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up the NBN Project,[4] (b) whether or not she directed him to prioritize it,[5] and (c) whether or

ROMULO L. NERI v. SENATE COMMITTEE ON not she directed him to approve it.[6]
ACCOUNTABILITY OF PUBLIC OFFICERS
586 Phil. 135 Respondent Committees persisted in knowing petitioner's answers to these three questions by
requiring him to appear and testify once more on November 20, 2007. On November 15, 2007,
LEONARDO-DE CASTRO, J.: Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to
Executive privilege is not a personal privilege, but one that adheres to the Office of the President. dispense with petitioner's testimony on the ground of executive privilege.[7] The letter of
It exists to protect public interest, not to benefit a particular public official. Its purpose, among Executive Secretary Ermita pertinently stated:
others, is to assure that the nation will receive the benefit of candid, objective and untrammeled Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
communication and exchange of information between the President and his/her advisers in the correspondence between the President and public officials which are considered executive
process of shaping or forming policies and arriving at decisions in the exercise of the functions of privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
the Presidency under the Constitution. The confidentiality of the President's conversations and 2002). Maintaining the confidentiality of conversations of the President is necessary in the
correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses exercise of her executive and policy decision making process. The expectation of a President to
the same value as the right to privacy of all citizens and more, because it is dictated by public the confidentiality of her conversations and correspondences, like the value which we accord
interest and the constitutionally ordained separation of governmental powers. deference for the privacy of all citizens, is the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate conversations of the President will have a chilling effect on the President, and will hamper her in
a hotly, even acrimoniously, debated dispute between the Court's co-equal branches of the effective discharge of her duties and responsibilities, if she is not protected by the
government. In this task, this Court should neither curb the legitimate powers of any of the co- confidentiality of her conversations.
equal and coordinate branches of government nor allow any of them to overstep the boundaries
set for it by our Constitution. The competing interests in the case at bar are the claim of executive The context in which executive privilege is being invoked is that the information sought to be
privilege by the President, on the one hand, and the respondent Senate Committees' assertion of disclosed might impair our diplomatic as well as economic relations with the People's Republic of
their power to conduct legislative inquiries, on the other. The particular facts and circumstances of China. Given the confidential nature in which these information were conveyed to the President,
the present case, stripped of the politically and emotionally charged rhetoric from both sides and he cannot provide the Committee any further details of these conversations, without disclosing the
viewed in the light of settled constitutional and legal doctrines, plainly lead to the conclusion that very thing the privilege is designed to protect.
the claim of executive privilege must be upheld.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
"Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public Officers and Investigations,[1] Trade Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-
and Commerce,[2] and National Defense and Security (collectively the "respondent hour hearing, wherein he has answered all questions propounded to him except the foregoing
Committees").[3] questions involving executive privilege, we therefore request that his testimony on 20 November
2007 on the ZTE / NBN project be dispensed with.
A brief review of the facts is imperative. On November 20, 2007, petitioner did not appear before respondent Committees upon orders of
the President invoking executive privilege. On November 22, 2007, the respondent Committees
On September 26, 2007, petitioner appeared before respondent Committees and testified for about issued the show-cause letter requiring him to explain why he should not be cited in contempt. On
eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a November 29, 2007, in petitioner's reply to respondent Committees, he manifested that it was not
project awarded by the Department of Transportation and Communications ("DOTC") to Zhong his intention to ignore the Senate hearing and that he thought the only remaining questions were
Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on those he claimed to be covered by executive privilege. He also manifested his willingness to
Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for appear and testify should there be new matters to be taken up. He just requested that he be
his approval of the NBN Project. He further narrated that he informed President Gloria furnished "in advance as to what else" he "needs to clarify."
Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him not to
accept the bribe. However, when probed further on President Arroyo and petitioner's discussions Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his
relating to the NBN Project, petitioner refused to answer, invoking "executive privilege." To be request for advance notice of the matters that he should still clarify, they issued the Order dated
specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator

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Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of respondent CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE CAN BE NO
Committees and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms PRESUMPTION THAT THE INFO RMATION WITHHELD IN THE INSTANT CASE IS
until such time that he would appear and give his testimony. PRIVILEGED.

On the same date, petitioner moved for the reconsideration of the above Order.[8] He insisted that III
he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his
willingness to testify on new matters, but respondent Committees did not respond to his request CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE IS NO FACT UAL
for advance notice of questions. He also mentioned the petition for certiorari he previously filed OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE
with this Court on December 7, 2007. According to him, this should restrain respondent SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE,
Committees from enforcing the order dated January 30, 2008 which declared him in contempt and CONSIDERING THAT:
directed his arrest and detention. • THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE
PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/ •
Preliminary Injunction) on February 1, 2008. In the Court's Resolution dated February 4, 2008, • EVEN IF THE TESTS ADO PTED BY THIS HON ORABLE COURT IN THE
the parties were required to observe the status quo prevailing prior to the Order dated January 30, DECISION IS A PPL IED, THERE IS NO SHOWING THAT THE ELEMENTS
2008. OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.

On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the • ON THE CONTRARY, THERE IS ADEQUATE SHOW ING OF A
communications elicited by the three (3) questions were covered by executive privilege; and COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE
second, respondent Committees committed grave abuse of discretion in issuing the contempt INFORMATION SOUGHT.
order. Anent the first ground, we considered the subject communications as falling under the •
presidential communications privilege because (a) they related to a quintessential and non- • TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT
delegable power of the President, (b) they were received by a close advisor of the President, and CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS' PERFORMANCE
(c) respondent Committees failed to adequately show a compelling need that would justify the OF THEIR PRIMARY FUNCTION TO ENACT LAWS.
limitation of the privilege and the unavailability of the information elsewhere by an appropriate •
investigating authority. As to the second ground, we found that respondent Committees • FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO
committed grave abuse of discretion in issuing the contempt order because (a) there was a valid INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC
claim of executive privilege, (b) their invitations to petitioner did not contain the questions ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF
relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that EXECUTIVE PRIVILEGE.
led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the
Constitution because their inquiry was not in accordance with the "duly published rules of IV
procedure," and (e) they issued the contempt order arbitrarily and precipitately.
CONTRARY TO THIS HON ORABLE COURT'S DECISION, RESPONDENTS DID NOT
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored COMM IT G RAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED
on the following grounds: CONTEMPT ORDER, CONSIDERING THAT:
I • THERE IS NO LEG IT IMAT E CLAIM OF EXECUTIVE PR IVIL EGE IN THE
INSTANT CASE.
CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE IS NO DOUBT •
THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES • RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID
PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT DOWN IN SENATE V. ERMITA.
MERELY THEIR OVERSIGHT FUNCTIONS. •
• RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE
II WITH THEIR INTERNAL RULES.

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• RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER
ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS The core issues that arise from the foregoing respective contentions of the opposing parties are as
RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE follows:
PROCESS WHEN THE COURT CONSIDERED THE OSG'S INTERVENTION
ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO whether or not there is a recognized
COMMENT.
• (1)presumptive presidential communications
• RESPONDENTS' ISSUANCE OF THE CONTEMPT ORDER IS NOT
ARBITRARY OR PRECIPITATE. privilege in our legal system;
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the
Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees
from investigating the NBN Project or asking him additional questions. According to petitioner,
the Court merely applied the rule on executive privilege to the facts of the case. He further
whether or not there is factual or legal basis
submits the following contentions: first, the assailed Decision did not reverse the presumption to hold that the communications elicited by
against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to (2)
overcome the presumption of executive privilege because it appears that they could legislate even
without the communications elicited by the three (3) questions, and they admitted that they could
the three (3) questions are covered by
dispense with petitioner's testimony if certain NEDA documents would be given to them; third,
the requirement of specificity applies only to the privilege for State, military and diplomatic
executive privilege;
secrets, not to the necessarily broad and all-encompassing presidential communications privilege;
fourth, there is no right to pry into the President's thought processes or exploratory exchanges;
fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and whether or not respondent Committees have
duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of
the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation shown that the communications elicited by
(Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished (3)
advance copy of questions comports with due process and the constitutional mandate that the the three (3) questions are critical to the
rights of witnesses be respected; and ninth, neither petitioner nor respondent has the final say on
the matter of executive privilege, only the Court. exercise of their functions; and
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason for them "to make much" of the
whether or not respondent Committees
distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v.
(4)committed grave abuse of discretion in
Vasquez[9] and Chavez v. Public Estates Authority (PEA)[10]; (3) the communications elicited by
the three (3) questions are covered by executive privilege, because all the elements of the
issuing the contempt order.
We shall discuss these issues seriatim.
presidential communications privilege are present; (4) the subpoena ad testificandum issued by
respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5)
I
the failure of the present Senate to publish its Rules renders the same void; and (6) respondent
Committees arbitrarily issued the contempt order.
There Is a Recognized Presumptive
Presidential Communications Privilege
Incidentally, respondent Committees' objection to the Resolution dated March 18, 2008 (granting
the Office of the Solicitor General's Motion for Leave to Intervene and to Admit Attached
Respondent Committees ardently argue that the Court's declaration that presidential
Memorandum) only after the promulgation of the Decision in this case is foreclosed by its
communications are presumptively privileged reverses the "presumption" laid down in Senate v.
untimeliness.

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Ermita[11] that "inclines heavily against executive secrecy and in favor of disclosure." Senate v. Ermita [20]expounds on the premise of the foregoing ruling in this wise:
Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon. 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
Respondent Committees argue as if this were the first time the presumption in favor of the authority and has the effect of prohibiting the official from appearing before Congress, subject
presidential communications privilege is mentioned and adopted in our legal system. That is far only to the express pronouncement of the President that it is allowing the appearance of such
from the truth. The Court, in the earlier case of Almonte v. Vasquez,[12] affirmed that the official. These provisions thus allow the President to authorize claims of privilege by mere
presidential communications privilege is fundamental to the operation of government and silence.
inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita,[13]
the case relied upon by respondent Committees, reiterated this concept. There, the Court Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
enumerated the cases in which the claim of executive privilege was recognized, among them Executive privilege, as already discussed, is recognized with respect to information the
Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),[14] and confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of
Chavez v. PEA.[15] The Court articulated in these cases that "there are certain types of the executive branch, or in those instances where exemption from disclosure is necessary to the
information which the government may withhold from the public,[16]" that there is a discharge of highly important executive responsibilities. The doctrine of executive privilege is
"governmental privilege against public disclosure with respect to state secrets regarding military, thus premised on the fact that certain information must, as a matter of necessity, be kept
diplomatic and other national security matters";[17] and that "the right to information does not confidential in pursuit of the public interest. The privilege being, by definition, an exemption
extend to matters recognized as `privileged information' under the separation of powers, by which from the obligation to disclose information, in this case to Congress, the necessity must be of such
the Court meant Presidential conversations, correspondences, and discussions in closed-door high degree as to outweigh the public interest in enforcing that obligation in a particular case.
Cabinet meetings."[18]
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
Respondent Committees' observation that this Court's Decision reversed the "presumption that President the power to invoke the privilege. She may of course authorize the Executive Secretary
inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal to invoke the privilege on her behalf, in which case the Executive Secretary must state that the
interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true authority is "By order of the President", which means that he personally consulted with her. The
intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, privilege being an extraordinary power, it must be wielded only by the highest official in the
but the decision must be considered in its entirety.[19] 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
Note that the aforesaid presumption is made in the context of the circumstances obtaining in authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further
Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, invalid on this score.
Series of 2005. The pertinent portion of the decision in the said case reads: The constitutional infirmity found in the blanket authorization to invoke executive privilege
From the above discussion on the meaning and scope of executive privilege, both in the United granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this
States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted case.
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 In this case, it was the President herself, through Executive Secretary Ermita, who invoked
claim thereof may be valid or not depending on the ground invoked to justify it and the context in executive privilege on a specific matter involving an executive agreement between the Philippines
which it is made. Noticeably absent is any recognition that executive officials are exempt from and China, which was the subject of the three (3) questions propounded to petitioner Neri in the
the duty to disclose information by the mere fact of being executive officials. Indeed, the course of the Senate Committees' investigation. Thus, the factual setting of this case markedly
extraordinary character of the exemptions indicates that the presumption inclines heavily differs from that passed upon in Senate v. Ermita.
against executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to
"exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, the ruling in Senate v. Ermita,[21] to wit:
solely by virtue of their positions in the Executive Branch. This means that when an executive Executive privilege
official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt
from disclosure, there can be no presumption of authorization to invoke executive privilege The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to
given by the President to said executive official, such that the presumption in this situation the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light
inclines heavily against executive secrecy and in favor of disclosure. of how it has been defined and used in the legal literature of the United States.

