EN BANC
|
SENATE
OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as
Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his
capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as
Minority Leader, SENATORS RODOLFO G. BIAZON, “COMPANERA” PIA S. CAYETANO,
JINGGOY EJERCITO ESTRADA, LUISA “LOI” EJERCITO ESTRADA, JUAN PONCE ENRILE,
RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S. LIM, M. A. MADRIGAL,
SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners, - versus - EDUARDO
R. ERMITA, in his capacity as Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the
President of the
Respondents. x------------------------------------------x
BAYAN MUNA represented by
DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep.
RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR,
COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF
LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN,
Petitioners, - versus - EDUARDO
ERMITA, in his capacity as Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, Respondent. x------------------------------------------x FRANCISCO
I. CHAVEZ,
Petitioner, - versus - EDUARDO
R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in
his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity
as AFP Chief of Staff,
Respondents. x------------------------------------------x ALTERNATIVE
LAW GROUPS, INC. (ALG), Petitioner, - versus - HON.
EDUARDO R. ERMITA, in his capacity as Executive Secretary,
Respondent. x-----------------------------------------x PDP-
LABAN, Petitioner, - versus - EXECUTIVE
SECRETARY EDUARDO R. ERMITA,
Respondent. x------------------------------------------x JOSE
ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO
R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III,
MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES,
Petitioners, - versus - HON.
EXECUTIVE SECRETARY EDUARDO R. ERMITA,
Respondent. |
G.R. No. 169777* Present: PANGANIBAN, C.J., PUNO,** QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JR.,
JJ. Promulgated: April 20,
2006 G.R. No. 169659
G.R. No. 169660 G.R. No. 169667 G.R. No. 169834 G.R. No.
171246 |
x-----------------------------------------------------------------------------------------x
D E C I S I O N
CARPIO MORALES, J.:
A transparent
government is one of the hallmarks of a truly republican state. Even in the early history of republican
thought, however, it has been recognized that the head of government may keep
certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive
power in only one magistrate, a distinguished delegate to the U.S.
Constitutional Convention said: “Decision, activity, secrecy, and
dispatch will generally characterize the proceedings of one man, in a much more
eminent degree than the proceedings of any greater number; and in proportion as
the number is increased, these qualities will be diminished.”[1]
History has
been witness, however, to the fact that the power to withhold information lends
itself to abuse, hence, the necessity to guard it zealously.
The present
consolidated petitions for certiorari and prohibition proffer that the
President has abused such power by issuing Executive Order No. 464 (E.O. 464)
last September 28, 2005. They thus pray
for its declaration as null and void for being unconstitutional.
In
resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come from a co-equal branch of government, which
thus entitles it to a strong presumption of constitutionality. Once the challenged order is found to be
indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the highest
expression of the sovereign will of the Filipino people, must prevail over any
issuance of the government that contravenes its mandates.
In
the exercise of its legislative power, the Senate of the Philippines, through
its various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, 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 as a whole 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[2]
dated September 22, 2005 to the following officials of the AFP: the Commanding
General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector
General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for
Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence
Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant
Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to
attend as resource persons in a public hearing scheduled on September 28, 2005
on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr.,
delivered on June 6, 2005 entitled “Bunye has Provided Smoking Gun or has
Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential
Election of May 2005”; (2) Privilege Speech of Senator Jinggoy E. Estrada
delivered on July 26, 2005 entitled “The Philippines as the Wire-Tapping
Capital of the World”; (3) Privilege Speech of Senator Rodolfo Biazon delivered
on August 1, 2005 entitled “Clear and Present Danger”; (4) Senate Resolution
No. 285 filed by Senator Maria Ana
Consuelo Madrigal – Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest,
on the Role of the Military in the So-called “Gloriagate Scandal”; and (5)
Senate Resolution No. 295 filed by Senator Biazon – Resolution Directing the
Committee on National Defense and Security to Conduct an Inquiry, in Aid of
Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said
hearing scheduled on September 28 2005 was the AFP Chief of Staff, General
Generoso S. Senga who, by letter[3]
dated September 27, 2005, requested for its postponement “due to a pressing
operational situation that demands [his] utmost personal attention” while “some
of the invited AFP officers are currently attending to other urgent operational
matters.”
On
September 28, 2005, Senate President Franklin M. Drilon received from Executive
Secretary Eduardo R. Ermita a letter[4]
dated September 27, 2005 “respectfully request[ing] 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[5]
Executive Secretary Ermita that the Senators “are unable to accede to [his
request]” as it “was sent belatedly” and “[a]ll preparations and arrangements
as well as notices to all resource persons were completed [the previous] week.”
Senate
President Drilon likewise received on September 28, 2005 a letter[6]
from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.
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,”[7]
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 (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:
(b) Who are covered. – The following are covered by this executive order:
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. (Emphasis and underscoring supplied)
Also
on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter[8]
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]” and that
“said officials have not secured the required consent from the President.” On
even date which was also the scheduled date of the hearing on the alleged wiretapping,
Gen. Senga sent a letter[9] to
Senator Biazon, Chairperson of the Committee on National Defense and Security,
informing him “that per instruction of [President Arroyo], 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 of the Senate Committee on National
Defense and Security scheduled [on] 28 September 2005.”
Despite
the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security
pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP
officials invited attending.
For
defying President Arroyo’s order barring military personnel from testifying
before legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan
were relieved from their military posts and were made to face court martial
proceedings.
As
to the NorthRail project hearing scheduled on September 29, 2005, Executive
Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the
invitations sent to the following government officials: Light Railway Transit Authority Administrator
Melquiades Robles, Metro Rail Transit Authority Administrator Roberto
Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez,
then Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National Railways General Manager Jose
Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development
Authority Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.[10] NorthRail President Cortes sent personal
regrets likewise citing E.O. 464.[11]
On
October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and
169667, for certiorari and prohibition, were filed before this Court
challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan
Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and
Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to
the promotion of justice, democracy and peace, all claiming to have standing to
file the suit because of the transcendental importance of the issues they
posed, pray, in their petition that E.O.
464 be declared null and void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive Secretary and
alter-ego of President Arroyo, be prohibited from imposing, and threatening to
impose sanctions on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim
that E.O. 464 infringes on their rights and impedes them from fulfilling their
respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its
right as a political party entitled to participate in governance; Satur Ocampo,
et al. allege that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid of legislation and conduct
oversight functions in the implementation of laws; Courage alleges that the tenure of its members in public
office is predicated on, and threatened by, their submission to the
requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges
that its members have a sworn duty to uphold the rule of law, and their rights
to information and to transparent governance are threatened by the imposition
of E.O. 464.
In G.R. No. 169660, petitioner
Francisco I. Chavez, claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the enforcement of E.O. 464,
prays in his petition that E.O. 464 be declared null and void for being
unconstitutional.
In G.R. No. 169667, petitioner
Alternative Law Groups, Inc.[12]
(ALG), alleging that as a coalition of 17 legal resource non-governmental
organizations engaged in developmental lawyering and work with the poor and
marginalized sectors in different parts of the country, and as an organization
of citizens of the Philippines and a part of the general public, it has legal
standing to institute the petition to enforce its constitutional right to
information on matters of public concern, a right which was denied to the
public by E.O. 464,[13]
prays, that said order be declared null and void for being unconstitutional and
that respondent Executive Secretary Ermita be ordered to cease from
implementing it.
On October 11, 2005, Petitioner Senate
of the Philippines, alleging that it has a vital interest in the resolution of
the issue of the validity of E.O. 464 for
it stands to suffer imminent and material injury, as it has already
sustained the same with its continued enforcement since it directly interferes
with and impedes the valid exercise of the Senate’s powers and functions and
conceals information of great public interest and concern, filed its petition
for certiorari and prohibition, docketed as G.R. No. 169777 and prays
that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a
registered political party with members duly elected into the Philippine Senate
and House of Representatives, filed a similar petition for certiorari and
prohibition, docketed as G.R. No. 169834, alleging that it is affected
by the challenged E.O. 464 because it hampers its legislative agenda to be
implemented through its members in Congress, particularly in the conduct of
inquiries in aid of legislation and transcendental issues need to be resolved
to avert a constitutional crisis between the executive and legislative branches
of the government.
Meanwhile, by letter[14]
dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga
for him and other military officers to attend the hearing on the alleged
wiretapping scheduled on February 10, 2005.
Gen. Senga replied, however, by letter[15]
dated February 8, 2006, that “[p]ursuant to Executive Order No. 464, th[e]
Headquarters requested for a clearance from the President to allow [them] to
appear before the public hearing” and that “they will attend once [their]
request is approved by the President.”
As none of those invited appeared, the hearing on February 10, 2006 was
cancelled.[16]
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 scheduled on October 5
and 26, November 24 and December 12, 2005 but
most of them failed to attend, DA Undersecretary Belinda Gonzales, DA
Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority
Executive Director Norlito R. Gicana,[17]
and those from the Department of Budget and Management[18]
having invoked E.O. 464.
In the budget hearings set by the
Senate on February 8 and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye,[19]
DOJ Secretary Raul M. Gonzalez[20]
and Department of Interior and Local Government Undersecretary Marius P. Corpus[21]
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.
On February 13, 2006, Jose Anselmo I.
Cadiz and the incumbent members of the Board of Governors of the Integrated Bar
of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as
the official organization of all Philippine lawyers, all invoking their
constitutional right to be informed on matters of public interest, filed their
petition for certiorari and prohibition, docketed as G.R. No. 171246,
and pray that E.O. 464 be declared null and void.
All the petitions pray for the
issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions
conducted on February 21, 2006, the following substantive issues were
ventilated: (1) whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether E.O. 464 violates the
following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4,
Art. III, Sec. 7, Art. IV. Sec. 1, Art.
VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there
is an actual case or controversy that calls for judicial review was not taken
up; instead, the parties were instructed to discuss it in their respective
memoranda.
After the conclusion of the oral
arguments, the parties were directed to submit their respective memoranda,
paying particular attention to the following propositions: (1) that E.O. 464
is, on its face, unconstitutional; and (2) assuming that it is not, it
is unconstitutional as applied in four instances, namely: (a) the
so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping
activity of the ISAFP; and (d) the investigation on the Venable contract.[22]
Petitioners in G.R. No. 169660[23]
and G.R. No. 169777[24]
filed their memoranda on March 7, 2006, while those in G.R. No. 169667[25]
and G.R. No. 169834[26]
filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246
did not file any memorandum.
Petitioners Bayan Muna et al.
in G.R. No. 169659, after their motion for extension to file memorandum[27]
was granted, subsequently filed a manifestation[28]
dated March 14, 2006 that it would no longer file its memorandum in the
interest of having the issues resolved soonest, prompting this Court to issue a
Resolution reprimanding them.[29]
Petitioners submit that E.O. 464
violates the following constitutional provisions:
Art. VI, Sec. 21[30]
Art. VI, Sec. 22[31]
Art. VI, Sec. 1[32]
Art. XI, Sec. 1[33]
Art. III, Sec. 7[34]
Art. III, Sec. 4[35]
Art. XIII, Sec. 16 [36]
Art. II, Sec. 28[37]
Respondents Executive Secretary
Ermita et al., on the other hand, pray in their consolidated memorandum[38]
on March 13, 2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to
be resolved as follows:
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.
Essential requisites for judicial
review
Before
proceeding to resolve the issue of the constitutionality of E.O. 464,
ascertainment of whether the requisites for a valid exercise of the Court’s
power of judicial review are present is in order.
Like
almost all powers conferred by the Constitution, the power of judicial review
is subject to limitations, to wit: (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 (4) the issue of constitutionality must
be the very lis mota of the case.[39]
Except
with respect to the requisites of standing and existence of an actual case or
controversy where the disagreement between the parties lies, discussion of the
rest of the requisites shall be omitted.
Standing
Respondents,
through the Solicitor General, assert that the allegations in G.R. Nos. 169659,
169660 and 169667 make it clear that they, adverting to the non-appearance of
several officials of the executive department in the investigations called by
the different committees of the Senate, were brought to vindicate the constitutional
duty of the Senate or its different committees to conduct inquiry in aid of
legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative,
power, and privilege of the House of Representatives which had been effectively
impaired by E.O. 464, there being no mention of any investigation called by the
House of Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Muna’s alleged
interest as a party-list representing the marginalized and underrepresented,
and that of the other petitioner groups and individuals who profess to have
standing as advocates and defenders of the Constitution, respondents contend
that such interest falls short of that required to confer standing on them as
parties “injured-in-fact.”[40]
Respecting petitioner Chavez,
respondents contend that Chavez may not claim an interest as a taxpayer for the
implementation of E.O. 464 does not involve the exercise of taxing or spending
power.[41]
With
regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464,
the Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Court’s ruling in National
Economic Protectionism Association v. Ongpin[42]
and Valmonte v. Philippine Charity Sweepstakes Office,[43]
respondents assert that to be considered a proper party, one must have a
personal and substantial interest in the case, such that he has sustained or
will sustain direct injury due to the enforcement of E.O. 464.[44]
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[45]
is not disputed. E.O. 464, however,
allegedly stifles the ability of the members of Congress to access information
that is crucial to law-making.[46] 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
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.[47]
In the same vein, 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, the absence of any claim that an
investigation called by the House of Representatives or any of its committees
was aborted due to the implementation of E.O. 464 notwithstanding, 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.
The national political party, Bayan
Muna, likewise 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 consonant with the declared policy
underlying the party list system of affording citizens belonging to
marginalized and underrepresented sectors, organizations and parties who lack
well-defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.[48]
As Bayan Muna and
Representatives Ocampo et al. have the standing to file their petitions,
passing on the standing of their co-petitioners Courage and Codal
is rendered unnecessary.[49]
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,[50]
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[51]
and to the maintenance of the balance of power among the three branches of the
government through the principle of checks and balances.[52]
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,[53]
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.
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, (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.[54] The first and last determinants not being
present as no public funds or assets are involved and petitioners in G.R. Nos.
169777 and 169659 have direct and specific interests in the resolution of the
controversy, petitioner PDP-Laban is bereft of standing to file its
petition. 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. Concrete injury, whether actual
or threatened, is that indispensable element of a dispute which serves in part
to cast it in a form traditionally capable of judicial resolution.[55] In fine, PDP-Laban’s alleged interest as a
political party does not suffice to clothe it with legal standing.
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.[56] These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the
President, not that the President prohibited their attendance.[57] 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 President’s 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.
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.
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.
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, otherwise known as 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. (Underscoring supplied)
This provision is worded exactly as
Section 8 of Article VIII of the 1973 Constitution except that, in the latter,
it vests the power of inquiry in the unicameral legislature established therein
– the Batasang Pambansa – and its
committees.
The
1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,[58] a
case decided in 1950 under that Constitution, the Court already recognized that
the power of inquiry is inherent in the power to legislate.
Arnault
involved a Senate investigation of the reportedly anomalous purchase of the
Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness
in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the
questions of the senators on an important point, he was, by resolution of the
Senate, detained for contempt. Upholding
the Senate’s power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, 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; and where the legislative body does not itself possess the requisite information – which is not infrequently 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.[59] . . . (Emphasis and underscoring supplied)
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 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.
Thus,
the Court found that the Senate investigation of the government transaction
involved in Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure of
public funds of which Congress is the guardian, the transaction, the
Court held, “also involved government agencies created by Congress and
officers whose positions it is within the power of Congress to regulate or even
abolish.”
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.
As
discussed in Arnault, 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, by parity of reasoning, Congress has the right to
that information and the power to compel the disclosure thereof.
As evidenced by the American
experience during the so-called “McCarthy era,” however, 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 Court’s
certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v.
Senate Blue Ribbon Committee,[61]
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 result as occurred in Bengzon is 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
invitations, 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.
Section 21, Article 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 House’s duly published rules
of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 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.
These abuses are, of course,
remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of
abuse of the legislative power of inquiry might be established, resulting in
palpable violations of the rights guaranteed to members of the executive
department under the Bill of Rights. In
such instances, depending on the particulars of each case, attempts by the
Executive Branch to forestall these abuses may be accorded judicial sanction.
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.” Since this term figures prominently in the
challenged order, it being mentioned in its provisions, its preambular clauses,[62]
and in its very title, a discussion of executive privilege is crucial for
determining the constitutionality of E.O. 464.
Executive privilege
The
phrase “executive privilege” is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.[63] Being of American origin, it is best understood
in light of how it has been defined and used in the legal literature of the
United States.
Schwartz
defines executive privilege as “the power of the Government to withhold
information from the public, the courts, and the Congress.”[64] 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.”[65]
Executive
privilege is, nonetheless, not a clear or unitary concept. [66] It has encompassed claims of varying kinds.[67] Tribe, in fact, comments that while it is
customary to employ the phrase “executive privilege,” it may be more accurate
to speak of executive privileges “since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of
considerations, and may be asserted, with differing degrees of success,
in the context of either judicial or legislative investigations.”
One variety of the privilege, Tribe
explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature
that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer’s
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. [68]
Tribe’s
comment is supported by the ruling in In re Sealed Case, thus:
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. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x”[69] (Emphasis and underscoring supplied)
The
entry in Black’s Law Dictionary on “executive privilege” is similarly
instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive’ domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.[70] (Emphasis and underscoring supplied)
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.[71]
The
leading case on executive privilege in the United States is U.S. v. Nixon, [72]
decided in 1974. In issue in that case
was the validity of President Nixon’s claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes
and documents relating to the Watergate investigations. The claim of privilege was based on the
President’s general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that
while there is no explicit reference to a privilege of confidentiality in the
U.S. Constitution, it is constitutionally based to the extent that it relates
to the effective discharge of a President’s powers. The Court, nonetheless, rejected the
President’s claim of privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that
it was not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.
Cases
in the U.S. which involve claims of executive privilege against Congress
are rare.[73] Despite frequent assertion of the privilege
to deny information to Congress, beginning with President Washington’s refusal
to turn over treaty negotiation records to the House of Representatives, the
U.S. Supreme Court has never adjudicated the issue.[74] However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as Nixon,
recognized the President’s privilege over his conversations against a
congressional subpoena.[75]
Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon,
the Court of Appeals weighed the public interest protected by the claim of
privilege against the interest that would be served by disclosure to the
Committee. Ruling that the balance
favored the President, the Court declined to enforce the subpoena. [76]
In
this jurisdiction, the doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez.[77] Almonte used the term in reference to
the same privilege subject of Nixon.
It quoted the following portion of the Nixon decision which
explains the basis for the privilege:
“The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x ” (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman
against the therein petitioners. It did
not involve, as expressly stated in the
decision, the right of the people to information.[78] Nonetheless, the Court recognized that there are certain types of
information which the government may withhold from the public, thus
acknowledging, in substance if not in name, that executive privilege may be
claimed against citizens’ demands for information.
In
Chavez v. PCGG,[79]
the Court held that this jurisdiction recognizes the common law holding that there
is a “governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national security
matters.”[80] The same case held that closed-door Cabinet
meetings are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public
Estates Authority,[81]
the Court ruled that the right to information does not extend to matters
recognized as “privileged information under the separation of powers,”[82]
by which the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings.
It also held that 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 were exempted
from the right to information.
From
the above 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.
Validity of Section 1
Section 1 is similar to Section 3 in
that both require the officials covered by them to secure the consent of the
President prior to appearing before Congress.
There are significant differences between the two provisions, however,
which constrain this Court to discuss the validity of these provisions separately.
Section
1 specifically applies to department heads.
It does not, unlike Section 3, require a prior determination by any
official whether they are covered by E.O. 464.
The President herself has, through the challenged order, made the
determination that they are. Further,
unlike also Section 3, 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.
In fact, in marked contrast to Section 3 vis-ŕ-vis Section 2, 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.
Determining
the validity of Section 1 thus requires an examination of the meaning of
Section 22 of Article VI. Section 22
which provides for the question hour must be interpreted vis-ŕ-vis Section
21 which provides for the power of either House of Congress to “conduct
inquiries in aid of legislation.” As the
following excerpt of the deliberations of the Constitutional Commission shows,
the framers were aware that these two provisions involved distinct functions of
Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the Senate. I have a particular problem in this regard, Madam President, because in our experience in the Regular Batasang Pambansa – as the Gentleman himself has experienced in the interim Batasang Pambansa – one of the most competent inputs that we can put in our committee deliberations, either in aid of legislation or in congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22] does not mean that they need not come when they are invited or subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because
Section 20 refers only to what was originally the Question Hour, whereas,
Section 21 would refer specifically to inquiries in aid of legislation,
under which anybody for that matter, may be summoned and if he refuses, he
can be held in contempt of the House.[83] (Emphasis and underscoring supplied)
A
distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was
meant to be discretionary in the question hour, it was compulsory in inquiries
in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads discretionary in the
question hour.
So
clearly was this distinction conveyed to the members of the Commission that the
Committee on Style, precisely in recognition of this distinction, later moved
the provision on question hour from its original position as Section 20 in the
original draft down to Section 31, far from the provision on inquiries in aid
of legislation. This gave rise to the
following exchange during the deliberations:
MR. GUINGONA.
[speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to the
Article on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question
Hour. I propose that instead of putting
it as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only in the application of check and balance but also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we
find merit in the suggestion of Commissioner Davide. In
other words, we are accepting that and so this Section 31 would now become
Section 22. Would it be,
Commissioner Davide?
MR. DAVIDE. Yes.[84] (Emphasis and underscoring supplied)
Consistent with their
statements earlier in the deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these provisions pertained to
two different functions of the legislature.
Both Commissioners understood that the power to conduct inquiries in aid
of legislation is different from the power to conduct inquiries during the
question hour. Commissioner Davide’s
only concern was that the two provisions on these distinct powers be placed
closely together, they being complementary to each other. Neither Commissioner considered them as identical
functions of Congress.
The
foregoing opinion was not the two Commissioners’ alone. From the above-quoted exchange, Commissioner
Maambong’s committee – the Committee on Style – shared the view that the two
provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative
Department. His views may thus be
presumed as representing that of his Committee.
In
the context of a parliamentary system of government, the “question hour” has a
definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation of the government,[85]
corresponding to what is known in Britain as the question period. There was a specific provision for a question
hour in the 1973 Constitution[86]
which made the appearance of ministers mandatory. The same perfectly conformed to the
parliamentary system established by that Constitution, where the ministers
are also members of the legislature and are directly accountable to it.
An
essential feature of the parliamentary system of government is the immediate
accountability of the Prime Minister and the Cabinet to the National
Assembly. They shall be responsible to
the National Assembly for the program of government and shall determine the
guidelines of national policy. Unlike in
the presidential system where the tenure of office of all elected officials
cannot be terminated before their term expired, the Prime Minister and the
Cabinet remain in office only as long as they enjoy the confidence of the
National Assembly. The moment this
confidence is lost the Prime Minister and the Cabinet may be changed.[87]
The
framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to
conform more fully to a system of separation of powers.[88] To that extent, the question hour, as it is
presently understood in this jurisdiction, departs from the question period of
the parliamentary system. That
department heads may not be required to appear in a question hour does not,
however, mean that the legislature is rendered powerless to elicit information
from them in all circumstances. In fact,
in light of the absence of a mandatory question period, the need to enforce
Congress’ right to executive information in the performance of its
legislative function becomes more imperative. As Schwartz observes:
Indeed, if the separation of
powers has anything to tell us on the subject under discussion, it is that the
Congress has the right to obtain information from any source – even from
officials of departments and agencies in the executive branch. In the United States there is, unlike the
situation which prevails in a parliamentary system such as that in Britain, a
clear separation between the legislative and executive branches. 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 adequately to be carried out. The
absence of close rapport between the legislative and executive branches in this
country, comparable to those which exist under a parliamentary system,
and the nonexistence in the Congress of an institution such as the British
question period have perforce made reliance by the Congress upon its right to
obtain information from the executive essential, if it is intelligently to
perform its legislative tasks.
Unless the Congress possesses the right to obtain executive information,
its power of oversight of administration in a system such as ours becomes a
power devoid of most of its practical content, since it depends for its
effectiveness solely upon information parceled out ex gratia by the executive.[89] (Emphasis
and underscoring supplied)
Sections
21 and 22, therefore, while closely related and complementary to each other,
should not be considered as pertaining to the same power of Congress. One specifically relates to the power to
conduct inquiries in aid of legislation, the aim of which is to elicit
information that may be used for legislation, while the other pertains to the
power to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress’ oversight function.
When
Congress merely seeks to be informed on how department heads are implementing
the statutes which it has issued, its right to such information is not as
imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In such instances, 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.[90]
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission.
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. While
the executive branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing to comply with its
demands for information.
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. This point is not in dispute, as even counsel
for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon
interpellation of the Chief Justice.
Having
established the proper interpretation of Section 22, Article VI of the
Constitution, the Court now proceeds to pass on the constitutionality of
Section 1 of E.O. 464.
Section 1, in view of its specific
reference to Section 22 of Article VI 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 the
provision of said Section 22 of Article VI.
The reading is dictated by the basic rule of construction that issuances
must be interpreted, as much as possible, in a way that will render it
constitutional.
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 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, either by the President herself
or by the Executive Secretary.
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. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national
security officials who, in the judgment of the heads of offices
designated in the same section (i.e. department heads, Chief of Staff of
the AFP, Chief of the PNP, and the National Security Adviser), are “covered
by the executive privilege.”
The
enumeration also includes such other officers as may be determined by the
President. Given the title of
Section 2 — “Nature, Scope and Coverage of Executive Privilege” —, it is
evident that under the rule of ejusdem generis, the determination by the
President under this provision is intended to be based on a similar finding of
coverage under executive privilege.
En
passant, the Court notes that Section 2(b) of E.O. 464 virtually states
that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is
properly invoked in relation to specific categories of information and
not to categories of persons.
In
light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and
coverage of executive privilege, the reference to persons being “covered by the
executive privilege” may be read as an abbreviated way of saying that the
person is in possession of information which is, in the judgment of the
head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the
assumption that this is the intention of the challenged order.
Upon
a determination by the designated head of office or by the President 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 which already exists by virtue of E.O. 464.
Thus,
underlying this requirement of prior consent is the determination by a head of
office, authorized by the President under E.O. 464, or by the President
herself, that such official is in possession of information that is covered by
executive privilege. This determination
then becomes the basis for the official’s not showing up in the legislative
investigation.
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, on the basis of executive
privilege. Verily, there is an implied
claim of privilege.
The
letter dated September 28, 2005 of respondent Executive Secretary Ermita to
Senate President Drilon illustrates the implied nature of the claim of
privilege authorized by E.O. 464. It
reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the Executive Department invited to appear at the meeting will not be able to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005), entitled “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”. Said officials have not secured the required consent from the President. (Underscoring supplied)
The letter does not explicitly invoke
executive privilege or that the matter on which these officials are being
requested to be resource persons falls under the recognized grounds of the
privilege to justify their absence. Nor
does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the hearing.
Significant
premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials
are covered by E.O. 464. As explained
earlier, however, to be covered by the order means that a determination has
been made, by the designated head of office or the President, that the invited
official possesses information that is covered by executive privilege. Thus, although it is not stated in the letter
that such determination has been made, the same must be deemed implied. Respecting the statement that the invited
officials have not secured the consent of the President, it only means that the
President has not reversed the standing prohibition against their appearance
before Congress.
Inevitably,
Executive Secretary Ermita’s letter leads to the conclusion that the executive
branch, either through the President or the heads of offices authorized under
E.O. 464, has made a determination that the information required by the Senate
is privileged, and that, at the time of writing, there has been no contrary
pronouncement from the President. In
fine, an implied claim of privilege has been made by the executive.
While
there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from Chavez
v. PEA that certain information in the possession of the executive may
validly be claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the
information demanded by petitioner is privileged information rooted in the
separation of powers. The
information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like
internal-deliberations of the Supreme Court and other collegiate courts, or
executive sessions of either house of Congress, are recognized as
confidential. This kind of information cannot
be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by interested
parties, is essential to protect the independence of decision-making of
those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant
case.[91]
(Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore,
cannot be dismissed outright as invalid by the mere fact that it sanctions
claims of executive privilege. This
Court must look further and assess the claim of privilege authorized by the
Order to determine whether it is valid.
While
the validity of claims of privilege must be assessed on a case to case basis,
examining the ground invoked therefor and the particular circumstances
surrounding it, there is, in an implied claim of privilege, a defect that
renders it invalid per se. By its
very nature, and as demonstrated by the letter of respondent Executive
Secretary quoted above, 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,
closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered
by the privilege under the challenged order, Congress is left to speculate as
to which among them is being referred to by the executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the phrase
“confidential or classified information between the President and the public
officers covered by this executive order.”
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. As U.S.
v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.[92] (Underscoring supplied)
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.[93] These, in substance, were the same criteria
in assessing the claim of privilege asserted against the Ombudsman in Almonte
v. Vasquez[94] and,
more in point, against a committee of the Senate in Senate Select Committee on Presidential
Campaign Activities v. Nixon.[95]
A.O. Smith v. Federal
Trade Commission is
enlightening:
[T]he lack of specificity renders an assessment of the
potential harm resulting from disclosure impossible, thereby preventing the Court from balancing such
harm against plaintiffs’ needs to determine whether to override any claims of
privilege.[96] (Underscoring supplied)
And so is U.S. v. Article of Drug:[97]
On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its objection to claimant’s interrogatories, government asserts, and nothing more, that the disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is designed to protect. The government has not shown – nor even alleged – that those who evaluated claimant’s product were involved in internal policymaking, generally, or in this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based must be established. To find these interrogatories objectionable, this Court would have to assume that the evaluation and classification of claimant’s products was a matter of internal policy formulation, an assumption in which this Court is unwilling to indulge sua sponte.[98] (Emphasis and underscoring supplied)
Mobil
Oil Corp. v. Department of Energy[99]
similarly emphasizes that “an agency must provide ‘precise and certain’ reasons
for preserving the confidentiality of requested information.”
Black v. Sheraton Corp. of America[100] amplifies, thus:
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. As the affidavit now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally insufficient to allow the Court to make a just and reasonable determination as to its applicability. To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to shield these documents from outside scrutiny, would make a farce of the whole procedure.[101] (Emphasis and underscoring supplied)
Due
respect for a co-equal branch of government, moreover, demands no less than a
claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul
v. U.S:[102]
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions. For it is as true here as it was there, that ‘if (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. ‘To deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such statement was “a patent evasion of the duty of one summoned to produce papers before a congressional committee[, and] cannot be condoned.” (Emphasis and underscoring supplied; citations omitted)
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.[103] A useful analogy in determining the requisite
degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S.[104]
declares:
The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself – his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if ‘it clearly appears to the court that he is mistaken.’ However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” x x x (Emphasis and underscoring supplied)
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.
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.
Petitioners, however, assert as
another ground for invalidating the challenged order the alleged unlawful
delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in
particular, cites the case of the United States where, so it claims, only the
President can assert executive privilege to withhold information from
Congress.
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
President’s 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 exceptional nature of the privilege. Executive privilege, as already discussed, is
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,[105]
or in those instances where exemption from disclosure is necessary to
the discharge of highly important executive responsibilities.[106] The doctrine of executive privilege is thus
premised on the fact that certain informations 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. There is even less reason to uphold such
authorization in the instant case where the authorization is not explicit but
by mere silence. Section 3, in relation
to Section 2(b), is further invalid on this score.
It follows,
therefore, that 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,
after the lapse of that reasonable time, neither the President nor the
Executive Secretary invokes the privilege, Congress is no longer bound to
respect the failure of the official to appear before Congress and may then opt
to avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under Section 3 of E.O. 464 is to ensure “respect for the rights of public officials appearing in inquiries in aid of legislation.” That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution mandating that “[t]he rights of persons appearing in or affected by such inquiries shall be respected.”
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to ensure respect for such officials does not change the infirm nature of the authorization itself.
Right to Information
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 not merely the
legislative power of inquiry, but the right of the people 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 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.
Thus holds Valmonte v. Belmonte:
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 people’s 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. Only when the participants in the discussion
are aware of the issues and have access to information relating thereto can
such bear fruit.[107] (Emphasis and underscoring supplied)
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 legislature’s 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. On the
need for publishing even those statutes that do not directly apply to people in
general, Tańada 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 such 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.[108] (Emphasis
and underscoring supplied)
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, E.O. 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.
Conclusion
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.
That is impermissible. For
[w]hat republican theory did accomplish…was
to reverse the old presumption in favor of secrecy, based on the divine right
of kings and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty. (Underscoring supplied)[109]
Resort to any means then by which
officials of the executive branch could refuse to divulge information cannot be
presumed valid. Otherwise, we shall not
have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much greater
value – our right as a people to take part in government.
WHEREFORE, the
petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive
Order No. 464 (series of 2005), “Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege
SO ORDERED.
CONCHITA
CARPIO MORALES
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
|
(ON LEAVE) REYNATO S.
PUNO Associate
Justice CONSUELO
YNARES- SANTIAGO Associate
Justice |
LEONARDO
A. QUISUMBING Associate Justice ANGELINA
SANDOVAL-GUTIERREZ Associate
Justice |
|
ANTONIO T.
CARPIO Associate
Justice |
MA. ALICIA
AUSTRIA-MARTINEZ Associate
Justice |
|
RENATO C.
CORONA Associate
Justice ADOLFO S.
AZCUNA Associate
Justice |
ROMEO J.
CALLEJO, SR. Associate
Justice DANTE O.
TINGA Associate
Justice |
|
MINITA V. CHICO-NAZARIO Associate
Justice |
CANCIO
C. GARCIA
Associate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
CERTIFICATION
Pursuant to Article VIII, Section 13 of
the Constitution, it is hereby certified that the conclusions in the above
Resolution were reached in consultation before the case was assigned to the
writer of the opinion of the Court.
ARTEMIO
V. PANGANIBAN
Chief Justice
* Henceforth, in consolidated petitions which assail the validity or constitutionality of an issuance of a government official or agency, the petitioner which is the most directly affected by the issuance shall be first in the order of enumeration of the titles of the petitions irrespective of their docket numbers or dates of filing.
** On Leave.
[1] Hamilton, The Federalist No. 70.
[2] Annexes “J-2” to “J-7,” rollo (G.R. No. 169777), pp. 72-77.
[3] Annex “G,” id. at 58.
[4] Annex
“B,” id. at 52.
[5] Annex
“C,” id. at 53.
[6] Annex
“D,” id. at 54-55.
[7] Annex
“A,” id. at 48-51.
[8] Annex
“F,” id. at 57.
[9] Annex
“H,” id. at 59.
[10] Rollo
(G.R. No. 169777), p. 379.
[11] Ibid.
[12] The petitioner names the following organizations as members: Albert Schweitzer Association, Philippines, Inc. (ASAP), Alternative Law Research and Development Center, Inc. (ALTERLAW), Ateneo Human Rights Center (AHRC), Balay Alternative Legal Advocates for Development in Mindanaw, Inc (BALAOD Mindanaw), Children’s Legal Bureau (CLB), Inc., Environment Legal Assistance Center (ELAC), Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc. (FREELAVA), Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN), Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-LSK/FOEI-Phils.), Paglilingkod Batas Pangkapatiran Foundation (PBPF), Participatory Research Organization of Communities and Education Towards Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc., Pilipina Legal Resources Center (PLRC), Sentro ng Alternatibong Lingap Panligal (SALIGAN), Tanggapang Panligal ng Katutubong Pilipino (PANLIPI), Tanggol Kalikasan (TK), Women’s Legal Bureau (WLB), and Women’s Legal Education, Advocacy and Defense Foundation, Inc. (WomenLEAD).
[13] Rollo
(G.R. No. 169667), p. 22.
[14] Annex “H,” id. at 460-461.
[15] Annex
“H-1,” id. at 462.
[16] Rollo
(G.R. No. 169777), pp. 383-384.
[17] Annex
“K,” rollo (G.R. No. 169777), p. 466.
[18] Annex
“J,” id. at 465.
[19] Annex
“M,” id. at
468.
[20] Annex
“N,” id. at
469.
[21] Annex
“O,” id. at 470.
[22] Court En Banc Resolution dated February 21, 2006, rollo (G.R. No. 169659), pp. 370-372.
[23] Rollo
(G.R. No. 169660), pp. 339-370.
[24] Rollo
(G.R. No. 169777), pp. 373-439.
[25] Rollo
(G.R. No. 169667), pp. 388-426.
[26] Rollo (G.R. No. 169834), pp. 211-240.
[27] Rollo
(G.R. No. 169659), pp. 419-421.
[28] id.
at 469-471.
[29] Court En Banc Resolution dated March 21, 2006, rollo (G.R. No. 169659), pp. 570-572.
[30] Sec. 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.
[31] Sec. 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.
[32] Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
[33] Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
[34] Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
[35] Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
[36] Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.
[37] Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
[38] Rollo
(G.R. No. 169777), pp. 524-569.
[39] Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.
[40] Citing Lujan v. Defenders of Wildlife, 504 US 555, 119 L. Ed.2d 351 (1992), rollo (G.R. No. 169777), p. 116.
[41] Citing Lim v. Hon. Exec. Sec., 430 Phil. 555 (2002), rollo (G.R. No. 169777), p. 116.
[42] G.R. No. 67752, April 10, 1989, 171 SCRA 657.
[43] G.R. No. 78716, September 22, 1987 (res).
[44] Rollo
(G.R. No. 169777), p. 117.
[45] Id.
at 279.
[46] Ibid.
[47] Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632.
[48] Section 2 of The Party-List System Act (Republic Act 7941) reads:
SEC. 2. Declaration of Policy. – The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.
[49] Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744 , 761 (1998).
[50] IBP Board of Governors Resolution No. XVII-2005-18, rollo (G.R. No
171246), p. 28.
[51] Rollo
(G.R. No. 169667), p. 3.
[52] Rollo
(G.R. No. 169660), p. 5.
[53] Supra note 39 at 136.
[54] Francisco, Jr. v. House of Representatives, supra note 39 at 139.
[55] Lozada v. Commission on Elections, 205 Phil. 283, 287 (1983).
[56] Rollo (G.R. No. 169659), p. 79.
[57] Rollo (G.R. No. 169659), pp. 80-81.
[58] 87 Phil. 29 (1950).
[59] Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927).
[60] Id. at 46.
[61] G.R. 89914, Nov. 20, 1991, 203 SCRA 767.
[62] “WHEREAS, pursuant to the rule on executive privilege, the President and those who assist her must be free to explore the alternatives in the process of shaping policies and making decisions since this is fundamental to the operation of the government and is rooted in the separation of powers under the Constitution;
x x x x
“WHEREAS, recent events, particularly with respect to the invitation of a member of the Cabinet by the Senate as well as various heads of offices, civilian and military, have highlighted the need to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of persons appearing in such inquiries in aid of legislation and due regard to constitutional mandate; x x x”
[63] II Record, Constitutional Commission 150-151 (July 23, 1986).
[64] B. Schwartz, Executive Privilege and Congressional Investigatory Power 47 Cal. L. Rev. 3.
[65] M. Rozell, Executive Privilege and the Modern Presidents: In Nixon’s Shadow (83 Minn. L. Rev. 1069).
[66] P. Shane & H. Bruff, Separation of Powers: Law Cases and Materials 292 (1996).
[67] Id. at 293.
[68] I L.Tribe, American Constitutional Law 770-1 (3rd ed., 2000).
[69] 121 F.3d 729, 326 U.S. App. D.C. 276.
[70] Black’s Law Dictionary 569-570 (6th ed., 1991) citing 5 U.S.C.A. Sec. 552(b)(1); Black v. Sheraton Corp. of America, D.C.D.C., 371 F.Supp. 97, 100.
[71] I L.Tribe, supra note 68 at 771.
[72] 418 U.S. 683 (1974)
[73] In re Sealed Case 121 F.3d 729, 326 U.S.App.D.C. 276 (1997) states: “It appears that the courts have been drawn into executive-congressional privilege disputes over access to information on only three recent occasions. These were: Unites States v. AT&T, 551 F.2d 384 (D.C. Cir.1976), appeal after remand, 567 F.2d 121 (D.C.Cir.1977); Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Committee), 498 F.2d 725 (D.C. Cir. 1974); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983)”; Vide R. Iraola, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions (87 Iowa L. Rev. 1559): “The Supreme Court has yet to rule on a dispute over information requested by Congress where executive privilege has been asserted; in the past twenty-five years, there have been only three reported cases dealing with this issue.”
[74] J. Chaper & R. Fallon, Jr., Constitutional Law: Cases Comments Questions 197 (9th ed., 2001).
[75] Senate Select Committee on Presidential Campaign Activities v. Nixon 498 F.2d 725, 162 U.S.App.D.C.183 (May 23, 1974).
[76] N. Redlich & B. Schwartz, Constitutional Law 333 (3rd ed. ,1996) states in Note 24: “Now that the Supreme Court decision has specifically recognized a “privilege of confidentiality of Presidential communications,” the Select Committee decision appears even stronger. If the need of the Watergate Committee for evidence was not enough before the Supreme Court recognized executive privilege, the same would surely have been true after the recognition. And, if the demand of the Watergate Committee, engaged in a specific investigation of such importance, was not enough to outweigh the nondisclosure claim, it is hard to see what Congressional demand will fare better when met by an assertion of privilege.”
[77] 314 Phil. 150 (1995).
[78] Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166 (1995) states: “To put this case in perspective it should be stated at the outset that it does not concern a demand by a citizen for information under the freedom of information guarantee of the Constitution.”
[79] 360 Phil. 133 (1998).
[80] Chavez v. PCGG, 360 Phil. 133, 160 (1998).
[81] 433 Phil. 506 (2002).
[82] Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).
[83] II Record, Constitutional Commission 199 (July 24, 1986).
[84] II Record, Constitutional Commission 900-1 (October 12, 1986).
[85] H. Mendoza & A. Lim, The New Constitution 177 (1974).
[86] Constitution (1973), Art. VIII, Sec. 12(1).
[87] R. Martin, The New Constitution of the Philippines 394 (1973).
[88] II Record, Constitutional Commission 133 (July 23, 1986).
[89] Schwartz, supra at 11-12.
[90] Supra.
[91] Supra note 82 at 189.
[92] 345 U.S. 1 , 73 S. Ct. 528, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953).
[93] Vide Tribe, supra note 68.
[94] Supra note 78.
[95] Supra note 75.
[96] 403 F.Supp. 1000, 20 Fed,R.Serv.2d 1382 (1975).
[97] 43 F.R.D. 181 (1967).
[98] Ibid., citation omitted.
[99] 520 F.Supp.414, 32 Fed.R.Serv.2d 913 (1981).
[100] 371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974).
[101] Ibid., citations omitted.
[102] 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960).
[103] U.S. v.
Reynolds, supra note 85.
[104] 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
[105] In re Sealed Case, supra note 69.
[106] Black’s Law Dictionary, supra note 70 at 569.
[107] G.R. No. 74930, February 13, 1989, 170 SCRA 256.
[108] G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453.
[109] Hoffman, Governmental Secrecy and the Founding Fathers:
A Study in Constitutional Controls (1981) 13.