Senate of the Philippines v.

Ermita (2006)

Ponente: CARPIO MORALES, J | G.R. No. 169777 | April 20, 2006

TOPICS: SEPARATION OF POWERS, JUDICIAL REVIEW

PETITIONERS: Senate of the Philippines, represented by Franklin M. Drilon in his capacity as Senate president,
etc.
RESPONDENTS: EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.

DOCTRINE:

 A transparent government is one of the hallmarks of a truly republican state. Even in the early history of
republican thought, however, it has been recognized that the head of government may keep certain
information confidential in pursuit of the public interest. Explaining the reason for vesting executive
power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said:
"Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a
much more eminent degree than the proceedings of any greater number; and in proportion as the
number is increased, these qualities will be diminished." History has been witness, however, to the fact
that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously.
 In resolving the controversy, this Court shall proceed with the recognition that the issuance under review
has come from a co-equal branch of government, which thus entitles it to a strong presumption of
constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is duty-
bound to declare it so. For the Constitution, being the highest expression of the sovereign will of the
Filipino people, must prevail over any issuance of the government that contravenes its mandates.
 In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department, bureaus, and offices including those
employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines
(AFP), and the Philippine National Police (PNP).
 Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and
the lack of it under Section 22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.

FACTS:

 Sept 21 to 23, 2005 -- the Committee of the Senate as a whole issued invitations to various officials of
the Executive Department for them to appear on September 29, 2005 as resource speakers in a public
hearing on the railway project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project).
o The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project.
 The Senate Committee on National Defense and Security likewise issued invitations to the following
officials of the AFP for them to attend as resource persons in a public hearing scheduled on Sept. 28,
2005, with respect to the privileged speeches of several senators.
 The AFP Chief of Staff, General Generoso S. Senga was also invited but later sent a requesting for its
postponement "due to a pressing operational situation that demands [his utmost personal attention"
while "some of the invited AFP officers are currently attending to other urgent operational matters.
 September 28, 2005 – Senate President Franklin M. Drilon received from Executive Secretary Eduardo
R. Ermita a letter "respectfully requesting for the postponement of the hearing [regarding the project]
 to which various officials of the Executive Department have been invited" in order to "afford said
officials ample time and opportunity to study and prepare for the various issues so that they may
better enlighten the Senate Committee on its investigation.
o Sen. President Drilon, however, wrote Executive Secretary Ermita that the Senators "are
unable to accede to his request” as it "was sent belatedly" and "all preparations and
arrangements as well as notices to all resource persons were completed [the previous] week.
 On the same date, Sen. President Drilon received a letter from the President of the North Luzon
Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be
postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured
 Also on the same date, the President issued E.O. 464, "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For
Other Purposes," which, pursuant to Section 6 thereof, took effect immediately. The salient provisions
of the Order are as follows:
o SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with
Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on
the separation of powers between co-equal branches of the government, all heads of
departments of the Executive Branch of the government shall secure the consent of the
President prior to appearing before either House of Congress. When the security of the State
or the public interest so requires and the President so states in writing, the appearance shall
only be conducted in executive session.
 September 28, 2005 -- Senate President Drilon received from Executive Secretary Ermita a copy of
E.O. 464, and another letter informing him "that officials of the Executive Department invited to
appear at the meeting [regarding the NorthRail project] will NOT be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President."
 On even date which was also the scheduled date of the hearing on the alleged wiretapping, Gen.
Senga sent a letter to Senator Biazon, Chairperson of the Committee on National Defense and
Security, informing him "that per instruction of [President Arroyo], thru the Secretary of National
Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional hearings
without seeking a written approval from the President" and "that no approval has been granted by
the President to any AFP officer to appear before the public hearing of the Senate Committee on
National Defense and Security.”
 Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.
o For defying President Arroyo’s order barring military personnel from testifying before
legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved
from their military posts and were made to face court martial proceedings
 As to the NorthRail project hearing scheduled, Executive Secretary Ermita, citing E.O. 464, sent letter
of regrets, in response to the invitations sent to the government officials.
 On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari
and prohibition, were filed before this Court challenging the constitutionality of E.O. 464

