Prying Open Executive Privilege with a Business Lever

Article excerpt

Byline: Chief Justice Reynato S. Puno, Supreme Court of the Philippines

(Speech delivered at the ACCRALAW 35th Anniversary on November 16, 2007.)

Friends:

Let me first thank Atty. Eusebio V. Tan for inviting me to speak on the occasion of the 35th anniversary of the Angara Abello Concepcion Regala & Cruz Law Offices. I congratulate your Firm on this memorable milestone.

The theme of your celebration, "Significant Trends and Developments that Impact on Business and Industry," made me ponder for some time on a suitable topic to speak about - a topic that would be relevant to your theme, challenging in legal discourse, concerned with present-day events in our country, and though not necessarily of such interest as to keep you teetering at the edge of your seat, it would hopefully not lead you to the gates of slumberville. With this equation in mind, I thought it would be interesting and timely to speak on the subject of executive privilege and business. The conjunction "and" may seem misplaced as these two topics are not frequently seen together like carrots and peas, but there is more than meets the eye. My goal in this discourse is not to prescribe the lens with which to view specific issues falling under the topic at hand, but to make an exposition, albeit a limited one given the limited time, for us to examine the interstices of this doctrine of executive privilege and how it can affect business and industry, hence the title of this speech, "Prying Open Executive Privilege with a Business Lever."

I beg your indulgence for me to fancy your imagination for a moment and take you to the Board meeting of a giant multinational chemical company, a client of a recognized law firm. Chemical Company X produced Chemical Agent A for use of the Philippine government in its defense program. The company manufactured the chemical agent according to specifications provided by the government, but as it turned out, Chemical Agent A wrought disastrous side effects on a large population caught in the cross-fire of the government's anti-insurgency efforts, a tort class suit was filed against Company X. To prop up its defense, the company requested documents from the Secretary of Defense to show that Chemical Agent A was manufactured with nary a deviation from government specifications drawn up from years of research. Invoking executive privilege, the Secretary of Defense refused to release the documents as their disclosure would compromise confidentiality of security matters. Company X turns to its counsel, seeking a remedy to access the classified files. Does Company X face an insurmountable wall of executive privilege?

Definition, roots of the phrase, trajectory of the practice

"Executive privilege" has been defined as the right of the President and high-level executive branch officials to withhold information from Congress, the courts, and the public. Schwartz defines "executives privilege" as the "power of the Government to withhold information from the public, the courts, and the Congress."

The phrase "executive privilege" nowhere appears in the Philippine Constitution nor in the US Constitution after which our constitution was patterned. This absence is in large part the reason that the doctrine is controversial. Opponents of executive privilege go even as far as describing it as a "constitutional myth." The phrase "executive privilege" is, in fact, not even half a century old, having made its maiden appearance only in the 1958 case of Kaiser Aluminum & Chemical Co. v. United States where Justice Reed, sitting on the United States Court of Claims, wrote: "The power must lie in the courts to determine Executive Privilege in litigation... (T)he privilege for intra-departmental advice would very rarely have the importance of diplomacy or security. (emphasis supplied)"

Nonetheless, the practice of the president withholding information has been consistently observed since the diaper days of the US Republic. …