EN BANC

[G.R. No. 169777. July 14, 2006.]

SENATE OF THE PHILIPPINES, represented by FRANKLIN M.

DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in
his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q.
PIMENTEL, JR., in his capacity as Minority Leader, SENATORS
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY
EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE
ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.
LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, MAR
ROXAS and MANUEL B. VILLAR, JR. , petitioners, vs . EDUARDO R.
ERMITA, in his capacity as Executive Secretary and alter-ego of
President Gloria Macapagal-Arroyo, and anyone acting in his stead
and in behalf of the President of the Philippines , respondents.

[G.R. No. 169659. July 14, 2006.]

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep.

SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO,
Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR,
COURAGE represented by FERDINAND GAITE, and COUNSELS FOR
THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY.
REMEDIOS BALBIN , petitioners, vs . EDUARDO ERMITA, in his capacity
as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo , respondent.

[G.R. No. 169660. July 14, 2006.]

FRANCISCO I. CHAVEZ , petitioner, vs . EDUARDO R. ERMITA, in his

capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his
capacity as Secretary of Defense, and GENEROSO S. SENGA, in his
capacity as AFP Chief of Staff , respondents.

[G.R. No. 169667. July 14, 2006.]

ALTERNATIVE LAW GROUPS, INC. (ALG) , petitioner, vs . HON.

EDUARDO R. ERMITA, in his capacity as Executive Secretary ,
respondent.

[G.R. No. 169834. July 14, 2006.]

PDP-LABAN , petitioner, vs . EXECUTIVE SECRETARY EDUARDO R.

ERMITA , respondent.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

 [G.R. No. 171246. July 14, 2006.]

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.

RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON
C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED
BAR FOR THE PHILIPPINES , petitioners, vs . HON. EXECUTIVE
SECRETARY EDUARDO R. ERMITA , respondent.

RESOLUTION

CARPIO MORALES , J : p

Pending consideration are 1) the Motion for Reconsideration dated May 18, 2006
led by respondents, praying that the Decision promulgated on April 20, 2006 (the
Decision) be set aside, and 2) the Motion for Reconsideration dated May 17, 2006 led by
petitioner PDP-Laban in so far as the Decision held that it was without the requisite
standing to file the petition in G.R. No. 169834.
Petitioners Senate of the Philippines et al., Alternative Law Groups, Inc., Francisco I.
Chavez, and PDP-Laban led their respective Comments to respondents' Motion for
Reconsideration.
Respecting PDP-Laban's Motion for Reconsideration, petitioners Senate of the
Philippines et al. and petitioner Chavez endorse the same. Respondents, however, pray for
its denial.
In their Motion for Reconsideration, respondents argue that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation has not been published, hence, the
President may properly prohibit the appearance of executive officials before Congress.
Even assuming arguendo that the said Rules of Procedure had not been published,
such does not have any bearing on the validity of any of the provisions of E.O. 464. The
prohibition under Section 1 of E.O. 464 has to do with the question hour, not with inquiries
in aid of legislation. As to the prohibition authorized by Section 3 in relation to Section 2(b),
the basis thereof is executive privilege, not the purported failure to publish rules of
procedure.
If the President would prohibit executive o cials from appearing before Congress
on the ground of lack of published rules of procedure, such would not be an exercise of
executive privilege, but simply a claim to. protection under the due process clause — a
right which the President has in common with any other citizen. The claim to such
protection is not based on the con dential nature of the information held by the o cial
concerned, as in the case off executive privilege, but on the defective nature of the
legislative inquiry itself. The prohibition under Section 3 in relation to Section 2(b) of E.O.
464, however, is based solely on executive privilege, not on any alleged defect in the inquiry
arising from a lack of published rules of procedure.
Respondents go on to argue that the President's invocation of executive privilege is
"for practical purposes," in that since the President would be in no position to raise an
objection the moment a question is asked by Congress, she must be alled to prohibit the
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 appearance of the o cial concerned, at least until she is able to thoroughly discuss the
matter with the said o cial. For, so respondents contend, "once the information has been
coerced out of the o cial, there is not turning back, and the damage that could result
might be devastating to the functioning of government." 1
The tenative prevention of an o cial from appearing before Congress pending
discussion of the matter on inquiry with the President cannot, however, be properly
deemed an exercise of executive privilege, not even, one "for practical purposes." Any such
discussion is meant precisely to allow the President to determine whether the informaton
sought falls under privelege. Bofore such determination, the claim of privelege could only
be based on mere speculation that the information sought might be con dential in nature.
Certainly, cannot be bound by such a tenuous invocation of the privilege. CSIHDA

