PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS PRIVILEGES

President

Official residence. The President shall have an official residence.

Salary. Determined by law. Shall not be decreased during tenure. No increase shall
take effect until after the expiration of the term of the incumbent during which such increase
was approved.

Presidential Immunity. The President as such cannot be sued, enjoying as he does

immunity from suit. But the validity of his acts can be tested by an action against other
executive officials. [Carillo vs. Marcos (1981)]

The privilege may be invoked ONLY by the President.— Immunity from suit pertains
to the President by virtue of the office and may be invoked only by the holder of the office; not
by any other person in the President's behalf. The President may waive the protection
afforded by the privilege and submit to the court's jurisdiction. [Soliven v. Makasiar (1988);
Beltran v. Makasiar (1988)]. BUT presidential decisions may be questioned before the courts
where there is grave abuse of discretion or that the President acted without or in excess of
jurisdiction.[Gloria v. Court of Appeals (2000)]

Immunity co-extensive with tenure and covers only official duties. After tenure, the
Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done
by him while he was President which were not performed in the exercise of official duties.
[Estrada v. Desierto (2001)]

Cannot be invoked by a non-sitting president. This presidential privilege of immunity

cannot be invoked by a non-sitting president even for acts committed during his or her tenure.
Courts look with disfavor upon the presidential privilege of immunity, especially when it
impedes the search for truth or impairs the vindication of a right. ([Saez vs. Macapagal-Arroyo
(2012)], on an Amparo petition.)

Exception: Suit not arising from official conduct. [Estrada v. Desierto, supra]

Presidential Privilege. The power of the government to withhold information from the
public, the courts, and the Congress. [Schwart] It is "the right of the President and high-level
executive branch officers to withhold information from Congress, the courts, and ultimately
the public." [Rozell]

Case law uses the term presidential privilege to refer to either (1) immunity from suit
(i.e. immunity from judicial processes, see Neri v. Senate, infra; accord Saez v. Macapagal-
Arroyo, supra; discussed in the previous section) or (2) executive privilege [Akbayan v.
Aquino (2008)].

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 2 Kinds of Executive Privilege in Neri v. Senate (2008)

1. Presidential Communications Privilege (President): communications are presumptively

privileged; prexy must be given freedom to explore alternatives in policy-making.
2. Deliberative Process Privilege (Executive Officials): refer to materials that comprise
part of a process by which governmental decisions and policies are formulated. This
includes diplomatic processes. [See Akbayan v. Aquino (2008)]

Varieties of Executive Privilege (US):— (1) State secrets privilege - invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is of such nature that its
disclosure would subvert crucial military or diplomatic objectives. (2) Informer’s privilege
- the privilege of the Government not to disclose the identity of persons who furnish
information of violations of law to officers charged with the enforcement of that law. (3) Generic
privilege for internal deliberations - has been said to attach to intragovernmental documents
reflecting advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. [Senate v. Ermita (2004)]

Scope: This jurisdiction recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters." Closed-door Cabinet meetings are
also a recognized limitation on the right to information.

Executive privilege is properly invoked in relation to specific categories of information

and not to categories of persons—it attaches to the information and not the person.
Only the President (and the Executive Secretary, by order of the President) can
invoke the privilege. (Senate v. Ermita, supra).

Synthesis of Jurisprudential doctrines

The following are the equisites for invoking presidential privilege:—(1) Formal claim
of privilege: For the privilege to apply there must be a formal claim of the privilege. Only the
President or the Executive Secretary (by authority of the President) can invoke the privilege;
and (2) Specificity requirement: A formal and proper claim of executive privilege requires a
specific designation and description of the documents within its scope as well as precise and
certain reasons for preserving confidentiality. Without this specificity, it is impossible for a
court to analyze the claim short of disclosure of the very thing sought to be protected. [Senate
v. Ermita, supra]

Once properly invoked, a presumption arises that it is privileged. If what is involved is

the presumptive privilege of presidential communications when invoked by the President on a
matter clearly within the domain of the Executive, the said presumption dictates that the same
be recognized and be given preference or priority, in the absence of proof of a compelling or
critical need for disclosure by the one assailing such presumption. (Neri v. Senate, G.R. No.
180843, March 25, 2008)

The following are the requisites for validity of claim needed to be complied with in
order for the claim to executive privilege to be valid. These are: — (1) Quintessential and
non-delegable presidential power- power subject of the legislative inquiry must be expressly
granted by the Constitution to the President, e.g commander-in-chief, appointing, pardoning,
and diplomatic powers; (2) Operational Proximity Test: it must be authored, 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 (i.e. officials who stand
proximate to the President, not only by reason of their function, but also by reason of their
positions in the Executive’s organizational structure); (3) No adequate need: The privilege
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. [Neri v. Senate, supra].

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