LEGISLATIVE INQUIRY Ces Camello

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.
Sec 21 Power of Legislative Inquiry
Sec 22 Oversight Power of the legislative department on how the executive
department implement the laws.
Arnault v. Nazareno the power of the legislative to conduct inquiries in
aid of legislation has always been reconized even if it was not expressed
in the 1935 Constitution. No provision granting such power under the
1935 Constitution. However, the power is so necessary or so essential
as to be IMPLIED. The power to conduct legislative inquiry is essential and
an appropriate auxillary to the legislative function. The power of inquiry is coextensive with the power to legislate. How can the Congress legislate if they
do not have the details necessary for legislation?
The power of inquiry is an essential and appropriate auxiliary to the
legislative action. It has been remarked that the power of legislative
investigation may be implied from the express power of legislation and does
not itself have to be expressly granted.
The power of inquiry includes the auxiliary power to enforce it. Thus, the
appearance before a legislative body for legislative inquiry is MANDATORY
because of the auxiliary power to enforce it. How? By the issuance of
subpoena, citing one for contempt, or worse, detaining a person who has
already been cited for contempt. The Congress may detain a person for not
answering a question in aid of legislation or for not attending an invitation.
Why is it mandatory? Because the Congress cannot legislate without the
necessary information.
Aranault refused to answer a question about the transaction involving a sale
of certain property, on who gave the money. He was the primary witness, he
refused to answer the question. The contention was, the question was has no
relation or any materiality to any proposed legislation. The SC said, it is not
necessary for the legislative body to show that every question propounded is
material to any proposed or possible legislation. What is required is that, it
be pertinent to the matter undery inquiry. If the question pertinent to the
matter under oath, then it may be asked.
When he refused to answer that question, he was imprisoned in Bilibid. This
is the extent of the power of legislative body. This is the only means for the
legislative body to compel a person to answer the questions for possible
legislation. POSSIBLE LEGISLATION because the legislative inquiry
need not result to actual legislation. After inquiry, the Congress may

decide whether on not to enact or amend a law. It is not a requirement that

after such inquiry, a law is passed.
Part of this compulsory process is the power to punish a person for contempt.
It is founded upon reason and policy. The power must be considered implied
and incidental to the exercise of legislative power. Is necessary for the
legislative body to compel the disclosure of such information in aid of
legislation. Besides, when Constitution granted separation of powers, it
intended such to be complete. Meaning, If the Congress requires a person to
appear and such person refuses, it is not necessary for the Congress to seek
relief from the Court. The Congress can enforce the power of contempt by
itself.
Section 21 not only a direct grant of power to the Congress; it is actually our
protection against Congress. Under section 21, even Committees under each
house may conduct inquiries, including the compulsory processes. The
power of legislative inquiry has the following limitations:
1. It must be in aid of legislation.
What is the scope of Legislative Power. We say the the power of
Congress to legislate is plenary. They can legislate anything under the
sun. So they can ask any questions, as long as they are in aid of
legislation. But the power of inquiry, although broad, is not unlimited.
There is no power to compel the disclosure of private matters.
Example: Hayden Kho and Katrina Halili case.
2. It must be in accordance with its duly published rules of procedure
3.

The rights of persons appearing in or affected by such inquiries shall be

respected.

Can the Congress inquire into the operation of the Government? YES. The
operation of the government is a proper subject for legislation and thus, It
can be a subject of legislative inquiry. In fact, in the case of Arnault, he was
questioning that the inquiry pertains to a government operation, invoking
separation of powers. The SC said, the congress may inquire because it is a
proper subject of legislation.
Bengzon v. Senate Congress inquired into the possible violation of AntiGraft and Corrupt Practices Act. Those who were called to attend refused to
appear, claiming that the inquiry was not in aid of legislation. The SC said
that the subject of inquiry was only to look into possible violations of law,
without any intended legislation. The inquiry was not in aid of legislation but
an inquiry which is more the function of the courts. The determination
whether a law has been violated is a function of the judiciary, not of the