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Schwart 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 II
President and high-level executive branch officers to withhold information from Congress, the
courts, and ultimately the public." x x x In this jurisdiction, the doctrine of executive privilege There Are Factual and Legal Bases to
was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the Hold that the Communications Elicited by the Three (3) Questions Are Covered by Executive
same privilege subject of Nixon. It quoted the following portion of the Nixon decision which Privilege
explains the basis for the privilege:
Respondent Committees claim that the communications elicited by the three (3) questions are not
"The expectation of a President to the confidentiality of his conversations and correspondences, covered by executive privilege because the elements of the presidential communications
like the claim of confidentiality of judicial deliberations, for example, he has all the values to privilege are not present.
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 A. The power to enter into an executive
opinions in Presidential decision-making. A President and those who assist him must be free to agreement is a "quintessential and
explore alternatives in the process of shaping policies and making decisions and to do so in a way non-delegable presidential power."
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 First, respondent Committees contend that the power to secure a foreign loan does not relate to a
operation of government and inextricably rooted in the separation of powers under the "quintessential and non-delegable presidential power," because the Constitution does not vest it in
Constitution x x x " (Emphasis and italics supplied) the President alone, but also in the Monetary Board which is required to give its prior concurrence
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential and to report to Congress.
communication," which was recognized early on in Almonte v. Vasquez. To construe the passage
in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, This argument is unpersuasive.
referring to the non-existence of a "presumptive authorization" of an executive official, to mean
that the "presumption" in favor of executive privilege "inclines heavily against executive secrecy The fact that a power is subject to the concurrence of another entity does not make such power
and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same less executive. "Quintessential" is defined as the most perfect embodiment of something, the
engage in self-contradiction. concentrated essence of substance.[24] On the other hand, "non-delegable" means that a power or
duty cannot be delegated to another or, even if delegated, the responsibility remains with the
Senate v. Ermita[22] expounds on the constitutional underpinning of the relationship between the obligor.[25] The power to enter into an executive agreement is in essence an executive power.
Executive Department and the Legislative Department to explain why there should be no implied This authority of the President to enter into executive agreements without the concurrence of the
authorization or presumptive authorization to invoke executive privilege by the President's Legislature has traditionally been recognized in Philippine jurisprudence.[26] Now, the fact that
subordinate officials, as follows: the President has to secure the prior concurrence of the Monetary Board, which shall submit to
When Congress exercises its power of inquiry, the only way for department heads to exempt Congress a complete report of its decision before contracting or guaranteeing foreign loans, does
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact not diminish the executive nature of the power.
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 The inviolate doctrine of separation of powers among the legislative, executive and judicial
through the power of impeachment. It is based on he being the highest official of the executive branches of government by no means prescribes absolute autonomy in the discharge by each
branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by branch of that part of the governmental power assigned to it by the sovereign people. There is the
a long-standing custom. (Underscoring supplied) corollary doctrine of checks and balances, which has been carefully calibrated by the Constitution
Thus, if what is involved is the presumptive privilege of presidential communications when to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain
invoked by the President on a matter clearly within the domain of the Executive, the said legislative acts require action from the President for their validity does not render such acts less
presumption dictates that the same be recognized and be given preference or priority, in the legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the
absence of proof of a compelling or critical need for disclosure by the one assailing such Constitution mandates that every bill passed by Congress shall, before it becomes a law, be
presumption. Any construction to the contrary will render meaningless the presumption accorded presented to the President who shall approve or veto the same. The fact that the approval or
by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates vetoing of the bill is lodged with the President does not render the power to pass law executive in
jurisprudence citing "the considerations justifying a presumptive privilege for Presidential nature. This is because the power to pass law is generally a quintessential and non-delegable
communications."[23] power of the Legislature. In the same vein, the executive power to enter or not to enter into a

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contract to secure foreign loans does not become less executive in nature because of conditions officials who stand proximate to the President, not only by reason of their function, but also by
laid down in the Constitution. The final decision in the exercise of the said executive power is still reason of their positions in the Executive's organizational structure. Thus, respondent Committees'
lodged in the Office of the President. fear that the scope of the privilege would be unnecessarily expanded with the use of the
operational proximity test is unfounded.
B. The "doctrine of operational
proximity"was laid down precisely C. The President's claim of executive
to limit the scope of the presidential privilege is not merely based on a
communications privilege but, in generalized interest; and in
any case, it is not conclusive. balancing respondent Committees'
and the President's clashing
Second, respondent Committees also seek reconsideration of the application of the "doctrine of interests, the Court did not disregard
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the the 1987 Constitutional provisions
presidential communications privilege to communications between those who are `operationally on government transparency,
proximate' to the President but who may have "no direct communications with her." accountability and disclosure of
information.
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case[27] precisely to limit the scope of the presidential communications privilege. The U.S. court Third, respondent Committees claim that the Court erred in upholding the President's invocation,
was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully through the Executive Secretary, of executive privilege because (a) between respondent
cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies, Committees' specific and demonstrated need and the President's generalized interest in
and then only to White House staff that has "operational proximity" to direct presidential confidentiality, there is a need to strike the balance in favor of the former; and (b) in the balancing
decision-making, thus: of interest, the Court disregarded the provisions of the 1987 Philippine Constitution on
We are aware that such an extension, unless carefully circumscribed to accomplish the purposes government transparency, accountability and disclosure of information, specifically, Article III,
of the privilege, could pose a significant risk of expanding to a large swath of the executive Section 7;[29] Article II, Sections 24[30] and 28;[31] Article XI, Section 1;[32] Article XVI,
branch a privilege that is bottomed on a recognition of the unique role of the President. In order to Section 10;[33] Article VII, Section 20;[34] and Article XII, Sections 9,[35] 21,[36] and 22.[37]
limit this risk, the presidential communications privilege should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President's decision-making process is It must be stressed that the President's claim of executive privilege is not merely founded on her
adequately protected. Not every person who plays a role in the development of presidential generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive
advice, no matter how remote and removed from the President, can qualify for the privilege. Secretary Ermita specified presidential communications privilege in relation to diplomatic and
In particular, the privilege should not extend to staff outside the White House in executive economic relations with another sovereign nation as the bases for the claim. Thus, the Letter
branch agencies. Instead, the privilege should apply only to communications authored or stated:
solicited and received by those members of an immediate White House advisor's staff who have The context in which executive privilege is being invoked is that the information sought to
broad and significant responsibility for investigation and formulating the advice to be given the be disclosed might impair our diplomatic as well as economic relations with the People's
President on the particular matter to which the communications relate. Only communications at Republic of China. Given the confidential nature in which this information were conveyed to the
that level are close enough to the President to be revelatory of his deliberations or to pose a President, he cannot provide the Committee any further details of these conversations, without
risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" disclosing the very thing the privilege is designed to protect. (emphasis supplied)
to the President that matters in determining whether "[t]he President's confidentiality Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the
interests" is implicated). (Emphasis supplied) reasons for the claim with such particularity as to compel disclosure of the information which the
In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department.
(a fear apparently entertained by respondents) is absent because the official involved here is a
member of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter It is easy to discern the danger that goes with the disclosure of the President's communication
ego and a member of her official family. Nevertheless, in circumstances in which the official with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was
involved is far too remote, this Court also mentioned in the Decision the organizational test laid actually a product of the meeting of minds between officials of the Philippines and China.
down in Judicial Watch, Inc. v. Department of Justice.[28] This goes to show that the operational Whatever the President says about the agreement - particularly while official negotiations are
proximity test used in the Decision is not considered conclusive in every case. In determining ongoing - are matters which China will surely view with particular interest. There is danger in
which test to use, the main consideration is to limit the availability of executive privilege only to such kind of exposure. It could adversely affect our diplomatic as well as economic relations with

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the People's Republic of China. We reiterate the importance of secrecy in matters involving There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly
foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., [38] thus: all subjects is concerned. This, it is claimed, is incompatible with the substance of
The nature of foreign negotiations requires caution, and their success must often depend on democracy. As expressed by one writer, "It can be said that there is no more rigid system of
secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co.,
eventual concessions which may have been proposed or contemplated would be extremely 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we
impolitic, for this might have a pernicious influence on future negotiations or produce immediate must have "open covenants, openly arrived at." He quickly abandoned his thought.
inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such
caution and secrecy was one cogent reason for vesting the power of making treaties in the No one who has studied the question believes that such a method of publicity is possible. In the
President, with the advice and consent of the Senate, the principle on which the body was formed moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed
confining it to a small number of members. To admit, then, a right in the House of speech by one of the parties or a frank declaration of the concession which are exacted or
Representatives to demand and to have as a matter of course all the papers respecting a offered on both sides would quickly lead to a widespread propaganda to block the
negotiation with a foreign power would be to establish a dangerous precedent. negotiations. After a treaty has been drafted and its terms are fully published, there is ample
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers opportunity for discussion before it is approved. (The New American Government and Its
relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
Citizens Action Party, et al. v. Thomas G. Aquino, et al.[39] upheld the privileged character of
diplomatic negotiations. In Akbayan, the Court stated: Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Privileged character of diplomatic negotiations Corp. that the President is the sole organ of the nation in its negotiations with foreign
countries,viz:
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In "x x x In this vast external realm, with its important, complicated, delicate and manifold
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that problems, the President alone has the power to speak or listen as a representative of the nation. He
"information on inter-government exchanges prior to the conclusion of treaties and executive makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of
agreements may be subject to reasonable safeguards for the sake of national interest." Even negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall
earlier, the same privilege was upheld in People's Movement for Press Freedom (PMPF) v. said in his great arguments of March 7, 1800, in the House of Representatives, "The President is
Manglapus wherein the Court discussed the reasons for the privilege in more precise terms. the sole organ of the nation in its external relations, and its sole representative with foreign
nations." Annals, 6th Cong., col. 613... (Emphasis supplied; underscoring in the original)
In PMPF v. Manglapus, the therein petitioners were seeking information from the President's Considering that the information sought through the three (3) questions subject of this Petition
representatives on the state of the then on-going negotiations of the RP-US Military Bases involves the President's dealings with a foreign nation, with more reason, this Court is wary of
Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign approving the view that Congress may peremptorily inquire into not only official, documented
countries is not violative of the constitutional provisions of freedom of speech or of the press nor acts of the President but even her confidential and informal discussions with her close advisors on
of the freedom of access to information." The Resolution went on to state, thus: the pretext that said questions serve some vague legislative need. Regardless of who is in office,
The nature of diplomacy requires centralization of authority and expedition of decision this Court can easily foresee unwanted consequences of subjecting a Chief Executive to
which are inherent in executive action. Another essential characteristic of diplomacy is its unrestricted congressional inquiries done with increased frequency and great publicity. No
confidential nature. Although much has been said about "open" and "secret" diplomacy, with Executive can effectively discharge constitutional functions in the face of intense and unchecked
disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and legislative incursion into the core of the President's decision-making process, which inevitably
justified the practice. In the words of Mr. Stimson: would involve her conversations with a member of her Cabinet.
"A complicated negotiation ...cannot be carried through without many, many private talks
and discussion, man to man; many tentative suggestions and proposals. Delegates from With respect to respondent Committees' invocation of constitutional prescriptions regarding the
other countries come and tell you in confidence of their troubles at home and of their right of the people to information and public accountability and transparency, the Court finds
differences with other countries and with other delegates; they tell you of what they would nothing in these arguments to support respondent Committees' case.
do under certain circumstances and would not do under other circumstances... If these
reports... should become public... who would ever trust American Delegations in another There is no debate as to the importance of the constitutional right of the people to information and
conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284) the constitutional policies on public accountability and transparency. These are the twin postulates
vital to the effective functioning of a democratic government. The citizenry can become prey to
xxxx the whims and caprices of those to whom the power has been delegated if they are denied access

