BANKING.docx

Which may have been proposed or contemplated would be

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which may have been proposed or contemplated would be extremely impolitic, for this might have a
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pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG[38], this Court held that there is a “governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters.” In Chavez v. PEA,[39] there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief,[40] appointing,[41] pardoning,[42] and diplomatic[43] powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit: 1) The protected communication must relate to a “quintessential and non-delegable presidential power.” 2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President. 3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.[44] In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process” and, that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” Simply put, the bases are presidential communications privilege and
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