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THE LIMITS OF EXECUTIVE PRIVILEGE
3/29/2008 8:26:42 AM

By JUSTICE ANTONIO CARPIO

Executive privilege can never be used to hide a crime or wrongdoing

Executive privilege is the implied constitutional power of the President to withhold information requested by other branches of the government. The Constitution does not expressly grant this power to the President but courts have long recognized implied Presidential powers if “necessary and proper” in carrying out powers and functions expressly granted to the Executive under the Constitution.

As Commander-in-Chief of the Armed Forces and as Chief Executive, the President is ultimately responsible for military and national security matters affecting the nation. In the discharge of this responsibility, the President may find it necessary to withhold sensitive military and national security secrets from the Legislature or the public.

As the official in control of the nation’s foreign service by virtue of the President’s control of all executive departments, bureaus and offices, the President is the chief implementer of the foreign policy relations of the State. The President’s role as chief implementer of the State’s foreign policy is reinforced by the President’s constitutional power to negotiate and enter into treaties and international agreements.

In the discharge of this responsibility, the President may find it necessary to refuse disclosure of sensitive diplomatic secrets to the Legislature or the public. Traditionally, states have conducted diplomacy with considerable secrecy. There is every expectation that a state will not imprudently reveal secrets that its allies have shared with it.

Cabinet discussions

There is also the need to protect the confidentiality of the internal deliberations of the President with his Cabinet and advisers. To encourage candid discussions and thorough exchange of views, the President’s communications with his Cabinet and advisers need to be shielded from the glare of publicity. Otherwise, the Cabinet and other presidential advisers may be reluctant to discuss freely with the President policy issues and executive matters knowing that their discussions will be publicly disclosed, thus depriving the President of candid advice.

Executive privilege, however, is not absolute. The interest of protecting military, national security and diplomatic secrets, as well as Presidential communications, must be weighed against other constitutionally recognized interests.

There is the declared state policy of full public disclosure of all transactions involving public interest, the right of the people to information on matters of public concern, the accountability of public officers, the power of legislative inquiry, and the judicial power to secure testimonial and documentary evidence in deciding cases.

The balancing of interests – between executive privilege on one hand and the other competing constitutionally recognized interests on the other hand - is a function of the courts. The courts will have to decide the issue based on the factual circumstances of each case. This is how conflicts on executive privilege between the Executive and the Legislature, and between the Executive and the Judiciary, have been decided by the courts.

The Judiciary, however, will consider executive privilege only if the issues cannot be resolved on some other legal grounds. In conflicts between the Executive and the Legislature involving executive privilege, the Judiciary encourages negotiation between the Executive and Legislature as the preferred route of conflict resolution. Only if judicial resolution is unavoidable will courts resolve such disputes between the Executive and Legislature.




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