Senate v. Ermita, G.R. No.

169777, April 20, 2006
FACTS:
On September 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 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).
On September 28, 2005, the President then issued Executive Order 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.

ISSUES:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of
public concern; and
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.

HELD:
1. The Congress power of inquiry is expressly recognized in Section 21 of Article
VI of the Constitution. This power of inquiry is broad enough to cover officials
of the executive branch; it 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.
2. Yes. Although 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, any executive issuance tending
to unduly limit disclosures of information in investigations in Congress
necessarily deprives the people of information which, being presumed to be
in aid of legislation, is presumed to be a matter of public concern.
3. Yes. 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. It has a
direct effect on the right of the people to information on matters of public
concern. Due process requires that the people should have been apprised of
its issuance before it was implemented.

the appearance of department heads in the question hour is discretionary on their part. There is an implied claim of privilege. Under Section 22. on what is covered by executive privilege. either by the President herself or by the Executive Secretary • On Section 2(a) No infirmity. which deprives the Congress to determine whether the withholding of information is justified under the circumstances of each case. Unconstitutionality of Sections 2 (b) and 3 • Section 3 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. • The claim of privilege under Section 3 of E. 464 to justify his failure to be present. and that the President has not reversed such determination. can be imputed to as it merely provides guidelines. It does not provide for precise and certain reasons for the claim. The requirement then to secure presidential consent under Section 1 is limited only to appearances in the question hour. or a head of office authorized by the President. be applied to appearances of department heads in inquiries in aid of legislation. • Section 1 specifically applies to department heads. • Whenever an official invokes E. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry. however.O.Validity of Sections 1 and 2(a) • The Supreme Court declared Section 1 and Section 2(a) of Executive Order 464 valid while Sections 2(b) and 3 are void. Article VI of the Constitution. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege. It does not purport to be conclusive on the other branches of government. binding only on the heads of office mentioned in Section 2(b). Appearance by Heads of Departments Before Congress. • Section 1 cannot. Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government. has determined that the requested information is privileged. 464 in relation to Section 2(b) is invalid as it is merely implied. unless a valid claim of privilege is subsequently made. which implied claim is not accompanied by any specific allegation of the basis thereof.O. such invocation must be construed as a declaration to Congress that the President. The salient provisions of the Executive Order 464 are as follows: SECTION 1. – In accordance with Article VI. all heads of departments of the Executive Branch of the government .

(b) Who are covered. Public Estates Authority.shall secure the consent of the President prior to appearing before either House of Congress. 9 December 1998). Nature. 2. 95367. including: Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. No. – The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. 23 May 1995). 130716. No. Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege. Republic Act No. G. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order. Presidential Commission on Good Government.R. Discussion in close-door Cabinet meetings (Chavez v. 130716. 23 May 1995. Matters affecting national security and public order (Chavez v.R. Public Estates Authority. No. No. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v.R. 23 May 1995.R. 9 July 2002). – The following are covered by this executive order: Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege. Vasquez G.R. 95367. Vasquez. Scope and Coverage of Executive Privilege. 9 July 2002). 130716. G. Presidential Commission on Good Government. 9 December 1998). 133250. 9 December 1998). 133250. Presidential Commission on Good Government.R. 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. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege. When the security of the State or the public interest so requires and the President so states in writing. No. Chavez v. G.R. G. No. the appearance shall only be conducted in executive session. Chavez v. – (a) Nature and Scope. G. No. 95367. . Vasquez. G. diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. No.R. Military. SECTION. G. Further.

three petitions (Bayan Muna. Petitioners contend that the President abused its power and prayed that said law be declared null and void. The Senate conducted an investigation and issued invitations to various officials of the Executive department as resource speakers in a public hearing on the North Rail project. Executive Secretary Digest Senate of the Phils. v Executive Secretary G. Alt. Gudani among all the AFP officials invited attending. Both were subsequently relieved for defying the President’s order.O. On the same day (Sept 28. adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.O. 1. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege. Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the said project. 2. This power is incidental to the legislative function. ISSUE 1: Whether or not E. Assailed in this petition was the constitutionality of Executive Order 464 issued by the President. EO 464 requires that heads of departments obtain the consent of the President before they can validly appear before investigations including the one conducted in the Senate. The Senate Committee on National Defense and Security likewise issued invitations to officials of the AFP. and Such other officers as may be determined by the President. Appearance of Other Public Officials Before Congress. Executive Ermita sent a letter to the Senate requesting postponement of the hearing. Said public hearing was sparked by a privilege speech of Sen. Law Group). Gen. 2006 Facts: 1. The power of inquiry – with . 169777 April 20. 2005) the President issued EO 464. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers. Hence.R. for certiorari and prohibition and TRO. the investigation pushed through. hence it deprives it of the information in possession of these officials. Sen.. No. The Congress power of inquiry is expressly recognized in Sec. 4. EO 464 bars the appearance of executive officials before the Congress. were filed before the Supreme Court challenging the constitutionality of E. 3. 464. SECTION 3. 21 Article VI of the Constitution. Chavez. Senate v. Despite this development. with only Col. 464 contravenes the power of inquiry vested in Congress YES. It also grants executive privilege on all classified or confidential information between the President and the public officers covered by the EO. Balutan and Brig.