The executive branch, nonetheless, need not be apprehensive that it might not be
able to invoke executive privelege in time to prevent disclosures of legitimately
con dential information. As this Court stated in the Decision, the President and the
Executive Secretary must be given fair opportunity to determine whether the matter under
legislative investigation calls for a claim of privilege. 2 To secure this fair opportunity, the
executive branch need not resort to a precautionary claim of privilege like that proffered by
respondent. The President may, instead, direct the o cial concerned to ask Congress for
reasonable time to discuss with her the subject matter of the investigation.
Section 3 in relation to 2(b) of E.O. 464, however, is far from being a mere directive
to o cials summoned by Congress to ask for time to confer with the President. It is an
authorization for implied claims of privilege. 3 As such, the criteria for evaluating its validity
must be those for claims of executive privilege. On the basis of such criteria, the Court
found the implied claim authorized under Section 3 in relation to Section 2(b) of E.O. 464
to be defective.
In ne, no argument in respondents' Motion for Reconsideration merits a reversal or
modification of the Decision.
As for its Motion for Reconsideration, petitioner PDP-Laban avers that there is no
fundamental difference between it and petitioner Bayan Muna to justify their unequal
treatment since both of them have members in. Congress. It claims, moreover, that all its
members are taxpayers and Filipino citizens whose right to information was, as held in the
Decision, violated by E.O. 464.
There are, however, fundamental distinctions between PDP-Laban and Bayan Muna
which call for this Court's contrasting rulings with regard to their standing.
While both parties have members in Congress, PDP-Laban, unlike Bayan Muna, is not
represented therein as a party-list organization. The PDP-Laban members in Congress
were elected to represent, not their party , but their constituents, i.e., their legislative
district in the case of representatives, or the nation at large in the case of senators. The
Bayan Muna members in Congress, on the other hand, were elected precisely to represent
their party. 4 In fact, in light of the party-list system, the representatives from Bayan Muna
may be said to have been elected only indirectly, since it was Bayan Muna itself, as a party,
which was voted for in the last elections where it received enough votes to entitle it to
three seats in the House of Representatives. 5 This, again, contrasts with the situation of
the PDP-Laban members in Congress who were all elected in their individual capacities.
Indeed, the rights of the Bayan Muna representatives are so intertwined with their
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 party's right to representation in Congress that, in the event they change their party
a liation during their term of o ce, they would have to forfeit their seat 6 — a rule which
clearly does not apply to the PDP-Laban members in Congress.
Bayan Muna is thus entitled to participate in the legislative process in a way that
cannot be said of PDP-Laban.
With regard to PDP-Laban's assertion that it consists of taxpayers and Filipino
citizens, su ce it to state that its Petition did not assert this as a ground for its standing
to sue. It merely alleged that E.O. 464 hampers its legislative agenda and that the issues
involved are of transcendental importance, 7 which points were already addressed in the
Decision.
If PDP-Laban intended to sue as an organization of citizens in pursuit of the right to
information of such citizens, it did not so state in its petition. As such, the Court could not
be satis ed that its participation in the controversy would ensure "concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." 8
A nal point. Petitioners Senate of the Philippines et al., by Manifestation dated April
25. 2006, called this Court's attention to the inadvertent omission, in the title of the petition
in G.R. No. 169777, of the name of Senator Manuel B. Villar, Jr. The Manifestation
reiterated an earlier Manifestation dated October 24, 2005 requesting that Senator Villar's
name be included in the title of said petition. Finding the Manifestations well-taken, the title
of G.R. No. 169777 is hereby amended to re ect the name of Senator Villar as one of the
petitioners.

WHEREFORE, the MOTION FOR RECONSIDERATION of Respondents dated May 18,

2006 and the MOTION FOR RECONSIDERATION of Petitioner PDP-Laban dated May 17,
2006 are DENIED WITH FINALITY for lack of merit. The title of G.R. No. 169777 is
amended to include the name Senator Manuel B. Villar, Jr. as one of the petitioners. TIaEDC

SO ORDERED.
Panganiban, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-
Martinez, Corona, Callejo, Sr, Azcuna, Chico-Nazario, Garcia and Velasco, Jr., JJ., concur.
Puno, J., took no part. On leave when the case was decided on merits.
Carpio, J., is on official leave.
Tinga, J., please see separate opinion.