GR No. 169659

 Petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran,
Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government
employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the
promotion of justice, democracy and peace, all claiming to have standing to file the suit because of
the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be
declared null and void for being unconstitutional; that respondent Executive Secretary Ermita, in his
capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and
threatening to impose sanctions on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them
 from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its
right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464
infringes on their rights and duties as members of Congress to conduct investigation in aid of
legislation and conduct oversight functions in the implementation of laws; Courage alleges that the
tenure of its members in public office is predicated on, and threatened by, their submission to the
requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its
members have a sworn duty to uphold the rule of law, and their rights to information and to
transparent governance are threatened by the imposition of E.O. 464.

G.R. No. 169660

 Petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law
practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be
declared null and void for being unconstitutional.

G.R. No. 169667

 petitioner Alternative Law Groups, Inc. 12 (ALG), alleging that as a coalition of 17 legal resource non-
governmental organizations engaged in developmental lawyering and work with the poor and
marginalized sectors in different parts of the country, and as an organization of citizens of the
Philippines and a part of the general public, it has legal standing to institute the petition to enforce its
constitutional right to information on matters of public concern, a right which was denied to the
public by E.O. 464, prays, that said order be declared null and void for being unconstitutional and that
respondent Executive Secretary Ermita be ordered to cease from implementing it.

G.R. No. 169777

 October 11, 2005 -- Petitioner Senate of the Philippines filed its petition for certiorari and prohibition
praying that EO 465 be declared unconstitutional, alleging that it has a vital interest in the resolution
of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has
already sustained the same with its continued enforcement since it directly interferes with and
impedes the valid exercise of the Senate’s powers and functions and conceals information of great
public interest and concern, filed its petition for certiorari and prohibition.

G.R. No. 169834

 October 14, 2005 – PDP-Laban, a registered political party with members duly elected into the
Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition,
alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be
implemented through its members in Congress, particularly in the conduct of inquiries in aid of
legislation and transcendental issues need to be resolved to avert a constitutional crisis between the
executive and legislative branches of the government.

G.R. No. 171246

 On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors
of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the
official organization of all Philippine lawyers, all invoking their constitutional right to be informed on
matters of public interest, filed their petition for certiorari and prohibition, docketed as G.R. No.
171246, and pray that E.O. 464 be declared null and void.

SOME OTHER THINGS THAT HAPPENED BECAUSE OF EO 464:

 Senator Biazon reiterated his invitation to Gen. Senga for him and other military officers to attend the
hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, that
 "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the
President to allow [them] to appear before the public hearing" and that "they will attend once [their]
request is approved by the President." As none of those invited appeared, the hearing on February
10, 2006 was cancelled.

 In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the
Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the
Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005
but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix
Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana, and those from
the Department of Budget and Management having invoked E.O. 464.
 In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye, DOJ Secretary Raul M. Gonzalez and Department of Interior and
Local Government Undersecretary Marius P. Corpus communicated their inability to attend due to
lack of appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005
budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita.

 All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.

ISSUES:

1. W/N E.O. 464 contravenes the power of inquiry vested in Congress; (YES)

2. W/N E.O. 464 violates the right of the people to information on matters of public concern;
and*YES)

3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464
prior to its publication in a newspaper of general circulation.

 According to petitioners, E.O. 464 violates the following constitutional provisions:

o Art. VI, Sec. 2130
o Art. VI, Sec. 2231
o Art. VI, Sec. 132
o Art. XI, Sec. 133
o Art. III, Sec. 734
o Art. III, Sec. 435
o Art. XIII, Sec. 16 36
o Art. II, Sec. 2837
 Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

DECISION:

 Essential requisites for judicial review

o Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of
whether the requisites for a valid exercise of the Court’s power of judicial review are present is in
order.
o Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit:
(1) There must be an actual case or controversy calling for the exercise of judicial power;
(2) The person challenging the act must have standing to challenge the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
 (3) The question of constitutionality must be raised at the earliest opportunity; and
(4) The issue of constitutionality must be the very lis mota of the case.
o Except with respect to the requisites of standing and existence of an actual case or controversy
where the disagreement between the parties lies, discussion of the rest of the requisites shall be
omitted.