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to information. And the policies on public accountability and democratic government would his right to information does not have the same obligatory force as a subpoena duces tecum issued
certainly be mere empty words if access to such information of public concern is denied. by Congress" and "neither does the right to information grant a citizen the power to exact
testimony from government officials." As pointed out, these rights belong to Congress, not to the
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific individual citizen. It is worth mentioning at this juncture that the parties here are respondent
questions, did not in any way curb the public's right to information or diminish the importance of Committees and petitioner Neri and that there was no prior request for information on the part of
public accountability and transparency. any individual citizen. This Court will not be swayed by attempts to blur the distinctions between
the Legislature's right to information in a legitimate legislative inquiry and the public's right to
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of information.
legislation. There is nothing in the assailed Decision that prohibits respondent Committees from
inquiring into the NBN Project. They could continue the investigation and even call petitioner For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision Committees from inquiring into the NBN Project. All that is expected from them is to
merely excludes from the scope of respondents' investigation the three (3) questions that elicit respect matters that are covered by executive privilege.
answers covered by executive privilege and rules that petitioner cannot be compelled to appear
before respondents to answer the said questions. We have discussed the reasons why these III.
answers are covered by executive privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in other democratic States. To put it Respondent Committees Failed to Show That
simply, the right to information is not an absolute right. the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute
right to information. By their wording, the intention of the Framers to subject such right to the In their Motion for Reconsideration, respondent Committees devote an unusually lengthy
regulation of the law is unmistakable. The highlighted portions of the following provisions show discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight
the obvious limitations on the right to information, thus: inquiry.
Article III, Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official records, At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to Committees' inquiry into the NBN Project. To reiterate, this Court recognizes respondent
government research data used as basis for policy development, shall be afforded the citizen, Committees' power to investigate the NBN Project in aid of legislation. However, this Court
subject to such limitations as may be provided by law. cannot uphold the view that when a constitutionally guaranteed privilege or right is validly
invoked by a witness in the course of a legislative investigation, the legislative purpose of
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and respondent Committees' questions can be sufficiently supported by the expedient of mentioning
implements a policy of full public disclosure of all its transactions involving public interest. statutes and/or pending bills to which their inquiry as a whole may have relevance. The
(Emphasis supplied) jurisprudential test laid down by this Court in past decisions on executive privilege is that the
In Chavez v. Presidential Commission on Good Government,[40] it was stated that there are no presumption of privilege can only be overturned by a showing of compelling need for disclosure
specific laws prescribing the exact limitations within which the right may be exercised or the of the information covered by executive privilege.
correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to
such rights, among them: (1) national security matters, (2) trade secrets and banking transactions, In the Decision, the majority held that "there is no adequate showing of a compelling need that
(3) criminal matters, and (4) other confidential information. National security matters include would justify the limitation of the privilege and of the unavailability of the information elsewhere
state secrets regarding military and diplomatic matters, as well as information on inter- by an appropriate investigating authority." In the Motion for Reconsideration, respondent
government exchanges prior to the conclusion of treaties and executive agreements. It was Committees argue that the information elicited by the three (3) questions are necessary in the
further held that even where there is no need to protect such state secrets, they must be discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate
"examined in strict confidence and given scrupulous protection." Bills, and (b) to curb graft and corruption.

Incidentally, the right primarily involved here is the right of respondent Committees to obtain We remain unpersuaded by respondents' assertions.
information allegedly in aid of legislation, not the people's right to public information. This is the
reason why we stressed in the assailed Decision the distinction between these two rights. As laid In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other
down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to interests and it is necessary to resolve the competing interests in a manner that would preserve the

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essential functions of each branch. There, the Court weighed between presidential privilege and in confidentiality of communication will not be vitiated by disclosure of a limited number of
the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled conversations preliminarily shown to have some bearing on the pending criminal cases.
that the President's generalized assertion of privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial. We conclude that when the ground for asserting privilege as to subpoenaed materials sought for
use in a criminal trial is based only on the generalized interest in confidentiality, it cannot
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the prevail over the fundamental demands of due process of law in the fair administration of
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific
Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice need for evidence in a pending criminal trial. (emphasis supplied)
Puno's dissenting opinion, as follows: In the case at bar, we are not confronted with a court's need for facts in order to adjudge liability
"... this presumptive privilege must be considered in light of our historic commitment to the rule in a criminal case but rather with the Senate's need for information in relation to its legislative
of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of functions. This leads us to consider once again just how critical is the subject information in the
criminal justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 discharge of respondent Committees' functions. The burden to show this is on the respondent
U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in Committees, since they seek to intrude into the sphere of competence of the President in order to
which the parties contest all issues before a court of law. The need to develop all relevant facts gather information which, according to said respondents, would "aid" them in crafting legislation.
in the adversary system is both fundamental and comprehensive. The ends of criminal
justice would be defeated if judgments were to be founded on a partial or speculative Senate Select Committee on Presidential Campaign Activities v. Nixon[41] expounded on the
presentation of the facts. The very integrity of the judicial system and public confidence in nature of a legislative inquiry in aid of legislation in this wise:
the system depend on full disclosure of all the facts, within the framework of the rules of The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on
evidence. To ensure that justice is done, it is imperative to the function of courts that whether the subpoenaed materials are critical to the performance of its legislative functions. There
compulsory process be available for the production of evidence needed either by the is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or
prosecution or by the defense. any institution engaged in like functions. While fact-finding by a legislative committee is
undeniably a part of its task, legislative judgments normally depend more on the predicted
xxx xxx xxx consequences of proposed legislative actions and their political acceptability, than on precise
reconstruction of past events; Congress frequently legislates on the basis of conflicting
The right to the production of all evidence at a criminal trial similarly has constitutional information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the on its ability to determine whether there is probable cause to believe that certain named
right 'to be confronted with the witness against him' and 'to have compulsory process for individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of
obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees that no those crimes is perjury concerning the content of certain conversations, the grand jury's need for
person shall be deprived of liberty without due process of law. It is the manifest duty of the the most precise evidence, the exact text of oral statements recorded in their original form, is
courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and undeniable. We see no comparable need in the legislative process, at least not in the
admissible evidence be produced. circumstances of this case. Indeed, whatever force there might once have been in the
Committee's argument that the subpoenaed materials are necessary to its legislative judgments has
In this case we must weigh the importance of the general privilege of confidentiality of been substantially undermined by subsequent events. (Emphasis supplied)
Presidential communications in performance of the President's responsibilities against the Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
inroads of such a privilege on the fair administration of criminal justice. (emphasis supplied) demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be
xxx xxx xxx lightly applied to the instant case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.
... the allowance of the privilege to withhold evidence that is demonstrably relevant in a
criminal trial would cut deeply into the guarantee of due process of law and gravely impair Whatever test we may apply, the starting point in resolving the conflicting claims between the
the basic function of the courts. A President's acknowledged need for confidentiality in the Executive and the Legislative Branches is the recognized existence of the presumptive
communications of his office is general in nature, whereas the constitutional need for presidential communications privilege. This is conceded even in the Dissenting Opinion of the
production of relevant evidence in a criminal proceeding is specific and central to the fair Honorable Chief Justice Puno, which states:
adjudication of a particular criminal case in the administration of justice. Without access to A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified
specific facts a criminal prosecution may be totally frustrated. The President's broad interest presumption in favor of the Presidential communications privilege. As shown in the previous

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discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select
Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals,
as well as subsequent cases all recognize that there is a presumptive privilege in favor of
Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a Well, the question has been asked but it
presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent was not answered, Your Honor.
Senate Committees to overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject of this case, to enable
them to craft legislation. Here, there is simply a generalized assertion that the information is
pertinent to the exercise of the power to legislate and a broad and non-specific reference to
CHIEF JUSTICE PUNO
pending Senate bills. It is not clear what matters relating to these bills could not be determined
without the said information sought by the three (3) questions. As correctly pointed out by the
Honorable Justice Dante O. Tinga in his Separate Concurring Opinion: Yes. But my question is how critical is this
...If respondents are operating under the premise that the president and/or her executive
officials have committed wrongdoings that need to be corrected or prevented from recurring to the lawmaking function of the Senate?
by remedial legislation, the answer to those three questions will not necessarily bolster or
inhibit respondents from proceeding with such legislation. They could easily presume the
worst of the president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives ATTY . AGABIN
bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law.
Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees
impliedly admitted that the Senate could still come up with legislations even without petitioner
answering the three (3) questions. In other words, the information being elicited is not so critical
I believe it is critical, Your Honor.
after all. Thus:

CHIEF JUSTICE PUNO CHIEF JUSTICE PUNO

So can you tell the Court how critical are Why?


these questions to the lawmaking function
of the Senate. For instance, question ATTY . AGABIN
Number 1 whether the President followed
up the NBN project. According to the
other counsel this question has already
been asked, is that correct?

ATTY . AGABIN
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For instance, with respect to the proposed Again, about the second question, were
Bill of Senator Miriam Santiago, she you dictated to prioritize this ZTE, is that
would like to indorse a Bill to include critical to the lawmaking function of the
Executive Agreements had been used as a Senate? Will it result to the failure of the
device to the circumventing the Senate to cobble a Bill without this
Procurement Law. question?

CHIEF JUSTICE PUNO ATTY . AGABIN

But the question is just following it up. I think it is critical to lay the factual
foundations for a proposed amendment to
ATTY . AGABIN the Procurement Law, Your Honor,
because the petitioner had already
I believe that may be the initial question, testified that he was offered a P200
Your Honor, because if we look at this Million bribe, so if he was offered a P200
problem in its factual setting as counsel Million bribe it is possible that other
for petitioner has observed, there are government officials who had something
intimations of a bribery scandal involving to do with the approval of the contract
high government officials. would be offered the same amount of
bribes.
CHIEF JUSTICE PUNO
CHIEF JUSTICE PUNO

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The failure of the counsel for respondent Committees to pinpoint the specific need for the
Again, that is speculative. information sought or how the withholding of the information sought will hinder the
accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to
the failure of the respondent Committees to successfully discharge this burden, the presumption in
ATTY . AGABIN favor of confidentiality of presidential communication stands. The implication of the said
presumption, like any other, is to dispense with the burden of proof as to whether the disclosure
will significantly impair the President's performance of her function. Needless to state this is
assumed, by virtue of the presumption.
That is why they want to continue with the Anent respondent Committees' bewailing that they would have to "speculate" regarding the
investigation, Your Honor. questions covered by the privilege, this does not evince a compelling need for the information
sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon[43] held
that while fact-finding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed legislative actions
CHIEF JUSTICE PUNO and their political acceptability than on a precise reconstruction of past events. It added that,
normally, Congress legislates on the basis of conflicting information provided in its hearings. We
cannot subscribe to the respondent Committees' self-defeating proposition that without the
How about the third question, whether answers to the three (3) questions objected to as privileged, the distinguished members of the
respondent Committees cannot intelligently craft legislation.
the President said to go ahead and Anent the function to curb graft and corruption, it must be stressed that respondent Committees'
approve the project after being told about need for information in the exercise of this function is not as compelling as in instances when the
purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is
the alleged bribe. How critical is that to merely an oversight function of Congress.[44] And if this is the primary objective of respondent
Committees in asking the three (3) questions covered by privilege, it may even contradict their
the lawmaking function of the Senate? claim that their purpose is legislative in nature and not oversight. In any event, whether or not
investigating graft and corruption is a legislative or oversight function of Congress, respondent
And the question is may they craft a Bill a Committees' investigation cannot transgress bounds set by the Constitution.

