SECTION 1

ROMULO
L.
NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL
DEFENSE AND SECURITY, respondents

FACTS: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a
contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services
for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately
P16 Billion Pesos). The Project was to be financed by the Peoples Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007 hearing Jose
de Venecia III testified that several high executive officials and power brokers were using their influence to
push

the

approval

of

the

NBN

Project

by

the

NEDA.

Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared in one
hearing wherein he was interrogated for 11 hrs and during which he admitted that Abalos of COMELEC
tried to bribe him with P200M in exchange for his approval of the NBN project. He further narrated that he
informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe.

However, when probed further on what they discussed about the NBN Project, petitioner refused to
answer, invoking executive privilege. In particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
He later refused to attend the other hearings and Ermita sent a letter to the senate averring that the
communications between GMA and Neri are privileged and that the jurisprudence laid down in Senate vs
Ermita be applied. He was cited in contempt of respondent committees and an order for his arrest and
detention until such time that he would appear and give his testimony.

ISSUE:
Are the communications elicited by the subject three (3) questions covered by executive privilege?

HELD:

The communications are covered by executive privilege

The revocation of EO 464 (advised executive officials and employees to follow and abide by the
Constitution, existing laws and jurisprudence, including, among others, the case of Senate v. Ermita when
they are invited to legislative inquiries in aid of legislation.), does not in any way diminish the concept of
executive privilege. This is because this concept has Constitutional underpinnings.

The claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a
power textually committed by the Constitution to the President, such as the area of military and foreign
relations. Under our Constitution, the President is the repository of the commander-in-chief, appointing,
pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers, the information
relating
Several

to

these

jurisprudence

powers
cited

provide

may
the

enjoy
elements

greater
of

confidentiality

presidential

than

others.

communications

privilege:

1) The protected communication must relate to a quintessential and non-delegable presidential power.
2) The communication must be authored or solicited and received by a close advisor of the President or
the President himself. The judicial test is that an advisor must be in operational proximity with the
President.

3) The presidential communications privilege remains a qualified privilege that may be overcome by a
showing of adequate need, such that the information sought likely contains important evidence and by
the unavailability of the information elsewhere by an appropriate investigating authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground
that the communications elicited by the three (3) questions fall under conversation and correspondence

between the President and public officials necessary in her executive and policy decision-making
process and, that the information sought to be disclosed might impair our diplomatic as well as
economic relations with the Peoples Republic of China. Simply put, the bases are presidential
communications privilege and executive privilege on matters relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3)
questions are covered by the presidential communications privilege. First, the communications relate to a
quintessential and non-delegable power of the President, i.e. the power to enter into an executive
agreement with other countries. This authority of the President to enter into executive agreements without
the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second,
the communications are received by a close advisor of the President. Under the operational proximity
test, petitioner can be considered a close advisor, being a member of President Arroyos cabinet. And
third, there is no adequate showing of a compelling need that would justify the limitation of the privilege
and of the unavailability of the information elsewhere by an appropriate investigating authority.

Respondent Committees further contend that the grant of petitioners claim of executive privilege violates
the constitutional provisions on the right of the people to information on matters of public concern.50 We
might have agreed with such contention if petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing, where he was questioned for eleven (11)
hours. Not only that, he expressly manifested his willingness to answer more questions from the
Senators, with the exception only of those covered by his claim of executive privilege.

The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides:
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.

