An Absolute Privilege

by Nepomuceno Malaluan

FORMER socioeconomic planning secretary Romulo Neri scored a legal
victory when the Supreme Court said the Senate could not compel him to
answer three questions that it found to be covered by executive
privilege. But transparency advocates say the public may end up the
loser should that decision become final.

A commentary by lawyer Nepomuceno Malaluan argues that the March 25,
2008 ruling makes the presidential communications privilege
practically absolute, thereby denying the public access to information
that may have profound impact on governance and legislation, among
other things. Analyzing how the majority of the justices arrived at
their conclusion, he also says it seems there were some facts
presented in the case that were not considered or evaluated,
especially those pertaining to the Senate’s need for the answers to
help it craft legislation.

Malaluan questions as well with the Court’s determination that the
questions asked of Neri lean more toward the exercise of the
legislative oversight function. He notes, “Unfortunately, while there
may be instances when an inquiry is undertaken solely in oversight,
more often the oversight character of an inquiry is inextricable from
a legislative purpose.”

“It is by being factually informed of the actual workings or
administration of existing laws, or of the ways by which wrongdoing
such as corruption is committed, that intelligent legislation may be
had, whether through the amendment of existing laws or the enactment
of new ones,” Malaluan writes. “It is because of the reality of this
inter-linkage that the Court itself, in Senate v. Ermita, recognized
the validity of facilitating oversight through compulsory process when
such oversight is performed in pursuit of legislation.”

We hope the piece will help enlighten readers on the wider
implications of the Supreme Court decision on the Neri case.


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