CONSTI_CONGRESS-03

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G.R. No. L-3820

July 18, 1950

JEAN
L.
ARNAULT, petitioner,
vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate,
and
EUSTAQUIO
BALAGTAS,
Director
of
Prisons,respondents.
J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for
petitioner.
Office of the Solicitor General Felix Bautista Angelo, Lorenzo
Sumulong, Lorenzo Taada, and Vicente J. Francisco for
respondents.
OZAETA, J.:
This is an original petition for habeas corpus to relieve the
petitioner from his confinement in the New Bilibid Prison to
which he has been committed by virtue of a resolution adopted
by the Senate on May 15, 1950, which reads as follows:
Whereas, Jean L. Arnault refused to reveal the name of the
person to whom he gave the P440,000, as well as answer other
pertinent questions related to the said amount; Now, therefore,
be it.
Resolved, that for his refusal to reveal the name of the person to
whom he gave the P440,000 Jean L. Arnault be committed to
the custody of the Sergeant-at-Arms and imprisoned in the New
Bilibid Prison, Muntinlupa, Rizal, until discharged by further
order of the Senate or by the special committee created by
Senate Resolution No. 8, such discharge to be ordered when he
shall have purged the contempt by revealing to the Senate or to
the said special committee the name of the person to whom he
gave the P440,000, as well as answer other pertinent questions
in connection therewith.

The facts that gave rise to the adoption of said resolution,

insofar as pertinent here, may be briefly stated as follows:
In the latter part of October, 1949, the Philippine Government,
through the Rural Progress Administration, bought two estates
known as Buenavista and Tambobong for the sums of
P4,500,000 and P500,000, respectively. Of the first sum,
P1,000,000 was paid to Ernest H. Burt, a nonresident American,
thru his attorney-in-fact in the Philippines, the Associated
Estates, Inc., represented by Jean L. Arnault, for alleged interest
of the said Burt in the Buenavista Estate. The second sum of
P500,000 was all paid to the same Ernest H. Burt through his
other attorney-in-fact, the North Manila Development Co., Inc.,
also represented by Jean L. Arnault, for the alleged interest of
the said Burt in the Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan de
Dios Hospital. The Philippine Government held a 25-year lease
contract on said estate, with an option to purchase it for
P3,000,000 within the same period of 25 years counted from
January 1, 1939. The occupation Republic of the Philippines
purported to exercise that option by tendering to the owner the
sum of P3,000,000 and, upon its rejection, by depositing it in
court on June 21, 1944, together with the accrued rentals
amounting to P3224,000. Since 1939 the Government has
remained in possession of the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the
Buenavista Estate for P5,000,000 to Ernest H. Burt, who made a
down payment of P10,000 only and agreed to pay P5000,000
within one year and the remainder in annual installments of
P500,000 each, with the stipulation that failure on his part to
make any of said payments would cause the forfeiture of his
down payment of P10,000 and would entitle the Hospital to
rescind to sale to him. Aside from the down payment of

CONSTI_CONGRESS-03
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P10,000, Burt has made no other payment on account of the
purchase price of said estate.

RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE

THE BUENAVISTA AND THE TAMBOBONG ESTATES DEAL.

The original owner of the Tambobong Estate was the Philippine

Trust Company. On May 14, 1946, the Philippine Trust Company
sold estate for the sum of P1,200,000 to Ernest H. Burt, who
paid P10,000 down and promise to pay P90,000 within nine
months and the balance of P1,100,000 in ten successive
installments of P110,000 each. The nine-month period within
which to pay the first installment of P90,000 expired on
February 14, 1947, without Burt's having paid the said or any
other amount then or afterwards. On September 4, 1947, the
Philippine Trust Company sold, conveyed, and delivered the
Tambobong Estate to the Rural Progress Administration by an
absolute deed of sale in consideration of the sum of P750,000.
On February 5, 1948, the Rural Progress Administration made,
under article 1504 of the Civil Code, a notarial demand upon
Burt for the resolution and cancellation of his contract of
purchase with the Philippine Trust Company due to his failure to
pay the installment of P90,000 within the period of nine months.
Subsequently the Court of First Instance of Rizal ordered the
cancellation of Burt's certificate of title and the issuance of a
new one in the name of the Rural Progress Administration, from
which order he appealed to the Supreme Court.1

WHEREAS, it is reported that the Philippine government, through

the Rural Progress Administration, has bought the Buenavista
and the Tambobong Estates for the aggregate sum of five
million pesos;

It was in the face of the antecedents sketched in the last three

preceding paragraphs that the Philippine Government, through
the Secretary of Justice as Chairman of the Board of Directors of
the Rural Progress Administration and as Chairman of the Board
of Directors of the Philippine National Bank, from which the
money was borrowed, accomplished the purchase of the two
estates in the latter part of October, 1949, as stated at the
outset.
On February 27, 1950, the Senate adopted its Resolution No. 8,
which reads as follows:

WHEREAS, it is reported that under the decision of the Supreme

Court dated October 31, 1949, the Buenavista Estate could have
been bought for three million pesos by virtue of a contract
entered into between the San Juan de Dios Hospital and
Philippine Government in 1939;
WHEREAS, it is even alleged that the Philippine Government did
not have to purchase the Buenavista Estate because the
occupation government had made tender of payment in the
amount of three million pesos, Japanese currency, which fact is
believed sufficient to vest title of Ownership in the Republic of
the Philippines pursuant to decisions of the Supreme Court
sustaining the validity of payments made in Japanese military
notes during the occupation;
WHEREAS, it is reported that the Philippine Government did not
have to pay a single centavo for the Tambobong Estate as it was
already practically owned by virtue of a deed of sale from the
Philippine Trust Company dated September 3, 194, for seven
hundred and fifty thousand pesos, and by virtue of the recission
of the contract through which Ernest H. Burt had an interest in
the estate; Now, therefore, be it.
RESOLVED, That a Special Committee, be, as it hereby is,
created, composed of five members to be appointed by the
President of the Senate to investigate the Buenavista and
Tambobong Estate deals. It shall be the duty of the said
Committee to determine whether the said purchase was honest,
valid, and proper and whether the price involved in the deal was

CONSTI_CONGRESS-03
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fair and just, the parties responsible therefor, and any other
facts the Committee may deem proper in the premises. Said
Committee shall have the power to conduct public hearings;
issue subpoena or subpoena duces
tecum to
compel
the
attendance of witnesses or the production of documents before
it; and may require any official or employee of any bureau,
office, branch, subdivision, agency, or instrumentality of the
Government to assist or otherwise cooperate with the Special
Committee in the performance of its functions and duties. Said
Committee shall submit its report of findings and
recommendations within two weeks from the adoption of this
Resolution.
The special committee created by the above resolution called
and examined various witnesses, among the most important of
whom was the herein petitioner, Jean L. Arnault. An intriguing
question which the committee sought to resolve was that
involved in the apparent unnecessariness and irregularity of the
Government's paying to Burt the total sum of P1,500,000 for his
alleged interest of only P20,000 in the two estates, which he
seemed to have forfeited anyway long before October, 1949.
The committee sought to determine who were responsible for
and who benefited from the transaction at the expense of the
Government.
Arnault testified that two checks payable to Burt aggregating
P1,500,000 were delivered to him on the afternoon of October
29, 1949; that on the same date he opened a new account in
the name of Ernest H. Burt with the Philippine National Bank in
which he deposited the two checks aggregating P1,500,000; and
that on the same occasion he draw on said account two checks;
one for P500,000, which he transferred to the account of the
Associated Agencies, Inc., with the Philippine National Bank, and
another for P440,000 payable to cash, which he himself cashed.
It was the desire of the committee to determine the ultimate

recipient of this sum of P440,000 that gave rise to the present

case.
At first the petitioner claimed before the Committee:
Mr. ARNAULT (reading from a note). Mr. Chairman, for questions
involving the disposition of funds, I take the position that the
transactions were legal, that no laws were being violated, and
that all requisites had been complied with. Here also I acted in a
purely functional capacity of representative. I beg to be excused
from making answer which might later be used against me. I
have been assured that it is my constitutional right to refuse to
incriminate myself, and I am certain that the Honorable
Members of this Committee, who, I understand, are lawyers, will
see the justness of my position.
At as subsequent session of the committee (March 16) Senator
De Vera, a member of the committee, interrogated him as
follows:
Senator DE VERA. Now these transactions, according to your
own typewritten statement, were legal?
Mr. ARNAULT. I believe so.
Senator DE VERA. And the disposition of that fund involved,
according to your own statement, did not violate any law?
Mr. ARNAULT. I believe so.
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Senator DE VERA. So that if the funds were disposed of in such a

manner that no laws were violated, how is it that when you were
asked by the Committee to tell what steps you took to have this
money delivered to Burt, you refused to answer the questions,
saying that it would incriminate you?

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Mr. ARNAULT. Because it violates the rights of a citizen to
privacy in his dealings with other people.
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Senator DE VERA. Are you afraid to state how the money was
disposed of because you would be incriminated, or you would be
incriminating somebody?
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to
dispose of the money that has been paid to me as a result of a
legal transaction without having to account for any use of it.
But when in the same session the chairman of the committee,
Senator Sumulong, interrogated the petitioner, the latter
testified as follows:
The CHAIRMAN. The other check of P440,000 which you also
made on October 29, 1949, is payable to cash; and upon
cashing this P440,000 on October 29, 1949, what did you do
with that amount?

The CHAIRMAN. That certain person who represented Burt to

whom you delivered the big amount on October 29, 1949, gave
you a receipt for the amount?
Mr. ARNAULT. No.
The CHAIRMAN. Neither did you ask a receipt?
Mr. ARNAULT. I didn't ask.
The CHAIRMAN. And why did you give that certain person,
representative of Burt, this big amount of P440,000 which forms
part of the P1- million paid to Burt?
Mr. ARNAULT. Because I have instructions to that effect.

Mr. ARNAULT. Burt.

The CHAIRMAN. The whole amount of P440,000?

The CHAIRMAN. Where is the instruction; was that in writing?

Mr. ARNAULT. Yes.

The CHAIRMAN. Who was that certain person to whom you
delivered these P440,000 which you cashed on October 29,
1949?
remember

the

name;

he

was

The CHAIRMAN. That representative of Burt to whom you

delivered the P440,000 was a Filipino?
Mr. ARNAULT. I don't know.

Mr. ARNAULT. I am not sure; I do not remember the name.

The CHAIRMAN. Who gave you the instruction?

Mr. ARNAULT. I turned it over to a certain person.

Mr. ARNAULT. I don't

representative of Burt.

The CHAIRMAN. You do not remember the name of that

representative of Burt to whom you delivered this big amount of
P440,000?

Mr. ARNAULT. No.

The CHAIRMAN. By cable?
Mr. ARNAULT. No.
The CHAIRMAN. In what form did you receive that instruction?
Mr. ARNAULT. Verbal instruction.

CONSTI_CONGRESS-03
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The CHAIRMAN. When did you receive this verbal instruction
from Burt to deliver these P440,000 to a certain person whose
name you do not like to reveal?

The CHAIRMAN. Burt did not tell you when he gave you the
verbal instruction why that certain person should receive these
P440,000?

Mr. ARNAULT. I have instruction to comply with the request of

the person.

Mr. ARNAULT. He did not tell me.

The CHAIRMAN. Now, you said that instruction given to you by

Burt was verbal?
Mr. ARNAULT. Yes.
The CHAIRMAN. When was that instruction given to you by Burt?
Mr. ARNAULT. Long time ago.
The CHAIRMAN. In what year did Burt give you that verbal
instruction; when Burt was still here in the Philippines?
Mr. ARNAULT. Yes.

The CHAIRMAN. And Burt also authorized you to give this big
amount to that certain person without receipt?
Mr. ARNAULT. He told me that a certain person would represent
him and where could I meet him.
The CHAIRMAN. Did Burt know already that certain person as
early as 1946?
Mr. ARNAULT. I presume much before that.
The CHAIRMAN. Did that certain person have any intervention in
the prosecution of the two cases involving the Buenavista and
Tambobong estates?

The CHAIRMAN. But at that time Burt already knew that he

would receive the money?

Mr. ARNAULT. Not that I know of.

Mr. ARNAULT. No.

The CHAIRMAN. Is that certain person related to any high

government official?

The CHAIRMAN. In what year was that when Burt while he was
here in the Philippines gave you the verbal instruction?

Mr. ARNAULT. No, I do not know.

Mr. ARNAULT. In 1946.

The CHAIRMAN. Why can you not tell us the name of that
certain person?

The CHAIRMAN. And what has that certain person done for Burt
to merit receiving these P440,000?

Mr. ARNAULT. Because I am not sure of his name; I cannot

remember the name.

Mr. ARNAULT. I absolutely do not know.

The CHAIRMAN. When gave that certain person that P440,000

on October 29, 1949, you knew already that person?

The CHAIRMAN. You do not know?

Mr. ARNAULT. I do not know.

Mr. ARNAULT. Yes, I have seen him several times.

CONSTI_CONGRESS-03
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The CHAIRMAN. And the name of that certain person is a Filipino
name?
Mr. ARNAULT. I would say Spanish name.
The CHAIRMAN. And how about his Christian name; is it also a
Spanish name?
Mr. ARNAULT. I am not sure; I think the initial is J.
The CHAIRMAN. Did he have a middle name?
Mr. ARNAULT. I never knew it.
The CHAIRMAN. And how about his family name which according
to your recollection is Spanish; can you remember the first letter
with which that family name begins?
Mr. ARNAULT. S, D or F.
The CHAIRMAN. And what was the last letter of the family
name?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Have you seen that person again after you have
delivered this P440,000?

The CHAIRMAN. And in spite of the fact that you met that person
two or three times, you never were able to find out what was his
name?
Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta
knows my name; of course, we have not done business. Lots of
people in Manila know me, but they don't know my name, and I
don't know them. They sa{ I am "chiflado" because I don't know
their names.
The CHAIRMAN. That certain person is a male or female?
Mr. ARNAULT. He is a male.
The CHAIRMAN. You are sure that he is a male at least?
Mr. ARNAULT. Let us say 38 or 40 years, more or less.
The CHAIRMAN. Can you give us, more or less, a description of
that certain person? What is his complexion: light, dark or light
brown?
Mr. ARNAULT. He is like the gentleman there (pointing to Senator
Cabili), but smaller. He walks very straight, with military
bearing.

Mr. ARNAULT. Yes.

The CHAIRMAN. Do you know the residence of that certain

person to whom you gave the P440,000?

The CHAIRMAN. Several times?

Mr. ARNAULT. No.

Mr. ARNAULT. Two or three times.

The CHAIRMAN. During these frequent times that you met that
certain person, you never came to know his residence?

The CHAIRMAN. Here in Manila?

Mr. ARNAULT. Yes.

Mr. ARNAULT. No, because he was coming to the office.

The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. Between 5-2 and 5-6.

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On May 15, 1950, the petitioner was haled before the bar of the
Senate, which approved and read to him the following
resolution:
Be it resolved by the Senate of the Philippines in Session
assembled:
That Jean L. Arnault, now at the bar of the Senate, be arraigned
for contempt consisting of contumacious acts committed by him
during the investigation conducted by the Special Committee
created by Senate Resolution No. 8 to probe the Tambobong and
Buenavista estates deal of October 21, 1949, and that the
President of the Senate propounded to him the following
interrogatories:
1. What excuse have you for persistently refusing to reveal the
name of the person to whom you gave the P440,000 on October
29, 1949, a person whose name it is impossible for you not to
remember not only because of the big amount of money you
gave to him without receipt, but also by your own statements
you knew him as early as 1946 when General Ernest H. Burt was
still in the Philippines, you made two other deliveries of money
to him without receipt, and the last time you saw him was in
December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for him
a written answer alleging that the questions were incriminatory
in nature and begging leave to be allowed to stand on his
constitutional right not to be compelled to be a witness against
himself. Not satisfied with that written answer Senator
Sumulong, over the objection of counsel for the petitioner,
propounded to the latter the following question:
Sen. SUMULONG. During the investigation, when the Committee
asked you for the name of that person to whom you gave the
P440,000, you said that you can [could] not remember his
name. That was the reason then for refusing to reveal the name

of the person. Now, in the answer that you have just cited, you
are refusing to reveal the name of that person to whom you
gave the P440,000 on the ground that your answer will be selfincriminating. Now, do I understand from you that you are
abandoning your former claim that you cannot remember the
name of that person, and that your reason now for your refusal
to reveal the name of that person is that your answer might be
self-incriminating? In other words, the question is this: What is
your real reason for refusing to reveal the name of that person
to whom you gave the P440,000: that you do not remember his
name or that your answer would be self-incriminating?
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Mr. ORENDAIN. Mr. President, we are begging for the rules of

procedure that the accused should not be required to testify
unless he so desires.
The PRESIDENT. It is the duty of the respondent to answer the
question. The question is very clear. It does not incriminate him.
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Mr. ARNAULT. I stand by every statement that I have made

before the Senate Committee on the first, second, and third
hearings to which I was made in my letter to this Senate of May
2, 1950, in which I gave all the reasons that were in my powers
to give, as requested. I cannot change anything in those
statements that I made because they represent the best that I
can do , to the best of my ability.
The PRESIDENT. You are not answering the question. The answer
has nothing to do with the question.
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that
the reason that you gave during the investigation for not
revealing the name of the person to whom you gave the

CONSTI_CONGRESS-03
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P440,000 is not the same reason that you are now alleging
because during the investigation you told us: "I do not
remember his name." But, now, you are now saying: "My answer
might incriminate me." What is your real position?