ISSUE OF STANDING:

RESPONDENT’S CONTENTION

 Respondents assert that the allegations the said petitions make it clear that they, adverting to the non-
appearance of several officials of the executive department in the investigations called by the different
committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They
maintain that Representatives Ocampo et al. have not shown any specific prerogative, power, and
privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being no
mention of any investigation called by the House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.
 As for Bayan Muna’s alleged interest as a party-list representing the marginalized and underrepresented,
and that of the other petitioner groups and individuals who profess to have standing as advocates and
defenders of the Constitution, respondents contend that such interest falls short of that required to
confer standing on them as parties "injured-in-fact.”
 Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer
for the implementation of E.O. 464 does not involve the exercise of taxing or spending power.
 With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or
direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the
proper parties to assail the constitutionality of E.O. 464
 Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin 42 and Valmonte v.
Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one
must have a personal and substantial interest in the case, such that he has sustained or will sustain direct
injury due to the enforcement of E.O. 464. ‘

RULING OF THE COURT AS TO ISSUE OF STANDING:

 That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-
making in a democratic system, but more especially for sound legislation is not disputed. E.O. 464,
however, allegedly stifles the ability of the members of Congress to access information that is crucial to
law-making.
o Verily, the Senate, including its individual members, has a substantial and direct interest over
the outcome of the controversy and is the proper party to assail the constitutionality of E.O.
464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and
privileges vested by the Constitution in their office and are allowed to sue to question the validity
of any official action which they claim infringes their prerogatives as legislators.
 In the same vein, party-list representatives Bayan Muna, Anakpawis, Gabriela, are allowed to sue to
question the constitutionality of E.O. 464, the absence of any claim that an investigation called by the
House of Representatives or any of its committees was aborted due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional
rights and duties as members of Congress to conduct investigation in aid of legislation and conduct
oversight functions in the implementation of laws.
o The national political party, Bayan Muna, likewise meets the standing requirement as it
obtained three seats in the House of Representatives in the 2004 elections and is, therefore,
entitled to participate in the legislative process consonant with the declared policy underlying the
party list system of affording citizens belonging to marginalized and underrepresented sectors,
organizations and parties who lack well-defined political constituencies to contribute to the
formulation and enactment of legislation that will benefit the nation. 48
 In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the
incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members, invoke
their constitutional right to information on matters of public concern, asserting that the right to
information, curtailed and violated by E.O. 464, is essential to the effective exercise of other constitutional
rights and to the maintenance of the balance of power among the three branches of the government
through the principle of checks and balances.
o It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal.
o In Franciso v. House of Representatives, this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal
interest.
 As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis.
o For it to be accorded standing on the ground of transcendental importance, however, it must
establish (1) the character of the funds (that it is public) or other assets involved in the case, (2)
the presence of a clear case of disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government, and (3) the lack of any party with a
more direct and specific interest in raising the questions being raised.
o The first and last determinants not being present as no public funds or assets are involved and
petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of
the controversy, petitioner PDP-Laban is bereft of standing to file its petition.
o Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is
only a "generalized interest" which it shares with the rest of the political parties. Concrete injury,
whether actual or threatened, is that indispensable element of a dispute which serves in part to
cast it in a form traditionally capable of judicial resolution. In fine, PDP-Laban’s alleged interest as
a political party does not suffice to clothe it with legal standing.