SECTION 1
COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and ELISA
RIVERA,petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.
Facts:
Ombudsman Vasquez required Rogado and Rivera of Economic Intelligence and Investigation Bureau
(EIIB) to produce all documents relating to Personal Service Funds yr. 1988 and all evidence for the
whole plantilla of EIIB for 1988. The subpoena duces tecum was issued in connection with the
investigation of funds representing savings from unfilled positions in the EIIB which were legally
disbursed. Almonte and Perez denied the anomalous activities that circulate around the EIIB office. They
moved to quash the subpoena duces tecum. They claim privilege of an agency of the Government.
Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is Chief of the
EIIB's Budget and Fiscal Management Division. The subpoena duces tecum was issued by the
Ombudsman in connection with his investigation of an anonymous letter alleging that funds representing
savings from unfilled positions in the EIIB had been illegally disbursed. The letter, purporting to have been
written by an employee of the EIIB and a concerned citizen, was addressed to the Secretary of Finance,
with copies furnished several government offices, including the Office of the Ombudsman.
Issue:
1) Whether or not an Ombudsman can oblige the petitioners by virtue of subpoena duces tecum to
provide documents relating tWhether or not an Ombudsman can oblige the petitioners by virtue of
subpoena duces tecum to provide documents relating to personal service and salary vouchers of
EIIB employers.o personal service and salary vouchers of EIIB employers.

Held: Yes. A government privilege against disclosure is recognized with respect to state secrets bearing
on military, diplomatic and similar matters. This privilege is based upon public interest of such paramount
importance as in and of itself transcending the individual interests of a private citizen, even though, as a
consequence thereof, the plaintiff cannot enforce his legal rights.

In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production
of records pertaining to the personnel of the EIIB. EIIB's function is the gathering and evaluation of
intelligence reports and information regarding "illegal activities affecting the national economy, such as,
but not limited to, economic sabotage, smuggling, tax evasion, dollar salting." Consequently while in
cases which involve state secrets it may be sufficient to determine the circumstances of the case that
there is reasonable danger that compulsion of the evidence will expose military matters without
compelling production, no similar excuse can be made for privilege resting on other considerations.

SECTION 1

Senate vs. Ermita

Facts: in 2005, scandals involving transactions about the North Rail Project surfaced. This prompted the
Senate to conduct an investigation the said transactions. The investigating Senate Committee issued
investigation to certain department heads and military officials to speak before the committee as resource
persons. Ermita submitted that he and other department heads cannot attend due to pressing matters that
needed immediate personal attention. AFP Chief of Staff likewise sent a similar letter.
Subsequently, GMA issued EO 646 which took effect immediately. EO 646 prohibits any department
heads, senior officials of the executive departments who in the judgment of the department heads are
covered by executive privilege; PNP senior officials; general and flag officers of the AFP; and such other
officials as determined by the president to attend hearings conducted by the Congress without first
obtaining the permission of the president.
When the Department heads as well as the AFP were once again invited, they invoked EO 646 to except
themselves from such hearings. Despite the executive order, 2 military officials have attended the
hearing. For defying the orders of the President to obtain first her permission before attending any
congress hearings, the 2 military officials were relieved from their military posts and made to face court
martial. The petitioners are now assailing the constitutionality of EO 646 alleging that such EO infringes
on the rights and duties of Congress to conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws.
Issue: whether or not EO 646 is constitutional
Held: The SC ruled that EO 464 is constitutional in part. To determine the validity of the provisions of EO
464, the SC sought to distinguish Section 21 from Section 22 of Art 6 of the 1987 Constitution. The
Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution. 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 mayexerciseits 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. Section 22 on the other hand provides for the QuestionHour. 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 theapplicationof check and balance but also, in effect, in aid of legislation. Section 22 refers only to
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. 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.
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. 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 coequal branch of government which is sanctioned by a long-standing custom. 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.
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
onlyrequesttheir 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.

SECTION 13

Clinton vs Jones
Facts. The Respondent filed a complaint against the Petitioner alleging that the Petitioner made
unwanted sexual advances towards her when he was the Governor of Arkansas. The Petitioner filed
motions asking the district court to dismiss the case on grounds of presidential immunity and to prohibit
the Respondent from re-filing the suit until after the end of his presidency. The district court rejected the
presidential immunity argument, but held that no trial would take place until the Petitioner was no longer
president. Both parties appealed to the United States Supreme Court (Supreme Court), which granted
certiorari.
Issue. Whether the President can be involved in a lawsuit during his presidency for actions that occurred
before the tenure of his presidency and that were not related to official duties of the presidency?
Held. Affirmed.
The President of the United States can be involved in a lawsuit during his tenure for actions not related to
his
official
duties
as
President.
It was an abuse of discretion of the District Court to order a stay of this lawsuit until after the Presidents
tenure. The District Courts decision to order a stay was premature and a lengthy and categorical stay