Separate Opinions
TINGA , J.:

While I concur generally in the result begot by the adjudication of these cases, there
are nuances to my views that are not su ciently addressed by the majority. I thus write
separately to elaborate on them.
Executive Order No. 464 (EO 464) does not conform to the usual mode of executive
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 orders, de ned in the Administrative Code as "[a]cts of the President providing for rules of
a general or permanent character in implementation or execution of constitutional or
statutory powers". 1 On its face, it reads instead as a series of instructions by the
President to the members of the executive branch.
Without doubt, the President is vested with executive control of all executive
departments, bureaus and o ces. Such power is granted by the Constitution 2 and
reiterated by statute. 3 A necessary implement of executive control is the ability of the
President to prescribe instructions to members of the executive department on any matter
related to the exercise of their respective functions. Executive control is not absolute, and
its exercise may not contravene the laws of the land, 4 yet it must be recognized as a
constitutional prerogative of the President which is entitled to respect from the other co-
equal branches of government.
This point is relevant, for Sections 2(b) and 3 of EO 464, on their face, align with the
presidential power of executive control.
The provisions bear replication:
SEC. 2. Nature, Scope and Coverage of Executive Privilege. —
(b) Who are covered. — The following are covered by this executive
order:

i. Senior o cials of executive department who in the judgment of the

department heads are covered by the executive privilege;
ii. Generals and ag o cers of the Armed Forces of the Philippines
and such other o cers who in the judgment of the Chief of Staff
are covered by the executive privilege;

iii. Philippine National Police (PNP) o cers with rank of chief

superintendent or higher and such other o cers who in the
judgment of the Chief of the PNP are covered by the executive
privilege;

iv. Senior national security o cials who in the judgment of the

National Security Adviser are covered by the executive privilege; and
v. Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public O cials Before Congress . — All

public o cials enumerated in Section 2(b) hereof shall secure prior consent of
the President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public o cials appearing in
inquiries in aid of legislation.

By itself, Section 2(b) is a mere enumeration of the o cials covered under the
Executive Order and would be thus innocuous unless tied to the other provisions. Section 3
however bears closer scrutiny.
The provision is styled as an instruction by the President to the o cials covered
under Section 2(b) that they secure the consent of the President before appearing before
either chamber of Congress. No other persons, certainly none outside the executive
branch, are brought into the purview and command of Section 3. Neither is the provision
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 worded in such a manner as intending to bind anybody outside of the executive branch to
its expressed prohibition. Section 3 is not even stated in declarative fashion such as: "No
public o cial enumerated under Section 2(b) may appear before Congress without
securing the prior consent of the President." Such phrasing would have left room for
interpretation that the President was imposing such rule on Congress. Instead, Section 3
ordains that "[a]ll public o cials enumerated in Section 2(b) hereof shall secure prior
consent of the President. . ."
The difference should not be appreciated as merely semantic. Since executive
control guarantees the President the right to issue instructions to members of the
executive branch, any such set of instructions, however worded or issued, should be
recognized as falling within the ambit of the President's constitutional prerogative. The
existence of the power of executive control would not shelter such instructions or
issuances from judicial review, as in this case. Yet it would at least be a proper measure of
balance come the time of adjudication, especially if there is a competing constitutional
value against which executive control should be weighed. ETDHSa

Thus, it is a reasonable position to take that Section 3, on its face, is valid as it

