I have been surfing the net, mostly inquirer.net for relevant news, and couldn't help but blog the article of Fr. Bernas here. He is a known constitutionalist from Ateneo de Manila, and back in law school, his book is one of the "reliable" books in political law. His opinion and thoughts on certain issues that requires determination of its constitutionality and unconstitutionality has always been sought.
In his recent article, he talked about the use and abuse of the so-called "executive priviledge", as recently invoked by Secretary Neri in a hearing conducted by the Senate re: the NBN Deal. His finale should make people think - long and hard and very deeply.
here's an excerpt:
In United States v. Nixon, the Supreme Court agreed: "The valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties ... is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.... [T]he confidentiality of Presidential communications has ... constitutional underpinnings.... The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."
Like any good thing, however, executive privilege can be misused and abused. It has been. Observers give numerous examples, especially after the post-Watergate period. As one scholar noted, such examples give executive privilege a bad reputation. For this reason Presidents Ford, Carter and the older Bush avoided using the words executive privilege and protected secrecy through other means.
The current administration's aggressive use of executive privilege through EO 464 calls for a serious examination of the legitimacy of its uses. No amount of exorcism, however, will drive away executive privilege. After all, it has its legitimate place. What is needed is a proper balance. Toward this end there are certain basic guidelines that must be kept in mind.
First, in a constitutional regime that is predicated on official accountability, executive privilege must be the exception and executive transparency the rule.
Second, since executive privilege is not an unfettered power, Congress has the right and sometimes the duty to challenge presidential claims of privilege. This is especially true when the presidential claim is not based on the need to protect national security or to protect the privacy of Cabinet deliberations when needed in the public interest.
Third, both sides of the debate must recognize that there are no precise boundary lines that divide transparency and secrecy. The precise demarcation lines cannot be determined in advance. The lines must be determined through the political dynamics of separation of powers. In the end, the Court must draw the line, if need be, after an in camera hearing.
For that matter, the limits on the often abused power of legislative inquiry in aid of legislation or the oversight function of Congress are not clear either.
It is in this light that we should measure what is expected of Neri. But my sense is that he is hiding something that is illicit and explosive. If the controversy turns out to be a case of an irresistible force facing an immovable wall, Congress is not without weapons to batter the wall. Aside from its subpoena and contempt powers, Congress can also withhold support for the presidential agenda or tighten its control of government purse strings. The ultimate weapon, of course, is impeachment, or the threat thereof.
Read the full article here.
In his recent article, he talked about the use and abuse of the so-called "executive priviledge", as recently invoked by Secretary Neri in a hearing conducted by the Senate re: the NBN Deal. His finale should make people think - long and hard and very deeply.
here's an excerpt:
In United States v. Nixon, the Supreme Court agreed: "The valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties ... is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.... [T]he confidentiality of Presidential communications has ... constitutional underpinnings.... The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."
Like any good thing, however, executive privilege can be misused and abused. It has been. Observers give numerous examples, especially after the post-Watergate period. As one scholar noted, such examples give executive privilege a bad reputation. For this reason Presidents Ford, Carter and the older Bush avoided using the words executive privilege and protected secrecy through other means.
The current administration's aggressive use of executive privilege through EO 464 calls for a serious examination of the legitimacy of its uses. No amount of exorcism, however, will drive away executive privilege. After all, it has its legitimate place. What is needed is a proper balance. Toward this end there are certain basic guidelines that must be kept in mind.
First, in a constitutional regime that is predicated on official accountability, executive privilege must be the exception and executive transparency the rule.
Second, since executive privilege is not an unfettered power, Congress has the right and sometimes the duty to challenge presidential claims of privilege. This is especially true when the presidential claim is not based on the need to protect national security or to protect the privacy of Cabinet deliberations when needed in the public interest.
Third, both sides of the debate must recognize that there are no precise boundary lines that divide transparency and secrecy. The precise demarcation lines cannot be determined in advance. The lines must be determined through the political dynamics of separation of powers. In the end, the Court must draw the line, if need be, after an in camera hearing.
For that matter, the limits on the often abused power of legislative inquiry in aid of legislation or the oversight function of Congress are not clear either.
It is in this light that we should measure what is expected of Neri. But my sense is that he is hiding something that is illicit and explosive. If the controversy turns out to be a case of an irresistible force facing an immovable wall, Congress is not without weapons to batter the wall. Aside from its subpoena and contempt powers, Congress can also withhold support for the presidential agenda or tighten its control of government purse strings. The ultimate weapon, of course, is impeachment, or the threat thereof.
Read the full article here.
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