ACTUAL CASE OR CONTROVERSY

PETITIONER RESPONDENT
Petitioners assert that an actual case exists, they There is no case or controversy, there being no
citing the absence of the executive officials invited showing that Pres. Arroyo has actually withheld her
by the Senate to its hearings after the issuance of consent or prohibited the appearance of the invited
E.O. 464, particularly those on the NorthRail project officials. These officials, they claim, merely
and the wiretapping controversy. communicated to the Senate that they have not yet
secured the consent of the President, not that the
President prohibited their attendance.Respondents
thus conclude that the petitions merely rest on an
unfounded apprehension that the President will
abuse its power of preventing the appearance of
officials before Congress, and that such
apprehension is not sufficient for challenging the
validity of E.O. 464.

RULING OF THE COURT ON ACTUAL CASE:

 The Court finds respondents’ assertion that the President has not withheld her consent or prohibited
the appearance of the officials concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned.
 For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition
issuing from the President in order to bar officials from appearing before Congress.
 As the implementation of the challenged order has already resulted in the absence of officials invited
to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any
further event before considering the present case ripe for adjudication. Indeed, it would be sheer
 abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O.
464.

CONSTITUTIONALITY of E.O. 464

 E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives
Congress of the information in the possession of these officials. To resolve the question of whether
such withholding of information violates the Constitution, consideration of the general power of
Congress to obtain information, otherwise known as the power of inquiry, is in order.
 The power of inquiry – The Congress power of inquiry is expressly recognized in Section 21 of Article
6 of the Constitution which reads: “The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in accordance with its duly published
rules of procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.”
 This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the
latter, it vests the power of inquiry in the unicameral legislature established therein – the Batasang
Pambansa – and its committees.
 The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, a case
decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is
inherent in the power to legislate.
o Arnault involved a Senate investigation of the reportedly anomalous purchase of the
Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was
considered a leading witness in the controversy, was called to testify thereon by the Senate.
On account of his refusal to answer the questions of the senators on an important point, he
was, by resolution of the Senate, detained for contempt. Upholding the Senate’s power to
punish Arnault for contempt, this Court held: “Although there is no provision in the
Constitution expressly investing either House of Congress with power to make investigations
and exact testimony to the end that it may exercise its legislative functions advisedly and
effectively, such power is so far incidental to the legislative function as to be implied. In
other words, the power of inquiry – with process to enforce it – is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does not itself possess the
requisite information – which is not infrequently true – recourse must be had to others who
do possess it. Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always accurate or
complete; so some means of compulsion is essential to obtain what is needed.”
 That this power of inquiry is broad enough to cover officials of the executive branch may be
deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the
power to legislate. The matters which may be a proper subject of legislation and those which may be
a proper subject of investigation are one. It follows that the operation of government, being a
legitimate subject for legislation, is a proper subject for investigation.
 Since Congress has authority to inquire into the operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations.
o As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject, by
parity of reasoning, Congress has the right to that information and the power to compel the
disclosure thereof.
o As evidenced by the American experience during the so-called "McCarthy era," however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant
to the Court’s certiorari powers under Section 1, Article VIII of the Constitution.
 Bengzon v. Senate Blue Ribbon Committee – the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp
 judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in
Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that
matter, the possible needed statute which prompted the need for the inquiry. Given such statement
in its invitations, along with the usual indication of the subject of inquiry and the questions relative to
and in furtherance thereof, there would be less room for speculation on the part of the person invited
on whether the inquiry is in aid of legislation.
 Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress
to adhere to the guarantees in the Bill of Rights.
 These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative
power of inquiry might be established, resulting in palpable violations of the rights guaranteed to
members of the executive department under the Bill of Rights. In such instances, depending on the
particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded
judicial sanction.
 Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its provisions, its preambular clauses, and
in its very title, a discussion of executive privilege is crucial for determining the constitutionality of
E.O. 464.

