A manufactured privilege

Blogger Not Yet Sikat very kindly linked to The Philippine Diary Project. Just last night, I posted the December 23, 1938 entry from the diary of Francis Burton Harrison, which contained a passage that struck me:

At dinner that night, the President developed a theory in favor of representative democracy instead of  “mob democratic rule.” “The people care more for good government than they do for self-government,” he asserted, adding that “the fear is that the Head of State may either exceed his powers, or abuse them by improprieties. To keep order is his main purpose.”

I bring this up because today’s Inquirer editorial, Non-negotiables, endorses the Guidelines for Communal Discernment and Action to Address the National Crisis released by the Jesuit Province. It seems to me that the Jesuits are mainly concerned with how “to keep order.” They are not alone in this.

There are those who have been critics of the Jesuit guidelines. Filomeno Sta. Ana III, in The Black Priests, goes through the pros and then conclude with the cons of the guidelines:

The S.J. Commission fears people power because it “creates a dynamic where crisis situations continue to be resolved through extra-constitutional means.” Likewise, it believes that extra-constitutional means may harm democratic institutions in the long term.

The best response to this comes from a professor in a university that is a neighbor of the S.J. headquarters. Economics professor Raul Fabella (by the way, an ex-seminarian but not of the Jesuit variety) wrote an essay titled “The Constitutional Comfort for Impunity.” Its penultimate statement: “Whether for outright deposal or for defanging, these Filipinos now believe, rather as did the English barons at Runnymede, that only mounting direct action, increasing if it must the risk of extra-constitutional tectonics, is the only language Malacañang now understands and which alone can force it to come clean on truth and justice.” Its conclusion: “Waiting for the 2010 that will be forthwith stolen is ‘waiting for Godot.'”

(You can -and should- read Fabella’s piece, in full, here: The Constitutional Comfort for Impunity).

Manuel Buencamino, in his Response to the Jesuits’ Guidelines, says the guidelines promotes an independent counsel and impeachment, both of which he characterizes as distractions (personally, I believe the former is necessary and the latter is a worthy fight that will only engage a large group of previously indifferent people now -and is only as far as they will ever go, unless the President sends a clear signal she’s not stepping down in 2010). There is one passage by Buencamino with which I wholeheartedly agree:

Section g. “Prioritize the poor.” reinforces a mistaken belief that justice etc. are luxuries only the well-fed can value: “If many Filipinos seem to be uninvolved or uninterested, it is primarily because of an overriding concern for economic survival during very hard times.”

Filipinos have become apathetic not because they are more concerned about feeding themselves but because the system is unresponsive. They have given up on beating a dead horse. But that’s just me and that’s just them.

There is one criticism of his,

Section f (“Champion active nonviolence and protect human rights…”) shackles the opposition more than it does the administration. It allows the “State” to defend itself through whatever legitimate means necessary. But if you believe the administration is illegitimate then no self-defensive action other than preventing wanton vandalism and violence is permissible.

-Which points to something I’ve noticed before, and which I addressed in a column back in December, 2007 in A limited and limiting consensus (in this passage):

If this means essentially participating in a fight with one hand tied behind your back, because the public wills it and doesn’t care if the government not only fights with both gloves on but horseshoes in its gloves, then so be it. You’re after the long term and that means recognizing that eventually, all the excuses of the tacit and overt supporters of the administration will be proven false. For example, all the yammering to “give her until 2010.” Well, you can’t rush it until 2008, 2009 or early 2010 rolls around, and they have no choice but to see that oops, she isn’t operating by that deadline, is she? This is the clear signal being sent by the revival of Charter change, after all.

At which point you have to bear in mind that people will be even more hostile because they were proven wrong, but it would be nice to be able not to wave fingers at them but to embrace them, even belatedly, as they join the fight.

And even if she steps down, at least you kept her on her toes until then, and who knows, it might just be that keeping her off balance prevented her exploring extension options. So, no regrets, either.

Therefore the Jesuit guidelines are useful in that they reveal how far a significant group are prepared to go -but also, however reluctantly, how far they are being pushed. Because while the Jesuit guidelines are addressed, it seems to me, to those who are fearful of the consequences of action, they have been made possible by those getting fed up with the inactivity that serves as a form of tacit support for the administration, on the part of the senior hierarchy or school officials. Critics of the statement focus on the guidelines being a delaying tactic: they will move the goal posts, time and again, until the magic date of June 30, 2010 has been reached, when they can then shrug and say that they had to do nothing, because things sorted themselves out.

But in the meantime, the feelings of a significant chunk of people have been soothed. The target audience of the Jesuits doesn’t involve those already in the fight, only those who are irritated but who would rather not go that extra step further: this entry by karlvendell, I think sums up the views of the constituency the Jesuits are cultivating, quite well.

