Universalist Constitutionalism in the Philippines: Restricting Executive Particularism in the Form of Executive Privilege

Abstract

In Romulo Neri v. Senate of the Republic of the Philippines (March 25,2008), the Philippine Supreme Court upheld a Cabinet member’s claim of executive privilege in a legislative inquiry involving controversial high-level corruption in government transactions, after the narrow Neri majority transplanted a test of ‘presidential communications privilege’ from American jurisprudence. The Neri majority’s abrupt importation of American jurisprudential doctrine caused the untoward expansion of the doctrine of executive privilege, with unsettling implications for universalist constitutional politics. This was an unprecedented departure from the settled pattern of Philippine constitutional jurisprudence, which, before Neri’s promulgation and in strict adherence to the universalist normative structure of the 1987 postcolonial and post-dictatorship Philippine Constitution, had generally favored a greatly-delimited sphere of unreviewable Presidential discretion. This Article applies a universalist reading of the postcolonial and post-dictatorship 1987 Philippine Constitution to a specific form of executive particularism - the doctrine of executive privilege. Executive privilege is not found anywhere in constitutional text, but exists through judicial recognition. Given this doctrinal singularity, the Philippine Supreme Court’s methodology and use of foreign sources in recognizing executive privilege should be seen as an open area for contestation and critique. Posing a universalist dialectic to the problem of executive privilege, I argue that while Presidential control of information regarding public transactions is typically fraught with the particularist justifications of “sovereign prerogative” and “national interest,” executive privilege can be scrutinized from the lens of the 1987 Constitution’s universalist ideology. In this case, universalist ideology is ascertainable from expressly-constitutionalized universalist rights to information and access to government data, as well as international legal standards on the right to information that are likewise present in the Philippine constitutional system due to the Incorporation Clause. Judicial sensitivity to universalist constitutionalism in the 1987 Constitution should therefore favor a return to restricted executive particularism, and ultimately, a more limited scope of executive privilege.