EXECUTIVE PRIVILEGE

 Schwartz defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress." Similarly, Rozell defines it as "the right of the President and
high-level executive branch officers to withhold information from Congress, the courts, and ultimately
the public."
 Executive privilege is, nonetheless, not a clear or unitary concept. It has encompassed claims of
varying kinds. Tribe, in fact, comments that while it is customary to employ the phrase "executive
privilege," it may be more accurate to speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of considerations, and may
be asserted, with differing degrees of success, in the context of either judicial or legislative
investigations."
o One variety of the privilege is the state secrets privilege invoked by U.S. Presidents, on the
ground that the information is of such nature that its disclosure would subvert crucial
military or diplomatic objectives.
o Another variety is the informer’s privilege, or 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.
o A 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. 
 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’ domestic decisional and policy
making functions, that is, those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.
 That a type of information is recognized as privileged does not, however, necessarily mean that it
would be considered privileged in all instances. For in determining the validity of a claim of privilege,
 the question that must be asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a given procedural setting.
 In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:
o "The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for example, has
all the values to which we accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. A President and those who assist him
must be free to explore alternatives in the process of shaping policies and making decisions
and to do so in a way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and inextricably rooted in the
separation of powers under the Constitution.”
o In Chavez v. PCGG,79 the Court held that 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." 80 The same case held that
closed-door Cabinet meetings are also a recognized limitation on the right to information.
o Similarly, in Chavez v. Public Estates Authority, 81 the Court ruled that the right to information
does not extend to matters recognized as "privileged information under the separation of
powers,"82 by which the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held that information on military and
diplomatic secrets and those affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused were exempted
from the right to information.
 From the above discussion on the meaning and scope of executive privilege, both in the United States
and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid
or not depending on the ground invoked to justify it and the context in which it is made. Noticeably
absent is any recognition that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions
indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.

 In the context of a parliamentary system of government, the "question hour" has a definite meaning.
It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation of the government. There was a specific
provision for a question hour in the 1973 Constitution which made the appearance of ministers
mandatory. The same perfectly conformed to the parliamentary system established by that
Constitution, where the ministers are also members of the legislature and are directly accountable to
it.
 An essential feature of the parliamentary system of government is the immediate accountability of
the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long
as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime
Minister and the Cabinet may be changed.
 The framers of the 1987 Constitution removed the mandatory nature of such appearance during the
question hour in the present Constitution so as to conform more fully to a system of separation of
powers.
o To that extent, the question hour, as it is presently understood in this jurisdiction, departs
from the question period of the parliamentary system. That department heads may not be
required to appear in a question hour does not, however, mean that the legislature is
rendered powerless to elicit information from them in all circumstances. In fact, in light of
 the absence of a mandatory question period, the need to enforce Congress’ right to
executive information in the performance of its legislative function becomes more
imperative.
o As Schwartz observes: Indeed, if the separation of powers has anything to tell us on the
subject under discussion, it is that the Congress has the right to obtain information from
any source – even from officials of departments and agencies in the executive branch. It is
this very separation that makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the elected representatives of the
people are adequately to be carried out.
o The absence of close rapport between the legislative and executive branches in this country
is essential, if it is intelligently to perform its legislative tasks. Unless the Congress possesses
the right to obtain executive information, its power of oversight of administration in a system
such as ours becomes a power devoid of most of its practical content, since it depends for its
effectiveness solely upon information parceled out ex gratia by the executive.
 When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the
President to whom, as Chief Executive, such department heads must give a report of their
performance as a matter of duty.
o In such instances, Section 22, in keeping with the separation of powers, states that Congress
may only request their appearance. Nonetheless, when the inquiry in which Congress
requires their appearance is "in aid of legislation" under Section 21, the appearance is
mandatory for the same reasons stated in Arnault.
o In fine, the oversight function of Congress may be facilitated by compulsory process only to
the extent that it is performed in pursuit of legislation. This is consistent with the intent
discerned from the deliberations of the Constitutional Commission.
 Ultimately, the power of Congress to compel the appearance of executive officials under Section 21
and the lack of it under Section 22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.
 When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are NOT exempt by the mere fact that they
are department heads. Only one executive official may be exempted from this power — the President
on whom executive power is vested, hence, beyond the reach of Congress except through the power
of impeachment. It is based on her being the highest official of the executive branch, and the due
respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom.
 By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is
exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary.
 Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court
now proceeds to pass on the constitutionality of Section 1 of E.O. 464.
 WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464
(series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the
Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," are declared VOID.
o Sections 1 and 2(a) are, however, VALID.