The PRESIDENT. The witness is ordered to answer the question.

It is very clear. It does not incriminate the witness.

Mr. ARNAULT. I have just stated that I stand by my statements

that I made at the first, second, and third hearings. I said that I
wanted to be excused from answering the question. I beg to be
excused from making any answer that might be incriminating in
nature. However, in this answer, if the detail of not
remembering the name of the person has not been included, it
is an oversight.

Mr. ARNAULT. I do not remember. I stand on my constitutional

rights. I beg to be excused from making further answer, please.

Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple

question: Do you remember or not the name of the person to
whom you gave the P440,000?
Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of that
person, how can you say that your answer might be
incriminating? If you do not remember his name, you cannot
answer the question; so how could your answer be selfincriminating? What do you say to that?
Mr. ARNAULT. This is too complicated for me to explain. Please, I
do not see how to answer those questions. That is why I asked
for a lawyer, so he can help me. I have no means of knowing
what the situation is about. I have been in jail 13 days without
communication with the outside. How could I answer the
question? I have no knowledge of legal procedure or rule, of
which I am completely ignorant.
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Sen. SUMULONG. Mr. President, I ask that the question be

answered.

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Sen. SUMULONG. In that mimeographed letter that you sent

addressed to the President of the Senate, dated May 2, 1950,
you stated there that you cannot reveal the name of the person
to whom you gave the P440,000 because if he is a public official
you might render yourself liable for prosecution for bribery, and
that if he is a private individual you might render yourself liable
for prosecution for slander. Why did you make those statements
when you cannot even tell us whether that person to whom you
gave the P440,000 is a public official or a private individual ? We
are giving you this chance to convince the Senate that all these
allegations of yours that your answers might incriminate you are
given by you honestly or you are just trying to make a pretext
for not revealing the information desired by the Senate.
The PRESIDENT. You are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question. (The
question is restated and explained.)
Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for
me and signed it. That is all I can say how I stand about this
letter. I have no knowledge myself enough to write such a letter,
so I had to secure the help of a lawyer to help me in my period
of distress.
In that same session of the Senate before which the petitioner
was called to show cause why he should not be adjudged guilty
of contempt of the Senate, Senator Sumulong propounded to
the petitioner questions tending to elicit information from him as

CONSTI_CONGRESS-03
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to the identity of the person to whom he delivered the
P440,000; but the petitioner refused to reveal it by saying that
he did not remember. The President of the Senate then
propounded to him various questions concerning his past
activities dating as far back as when witness was seven years of
age and ending as recently as the post liberation period, all of
which questions the witness answered satisfactorily. In view
thereof, the President of the Senate also made an attempt to
illicit the desired information from the witness, as follows:
The PRESIDENT. Now I am convinced that you have a good
memory. Answer: Did you deliver the P440,000 as a gift, or of
any consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to
that person, that is all.
The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
The PRESIDENT. In spite of that, you do not have the least
remembrance of the name of that person?
Mr. ARNAULT. I cannot remember.
The PRESIDENT. How is it that you do not remember events that
happened a short time ago and, on the other hand, you
remember events that occurred during your childhood?
Mr. ARNAULT. I cannot explain.
The Senate then deliberated and adopted the resolution of May
15 hereinabove quoted whereby the petitioner was committed
to the custody of the Sergeant-at-Arms and imprisoned until "he
shall have purged the contempt by revealing to the Senate or to
the aforesaid Special Committee the name of the person to

whom he gave the P440,000, as well as answer other pertinent

questions in connection therewith."
The Senate also adopted on the same date another resolution
(No. 16) , to wit:
That the Special Committee created by Senate Resolution No. 8
be empowered and directed to continue its investigation of the
Tambobong and Buenavista Estates deal of October 21, 1949,
more particularly to continue the examination of Jean L. Arnault
regarding the name of the person to whom he gave the
P440,000 and other matters related therewith.
The first session of the Second Congress was adjourned at
midnight on May 18, 1950.
The case was argued twice before us. We have given its earnest
and prolonged consideration because it is the first of its kind to
arise since the Constitution of the Republic of the Philippines
was adopted. For the first time this Court is called upon to
define the power of either House of Congress to punish a person
not a member for contempt; and we are fully conscious that our
pronouncements here will set an important precedent for the
future guidance of all concerned.
Before discussing the specific issues raised by the parties, we
deem it necessary to lay down the general principles of law
which form the background of those issues.
Patterned after the American system, our Constitution vests the
powers of the Government in three independent but coordinate
Departments Legislative, Executive, and Judicial. The
legislative power is vested in the Congress, which consists of
the Senate and the House of Representatives. (Section 1, Article
VI.) Each house may determine the rules of its proceedings,
punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, expel a Member.

CONSTI_CONGRESS-03
10
(Section 10, Article VI.) The judicial power is vested in the
Supreme Court and in such inferior courts as may be established
by law. (Section 1, Article VIII.) Like the Constitution of the
United States, ours does not contain an express provision
empowering either of the two Houses of Congress to punish
nonmembers for contempt. It may also be noted that whereas in
the United States the legislative power is shared by and
between the Congress of the United States, on the one hand,
and the respective legislatures of the different States, on the
other the powers not delegated to the United States by the
Constitution nor prohibited by it to States being reserved to the
States, respectively, or to the people in the Philippines, the
legislative power is vested in the Congress of the Philippines
alone. It may therefore be said that the Congress of the
Philippines has a wider range of legislative field than the
Congress of the United States or any State Legislature. Our form
of Government being patterned after the American system
the framers of our Constitution having drawn largely from
American institutions and practices we can, in this case,
properly draw also from American precedents in interpreting
analogous provisions of our Constitution, as we have done in
other cases in the past. 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 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 effect 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. (McGrain vs. Daugherty, 273 U.S., 135; 71 L.
ed., 580; 50 A.L R., 1.) The fact that the Constitution expressly
gives to Congress the power to punish its Members for
disorderly behavior, does not by necessary implication exclude
the power to punish for contempt any other person.
(Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed., 242.) But no
person can be punished for contumacy as a witness before
either House, unless his testimony is required in a matter into
which
that
House
has
jurisdiction
to
inquire.
(Kilbourn vs. Thompson, 26 L. ed., 377.).
Since, as we have noted, the Congress of the Philippines has a
wider range of legislative field than either the Congress of the
United States or a State Legislature, we think it is correct to say
that the field of inquiry into which it may enter is also wider. It
would be difficult to define any limits by which the subject
matter of its inquiry can be bounded. It is not necessary to do so
in this case. Suffice it to say that it must be coextensive with the
range of the legislative power.
In the present case the jurisdiction of the Senate, thru the
Special Committee created by it, to investigate the Buenavista
and Tambobong Estates deal is not challenged by the petitioner;
and we entertain no doubt as to the Senate's authority to do so
and as to the validity of Resolution No. 8 hereinabove quoted.
The transaction involved a questionable and allegedly
unnecessary and irregular expenditure of no less than
P5,000,000 of public funds, of which Congress is the
constitutional guardian. It also involved government agencies
created by Congress to regulate or even abolish. As a result of
the yet uncompleted investigation, the investigating committee
has recommended and the Senate approved three bills (1)
prohibiting the Secretary of Justice or any other department
head from discharging functions and exercising powers other
than those attached to his own office, without ]previous

CONSTI_CONGRESS-03
11
congressional authorization; (2) prohibiting brothers and near
relatives of any President of the Philippines from intervening
directly or indirectly and in whatever capacity in transactions in
which the Government is a party, more particularly where the
decision lies in the hands of executive or administrative officers
who are appointees of the President; and (3) providing that
purchases of the Rural Progress Administration of big landed
estates at a price of P100,000 or more, shall not become
effective without previous congressional confirmation. 2
We shall now consider and pass upon each of the questions
raised by the petitioner in support of his contention that his
commitment is unlawful.
First He contends that the Senate has no power to punish him
for contempt for refusing to reveal the name of the person to
whom he gave the P440,000, because such information is
immaterial to, and will not serve, any intended or purported
legislation and his refusal to answer the question has not
embarrassed, obstructed, or impeded the legislative process. It
is argued that since the investigating committee has already
rendered its report and has made all its recommendations as to
what legislative measures should be taken pursuant to its
findings, there is no necessity to force the petitioner to give the
information desired other than that mentioned in its report, to
wit: "In justice to Judge Quirino and to Secretary Nepomuceno,
this atmosphere of suspicion that now pervades the public mind
must be dissipated, and it can only be done if appropriate steps
are taken by the Senate to compel Arnault to stop pretending
that he cannot remember the name of the person to whom he
gave the P440,000 and answer the questions which will
definitely establish the identity of that person . . ." Senator
Sumulong, Chairman of the Committee, who appeared and
argued the case for the respondents, denied that that was the
only purpose of the Senate in seeking the information from the
witness. He said that the investigation had not been completed,

because, due to the contumacy of the witness, his committee

had not yet determined the parties responsible for the
anomalous transaction as required by Resolution No. 8; that, by
Resolution No. 16, his committee was empowered and directed
to continue its investigation, more particularly to continue its
examination of the witness regarding the name of the person to
whom he gave the P440,000 and other matters related
therewith; that the bills recommended by his committee had not
been approved by the House and might not be approved
pending the completion of the investigation; and that those bills
were not necessarily all the measures that Congress might
deem it necessary to pass after the investigation is finished.
Once an inquiry is admitted or established to be within the
jurisdiction of a legislative body to make, we think the
investigating committee has the power to require a witness to
answer any question pertinent to that inquiry, subject of course
to his constitutional right against self-incrimination. The inquiry,
to be within the jurisdiction of the legislative body to make,
must be material or necessary to the exercise of a power in it
vested by the Constitution, such as to legislate, or to expel a
Member; and every question which the investigator is
empowered to coerce a witness to answer must be material or
pertinent to the subject of the inquiry or investigation. So a
witness may not be coerced to answer a question that obviously
has no relation to the subject of the inquiry. But from this it does
not follow that every question that may be propounded to a
witness must be material to any proposed or possible
legislation. In other words, the materiality of the question must
be determined by its direct relation to any proposed or possible
legislation. The reason is, that the necessity or lack of necessity
for legislative action and the form and character of the action
itself are determined by the sum total of the information to be
gathered as a result of the investigation, and not by a fraction of
such information elicited from a single question.

CONSTI_CONGRESS-03
12
In this connection, it is suggested by counsel for the
respondents that the power of the Court is limited to
determining whether the legislative body has jurisdiction to
institute the inquiry or investigation; that once that jurisdiction
is conceded, this Court cannot control the exercise of that
jurisdiction; and it is insinuated, that the ruling of the Senate on
the materiality of the question propounded to the witness is not
subject to review by this Court under the principle of the
separation of powers. We have to qualify this proposition. As
was said by the Court of Appeals of New York: "We are bound to
presume that the action of the legislative body was with a
legitimate object if it is capable of being so construed, and we
have no right to assume that the contrary was intended."
(People ex rel. McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep.,
49; 2 N.E., 615, quoted with approval by the Supreme Court of
the United States in the said case of McGrain vs. Daugherty, it is
necessary deduction from the decision in Re Chapman, 41 L.
ed., 1154, that where the questions are not pertinent to the
matter under inquiry a witness rightfully may refuse to answer.
So we are of the opinion that where the alleged immateriality of
the information sought by the legislative body from a witness is
relied upon to contest its jurisdiction, the court is in duty bound
to pass upon the contention. The fact that the legislative body
has jurisdiction or the power to make the inquiry would not
preclude judicial intervention to correct a clear abuse of
discretion in the exercise of that power.
Applying the criterion laid down in the last two preceding
paragraphs to the resolution of the issue under consideration,
we find that the question for the refusal to answer which the
petitioner was held in contempt by the Senate is pertinent to
the matter under inquiry. In fact, this is not and cannot be
disputed. Senate Resolution No. 8, the validity of which is not
challenged by the petitioner, requires the Special Committee,
among other things, to determine the parties responsible for the
Buenavista and Tambobong estates deal, and it is obvious that

the name of the person to whom the witness gave the P440,000
involved in said deal is pertinent to that determination it is in
fact the very thing sought to be determined. The contention is
not that the question is impertinent to the subject of the inquiry
but that it has no relation or materiality to any proposed
legislation. We have already indicated that it is not necessary
for the legislative body to show that every question propounded
to a witness is material to any proposed or possible legislation;
what is required is that is that it be pertinent to the matter
under inquiry.
It is said that the Senate has already approved the three bills
recommended by the Committee as a result of the uncompleted
investigation and that there is no need for it to know the name
of the person to whom the witness gave the P440,000. But aside
from the fact that those bills have not yet been approved by the
lower house and by the President and that they may be
withdrawn or modified if after the inquiry is completed they
should be found unnecessary or inadequate, there is nothing to
prevent the Congress from approving other measures it may
deem necessary after completing the investigation. We are not
called upon, nor is it within our province, to determine or
imagine what those measures may be. And our inability to do so
is no reason for overruling the question propounded by the
Senate to the witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in
point here. The inquiry there in question was conducted under a
resolution of the Senate and related to charges, published in the
press, that senators were yielding to corrupt influences in
considering a tariff bill then before the Senate and were
speculating in stocks the value of which would be affected by
pending amendments to the bill. Chapman, a member of a firm
of stock brokers dealing in the stock of the American Sugar
Refining Company, appeared before the committee in response

CONSTI_CONGRESS-03
13
to a subpoena and asked, among others, the following
questions:
Had the firm, during the month of March, 1894, bought or sold
any stock or securities, known as sugar stocks, for or in the
interest, directly or indirectly, of any United Senate senator?
Was the said firm at that time carrying any sugar stock for the
benefit of, or in the interest, directly or indirectly, of any United
Senate senator?
He refused to answer the questions and was prosecuted under
an Act of Congress for contempt of the Senate. Upon being
convicted and sent to jail he petitioned the Supreme Court of
the United States for a writ of habeas corpus. One of the
questions decided by the Supreme Court of the United States in
that case was whether the committee had the right to compel
the witness to answer said questions, and the Court held that
the committee did have such right, saying:
The questions were undoubtedly pertinent to the subject-matter
of the inquiry. The resolution directed the committee to inquire
whether any senator has been, or is, speculating in what are
known as sugar stocks during the consideration of the tariff bill
now before the Senate." What the Senate might or might not do
upon the facts when ascertained, we cannot say, nor are we
called upon to inquire whether such ventures might be
defensible, as contended in argument, but is plain that negative
answers would have cleared that body of what the Senate
regarded as offensive imputations, while affirmative answers
might have led to further action on the part of the Senate within
its constitutional powers. (Emphasis supplied.)
It may be contended that the determination of the parties
responsible for the deal is incumbent upon the judicial rather
than upon the legislative branch. But we think there is no basis
in fact or in law for such assumption. The petitioner has not

challenged the validity of Senate Resolution No. 8, and that

resolution expressly requires the committee to determine the
parties responsible for the deal. We are bound to presume that
the Senate has acted in the due performance of its
constitutional function in instituting the inquiry, if the act is
capable of being so construed. On the other hand, there is no
suggestion that the judiciary has instituted an inquiry to
determine the parties responsible for the deal. Under the
circumstances of the case, it appearing that the questioned
transaction was affected by the head of the Department of
Justice himself, it is not reasonable to expect that the Fiscal or
the Court of First Instance of Manila will take the initiative to
investigate and prosecute the parties responsible for the deal
until and unless the Senate shall determined those parties are
and shall taken such measures as may be within its competence
to take the redress the wrong that may have been committed
against the people as a result of the transaction. As we have
said, the transaction involved no less than P5,000,000 of public
funds. That certainly is a matter of a public concern which it is
the duty of the constitutional guardian of the treasury to
investigate.
If the subject of investigation before the committee is within the
range of legitimate legislative inquiry and the proposed
testimony of the witness called relates to that subject,
obedience, to its process may be enforced by the committee by
imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40
Ann. Cas. [1916 B.], 1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed.,
377, relied upon by the petitioner, is not applicable here. In that
case the inquiry instituted by the House of Representatives of
the United States related to a private real-estate pool or
partnership in the District of Columbia. Jay Cook and Company
had had an interest in the pool but become bankrupts, and their
estate was in course of administration in a federal bankruptcy

CONSTI_CONGRESS-03
14
court in Pennsylvania. The United States was one of their
creditors. The trustee in the bankruptcy proceeding had effected
a settlement of the bankrupts' interest in the pool, and of course
his action was subject to examination and approval or
disapproval by the bankruptcy court. Some of the creditors,
including the United States, were dissatisfied with the
settlement. The resolution of the House directed the Committee
"to inquire into the nature and history of said real-estate pool
and the character of said settlement, with the amount of
property involve, in which Jay Cooke and Co. were interested,
and the amount paid or to be paid in said settlement, with
power to send for persons and papers, and report to this
House." The Supreme Court of the United States, speaking thru
Mr. Justice Miller, pointed out that the resolution contained no
suggestion of contemplated legislation; that the matter was one
in respect of which no valid legislation could be had; that the
bankrupts' estate and the trustee's settlement were still
pending in the bankruptcy court; and that the United States and
other creditors were free to press their claims in that
proceeding. And on these grounds the court held that in
undertaking the investigation "the House of Representatives not
only exceeded the limit of its own authority, but assumed a
power which could only be properly exercised by another branch
of the government, because the power was in its nature clearly
judicial." The principles announced and applied in that case are:
that neither House of Congress possesses a "general power of
making inquiry into the private affairs of the citizen"; that the
power actually possessed is limited to inquires relating to
matters of which the particular House has jurisdiction, and in
respect of which it rightfully may take other action; that if the
inquiry relates to a matter wherein relief or redress could be had
only by judicial proceeding, it is not within the range of this
power , but must be left to the court, conformably to the
constitutional separation of government powers.