My column today is A manufactured privilege.

It extensively quotes the following: “Executive Privilege,” in historian David Kaiser’s blog, History Unfolding. And Congressional Oversight: Rules of the Road Less Traveled, by Donald R. Wolfensberger. And this handy-dandy extract from the conclusion of Woodrow Wilson’s Congressional Government.

A cornucopia of readings is also available in History News Network: Executive Privilege. In particular, see What Is Executive Privilege and Why Do Presidents Like to Invoke It? by David Greenberg:

Dwight Eisenhower, despite his famous valedictory warnings against the military-industrial complex, did as much as any president to nourish this national security state. Before Ike, presidents had compiled a long list of reasons for refusing congressional requests: the safeguarding of secret foreign policy deliberations; the protection of confidences; the fear that innocents would be unfairly impugned; the need to resist partisan harassment. But they had always conceded, at least tacitly, that sometimes such requests were justified. Ike, on the other hand, sought to radically expand the purview of what his attorney general William Rogers labeled, for the first time, “executive privilege.”

In 1954, fending off one of Joe McCarthy’s fishing expeditions, Eisenhower insisted that “it is not in the public interest that any… conversations or communications, or any documents or reproductions” concerning advice from any executive branch official whatsoever be disclosed. Because he was stiffing McCarthy, most liberal opinion-makers cheered his resolve. Emboldened, the administration continued to deny congressional requests, at least 44 times from June 1955 to June 1960-more often than all other presidents combined. It was a dangerous precedent, but because of the political atmosphere, there was little outcry.

As the imperial presidency grew under John Kennedy, Lyndon Johnson, and Richard Nixon, however, outcry arose. Nixon, the first president in 120 years to face a Congress controlled wholly by the opposition, fought continually with Congress over matters of constitutional power, from his impoundment of congressionally allocated funds to his invasion of Cambodia. After the Senate began investigating Watergate, Nixon’s promiscuous use of executive privilege as a stonewalling technique became a chief point of contention. Nixon-who had earlier in his career attacked Harry Truman and Kennedy for invoking presidential prerogatives-himself used the claim to prevent his aides from testifying before Congress and then to withhold the tapes he made of his White House conversations. In an argument not heard since Jackson’s day, Nixon’s lawyers suggested that the courts had no power to compel the president to do anything at all. The president alone, they wrote, “must weigh the interest in prosecuting a wrongdoer against the interest in keeping all presidential conversations confidential.”

It’s interesting to note that Kaiser thinks the U.S. Supreme Court did the presidency an institutional favor by adopting executive privilege as a legal doctrine; Greenberg seems to think so, too:

Nixon often used to couch his defiance of Congress as a defense of “the presidency,” so as to suggest he was not just protecting his own hide. Ironically, United States v. Nixon, though it sealed Nixon’s fate, did shore up the presidency’s power in a significant way, because the court held-erroneously, it seems in retrospect-that the notion of executive privilege was “Constitutionally based.” As a result, the squabbles over executive privilege have continued, with Bill Clinton, during the Starr prosecution, invoking it with all of his delightful creativity.

What’s interesting to me is that William Rhenquist, recently appointed to the court by Nixon, abstained in the voting. In his column Motion for reconsideration yesterday, Justice Isagani Cruz points to one Justice who ought to have abstained, too:

All that is needed to change the majority ruling is to reduce it by only two votes in favor of the right side. Brion, who attended his first en banc session of the Supreme Court only on March 17, could not have participated in its deliberation on the Neri decision; hence, his concurrence should not have been counted at all. As for the other needed vote, I hope it will come from a conscientious justice who will realize that his or her allegiance is not to President Arroyo but to the Constitution.

Incidentally, in the same column, Justice Cruz says the high court has reversed itself upon a motion for reconsideration before:

In the present Neri case, the Senate will file a motion for reconsideration, which the administration even now haughtily dismisses as a useless pro forma effort that is sure to be denied. This brings to mind another case which did not follow the usual practice.

This is the case of Secretary of Justice v. Lantion, 322 SCRA 160; 343 SCRA 377, where the United States requested the extradition of Mark Jimenez, who asked the Department of Justice for information regarding the criminal charges against him. When that information was withheld, he went to the lower court, which sustained him. The Secretary of Justice then appealed to the Supreme Court, which affirmed Judge Lantion’s decision by an 8-7 vote.

The majority ruling was penned by Justice Jose Melo, with seven other justices concurring. It was received with much public outcry in support of the dissenting opinion of six other justices led by Justice Reynato Puno. When the government filed the expected motion for reconsideration, it was not denied but readily granted, to much public acclaim.