SECTION RULING OF THE COURT

SECTION 1. Appearance by Heads of VALID. Section 1, in view of its specific reference to Section 22 of
Departments Before Congress. – In Article VI of the Constitution and the absence of any reference to
accordance with Article VI, Section 22 inquiries in aid of legislation, must be construed as limited in its
of the Constitution and to implement application to appearances of department heads in the question
the Constitutional provisions on the hour contemplated in the provision of said Section 22 of Article VI.
separation of powers between co- The reading is dictated by the basic rule of construction that
equal branches of the government, all issuances must be interpreted, as much as possible, in a way that
heads of departments of the will render it constitutional. The requirement then to secure
Executive Branch of the government presidential consent under Section 1, limited as it is only to
shall secure the consent of the appearances in the question hour, is valid on its face. For under
President prior to appearing before Section 22, Article VI of the Constitution, the appearance of
either House of Congress. When the department heads in the question hour is discretionary on their
security of the State or the public part. Section 1 cannot, however, be applied to appearances of
interest so requires and the President department heads in inquiries in aid of legislation. Congress is not
so states in writing, the appearance bound in such instances to respect the refusal of the department
shall only be conducted in executive head to appear in such inquiry, unless a valid claim of privilege is
session. subsequently made, either by the President herself or by the
Executive Secretary.

SECTION 2 - Nature, Scope and VALID. No infirmity, however, can be imputed to Section 2(a) as it
Coverage of Executive Privilege. – (a) merely provides guidelines, binding only on the heads of office
Nature and Scope. - The rule of mentioned in Section 2(b), on what is covered by executive
confidentiality based on executive privilege. It does not purport to be conclusive on the other
privilege is fundamental to the branches of government. It may thus be construed as a mere
operation of government and rooted expression of opinion by the President regarding the nature and
in the separation of powers under the scope of executive privilege.
Constitution (Almonte vs. Vasquez,
G.R. No. 95367, 23 May 1995).
Further, Republic Act No. 6713 or the
Code of Conduct and Ethical
Standards for Public Officials and
Employees provides that Public
Officials and Employees shall not use
or divulge confidential or classified
information officially known to them
by reason of their office and not
made available to the public to
prejudice the public interest.
Executive privilege covers all
confidential or classified information
between the President and the public
officers covered by this executive
order, including:

SECTION 2(B) -- Conversations and VOID. En passant, the Court notes that Section 2(b) of E.O. 464
correspondence between the virtually states that executive privilege actually covers persons.
President and the public official Such is a misuse of the doctrine. Executive privilege, as discussed
covered by this executive order above, is properly invoked in relation to specific categories of
(Almonte vs. Vasquez G.R. No. 95367, information and not to categories of persons.
23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July
2002);

Military, diplomatic and other

national security matters which in the
interest of national security should
not be divulged (Almonte vs. Vasquez,
G.R. No. 95367, 23 May 1995; Chavez
v. Presidential Commission on Good
Government, G.R. No. 130716, 9
December 1998).
Information between inter-
government agencies prior to the
conclusion of treaties and executive
agreements (Chavez v. Presidential
Commission on Good Government,
G.R. No. 130716, 9 December 1998);

Discussion in close-door Cabinet

meetings (Chavez v. Presidential
Commission on Good Government,
G.R. No. 130716, 9 December 1998);

Matters affecting national security

and public order (Chavez v. Public
Estates Authority, G.R. No. 133250, 9
July 2002).