That case differs from the present case in two important

respects: (1) There the court found that the subject of the
inquiry, which related to a private real-estate pool or
partnership, was not within the jurisdiction of either House of
Congress; while here if it is not disputed that the subject of the
inquiry, which relates to a transaction involving a questionable
expenditure by the Government of P5,000,000 of public funds, is
within the jurisdiction of the Senate, (2) There the claim of the
Government as a creditor of Jay Cooke and Company, which had
had an interest in the pool, was pending adjudication by the
court; while here the interposition of the judicial power on the
subject of the inquiry cannot be expected, as we have pointed
out above, until after the Senate shall have determined who the
parties responsible are and shall have taken such measures as
may be within its competence to take to redress the wrong that
may have been committed against the people as a result of the
transaction.
It is interesting to note that the decision in the case of
Killbourn vs. Thompson has evoked strong criticisms from legal
scholars. (See Potts, Power of Legislative Bodies to Punish for
Contempt [1926], 74 U. Pa. L. Rev., 692-699; James L. Land
is, Constitutional Limitations on the Congressional Power of
Investigation [1926], 40 Harvard L. Rev., 153, 154, 214-220.) We
quoted the following from Professor Land is' criticism: "Mr.
Justice Miller saw the case purely as an attempt by the House to
secure to the Government certain priority rights as creditor of
the bankrupt concern. To him it assumed the character of a
lawsuit between the Government and Jay Cooke and Co., with
the Government, acting through the House, attempting to
override the orderliness of established procedure and thereby
prefer a creditors' bill not before the courts but before Congress.
That bankruptcy proceedings had already been instituted
against Jay Cooke and Co., in a federal court gave added
impetus to such a conception. The House was seeking to oust a
court of prior acquired jurisdiction by an extraordinary and

CONSTI_CONGRESS-03
15
unwarranted assumption of "judicial power"! The broader aspect
of the investigation had not been disclosed to the Court. That
Jay Cooke and Co.'s indebtedness and the particular funds in
question were only part of the great administrative problem
connected with the use and disposition of public monies, that
the particular failure was of consequence mainly in relation to
the security demanded for all government deposits, that the
facts connected with one such default revealed the possibility of
other and greater maladministration, such considerations had
not been put before the Court. Nor had it been acquainted with
the every-day nature of the particular investigation and the
powers there exerted by the House, powers whose exercise was
customary and familiar in legislative practice. Instead of
assuming the character of an extraordinary judicial proceeding,
the inquiry, place in its proper background, should have been
regarded as a normal and customary part of the legislative
process. Detailed definiteness of legislative purpose was thus
made the demand of the court in Killbourn vs. Thompson. But
investigators cannot foretell the results that may be achieved.
The power of Congress to exercise control over a real-estate
pool is not a matter for abstract speculation but one to be
determined only after an exhaustive examination of the
problem. Relationship, and not their possibilities, determine the
extent of congressional power. Constitutionality depends upon
such disclosures. Their presence, whether determinative of
legislative or judicial power, cannot be relegated to guesswork.
Neither Congress nor the Court can predict, prior to the event,
the result of the investigation."
The other case relied upon by the petitioner is
Marshall vs. Gordon, 243 U.S., 521; 61. ed., 881. The question
there was whether the House of Representatives exceeded its
power in punishing, as for contempt of its authority, the District
Attorney of the Southern District of New York, who had written,
published, and sent to the chairman of one of its committees an
ill-tempered and irritating letter respecting the action and

purposes of the committee in interfering with the investigation

by the grand jury of alleged illegal activities of a member of the
House of Representatives. Power to make inquires and obtain
evidence by compulsory process was not involved. The court
recognized distinctly that the House of Representatives had
implied power to punish a person not a member for contempt,
but held that its action in this instance was without
constitutional justification. The decision was put on the ground
that the letter, while offensive and vexatious, was not calculated
or likely to affect the House in any of its proceedings or in the
exercise of any of its functions. This brief statement of the facts
and the issues decided in that case is sufficient to show the
inapplicability thereof to the present case. There the contempt
involved consisted in the district attorney's writing to the
chairman of the committee an offensive and vexatious letter,
while here the contempt involved consists in the refusal of the
witness to answer questions pertinent to the subject of an
inquiry which the Senate has the power and jurisdiction to make
. But in that case, it was recognized that the House of
Representatives has implied power to punish a person not a
member of contempt. In that respect the case is applicable here
in favor of the Senate's (and not of the Petitioner's ) contention.
Second. It is next contended for the petitioner that the Senate
lacks authority to commit him for contempt for a term beyond
its period of legislative session, which ended on May 18, 1950.
This contention is based on the opinion of Mr. Justice Malcolm,
concurred in by Justices Street and Villa-Real, in the case
of Lopez vs. De los Reyes (1930), 55 Phil., 170. In that case it
appears that on October 23, 1929, Candido Lopez assaulted a
member of the House of Representatives while the latter was
going to the hall of the House of Representatives to attend the
session which was then about to begin, as a result of which
assault said representative was unable to attend the sessions on
that day and those of the two days next following by reason of
the threats which Candido Lopez made against him. By the

CONSTI_CONGRESS-03
16
resolution of the House adopted November 6, 1929, Lopez was
declared guilty of contempt of the House of Representatives and
ordered punished by confinement in Bilibid Prison for a period of
twenty-four hours. That resolution was not complied with
because the session of the House of Representatives adjourned
at midnight on November 8, 1929, and was reiterated at the
next session on September 16, 1930. Lopez was subsequently
arrested, whereupon he applied for the writ of habeas corpus in
the Court of First Instance of Manila, which denied the
application. Upon appeal to the Supreme Court, six justices
voted to grant the writ: Justice Malcolm, Street, and Villa-real, on
the ground that the term of imprisonment meted out to the
petitioner could not legally be extended beyond the session of
the body in which the contempt occurred; and Justices Johns,
Villamor, and Ostrand, on the ground that the Philippine
Legislature had no power to punish for contempt because it was
a creature merely of an Act of the Congress of the United States
and not of a Constitution adopted by the people. Chief Justice
Avancea, Justice Johnson, and Justice Romualdez wrote
separate opinions, concurring with Justice Malcolm, Street, and
Villa-Real, that the Legislature had inherent power to punish for
contempt but dissenting from the opinion that the order of
commitment could only be executed during the particular
session in which the act of contempt was committed.

as
well
as
on
the
Marshall vs. Gordon, supra:

Thus, on the question under consideration, the Court was

equally divided and no decisive pronouncement was made. The
opinion of Mr. Justice Malcolm is based mainly on the following
passage in the case of Anderson vs.Dunn, supra:

If the basis of the power of the legislature to punish for

contempt exists while the legislative body exercising it is in
session, then that power and the exercise thereof must perforce
continue until the final adjournment and the election of its
successor.

And although the legislative power continues perpetual, the

legislative body ceases to exist on the moment of its
adjournment or periodical dissolution. It follows that
imprisonment must terminate with that adjournment.

following

quotation

from

And the essential nature of the power also makes clear the
cogency and application of the two limitations which were
expressly pointed out in Anderson vs. Dunn, supra, that is, that
the power even when applied to subjects which justified its
exercise is limited to imprisonment and such imprisonment may
not be extended beyond the session of the body in which the
contempt occurred.
Interpreting the above quotations, Chief Justice Avancea held:
From this doctrine it follows, in my judgement, that the
imposition of the penalty is limited to the existence of the
legislative body, which ceases to function upon its final
periodical dissolution. The doctrine refers to its existence and
not to any particular session thereof. This must be so, inasmuch
as the basis of the power to impose such penalty is the right
which the Legislature has to self-preservation, and which right is
enforceable during the existence of the legislative body. Many
causes might be conceived to constitute contempt to the
Legislature, which would continue to be a menace to its
preservation during the existence of the legislative body against
which contempt was committed.

Mr. Justice Johnson's more elaborate opinion, supported by

quotations from Cooley's Constitutional Limitationsand from
Jefferson's Manual, is to the same effect. Mr. Justice Romualdez
said: "In my opinion, where as in the case before us, the
members composing the legislative body against which the

CONSTI_CONGRESS-03
17
contempt was committed have not yet completed their threeyear term, the House may take action against the petitioner
herein."
We note that the quotations from Anderson vs. Dunn and
Marshall vs. Gordon relied upon by Justice Malcolm areobiter
dicta. Anderson vs. Dunn was an action of trespass against the
Sergeant-at-Arms of the House of Representatives of the United
States for assault and battery and false imprisonment. The
plaintiff had been arrested for contempt of the House, brought
before the bar of the House, and reprimanded by the Speaker,
and then discharged from custody. The question as to the
duration of the penalty was not involved in that case. The
question there was "whether the House of Representatives can
take cognizance of contempt committed against themselves,
under any circumstances." The court there held that the House
of Representatives had the power to punish for contempt, and
affirmed the judgment of the lower court in favor of the
defendant. In Marshall vs.Gordon, the question presented was
whether the House had the power under the Constitution to deal
with the conduct of the district attorney in writing a vexatious
letter as a contempt of its authority, and to inflict punishment
upon the writer for such contempt as a matter of legislative
power. The court held that the House had no such power
because the writing of the letter did not obstruct the
performance of legislative duty and did not endanger the
preservation of the power of the House to carry out its
legislative authority. Upon that ground alone, and not because
the House had adjourned, the court ordered the discharge of the
petitioner from custody.
The case where the question was squarely decided is
McGrain vs. Daugherty, supra. There it appears that the Senate
had adopted a resolution authorizing and directing a select
committee of five senators to investigate various charges of
misfeasance and nonfeasance in the Department of Justice after

Attorney General Harry M. Daugherty became its supervising

head. In the course of the investigation the committee caused
to be served on Mally S. Daugherty, brother of Harry M.
Daugherty and president of the Midland National Bank of
Washington Court House, Ohio, a subpoena commanding him to
appear before it for the purpose of giving testimony relating to
the subject under consideration. The witness failed to appear
without offering any excuse for his failure. The committee
reported the matter to the Senate and the latter adopted a
resolution, "That the President of the Senate pro tempore issue
his warrant commanding the Sergeant-at-Arms or his deputy to
take into custody the body of the said M.S. Daugherty wherever
found, and to bring the said M.S. Daugherty before the bar of
the Senate, then and there to answer such questions pertinent
to the matter under inquiry as the Senate may order the
President of the Senate pro tempore to propound; and to keep
the said M.S. Daugherty in custody to await the further order of
the Senate." Upon being arrested, the witness petitioned the
federal court in Cincinnati for a writ of habeas corpus. The
federal court granted the writ and discharged the witness on the
ground that the Senate, in directing the investigation and in
ordering the arrest, exceeded its power under the Constitution.
Upon appeal to the Supreme Court of the United States, one of
the contentions of the witness was that the case ha become
moot because the investigation was ordered and the committee
was appointed during the Sixty-eighth Congress, which expired
on March 4, 1926. In overruling the contention, the court said:
. . . The resolution ordering the investigation in terms limited the
committee's authority to the period of the Sixty-eighth
Congress; but this apparently was changed by a later and
amendatory resolution authorizing the committee to sit at such
times and places as it might deem advisable or necessary. It is
said in Jefferson's Manual: "Neither House can continue any
portion of itself in any parliamentary function beyond the end of
the session without the consent of the other two branches.

CONSTI_CONGRESS-03
18
When done, it is by a bill constituting them commissioners for
the particular purpose." But the context shows that the
reference is to the two houses of Parliament when adjourned by
prorogation or dissolution by the King. The rule may be the
same with the House of Representatives whose members are all
elected for the period of a single Congress: but it cannot well be
the same with the Senate, which is a continuing body whose
members are elected for a term of six years and so divided into
classes that the seats of one third only become vacant at the
end of each Congress, two thirds always continuing into the next
Congress, save as vacancies may occur through death or
resignation.
Mr. Hinds in his collection of precedents, says: "The Senate, as a
continuing body, may continue its committees through the
recess following the expiration of a Congress;" and, after
quoting the above statement from Jefferson's Manual, he says:
"The Senate, however being a continuing body, gives authority
to its committees during the recess after the expiration of a
Congress." So far as we are advised the select committee
having this investigation in charge has neither made a final
report nor been discharged; nor has been continued by an
affirmative order. Apparently its activities have been suspended
pending the decision of this case. But, be this as it may, it is
certain that the committee may be continued or revived now by
motion to that effect, and if, continued or revived, will have all
its original powers. This being so, and the Senate being a
continuing body, the case cannot be said to have become moot
in the ordinary sense. The situation is measurably like that in
Southern P. Terminal Co. vs. Interstate Commerce Commission,
219 U. S., 498, 514-516; 55 L. ed., 310, 315, 316; 31 Sup. Ct.
Rep., 279, where it was held that a suit to enjoin the
enforcement of an order of the Interstate Commerce
Commission did not become moot through the expiration of the
order where it was capable of repetition by the Commission and
was a matter of public interest. Our judgment may yet be

carried into effect and the investigation proceeded with from the
point at which it apparently was interrupted by reason of
the habeas corpus proceedings. In these circumstances we think
a judgment should be rendered as was done in the case cited.
What has been said requires that the final order in the District
Court discharging the witness from custody be reversed.
Like the Senate of the United States , the Senate of the
Philippines is a continuing body whose members are elected for
a term of six years and so divided that the seats of only onethird become vacant every two years, two-thirds always
continuing into the next Congress save as vacancies may occur
thru death or resignation. Members of the House of
Representatives are all elected for a term of four years; so that
the term of every Congress is four years. The Second Congress
of the Philippines was constituted on December 30, 1949, and
will expire on December 30, 1953. The resolution of the Senate
committing the Petitioner was adopted during the first session
of the Second Congress, which began on the fourth Monday of
January and ended in May 18, 1950.
Had said resolution of commitment been adopted by the House
of Representatives, we think it could be enforced until the final
adjournment of the last session of the Second Congress in 1953.
We find no sound reason to limit the power of the legislative
body to punish for contempt to the end of every session and not
to the end of the last session terminating the existence of that
body. The very reason for the exercise of the power to punish for
contempt is to enable the legislative body to perform its
constitutional function without impediment or obstruction.
Legislative functions may be and in practice are performed
during recess by duly constituted committees charged with the
duty of performing investigations or conducting hearing relative
to any proposed legislation. To deny to such committees the
power of inquiry with process to enforce it would be to defeat