legislature.
Also, in this case, there has already been a pending case of the same issue
before the Sandiganbayan.
The invitation should designate the intended legislation, the subject of
inquiry.
Senate Blue Ribbon v Majaducon the inquiry in aid of legislation is one
over the mismanagement of AFP funds which was used for the purchase of a
property in Gensan. SC: The inquiry was in aid of legislation because it was
conducted with the intention to enact a law for the protection of the rights of
members of the AFP. So there was intended legislation.
The RTC has no power to issue a TRO to stop the Congress from conducting
legislative inquiry. Such would tantamount to encroachment of legislative
power.
The Bengzon case cannot apply here because the pending case here was
before the Ombudsman which is not a court. In Bengzon, the case was
pending before the Sandiganbayan. Thus, in the former, no court has
acquired jurisdiction over the subject matter yet. The ombudsman is an
executive arm, it is not a court of justice.
Standard Charter v. Senate Committee
Issue: WON the pendency a case before the court would stop the conduct of
legislative inquiry. NO.
The inquiry was about selling unregistered foreign securities by the Standard
Charter. The inquiry was conducted to find out if there is a need to amend or
enhance the existing Banking Code and Securities Code. Standard cited
Bengzon, contending that the pending criminal cases will bar the conduct of
legislative inquiry. SC: Central to the ruling in Bengzon was the finding that
the investigation was not in aid of legislation. That is the basic ruling of the
court in Bengzon. As to the pending case, the court ruled that the mere filing
of an administrative case before a court or quasi-judicial body, should not
automatically bar the conduct of legislative investigation. Otherwise, it would
be just easy to subvert any inquiry through institution of an administrative
complant.
In Bengzon, the reason why the inquiry was stopped, is because the latter
was not in aid of legislation. The issue on pending cases was just an add-on
provided by the SC.

Romero v. Estrada

The subject of the inquiry was the illegal investment of COA funds for the
Smokey Mountain Project. An investigation was conducted by the Congress
and another by the court. The contention of Romero was that, they cannot be
compelled to attend because the issue is sub judice the matter is already
pending before the courts, thus, the Congress is already prohibited from
talking about the issue in public. SC: Legislative inquiry and judicial
investigations have different and distinct purposes; they can proceed
independently and simultaneously. Court proceedings are conducted to settle
actual controversies, whereas, legislative inquiry is conducted for the purpose
of legislation to gather pertinent matters for the possibility of enacting a
law. Thus, the mere filing of criminal or administrative case or in this case,
special civil proceedings, before a court of quasi-legislative body should not
automatically bar the conduct of legislative inquiry.
EXCEPTIONS to the power to conduct legislative inquiry:
Senate v. Ermita
This case is about the Wiretapping activity of the Intelligence Service of the
Armed Forces of the Philippines aka "Gloriagate", the Fertilizer scam and the
railway project of the North Luzon Railways Corporation.
Investigation invitations were sent to high-ranking executive officials for the
conduct of legislative inquiry. Pres Arroyo then issued EO 464 or the Gag
Order. Sec 3 thereof provides that the all public officials enumerated in Sec
2 shall first secure a consent from the President before appearing in either
house of Congress to ensure separation of powers.
EO No. 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"
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:
Conversations and correspondence between the President and the public
official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367,
23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);
Military, diplomatic and other national security matters which in the interest
of national security should not be divulged (Almonte vs. Vasquez, G.R. No.
95367, 23 May 1995; Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or
higher and such other officers who in the judgment of the Chief of the PNP
are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All
public officials enumerated in Section 2 (b) hereof shall secure prior
consent of the President prior to appearing before either House of
Congress to ensure the observance of the principle of separation of powers,
adherence to the rule on executive privilege and respect for the rights of
public officials appearing in inquiries in aid of legislation.
Are executive officers exempted per se to attend legislative inquiry?