remedial law without forcing petitioner In Bengzon, Jr. v. Senate Blue Ribbon Committee,[45] this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform under
Neri to answer this question? the Constitution. Moreover, as held in a recent case, "the political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated
by the 1987 Constitution, although said provision by no means does away with the applicability
ATTY . AGABIN of the principle in appropriate cases.[46] (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is
not really `in aid of legislation' because it is not related to a purpose within the jurisdiction of
Well, they can craft it, Your Honor, Congress, since the aim of the investigation is to find out whether or not the relatives of the
President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and
based on mere speculation. And sound Corrupt Practices Act, a matter that appears more within the province of the courts rather
than of the Legislature."[47] (Emphasis and underscoring supplied)
legislation requires that a proposed Bill The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the
should have some basis in fact.[42] Office of the President.[48] While it may be a worthy endeavor to investigate the potential

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culpability of high government officials, including the President, in a given government graft and corruption even without the information covered by the three (3) questions subject of
transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to make the petition.
laws, not to determine anyone's guilt of a crime or wrongdoing. Our Constitution has not
bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Corollarily, respondent Committees justify their rejection of petitioner's claim of executive
Legislature adjudicate or prosecute. privilege on the ground that there is no privilege when the information sought might involve a
crime or illegal activity, despite the absence of an administrative or judicial determination to
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a that effect. Significantly, however, in Nixon v. Sirica,[52] the showing required to overcome the
"search for truth," which in respondent Committees' view appears to be equated with the search presumption favoring confidentiality turned, not on the nature of the presidential conduct that
for persons responsible for "anomalies" in government contracts. the subpoenaed material might reveal, but, instead, on the nature and appropriateness of
the function in the performance of which the material was sought, and the degree to which
No matter how noble the intentions of respondent Committees are, they cannot assume the power the material was necessary to its fulfillment.
reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a
crime or illegal activity, the investigation of the role played by each official, the determination of Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities
who should be haled to court for prosecution and the task of coming up with conclusions and v. Nixon does not apply to the case at bar because, unlike in the said case, no impeachment
finding of facts regarding anomalies, especially the determination of criminal guilt, are not proceeding has been initiated at present. The Court is not persuaded. While it is true that no
functions of the Senate. Congress is neither a law enforcement nor a trial agency. Moreover, it impeachment proceeding has been initiated, however, complaints relating to the NBN Project
bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a have already been filed against President Arroyo and other personalities before the Office of the
legitimate task of the Congress, i.e. legislation. Investigations conducted solely to gather Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are
incriminatory evidence and "punish" those investigated are indefensible. There is no the bodies equipped and mandated by the Constitution and our laws to determine whether or not
Congressional power to expose for the sake of exposure.[49] In this regard, the pronouncement in the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and
Barenblatt v. United States[50] is instructive, thus: penalized for criminal conduct.
Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire into Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of
matters which are within the exclusive province of one of the other branches of the government. evidence essential to arrive at accurate factual findings to which to apply the law. Hence, Section
Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that
exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively "technical rules of evidence applicable to judicial proceedings which do not affect substantive
belongs to the Executive. (Emphasis supplied.) rights need not be observed by the Committee." Court rules which prohibit leading, hypothetical,
At this juncture, it is important to stress that complaints relating to the NBN Project have already or repetitive questions or questions calling for a hearsay answer, to name a few, do not apply to a
been filed against President Arroyo and other personalities before the Office of the Ombudsman. legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has
Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or the right to be presumed innocent until proven guilty in proper proceedings by a competent court
omission of any public official, employee, office or agency when such act or omission or body.
appears to be illegal, unjust, improper, or inefficient."[51] The Office of the Ombudsman is
the body properly equipped by the Constitution and our laws to preliminarily determine whether IV
or not the allegations of anomaly are true and who are liable therefor. The same holds true for our
courts upon which the Constitution reposes the duty to determine criminal guilt with finality. Respondent Committees Committed Grave
Indeed, the rules of procedure in the Office of the Ombudsman and the courts are well-defined Abuse of Discretion in Issuing the Contempt Order
and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses
alike, are protected and safeguarded. Respondent Committees insist that they did not commit grave abuse of discretion in issuing the
contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not
Should respondent Committees uncover information related to a possible crime in the course of violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in
their investigation, they have the constitutional duty to refer the matter to the appropriate agency accordance with their internal Rules; (4) they did not violate the requirement under Article VI,
or branch of government. Thus, the Legislature's need for information in an investigation of graft Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of
and corruption cannot be deemed compelling enough to pierce the confidentiality of information the contempt order is not arbitrary or precipitate.
validly covered by executive privilege. As discussed above, the Legislature can still legislate on
We reaffirm our earlier ruling.

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Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific
The legitimacy of the claim of executive privilege having been fully discussed in the preceding reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked.
pages, we see no reason to discuss it once again. As it were, the subpoena merely commanded him to "testify on what he knows relative to the
subject matter under inquiry."
Respondent Committees' second argument rests on the view that the ruling in Senate v. Ermita,
requiring invitations or subpoenas to contain the "possible needed statute which prompted the Anent the third argument, respondent Committees contend that their Rules of Procedure
need for the inquiry" along with the "usual indication of the subject of inquiry and the questions Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While
relative to and in furtherance thereof" is not provided for by the Constitution and is merely an it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-
obiter dictum. equal branch of government, however, when a constitutional requirement exists, the Court has the
duty to look into Congress' compliance therewith. We cannot turn a blind eye to possible
On the contrary, the Court sees the rationale and necessity of compliance with these requirements. violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo
v. De Venecia[56] is enlightening, thus:
An unconstrained congressional investigative power, like an unchecked Executive, generates its "Cases both here and abroad, in varying forms of expression, all deny to the courts the power to
own abuses. Consequently, claims that the investigative power of Congress has been abused (or inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own
has the potential for abuse) have been raised many times.[53] Constant exposure to congressional rules, in the absence of showing that there was a violation of a constitutional provision or the
subpoena takes its toll on the ability of the Executive to function effectively. The requirements set rights of private individuals.
forth in Senate v. Ermita are modest mechanisms that would not unduly limit Congress' power.
The legislative inquiry must be confined to permissible areas and thus, prevent the "roving United States v. Ballin, Joseph & Co., the rule was stated thus: `The Constitution empowers each
commissions" referred to in the U.S. case, Kilbourn v. Thompson.[54] Likewise, witnesses have House to determine its rules of proceedings. It may not by its rules ignore constitutional
their constitutional right to due process. They should be adequately informed what matters are to restraints or violate fundamental rights, and there should be a reasonable relation between
be covered by the inquiry. It will also allow them to prepare the pertinent information and the mode or method of proceeding established by the rule and the result which is sought to
documents. To our mind, these requirements concede too little political costs or burdens on the be attained."
part of Congress when viewed vis-à-vis the immensity of its power of inquiry. The logic of these In the present case, the Court's exercise of its power of judicial review is warranted because there
requirements is well articulated in the study conducted by William P. Marshall,[55] to wit: appears to be a clear abuse of the power of contempt on the part of respondent Committees.
A second concern that might be addressed is that the current system allows committees to Section 18 of the Rules provides that:
continually investigate the Executive without constraint. One process solution addressing this "The Committee, by a vote of majority of all its members, may punish for contempt any witness
concern is to require each investigation be tied to a clearly stated purpose. At present, the before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer
charters of some congressional committees are so broad that virtually any matter involving the proper questions by the Committee or any of its members." (Emphasis supplied)
Executive can be construed to fall within their province. Accordingly, investigations can proceed In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt
without articulation of specific need or purpose. A requirement for a more precise charge in order order because during the deliberation of the three (3) respondent Committees, only seven (7)
to begin an inquiry should immediately work to limit the initial scope of the investigation and Senators were present. This number could hardly fulfill the majority requirement needed by
should also serve to contain the investigation once it is instituted. Additionally, to the extent respondent Committee on Accountability of Public Officers and Investigations which has a
clear statements of rules cause legislatures to pause and seriously consider the constitutional membership of seventeen (17) Senators and respondent Committee on National Defense and
implications of proposed courses of action in other areas, they would serve that goal in the Security which has a membership of eighteen (18) Senators. With respect to respondent
context of congressional investigations as well. Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3)
members were present.[57] These facts prompted us to quote in the Decision the exchanges
The key to this reform is in its details. A system that allows a standing committee to simply between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the
articulate its reasons to investigate pro forma does no more than imposes minimal drafting issue of lack of the required majority to deliberate and vote on the contempt order.
burdens. Rather, the system must be designed in a manner that imposes actual burdens on
the committee to articulate its need for investigation and allows for meaningful debate about When asked about such voting during the March 4, 2008 hearing before this Court, Senator
the merits of proceeding with the investigation. (Emphasis supplied) Francis Pangilinan stated that any defect in the committee voting had been cured because two-
Clearly, petitioner's request to be furnished an advance copy of questions is a reasonable demand thirds of the Senators effectively signed for the Senate in plenary session.[58]
that should have been granted by respondent Committees.
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt
order is flawed. Instead of being submitted to a full debate by all the members of the respondent

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Committees, the contempt order was prepared and thereafter presented to the other members for Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even
signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful legislative investigations, of the Senate of a particular Congress are considered terminated upon
representation of the proceedings that took place on said date. Records clearly show that not all of the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress
those who signed the contempt order were present during the January 30, 2008 deliberation when to take up such unfinished matters, not in the same status, but as if presented for the first time.
the matter was taken up. The logic and practicality of such a rule is readily apparent considering that the Senate of the
succeeding Congress (which will typically have a different composition as that of the previous
Section 21, Article VI of the Constitution states that: Congress) should not be bound by the acts and deliberations of the Senate of which they had no
The Senate or the House of Representatives or any of its respective committees may conduct part. If the Senate is a continuing body even with respect to the conduct of its business, then
inquiries in aid of legislation in accordance with its duly published rules of procedure. The pending matters will not be deemed terminated with the expiration of one Congress but will, as a
rights of person appearing in or affected by such inquiries shall be respected. (Emphasis matter of course, continue into the next Congress with the same status.
supplied)
All the limitations embodied in the foregoing provision form part of the witness' settled This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the
expectation. If the limitations are not observed, the witness' settled expectation is shattered. Here, conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate's main
how could there be a majority vote when the members in attendance are not enough to arrive at rules of procedure) states:
such majority? Petitioner has the right to expect that he can be cited in contempt only through a RULE LI
majority vote in a proceeding in which the matter has been fully deliberated upon. There is a AMENDMENTS TO, OR REVISIONS OF, THE RULES
greater measure of protection for the witness when the concerns and objections of the members
are fully articulated in such proceeding. We do not believe that respondent Committees have the SEC. 136. At the start of each session in which the Senators elected in the preceding
discretion to set aside their rules anytime they wish. This is especially true here where what is elections shall begin their term of office, the President may endorse the Rules to the
involved is the contempt power. It must be stressed that the Rules are not promulgated for their appropriate committee for amendment or revision.
benefit. More than anybody else, it is the witness who has the highest stake in the proper
observance of the Rules. The Rules may also be amended by means of a motion which should be presented at least one day
before its consideration, and the vote of the majority of the Senators present in the session shall be
Having touched the subject of the Rules, we now proceed to respondent Committees' fourth required for its approval. (emphasis supplied)
argument. Respondent Committees argue that the Senate does not have to publish its Rules
because the same was published in 1995 and in 2006. Further, they claim that the Senate is a RULE LII
continuing body; thus, it is not required to republish the Rules, unless the same is repealed or DATE OF TAKING EFFECT
amended.
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. force until they are amended or repealed. (emphasis supplied)
Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved Section 136 of the Senate Rules quoted above takes into account the new composition of the
as an entity with each national election or change in the composition of its members. However, in Senate after an election and the possibility of the amendment or revision of the Rules at the start
the conduct of its day-to-day business the Senate of each Congress acts separately and of each session in which the newly elected Senators shall begin their term.
independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this
when it states: However, it is evident that the Senate has determined that its main rules are intended to be valid
from the date of their adoption until they are amended or repealed. Such language is
RULE XLIV conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven
UNFINISHED BUSINESS (7) days after publication in two (2) newspapers of general circulation."[59] The latter does not
explicitly provide for the continued effectivity of such rules until they are amended or repealed. In
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in view of the difference in the language of the two sets of Senate rules, it cannot be presumed that
the same status. the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next
Congress may easily adopt different rules for its legislative inquiries which come within the rule
All pending matters and proceedings shall terminate upon the expiration of one (1) on unfinished business.
Congress, but may be taken by the succeeding Congress as if present for the first time. (emphasis
supplied)