CONSTI_CONGRESS-03
19
the very purpose for which that the power is recognized in the
legislative body as an essential and appropriate auxiliary to is
legislative function. It is but logical to say that the power of selfpreservation is coexistent with the life to be preserved.
But the resolution of commitment here in question was adopted
by the Senate, which is a continuing body and which does not
cease exist upon the periodical dissolution of the Congress or of
the House of Representatives. There is no limit as to time to the
Senate's power to punish for contempt in cases where that
power may constitutionally be exerted as in the present case.
Mere reflection upon the situation at hand convinces us of the
soundness of this proposition. The Senate has ordered an
investigation of the Buenavista and Tambobong estates deal,
which we have found it is within its competence to make. That
investigation has not been completed because of the refusal of
the petitioner as a witness to answer certain questions pertinent
to the subject of the inquiry. The Senate has empowered the
committee to continue the investigation during the recess. By
refusing to answer the questions, the witness has obstructed the
performance by the Senate of its legislative function, and the
Senate has the power to remove the obstruction by compelling
the witness to answer the questions thru restraint of his liberty
until he shall have answered them. That power subsists as long
as the Senate, which is a continuing body, persists in performing
the particular legislative function involved. To hold that it may
punish the witness for contempt only during the session in
which investigation was begun, would be to recognize the right
of the Senate to perform its function but at the same time to
deny to it an essential and appropriate means for its
performance. Aside from this, if we should hold that the power
to punish for contempt terminates upon the adjournment of the
session, the Senate would have to resume the investigation at
the next and succeeding sessions and repeat the contempt
proceedings against the witness until the investigation is

completed-an absurd, unnecessary, and vexatious procedure,

which should be avoided.
As against the foregoing conclusion it is argued for the
petitioner that the power may be abusively and oppressively
exerted by the Senate which might keep the witness in prison
for life. But we must assume that the Senate will not be
disposed to exert the power beyond its proper bounds. And if,
contrary to this assumption, proper limitations are disregarded,
the portals of this Court are always open to those whose rights
might thus be transgressed.
Third. Lastly, the petitioner invokes the privilege against selfincrimination. He contends that he would incriminate himself if
he should reveal the name of the person to whom he gave the
P440,000 if that person be a public official be (witness) might be
accused of bribery, and if that person be a private individual the
latter might accuse him of oral defamation.
The ground upon which the witness' claim is based is too shaky,
in firm, and slippery to afford him safety. At first he told the
Committee that the transactions were legal, that no laws were
violated, and that all requisites had been replied with; but at the
time he begged to be excused from making answers "which
might later be used against me." A little later he explained that
although the transactions were legal he refused to answer
questions concerning them "because it violates the right of a
citizen to privacy in his dealings with other people . . . I simply
stand on my privilege to dispose of the money that has been
paid to me as a result of a legal transaction without having to
account for the use of it." But after being apparently convinced
by the Committee that his position was untenable, the witness
testified that, without securing any receipt, he turned over the
P440,000 to a certain person, a representative of Burt, in
compliance with Burt's verbal instruction made in 1946; that as
far as he know, that certain person had nothing to do with the

CONSTI_CONGRESS-03
20
negotiations for the settlement of the Buenavista and
Tambobong cases; that he had seen that person several times
before he gave him the P440,000 on October 29, 1949, and that
since then he had seen him again two or three times, the last
time being in December, 1949, in Manila; that the person was a
male, 39 to 40 years of age, between 5 feet, 2 inches and 5
feet, 6 inches in height. Butt the witness would not reveal the
name of that person on these pretexts: " I don't remember the
name; he was a representative of Burt." "I am not sure; I don't
remember the name."

response to the second question: "I don't know." In affirming the

conviction for contempt, the Supreme Court of the United States
among other things said:

We are satisfied that those answers of the witness to the

important question, what is the name of that person to whom
you gave the P440,000? were obviously false. His insistent claim
before the bar of the Senate that if he should reveal the name
he would incriminate himself, necessarily implied that he knew
the name. Moreover, it is unbelievable that he gave the
P440,000 to a person to him unknown.

Since according to the witness himself the transaction was legal,

and that he gave the P440,000 to a representative of Burt in
compliance with the latter's verbal instruction, we find no basis
upon which to sustain his claim that to reveal the name of that
person might incriminate him. There is no conflict of authorities
on the applicable rule, to wit:

"Testimony which is obviously false or evasive is equivalent to a

refusal to testify and is punishable as contempt, assuming that
a refusal to testify would be so punishable." (12 Am. Jur., sec.
15, Contempt, pp. 399-400.) In the case of Mason vs. U.S., 61 L.
ed., 1198, it appears that Mason was called to testify before a
grand jury engaged in investigating a charge of gambling
against six other men. After stating that he was sitting at a table
with said men when they were arrested, he refused to answer
two questions, claiming so to do might tend to incriminate him:
(1) "Was there a game of cards being played on this particular
evening at the table at which you are sitting?" (2) "Was there a
game of cards being played at another table at this time?" The
foreman of the grand jury reported the matter to the judge, who
ruled "that each and all of said questions are proper and that
the answers thereto would not tend to incriminate the witness."
Mason was again called and refused to answer the first question
propounded to him, but, half yielding to frustration, he said in

In the present case, the witness certainly were not relieved from
answering merely because they declared that so to do might
incriminate them. The wisdom of the rule in this regard is well
illustrated by the enforced answer, "I don't know ," given by
Mason to the second question, after he had refused to reply
under a claim of constitutional privilege.

Generally, the question whether testimony is privileged is for

the determination of the Court. At least, it is not enough for the
witness to say that the answer will incriminate him. as he is not
the sole judge of his liability. The danger of self-incrimination
must appear reasonable and real to the court, from all the
circumstances, and from the whole case, as well as from his
general conception of the relations of the witness. Upon the
facts thus developed, it is the province of the court to determine
whether a direct answer to a question may criminate or not. . . .
The fact that the testimony of a witness may tend to show that
he has violated the law is not sufficient to entitle him to claim
the protection of the constitutional provision against selfincrimination, unless he is at the same time liable to prosecution
and punishment for such violation. The witness cannot assert
his privilege by reason of some fanciful excuse, for protection
against an imaginary danger, or to secure immunity to a third
person. ( 3 Wharton's Criminal Evidence, 11th ed., secs.
1135,1136.)

CONSTI_CONGRESS-03
21
It is the province of the trial judge to determine from all the
facts and circumstances of the case whether the witness is
justified in refusing to answer. (People vs. Gonzo, 23 N.E. [2d],
210 [Ill. App., 1939].) A witness is not relieved from answering
merely on his own declaration that an answer might incriminate
him, but rather it is for the trial judge to decide that question.
(Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.)
As against witness's inconsistent and unjustified claim to a
constitutional right, is his clear duty as a citizen to give frank,
sincere, and truthful testimony before a competent authority.
The state has the right to exact fulfillment of a citizen's
obligation, consistent of course with his right under the
Constitution. The witness in this case has been vociferous and
militant in claiming constitutional rights and privileges but
patently recreant to his duties and obligations to the
Government which protects those rights under the law. When a
specific right and a specific obligation conflict with each other,
and one is doubtful or uncertain while the other is clear and
imperative, the former must give way to the latter. The right to
life is one of the most sacred that the citizen may claim, and yet
the state may deprive him of it if he violates his corresponding
obligation to respect the life of others. As Mr. Justice Johnson
said in Anderson vs. Dunn: "The wretch beneath the gallows
may repine at the fate which awaits him, and yet it is not certain
that the laws under which he suffers were made for the
security." Paraphrasing and applying that pronouncement here,
the petitioner may not relish the restraint of his liberty pending
the fulfillment by him of his duty, but it is no less certain that
the laws under which his liberty is restrained were made for his
welfare.
From all the foregoing, it follows that the petition must be
denied, and it is so ordered, with costs.
Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.

G.R. No. L-6749

July 30, 1955

JEAN
L.
ARNAULT, petitioner-appellee,
vs.
EUSTAQUIO BALAGTAS, as Director of Prisons, respondentappellant.
Office of the Solicitor General Ambrosio Padilla, Assistant
Solicitor General Guillermo E. Torres and Solicitor Jaime De Los
Angeles
for
appellant.
Estanislao A. Fernandez and Roman B. Antonio for appellee.
LABRADOR, J.:
This an appeal from judgment of the Court of First Instance of
Rizal, Pasay City Branch, Honorable Jose F. Flores presiding,
in habeas corpus proceeding, declaring that the continued
detention and confinement of Jean L. Arnault in the new Bilibid
Prison, in pursuance of Senate Resolution No. 114, dated
November 8, 1952, is illegal, for the reason that the Senate of
the Philippines committed a clear abuse of discretion in
considering his answer naming one Jess D. Santos as the person
to whom delivery of the sum of P440,000 was made in the sale
of the Buenavista and Tambobong Estate, as a refusal to answer
the question directed by the Senate committee to him, and on
the further ground that said Jean L. Arnault, by his answer has
purged himself of contempt and is consequently entitled to be
released and discharged.
Petitioner-appellee was an attorney in-fact or Ernest H. Burt in
the negotiations for the purchase of the Buenavista and
Tambobong Estates by the Government of the Philippines. The
purchase was effected on October 21, 1949 and the price paid
for both estates was P5,000,000. On February 27, 1950, the
Senate of the Philippines adopted Resolution No. 8, whereby it
created a Special Committee to determine "whether the said
purchase was honest, valid and proper, and whether the price

CONSTI_CONGRESS-03
22
involved in the deal was fair and just, the parties responsible
therefor, any other facts the Committee may deem proper in the
premises." In the investigation conducted by the Committee in
pursuance of said Resolution, petitioner-appellee was asked to
whom a part of the purchase price, or P440,000, was delivered.
Petitioner-appellee refused to answer this question, whereupon
the Committee resolved on May 15, 1950, to order his
commitment to the custody of the Sergeant at-arms of the
Philippines Senate and imprisoned in the new Bilibid Prison in
Rizal until such time when he shall reveal to the Senate or to the
Special Committee the name of the person who received the
P440,000 and to answer questions pertinent thereto. In G.R. No.
L-3820, petitioner-appellee herein questioned the validity of the
confinement so ordered, by a petition forcertiorari filed in this
Court. He contended that the Senate of the Philippines has no
power to punish him for contempt for refusing to reveal the
name of the person to whom he delivered P440,000., that the
Legislature lacks authority to punish him for contempt beyond
the term of the legislative session, and that the question of the
Senate which he refused to answer is an incriminating question
which the appellee is not bound to answer. All the
abovementioned contentions were adversely passed upon by
the decision of this Court, so his petition for release was denied.
In the month of December, 1951, while still in confinement in
Bilibid, petitioner-appellee executed an affidavit, Exhibit A,
wherein he gives in detail the history of his life, the events
surrounding acquisition of the Buenavista and Tambobong
Estates by Gen. Burt, the supposed circumstances under which
he met one by the name of Jess D. Santos. Upon the
presentation of the said affidavit to the said Senate Special
Committee, the latter subjected petitioner to questioning
regarding the identity of Jess D. Santos, and after said
investigation and questioning the Committee adopted
Resolution No. 114 on November 8, 1952. This Resolution reads
as follows:

RESOLUTION APPROVING THE REPORT OF THE SPECIAL

COMMITTEE
TO
INVESTIGATE
THE
BUENAVISTA
AND
TAMBOBONG ESTATES DEAL, AND ORDERING THE DIRECTOR OF
PRISON TO CONTINUE HOLDING JEAN L. ARNAULT IN HIS
CUSTODY, AND IN CONFINEMENT AND DETENTION AT THE NEW
BILIBID PRISON AT MUNTINLUPA, RIZAL, UNTIL THE SAID
ARNAULT SHALL HAVE PURGED HIMSELF OF CONTEMPT OF THE
SENATE.
WHEREAS, on the 15th May 1950 the Senate of the Philippines,
transcending divisions of party and faction in the national
interest, adopted a Resolution ordering the detention and
confinement of Jean L. Arnault at the New Bilibid Prison in
Muntinlupa, Rizal, until he should have purged himself of
contempt of the Senate by revealing the person to whom he
gave the sum of P440,000 in connection with the Buenavista
and Tambobong Estates deal, and by answering other pertinent
questions in connection therewith;
WHEREAS, after considering the lengthy testimony offered by
the said Jean L. Arnault, and the report thereon rendered by the
Senate Special Committee on the said deal, the Senate holds
and finds that, despite numerous and generous opportunities
offered to him at his own instance and solicitation, the said Jean
L. Arnault has failed and refused, and continues to fail and
refuse, to reveal the person to whom he gave the said amount
of P440,000, and to answer other pertinent questions in
connection with the Buenavista and Tambobong estates deal;
WHEREAS, the Senate holds and finds that the situation of the
said Jean L. Arnault has not materially changed since he was
committed to prison for contempt of the Senate, and since the
Supreme Court of the Philippines, in a judgment long since
become final, upheld the power and authority of the Senate to
hold the said Jean L. Arnault in custody, detention, and
confinement, said power and authority having been held to be

CONSTI_CONGRESS-03
23
coercive rather than punitive, and fully justified until the said
Jean L. Arnault should have given the information which he had
withheld and continues contumaciously to withhold;
WHEREAS, the insolent and manifest untruthful statements
made by the said Jean L. Arnault on the occasions above
referred to constitute a continuing contempt of the Senate, and
an added affront to its dignity and authority, such that , were
they to be condoned or overlooked, the power and authority of
the Senate to conduct investigations would become futile and
ineffectual because they could be defied by any person of
sufficient stubbornness and malice;
WHEREAS, the Senate holds and finds that the identity of the
person to whom the said Jean L. Arnault gave the amount of
P440,000 in connection with the Buenavista and Tambobong
estates deal, and the further information which the Senate
requires and which the said Jean L. Arnault arrogantly and
contumaciously withholds, is required for the discharge of its
legislative functions, particularly so that adequate measures can
be taken to prevent the repetition of similar frauds upon the
Government and the People of the Philippines and to recover
said amount; and
WHEREAS, while not insensible to the appeal of understanding
and mercy, the Senate holds and finds that the said Jean L.
Arnault, by his insolent and contumacious defiance of the
legitimate authority of the Senate, is trifling with its
proceedings, renders himself unworthy of mercy, and, in the
language of the Supreme Court, is his own jailer, because he
could open the doors of his prison at any time by revealing the
truth; now therefore, be it
Resolved by the Senate of the Philippines, That the Senate hold
and find, as it hereby holds and finds, that Juan L. Arnault has
not purged himself of contempt of the Senate, and has in no

way altered his situation since he has committed to coercive not

punitive, imprisonment for such contempt on the 15th day of
May, 1950; and that Senate order, as it hereby orders, the
Director of Prisons to hold the said Jean L. Arnault, in his
custody, and in confinement and detention at the New Bilibid
Prison in Muntinlupa, Rizal, in coercive imprisonment, until he
should have purged himself of the aforesaid contempt to the
satisfaction, and until order to that effect, of the Senate of the
Philippines or of its Special Committee to investigate the
Buenavista and Tambobong Estates deal.
Adopted, November 8, 1952 . (Exhibit 0)
In his petition for the writ of habeas corpus in the Court of First
Instance, petitioner-appellee alleges: (1) That the acquisition by
the Government, through the Rural Progress Administration, of
the Buenavista and Tambobong Estates was not illegal nor
irregular nor scandalous nor malodorous, but was in fact
beneficial to the Government; (2) that the decision of this Court
in G. R. No. L-3820 declared that the Senate did not imprison
Arnault "beyond proper limitations", i.e., beyond the period
longer than arresto mayor, as this is the maximum penalty that
can be imposed under the provisions of Article 150 of the
Revised Penal Code; (3) that petitioner-appellee purged himself
of the contempt charges when he disclosed the fact that the one
to whom he gave the P440,000 was Jess D. Santos, and
submitted evidence in corroboration thereof; (4) that the Senate
is not justified in finding that the petitioner-appellee did tell the
truth when he mentioned Jess D. Santos as the person to whom
he gave the P440,000, specially on the basis of the evidence
submitted to it; (5) that the legislative purpose or intention, for
which the Senate ordered the confinement may be considered
as having been accomplished, and, therefore, there is no reason
for petitioner-appellee's continued confinement.

CONSTI_CONGRESS-03
24
The claim that the purchase of the Buenavista and Tambobong
Estates is beneficial to the government and is neither illegal nor
irregular is beside the point. To our minds, two questions are
decisive of this case. The first is: Did the Senate Special
Committee believe the statement of the petitioner-appellee that
the person to whom he gave the P440,000 is one by the name
of Jess D. Santos and if it did not, may the court review said
finding? And the second is: If the Senate did not believe the
statement, is the continued confinement and detention of the
petitioner-appellee, as ordered in Senate Resolution of
November 8, 1952, valid?
On the first question, the Senate found as a fact that petitioner
"has failed and refused, and continues to fail and refuse, to
reveal the person to whom he gave the amount of P440,000"
and that the situation of petitioner "has not materially charged
since he was committed to prison." In the first resolution of the
Senate Special Committee of May 15, 1950, it found that
petitioner "refused to reveal the name of the persons to whom
he gave the P440,000, as well as to answer other pertinent
questions related to said amount." It is clear and evident that
the Senate Committee did not believe petitioner's statement
that the person to whom he delivered the abovementioned
amount is one by the name of Jess D. Santos. The court a
quo, however, arrogating unto itself the power to review such
finding, held that the "petitioner has satisfactorily shown that
the person of Jess D. Santos actually and physically existed in
the human flesh," that the opinion or conclusion of the Senate
Committee is not borne to out by the evidence produced at the
investigation, that the Senate abused its discretion in making its
conclusion and that under these circumstances the only thing
that could in justice be done to petitioner is to order his release
and have his case endorsed to the prosecution branch of the
judicial department for investigation and prosecution as the
circumstances warrant.