NO. There are no better persons to disclose matters concerning government

functions than those who are actually holding office in the government. Thus,
they are not exempted per se. The only exception is when they claim
EXECUTIVE PRIVILEGE.
What is the extent of EXECUTIVE PRIVILEGE? How can it be invoked?
The executive officials may be exempted from legislative inquiry if theres a
valid claim of executive privilege. Based from US decisions, it is the power of
the government to withhold info from the public, the courts and the
congress. In Senate v Ermita, the SC ruled that the claim of executive
privilege is bestowed upon the type of information, and not the persons.
However, because of separation of powers, the president himself is exempted
from attending, in the same way, the members of the judiciary cannot be
called.
What are the types of information covered by executive privilege?
1. State Secrets disclosure would subvert military, diplomatic and
other national security matters.
2. Informers privilege the privilege of the government not to
disclose the identity of persons who furnish information regarding
violations of law to persons responsible for the enforcement of law.
3. Generic privilege for internal deliberations attached to
governmental
documents
reflecting
advisory
opinions,
recommendations.
Senate v Ermita
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. 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.
Sec. 3 of E.O. 464 is declared VOID. The claim of executive privilege must be
properly invoked. IT CANNOT BE IMPLIED. In Sec 3, there is an implied claim
of executive privilege. There must be a FORMAL CLAIM. Even if it falls within
the instances enumerated for a claim of executive privilege, it cannot always
be exempted. It is always a case to case basis. Thus, in formally claiming the
privilege, the President must state the reason for excusing his officers from
the inquiry.
So there must be a claim, the claim must be formal, and it must have
such particularity to let the legislative determine whether the claim is part
of executive privilege. But the Congress cannot compel the executive to state

the reason with such particularity as to compel the disclosure of the

information it wishes to protect. Example is in the case of Neri, a claim that
the disclosure of the information would affect our relationship with China and
the investors is sufficient.
Neri v Senate
This is about the ZTE Deal. Neri testified that he was bribed by then
COMELEC Chairman Benjamin Abalos with 200mln in exchange for his
approval on the NBN Project. The following questions were asked which he
refused to answer:
-Whether or not President Arroyo followed up the NBN Project.
-Whether or not she directed him to prioritize it.
-Whether or not she directed him to approve it.
Neri claimed executive privilege because it would affect our diplomatic
relations and foreign investors. SC said that the aforesaid are part of
executive privilege.
SC held that the elements of presidential communications privilege are
present:
1) The protected communication must relate to a quintessential
and non-delegable presidential power. "Quintessential" is defined
as the most perfect embodiment of something, the concentrated
essence of substance. On the other hand, "non-delegable" means that
a power or duty cannot be delegated to another or, even if delegated,
the responsibility remains with the obligor. Ex. Commander-in-chief
powers, appointment powers diplomatic powers. These are the core of
being a President.
2) The communications are received by a close advisor of the
President or the President himself. Neri is a close advisor.
3) There must be a showing of a compelling or adequate need for
the limitation of executive privilege. The court found that there is
no adequate need for the disclosure of the information covered by the
executive privilege.
Gudani v Senga
Sen. Biazon invited several senior officers of the AFP, including Gen. Gudani,
to appear at a public hearing before the Senate Committee
on National Defense and Security concerning the conduct of the 2004
elections wherein allegations of massive cheating and the Hello Garci tapes
emerged. AFP Chief of Staff Gen. Senga issued aMemorandum, prohibiting
Gen. Gudani, Col. Balutan and company from appearing before the Senate
Committee without Presidential approval. Nevertheless, Gen. Gudani and Col.

Balutan testified before said Committee, prompting Gen. Senga to order

them subjected to General Court Martial proceedings for willfully violating an
order of a superior officer.
ISSUE:
Whether or not the President can prevent military officers from testifying at a
legislative inquiry.
SC: The President has constitutional authority to do so, by virtue of her
power as commander-in-chief, and that as a consequence, a military officer
who defies such injunction is liable under military justice. The ability of
President to prevent military officers from testifying before Congress is based
on her Commander-in-chief powers.
At the same time, we also hold that any chamber of Congress which seeks
the appearance of a military officer against the consent of the President has
adequate remedies under law to compel such attendance. Any military official
whom Congress summons to testify before it may be compelled to do so by
the President. If the President is not so inclined, the President may be
commanded by judicial order to compel the attendance of the military officer.
Final judicial orders have the force of the law of the land which the President
has the duty to faithfully execute.