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The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted wholeheartedly concurs with the proposition that it is imperative for the continued health of our
in accordance with the duly published rules of procedure is categorical. It is incumbent upon democratic institutions that we preserve the constitutionally mandated checks and balances
the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the among the different branches of government.
published rules clearly state that the same shall be effective in subsequent Congresses or until
they are amended or repealed to sufficiently put public on notice. In the present case, it is respondent Committees' contention that their determination on the
validity of executive privilege should be binding on the Executive and the Courts. It is their
If it was the intention of the Senate for its present rules on legislative inquiries to be effective assertion that their internal procedures and deliberations cannot be inquired into by this Court
even in the next Congress, it could have easily adopted the same language it had used in its main supposedly in accordance with the principle of respect between co-equal branches of government.
rules regarding effectivity. Interestingly, it is a courtesy that they appear to be unwilling to extend to the Executive (on the
matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or to wonder: In respondent Committees' paradigm of checks and balances, what are the checks to
proceedings conducted pursuant to the subject Rules are null and void. Only those that result in the Legislature's all-encompassing, awesome power of investigation? It is a power, like any other,
violation of the rights of witnesses should be considered null and void, considering that the that is susceptible to grave abuse.
rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article
VI of the Constitution. Sans such violation, orders and proceedings are considered valid and While this Court finds laudable the respondent Committees' well-intentioned efforts to ferret out
effective. corruption, even in the highest echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and granted instead to the other
Respondent Committees' last argument is that their issuance of the contempt order is not branches of government.
precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their
argument. There is no question that any story of government malfeasance deserves an inquiry into its
veracity. As respondent Committees contend, this is founded on the constitutional command of
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of transparency and public accountability. The recent clamor for a "search for truth" by the general
respondent Committees, petitioner did not assume that they no longer had any other questions for public, the religious community and the academe is an indication of a concerned citizenry, a
him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new nation that demands an accounting of an entrusted power. However, the best venue for this noble
matters. His only request was that he be furnished a copy of the new questions in advance to undertaking is not in the political branches of government. The customary partisanship and the
enable him to adequately prepare as a resource person. He did not attend the November 20, 2007 absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or
hearing because Executive Secretary Ermita requested respondent Committees to dispense with achieving justice that meets the test of the constitutional guarantee of due process of law. We
his testimony on the ground of executive privilege. Note that petitioner is an executive official believe the people deserve a more exacting "search for truth" than the process here in question, if
under the direct control and supervision of the Chief Executive. Why punish petitioner for that is its objective.
contempt when he was merely directed by his superior? Besides, save for the three (3) questions,
he was very cooperative during the September 26, 2007 hearing. WHEREFORE, respondent Committees' Motion for Reconsideration dated April 8, 2008 is
hereby DENIED.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of
ruling on Executive Secretary Ermita's claim of executive privilege, they curtly dismissed it as SO ORDERED.
unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their
ruling and given him time to decide whether to accede or file a motion for reconsideration. After
all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of
government. He is an alter ego of the President. The same haste and impatience marked the
issuance of the contempt order, despite the absence of the majority of the members of the
respondent Committees, and their subsequent disregard of petitioner's motion for reconsideration
alleging the pendency of his petition for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are
political branches of government. In a free and democratic society, the interests of these branches
inevitably clash, but each must treat the other with official courtesy and respect. This Court

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The Senate Committee on National Defense and Security likewise issued invitations[2] dated
SENATE OF PHILIPPINES v. EDUARDO R. September 22, 2005 to the following officials of the AFP: the Commanding General of the
ERMITA Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral
Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R.
522 Phil. 1 Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and
CARPIO MORALES, J.: Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to
A transparent government is one of the hallmarks of a truly republican state. Even in the early attend as resource persons in a public hearing scheduled on September 28, 2005 on the following:
history of republican thought, however, it has been recognized that the head of government may (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled
keep certain information confidential in pursuit of the public interest. Explaining the reason for "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral
vesting executive power in only one magistrate, a distinguished delegate to the U.S. Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E.
Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping Capital of the
characterize the proceedings of one man, in a much more eminent degree than the proceedings of World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled
any greater number; and in proportion as the number is increased, these qualities will be "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo
diminished."[1] Madrigal - Resolution Directing the Committee on National Defense and Security to Conduct an
Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the So-
History has been witness, however, to the fact that the power to withhold information lends itself called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator Biazon -
to abuse, hence, the necessity to guard it zealously. Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in
Aid of Legislation, on the Wire-Tapping of the President of the Philippines.
The present consolidated petitions for certiorari and prohibition proffer that the President has
abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of
thus pray for its declaration as null and void for being unconstitutional. Staff, General Generoso S. Senga who, by letter[3] dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that demands [his] utmost personal
In resolving the controversy, this Court shall proceed with the recognition that the issuance under attention" while "some of the invited AFP officers are currently attending to other urgent
review has come from a co-equal branch of government, which thus entitles it to a strong operational matters."
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 On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary
of the sovereign will of the Filipino people, must prevail over any issuance of the government that Eduardo R. Ermita a letter[4] dated September 27, 2005 "respectfully request[ing] for the
contravenes its mandates. postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate opportunity to study and prepare for the various issues so that they may better enlighten the
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the Senate Committee on its investigation."
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 Senate President Drilon, however, wrote[5] Executive Secretary Ermita that the Senators "are
Philippines (AFP), and the Philippine National Police (PNP). unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and
arrangements as well as notices to all resource persons were completed [the previous] week."
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 on September 29, 2005 as Senate President Drilon likewise received on September 28, 2005 a letter[6] from the President of
resource speakers in a public hearing on the railway project of the North Luzon Railways the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the
Corporation with the China National Machinery and Equipment Group (hereinafter North Rail NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on
Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile the contract agreements relative to the project had been secured.
urging the Senate to investigate the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project. On September 28, 2005, 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,

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and For Other Purposes,"[7] which, pursuant to Section 6 thereof, took effect immediately. The • Senior national security officials who in the judgment of the National Security Adviser
salient provisions of the Order are as follows: are covered by the executive privilege; and
SECTION 1. Appearance by Heads of Departments Before Congress. - In accordance with Article • Such other officers as may be determined by the President.
VI, Section 22 of the Constitution and to implement the Constitutional provisions on the SECTION 3. Appearance of Other Public Officials Before Congress. - All public officials
separation of powers between co-equal branches of the government, all heads of departments of enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing
the Executive Branch of the government shall secure the consent of the President prior to before either House of Congress to ensure the observance of the principle of separation of powers,
appearing before either House of Congress. adherence to the rule on executive privilege and respect for the rights of public officials appearing
in inquiries in aid of legislation. (Emphasis and underscoring supplied)
When the security of the State or the public interest so requires and the President so states in Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a
writing, the appearance shall only be conducted in executive session. copy of E.O. 464, and another letter[8] 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
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. - 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
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to date of the hearing on the alleged wiretapping, Gen. Senga sent a letter[9] to Senator Biazon,
the operation of government and rooted in the separation of powers under the Constitution Chairperson of the Committee on National Defense and Security, informing him "that per
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the instruction of [President Arroyo], thru the Secretary of National Defense, no officer of the [AFP]
Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public is authorized to appear before any Senate or Congressional hearings without seeking a written
Officials and Employees shall not use or divulge confidential or classified information officially approval from the President" and "that no approval has been granted by the President to any AFP
known to them by reason of their office and not made available to the public to prejudice the officer to appear before the public hearing of the Senate Committee on National Defense and
public interest. Security scheduled [on] 28 September 2005."

Executive privilege covers all confidential or classified information between the President and the Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
public officers covered by this executive order, including: investigation scheduled by the Committee on National Defense and Security pushed through, with
• Conversations and correspondence between the President and the public official covered only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.
by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v.
Public Estates Authority, G.R. No. 133250, 9 July 2002); For defying President Arroyo's order barring military personnel from testifying before legislative
• Military, diplomatic and other national security matters which in the interest of national inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their
security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; military posts and were made to face court martial proceedings.
Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998). As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary
• Information between inter-government agencies prior to the conclusion of treaties and Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following
executive agreements (Chavez v. Presidential Commission on Good Government, G.R. government officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro
No. 130716, 9 December 1998); Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State
• Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of
Government, G.R. No. 130716, 9 December 1998); Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
• Matters affecting national security and public order (Chavez v. Public Estates Authority, Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II,
G.R. No. 133250, 9 July 2002). Monetary Board Member Juanita Amatong, Bases Conversion Development Authority
(b) Who are covered. - The following are covered by this executive order: Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.[10] NorthRail President Cortes
• Senior officials of executive departments who in the judgment of the department heads sent personal regrets likewise citing E.O. 464.[11]
are covered by the executive privilege;
• Generals and flag officers of the Armed Forces of the Philippines and such other officers On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for
who in the judgment of the Chief of Staff are covered by the executive privilege; certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O.
• Philippine National Police (PNP) officers with rank of chief superintendent or higher and 464.
such other officers who in the judgment of the Chief of the PNP are covered by the
executive privilege;

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In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur resolved to avert a constitutional crisis between the executive and legislative branches of the
Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, government.
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 Meanwhile, by letter[14] dated February 6, 2006, Senator Biazon reiterated his invitation to Gen.
standing to file the suit because of the transcendental importance of the issues they posed, pray, in Senga for him and other military officers to attend the hearing on the alleged wiretapping
their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent scheduled on February 10, 2005. Gen. Senga replied, however, by letter[15] dated February 8,
Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance
Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who from the President to allow [them] to appear before the public hearing" and that "they will attend
appear before Congress due to congressional summons. Additionally, petitioners claim that E.O. once [their] request is approved by the President." As none of those invited appeared, the hearing
464 infringes on their rights and impedes them from fulfilling their respective obligations. Thus, on February 10, 2006 was cancelled.[16]
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 In another investigation conducted jointly by the Senate Committee on Agriculture and Food and
members of Congress to conduct investigation in aid of legislation and conduct oversight the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under
functions in the implementation of laws; Courage alleges that the tenure of its members in public the Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet
office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should officials were invited to the hearings scheduled on October 5 and 26, November 24 and December
they be summoned by Congress; and CODAL alleges that its members have a sworn duty to 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant
uphold the rule of law, and their rights to information and to transparent governance are Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R.
threatened by the imposition of E.O. 464. Gicana,[17] and those from the Department of Budget and Management[18] having invoked E.O.
464.
In 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 In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and
petition that E.O. 464 be declared null and void for being unconstitutional. Presidential Spokesperson Ignacio R. Bunye,[19] DOJ Secretary Raul M. Gonzalez[20] and
Department of Interior and Local Government Undersecretary Marius P. Corpus[21]
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.[12] (ALG), alleging that as a communicated their inability to attend due to lack of appropriate clearance from the President
coalition of 17 legal resource non-governmental organizations engaged in developmental pursuant to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye
lawyering and work with the poor and marginalized sectors in different parts of the country, and was allowed to attend by Executive Secretary Ermita.
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 On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of
public concern, a right which was denied to the public by E.O. 464,[13] prays, that said order be Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
declared null and void for being unconstitutional and that respondent Executive Secretary Ermita Philippines as the official organization of all Philippine lawyers, all invoking their constitutional
be ordered to cease from implementing it. 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.
On October 11, 2005, Petitioner Senate of the Philippines, 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 All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents
injury, as it has already sustained the same with its continued enforcement since it directly from implementing, enforcing, and observing E.O. 464.
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, In the oral arguments on the petitions conducted on February 21, 2006, the following substantive
docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional. issues were ventilated: (1) whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general
On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II,
Philippine Senate and House of Representatives, filed a similar petition for certiorari and Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI,
prohibition, docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or
because it hampers its legislative agenda to be implemented through its members in Congress, controversy that calls for judicial review was not taken up; instead, the parties were instructed to
particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be discuss it in their respective memoranda.

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After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of
face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four whether the requisites for a valid exercise of the Court's power of judicial review are present is in
instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the order.
Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.[22]
Like almost all powers conferred by the Constitution, the power of judicial review is subject to
Petitioners in G.R. No. 169660[23] and G.R. No. 169777[24] filed their memoranda on March 7, limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of
2006, while those in G.R. No. 169667[25] and G.R. No. 169834[26] filed theirs the next day or judicial power; (2) the person challenging the act must have standing to challenge the validity of
on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum. 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)
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
memorandum[27] was granted, subsequently filed a manifestation[28] dated March 14, 2006 that constitutionality must be the very lis mota of the case.[39]
it would no longer file its memorandum in the interest of having the issues resolved soonest,
prompting this Court to issue a Resolution reprimanding them.[29] 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
Petitioners submit that E.O. 464 violates the following constitutional provisions: omitted.

Art. VI, Sec. 21[30] Standing

Art. VI, Sec. 22[31] Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659,
169660 and 169667 make it clear that they, adverting to the non-appearance of several officials of
Art. VI, Sec. 1[32] 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
Art. XI, Sec. 1[33] 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
Art. III, Sec. 7[34] 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
Art. III, Sec. 4[35] which was aborted due to the implementation of E.O. 464.

Art. XIII, Sec. 16[36] 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
Art. II, Sec. 28[37] 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."[40]
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum[38] on March 13, 2006 for the dismissal of the petitions for lack of merit. 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
The Court synthesizes the issues to be resolved as follows: power.[41]
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. With regard to the petition filed by the Senate, respondents argue that in the absence of a personal
3. Whether E.O. 464 violates the right of the people to information on matters of public or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are
concern; and not the proper parties to assail the constitutionality of E.O. 464.
4.
5. Whether respondents have committed grave abuse of discretion when they implemented Invoking this Court's ruling in National Economic Protectionism Association v. Ongpin[42] and
E.O. 464 prior to its publication in a newspaper of general circulation. Valmonte v. Philippine Charity Sweepstakes Office,[43] respondents assert that to be considered a
Essential requisites for judicial review

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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.[44] 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
That the Senate of the Philippines has a fundamental right essential not only for intelligent public constitutional crisis. For it to be accorded standing on the ground of transcendental importance,
decision-making in a democratic system, but more especially for sound legislation[45] is not however, it must establish (1) the character of the funds (that it is public) or other assets involved
disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access in the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition
information that is crucial to law-making.[46] Verily, the Senate, including its individual by the public respondent agency or instrumentality of the government, and (3) the lack of any
members, has a substantial and direct interest over the outcome of the controversy and is the party with a more direct and specific interest in raising the questions being raised.[54] The first
proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to and last determinants not being present as no public funds or assets are involved and petitioners in
maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of the
and are allowed to sue to question the validity of any official action which they claim infringes controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O.
their prerogatives as legislators.[47] 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
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan threatened, is that indispensable element of a dispute which serves in part to cast it in a form
Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), traditionally capable of judicial resolution.[55] In fine, PDP-Laban's alleged interest as a political
and Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the party does not suffice to clothe it with legal standing.
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 Actual Case or Controversy
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 Petitioners assert that an actual case exists, they citing the absence of the executive officials
functions in the implementation of laws. invited by the Senate to its hearings after the issuance of E.O. 464, particularly those on the
NorthRail project and the wiretapping controversy.
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 Respondents counter that there is no case or controversy, there being no showing that President
participate in the legislative process consonant with the declared policy underlying the party list Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.[56]
system of affording citizens belonging to marginalized and underrepresented sectors, These officials, they claim, merely communicated to the Senate that they have not yet secured the
organizations and parties who lack well-defined political constituencies to contribute to the consent of the President, not that the President prohibited their attendance.[57] Specifically with
formulation and enactment of legislation that will benefit the nation.[48] regard to the AFP officers who did not attend the hearing on September 28, 2005, respondents
claim that the instruction not to attend without the President's consent was based on its role as
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, Commander-in-Chief of the Armed Forces, not on E.O. 464.
passing on the standing of their co-petitioners Courage and Codal is rendered unnecessary.[49]
Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the
In filing their respective petitions, Chavez, the ALG which claims to be an organization of President will abuse its power of preventing the appearance of officials before Congress, and that
citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf of its such apprehension is not sufficient for challenging the validity of E.O. 464.
lawyer members,[50] 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 Court finds respondents' assertion that the President has not withheld her consent or
the effective exercise of other constitutional rights[51] and to the maintenance of the balance of prohibited the appearance of the officials concerned immaterial in determining the existence of an
power among the three branches of the government through the principle of checks and balances. actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a
[52] deliberate withholding of consent or an express prohibition issuing from the President in order to
bar officials from appearing before Congress.
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 As the implementation of the challenged order has already resulted in the absence of officials
personal. In Franciso v. House of Representatives,[53] this Court held that when the proceeding invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for
involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement any further event before considering the present case ripe for adjudication. Indeed, it would be
of personal interest.

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sheer abandonment of duty if this Court would now refrain from passing on the constitutionality the power to legislate.[60] The matters which may be a proper subject of legislation and those
of E.O. 464. 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.
Constitutionality of E.O. 464
Thus, the Court found that the Senate investigation of the government transaction involved in
E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure of
Congress of the information in the possession of these officials. To resolve the question of public funds of which Congress is the guardian, the transaction, the Court held, "also involved
whether such withholding of information violates the Constitution, consideration of the general government agencies created by Congress and officers whose positions it is within the power of
power of Congress to obtain information, otherwise known as the power of inquiry, is in order. Congress to regulate or even abolish."

The power of inquiry 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
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the most familiar with and informed on executive operations.
Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its respective committees As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
may conduct inquiries in aid of legislation in accordance with its duly published rules of necessity of information in the legislative process. If the information possessed by executive
procedure. The rights of persons appearing in or affected by such inquiries shall be respected. officials on the operation of their offices is necessary for wise legislation on that subject, by parity
(Underscoring supplied) of reasoning, Congress has the right to that information and the power to compel the disclosure
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, thereof.
in the latter, it vests the power of inquiry in the unicameral legislature established therein - the
Batasang Pambansa - and its committees. 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
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the
[58] a case decided in 1950 under that Constitution, the Court already recognized that the power Court's certiorari powers under Section 1, Article VIII of the Constitution.
of inquiry is inherent in the power to legislate.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,[61] the inquiry itself might not
Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such
and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid
leading witness in the controversy, was called to testify thereon by the Senate. On account of his such a result as occurred in Bengzon is to indicate in its invitations to the public officials
refusal to answer the questions of the senators on an important point, he was, by resolution of the concerned, or to any person for that matter, the possible needed statute which prompted the need
Senate, detained for contempt. Upholding the Senate's power to punish Arnault for contempt, this for the inquiry. Given such statement in its invitations, along with the usual indication of the
Court held: subject of inquiry and the questions relative to and in furtherance thereof, there would be less
Although there is no provision in the Constitution expressly investing either House of Congress room for speculation on the part of the person invited on whether the inquiry is in aid of
with power to make investigations and exact testimony to the end that it may exercise its legislation.
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 Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power
essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate of inquiry. The provision requires that the inquiry be done in accordance with the Senate or
wisely or effectively in the absence of information respecting the conditions which the legislation House's duly published rules of procedure, necessarily implying the constitutional infirmity of an
is intended to affect or change; and where the legislative body does not itself possess the requisite inquiry conducted without duly published rules of procedure. Section 21 also mandates that the
information - which is not infrequently true - recourse must be had to others who do possess it. rights of persons appearing in or affected by such inquiries be respected, an imposition that
Experience has shown that mere requests for such information are often unavailing, and also that obligates Congress to adhere to the guarantees in the Bill of Rights.
information which is volunteered is not always accurate or complete; so some means of
compulsion is essential to obtain what is needed.[59] . . . (Emphasis and underscoring supplied) These abuses are, of course, remediable before the courts, upon the proper suit filed by the
That this power of inquiry is broad enough to cover officials of the executive branch may be persons affected, even if they belong to the executive branch. Nonetheless, there may be
deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of abuse

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of the legislative power of inquiry might be established, resulting in palpable violations of the informers in some circumstances and a qualified right to withhold information related to pending
rights guaranteed to members of the executive department under the Bill of Rights. In such investigations. x x x"[69] (Emphasis and underscoring supplied)
instances, depending on the particulars of each case, attempts by the Executive Branch to forestall The entry in Black's Law Dictionary on "executive privilege" is similarly instructive regarding the
these abuses may be accorded judicial sanction. scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power executive from disclosure requirements applicable to the ordinary citizen or organization where
of inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures such exemption is necessary to the discharge of highly important executive responsibilities
prominently in the challenged order, it being mentioned in its provisions, its preambular clauses, involved in maintaining governmental operations, and extends not only to military and diplomatic
[62] and in its very title, a discussion of executive privilege is crucial for determining the secrets but also to documents integral to an appropriateexercise of the executive" domestic
constitutionality of E.O. 464. decisional and policy making functions, that is, those documents reflecting the frank expression
necessary in intra-governmental advisory and deliberative communications.[70] (Emphasis and
Executive privilege underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that it
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the would be considered privileged in all instances. For in determining the validity of a claim of
promulgation of the 1986 Constitution.[63] Being of American origin, it is best understood in privilege, the question that must be asked is not only whether the requested information falls
light of how it has been defined and used in the legal literature of the United States. within one of the traditional privileges, but also whether that privilege should be honored in a
given procedural setting.[71]
Schwartz defines executive privilege as "the power of the Government to withhold information
from the public, the courts, and the Congress."[64] Similarly, Rozell defines it as "the right of the The leading case on executive privilege in the United States is U.S. v. Nixon, [72] decided in
President and high-level executive branch officers to withhold information from Congress, the 1974. In issue in that case was the validity of President Nixon's claim of executive privilege
courts, and ultimately the public."[65] against a subpoena issued by a district court requiring the production of certain tapes and
documents relating to the Watergate investigations. The claim of privilege was based on the
Executive privilege is, nonetheless, not a clear or unitary concept.[66] It has encompassed claims President's general interest in the confidentiality of his conversations and correspondence. The
of varying kinds.[67] Tribe, in fact, comments that while it is customary to employ the phrase U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the
"executive privilege," it may be more accurate to speak of executive privileges "since presidential U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge
refusals to furnish information may be actuated by any of at least three distinct kinds of of a President's powers. The Court, nonetheless, rejected the President's claim of privilege, ruling
considerations, and may be asserted, with differing degrees of success, in the context of either that the privilege must be balanced against the public interest in the fair administration of criminal
judicial or legislative investigations." justice. Notably, the Court was careful to clarify that it was not there addressing the issue of
claims of privilege in a civil litigation or against congressional demands for information.
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is of such nature that Cases in the U.S. which involve claims of executive privilege against Congress are rare.[73]
its disclosure would subvert crucial military or diplomatic objectives. Another variety is the Despite frequent assertion of the privilege to deny information to Congress, beginning with
informer's privilege, or the privilege of the Government not to disclose the identity of persons President Washington's refusal to turn over treaty negotiation records to the House of
who furnish information of violations of law to officers charged with the enforcement of that law. Representatives, the U.S. Supreme Court has never adjudicated the issue.[74] However, the U.S.
Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as
documents reflecting advisory opinions, recommendations and deliberations comprising part of a Nixon, recognized the President's privilege over his conversations against a congressional
process by which governmental decisions and policies are formulated. [68] subpoena.[75] Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon,
the Court of Appeals weighed the public interest protected by the claim of privilege against the
Tribe's comment is supported by the ruling in In re Sealed Case, thus: interest that would be served by disclosure to the Committee. Ruling that the balance favored the
Since the beginnings of our nation, executive officials have claimed a variety of privileges to President, the Court declined to enforce the subpoena. [76]
resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of
the unique role and responsibilities of the executive branch of our government. Courts ruled early In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
that the executive had a right to withhold documents that might reveal military or state secrets. Vasquez.[77] Almonte used the term in reference to the same privilege subject of Nixon. It quoted
The courts have also granted the executive a right to withhold the identity of government the following portion of the Nixon decision which explains the basis for the privilege:

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"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 Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
we accord deference for the privacy of all citizens and, added to those values, is the necessity for determination by any official whether they are covered by E.O. 464. The President herself has,
protection of the public interest in candid, objective, and even blunt or harsh opinions in through the challenged order, made the determination that they are. Further, unlike also Section 3,
Presidential decision-making. A President and those who assist him must be free to explore the coverage of department heads under Section 1 is not made to depend on the department heads'
alternatives in the process of shaping policies and making decisions and to do so in a way many possession of any information which might be covered by executive privilege. In fact, in marked
would be unwilling to express except privately. These are the considerations justifying a contrast to Section 3 vis-á-vis Section 2, there is no reference to executive privilege at all. Rather,
presumptive privilege for Presidential communications. The privilege is fundamental to the the required prior consent under Section 1 is grounded on Article VI, Section 22 of the
operation of government and inextricably rooted in the separation of powers under the Constitution on what has been referred to as the question hour.
Constitution x x x " (Emphasis and underscoring supplied) SECTION 22. The heads of departments may upon their own initiative, with the consent of the
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein President, or upon the request of either House, as the rules of each House shall provide, appear
petitioners. It did not involve, as expressly stated in the decision, the right of the people to before and be heard by such House on any matter pertaining to their departments. Written
information.[78] Nonetheless, the Court recognized that there are certain types of information questions shall be submitted to the President of the Senate or the Speaker of the House of
which the government may withhold from the public, thus acknowledging, in substance if not in Representatives at least three days before their scheduled appearance. Interpellations shall not be
name, that executive privilege may be claimed against citizens' demands for information. limited to written questions, but may cover matters related thereto. When the security of the State
or the public interest so requires and the President so states in writing, the appearance shall be
In Chavez v. PCGG,[79] the Court held that this jurisdiction recognizes the common law holding conducted in executive session.
that there is a "governmental privilege against public disclosure with respect to state secrets Determining the validity of Section 1 thus requires an examination of the meaning of Section 22
regarding military, diplomatic and other national security matters."[80] The same case held that of Article VI. Section 22 which provides for the question hour must be interpreted vis-á-vis
closed-door Cabinet meetings are also a recognized limitation on the right to information. Section 21 which provides for the power of either House of Congress to "conduct inquiries in aid
of legislation." As the following excerpt of the deliberations of the Constitutional Commission
Similarly, in Chavez v. Public Estates Authority,[81] the Court ruled that the right to information shows, the framers were aware that these two provisions involved distinct functions of Congress.
does not extend to matters recognized as "privileged information under the separation of MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
powers,"[82] by which the Court meant Presidential conversations, correspondences, and yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before
discussions in closed-door Cabinet meetings. It also held that information on military and the House of Representatives or before the Senate. I have a particular problem in this regard,
diplomatic secrets and those affecting national security, and information on investigations of Madam President, because in our experience in the Regular Batasang Pambansa - as the
crimes by law enforcement agencies before the prosecution of the accused were exempted from Gentleman himself has experienced in the interim Batasang Pambansa - one of the most
the right to information. competent inputs that we can put in our committee deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but
From the above discussion on the meaning and scope of executive privilege, both in the United if they do not come and it is a congressional investigation, we usually issue subpoenas.
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 I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that
information of a sensitive character. While executive privilege is a constitutional concept, a claim the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when
thereof may be valid or not depending on the ground invoked to justify it and the context in which requested under Section 22] does not mean that they need not come when they are invited or
it is made. Noticeably absent is any recognition that executive officials are exempt from the duty subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or
to disclose information by the mere fact of being executive officials. Indeed, the extraordinary congressional investigation. According to Commissioner Suarez, that is allowed and their
character of the exemptions indicates that the presumption inclines heavily against executive presence can be had under Section 21. Does the gentleman confirm this, Madam President?
secrecy and in favor of disclosure.
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
Validity of Section 1 originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can be
Section 1 is similar to Section 3 in that both require the officials covered by them to secure the held in contempt of the House.[83] (Emphasis and underscoring supplied)
consent of the President prior to appearing before Congress. There are significant differences A distinction was thus made between inquiries in aid of legislation and the question hour. While
between the two provisions, however, which constrain this Court to discuss the validity of these attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in
provisions separately. aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the

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proponents of the amendment to make the appearance of department heads discretionary in the The foregoing opinion was not the two Commissioners' alone. From the above-quoted exchange,
question hour. Commissioner Maambong's committee - the Committee on Style - shared the view that the two
provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was
So clearly was this distinction conveyed to the members of the Commission that the Committee speaking in his capacity as Chairman of the Committee on the Legislative Department. His views
on Style, precisely in recognition of this distinction, later moved the provision on question hour may thus be presumed as representing that of his Committee.
from its original position as Section 20 in the original draft down to Section 31, far from the
provision on inquiries in aid of legislation. This gave rise to the following exchange during the In the context of a parliamentary system of government, the "question hour" has a definite
deliberations: meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, other ministers accountable for their acts and the operation of the government,[85] corresponding
Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the to what is known in Britain as the question period. There was a specific provision for a question
Legislative Department, Commissioner Davide, to give his reaction. hour in the 1973 Constitution[86] which made the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system established by that Constitution, where the
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized. 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
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
propose that instead of putting it as Section 31, it should follow Legislative Inquiries. 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
THE PRESIDING OFFICER. What does the committee say? 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
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer. lost the Prime Minister and the Cabinet may be changed.[87]
The framers of the 1987 Constitution removed the mandatory nature of such appearance during
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we the question hour in the present Constitution so as to conform more fully to a system of separation
reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in of powers.[88] To that extent, the question hour, as it is presently understood in this jurisdiction,
terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own departs from the question period of the parliamentary system. That department heads may not be
lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put required to appear in a question hour does not, however, mean that the legislature is rendered
Question Hour as Section 31. I hope Commissioner Davide will consider this. 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
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely performance of its legislative function becomes more imperative. As Schwartz observes:
as a complement to or a supplement of the Legislative Inquiry. The appearance of the members of Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is
Cabinet would be very, very essential not only in the application of check and balance but also, in that the Congress has the right to obtain information from any source - even from officials of
effect, in aid of legislation. departments and agencies in the executive branch. In the United States there is, unlike the
situation which prevails in a parliamentary system such as that in Britain, a clear separation
MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of between the legislative and executive branches. It is this very separation that makes the
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now congressional right to obtain information from the executive so essential, if the functions of the
become Section 22. Would it be, Commissioner Davide? Congress as the elected representatives of the people are adequately to be carried out. The
absence of close rapport between the legislative and executive branches in this country,
MR. DAVIDE. Yes.[84] (Emphasis and underscoring supplied) comparable to those which exist under a parliamentary system, and the nonexistence in the
Consistent with their statements earlier in the deliberations, Commissioners Davide and Congress of an institution such as the British question period have perforce made reliance by the
Maambong proceeded from the same assumption that these provisions pertained to two different Congress upon its right to obtain information from the executive essential, if it is intelligently to
functions of the legislature. Both Commissioners understood that the power to conduct inquiries perform its legislative tasks. Unless the Congress possesses the right to obtain executive
in aid of legislation is different from the power to conduct inquiries during the question hour. information, its power of oversight of administration in a system such as ours becomes a power
Commissioner Davide's only concern was that the two provisions on these distinct powers be devoid of most of its practical content, since it depends for its effectiveness solely upon
placed closely together, they being complementary to each other. Neither Commissioner information parceled out ex gratia by the executive.[89] (Emphasis and underscoring supplied)
considered them as identical functions of Congress. Sections 21 and 22, therefore, while closely related and complementary to each other, should not
be considered as pertaining to the same power of Congress. One specifically relates to the power

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to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be The requirement then to secure presidential consent under Section 1, limited as it is only to
used for legislation, while the other pertains to the power to conduct a question hour, the objective appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
of which is to obtain information in pursuit of Congress' oversight function. Constitution, the appearance of department heads in the question hour is discretionary on their
part.
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 Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of
President to whom, as Chief Executive, such department heads must give a report of their legislation. Congress is not bound in such instances to respect the refusal of the department head
performance as a matter of duty. In such instances, Section 22, in keeping with the separation of to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the
powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in President herself or by the Executive Secretary.
which Congress requires their appearance is "in aid of legislation" under Section 21, the
appearance is mandatory for the same reasons stated in Arnault.[90] Validity of Sections 2 and 3

In fine, the oversight function of Congress may be facilitated by compulsory process only to the Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned consent of the President prior to appearing before either house of Congress. The enumeration is
from the deliberations of the Constitutional Commission. broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP,
and all senior national security officials who, in the judgment of the heads of offices designated in
Ultimately, the power of Congress to compel the appearance of executive officials under Section the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the
21 and the lack of it under Section 22 find their basis in the principle of separation of powers. National Security Adviser), are "covered by the executive privilege."
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. The enumeration also includes such other officers as may be determined by the President. Given
the title of Section 2 - "Nature, Scope and Coverage of Executive Privilege" -, it is evident that
When Congress exercises its power of inquiry, the only way for department heads to exempt under the rule of ejusdem generis, the determination by the President under this provision is
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that intended to be based on a similar finding of coverage under executive privilege.
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 En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
through the power of impeachment. It is based on her being the highest official of the executive actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above,
branch, and the due respect accorded to a co-equal branch of government which is sanctioned by is properly invoked in relation to specific categories of information and not to categories of
a long-standing custom. persons.

By the same token, members of the Supreme Court are also exempt from this power of inquiry. In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is executive privilege, the reference to persons being "covered by the executive privilege" may be
exempt on the basis not only of separation of powers but also on the fiscal autonomy and the read as an abbreviated way of saying that the person is in possession of information which is, in
constitutional independence of the judiciary. This point is not in dispute, as even counsel for the the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court
Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief shall thus proceed on the assumption that this is the intention of the challenged order.
Justice.
Upon a determination by the designated head of office or by the President that an official is
Having established the proper interpretation of Section 22, Article VI of the Constitution, the "covered by the executive privilege," such official is subjected to the requirement that he first
Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464. 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
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the President. The proviso allowing the President to give its consent means nothing more than that the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its President may reverse a prohibition which already exists by virtue of E.O. 464.
application to appearances of department heads in the question hour contemplated in the
provision of said Section 22 of Article VI. The reading is dictated by the basic rule of construction Thus, underlying this requirement of prior consent is the determination by a head of office,
that issuances must be interpreted, as much as possible, in a way that will render it constitutional. authorized by the President under E.O. 464, or by the President herself, that such official is in

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possession of information that is covered by executive privilege. This determination then the possession of the executive may validly be claimed as privileged even against Congress. Thus,
becomes the basis for the official's not showing up in the legislative investigation. the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged information
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such rooted in the separation of powers. The information does not cover Presidential conversations,
invocation must be construed as a declaration to Congress that the President, or a head of office correspondences, or discussions during closed-door Cabinet meetings which, like internal-
authorized by the President, has determined that the requested information is privileged, and that deliberations of the Supreme Court and other collegiate courts, or executive sessions of either
the President has not reversed such determination. Such declaration, however, even without house of Congress, are recognized as confidential. This kind of information cannot be pried open
mentioning the term "executive privilege," amounts to an implied claim that the information is by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free
being withheld by the executive branch, by authority of the President, on the basis of executive from the glare of publicity and pressure by interested parties, is essential to protect the
privilege. Verily, there is an implied claim of privilege. 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)
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It sanctions claims of executive privilege. This Court must look further and assess the claim of
reads: privilege authorized by the Order to determine whether it is valid.
In connection with the inquiry to be conducted by the Committee of the Whole regarding the
Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., While the validity of claims of privilege must be assessed on a case to case basis, examining the
please be informed that officials of the Executive Department invited to appear at the meeting will ground invoked therefor and the particular circumstances surrounding it, there is, in an implied
not be able to attend the same without the consent of the President, pursuant to Executive Order claim of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated
No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, by the letter of respondent Executive Secretary quoted above, the implied claim authorized by
Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g.,
Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other whether the information demanded involves military or diplomatic secrets, closed-door Cabinet
Purposes". Said officials have not secured the required consent from the President. (Underscoring meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the
supplied) privilege under the challenged order, Congress is left to speculate as to which among them is
The letter does not explicitly invoke executive privilege or that the matter on which these officials being referred to by the executive. The enumeration is not even intended to be comprehensive, but
are being requested to be resource persons falls under the recognized grounds of the privilege to a mere statement of what is included in the phrase "confidential or classified information between
justify their absence. Nor does it expressly state that in view of the lack of consent from the the President and the public officers covered by this executive order."
President under E.O. 464, they cannot attend the hearing.
Certainly, Congress has the right to know why the executive considers the requested information
Significant premises in this letter, however, are left unstated, deliberately or not. The letter privileged. It does not suffice to merely declare that the President, or an authorized head of office,
assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be has determined that it is so, and that the President has not overturned that determination. Such
covered by the order means that a determination has been made, by the designated head of office declaration leaves Congress in the dark on how the requested information could be classified as
or the President, that the invited official possesses information that is covered by executive privileged. That the message is couched in terms that, on first impression, do not seem like a
privilege. Thus, although it is not stated in the letter that such determination has been made, the claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to
same must be deemed implied. Respecting the statement that the invited officials have not the question of why the executive branch is not providing it with the information that it has
secured the consent of the President, it only means that the President has not reversed the standing requested.
prohibition against their appearance before Congress.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
Inevitably, Executive Secretary Ermita's letter leads to the conclusion that the executive branch, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
either through the President or the heads of offices authorized under E.O. 464, has made a The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
determination that the information required by the Senate is privileged, and that, at the time of waived by a private party. It is not to be lightly invoked. There must be a formal claim of
writing, there has been no contrary pronouncement from the President. In fine, an implied claim privilege, lodged by the head of the department which has control over the matter, after actual
of privilege has been made by the executive. 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
While there is no Philippine case that directly addresses the issue of whether executive privilege thing the privilege is designed to protect.[92] (Underscoring supplied)
may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in

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Absent then a statement of the specific basis of a claim of executive privilege, there is no way of the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate
determining whether it falls under one of the traditional privileges, or whether, given the steps to obtain the records. "To deny the Committee the opportunity to consider the objection or
circumstances in which it is made, it should be respected.[93] These, in substance, were the same remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v. make any such statement was "a patent evasion of the duty of one summoned to produce papers
Vasquez[94] and, more in point, against a committee of the Senate in Senate Select Committee on before a congressional committee[, and] cannot be condoned." (Emphasis and underscoring
Presidential Campaign Activities v. Nixon.[95] supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim
A.O. Smith v. Federal Trade Commission is enlightening: with such particularity as to compel disclosure of the information which the privilege is meant to
[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure protect.[103] A useful analogy in determining the requisite degree of particularity would be the
impossible, thereby preventing the Court from balancing such harm against plaintiffs' needs to privilege against self-incrimination. Thus, Hoffman v. U.S.[104] declares:
determine whether to override any claims of privilege.[96] (Underscoring supplied) The witness is not exonerated from answering merely because he declares that in so doing he
And so is U.S. v. Article of Drug:[97] would incriminate himself - his say-so does not of itself establish the hazard of incrimination. It is
On the present state of the record, this Court is not called upon to perform this balancing for the court to say whether his silence is justified, and to require him to answer if "it clearly
operation. In stating its objection to claimant's interrogatories, government asserts, and nothing appears to the court that he is mistaken." However, if the witness, upon interposing his claim,
more, that the disclosures sought by claimant would inhibit the free expression of opinion that were required to prove the hazard in the sense in which a claim is usually required to be
non-disclosure is designed to protect. The government has not shown - nor even alleged - that established in court, he would be compelled to surrender the very protection which the privilege is
those who evaluated claimant's product were involved in internal policymaking, generally, or in designed to guarantee. To sustain the privilege, it need only be evident from the implications of
this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon which the question, in the setting in which it is asked, that a responsive answer to the question or an
the privilege is based must be established. To find these interrogatories objectionable, this Court explanation of why it cannot be answered might be dangerous because injurious disclosure could
would have to assume that the evaluation and classification of claimant's products was a matter of result." x x x (Emphasis and underscoring supplied)
internal policy formulation, an assumption in which this Court is unwilling to indulge sua sponte. The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per
[98] (Emphasis and underscoring supplied) se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the
Mobil Oil Corp. v. Department of Energy[99] similarly emphasizes that "an agency must provide claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given
"precise and certain" reasons for preserving the confidentiality of requested information." 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
Black v. Sheraton Corp. of America[100] amplifies, thus: inquiry of Congress.
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 their In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
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. As the affidavit now stands, the Court has No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding
little more than its sua sponte speculation with which to weigh the applicability of the claim. An only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege.
improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a It does not purport to be conclusive on the other branches of government. It may thus be
claim was made by the proper executive as Reynolds requires, the Court can not recognize the construed as a mere expression of opinion by the President regarding the nature and scope of
claim in the instant case because it is legally insufficient to allow the Court to make a just and executive privilege.
reasonable determination as to its applicability. To recognize such a broad claim in which the
Defendant has given no precise or compelling reasons to shield these documents from outside Petitioners, however, assert as another ground for invalidating the challenged order the alleged
scrutiny, would make a farce of the whole procedure.[101] (Emphasis and underscoring supplied) unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Due respect for a co-equal branch of government, moreover, demands no less than a claim of Philippines, in particular, cites the case of the United States where, so it claims, only the President
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S: can assert executive privilege to withhold information from Congress.
[102]
We think the Court's decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines
relevant to these questions. For it is as true here as it was there, that "if (petitioner) had legitimate that a certain information is privileged, such determination is presumed to bear the President's
reasons for failing to produce the records of the association, a decent respect for the House of authority and has the effect of prohibiting the official from appearing before Congress, subject
Representatives, by whose authority the subpoenas issued, would have required that (he) state only to the express pronouncement of the President that it is allowing the appearance of such
(his) reasons for noncompliance upon the return of the writ. Such a statement would have given

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official. These provisions thus allow the President to authorize claims of privilege by mere E.O 464 is concerned only with the demands of Congress for the appearance of executive officials
silence. 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,
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. however, that what is involved in the present controversy is not merely the legislative power of
Executive privilege, as already discussed, is recognized with respect to information the inquiry, but the right of the people to information.
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 There are, it bears noting, clear distinctions between the right of Congress to information which
the discharge of highly important executive responsibilities.[106] The doctrine of executive underlies the power of inquiry and the right of the people to information on matters of public
privilege is thus premised on the fact that certain informations must, as a matter of necessity, be concern. For one, the demand of a citizen for the production of documents pursuant to his right to
kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption information does not have the same obligatory force as a subpoena duces tecum issued by
from the obligation to disclose information, in this case to Congress, the necessity must be of such Congress. Neither does the right to information grant a citizen the power to exact testimony from
high degree as to outweigh the public interest in enforcing that obligation in a particular case. government officials. These powers belong only to Congress and not to an individual citizen.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the Thus, while Congress is composed of representatives elected by the people, it does not follow,
President the power to invoke the privilege. She may of course authorize the Executive Secretary except in a highly qualified sense, that in every exercise of its power of inquiry, the people are
to invoke the privilege on her behalf, in which case the Executive Secretary must state that the exercising their right to information.
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 To the extent that investigations in aid of legislation are generally conducted in public, however,
executive hierarchy. In other words, the President may not authorize her subordinates to exercise any executive issuance tending to unduly limit disclosures of information in such investigations
such power. There is even less reason to uphold such authorization in the instant case where the necessarily deprives the people of information which, being presumed to be in aid of legislation,
authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further is presumed to be a matter of public concern. The citizens are thereby denied access to
invalid on this score. 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
It follows, therefore, that when an official is being summoned by Congress on a matter which, in through the various legal means allowed by their freedom of expression. Thus holds Valmonte v.
his own judgment, might be covered by executive privilege, he must be afforded reasonable time Belmonte:
to inform the President or the Executive Secretary of the possible need for invoking the privilege. It is in the interest of the State that the channels for free political discussion be maintained to the
This is necessary in order to provide the President or the Executive Secretary with fair end that the government may perceive and be responsive to the people's will. Yet, this open
opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after dialogue can be effective only to the extent that the citizenry is informed and thus able to
the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the formulate its will intelligently. Only when the participants in the discussion are aware of the
privilege, Congress is no longer bound to respect the failure of the official to appear before issues and have access to information relating thereto can such bear fruit.[107] (Emphasis and
Congress and may then opt to avail of the necessary legal means to compel his appearance. underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is,
The Court notes that one of the expressed purposes for requiring officials to secure the consent of therefore, in the sense explained above, just as direct as its violation of the legislature's power of
the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials inquiry.
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 Implementation of E.O. 464 prior to its publication
persons appearing in or affected by such inquiries shall be respected."
While E.O. 464 applies only to officials of the executive branch, it does not follow that the same
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for is exempt from the need for publication. On the need for publishing even those statutes that do not
implied claims of executive privilege, for which reason it must be invalidated. That such directly apply to people in general, Tañada v. Tuvera states:
authorization is partly motivated by the need to ensure respect for such officials does not change The term "laws" should refer to all laws and not only to those of general application, for strictly
the infirm nature of the authorization itself. 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
Right to Information 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

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subject of such law is a matter of public interest which any member of the body politic may issuance shall be first in the order of enumeration of the titles of the petitions irrespective of their
question in the political forums or, if he is a proper party, even in courts of justice.[108] docket numbers or dates of filing.
(Emphasis and underscoring supplied)
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

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.

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. 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. (Underscoring supplied)[109]
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.

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. SECTIONS 1 AND 2(A) ARE, HOWEVER, VALID.

SO ORDERED.

Panganiban, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,


Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.
Puno, J., on leave.

* Henceforth, in consolidated petitions which assail the validity or constitutionality of an issuance


of a government official or agency, the petitioner which is the most directly affected by the

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