There is an inherent fundamental error in the course of action

that the lower court followed. It assumed that courts have the
right to review the findings of legislative bodies in the exercise
of the prerogative of legislation, or interfere with their
proceedings or their discretion in what is known as the
legislative process.
The courts avoid encroachment upon the legislature in its
exercise of departmental discretion in the means used to
accomplish legitimate legislative ends. Since the legislature is
given a large discretion in reference to the means it may employ
to promote the general welfare, and alone may judge what
means are necessary and appropriate to accomplish an end
which the Constitution makes legitimate, the courts cannot
undertake to decide whether the means adopted by the
legislature are the only means or even the best means possible
to attain the end sought, for such course would best the
exercise of the police power of the state in the judicial
department. It has been said that the methods, regulations, and
restrictions to be imposed to attain results consistent with the
public welfare are purely of legislative cognizance, and the
determination of the legislature is final, except when so
arbitrary as to be violative of the constitutional rights of the
citizen. Furthermore, in the absence of a clear violation of a
constitutional inhibition, the courts should assume that
legislative discretion has been properly exercised. (11 Am. Jur.,
pp. 901-902).
These the judicial department of the government has no right or
power or authority to do, much in the same manner that the
legislative department may not invade the judicial realm in the
ascertainment of truth and in the application and interpretation
of the law, in what is known as the judicial process, because
that would be in direct conflict with the fundamental principle of
separation of powers established by the Constitution. The only
instances when judicial intervention may lawfully be invoke are

CONSTI_CONGRESS-03
25
when there has been a violation of a constitutional inhibition, or
when there has been an arbitrary exercise of the legislative
discretion.
Under our constitutional system, the powers of government are
distributed among three coordinate and substantially
independent organs: the legislative, the executive and the
judicial. Each of these departments of the government derives
its authority from the Constitution which, in turn, is the highest
expression of the popular will. Each has exclusive cognizance of
the matters within its jurisdiction, and is supreme within its own
sphere. (People of the Philippine Islands, et al. vs. Vera, et al 65
Phil., 56; See also Angara vs. Electoral Commission, 63 Phil.,
139)
All that the courts may do, in relation to the proceedings taken
against petitioner prior to his incarceration, is to determine if
the constitutional guarantee of due process has been accorded
him before his incarceration by legislative order, and this
because of the mandate of the Supreme Law of the land that no
man shall be deprived life, liberty or property without due
process of law. In the case at bar such right has fully been
extended the petitioner, he having been given the opportunity
to be heard personally and by counsel in all the proceedings
prior to the approval of the Resolution ordering his continued
confinement.
The second question involves in turn the following propositions:
Does the Philippine Senate have the power and authority to
pass its resolution ordering the continued confinement of the
petitioner? In the supposition that such power and authority
exist, was such power legitimately exercised after the petitioner
had given the name Jess D. Santos? A study of the text of the
resolution readily shows that the Senate found that the
petitioner-appellee did not disclose, by the mere giving of the
name Jess D. Santos, the identity of the person to whom the

sum of P440, 000 was delivered, and, in addition thereto that

petitioner withheld said identity arrogantly and contumaciously
in continued affront of the Senate's authority and dignity.
Although the resolution studiously avoids saying that the
confinement is a punishment, but merely seeks to coerce the
petitioner into telling the truth, the intention is evident that the
continuation of the imprisonment ordered is in fact partly
unitive. This may be inferred from the confining made in the
resolution that petitioner-appellee's acts were arrogant and
contumacious and constituted an affront to the Senate's dignity
and authority. In a way, therefore, the petitioner's assumption
that the imprisonment is punitive is justified by the language of
the resolution, wherefore the issue now before Us in whether the
Senate has the power to punish the contempt committed
against it under the circumstances of the case. This question is
thus squarely presented before Us for determination.
In the previous case of this same petitioner decided by this
Court, G. R. No. L-38201, Arnault vs. Nazareno, et al. (46 Off.
Gaz., No. 7, 3100), it was admitted and we had ruled that the
Senate has the authority to commit a witness if he refuses to
answer a question pertinent to a legislative inquiry, to compel
him to give the information, i.e., by reason of its coercive power,
not its punitive power. It is now contended by petitioner that if
he committed an offense of contempt or perjury against the
legislative body, because he refused to reveal the identity of the
person in accordance with the demands of the Senate
Committee, the legislature may not punish him, for the
punishment for his refusal should be sought through the
ordinary processes of the law, i. e., by the institution of a
criminal action in a court of justice.
American legislative bodies, after which our own is patterned,
have the power to punish for contempt if the contempt has had
the effect of obstructing the exercise by the legislature of, or
deterring or preventing it from exercising, its legitimate

CONSTI_CONGRESS-03
26
functions (Annotation to Jurney vs. MacCraken, 79 L. ed. 814).
While the power of the United States Senate to punish for
contempt was not clearly recognized in its earlier decision (See
Marshal vs. Gordon, 61 L. ed. 881), the Supreme Court of the
United States two decades ago held that such power and
authority exist. In the case of Jurney vs. MacCraken (294 U. S.
123, 79 L. ed. 802), the question before it was whether or not
the Senate could order the confinement of a private citizen
because of the destruction and removal by him of certain
papers required to be produced. The court said:
First, The main contention of MacCracken is that the so-called
power to punish for contempt may never be exerted, in the case
of a private citizen, solely qua punishment. The argument is that
the power may be used by the legislative body merely as a
means of removing an existing obstruction to the performance
of its duties; that the power to punish ceases as soon as the
obstruction has been removed, or its removal has become
impossible; and hence that there is no power to punish a
witness who, having been requested to produce papers,
destroys them after service of the subpoena. The contention
rests upon a misconception of the limitations upon the power of
the Houses of Congress to punish for contempt. It is true that
the scope of the power is narrow. No act is so punishable unless
it is of a nature to obstruct the performance of the duties of the
legislature. This may be lack of power, because, as in Kilbourn
vs. Thompson, 103 U. S. 168, 26 L. ed. 377, there was no
legislative duty to be performed; or because, as in Marshall vs.
Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A.
1917F, 279, Ann. Cas. 1918B, 371, the act complained of is
deemed not to be of a character to obstruct the legislative
process. But, where the offending act was of a nature to
obstruct the legislative process, the fact that the obstruction has
since been removed, or that its removal has become impossible
is without legal significance.

The power to punish a private citizen for a past and completed

act was exerted by Congress as early as 1795; and since then it
has been exercised on several occasions. It was asserted, before
the Revolution, by the colonial assemblies, in intimation of the
British House of Commons; and afterwards by the Continental
Congress and by state legislative bodies. In Anderson vs. Dunn,
6 Wheat, 204, 5 L. ed. 242, decided in 1821, it was held that the
House had power to punish a private citizen for an attempt to
bribe a member. No case has been found in which an exertion of
the power to punish for contempt has been successfully
challenged on the ground that, before punishment, the
offending act had been consummated or that the obstruction
suffered was irremediable. The statement in the opinion in
Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448,
L. R. A. 1917F. 279 Ann. Cas. 1918B, 371, supra, upon which
MacCracken relies, must be read in the light of the particular
facts. It was there recognized that the only jurisdictional test to
be applied by the court is the character of the offense; and that
the continuance of the obstruction, or the likelihood of its
repetition, are considerations for the discretion of the legislators
in meting out the punishment.
Here, we are concerned not with an extention of congressional
privilege, but with vindication of the established and essential
privilege of requiring the production of evidence. For this
purpose, the power to punish for a past contempt is an
appropriate means. Compare Ex parte Nugent (C. C.) 1 Brunner,
Col. Cas. 296, Fed. Cas No. 10375; Steward vs. Bleine, 1
MacArth. 453. The apprehensions expressed from time to time
in congressional debates, in opposition to particular exercise of
the contempt power concerned, not the power to punish, as
such, but the broad, undefined privileges which it was believed
might find sanction in that power. The ground for such fears has
since been effectively removed by the decisions of this Court
which hold that assertions of congressional privilege are subject
to judicial review. Melbourn vs. Thompson, 103 U. S. 168, 26 L.

CONSTI_CONGRESS-03
27
ed. 377, supra; and that the power to punish for contempt may
not be extended to slanderous attacks which presents no
immediate obstruction to legislative processes. Marshall vs.
Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L.R. A.
1917F, Ann. Cas. 1918B, 731 supra.
The principle that Congress or any of its bodies has the power to
punish recalcitrant witnesses is founded upon reason and policy.
Said power must be considered implied or incidental to the
exercise of legislative power, or necessary to effectuate said
power. How could a legislative body obtain the knowledge and
information on which to base intended legislation if it cannot
require and compel the disclosure of such knowledge and
information, if it is impotent to punish a defiance of its power
and authority? When the framers of the Constitution adopted
the principle of separation of powers, making each branch
supreme within the realm of its respective authority, it must
have intended each department's authority to be full and
complete, independently of the other's authority and power. And
how could the authority and power become complete if for
every act of refusal, every act of defiance, every act of
contumacy against it, the legislative body must resort to the
judicial department for the appropriate remedy, because it is
impotent by itself to punish or deal therewith, with the affronts
committed against its authority or dignity. The process by which
a contumacious witness is dealt with by the legislature in order
to enable it to exercise its legislative power or authority must be
distinguished from the judicial process by which offenders are
brought to the courts of justice for the meting of the punishment
which the criminal law imposes upon them. The former falls
exclusively within the legislative authority, the latter within the
domain of the courts; because the former is a necessary
concommitant of the legislative power or process, while the
latter has to do with the enforcement and application of the
criminal law.

We must also and that provided the contempt is related to the

exercise of the legislative power and is committed in the course
of the legislative process, the legislature's authority to deal with
the defiant and contumacious witness should be supreme, and
unless there is a manifest and absolute disregard of discretion
and a mere exertion of arbitrary power coming within the reach
of constitutional limitations, the exercise of the authority is not
subject to judicial interference. (Marshall vs. Gordon, supra).
The next question concerns the claim that the petitioner has
purged himself of contempt, because he says he has already
answered the original question which he had previously been
required to answer. In order that the petitioner may be
considered as having purged himself of the contempt, it is
necessary that he should have testified truthfully, disclosing the
real identity of the person subject of the inquiry. No person
guilty of contempt may purge himself by another lie or
falsehood; this would be repetition of the offense. It is true that
he gave a name, Jess D. Santos, as that of the person to whom
delivery of the sum of P440,000 was made. The Senate
Committee refused to believe, and justly, that is the real name
of the person whose identity is being the subject of the inquiry.
The Senate, therefore, held that the act of the petitioner
continued the original contempt, or reiterated it. Furthermore,
the act further interpreted as an affront to its dignity. It may well
be taken as insult to the intelligence of the honorable members
of the body that conducted the investigation. The act of
defiance and contempt could not have been clearer and more
evident. Certainly, the Senate resolution declaring the petitioner
in contempt may not be claimed as an exertion of an arbitrary
power.
One last contention of petitioner remains to be considered. It is
the claim that as the period of imprisonment has lasted for a
period which exceeded that provided by law punishment for
contempt, i. e., 6 months of arresto mayor, the petitioner is now

CONSTI_CONGRESS-03
28
entitled to be released. This claim is not justified by the record.
Petitioner was originally confined by Resolution No. 17 on May
15, 1950. On December 13, 1951, he executed his affidavit and
thereafter he was called to testify again before the Senate
Committee. The latter passed its Resolution No. 114 on
November 6, 1952, and he presented the petition for habeas
corpus in this case on March 3, 1953, i. e., five months after the
last resolution when the Senate found that the petitioner
committed another contempt. It is not true, therefore, that the
petitioner's punishment is beyond the full period prescribed in
the criminal law.
Besides, the last resolution of November 8, 1952 is also of a
coersive nature, in the sense that the Senate Committee still
demands and requires the disclosure of the fact which the
petitioner had obstinately refused to divulge. While the
Philippine Senate has not given up hope that the petitioner may
ultimately disclose the record, it is improper for the courts to
declare that the continued confinement is an abuse of the
legislative power and thereby interfere in the exercise of the
legislative discretion.
The judgment appealed from should be, as it hereby is,
reversed, and the petition for the issuance of the writ ofhabeas
corpus denied. The order of the court allowing the petitioner to
give bail is declared null and void and the petitioner is hereby
ordered to be recommitted to the custody of the respondent.
With cost against the petitioner-appellee.
G.R. No. 89914 November 20, 1991
JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE
MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA,
KURT BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO
CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE
CASTILLO, and CYNTHIA SABIDO LIMJAP, petitioners,

vs.
THE SENATE BLUE RIBBON COMMITTEE AND ITS
MEMBERS, represented by and through the CHAIRMAN,
HON.
WIGBERTO
TAADA,
respondents,
JOSE
S.
SANDEJAS, intervenor.
Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for
petitioners.
Balgos & Perez for intervening petitioner.
Eddie Tamondong and Antonio T. Tagaro for respondents.

PADILLA, J.:p
This is a petition for prohibition with prayer for the issuance of a
temporary restraining order and/or injuective relief, to enjoin the
respondent Senate Blue Ribbon committee from requiring the
petitioners to testify and produce evidence at its inquiry into the
alleged sale of the equity of Benjamin "Kokoy" Romualdez to the
Lopa Group in thirty-six (36) or thirty-nine (39) corporations.
On 30 July 1987, the Republic of the Philippines, represented by
the Presidential Commission on Good Government (PCGG),
assisted by the Solicitor General, filed with the Sandiganbayan
Civil Case No. 0035 (PCGG Case No. 35) entitled "Republic of the
Philippines vs. Benjamin "Kokoy" Romualdez, et al.", for
reconveyance, reversion, accounting, restitution and damages.
The complaint was amended several times by impleading new
defendants and/or amplifying the allegations therein. Under the
Second Amended Complaint, 1 the herein petitioners were
impleaded as party defendants.
The complaint insofar as pertinent to herein petitioners, as
defendants, alleges among others that:

CONSTI_CONGRESS-03
29
14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez
Romualdez, acting by themselves and/or in unlawful concert
with Defendants Ferdinand E. Marcos and Imelda R. Marcos, and
taking undue advantage of their relationship, influence and
connection with the latter Defendant spouses, engaged in
devices, schemes and strategems to unjuestly enrigh
themselves at the expense of Plaintiff and the Filipino people,
among others:
(a) Obatained, with the active collaboration of Defendants Sene
J. Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J.
Valdez, Cesar C. Zalamea and Francisco Tantuico, Atty. Jose
Bengzon, Jr. and his law partners, namely: Edilberto S. Narciso,
Jr., Jose Vicente E. Jimenez, Amando V. Faustino, Jr., and
Leonardo C. Cruz; Jose S. Sandejas and his fellow senior
managers of FMMC/PNI Holdings groups of companies such as
Leonardo Gamboa, Vicente T. Mills, Jr., Jose M. Mantecon,
Abelardo S. Termulo, Rex C. Drilon II and Kurt Bachmann, Jr.,
control of some of the biggest business enterprises in the
Philippines, such as the Manila Corporation (MERALCO), Benguet
Consolidated and the Philippine Commercial International Bank
(PCI Bank) by employing devious financial schemes and
techniques calculated to require the massive infusion and
hemorrhage of government funds with minimum or negligible
"cashout" from Defendant Benjamin Romualdez...
xxx xxx xxx
(m) manipulated, with the support, assistance and collaboration
of Philgurantee officials led by chairman Cesar E.A. Virata and
the Senior managers of FMMC/PNI Holdings, Inc. led by Jose S.
Sandejas, Jr., Jose M. Mantecom and Kurt S. Bachmann, Jr.,
among others, the formation of Erectors Holdings, Inc. without
infusing additional capital solely for the purpose of Erectors
Incorporated
with
Philguarantee
in
the
amount
of
P527,387,440.71 with insufficient securities/collaterals just to

enable Erectors Inc, to appear viable and to borrow more

capitals, so much so that its obligation with Philgurantee has
reached a total of more than P2 Billion as of June 30, 1987.
(n) at the onset of the present Administration and/or within the
week following the February 1986 People's Revolution, in
conspiracy with, supoort, assistance and collaboration of the
abovenamed lawyers of the Bengzon Law Offices, or specifically
Defendants Jose F.S. Bengzon, Jr., V.E. Jimenez, Amando V.
Faustino, Jr., and Edilberto S. Narciso, Jr., manipulated, shcemed,
and/or executed a series of devices intended to conceal and
place, and/or for the purpose of concealing and placing, beyond
the inquiry and jurisdiction of the Presidential Commission on
Good Government (PCGG) herein Defendant's individual and
collective funds, properties, and assets subject of and/or suited
int he instant Complaint.
(o) manuevered, with the technical know-how and legalitic
talents of the FMMC senior manager and some of the Bengzon
law partners, such as Attys. Jose F.S. Bengzon, Jr., Edilberto S.
Narciso, Jr., Amando V. Faustino, Jose Vicente E. Jimenez and
Leonardo C. Cruz, the purported sale of defendant Benjamin
Romualdez's interests in the (i) Professional Managers, (ii) A & E
International Corporation (A & E), (iii) First Manila Managerment
Corporation (FMMC), (iv) Philippine World Travel Inc. (PWTI) and
its subsidiaries consisting of 36 corporations in all, to PNI
Holdings, Inc. (wjose purported incorporations are all members
of Atty. Jose F.S. Bengzon's law firm) for only P5 million on March
3, 1986 or three days after the creation of the Presidential
Commission on Good Government on February 28, 1986, for the
sole purpose of deceiving and preempting the Government,
particularly the PCGG, and making it appear that defendant
Benjamin Romualdez had already divested himself of his
ownership of the same when in truth and in fact, his interests
are well intact and being protected by Atty. Jose F.S. Bengzon, Jr.
and some of his law partners, together with the FMMC senior