is an essential and appropriate auxiliary to the legislative function. That is impermissible. 22 (Question Hour) 6. While executive privilege is a constitutional concept. If the executive branch withholds such information on the ground that it is privileged. By the mere expedient of invoking said provisions. The oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. A distinction was made between inquiries in aid of legislation and the question hour. process to enforce it -. A legislative body cannot legislate wisely or effectively in the absence of information respecting conditions which the legislation is intended to affect or change. These are two distinct functions of the legislature. however. 464. Sec. Although the inquiry is in aid of legislation. generic privilege) 3. Executive privilege. Sec. there are still recognized exemptions to the power of inquiry. the objective of which is to obtain information in pursuit of Congress’ oversight function. or the public. has a right to information from the executive branch whenever it is sought in aid of legislation. the oversight function of Congress may only be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This power is broad enough to cover officials of the executive branch.g. It is defined by Schwartz as “the power of the government to withhold information from the public. as held in Arnault case. Congress undoubtedly. it must so assert it and state the reason therefor and why it must be respected. 4. 21 (Inquiry in Aid of Legislation) vs Sec. While the executive branch is a co-equal branch of the legislature. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. The infirm provisions of E. Hence. The operation of the government is a proper subject for investigation.O. informer’s privilege. state secret privilege. whether asserted against Congress. . While attendance was meant to be discretionary in the question hour. 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. and when it does not possess the required information. the courts. This is consistent with the intent discerned from the deliberations of the Constitutional Commission. the courts and the Congress. the power of Congress to conduct inquiries in aid of legislation is frustrated. a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. 2. recourse must be had on others who possess it. the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. it was compulsory in inquiries in aid of legislation. Indeed.” (e. One specifically relates to the power to conduct inquiries in aid of legislation with the aim of eliciting information that may be used in legislation while the other pertains to the power to conduct a question hour. 21 and 22 while closely related does not pertain to the same power of the Congress. is recognized only in relation to certain types of information of a sensitive character. 5. 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. which fall under the rubric of ‘executive privilege’.

That is impermissible. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry. Instead of providing precise and certain reasons for the claim. 10. be applied to appearances of department heads in inquiries in aid of legislation. however. Section 1 cannot. however. 464 in relation to Section 2(b) is thus invalid per se. unless a valid claim of privilege is subsequently made.O. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. 464. in a way that will render it constitutional. just as direct as its violation of the legislature’s power of inquiry. Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. must be construed as limited in its application to appearances of department heads in the question hour contemplated in the provision of said Section 22 of Article VI. we shall not have merely nullified the power of our legislature to inquire into the operations of government. When Congress exercises its power of inquiry. as much as possible. By the mere expedient of invoking said provisions. Otherwise. Only one executive official may be exempted from this power – the president on whom the executive power is vested. the power of Congress to conduct inquiries in aid of legislation is frustrated. cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. therefore.O.7. in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation. Section 1. either by the President herself or by the Executive Secretary. 464 is. Members of SC are likewise exempt from this power of inquiry. . Section 3 and Section 2(b) of E. 464 must be invalidated. 464. The reading is dictated by the basic rule of construction that issuances must be interpreted. it must so assert it and state the reason therefor and why it must be respected. This Court must look further and assess the claim of privilege authorized by the Order to determine whether it is valid. coupled with an announcement that the President has not given her consent. Section 3 of E. 9. It is merely implied. The impairment of the right of the people to information as a consequence of E. but we shall have given up something of much greater value – our right as a people to take part in government. This is on the basis of separation of powers and fiscal autonomy. hence beyond the reach of the Congress except by the power of impeachment. the only way for the department heads to exempt themselves therefrom is by a valid claim of privilege. it merely invokes E. as well as the constitutional independence of the judiciary. 464. 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. It severely frustrates the power of inquiry of Congress. The infirm provisions of E. On the constitutionality of EO 464 8. The claim of privilege under Section 3 of E.O.O.O. It is not asserted.O. and not by the mere fact that they are department heads. If the executive branch withholds such information on the ground that it is privileged. 11. Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation.