Senate of the Philippines v.

Eduardo Ermita
G.R. No. 169777 (April 20, 2006)

FACTS:

This case is regarding the railway project of the North Luzon Railways Corporation
with the China National Machinery and Equipment Group as well as the Wiretapping
activity of the ISAFP, and the Fertilizer scam.

The Senate Committees sent invitations to various officials of the Executive

Department and AFP officials for them to appear before Senate on Sept. 29, 2005.
Before said date arrived, Executive Sec. Ermita sent a letter to Senate President
Drilon, requesting for a postponement of the hearing on Sept. 29 in order to “afford
said officials ample time and opportunity to study and prepare for the various issues
so that they may better enlighten the Senate Committee on its investigation.” Senate
refused the request.

On Sept. 28, 2005, the President issued EO 464, effective immediately, which,
among others, mandated that “all heads of departments of the Executive Branch of
the government shall secure the consent of the President prior to appearing before
either House of Congress.” Pursuant to this Order, Executive Sec. Ermita
communicated to the Senate that the executive and AFP officials would not be able
to attend the meeting since the President has not yet given her consent. Despite the
lack of consent, Col. Balutan and Brig. Gen. Gudani, among all the AFP officials
invited, attended the investigation. Both faced court marshal for such attendance.

ISSUES:

Whether EO 464 contravenes the power of inquiry vested in Congress.

HELD:

The Court in its discussion made mention of the case of Hoffman v. US as a useful
analogy in determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus it declares:

The witness is not exonerated from answering merely because he declares

that in so doing he would incriminate himself—his say-so does not of itself
establish the hazard of incrimination. It is for the court to say whether his silence is
justified, and to require him to answer if ‘it clearly appears to the court that he is
mistaken.’ However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be established
in court, he would be compelled to surrender the very protection which the privilege
is designed to guarantee. To sustain the privilege, it need only be evident from
the implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result.”
To determine the constitutionality of E.O. 464, the Supreme Court discussed the two
different functions of the Legislature: The power to conduct inquiries in aid of
legislation and the power to conduct inquiry during question hour.

Question Hour:

The power to conduct inquiry during question hours is recognized in Article 6,

Section 22 of the 1987 Constitution, which reads:

“The heads of departments may, upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall
provide, appear before and be heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to the President of the Senate or
the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be 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
conducted in executive session.”

The objective of conducting a question hour is to obtain information in pursuit of

Congress’ oversight function. When Congress merely seeks to be informed on how
department heads are implementing the statutes which it had issued, the department
heads’ appearance is merely requested. 

The Supreme Court construed Section 1 of E.O. 464 as those in relation to the
appearance of department heads during question hour as it explicitly referred to
Section 22, Article 6 of the 1987 Constitution.

In aid of Legislation:

The Legislature’s power to conduct inquiry in aid of legislation is expressly

recognized in Article 6, section21 of the 1987 Constitution, which reads:

“The Senate or the House of Representatives or any of its respective committees

may conduct inquiries in aid of legislation in accordance with its duly published rules
of procedure. The rights of persons appearing in, or affected by, such inquiries shall
be respected.”

The power of inquiry in aid of legislation is inherent in the power to legislate. A

legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change. And
where the legislative body does not itself possess the requisite information, recourse
must be had to others who do possess it.

But even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of
“executive privilege”. This is the power of the government to withhold information
from the public, the courts, and the Congress. This is recognized only to certain
types of information of a sensitive character. When Congress exercise its power of
inquiry, the only way for department heads to exempt themselves therefrom is by a
valid claim of privilege. They are not exempt by the mere fact that they are
department heads. Only one official may be exempted from this power -- the
President.

Section 2 & 3 of E.O. 464 requires that all the public officials enumerated in Section
2(b) should secure the consent of the President prior to appearing before either
house of Congress. The enumeration is broad. In view thereof, whenever an official
invokes E.O.464 to justify the failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is
privileged. 

The letter sent by the Executive Secretary to Senator Drilon does not explicitly
invoke executive privilege or that the matter on which these officials are being
requested to be resource persons falls under the recognized grounds of the privilege
to justify their absence. Nor does it expressly state that in view of the lack of consent
from the President under E.O. 464, they cannot attend the hearing. The letter
assumes that the invited official possesses information that is covered by the
executive privilege. Certainly, Congress has the right to know why the executive
considers the requested information privileged. It does not suffice to merely declare
that the President, or an authorized head of office, has determined that it is so.

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus
invalid per se. It is not asserted. It is merely implied. Instead of providing precise and
certain reasons for the claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. 

When an official is being summoned by Congress on a matter which, in his own

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

Wherefore, the petitions are partly granted. Sections 2(b) and 3 of E.O. 464 are
declared void. Section 1(a) are however valid.