CONSTI_CONGRESS-03
30
managers who still control and run the affiars of said
corporations, and in order to entice the PCGG to approve the
said fictitious sale, the above-named defendants offered P20
million as "donation" to the Government;
(p) misused, with the connivance, support and technical
assitance of the Bengzon law firm represented by Atty. Jose F.S.
Bengzon, Jr. as legal counsel, together with defendants Cesar
Zalamea, Antonio Ozaeta, Mario D. Camacho amd Senen J.
Gabaldon as members of the Board of Directors of the Philippine
Commercial International bank (PCIB), the Meralco Pension Fund
(Fund, for short) in the amount of P25 million by cuasing it to be
invested in the PCIB and through the Bank's TSG, assigned to
PCI Development and PCI Equity at 50% each, the Fund's (a)
8,028.011 common shares in the Bank and (b) "Deposit in
Subscription" in the amount of P4,929.972.50 but of the agreed
consideration of P28 million for the said assignment, PCI
Development and PCI Equity were able to pay only P5,500.00
downpayment and the first amortization of P3,937,500.00 thus
prompting the Fund to rescind its assignment, and the
consequent reversion of the assigned brought the total
shareholding of the Fund to 11,470,555 voting shares or 36.8%
of the voting stock of the PCIB, and this development (which the
defendants themselves orchestrated or allowed to happen) was
used by them as an excuse for the unlawful dismantling or
cancellation of the Fund's 10 million shares for allegedly
exceeding the 30-percent ceiling prescribed by Section 12-B of
the General Banking Act, although they know for a fact that
what the law declares as unlawful and void ab initio are the
subscriptions in excess of the 30% ceiling "to the extent of the
excess over any of the ceilings prescribed ..." and not the whole
or entire stockholding which they allowed to stay for six years
(from June 30, 1980 to March 24, 1986);
(q) cleverly hid behind the veil of corporate entity, through the
use of the names and managerial expertise of the FMMC senior

manager and lawyers identified as Jose B. Sandejas, Leonardo

Gamboa, Vicente T. Mills, Abelardo S, Termulo, Edilberto S.
Narciso, Jr., Jose M. Mantecon, Rex C. Drilon II, Kurt Bachmann,
Jr. together with the legal talents of corporate lawyers, such as
Attys. Jose F.S. Bengzon, Jr., Jose V.E. Jimenez, Amando V.
Faustino, Jr., and Leonardo C. Cruz, the ill-gotten wealth of
Benjamin T. Romualdez including, among others, the 6,229,177
shares in PCIB registered in the names of Trans Middle East
Phils. Equities, Inc. and Edilberto S. Narciso, Jr. which they
refused to surrender to PCGG despite their disclosure as they
tried and continue to exert efforts in getting hold of the same as
well as the shares in Benguet registered in the names of Palm
Avenue Holdings and Palm Avenue Realty Development Corp.
purportedly to be applied as payment for the claim of P70
million of a "merger company of the First Manila Managerment
Corp. group" supposedly owned by them although the truth is
that all the said firms are still beneficially owned by defendants
Benjamin Romualdez.
xxx xxx xxx
On 28 September 1988, petitioner (as defendants) filed their
respective answers. 2 Meanwhile, from 2 to 6 August 1988,
conflicting reports on the disposition by the PCGG of the
"Romualdez corporations" were carried in various metropolitan
newspapers. Thus, one newspaper reported that the Romuladez
firms had not been sequestered because of the opposition of
certain PCGG officials who "had worked prviously as lawyers of
the Marcos crony firms." Another daily reported otherwise, while
others declared that on 3 March 1986, or shortly after the EDSA
February 1986 revolution, the Romualdez companies" were sold
for P5 million, without PCGG approval, to a holding company
controlled by Romualdez, and that Ricardo Lopa, the President's
brother-in-law, had effectively taken over the firms, even
pending negotiations for the purchase of the corporations, for

CONSTI_CONGRESS-03
31
the same price of P5 million which was reportedly way below the
fair value of their assets. 3
On 13 September 1988, the Senate Minority Floor Leader, Hon.
Juan Ponce Enrile delivered a speech "on a matter of personal
privilege" before the Senate on the alleged "take-over personal
privilege" before the Senate on the alleged "take-over of SOLOIL
Incorporated, the flaship of the First Manila Management of
Companies (FMMC) by Ricardo Lopa" and called upon "the
Senate to look into the possible violation of the law in the case,
particularly with regard to Republic Act No. 3019, the Anti-Graft
and Corrupt Practices Act." 4
On motion of Senator Orlando Mercado, the matter was referred
by the Senate to the Committee on Accountability of Public
Officers (Blue Ribbon Committee). 5 Thereafter, the Senate Blue
Ribbon Committee started its investigation on the matter.
Petitioners and Ricardo Lopa were subpoenaed by the
Committee to appear before it and testify on "what they know"
regarding the "sale of thirty-six (36) corporations belonging to
Benjamin "Kokoy" Romualdez."
At the hearing held on 23 May 1989, Ricardo Lopa declined to
testify on the ground that his testimony may "unduly prejudice"
the defendants in Civil Case No. 0035 before the
Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr. likewise refused
to testify involing his constitutional right to due process, and
averring that the publicity generated by respondents
Committee's inquiry could adversely affect his rights as well as
those of the other petitioners who are his co-defendants in Civil
Case No. 0035 before the Sandiganbayan.
The Senate Blue Ribbon Committee, thereupon, suspended its
inquiry and directed the petitioners to file their memorandum on
the constitutional issues raised, after which, it issued a
resolution 6 dated 5 June 1989 rejecting the petitioner's plea to

be excused from testifying, and the Committee voted to pursue

and continue its investigation of the matter. Senator Neptali
Gonzales dissented. 7
Claiming that the Senate Blue Ribbon Committee is poised to
subpoena them and required their attendance and testimony in
proceedings before the Committee, in excess of its jurisdiction
and legislative purpose, in clear and blatant disregard of their
constitutional rights, and to their grave and irreparable
damager, prejudice and injury, and that there is no appeal nor
any other plain, speedy and adequate remedy in the ordinary
course of law, the petitioners filed the present petition for
prohibition with a prayer for temporary restraning order and/or
injunctive relief.
Meanwhile, one of the defendants in Civil Case No. 0035 before
the Sandiganbayan, Jose S. Sandejas, filed with the Court of
motion for intervention, 8 which the Court granted in the
resolution 9 of 21 December 1989, and required the respondent
Senate Blue Ribbon Committee to comment on the petition in
intervention. In compliance, therewith, respondent Senate Blue
Ribbon Committee filed its comment10 thereon.
Before discussing the issues raised by petitioner and intervenor,
we will first tackle the jurisdictional question raised by the
respondent Committee.
In its comment, respondent Committee claims that this court
cannot properly inquire into the motives of the lawmakers in
conducting legislative investigations, much less cna it enjoin the
Congress or any its regular and special commitees like what
petitioners seek from making inquiries in aid of legislation,
under the doctrine of separation of powers, which obtaines in
our present system of government.
The contention is untenable.
Commission, 11 the Court held:

In Angara

vs.

Electoral

CONSTI_CONGRESS-03
32
The separation of powers is a fundamental principle in our
system of government. It obtains not hrough express provision
but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters wihtin its
jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and
balances to secure coordination in the workings of the various
departments of the government...
xxx xxx xxx
But in the main, the Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government.
The ovelapping and interlacing of funcstions and duties between
the several deaprtments, however, sometimes makes it hard to
say just where the political excitement, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely
obliterated, in cases of conflict, the judicial departments is the
only constitutional organ which can be called upon to determine
the proper allocation of powers between the several
departments and among the integral or constituent units
thereof.
xxx xxx xxx
The Constitution is a definition of the powers of government.
Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries; it
does not assert any superiority over the other departments; it
does not inr eality nullify or invalidate an act of the legislature,

but only asserts the solemn and sacred obligation assigned to it

by tyhe Constitution to determine conflicting claims of authority
under the Constitution and to established for the parties in an
actual controversy the rights which that instrument secures and
guarantess to them. This is in thruth all that is involved in what
is termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. Even the, this power of
judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is
in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More thatn that,
courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to
abide by the Constitution but also becuase the judiciary in the
determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of
the government.
The "allocation of constituional boundaries" is a task that this
Court must perfomr under the Constitution. Moreowever, as held
in a recent case, 12 "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has
been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by
no means does away with kthe applicability of the principle in
appropriate cases." 13
The Court is thus of the considered view that it has jurisdiction
over the present controversy for the purpose of determining the
scope and extent of the power of the Senate Blue Ribbon

CONSTI_CONGRESS-03
33
Committee to conduct inquiries into private affirs in purported
aid of legislation.
Coming to the specific issues raised in this case, petitioners
contend that (1) the Senate Blue Ribbon Committee's inquiry
has no valid legislative purpose, i.e., it is not done in aid of
legislation; (2) the sale or disposition of hte Romualdez
corporations is a "purely private transaction" which is beyond
the power of the Senate Blue Ribbon Committee to inquire into;
and (3) the inquiry violates their right to due process.
The 1987 Constition expressly recognizes the power of both
houses of Congress to conduct inquiries in aid of
legislation. 14 Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its
respective committee 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. 15
The power of both houses of Congress to conduct inquiries in aid
of legislation is not, therefore, absolute or unlimited. Its exercise
is circumscribed by the afore-quoted provision of the
Constitution. Thus, as provided therein, the investigation must
be "in aid of legislation in accordance with its duly published
rules of procedure" and that "the rights of persons appearing in
or affected by such inquiries shall be respected." It follows then
that the rights of persons under the Bill of Rights must be
respected, including the right to due process and the right not
to be compelled to testify against one's self.
The power to conduct formal inquiries or investigations in
specifically provided for in Sec. 1 of the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation. Such
inquiries may refer to the implementation or re-examination of
any law or in connection with any proposed legislation or the

formulation of future legislation. They may also extend to any

and all matters vested by the Constitution in Congress and/or in
the Seante alone.
As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the
inquiry, to be within the jurisdiction of the legislative body
making it, must be material or necessary to the exervise of a
power in it vested by the Constitution, such as to legislate or to
expel a member.
Under Sec. 4 of the aforementioned Rules, the Senate may refer
to any committee or committees any speech or resolution filed
by any Senator which in tis judgment requires an appropriate
inquiry in aid of legislation. In order therefore to ascertain the
character or nature of an inquiry, resort must be had to the
speech or resolution under which such an inquiry is proposed to
be made.
A perusal of the speech of Senator Enrile reveals that he
(Senator Enrile) made a statement which was published in
various newspapers on 2 September 1988 accusing Mr. Ricardo
"Baby" Lopa of "having taken over the FMMC Group of
Companies." As a consequence thereof, Mr. Lopa wrote a letter
to Senator Enrile on 4 September 1988 categorically denying
that he had "taken over " the FMMC Group of Companies; that
former PCGG Chairman Ramon Diaz himself categorically stated
in a telecast interview by Mr. Luis Beltran on Channel 7 on 31
August 1988 that there has been no takeover by him (Lopa);
and that theses repeated allegations of a "takeover" on his
(Lopa's) part of FMMC are baseless as they are malicious.
The Lopa reply prompted Senator Enrile, during the session of
the Senate on 13 September 1988, to avail of the privilege
hour, 17 so that he could repond to the said Lopa letter, and
also to vindicate his reputation as a Member of the Senate of
the Philippines, considering the claim of Mr. Lopa that his

CONSTI_CONGRESS-03
34
(Enrile's) charges that he (Lopa) had taken over the FMMC
Group of Companies are "baseless" and "malicious." Thus, in his
speech, 18 Senator Enrile said, among others, as follows:
Mr. President, I rise this afternnon on a matter of personal
privilege; the privilege being that I received, Mr. President, a
letter dated September 4, 1988, signed by Mr. ricardo A. Lopa,
a.k.a. or Baby Lopa, wherein he denied categorically that he has
taken over the First Manila Management Group of Companies
which includes SOLOIL Incorporated.
xxx xxxx xxx
In answer to Mr. Lopa, I will quote pertinent portions from an
Official Memorandum to the Presidential Commission of Good
Government written and signed by former Governor, now
Congressman Jose Ramirez, in his capacity as head of the PCGG
Task Force for Region VIII. In his memorandum dated July 3,
1986, then Governor Ramirez stated that when he and the
members of his task force sought to serve a sequestration order
on the management of SOLOIL in Tanauan, Leyte, management
officials assured him that relatives of the President of the
Philippines were personally discussing and representing SOLOIL
so that the order of sequestration would be lifted and that the
new owner was Mr. Ricardo A. Lopa.
I will quote the pertinent portions in the Ramire's memorandum.
The first paragraph of the memorandum reads as follows and I
quote, Mr. President:
"Our sequestration work of SOLOIL in Tanauan, Leyte was not
heeded by management because they said another
representation was being made to this Commission for the
ventual lifting of our sequestrationorder. They even assured us
that Mr. Ricardo Lopa and Peping Cojunangco were personally
discussing and representing SOLOIL, so the order of

sequestration will finally be lifted. While we attempted to carry

on our order, management refused to cooperate and
vehemently turned down our request to make available to us
the records of the company. In fact it was obviously clear that
they will meet us with forcethe moment we insist on doing
normally our assigned task. In view of the impending threat, and
to avoid any untoward incident we decided to temporarily
suspend our work until there is a more categorical stand of this
Commission in view of the seemingly influential represetation
being made by SOLOIL for us not to continue our work."
Another pertinent portion of the same memorandum is
paragraph five, which reads as follows, and I quote Mr.
President:
"The President, Mr. Gamboa, this is, I understand, the President
of SOLOIL, and the Plant Superintendent, Mr. Jimenez including
their chief counsel, Atty. Mandong Mendiola are now saying that
there have been divestment, and that the new owner is now Mr.
Ricardo Lopa who according to them, is the brother-in-law of the
President. They even went further by telling us that even Peping
Cojuangco who we know is the brother of her excellency is also
interested in the ownership and management of SOLOIL. When
he demanded for supporting papers which will indicate aforesaid
divestment, Messrs. Gamboa, Jimenez and Mendiola refused
vehemently to submit these papers to us, instead they said it
will be submitted directly to this Commission. To our mind their
continuous dropping of names is not good for this Commission
and even to the President if our dersire is to achieve
respectability and stability of the government."
The contents of the memorandum of then Governor and now
Congressman Jose Ramirez were personally confirmed by him in
a news interview last September 7, 1988.
xxx xxxx xxx

