidly diminishing trust in the current dispensation and its leaders. All it does now is to fuel the smoldering ambers of suspicions and insinuations that something "fishy" indeed happened and only recourse to technical defences could exculpate responsible individuals from the bludgeoning hammer of truth.

Secondly, the three questions squarely raised by the Senate committee that led to the issue of executive privilege are, with due respect, a bit cheeky. It was like "taking the bait to the quarry". The motive to connect the president's office to the allegations of impropriety was all too obvious and reckless that any senior government official asked the same questions would wantonly shout, "mother!" and hide behind the shield of Executive Privilege. Incidentally, the Court categorically states the case was not about the right of the people to a full disclosure of public information but the right of the respondent committee to obtain information for the purpose of legislation.

Would the issue in this case be decided in the same way if instead of the Senate a taxpayer files a petition for the full disclosure of the facts surrounding the contract on the constitutional right to access to public information?

A petition for the disclosure of the circumstances confounding the issues founded on human rights would certainly further human rights jurisprudence in the country and test the waters as it were.

Executive Privilege draws its breath of life from the Doctrine of Separation of Powers in Constitutional Law. Derived from United States jurisprudence, it is a right claimed by the President of the United States and other officials of the executive branch of the government to withhold from Congress, the courts or individuals, information that has been requested or subpoenaed. It is also invoked to prevent executive employees or officials from testifying in Congressional hearings. The privilege was adopted and applied in Philippine jurisprudence in several landmark cases.

But is the concept of Executive Privilege absolute? I dare submit a position- that the answer depends on the kind of Supreme Court Justices holding court and deliberating on the issue. It is a question that appeals not only to their legal erudition but also to their individual conscience.

Situations like this where a decision of the Supreme Court leaves a bitter taste in the mouth makes more pronounced the need for an ASEAN Court of Human Rights. The ASEAN states are way behind other regions of the world in regard to human rights development and enforcement. In Europe, the Americas, and Africa already exist regional conventions on human rights providing an avenue for disgruntled parties to appeal decisions of state courts.

There have been several endeavours purposely to create such a convention. The Working Group for an ASEAN Rights Mechanism is a very good example. But there still is a lot of work to do.