takes no account whatsoever of the Respondents interest in bringing the suit to trial.
Concurrence. It is important to recognize that civil lawsuits could significantly interfere with the public
duties of an official. The concurring judge believed that ordinary case-management principles were likely
to prove insufficient to deal with private civil lawsuits, unless supplemented with a constitutionally based
requirement that district courts schedule proceedings so as to avoid significant interference with the
Presidents ongoing discharge of his official responsibilities.
Discussion. A sitting President of The United States does not have immunity from civil lawsuits based on
the Presidents private actions unrelated to his public actions as President. The doctrine of separation of
powers does not require federal courts to stay all private actions against the President until he leaves
office. The doctrine of separation of powers is concerned with the allocation of official power among the
three co-equal branches of governme

SECTION 18

David vs Arroyo
FACTS:
On February 24, 2006, President Arroyo issued PP No. 1017 declaring a state of emergency,
thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, [calling-out power] by virtue of the powers
vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: The
President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress.
. .rebellion. . ., and in my capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion ["take care" power] and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction; and [power to take over] as provided in Section 17, Article 12 of the Constitution do
hereby declare a State of National Emergency.
On the same day, PGMA issued G.O. No. 5 implementing PP1017, directing the members of the
AFP and PNP "to immediately carry out the necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence."
David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly. They
alleged direct injury resulting from illegal arrest and unlawful search committed by police operatives
pursuant to PP 1017.

During the hearing, the Solicitor General argued that the issuance of PP 1017 and GO 5 have
factual basis, and contended that the intent of the Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the armed forces. The petitioners did not contend the
facts stated b the Solicitor General.
ISSUE:
Whether or not the PP 1017 and G.O. No. 5 is constitutional.
RULING:
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision: by virtue of the power vested upon me by Section 18, Artilce VII do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion
Second provision: and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;
Third provision: as provided in Section 17, Article XII of the Constitution do hereby declare a
State of National Emergency.
PP 1017 is partially constitutional insofar as provided by the first provision of the decree.
First Provision: Calling Out Power.
The only criterion for the exercise of the calling-out power is that whenever it becomes
necessary, the President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion. (Integrated Bar of the Philippines v. Zamora)
President Arroyos declaration of a state of rebellion was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4, Chap 2, Bk II of the
Revised Administration Code. Such declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also
relied on Section 17, Article XII, a provision on the States extraordinary power to take over privatelyowned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless.
To clarify, PP 1017 is not a declaration of Martial Law. It is merely an exercise of President
Arroyos calling-out power for the armed forces to assist her in preventing or suppressing lawless
violence.

Second Provision: The "Take Care" Power.

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate decrees. Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that [t]he legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives. To
be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President
Arroyos exercise of legislative power by issuing decrees.

Third Provision: The Power to Take Over

Distinction must be drawn between the Presidents authority to declarea state of national
emergency and to exercise emergency powers. To the first, Section 18, Article VII grants the President
such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold
constitutional issues arise.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot
delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be
possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution
deemed it wise to allow Congress to grant emergency powers to the President, subject to certain
conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.
Section 17, Article XII must be understood as an aspect of the emergency powers clause.
The taking over of private business affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17 states that the the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest, it refers to Congress, not
the President. Now, whether or not the President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof.
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily
take over or direct the operation of any privately owned public utility or business affected with public
interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional circumstances have ceased.
Likewise, without legislation, the President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the President has no absolute authority to
exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers
act passed by Congress.

As of G.O. No. 5, it is constitutional since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence. Considering that acts of terrorism have not yet been
defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared unconstitutiona