SECTION 3 -- SECTION 3. Appearance VOID. Section 3 of E.O. 464 requires all the public officials
of Other Public Officials Before enumerated in Section 2(b) to secure the consent of the President
Congress. – All public officials prior to appearing before either house of Congress. The
enumerated in Section 2 (b) hereof enumeration is broad. It covers all senior officials of executive
shall secure prior consent of the departments, all officers of the AFP and the PNP, and all senior
President prior to appearing before national security officials who, in the judgment of the heads of
either House of Congress to ensure offices designated in the same section (i.e. department heads,
the observance of the principle of Chief of Staff of the AFP, Chief of the PNP, and the National
separation of powers, adherence to Security Adviser), are "covered by the executive privilege." Section
the rule on executive privilege and 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by
respect for the rights of public the mere fact that it sanctions claims of executive privilege. This
officials appearing in inquiries in aid Court must look further and assess the claim of privilege
of legislation. authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case

to case basis, examining the ground invoked therefor and the
particular circumstances surrounding it, there is, in an implied
claim of privilege, a defect that renders it invalid per se. By its very
nature, the implied claim authorized by Section 3 of E.O. 464 is not
accompanied by any specific allegation of the basis thereof (e.g.,
whether the information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the
privilege under the challenged order, Congress is left to speculate
as to which among them is being referred to by the executive. The
enumeration is not even intended to be comprehensive, but a
mere statement of what is included in the phrase "confidential or
classified information between the President and the public
officers covered by this executive order."

Certainly, Congress has the right to know why the executive

considers the requested information privileged. It does not suffice
to merely declare that the President, or an authorized head of
office, has determined that it is so, and that the President has not
overturned that determination. Such declaration leaves Congress
in the dark on how the requested information could be classified
as privileged. That the message is couched in terms that, on first
 impression, do not seem like a claim of privilege only makes it
more pernicious. It threatens to make Congress doubly blind to the
question of why the executive branch is not providing it with the
information that it has requested.

The claim of privilege under Section 3 of E.O. 464 in relation to

Section 2(b) is thus invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464, coupled with an announcement
that the President has not given her consent. It is woefully
insufficient for Congress to determine whether the withholding of
information is justified under the circumstances of each case. It
severely frustrates the power of inquiry of Congress.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive
privilege, the reference to persons being "covered by the executive privilege" may be read as an abbreviated
way of saying that the person is in possession of information which is, in the judgment of the head of office
concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is
the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is "covered by the
executive privilege," such official is subjected to the requirement that he first secure the consent of the
President prior to appearing before Congress. This requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President. The proviso allowing the President to give its
consent means nothing more than that the President may reverse a prohibition which already exists by virtue
of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the
President under E.O. 464, or by the President herself, that such official is in possession of information that is
covered by executive privilege. This determination then becomes the basis for the official’s not showing up in
the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must
be construed as a declaration to Congress that the President, or a head of office authorized by the President,
has determined that the requested information is privileged, and that the President has not reversed such
determination. Such declaration, however, even without mentioning the term "executive privilege," amounts
to an implied claim that the information is being withheld by the executive branch, by authority of the
President, on the basis of executive privilege. Verily, there is an implied claim of privilege.

While there is no Philippine case that directly addresses the issue of whether executive privilege may be
invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the
executive may validly be claimed as privileged even against Congress. Thus, the case holds: “There is no claim
by PEA that the information demanded by petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of
information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas
and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This
is not the situation in the instant case.91 (Emphasis and underscoring supplied)

A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be
clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a
private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of
the department which has control over the matter, after actual personal consideration by that officer. The
court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so
without forcing a disclosure of the very thing the privilege is designed to protect. 92 (Underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly
stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S: 102

