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Sovereignty definition, aspects, situs, essential qualities Definition Sovereignty- is the power of the State to regulate matters within

n its own territory. Sovereignty resides in the people and all government authority emanates from them. This power resides in the people understood as those who have a direct hand in the formulation, adoption, and amendment or alteration of the Constitution. Political writer distinguish between legal sovereignty and political sovereignty. The former is described as the supreme power to make laws and the latter as the sum total of all the influences in a state, legal and non-legal, which determine the course of law. Sovereign authority, moreover, is not always directly exercised by the people. It is normally delegated by the people to the government and to the concrete persons in whose hands the powers of government temporarily reside. Such authority continues with the consent of the people. Finally, is recognition by other states a constitutive element of a state such that even it has all four elements of the Montevideo Convention it is not a state if it has not been recognized? In International law, there are two views on this. One view, the constitutive theory, is that recognition constitutes a state. The other view, the declaratory theory, is that recognition is merely declaratory of the existence ofthe state. In practice, however, whether recognize or not is largely apolitical decision. Republican State - It is one wherein all government authorityemanates form the people and is exercised by representatives chosenby the people. Democratic State This merely emphasizes that the Philippines hassome aspect of direct democracy such as initiative and referendum. Aspects Effect of Belligerent Occupation No change in sovereignty. However, political laws, except those of treason, are suspended; municipal laws remain in force unless changed by the belligerent occupant. Principle of Jus Postiminium At the end of the occupation, politicallaws are automatically revived. Effect of Change of Sovereignty political laws of the former sovereign, whether compatible or nor with those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by the affirmative act of the new sovereign. Municipals laws remain in force (Macariola v. Asuncion, 114 SCRA 77). __________________________________________________________________________________________________________________ Imperium-the States authority to govern embraced in the concept of sovereignty: includes passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion. Dominium the capacity of the State to own and acquire property. Regalian Doctrine all lands of the public domain belong to the State the source of any asserted rights to ownership of land. All lands not appearing to be clearly of public dominium presumptively belong to the State. Public Dominion - are those property intended for public use for public service. They are outside the commerce of men and therefore not subject for appropriation. Note: Property of public dominion when no longer needed for public use or public service, shall form part of the patrimonial property of the state. Public Land is equivalent to Public Domain. Government Lands include public land and all other lands of the government already reserved or devoted to public use or subject to private rights. Classification of Lands of the Public Domain: 1. Agricultural Lands 2. Forest or Timber Lands 3. Mineral Lands 4. National Parks __________________________________________________________________________________________________________________ Effect of laws on transfer of Sovereignty:there is abrogationof laws in conflict with the political character of the substitute sovereign (political law); great body of municipal law regarding private and domestic rights continue in force until abrogated or changed by new ruler __________________________________________________________________________________________________________________ a. Tariff Powers to the President (Sec.28 (2), Art. VI) (2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. b. Emergency Powers to the President(Section 23 (2), Art VI)

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. Commonwealth Act No. 671 does not in term fix the duration of its effectiveness. The intention of the Act has to be sought for in its nature, the object to be accomplish, the purpose to be subserved, and its relation to the Constitution. Article VI of the Constitution provides that any law passed by virtue thereof should be "for a limited period." "Limited" has been defined to mean "restricted; bounded; prescribed; confined within positive bounds; restrictive in duration, extent or scope." The words "limited period" as used in the Constitution are beyond question intended to mean restrictive in duration. Emergency, in order to justify the delegation of emergency powers, "must be temporary or it can not be said to be an emergency." The assertion that new legislation is needed to repeal the act would not be in harmony with the Constitution either. If a new and different law were necessary to terminate the delegation, the period for the delegation, it has been correctly pointed out, would be unlimited, indefinite, negative and uncertain; "that which was intended to meet a temporary emergency may become permanent law,"; for Congress might not enact the repeal, and even if it would, the repeal might not meet the approval of the President, and the Congress might not be able to override the veto. Furthermore, this would create the anomaly that, while Congress might delegate its powers by simple majority, it might not be able to recall them except by a two-third vote. In other words, it would be easier for Congress to delegate its powers than to take them back. This is not right and is not, and ought not to be, the law. More anomalous than the exercise of legislative function by the Executive when Congress is in the unobstructed exercise of its authority is the fact that there would be two legislative bodies operating over the same field, legislating concurrently and simultaneously, mutually nullifying each other's actions. Even if the emergency powers of the President, as suggested, be suspended while Congress was in session and be revived after each adjournment, the anomaly would not be limited. Congress by a two-third vote could repeal executive orders promulgated by the President during congressional recess, and the President in turn could treat in the same manner, between sessions of Congress, laws enacted by the latter. This is not a fantastic apprehension; in two instances it materialized. In entire good faith, and inspired only by the best interests of the country as they saw them, a former President promulgated an executive order regulating house rentals after he had vetoed a bill on the subject enacted by Congress, and the present Chief Executive issued an executive order on export control after Congress had refused to approve the measure. What then was the contemplated period? President Quezon in the same paragraph of his autobiography furnished part of the answer. He said he issued the call for a special session of the National Assembly "when it became evident that we were completely helpless against air attack, and that it was most unlikely thePhilippine Legislature would hold its next regular session which wasto open on January 1, 1942." It is our considered opinion, and we so hold, that Commonwealth Act No. 671 became inoperative when Congress met in regular session on May 25, 1946, and that Executive Orders Nos. 62, 192, 225 and 226 were issued without authority of law. In so far as it is insinuated that the Chief Executive has the exclusive authority to say that war not ended, and may act on the strength of his opinion and findings in contravention of the law as the courts have construed it, no legal principle can be found to support the proposition. There is no pretense that the President has independent or inherent power to issue such executive orders as those under review. After the convening of Congress new legislation had to be approved if the continuation of the emergency powers, or some of them, was desired. In the light of the conditions surrounding the approval of the Emergency Power Act, we are of the opinion that the "state of total emergency as a result of war" envisaged in the preamble referred to the impending invasion and occupation of the Philippines by the enemy and the consequent total disorganization of the Government, principally the impossibility for the National Assembly to act. The state of affairs was one which called for immediate action and with which the National Assembly would would not be able to cope. The war itself and its attendant chaos and calamities could not have necessitated the delegation had the National Assembly been in a position to operate (First Emergency Powers Cases, 84 Phil 368). As the Act was expressly in pursuance of the constitutional provision, it has to be assumed that the National Assembly intended it to be only for a limited period. If it be contended that the Act has not yet been duly repealed, and such step is necessary to a cessation of the emergency powers delegated to the President, the result would be obvious unconstitutionality, since it may never be repealed by the Congress, or if the latter ever attempts to do so, the President may wield his veto. This eventuality has in fact taken place when the President disapproved House Bill No. 727, repealing all Emergency Powers Acts. The situation will make the Congress and the President or either as the principal authority to determine the indefinite duration of the delegation of legislative powers, ? in palpable repugnance to the constitutional provision that any grant thereunder must be for a limited period, necessarily to be fixed in the law itself and not dependent upon the arbitrary or elastic will of either the Congress or the President. Although House Bill No. 727, had been vetoed by the President and did not thereby become a regular statute, it may at least be considered as a concurrent resolution of the Congress formally declaring the termination of the emergency powers. To contend that the Bill needed presidential acquiescence to produce effect, would lead to the anomalous, if not absurd, situation that, "while Congress might delegate its power by a simple majority, it might not be able to recall them except by two-third vote. In other words, it would be easier for Congress to delegate its powers than to take them back. This is not right and is not, and ought not to be the law." Insofar as the Congress had shown its readiness or ability to act on a given matter, the emergency powers delegated to the President had been pro tanto withdrawn, Executive Orders Nos. 545 and 546 must be declared as having no legal anchorage. We can take judicial notice of the fact that the Congress has since liberation repeatedly been approving acts appropriating funds for the operation of the Government, public works, and many others purposes, with the result that as to such legislative task the Congress must be deemed to have long decided to assume the corresponding power itself and to withdraw the same from the President. Shelter may not be sought in the proposition that the President should be allowed to exercise emergency powers for the sake of speed and expediency in the interest and for the welfare of the people, because we have the Constitution, designed to establish a government under a regime of justice, liberty and democracy. In line with such primordial objective, our Government is democratic in form and based on the system of separation of powers. Unless and until changed or amended, we shall have to abide by the letter and spirit of the Constitution and be prepared to accept the consequences resulting from or inherent in disagreements between, inaction or even refusal of the legislative and executive departments. Much as it is imperative in some cases to have prompt official action, deadlocks in and slowness of democratic processes must be preferred to concentration of powers in any one man or group of men for obvious reasons. The framers of the Constitution, however, had the vision of and were careful in allowing delegation of legislative powers to the President for a limited period "in times of war or other national emergency." They had thus entrusted to the good judgment of the Congress the duty of coping with any national emergency by a more efficient procedure; but it alone must decide because emergency in itself cannot and should not create power. In our democracy the hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their faithful adherence to the Constitution(2nd Emergency Powers Cases, 92 Phil 603).

__________________________________________________________________________________________________________________ Political Question - has two (2) aspects: 1.Those questions which, under the Constitution are to be decided by the people in their sovereign capacity or 2.In regard to which full discretionary authority has been delegated to the legislature or executive branches of government (Tanada v. Cuenco, 100 Phil 1101). Justiciable Question a definite and concrete dispute touching on the legal interest which may be resolved by a court of law through the application of a law (Cataran v. DENR, GR No. 134958, January 3, 2001). __________________________________________________________________________________________________________________ SELF-EXECUTING PROVISIONS General rule:All provisions of the constitution are self-executing; Exceptions:Some constitutions are merely declarations of policies. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. - Thus, a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself. - Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of constitutional are self executing. - Non- self-executing provisions would give the legislature discretion to determine when, or whether, they shall be effective, subordinated to the will of the law-making body. - In case of doubt, the provisions should be considered self-executing; mandatory rather than directory; and prospective rather than retroactive (Nachura, Reviewer in Political Law, 2005 ed., p. 3). Issue: Whether the provisions of the Constitution, particularly Article XII Section 10, are self-executing. The Court held that a provision which lays down a general principle, such as those found in Article II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self- executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. In fine, Section 10, second paragraph, Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation (Manila Prince Hotel vs. GSIS, GR 122156, Feb. 03, 1997). __________________________________________________________________________________________________________________ EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY The law is either: 1.void if on its face it does not enjoy any presumption of validity because it is patently offensive to the Constitution. It produces no effect creates no office and imposes no duty. (Igot v. Comelec, 95 SCRA 392). 2.voidable if on its face it enjoys the presumption of constitutionality. The law becomes inoperative only upon the judicial declaration of its invalidity; the declaration produces no retroactive effect (Serrano de Agbayani v PNB, 38 SCRA 429). __________________________________________________________________________________________________________________ POWER OF LEGISLATIVE INVESTIGATION (SEC. 21 AND 22) 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. 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. Limitation on Power of Legislative Investigation:

1. must be in aid of legislation; 2. in accordance with duly published rules of procedure; and 3. right of person appearing in, or affected by such inquiry shall be respected.

Question Hour (Sec. 22) As to persons who may Appear Only a department Head

Legislative Investigation (Sec.21) Any person

As to who conducts the Investigation

Entire body


As to the subject matter

Matters related to the department only

Any matter for the purpose of legislation

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, otherwise known as the power of inquiry, is in order.The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.60 The matters which may be a proper subject of legislation and those 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. 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 most familiar with and informed on executive operations. From the discussion on the meaning and scope of executive privilege, both in the United 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 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. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure (Senate vs. Ermita (E.O. 464), GR 169777). The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the aforequoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one's self (Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767). 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 legislations is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not frequently true recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed. The fact that the Constitution expressly hives to congress the power to punish its Members for disorderly behaviour, does not by necessary implication exclude the power to punish for contempt any other person. Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, the investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject of course to his constitutional right against self- incrimination. The inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate, or to expel a Member; and every question which the investigator is empowered to coerce a witness to answer must be material or pertinent to the subject of the inquiry or investigation. The power of the Court is limited to determining whether the legislative body has jurisdiction to institute the inquiry or investigation; that once that jurisdiction is conceded, this Court cannot control the exercise of that jurisdiction or the use of Congressional discretion; and, it is insinuated, that the ruling of the Senate on the materiality of the question propounded to the witness is not subject to review by this Court under the principle of the separation of powers (Arnault vs. Nazareno, 87 Phil 29). It was admitted and we had ruled that the Senate has the authority to commit a witness if he refuses to answer a question pertinent to a legislative inquiry, to compel him to give the information, i. e., by reason of its coercive power, not its punitive power. It is now contented by petitioner that if he committed an offense of contempt or perjury against the legislative body, because he refused to reveal the identity of the person in accordance with the demands of the Senate Committee, the legislature may not punish him, for the punishment for his refusal should be sought through the ordinary processes of the law, i.e., by the institution of a criminal action in a court of justice. American legislative bodies, after which our own is patterned, have the power to punish for contempt if the contempt has had the effect of obstructing the exercise by the legislature of, or deterring or preventing it from exercising, its legitimate functions. The principle that Congress or any o fits bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power, or necessary to effectuate said power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity (Arnault vs. Balagtas, 97 Phil 358).

__________________________________________________________________________________________________________________ Removal of the President CASES Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as President. The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment.78 The validity of a resignation is not government by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. n sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacanang. In the press release containing his final statement, (1) he acknowledged the oath- taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense (Estrada vs. Arroyo, GR 146738, March 2, 2001). Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of Article VII. The recognition of respondent Arroyo as our de jure president made by Congress is unquestionably a political judgment. It is significant that House Resolution No. 176 cited as the bases of its judgment such factors as the peoples loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern and the members of the international community had extended their recognition of Her Excellency, Gloria Macapagal- Arroyo as President of the Republic of the Philippines and it has a constitutional duty of fealty to the supreme will of the people x x x. This political judgment may be right or wrong but Congress is answerable only to the people for its judgment. Its wisdom is fit to be debated before the tribunal of the people and not before a court of justice. Needles to state, the doctrine of separation of power constitutes an inseparable bar against this courts interposition of its power of judicial review to review the judgment of Congress rejecting petitioners claim that he is still the President,a lbeit on leave and that respondent Arroyo is merely an acting President (Estrada vs. Arroyo, GR 146738, Motion for Recon., April 3, 2001). __________________________________________________________________________________________________________________ Executive Privilege The power of the Government to withhold information from the public, the courts, and the Congress. The right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public. __________________________________________________________________________________________________________________ PHILCONSA vs Enriquez - Provisions that are germane to the specific appropriations cannot be vetoed. - Requirement of Congressional approval for release of funds for modernization of AFP can be incorporated in separate bill and hence inappropriate. It was properly vetoed. - Executive Impoundment refusal of the President to spend funds already allocated by Congress for a specific purpose (the duty to implement the law includes the duty to desist from implementing it when implementation would prejudice public interest). The Court, however, did not rule on this issue, and rather declared the provision concerning benefits of CAFGUs as an inappropriate provision. Impoundment is the refusal of a President of the United States to spend money that has been appropriated by the U.S. Congress. Senate vs. Ermita (G.R. No. 169777, July 14, 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. Hence, these petitions. ISSUES: Whether or not EO 464 contravenes the power of inquiry vested in Congress

Whether or not EO 464 violates the right of the people to information on matters of public concern Whether or not respondents have committed grave abuse of discretion when they implemented EO 464 prior to its publication in a newspaper of general circulation RULING: ESSENTIAL REQUISITES OF JUDICIAL REVIEW: there must be an actual case or controversy calling for the exercise of judicial power; 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; the question of constitutionality must be raised as the earliest opportunity; and the issue of constitutionality must be the very lis mota of the case. LEGAL STANDING Standing of the Senate That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a democratic system, but more especially for sound legislation is not disputed. EO 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making. Verily, 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 EO 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. Standing of an ordinary citizen 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 Francisco 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. Requisites for transcendental importance: Establish (1) the character of the funds (that it is public) or other assets involved in the case, (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 (3) the lack of any party with a more direct and specific interest in raising the questions being raised. ACTUAL CASE/CONTROVERSY 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 EO 464 is concerned. For EO 464 does not require either a deliberative withholding of consent or an express prohibition issuing from the President in order to bar officials from appearing before Congress. 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 EO 464. The power of inquiry The Congress power of inquiry is expressly recognized in Sec. 21, Art. VI. But as early as 1950 (the 1935 Constitution did not contain a similar provision) in Arnault v. Nazareno, the Court already recognized that the power of inquiry is inherent in the power to legislate. xxx That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of co-extensive with the power to legislate. The matters which may be a proper subject of legislation and those 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. xxx the power of inquiry, with process to enforce it, is grounded on the necessity of the 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, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. The power of inquiry is subject to judicial review xxx the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under Sec. 1, Art. VIII. For one...the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its investigations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation. Sec. 21, Art. VI likewise 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, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Sec. 21 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. Exemption to power of inquiry

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions falls under the rubric of executive privilege. Executive privilege, defined Schwartz 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 President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public. Kinds of executive privilege One variety of the the state secrets privilege...on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For 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 traditional privileges, but also whether that privilege should be honored in a given procedural setting.

The principle of executive privilege Executive privilege, whether asserted 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 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. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. xxx When Congress exercises 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 executive official may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom. By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. Constitutionality of Sec. 1, EO 464 Section 1, in view of its specific reference to Sec. 22 of Art. VI 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 the provision of said Sec. 22, Art. VI xxx The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. For under Sec. 22, Art. VI, 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, either by the President herself or by the Executive Secretary. Validity of Sec. 2 and 3, EO 464 En passant, the Court notes that Section 2(b) of EO 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive properly invoked in relation to specific categories of information and not to categories of persons. The claim of executive privilege must be accompanied by specific allegation of basis thereof 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, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested. A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted xxx 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, or whether, given the circumstances in which it is made, it should be respected xxx Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination xxx

The claim of privilege under Sec. 3, EO 464 in relation to Sec. 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 EO 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 EO 464 must be invalidated. EO 464 unlawfully delegated authority to the heads of offices in Sec. 2(b) to determine certain information as privileged 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 Presidents authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exception nature of the privilege. Executive recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain informations (sic) 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. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the 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 executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. How executive privilege should be applied in the case of an official xxx 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 in order 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, afer 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. Right to Information There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive assistance 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 governmental officials through various legal means allowed by their freedom of expression xxx The impairment of the right of the people to information as a consequence of EO 464 is, therefore, in the sense explained above, just as direct as its violation of the legislatures power of inquiry. Implementation of EO 464 prior to its publication While EO 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need for publication. On the need for publishing even those statutes that do not directly apply to people in genera, Tanada v. Tuvera states: The term laws should refer to all laws and not only to those of general application, for strictly 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 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 subject of the law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice. 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, EO 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.