The resolution of the Court, which held that Jimenez’s right to information had to wait while the Department of Justice was still evaluating the charges against him, was supported by a 9-6 vote. Two justices of the erstwhile majority had recognized the error of their original votes and shifted them to the new majority.

More curious is former Chief Justice Panganiban’s assertion in Are the Senate investigation rules valid? that unlike the premartial law Senate, the present Senate can’t be considered a continuing :

The Senate however argues that there is no need to republish, because “Nazareno vs Arnault” (July 18, 1950) has held that, unlike the House of Representatives, the Senate was a continuing body.

Justice Carpio, however, cogently observes that “Nazareno” was decided under the 1935 Constitution when only eight of the 24 senators were elected every two years such that 16 senators constituting two-thirds of the Senate “always continued into the next Congress.” Since only a majority or 13 of the 24 members were needed to constitute a quorum and do business, the Senate was deemed a continuing body.

In contrast, under the 1987 Constitution, the term of 12 of the 24 senators expired every three years “leaving less than a majority to continue into the next Congress.” Thus, the present Senate cannot be deemed a continuing body. Ergo, the rules must be republished after the expiration of the term of 12 senators.

But then the Senate then and now has been the only chamber not subject to the replacement of its entire membership in a general election, which is of particular interest during presidential election years when half the senate remains in office while the entire slate is wiped clean from President down to councilor. It may well be that what Panganiban points out, though, was a design flaw: the intention may have been to retain the stabilizing feature of a nationally-elected chamber capable of carrying out business even in a vacuum (when no officials have been proclaimed elected), but electing the Senate in halves, instead of thirds as from 1941-1971, represents a fatal flaw.

Which only goes to show that innovations can cause more problems than they solve: it would be interesting to see why the half-and-half system of electing the Senate was put in place when originally it was never contemplated for a nationally-elected chamber.

In the end, Red’s Herring points out,

Executive privilege encourages presidential unilateralism. When used against legislative oversight, the privilege serves to veto policymaking at its very inception. Why did the majority in Neri in the effort to uphold executive privilege choose to play blind to the clear language of accountability and transparency in the Constitution?

Amando Doronila explores the consequences of the decision further in Neri decision a rollback of Philippine democracy .

Red’s Herring’s views is along the lines of what those who will be marching from Adamson University to the Supreme Court, to accompany the lawyers submitting their motion for reconsideration to the Supreme Court, will be asking, too. See this statement:

The Ruling on Executive Privilege: A Threat to the Nation

The Supreme Court ruling on executive privilege is not only a grave threat to the Senate as a co-equal body but also to our system of government and democracy in general. This danger is most clearly seen in Malacañang’s recent pronouncement that without published rules, all Senate hearings in aid of legislation, past and present, may now be considered “null and void” and that executive officials can now ignore them.

In its ruling, the Court upheld the President’s claim of executive privilege and nullified the Senate’s order citing former NEDA chief Romulo Neri in contempt for not appearing in its hearings on anomalies concerning the NBN-ZTE project.

The decision, however, is not simply about the President being right in keeping certain information from the public. Some of the reasons used by the Court in reaching its conclusions have dangerous consequences for our nation and our people.

First, the Court’s view that existing Senate rules on legislative inquiries have not been duly published disregards Senate practice, severely limits its capacity to conduct legislative inquiries, and in Malacañang’s view, even puts into question all acts of the 14th Congress, including enacted legislation. Will Malacanang now also argue that the budget law is also “null and void”?

Second, the Court’s recognition of a presumption in favor of the confidentiality of Presidential communications places the burden of overcoming it upon those seeking disclosure. This is inconsistent with the principle that all means must be used to seek for the truth, and that those who wish an exception must show the need. It violates the constitutional mandate for transparency in government and the people’s right to information on matters of public concern.

Third, the Court has expanded the coverage of executive privilege to include not only communications directly involving the President herself, but also communications involving her close advisors. The President is given advice by many known and unknown officials close to her. How far down the chain of command does the privilege extend? This expansion effectively keeps away from public view information in many areas of governance.

Finally, the Court has made it easier for the President to invoke executive privilege, for all she needs to allege is that the information demanded involves state secrets or presidential conversations. This will allow her and other officials to use executive privilege to hide misconduct in governance, in violation of the constitutional principle of accountability of public officers.

Because the government acts in a consistent pattern of concealment, the presumption in executive privilege must remain in favor of disclosure and against secrecy. Public interest in transparency, accountability and the people’s right to information must always be strongly upheld and zealously protected. We must not allow this interpretation of executive privilege to weaken our democratic institutions. The Supreme Court must reverse itself!

April 8, 2008

Watch, Pray and Act Movement

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