We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these
questions. For it is as true here as it was there, that ‘if (petitioner) had legitimate reasons for failing to produce
the records of the association, a decent respect for the House of Representatives, by whose authority the
subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the
writ. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry
by taking other appropriate steps to obtain the records. ‘To deny the Committee the opportunity to consider
the objection or remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to
make any such statement was "a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the privilege is meant to protect. 103 A useful
analogy in determining the requisite degree of particularity would be the privilege against self-incrimination.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful
delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular,
cites the case of the United States where, so it claims, only the President can assert executive privilege to
withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the President’s authority and has the effect
of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the
President that it is allowing the appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to information the confidential nature of which is
crucial to the fulfillment of the unique role and responsibilities of the executive branch, 105 or in those instances
where exemption from disclosure is necessary to the discharge of highly important executive
responsibilities.106 The doctrine of executive privilege is thus premised on the fact that certain informations
must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity
must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the
power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on
her behalf, in which case the Executive Secretary must state that the authority is "By order of the President,"
which means that he personally consulted with her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize
her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant
case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further
invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the
President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order
to provide the President or the Executive Secretary with fair opportunity to consider whether the matter
indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President
nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the
official to appear before Congress and may then opt to avail of the necessary legal means to compel his
appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of the
President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in
inquiries in aid of legislation." That such rights must indeed be respected by Congress is an echo from Article VI
Section 21 of the Constitution mandating that "[t]he rights of persons appearing in or affected by such
inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the
need to ensure respect for such officials does not change the infirm nature of the authorization itself.

SECOND ISSUE: Right to Information

 E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in
the hearings conducted by it, and not with the demands of citizens for information pursuant to their
right to information on matters of public concern. Petitioners are not amiss in claiming, however,
that what is involved in the present controversy is not merely the legislative power of inquiry, but the
right of the people to information.
 There are clear distinctions between the right of Congress to information which underlies the power
of inquiry and the right of the people to information on matters of public concern. For one, the
demand of a citizen for the production of documents pursuant to his right to information does not
have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right
to information grant a citizen the power to exact testimony from government officials. These powers
belong only to Congress and not to an individual citizen.
 Thus, while Congress is composed of representatives elected by the people, it does not follow, except
in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising
their right to information.
 To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations necessarily
deprives the people of information which, being presumed to be in aid of legislation, is presumed to
be a matter of public concern. The citizens are thereby denied access to information which they can
use in formulating their own opinions on the matter before Congress — opinions which they can
then communicate to their representatives and other government officials through the various legal
means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte: “It is in the
interest of the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people’s will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.”
 The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore,
in the sense explained above, just as direct as its violation of the legislature’s power of inquiry.

THIRD ISSUE: Implementation of E.O. 464 prior to its publication

  While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is
exempt from the need for publication.
 On the need for publishing even those statutes that do not directly apply to people in general, Tañada
v. Tuvera states: “The term "laws" should refer to all laws and not only to those of general application,
for strictly speaking all laws relate to the people in general albeit there are some that do not apply to
them directly. An example is a law granting citizenship to a particular individual, like a relative of
President Marcos who was decreed instant naturalization. It surely cannot be said that such a law
does not affect the public although it unquestionably does not apply directly to all the people. The
subject of such law is a matter of public interest which any member of the body politic may question
in the political forums or, if he is a proper party, even in courts of justice.”
 Although the above statement was made in reference to statutes, logic dictates that the challenged
order must be covered by the publication requirement. As explained above, E.O. 464 has a direct
effect on the right of the people to information on matters of public concern. It is, therefore, a matter
of public interest which members of the body politic may question before this Court. Due process
thus requires that the people should have been apprised of this issuance before it was implemented.

CONCLUSION

o Congress undoubtedly has a right to information from the executive branch whenever it is sought in
aid of legislation. If the executive branch withholds such information on the ground that it is
privileged, it must so assert it and state the reason therefor and why it must be respected.
o The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional
requests for information without need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to
conduct inquiries in aid of legislation is frustrated. That is impermissible.
o “For [w]hat republican theory did accomplish…was to reverse the old presumption in favor of secrecy,
based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty.”
o Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall have given up something of
much greater value – our right as a people to take part in government.