SENATE V.

ERMITA
April 20, 2006
FACTS:
In the exercise of its legislative power, the Senate, through its various
Senate Committees, conducts inquiries or investigations in aid of
legislation which call for the 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 Philippines (AFP), and the Philippine National
Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate issued
invitations to various officials of the Executive Department for them to
appear on September 29, 2005 as resource speakers in a public hearing
on the railway project of the North Luzon Railways Corporation with
the China National Machinery and Equipment Group (hereinafter North
Rail Project). The public hearing was sparked by a privilege speech of
Senator Juan Ponce Enrile urging the Senate to investigate the alleged
overpricing and other unlawful provisions of the contract covering the
North Rail Project.
The Senate Committee on National Defense and Security likewise
issued invitations dated September 22, 2005 to several officials of the
AFP to attend as resource persons in a public hearing scheduled on
September 28, 2005 on the following: (1) Massive Electoral Fraud in the
Presidential Election of May 2005; (2) The Philippines as the WireTapping Capital of the World; (3) Clear and Present Danger; (4)
Gloriagate Scandal; and (5) Wire-Tapping of the President of the
Philippines.
AFP Chief of Staff General Generoso S. Senga who was invited to the
September 28 hearing, sent a letter on September 27 requesting for its
postponement due to a pressing operational situation while some of
the invited AFP officers are currently attending to other urgent
operational matters. On September 28, a letter was received by Senate
President Franklin M. Drilon dated September 27 from Executive
Secretary Eduardo R. Ermita requesting for the 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 opportunity to study and prepare for the various
issues so that they may better enlighten the Senate Committee on its
investigation."
Senate President Drilon, however, wrote Executive Secretary Ermita
that the Senators are unable to accede to his request as it was sent
belatedly and all preparations and arrangements as well as notices to all
resource persons were completed the previous week.
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, and For Other Purposes," which, pursuant to Section 6
thereof, took effect immediately.
The salient provisions of the Order are as follows:
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.
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. 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:
1. Conversations and correspondence between the President and
the public official covered by this executive order
2. Military, diplomatic and other national security matters which in
the interest of national security should not be divulged
3. Information between inter-government agencies prior to the
conclusion of treaties and executive agreements
4. Discussion in close-door Cabinet meetings
5. Matters affecting national security and public order
(b) Who are covered. The following are covered by this executive
order:
1. Senior officials of executive departments who in the judgment
of the department heads are covered by the executive privilege;
2. 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;
3. 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;
4. Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive
privilege; and
5. 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.
Also on September 28, 2005, 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 at the meeting [regarding the NorthRail project] will not be able
to attend the same without the consent of the President, pursuant to
[E.O. 464]. Likewise, Gen. Senga sent a letter to Senator Biazon,
Chairperson of the Committee on National Defense and Security,
informing him no officer of the [AFP] is authorized to appear before
any Senate or Congressional hearings without seeking a written
approval from the President" as per E.O. 464.
On October 3, 2005, three petitions, for certiorari and prohibition, were
filed before the Court challenging the constitutionality of E.O. 464.
ISSUES:
1. Whether E.O. 464 contravenes the power of inquiry vested in
Congress;
2. Whether E.O. 464 violates the right of the people to information
on matters of public concern; and
3. Whether respondents have committed grave abuse of discretion
when they implemented E.O. 464 prior to its publication in a
newspaper of general circulation.

DECISION:
Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials
before Congress, deprives Congress of the information in the possession
of these officials. To resolve the question of whether such withholding
of information violates the Constitution, consideration of the general
power of Congress to obtain information - the power of inquiry, is in
order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of
Article VI of the Constitution which reads:
SECTION 21. 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.
In Arnault v. Nazareno, a case decided in, the Court already recognized
that the power of inquiry is inherent in the power to legislate. The
power of inquiry with process to enforce it is an essential and
appropriate auxiliary to the legislative function. 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. 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 thereof.
However, 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."
Executive privilege
The phrase executive privilege is "the power of the Government to
withhold information from the public, the courts, and the Congress."
Since the beginnings of our nation, executive officials have claimed a
variety of privileges to 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.
However, that a type of information is recognized as privileged does not
necessarily mean that it would be considered privileged in all instances.
In determining the validity of a claim of privilege, the question that
must be asked is not only whether the requested information falls within
one of the privileges, but also whether that privilege should be honored
in a given procedural setting.
Executive privilege is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a
constitutional concept, a claim thereof may be valid or not depending on
the ground invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive officials are exempt
from the duty to disclose information by the mere fact of being
executive officials.
Validity of Section 1
Section 1 specifically applies to department heads. The coverage of
department heads under Section 1 is not made to depend on the
department heads possession of any information which might be
covered by executive privilege. There is no reference to executive
privilege at all. Rather, the required prior consent under Section 1 is
grounded on Article VI, Section 22 of the Constitution on what has been
referred to as the question hour.
SECTION 22. 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.

Section 22, in keeping with the separation of powers, states that

Congress may only request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance is "in aid of
legislation" under Section 21, the appearance is mandatory for the same
reasons stated in Arnault. Ultimately, the power of Congress to compel
the appearance of executive officials under Section 21 and the lack of it
under Section 22 find their basis in the principle of separation of
powers.
The requirement then to secure presidential consent under Section 1,
limited as it is, is valid on its face. For under Section 22, Article VI of
the Constitution, the appearance of department heads in the question
hour is discretionary on their part. Section 1 cannot, however, be applied
to appearances of department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the refusal of the
department head to appear in such inquiry, unless a valid claim of
privilege is subsequently made.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in
Section 2(b) to secure the consent of the President prior to appearing
before either house of Congress. The enumeration is broad.

Congress is left to speculate as to which among them is being referred to

by the executive.
Absent then a statement of the specific basis of a claim of executive
privilege, there is no way of determining whether it falls under one of
the traditional privileges. Privilege cannot be set up by an unsupported
claim. The facts upon which the privilege is based must be established.
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. Without
this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected.
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. 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 inquiry of
Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

In view thereof, whenever an official invokes E.O. 464 to justify his

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,
and that the President has not reversed such determination. Such
declaration, however, even without mentioning the term "executive
privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President.

No infirmity, however, can be imputed to Section 2(a) as it merely

provides guidelines, binding only on the heads of office mentioned in
Section 2(b), on what is covered by executive privilege. It does not
purport to be conclusive on the 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.

As demonstrated by the letter of respondent Executive Secretary, the

implied claim authorized by Section 3 of E.O. 464 is not accompanied
by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closeddoor Cabinet meetings, etc.). While Section 2(a) enumerates the types of
information that are covered by the privilege under the challenged order,

E.O 464 is concerned only with the demands of Congress for the
appearance of executive officials 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, however, that what is involved in the present controversy is

Right to Information

not merely the legislative power of inquiry, but the right of the people to
information. The impairment of the right of the people to information as
a consequence of E.O. 464 is, therefore, in the sense explained above,
just as direct as its violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication
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. Logic
dictates that the challenged order must be covered by the publication
requirement. E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. Due process thus requires that
the people should have been apprised of this issuance before it was
implemented.
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.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of
Executive Order No. 464 are declared VOID. Sections 1 and 2(a) are, however,
VALID.

Essential requisites for judicial review (Additional)

Before proceeding to resolve the issue of the constitutionality of E.O.
464, ascertainment of whether the requisites for a valid exercise of the
Courts power of judicial review are present is in order.
Requisites:
(1) there must be an actual case or controversy calling for the
exercise of judicial power;
(2) the person challenging the act must have standing to challenge
the validity of 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) the question of constitutionality must be raised at the earliest
opportunity; and

2. Party-list representatives- Satur Ocampo (Bayan Muna),

Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna),
Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and
Liza Maza (Gabriela) are allowed to sue to question the
constitutionality of E.O. 464 it being 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 functions in the
implementation of laws.

3. Bayan Muna (National political party)- meets the standing

requirement as it obtained three seats in the House of
Representatives in the 2004 elections and is, therefore, entitled
to participate in the legislative process

4. Courage and Codal- No locus standi

-

In filing their respective petitions, Chavez, the ALG which

claims to be an organization of citizens, and the incumbent
members of the IBP Board of Governors and the IBP in behalf
of its lawyer members, 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 effective exercise of other constitutional rights and to the
maintenance of the balance of power among the three branches
of the government through the principle of checks and balances.

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
personal. In Franciso v. House of Representatives, this Court
held that when the proceeding involves the assertion of a public
right, the mere fact that he is a citizen satisfies the requirement
of personal interest.

(4) the issue of constitutionality must be the very lis mota of the case.
Only the first and second requisites are discussed by the SC.
Standing
1. Senate of the Philippines- the Senate, including its individual
members, has a substantial and direct interest over the outcome
of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing
to maintain inviolate the prerogative, powers and privileges
vested by the Constitution in their office and are allowed to sue
to question the validity of any official action which they claim
infringes their prerogatives as legislators.

5. PDP-Laban- no locus standi; issue is not of transcendental

importance
-

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
constitutional crisis.

For it to be accorded standing on the ground of transcendental

importance, however, it must establish:
(1) the character of the funds (that it is public) or other assets involved
in the case,

claim, merely communicated to the Senate that they have not yet
secured the consent of the President, not that the President prohibited
their attendance. Specifically, with 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 Presidents consent was based
on its role as Commander-in-Chief of the Armed Forces, not on E.O.
464.
Respondents thus conclude that the petitions merely rest on an
unfounded apprehension that the President will abuse its power of
preventing the appearance of officials before Congress, and that such
apprehension is not sufficient for challenging the validity of E.O. 464.

(3) the lack of any party with a more direct and specific interest in
raising the questions being raised.

The Court finds respondents assertion that the President has not
withheld her consent or prohibited the appearance of the officials
concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned. For E.O. 464 does
not require either a deliberate withholding of consent or an express
prohibition issuing from the President in order to bar officials from
appearing before Congress.

The first and last requisites are not present, hence, PDP-Laban has no
locus standi. Its allegation that E.O. 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. In fine, PDP-Labans
alleged interest as a political party does not suffice to clothe it with legal
standing.

As the implementation of the challenged order has already resulted in

the absence of officials invited to the hearings of petitioner Senate of the
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be
sheer abandonment of duty if this Court would now refrain from passing
on the constitutionality of E.O. 464.

(2) the presence of a clear case of disregard of a constitutional or

statutory prohibition by the public respondent agency or instrumentality
of the government, and

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance
of E.O. 464, particularly those on the NorthRail project and the
wiretapping controversy.
Respondents counter that there is no case or controversy, there being no
showing that President Arroyo has actually withheld her consent or
prohibited the appearance of the invited officials. These officials, they