Disqualification Public Officers

Question 1

Give the Rule.

Answer 1

A public officer cannot be examined during or after his or her tenure as to communications made to him or her in official confidence, when the court finds that the public interest would suffer by the disclosure.

Question 2

Requisites for its Application

Answer 2

1. The holder of the privilege is the government, acting through a public officer;
2. The communication was given to the public officer in official confidence;
3. The communication was given during or after his or her tenure; and
4. The public interest would suffer by the disclosure of the communication. (Herrera, 1999)

Question 3

Executive Privilege

Answer 3

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive’s domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications. (Senate v. Ermita, G.R. No. 169777, 20 Apr. 2006)

Question 4

What is the operational proximity test?

Answer 4

It is a privilege which protects the confidentiality of conversations that take place in the President’s performance of his official duties. The privilege may be invoked not only by the President, but also by his close advisors under the “operational proximity test.” (Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 Mar. 2008)

Question 5

What are the Requisites of Presidential Communications Privilege?

Answer 5

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 communication 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. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 Mar. 2008

Question 6

Q: The Senate sought to question Mr. Romulo Neri, a member of President Arroyo’s cabinet, on whether President Arroyo followed up the National Broadband Network project financed by Chinese loans, whether she directed him to prioritize it, and whether she directed him to approve it. Mr. Neri invoked executive privilege stating that his conversations with the president dealt with delicate and sensitive national security and diplomatic matters relating to the impact of scandal on high government officials and the possible loss of confidence by foreign investors and lenders. May Mr. Neri’s invocation of executive privilege be upheld?

Answer 6

A: YES. The Supreme Court upheld Mr. Neri’s invocation of executive privilege (more specifically the presidential communications privilege) stating that the disclosure might impair our diplomatic as well as economic relations with China (Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 Mar. 2008)

Question 7

What is Deliberative Process Privilege?

Answer 7

The privilege protects from disclosure advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and polices are formulated. (Riguera, 2020)

Written advice from variety of individuals is an important element of the government’s decisionmaking process and the interchange of advice could be stifled if courts forced the government to disclose those recommendations; thus, the privilege is intended to prevent the “chilling” of deliberative communications. (Ibid.)

The deliberative process privilege applies if its purpose is served, that is, to protect the frank exchange of ideas and opinions critical to the government’s decision-making process where disclosure would discourage such discussion in the future. (Ibid.)