NEW SC BATTLE LOOMS ON CONFIDENTIALITY IN GARCI PROBE

Sen. Miriam Defensor Santiago in a privilege speech yesterday (Wednesday 5 September) said that President Arroyo may still validly invoke the constitutional doctrine of executive privilege to prevent executive and military officials from testifying at the coming Senate probe on Friday on the Garcillano wiretap.

"The Supreme Court merely invalidated EO 464. It never invalidated the constitutionally based doctrine of executive privilege," said Santiago, a constitutional law expert.

Santiago said that executive privilege is the president's power to withhold information on state secrets covering diplomatic, military, foreign relations, and other sensitive national security issues.

"In last year's case of Senate v Ermita, the Supreme Court merely declared EO 464 as invalid, because it made only an implicit claim of executive privilege. That fault could be corrected, by this time making a formal, explicit claim of privilege," the senator said.

Santiago said another reason why the Court struck down EO 464 was that it was a general or blanket prohibition on all cabinet members and other high officials from testifying in Congress.

"That fault could also be corrected, by specifying the facts which make the information a confidential state secret for the particular official," she added.

Santiago, in a virtual legal lecture, said in her best professorial manner that the landmark 1974 case of US v Nixon concerned the withholding of information from the courts.

She said the principles of the American case apply to the 2006 Philippine landmark case of Senate v Ermita, even though the latter concerns information withheld from the Senate. She also cited other US and RP cases.

"Executive privilege is not mentioned in the Philippine or US constitutions, but it is accepted as constitutional. Both countries have applied the doctrine in a line of cases," she said.

The senator said that the three Senate committees on defense; accountability; and constitutional amendments, revision of codes and laws have invited executive officials to testify. But she added that if the invitees are prevented from appearing by President Arroyo on the ground of executive privilege, the Senate will again have to petition the Supreme Court to order the president to justify the grounds for her order.

"If the president is adamant, her people could be cited for contempt, but it is possible that the corresponding warrant of arrest may not be served, since the president has the entire armed forces behind her," Santiago said.

Santiago added that in the later 2006 case of Gudani v. Senga, the Supreme Court ruled that to prevent military officials from testifying in Congress, the president does not even have to claim executive privilege, because she is already the commander-in-chief.

"Let's wait for developments. If it cannot be helped, maybe we'll see Senate v Ermita Part 2," Santiago said.