embodies the exercise of executive control without expressly binding those outside of the
executive department to its restrictions.
It would be di cult to effectuate Section 3 on its face as representing a broad claim
of implied claim of executive privilege. I agree that the concept of implied claim of
executive privilege is legally untenable. Yet the requirement of consent prescribed under
Section 3 does not ipso facto provoke the claim of executive privilege. It is the actual
refusal of the President to extend consent to the appearance that tyriggers the claim of
executive privilege. While Section 3 does recognize the possibility or the scenario of the
President withholding consent, I submit that the authority of the President to withhold
such consent is drawn not from Section 3 or any other provision of E.O. 464, but from the
general principle of executive control. Even without E.O. 464, the President, by virtue of
executive control, can very well order a member of the executive department not to appear
before Congress, or any other body for that matter. Still, this exercise of executive control
would not necessarily shield the o cial concerned if he/she refuses to appear before
Congress or any other body from judicial review over such action. Nonetheless, the proper
legal predicates to the impasse, which include the concept of executive control, should be
spelled out.
The Decision did suggest that the actual invocation of Section 3 by several o cials,
as basis for their refusal to appear before Congress, represents an implied claim of
executive privilege . I think that such refusal actually embodies an express claim of
executive privilege, as it derives from the withholding of consent by the
President . Still, the character of the claim has no effect on the capacity of the courts
initially to review the claim of privilege and ultimately to reject the same.
Even as the claim of executive privilege is express, it is nonetheless a
general claim bereft of any speci cs . Which leads to my other main point. Even
though I posit that Sections 2(b) and 3 of EO 464 are valid on their face, the fact remains
that their actual application, as invoked by various members of the executive department,
engendered consequences that could not be sanctioned by the Constitution.
It is a given that EO 464 was invoked by several members of the executive
department as basis for their non-appearance before various committees of the Senate. 5
While these o cials may have invoked a broad but express claim of executive privilege, yet
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 it is evident, as stated in the Decision, that such claims were not accompanied by any
speci c allegation of the basis of such claim. 6 Congress is entitled to know of the
particular basis of the claim of executive privilege. Moreover, to prevent abuse of the right
to executive privilege, the Court properly mandated that the claim of executive privilege
must be formally invoked, in a manner that clearly states the grounds for such privilege 7 ,
su ciently particular without having to compel disclosure of the information which the
privilege is meant to protect. 8
The actual invocation of executive privilege by the o cials concerned herein, using
Section 3 of EO 464 as basis, hardly conforms to any acceptable and proper claim of the
privilege. The application of Section 3 precludes Congress or the courts from any
meaningful evaluation of the invoked claim of executive privilege, since no basis for such
claim is supplied other than the rank or position held by the o cials compelled to testify.
Given that the claim of executive privilege had actually been invoked using Section 3, and
that the Senate itself resultantly sought judicial relief before this Court, the controversy
was rightly ripe for adjudication, and the ultimate denouement reached by the Court was
correct then and remains so, but only on a result-oriented basis and not on a
strictly constitutional foundation .
I offer a nal nuance. Following the principle of executive control, the President need
not have issued EO 464 in order to command executive o cials to secure presidential
consent before appearing before Congress. The mere invalidation of provisions of EO 464
alone did not su ciently strike, as it could not have su ciently struck, at the heart of the
problem. However, the Decision stands as a vital precedent which hopefully would resolve
future controversies of similar nature. For in invalidating portions of EO 464, the Court at
the same time laid down the standards for compelling members of the executive branch to
appear, before Congress, as well as the standards for the proper invocation of the claim of
executive privilege. These standards were formulated with due recognition accorded to
the constitutional functions and prerogatives of both the executive and legislative
branches of government. ECAaTS

These standards, which should be now respected as doctrine, could have very well
been imposed by the Court without having to invalidate Sections 2(b) and 3 of EO 464,
since said provisions, as written, do not purport to bind any person outside the executive
branch. Ultimately though, the invalidation of said provisions of EO 464, unneeded as it is,
serves the expedience of emphasis, if anything else, making it clear that any valid claim of
executive privilege binding on the legislature or on the courts must be invoked in a
particular manner and on specified grounds.
I say again my view is that Sections 2(b) and 3 of EO 464 are void as applied only,
definitely not on their face.

Footnotes
1. Rollo, p. 549.
2. Decision, p. 47.
3. Vide Decision. p. 39.
4. Section 10 of The Party-List System Act (R.A. 7941) states: "Every voter shall be entitled
to two (2) votes. The rst is a vote for candidate for member of the House of
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 Representatives in his legislative district, and the second, a vote for the party,
organization, or coalition he wants represented in the House of Representatives . . .
(Underscoring supplied)
5. Section 11 (b) of R.A. 7941 states: "The parties, organizations, and coalitions receiving at
least two percent (2%) of the total votes case for the party-list system shall be entitled to
one seat each: Provided, That those garnering more than two percent (2%) of the votes
shall be entitled to additional seats in proportion to their total number of votes: Provided,
finally, That each party, organization, or coalition shall be entitled to not more than three
(3) seats." (Underscoring supplied)

6. Section 13 of R.A. 7941 states: "Any elected party-list representative who changes his
political party or sectoral a liation during his term of o ce shall forfeit his seat:
Provided, That if he changes his political party or sectoral a liation within six (6)
months before an election, he shall not be eligible for nomination as party-list
representative under his new party or organization."
7. Rollo, pp. 4-5.
8. Kilosbayan v. Morato, 316 Phil. 652, 696 (1995).
TINGA, J.:
1. See Section 2, Chapter 2, Title 1, Book III, Administrative Code of 1987.

2. Section 17, Article VII, 1987 Constitution: "The President shall have control of all the
executive departments, bureaus and o ces. He shall ensure that the laws be faithfully
executed."
3. See Section 1, Chapter 1, Title 1, Book III, Administrative Code of 1987.
4. Section 17, Article VII also mandates that the President "ensure that the laws be faithfully
executed."
5. Decision, pp. 8-9.

6. Id. at 41.
7. Id. at 44. citing McPhaul v. U.S., 364 U.S. 372 (1960).
8. Decision, p. 44, citing U.S. v. Reynolds, 345 U.S. 1, (1953).

CD Technologies Asia, Inc. © 2018 cdasiaonline.com