Invoking Executive Privilege is like Taking the Fifth Amendment

FOUNDING FATHER JOAQUIN BERNAS, S.J. has suddenly realized he doesn't like Senate v. Ermita, the unanimous Supreme Court decision on EO 464. (In my original Commentary when the decision was promulgated, I likened it to a Decision that King Solomon would never have made in which He offers to cut the Baby of Justice in half. And does!) But the good Fr. Bernas only obliquely expresses his displeasure in the last line.--

"In conclusion, the President would do the nation a great favor if she were to withdraw Executive Order 464. Because it is justifiably seen as a serious obstacle to the discovery of truth, it is a major cause of the growing outcry of the public against the current administration."

Why does Fr. Bernas beg the President to do the nation a great favor and withdraw the gag rule EO 464? Isn't it because the Supreme Court in Senate v. Ermita actually upheld the Doctrine of Executive Privilege as detailed in EO464?

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

1. Conversations and correspondence between the President and the public official covered by this executive order
2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged
3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements
4. Discussion in close-door Cabinet meetings
5. Matters affecting national security and public order

To be sure, the implementation of EO464 was heavy handed and clearly intended to obstruct the Right of Congress to inquire into Executive Dept. shenanigans. And the Supreme Court embellished its criticisms of these imperfections, while extending the kindliest attitude of judicial construction and advise for the next time it needs to be invoked. I early on got the impression that Senate v. Ermita is an advisory opinion and judicial tutorial for present and future Presidents on how to invoke the privilege, when, where, by whom and while bending over backwards to "construe" the innate constitutionality of EO 464. In my opinion, the Supreme Court in Senate v. Ermita has elevated the Arroyo Doctrine of Executive Privilege to the status of a Right Against Self-Incrimination by the Executive or her alter egos in Congressional inquiries.

Invoking Executive Privilege is therefore equivalent to "taking the Fifth Amendment." It is a kind of institutional right against self-incrimination. When an individual citizen for example, "takes the fifth" and refuses to answer questions, (say in a Congressional inquiry), that may tend to incriminate him, that person is exercising a sacrosanct Right to Privacy, the right not to speak. In the context of the Garci interrogations in the House, I have opined that The Right of the Public to Know Ends at the Right Against Self Incrimination. "Taking the Fifth" is clearly a boundary limit on the Public's Right to Know. In Senate v. Ermita, the Supreme Court established the point for the public that executive privilege is a right to control confidential executive information. Can the Executive and her alter egos "take the fifth" in a similar manner and refuse to answer questions by invoking executive privilege?

In the coming days, the Supreme Court will be issuing another historic decision on Executive Privilege when it rules on the petition of Romulo Neri to stay his arrest order for Contempt of the Senate. How will they rule? Well, lookit. The Supreme Court itself won't allow Newsbreak to inspect its Public Guest Logbook at Padre Faura in connection with bribery gift allegations, claiming Judicial Privilege of conidentiality similar to Executive Privilege.

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A BLOW TOO SOON? Chief Justice turned paper pundit, Artemio V. Panganiban, hails the Supreme Court for Chavez v. Gonzales, the new decision on public airing of the Garci Tapes. He keeps a very straight face while agreeing with his successor and ponente that

G.R.No. 168338 Chavez v. Gonzalez. "... in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late."

Well, to be kind, this judgment came long before the Last Judgment. But certainly too late for the Garci Recordings to have been used in the Congressional processes of impeachment, which were frustrated no less by the force of numbers and Davide's rigid Once Per Year Rule, as by the UNSETTLED LEGAL STATUS of the Garci recordings. Verily, the real power of the Supreme Court is in deciding WHEN to decide a case, if at all. After Virgilio Garcillano led the House on a merry go round wild goose chase and filed for a petition to bury the Garci Tapes as Poisoned Fruits, the Supreme Court has inexplicably left them in the Deep Freeze for two years. If indeed the challenged acts of the Justice Secretary and NTC were PATENT INVASIONS OF A CONSTITUTIONALLY PROTECTED RIGHT, why so long before striking a blow for freedom? If the Court had said, "Better late than never." there would have been less self-serving gracelessness than claiming they strike a blow for Press Freedom now, years later, at risk of doing so TOO SOON [sic!].

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Reaching deep into ancient Rome and modern France, Manuel L. Quezon III quotes Titus Livy's marvelous explanation even of our current predicament:

"We reached these last days when we could endure neither our vices nor their remedies. The result of such a paralysis is neither the extermination of vice nor the institution of any actual remedies. It results in no real peace, but instead, mass migration."

It's the lament of every failed ruling class, but one has to admire MLQ3's mournful, but infinite optimism. Read it all.

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Mon Casiple has such a touching faith in the Middle Class. Jessica Zafra ("Mistress of the Universe") is a lil more disdainful.

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BUTCH DALISAY (The Pinoy Penman) names the newest seedlings of Philippine letters...

ON BEHALF of the University of the Philippines Institute of Creative Writing (UPICW), I’m very happy to announce the names of the 12 fellows who will be joining us in Baguio this April for the 47th UP National Writers Workshop. The fellows are: (Fiction in English) Tara Sering, Luis Katigbak, Ian Casocot; (Poetry in English) Ana Maria Katigbak; Vincenz Serrano; (Creative Non-Fiction in English) Rica Bolipata Santos; (Drama in Filipino) Nicolas Pichay, Rodolfo Lana Jr.; (Poetry in Filipino) Roberto Añonuevo, Frank Cimatu; (Fiction in Filipino) Abdon Balde Jr., Allan Derain.

Guess how many are bloggers?

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Manilenyo in Davao posts the whole Harapan episode on YouTube.

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Bruce over at Finance Manila has a nice picture of the Balimbing (as the patron fruit of politics.)

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The Deep Caring blogger doesn't like the planned "Edsa-dification" of the ZTE scandal, especially by the Jesuits. I agree with his cautionary tone about "religious militants" who have agendas beyond the immediate crisis. Jesuits have a lot to answer for...ever since they mishandled another one of their own in 1896. Animo La Salle! (Oops, let's just not mention Ricky Razon!)

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Neil at A Simple Life pens a personal note to Jun Lozada, ang probinsyanong instik.

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The Spy in a Sandwich reminds budding writers of a literary contest open to all being sponsored by the UP Institute of Creative Writing. Check out the categories and the prize money:

UP GAWAD CENTENNIAL CONTEST
NOVEL or SHORT STORY COLLECTION in English P200,000.-
NOBELA o KOLEKSIYON NG MGA KATHA (sa Filipino) P200,000.-
POETRY in English P200,000.-
TULA sa Filipino P200,000.-
CREATIVE NONFICTION in English P200,000.-
MALIKHAING SANAYSAY sa Filipino P200,000.-

Deadline for submission is March 31, 2008 5pm. Still time to write that great Filipino novel or poem you've been working on since...

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A Catholic Umma? Caffeine Sparks is showing off her wicked sense of humour!

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There is always so much nostalgia and deja vu over at the Philippine Free Press Online, whose retrospective publishing of articles from a bygone era is invaluable and much appreciated. Here the real Dean Jorge Bocobo and Manuel L. Quezon struggle with Independence.