Senate

v. Ermita
April 20, 2006

Petitioners: Senate of the Philippines, Bayan Muna, COURAGE, Counsels for the Defense of
Liberties (CODAL), Francisco I. Chavez, Alternative Law Groups, Inc. (ALG), and
PDP-Laban
Respondents: Eduardo R. Ermita, in his capacity as Executive Secretary and alter-ego of
President Gloria Macapagal-Arroyo, et al.
Ponente: J. Carpio-Morales

CASE: Consolidated petitions for certiorari and prohibition submitting that the President
abused the power to withhold information by issuing Executive Order No. 464 on Sept. 28,
2005, and pray for the declaration of E.O. 464 as null and void for being unconstitutional.

DISPOSITIVE: Petitions are PARTLY GRANTED. Sections 2(b) and 3 of E.O. 464 are declared
VOID. Sections 1 and 2(a) are, however, VALID.

FACTS:
The Committee of the Senate as a whole issued invitations to various officials of the
Executive Department for them to appear on Sept. 29, 2005 as resource speakers in a public
hearing on the railway project of the North Luzon Railways Corporation due to alleged
overpricing and other unlawful provisions of the contract.
The Senate Committee on National Defense & Security likewise issued invitations to several
officials of the AFP to attend as resource persons in a public hearing scheduled on Sept. 28,
2005 on the Wire-Tapping of the President of the Philippines.
On Sept. 28, 2005, then President Arroyo issued E.O. 464 (Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect
for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation under
the Constitution, and for other purposes), which, pursuant to Section 6 thereof, took effect
immediately.
On the same day, Senate President Drilon received from Executive Secretary Ermita a copy
of E.O. 464, and another letter informing him that officials of the Executive Department
invited to appear will not be able to attend the same without the consent of the President,
pursuant to E.O. 464, and that said officials have not secured the required consent from the
President.
On the same date was the hearing on the alleged wiretapping. Gen. Senga sent a letter to
Sen. Biazon of the Committee on National Defense and Security, informing him that per
instruction of the President, thru the Secretary of National Defense, no officer of the AFP is
authorized to appear before any Senate or Congressional hearings without seeking a
written approval from the President and that no approval has been granted by the
President to any AFP officer to appear before the public hearing.
As to the NorthRail project hearing scheduled on Sept. 29, 2005, Executive Secretary, citing
E.O. 464, sent letter of regrets in response to the invitations sent to several government
officials. NorthRail President Cortes sent personal regrets likewise citing E.O. 464.
In another investigation conducted jointly by the Senate Committee on Agriculture and Food
and the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund

under the Ginintuang Masaganang Ani program of the Department of Agriculture (DA),
several Cabinet officials were invited to the hearings, but most of them failed to attend
having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, some officials
communicated their inability to attend due to lack of appropriate clearance from the
President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary Ermita.
Hence, the consolidated petitions assailing the validity and constitutionality of E.O. 464.

ISSUES:
1. W/N E.O. 464 contravenes the power of inquiry vested in Congress [Y]
2. W/N E.O. 464 violates the right of people to information on matters of public concern [Y]
3. W/N respondents have committed grave abuse of discretion when they implemented E.O.
464 prior to its publication in a newspaper of general circulation. [Y]

HELD:
1.) W/N E.O. 464 contravenes the power of inquiry vested in Congress.
The salient provisions of E.O. 464 discussed in determining its constitutionality are
Sections 1, 2(a), 2(b), and 3.
E.O. 464, to the extent that it bars the appearance of executive officials, deprives
Congress of the information in the possession of the officials.
Power of inquiry of Congress is expressly recognized in Art. VI, Sec. 21. The Court already
recognized the power of inquiry is inherent in the power to legislate.
--> The power of inquiry is co-extensive with the power to legislate. The matter which
may be a proper subject of legislation and of investigation are one, such as the
operation of government. It is broad enough to cover officials of the executive branch,
--> The power of inquiry, with process to enforce it, is grounded on the necessity of
information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject,
Congress has the right to that information and the power to compel the disclosure.
--> Art. VI, Sec. 21 establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or
Houses duly published rules of procedure. It also mandates that the rights of persons
appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.
--> Even where the inquiry is in aid of legislation, there are still recognized exemptions to
the power of inquiry, such as executive privilege.
Executive privilege, being of U.S. origin, is defined in U.S. legal literature as the power of
the Government to withhold information from the public, the courts, and the Congress.
Executive privilege is crucial to the fulfillment of the unique role and responsibilities of the
executive branch of government. It involves instances where exemption from disclosure
is necessary to the discharge of highly important executive responsibilities.
--> Varieties of privileges include:
a) state secrets privilege: non-disclosure of crucial military or diplomatic objectives
b) informers privilege: non-disclosure of the identity of person who furnish information of
violations of law

 c) generic privilege: non-disclosure of intragovernmental documents which are part of

internal deliberations for governmental decisions and policies
--> That a type of information is recognized as privileged does not, however, necessarily
mean that it would be considered privileged in all instances. In determining the validity of a
claim of privilege, consideration is given not only to whether the requested information
falls within one of the traditional privileges, but also whether that privilege should be
honored in a given procedural setting.
--> In PH jurisdiction, executive privilege was recognized by the SC in the cases of:
Almonte v. Vasquez : The confidentiality of his conversations and correspondences is like
the claim of confidentiality of judicial deliberations. The privilege is fundamental to the
operation of government and inextricably rooted in the separation of powers under the
Constitution. Thus, certain types of information may be withheld from the public.
Chavez v. PCGG : The governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national security matters is
recognized in PH jurisdiction.
Chavez v. Public Estates Authority : The right to information does not extend to matters
recognized as privileged information under the separation of powers (Presidential
conversations, correspondences and discussions in closed-door Cabinet meetings;
Information on military and diplomatic secrets and those affecting national security; and
Information on investigations of crimes by law enforcement agencies before the
prosecution of the accused)
--> Executive privilege is recognized only in relation to certain types of information of a
sensitive character. While it is a constitutional concept, a clam thereof may be valid or not
depending on the ground invoked to justify it and the context in which it is made. Also, the
extraordinary character of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure.
Validity of Section 1 of E.O. 464
SECTION 1. Appearance by Heads of Departments Before Congress.

In accordance with Article VI, Section 22 of the Constitution and to implement the
Constitutional provisions on the separation of powers between co-equal branches of the
government, all heads of departments of the Executive Branch of the government
shall secure the consent of the President prior to appearing before either House of
Congress.

When the security of the State or the public interest so requires and the President so states
in writing, the appearance shall only be conducted in executive session.
--> Sec. 1 specifically applies to department heads. It is similar to Sec. 3 in that both require
the officials covered by them to secure consent of the President prior to appearing before
Congress. However, it differs from Sec. 3 in that it does not require a prior determination
by any official whether E.O. 464 covers them. Also, unlike Sec. 3, the coverage of
department heads under Sec. 1 is not dependent on the dept. heads possession of any
information that might be covered by executive privilege. In fact, there is no reference to
executive privilege at all in Sec. 1.
--> The required prior consent under Sec. 1 is grounded on Art. VI, Sec. 22 of the
Constitution, which provides for the question hour. Thus, to determine the validity of Sec.
1 requires an examination of the meaning of Art. VI, Sec. 22. Sec. 22, in turn, must be

interpreted vis--vis Sec. 21 that provides for the power of either House of Congress to
conduct inquires in aid of legislation.
- In relation to the doctrine of separation powers, Congress has the right to obtain
information from any source even from executive department and agency officials. It is
this very separation that makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the elected representatives of
the people are to be carried out.
- Sections 21 and 22, even if closely related and complementary to each other, should
not be considered referring to the same power of Congress. (1) Legislative inquiry or the
power to conduct inquiries in aid of legislation aims to elicit information that may be used
for legislation. On the other hand, (2) the power to conduct a question hour seeks to
obtain information in pursuit of Congress oversight function.
-- The distinction between the two in terms of attendance is that appearance is
discretionary or may only be requested in the question hour (Sec. 22), whereas it is
mandatory in inquiries in aid of legislation (Sec. 21). Thus, the oversight function of
Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation.
--> When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves is by a valid claim of privilege. They are not exempt by the mere fact
that they are dept. heads. Only one executive official may be exempted from this power
the President, on whom executive power is vested. He/she is beyond the reach of Congress
except thru the power of impeachment. By the same token, members of the Supreme Court
are also exempt from this power of inquiry. Judicial power being vested in a collegial body
makes each member exempt on the basis not only of separation of powers but also on the
fiscal autonomy and the constitutional independence of the judiciary.
Hence, the Court held that Sec. 1, in reference to Art. VI, Sec. 22 of the Constitution
and the absence of any reference to inquiries in aid of legislation, must be construed
as limited in its application to appearances of department heads in the question hour
contemplated in Sec. 22.
The requirement then to secure presidential consent under SEC. 1, limited as it is
only to appearances in the question hour, is VALID on its face, given that appearance
of department heads in the question hour is discretionary on their part. Sec. 1,
however, cannot be applied to appearances of department heads in inquiries in aid of
legislation, unless a valid claim of privilege is subsequently made, either by the President
or by the Executive Secretary.
Validity of Sections 2 and 3 of E.O. 464
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of powers under
the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act
No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees
provides that Public Officials and Employees shall not use or divulge confidential or
classified information officially known to them by reason of their office and not made
available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President
and the public officers covered by this executive order, including:

i Conversations and correspondence between the President and the public official
covered by this executive order (Almonte vs. Vasquez; Chavez v. Public Estates Authority);
ii Military, diplomatic and other national security matters which in the interest of national
security should not be divulged (Almonte vs. Vasquez; Chavez v. Presidential Commission
on Good Government);
iii Information between inter-government agencies prior to the conclusion of treaties and
executive agreements (Chavez v. PCGG);
iv Discussion in close-door Cabinet meetings (Chavez v. PCGG);
v Matters affecting national security and public order (Chavez v. PEA).
Sec. 2 (b) Who are covered. The following are covered by this executive order:
i Senior officials of executive departments who in the judgment of the department heads
are covered by the executive privilege;
ii Generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the Chief of Staff are covered by the executive privilege;
iii Philippine National Police (PNP) officers with rank of chief superintendent or higher
and such other officers who in the judgment of the Chief of the PNP are covered by the
executive privilege;
iv Senior national security officials 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 Officials Before Congress.

All public officials enumerated in Section 2 (b) hereof shall secure prior consent of
the President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on executive
privilege and respect for the rights of public officials appearing in inquiries in aid of
legislation.
--> Sec. 3 requires all public officials enumerated in Sec. 2(b) to secure the consent of the
President prior to appearing before either house of Congress. The enumeration covers all
senior officials of executive departments, all officers of the AFP and PNP, and all senior
national security officials who, in the judgments of heads of offices designated in the same
section are covered by the executive privilege. The enumeration also includes other officers
as may be determined by the President.
--> The Court notes the misuse of the doctrine of executive privilege in that Sec. 2(b) states
that the privilege covers persons, because executive privilege is properly invoked in
relation to specific categories of information and not to categories of persons. In Sec.
2(a), however, the reference to persons being covered by the executive privilege may be
read as akin to that the person is in possession of information which is, in the judgment of
the head of office concerned, privileged as defined in same section.
--> Upon a determination by the designated head of office that an official is covered by the
executive privilege, such official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress. This requirement effectively
bars the appearance of the official concerned unless the same is permitted by the
President. The proviso allowing the President to give its consent means nothing more
than that the President may reverse a prohibition that already exists by virtue of E.O.
464.
--> The underlying requirement of prior consent is the determination by a head of office,

authorized by the President under E.O. 464, or by President herself, that such official is in
possession of information that is covered by executive privilege. This determination
becomes the basis for the officials not showing up in the legislative investigation.
--> Thus, whenever an official invokes E.O. 464 to justify failure to be present, such
invocation amounts to an implied claim of privilege that the information is being withheld
by the executive branch, by authority of the President, on the basis of executive privilege.
Such is found in the letter of Exec. Sec. Ermita to Sen. Pres. Drilon.
--> Sec. 3 cannot be dismissed outright as invalid by the mere fact it sanctions claims of
executive privilege. The Court thus assess the claim of privilege authorized by E.O. 464 to
determine whether it is valid.
--> The implied claim authorized by Sec. 3 is not accompanied by any specific allegation of
the basis thereof. While Sec. 2(a) enumerates the types of information that are covered by
the privilege under the challenged order, Congress if left to speculate as to which among
them is being referred to by the executive. Indeed, Congress has the right to know why the
executive considers the requested information privileged.
--> A claim of privilege, being a claim of exemption from an obligation to disclose
information, must be clearly asserted. The lack of specificity renders an assessment of
the potential harm resulting from disclosure impossible (Smith v. Federal Trade
Commission). Privilege cannot be set up by an unsupported claim. The facts upon which the
privilege is based must be established (US v. Article of Drug). 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 confidentiality. An
improperly asserted claim of privilege is no claim of privilege (Black v. Sheraton Corp. of
America).
--> On the other hand, Congress must also not require the executive to state the reasons for
the claim with such particularity as to compel disclosure of the information that the
privilege is meant to protect.
Hence, the Court held that Sec. 3 and Sec. 2(b) of E.O. 464 must be INVALIDATED.
The claim of privilege under Sec. 3 in relation to Sec. 2(b) is thus invalid per se,
because the claim is merely implied, and not asserted. Instead of providing precise and
certain reasons for the claim, it merely invokes E.O. 464, together with an announcement
that the President has not given her consent.
No infirmity, however, can be imputed to Sec. 2(a) as it merely provides
guidelines, binding only on the heads of office in Sec. 2(b), on what it covered by
executive privilege. It is not conclusive on other branches of government. It may thus
be construed as a mere expression of opinion by the President regarding the nature
and scope of executive privilege.
--> Another ground for invalidating the challenged order is the alleged unlawful delegation
of authority to the heads of offices in Sec. 2(b). Sec. 2(b) in relation to Sec. 3 provides that
once the head of office determines that certain information is privileged, such
determination is presumed to bear the Presidents authority. The provisions thus allow the
President to authorize claims of privilege by mere silence. Such presumptive authorization,
however, is contrary to the exceptional nature of the privilege.
--> The doctrine of executive privilege is thus premised on the fact that certain information
must, as a matter of necessity, be kept confidential in pursuit of the public interest. The
privilege being, by definition, an exemption from the obligation to disclose information, in

this case to Congress, the necessity must be of such high degree as to outweigh the public
interest in enforcing that obligation in a particular case.
The Court thus finds it essential to limit to the President the power to invoke
privilege, given its highly exceptional nature. Being an extraordinary power, it must
be wielded only the highest official in the executive hierarchy. Conversely, the
President may not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization in this case where the authorization is not explicit but
by mere silence. Hence, the Court held Sec. 3, in relation to Sec. 2(b), is further
invalidated given that it is essentially an authorization for implied claim of executive
privilege.

2.) W/N E.O. 464 violates the right of the people to information on matters of public
concern.
To the extent that investigations in aid of legislation are generally conducted in public,
however, any executive issuance tending to unduly limit disclosures of information in such
investigations necessarily deprives the people of information which, being presumed to be
in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby
denied access to information which they can use in formulating their own opinions on the
matter before Congress opinions which they can then communicate to their
representatives and other government officials through the various legal means allowed by
their freedom of expression.
It is in the interest of the State that the channels for free political discussion be maintained
to the end that the government may perceive and be responsive to the peoples will. Yet,
this open dialogue can be effective only to the extent that the citizenry is informed and thus
able to formulate its will intelligently.
The impairment of the right of the people to information as a consequence of E.O.
464 is, therefore, just as direct as its violation of the legislatures power of inquiry.

3.) W/N respondents have committed grave abuse of discretion when they
implemented E.O. 464 prior to its publication in a newspaper of general circulation.
While E.O. 464 applies only to officials of the executive branch, it does not follow that the
same is exempt from the need for publication. The need for publishing covers even those
statutes that do not directly apply to all people, as long as the subject of such law is a
matter of public interest that any member of the body politic may question.
E.O. 464 has a direct effect on the right of the people to information on matters of
public concern. Thus, it is a matter of public interest that 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.