CONSTI_CONGRESS-03
35
Also relevant to this case, Mr. President, is a letter of Mr. Ricardo
Lopa
himself
in
August
11,
1988
issue
of
the
newspaper Malaya headlined
"On
Alleged
Takeover
of
Romualdez Firms."
Mr. Lopa states in the last paragraph of the published letter and
I quote him:
12. As of this writing, the sales agreement is under review by
the PCGG solely to determine the appropriate price. The sale of
these companies and our prior rigtht to requires them have
never been at issue.
Perhaps I could not make it any clearer to Mr. Lopa that I was
not really making baseless and malicious statements.
Senator Enrile concluded his privilege speech in the following
tenor:
Mr. President, it may be worthwhile for the Senate to look into
the possible violation of the law in the case particularly with
regard to Republic Act No. 3019, the Anti-Graft and Corrupt
Practices Act, Section 5 of which reads as follows and I quote:
Sec. 5. Prohibition on certain relatives. It shall be unlawful for
the spouse or for nay relative, by consanguinity or affinity,
within the third civil degree, of the President of the Philippines,
the Vice-President of the Philippines, the President of the
Senate, or the Speaker of the House of Representatives, to
intervene directly or indirectly, in any business, transaction,
contract or application with the Government: Provided, that this
section shall not apply to any person who prior to the
assumption of office of any of the above officials to whom he is
related, has been already dealing with the Government along
the same line of business, nor to any transaction, contract or
application filed by him for approval of which is not discretionary
on the part of the officials concerned but depends upon

compliance with requisites provided by law, nor to any act

lawfully performed in an official capacity or in the exercise of a
profession.
Mr. President, I have done duty to this Senate and to myself. I
leave it to this august Body to make its own conclusion.
Verily, the speech of Senator Enrile contained no suggestion of
contemplated legislation; he merely called upon the Senate to
look into a possible violation of Sec. 5 of RA No. 3019, otherwise
known as "The Anti-Graft and Corrupt Practices Act." I other
words, the purpose of the inquiry to be conducted by
respondent Blue Ribbon commitee was to find out whether or
not the relatives of President Aquino, particularly Mr. ricardo
Lopa, had violated the law in connection with the alleged sale of
the 36 or 39 corporations belonging to Benjamin "Kokoy"
Romualdez to the Lopaa Group. There appears to be, therefore,
no intended legislation involved.
The Court is also not impressed with the respondent
Committee's argument that the questioned inquiry is to be
conducted pursuant to Senate Resolution No. 212. The said
resolution was introduced by Senator Jose D. Lina in view of the
representaions made by leaders of school youth, community
groups and youth of non-governmental organizations to the
Senate Committee on Youth and Sports Development, to look
into the charges against the PCGG filed by three (3)
stockholders of Oriental petroleum, i.e., that it has adopted a
"get-rich-quick scheme" for its nominee-directors in a
sequestered oil exploration firm.The pertinent portion of Senate
Resolution No. 212 reads as follows:
xxx xxx xxx
WHEREAS, recent developments have shown that no less than
the Solicitor-General has stated that the PCGG Chairman and at
least three Commissioners should resign and that the agency

CONSTI_CONGRESS-03
36
should rid itself of "ineptness, incompetence and corruption"
and that the Sandiganbayan has reportedly ordered the PCGG to
answer charges filed by three stockholders of Oriental Petroleum
that it has adopted a "get-rich-quick scheme" for its nomineedirectors in a sequestered oil exploration firm;
WHEREAS, leaders of school youth, community groups and
youth
of
non-governmental
organization
had
made
representations to the Senate Committee on Youth and Sports
Development to look into the charges against the PCGG since
said agency is a symbol of the changes expected by the people
when the EDSA revolution took place and that the ill-gotten
wealth to be recovered will fund priority projects which will
benefit our people such as CARP, free education in the
elementary
and
secondary
levels
reforestration,
and
employment generation for rural and urban workers;
WHEREAS, the government and the present leadeship must
demonstrate in their public and private lives integrity, honor and
efficient management of government services lest our youth
become disillusioned and lose hope and return to an Idelogy and
form of government which is repugnant to true freedom,
democratic participation and human rights: Now, therefore, be
it.
Resolved by the Senate, That the activities of the Presidential
Commission on Good Government be investigated by the
appropriate Committee in connection with the implementation
of Section 26, Article XVIII of the Constitution. 19
Thus, the inquiry under Senate Resolution No. 212 is to look into
the charges against the PCGG filed by the three (3) stockholders
of Oriental Petroleum in connection with the implementation of
Section 26, Article XVIII of the Constitution.
It cannot, therefore, be said that the contemplated inquiry on
the subject of the privilege speech of Senator Juan Ponce Enrile,

i.e., the alleged sale of the 36 (or 39) corporations belonging to

Benjamin "Kokoy" Romualdez to the Lopa Group is to be
conducted pursuant to Senate Resolution No. 212 because,
firstly, Senator Enrile did not indict the PCGG, and, secondly,
neither Mr. Ricardo Lopa nor the herein petitioners are
connected with the government but are private citizens.
It appeals, therefore, that the contemplated inquiry by
respondent Committee is not really "in aid of legislation"
becuase it is not related to a purpose within the jurisdiction of
Congress, since the aim of the investigation is to find out
whether or not the ralatives of the President or Mr. Ricardo Lopa
had violated Section 5 RA No. 3019, the "Anti-Graft and Corrupt
Practices Act", a matter that appears more within the province
of the courts rather than of the legislature. Besides, the Court
may take judicial notice that Mr. Ricardo Lopa died during the
pendency of this case. In John T. Watkins vs. United States, 20 it
was held held:
... The power of congress to conduct investigations in inherent in
the legislative process. That power is broad. it encompasses
inquiries concerning the administration of existing laws as well
as proposed, or possibly needed statutes. It includes surveys of
defects in our social,economic, or political system for the
purpose of enabling Congress to remedy them. It comprehends
probes into departments of the Federal Government to expose
corruption, inefficiency or waste. But broad asis this power
ofinquiry, it is not unlimited. There is no general authority to
expose the private affairs ofindividuals without justification in
terms of the functions of congress. This was freely conceded by
Solicitor General in his argument in this case. Nor is the
Congress a law enforcement or trial agency. These are functions
of the executive and judicial departments of government. No
inquiry is an end in itself; it must be related to and in
furtherance of a legitimate task of Congress. Investigations
conducted soly for the personal aggrandizement of the

CONSTI_CONGRESS-03
37
investigators
or
to
"punish"
indefensible. (emphasis supplied)

those

investigated

are

exclusively the concern of the Judiciary. Neither can it suplant

the Executive in what exclusively belongs to the Executive. ...

It can not be overlooked that when respondent Committee

decide to conduct its investigation of the petitioners, the
complaint in Civil No. 0035 had already been filed with the
Sandiganbayan. A perusal of that complaint shows that one of
its principal causes of action against herein petitioners, as
defendants therein, is the alleged sale of the 36 (or 39)
corporations belonging to Benjamin "Kokoy" Romualdez. Since
the issues in said complaint had long been joined by the filing of
petitioner's respective answers thereto, the issue sought to be
investigated by the respondent Commitee is one over which
jurisdiction had been acquired by the Sandiganbayan. In short,
the issue had been pre-empted by that court. To allow the
respondent Committee to conduct its own investigation of an
issue already before the Sandiganbayan would not only pose the
possibility of conflicting judgments betweena legislative
commitee and a judicial tribunal, but if the Committee's
judgment were to be reached before that of the Sandiganbayan,
the possibility of its influence being made to bear on the
ultimate judgment of the Sandiganbayan can not be discounted.

Now to another matter. It has been held that "a congressional

committee's right to inquire is 'subject to all relevant limitations
placed by the Constitution on governmental action,' including
"'the relevant limitations of the Bill of Rights'." 22

In fine, for the rspondent Committee to probe and inquire into

the same justiciable controversy already before the
Sandiganbayan, would be an encroachment into the exclusive
domain of judicial jurisdiction that had much earlier set in.
In Baremblatt vs. United States, 21 it was held that:
Broad as it is, the power is not, howevern, without limitations.
Since congress may only investigate into those areas in which it
may potentially legislate or appropriate, it cannot inquire into
matters which are within the exclusive province of one of the
other branches of the government. Lacking the judicial power
given to the Judiciary, it cannot inquire into mattes that are

In another case
... the mere semblance of legislative purpose would not justify
an inquiry in the face of the Bill of Rights. The critical element is
the exeistence of, and the weight to be ascribed to, the interest
of the Congress in demanding disclosures from an unwilling
witness. We cannot simply assume, however, that every
congressional investigation is justified by a public need that
over-balances any private rights affected. To do so would be to
abdicate the responsibility placed by the Constitution upon the
judiciary to insure that the Congress does not unjustifiably
encroah upon an individual's right to privacy nor abridge his
liberty of speech, press, religion or assembly. 23
One of the basic rights guaranteed by the Constitution to an
individual is the right against self-incrimination. 24 Thir right
constured as the right to remain completely silent may be
availed of by the accused in a criminal case; but kit may be
invoked by other witnesses only as questions are asked of them.
This distinction was enunciated by the Court in Romeo Chavez
vs. The Honorable Court of Appeals, et al. 25 thus
Petitioner, as accused, occupies a different tier of protection
from an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as
each question requiring an incriminating answer is hot at him,
an accused may altother refuse to take the witness stand and
refuse to answer any all questions.

CONSTI_CONGRESS-03
38
Moreover, this right of the accused is extended to respondents
in administrative investigations but only if they partake of the
nature of a criminal proceeding or analogous to a criminal
proceeding. In Galman vs. Pamaran, 26the Court reiterated the
doctrine in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the
right of witnesses to invoke the right against self-incrimination
not only in criminal proceedings but also in all other types of
suit
It was held that:
We did not therein state that since he is not an accused and the
case is not a criminal case, Cabal cannot refuse to take the
witness stand and testify, and that he can invoke his right
against self-incrimination only when a question which tends to
elicit an answer that will incriminate him is propounded to him.
Clearly then, it is not the characeter of the suit involved but the
nature of the proceedings that controls. The privilege has
consistenly been held to extend to all proceedings sanctioned
by law and to all cases in which punishment is sought to be
visited upon a witness, whether a party or not.
We do not here modify these doctrines. If we presently rule that
petitioners may not be compelled by the respondent Committee
to appear, testify and produce evidenc before it, it is only
becuase we hold that the questioned inquiry is not in aid of
legislation and, if pursued, would be violative of the principle of
separation of powers between the legislative and the judicial
departments of government, ordained by the Constitution.
WHEREFORE, the petition is GRANTED. The Court holds that,
under the facts, including the circumtance that petitioners are
presently impleaded as defendants in a case before the
Sandiganbayan, which involves issues intimately related to the
subject of contemplated inquiry before the respondet
Committee, the respondent Senate Blue Ribbon Committee is

hereby enjoined from compelling the petitioners and intervenor

to testify before it and produce evidence at the said inquiry.
SO ORDERED.
G.R. No. 169777*

April 20, 2006

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,
vs.
EDUARDO R. ERMITA, in his capacity as Executive
Secretary and alter-ego of President Gloria MacapagalArroyo, and anyone acting in his stead and in behalf of
the President of the Philippines,Respondents.
x-------------------------x
G.R. No. 169659

April 20, 2006

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,
vs.

CONSTI_CONGRESS-03
39
EDUARDO ERMITA, in his capacity as Executive Secretary
and
alter-ego
of
President
Gloria
MacapagalArroyo, Respondent.
x-------------------------x
G.R. No. 169660

April 20, 2006

FRANCISCO
I.
CHAVEZ, Petitioner,
vs.
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
G.R. No. 169667

April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary, Respondent.
x-------------------------x
G.R. No. 169834

April 20, 2006

PDPLABAN, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x
G.R. No. 171246

April 20, 2006

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,
vs.
HON.
EXECUTIVE
SECRETARY
EDUARDO
R.
ERMITA, Respondent.
DECISION
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 coequal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is

CONSTI_CONGRESS-03
40
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 invitations2 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 letter3 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
letter4 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

CONSTI_CONGRESS-03
41
that they may better enlighten the Senate Committee on its
investigation."

SECTION. 2. Nature, Scope and Coverage of Executive Privilege.

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."

(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.

Senate President Drilon likewise received on September 28,

2005 a letter6 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.

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);

CONSTI_CONGRESS-03
42
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.
(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
letter8 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 Arroyos 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

CONSTI_CONGRESS-03
43
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 nongovernmental
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 Senates 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

CONSTI_CONGRESS-03
44
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 letter14 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 letter15 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

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 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 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.

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. Gonzalez20 and Department of
Interior and Local Government Undersecretary Marius P.
Corpus21 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,

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

CONSTI_CONGRESS-03
45
(c) the Wiretapping activity of the
investigation on the Venable contract.22

ISAFP;

and

(d)

the

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their
memoranda on March 7, 2006, while those in G.R. No.
16966725 and G.R. No. 16983426 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 manifestation28 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
constitutional provisions:

E.O.

464

violates

the

following

Art. VI, Sec. 2130

Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16

36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other
hand, pray in their consolidated memorandum38 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 Courts 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

CONSTI_CONGRESS-03
46
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 Munas 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 Courts ruling in National Economic Protectionism
Association v. Ongpin42 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

CONSTI_CONGRESS-03
47
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-Labans 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 Presidents
consent was based on its role as Commander-in-Chief of the
Armed Forces, not on E.O. 464.

CONSTI_CONGRESS-03
48
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.

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)

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.

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.

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:

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 Senates 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;

CONSTI_CONGRESS-03
49
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 Courts 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
Houses 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

CONSTI_CONGRESS-03
50
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 informers privilege, or the
privilege of the Government not to disclose the identity of
persons who furnish information of violations of law to officers
charged with the enforcement of that law. Finally, a generic
privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated. 68
Tribes 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 Blacks Law Dictionary on "executive privilege" is
similarly instructive regarding the scope of the doctrine.

CONSTI_CONGRESS-03
51
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 Nixons 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
Presidents 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
Presidents powers. The Court, nonetheless, rejected the
Presidents 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 Washingtons 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 Presidents
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. 77Almonte 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

CONSTI_CONGRESS-03
52
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.
79

In Chavez v. PCGG, 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--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

CONSTI_CONGRESS-03
53
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-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
Committee on Style] We now go, Mr. Presiding Officer, to
Article on Legislative and may I request the chairperson of
Legislative Department, Commissioner Davide, to give
reaction.

the
the
the
his

CONSTI_CONGRESS-03
54
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
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 Davides 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 Maambongs
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

CONSTI_CONGRESS-03
55
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

CONSTI_CONGRESS-03
56
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.

CONSTI_CONGRESS-03
57
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
officials 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

CONSTI_CONGRESS-03
58
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 Ermitas 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 closeddoor 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

CONSTI_CONGRESS-03
59
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. Vasquez94 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
96
privilege. (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
claimants 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 claimants 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 claimants
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 America100 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

CONSTI_CONGRESS-03
60
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 Courts 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

CONSTI_CONGRESS-03
61
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
Presidents authority and has the effect of prohibiting the official
from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the
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
106
responsibilities. 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."

CONSTI_CONGRESS-03
62
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.

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:

Right to Information

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 peoples
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)

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

The impairment of the right of the people to information as a

consequence of E.O. 464 is, therefore, in the sense explained
above, just as direct as its violation of the legislatures power of
inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch,
it does not follow that the same is exempt from the need for
publication. On the need for publishing even those statutes that
do not directly apply to people in general, Taada 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

CONSTI_CONGRESS-03
63
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 accomplishwas 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 and Respect for the Rights of Public Officials Appearing
in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes," are declared VOID.
Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
CONCHITA CARPIO MORALES
G.R. No. 174340

October 17, 2006

IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT

OF HABEAS CORPUS OF CAMILO L. SABIO,petitioner,
J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator,
vs.
HONORABLE SENATOR RICHARD GORDON, in his capacity
as Chairman, and the HONORABLE MEMBERS OF THE
COMMITTEE ON GOVERNMENT CORPORATIONS AND
PUBLIC ENTERPRISES and THE COMMITTEE ON PUBLIC
SERVICES of the Senate, HONORABLE SENATOR JUAN
PONCE-ENRILE, in his official capacity as Member,
HONORABLE MANUEL VILLAR, Senate President, SENATE
SERGEANT-AT-ARMS,
and
the
SENATE
OF
THE
PHILIPPINES, respondents.

CONSTI_CONGRESS-03
64
x --------------------------------------------------------------------------- x
G.R. No. 174318

October 17, 2006

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT

(PCGG) and CAMILO L. SABIO, Chairman, NARCISO S.
NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and
NICASIO A. CONTI, Commissioners, MANUEL ANDAL and
JULIO JALANDONI, PCGG nominees to Philcomsat
Holdings
Corporation,petitioners,
vs.
RICHARD GORDON, in his capacity as Chairman, and
MEMBERS OF THE COMMITTEE ON GOVERNMENT
CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS OF
THE COMMITTEE ON PUBLIC SERVICES, SENATOR JUAN
PONCE-ENRILE, in his capacity as member of both said
Committees, MANUEL VILLAR, Senate President, THE
SENATE SERGEANT-AT-ARMS, and SENATE OF THE
PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174177

October 17, 2006

PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G.

BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN JOSE,
DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA KRISTINA
ALOBBA,
and
JOHNNY
TAN, petitioners,
vs.
SENATE COMMITTEE ON GOVERNMENT CORPORATIONS
and PUBLIC ENTERPRISES, its MEMBERS and CHAIRMAN,
the HONORABLE SENATOR RICHARD GORDON and
SENATE COMMITTEE ON PUBLIC SERVICES, its Members
and Chairman, the HONORABLE SENATOR JOKER P.
ARROYO, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:
Two decades ago, on February 28, 1986, former President
Corazon C. Aquino installed her regime by issuing Executive
Order (E.O.) No. 1,1 creating the Presidential Commission on
Good Government (PCGG). She entrusted upon this Commission
the herculean task of recovering the ill-gotten wealth
accumulated by the deposed President Ferdinand E. Marcos, his
family, relatives, subordinates and close associates.2 Section 4
(b) of E.O. No. 1 provides that: "No member or staff of the
Commission shall be required to testify or produce
evidence in any judicial, legislative or administrative
proceeding concerning matters within its official
cognizance." Apparently, the purpose is to ensure PCGG's
unhampered performance of its task.3
Today, the constitutionality of Section 4(b) is being questioned
on the ground that it tramples upon the Senate's power to
conduct legislative inquiry under Article VI, Section 21 of the
1987 Constitution, which reads:
The Senate or the House of Representatives or any of
respective committees may conduct inquiries in aid
legislation in accordance with its duly published rules
procedure. The rights of persons appearing in or affected
such inquiries shall be respected.
The facts are undisputed.

its
of
of
by

CONSTI_CONGRESS-03
65
On February 20, 2006, Senator Miriam Defensor Santiago
introduced Philippine Senate Resolution No. 455 (Senate Res.
No. 455),4 "directing an inquiry in aid of legislation on the
anomalous losses incurred by the Philippines Overseas
Telecommunications
Corporation
(POTC),
Philippine
Communications Satellite Corporation (PHILCOMSAT), and
PHILCOMSAT Holdings Corporation (PHC) due to the alleged
improprieties in their operations by their respective Board of
Directors."
The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the representation and
entertainment expense of the PHC skyrocketed to P4.3 million,
as compared to the previous year's mere P106 thousand;
WHEREAS, some board members established wholly owned PHC
subsidiary called Telecommunications Center, Inc. (TCI), where
PHC funds are allegedly siphoned; in 18 months, over P73
million had been allegedly advanced to TCI without any
accountability report given to PHC and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12 February 2002 issue
reported that the executive committee of Philcomsat has
precipitately released P265 million and granted P125 million
loan to a relative of an executive committee member; to date
there have been no payments given, subjecting the company to
an estimated interest income loss of P11.25 million in 2004;
WHEREAS, there is an urgent need to protect the interest of the
Republic of the Philippines in the PHC, PHILCOMSAT, and POTC
from any anomalous transaction, and to conserve or salvage
any remaining value of the government's equity position in
these corporations from any abuses of power done by their
respective board of directors;

WHEREFORE, be it resolved that the proper Senate

Committee shall conduct an inquiry in aid of legislation,
on the anomalous losses incurred by the Philippine
Overseas
Telecommunications
Corporation
(POTC),
Philippine
Communications
Satellite
Corporation
(PHILCOMSAT), and Philcomsat Holdings Corporations
(PHC) due to the alleged improprieties in the operations
by their respective board of directors.
Adopted.
(Sgd) MIRIAM DEFENSOR SANTIAGO
On the same date, February 20, 2006, Senate Res. No. 455 was
submitted to the Senate and referred to theCommittee on
Accountability
of
Public
Officers
and
Investigations and Committee on Public Services. However, on
March 28, 2006, upon motion of Senator Francis N. Pangilinan, it
was transferred to the Committee on Government Corporations
and Public Enterprises.5
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the
authority of Senator Richard J. Gordon, wrote Chairman Camilo
L. Sabio of the PCGG, one of the herein petitioners, inviting him
to be one of the resource persons in the public meeting jointly
conducted
by
the Committee
on
Government
Corporations and Public Enterprises and Committee on Public
Services. The purpose of the public meeting was to deliberate
on Senate Res. No. 455.6
On May 9, 2006, Chairman Sabio declined the invitation because
of prior commitment.7 At the same time, he invoked Section
4(b) of E.O. No. 1 earlier quoted.
On August 10, 2006, Senator Gordon issued a Subpoena Ad
Testificandum,8 approved by Senate President Manuel Villar,
requiring Chairman Sabio and PCGG Commissioners Ricardo

CONSTI_CONGRESS-03
66
Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to
appear in the public hearing scheduled on August 23, 2006 and
testify on what they know relative to the matters specified in
Senate Res. No. 455. Similar subpoenae were issued against the
directors and officers of Philcomsat Holdings Corporation,
namely: Benito V. Araneta, Philip J. Brodett, Enrique L. Locsin,
Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J.
Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma Kristina
Alloba and Johnny Tan.9
Again, Chairman Sabio refused to appear. In his letter to Senator
Gordon dated August 18, 2006, he reiterated his earlier position,
invoking Section 4(b) of E.O. No. 1. On the other hand, the
directors and officers of Philcomsat Holdings Corporation relied
on the position paper they previously filed, which raised issues
on the propriety of legislative inquiry.
Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the
authority of Senator Gordon, sent another notice 10 to Chairman
Sabio requiring him to appear and testify on the same subject
matter set on September 6, 2006. The notice was issued "under
the same authority of the Subpoena Ad Testificandum previously
served upon (him) last 16 August 2006."
Once more, Chairman Sabio did not comply with the notice. He
sent a letter11 dated September 4, 2006 to Senator Gordon
reiterating his reason for declining to appear in the public
hearing.
This prompted Senator Gordon to issue an Order dated
September
7,
2006
requiring
Chairman
Sabio
and
Commissioners Abcede, Conti, Javier and Nario to show cause
why they should not be cited in contempt of the Senate. On
September 11, 2006, they submitted to the Senate their
Compliance and Explanation,12 which partly reads:

Doubtless, there are laudable intentions of the subject

inquiry in aid of legislation. But the rule of law requires that
even the best intentions must be carried out within the
parameters of the Constitution and the law. Verily, laudable
purposes must be carried out by legal methods. (Brillantes, Jr.,
et al. v. Commission on Elections, En Banc [G.R. No. 163193,
June 15, 2004])
On this score, Section 4(b) of E.O. No. 1 should not be ignored as
it explicitly provides:
No member or staff of the Commission shall be required
to testify or produce evidence in any judicial legislative
or administrative proceeding concerning matters within
its official cognizance.
With all due respect, Section 4(b) of E.O. No. 1 constitutes a
limitation on the power of legislative inquiry, and a recognition
by the State of the need to provide protection to the PCGG in
order to ensure the unhampered performance of its duties under
its charter. E.O. No. 1 is a law, Section 4(b) of which had not
been amended, repealed or revised in any way.
To say the least, it would require both Houses of Congress and
Presidential fiat to amend or repeal the provision in controversy.
Until then, it stands to be respected as part of the legal system
in this jurisdiction. (As held in People v. Veneracion, G.R. Nos.
119987-88, October 12, 1995: Obedience to the rule of law
forms the bedrock of our system of justice. If judges, under the
guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required
by law to exercise the duties of their office, then law becomes
meaningless. A government of laws, not of men excludes the
exercise of broad discretionary powers by those acting under its
authority. Under this system, judges are guided by the Rule of
Law, and ought to 'protect and enforce it without fear or favor,'

CONSTI_CONGRESS-03
67
4 [Act of Athens (1955)] resist encroachments by governments,
political parties, or even the interference of their own personal
beliefs.)
xxxxxx
Relevantly, Chairman Sabio's letter to Sen. Gordon dated August
19, 2006 pointed out that the anomalous transactions referred
to in the P.S. Resolution No. 455 are subject of pending cases
before the regular courts, the Sandiganbayan and the Supreme
Court (Pending cases include: a. Samuel Divina v. Manuel Nieto,
Jr., et al., CA-G.R. No. 89102; b. Philippine Communications
Satellite Corporation v. Manuel Nieto, et al.; c. Philippine
Communications Satellite Corporation v. Manuel D. Andal, Civil
Case No. 06-095, RTC, Branch 61, Makati City; d. Philippine
Communications Satellite Corporation v. PHILCOMSAT Holdings
Corporation, et al., Civil Case No. 04-1049) for which reason
they may not be able to testify thereon under the principle
of sub judice. The laudable objectives of the PCGG's functions,
recognized in several cases decided by the Supreme Court, of
the PCGG will be put to naught if its recovery efforts will be
unduly impeded by a legislative investigation of cases that are
already pending before the Sandiganbayan and trial courts.
In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767,
784 [1991]) the Honorable Supreme Court held:
"[T]he issues sought to be investigated by the respondent
Committee is one over which jurisdiction had been acquired by
the Sandiganbayan. In short, the issue has been pre-empted by
that court. To allow the respondent Committee to conduct its
own investigation of an issue already before the Sandigabayan
would not only pose the possibility of conflicting judgments
between a legislative committee and a judicial tribunal, but if
the Committee's judgment were to be reached before that of the
Sandiganbayan, the possibility of its influence being made to

bear on the ultimate judgment of the Sandiganbayan can not be

discounted.
xxxxxx
IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that
the Commission decided not to attend the Senate inquiry to
testify and produce evidence thereat.
Unconvinced with the above Compliance and Explanation,
the Committee on Government Corporations and Public
Enterprises and the Committee on Public Services issued an
Order13 directing Major General Jose Balajadia (Ret.), Senate
Sergeant-At-Arms, to place Chairman Sabio and his
Commissioners under arrest for contempt of the Senate. The
Order bears the approval of Senate President Villar and
the majority of the Committees' members.
On September 12, 2006, at around 10:45 a.m., Major General
Balajadia arrested Chairman Sabio in his office at IRC Building,
No. 82 EDSA, Mandaluyong City and brought him to the Senate
premises where he was detained.
Hence, Chairman Sabio filed with this Court a petition
for habeas
corpus against
the
Senate Committee
on
Government
Corporations
and
Public
Enterprises and Committee on Public Services, their Chairmen,
Senators Richard Gordon and Joker P. Arroyo and Members. The
case was docketed as G.R. No. 174340.
Chairman Sabio, Commissioners Abcede, Conti, Nario, and
Javier, and the PCGG's nominees to Philcomsat Holdings
Corporation, Manuel Andal and Julio Jalandoni, likewise filed a
petition for certiorari and prohibition against the same
respondents, and also against Senate President Manuel Villar,
Senator Juan Ponce Enrile, the Sergeant-at-Arms, and the entire
Senate. The case was docketed as G.R. No. 174318.

CONSTI_CONGRESS-03
68
Meanwhile, Philcomsat Holdings Corporation and its officers and
directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V.
San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina
Alobba and Johnny Tan filed a petition for certiorari and
prohibition against the Senate Committees on Government
Corporations and Public Enterprises and Public Services, their
Chairmen, Senators Gordon and Arroyo, and Members. The case
was docketed as G.R. No. 174177.
In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for
certiorari and prohibition) Chairman Sabio, Commissioners
Abcede, Conti, Nario, and Javier; and the PCGG's nominees
Andal and Jalandoni alleged: first, respondent Senate
Committees disregarded Section 4(b) of E.O. No. 1 without any
justifiable reason; second, the inquiries conducted by
respondent
Senate
Committees
are
not
in
aid
of
legislation; third, the inquiries were conducted in the absence of
duly published Senate Rules of Procedure Governing Inquiries in
Aid of Legislation; and fourth, respondent Senate Committees
are not vested with the power of contempt.
In G.R. No. 174177, petitioners Philcomsat Holdings Corporation
and its directors and officers alleged: first, respondent Senate
Committees have no jurisdiction over the subject matter stated
in Senate Res. No. 455;second, the same inquiry is not in
accordance with the Senate's Rules of Procedure Governing
Inquiries in Aid of Legislation; third, the subpoenae against the
individual petitioners are void for having been issued without
authority; fourth, the conduct of legislative inquiry pursuant to
Senate Res. No. 455 constitutes undue encroachment by
respondents into justiciable controversies over which several
courts and tribunals have already acquired jurisdiction; and fifth,
the subpoenae violated petitioners' rights to privacy and against
self-incrimination.

In their Consolidated Comment, the above-named respondents

countered: first, the issues raised in the petitions involve
political
questions
over
which
this
Court
has
no
jurisdiction; second, Section 4(b) has been repealed by the
Constitution; third, respondent Senate Committees are vested
with contempt power; fourth, Senate's Rules of Procedure
Governing Inquiries in Aid of Legislation have been duly
published; fifth, respondents have not violated any civil right of
the individual petitioners, such as their (a) right to privacy;
and (b) right against self-incrimination; and sixth, the inquiry
does not constitute undue encroachment into justiciable
controversies.
During the oral arguments held on September 21, 2006, the
parties were directed to submit simultaneously their respective
memoranda within a non-extendible period of fifteen (15) days
from date. In the meantime, per agreement of the parties,
petitioner Chairman Sabio was allowed to go home. Thus, his
petition for habeas corpus has become moot. The parties also
agreed that the service of the arrest warrants issued against all
petitioners and the proceedings before the respondent Senate
Committees are suspended during the pendency of the instant
cases.14
Crucial to the resolution of the present petitions is the
fundamental issue of whether Section 4(b) of E.O. No. 1 is
repealed by the 1987 Constitution. On this lone issue hinges
the merit of the contention of Chairman Sabio and his
Commissioners that their refusal to appear before respondent
Senate Committees is justified. With the resolution of this issue,
all the other issues raised by the parties have become
inconsequential.
Perched on one arm of the scale of justice is Article VI, Section
21 of the 1987 Constitution granting respondent Senate
Committees the power of legislative inquiry. It reads:

CONSTI_CONGRESS-03
69
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.
On the other arm of the scale is Section 4(b) of E.O. No.1
limiting such power of legislative inquiry by exempting all PCGG
members or staff from testifying in any judicial, legislative or
administrative proceeding, thus:
No member or staff of the Commission shall be required
to testify or produce evidence in any judicial, legislative
or administrative proceeding concerning matters within
its official cognizance.
To determine whether there exists a clear and unequivocal
repugnancy between the two quoted provisions that warrants a
declaration that Section 4(b) has been repealed by the 1987
Constitution, a brief consideration of the Congress' power of
inquiry is imperative.
The Congress' power of inquiry has been recognized in foreign
jurisdictions long before it reached our shores through McGrain
v. Daugherty,15 cited in Arnault v. Nazareno.16 In those earlier
days, American courts considered the power of inquiry
as inherent in the power to legislate. The 1864 case of Briggs
v. MacKellar17explains the breath and basis of the power, thus:
Where no constitutional limitation or restriction exists, it is
competent for either of the two bodies composing the
legislature to do, in their separate capacity, whatever may be
essential to enable them to legislate.It is well-established
principle of this parliamentary law, that either house may
institute any investigationhaving reference to its own
organization, the conduct or qualification of its members, its
proceedings, rights, or privileges or any matter affecting the

public interest upon which it may be important that it

should have exact information, and in respect to which it
would be competent for it to legislate. The right to pass
laws, necessarily implies the right to obtain information
upon any matter which may become the subject of a law.
It is essential to the full and intelligent exercise of the
legislative function.In American legislatures the
investigation of public matters before committees,
preliminary to legislation, or with the view of advising
the house appointing the committee is, as a
parliamentary usage, well established as it is in
England, and the right of either house to compel witnesses to
appear and testify before its committee, and to punish for
disobedience has been frequently enforced.The right of
inquiry, I think, extends to other matters, in respect to which it
may be necessary, or may be deemed advisable to apply for
legislative aid.
Remarkably, in Arnault, this Court adhered to a similar theory.
Citing McGrain, it recognized that the power of inquiry is "an
essential and appropriate auxiliary to the legislative
function," thus:
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
legislation body does not itself possess the requisite

CONSTI_CONGRESS-03
70
information which is not infrequently true recourse
must be had to others who possess it."
Dispelling any doubt as to the Philippine Congress' power of
inquiry, provisions on such power made their maiden
appearance in Article VIII, Section 12 of the 1973
Constitution.18 Then came the 1987 Constitution incorporating
the present Article VI, Section 12. What was therefore implicit
under the 1935 Constitution, as influenced by American
jurisprudence, became explicit under the 1973 and 1987
Constitutions.19
Notably, the 1987 Constitution recognizes the power of
investigation, not just of Congress, but also of "any of its
committee." This is significant because it constitutes a direct
conferral of investigatory power upon the committees and it
means that the mechanisms which the Houses can take in order
to effectively perform its investigative function are also
available to the committees.20
It can be said that the Congress' power of inquiry has gained
more solid existence and expansive construal. The Court's high
regard to such power is rendered more evident in Senate v.
Ermita,21 where it categorically ruled that "the power of
inquiry is broad enough to cover officials of the
executive branch." Verily, the Court reinforced the doctrine in
Arnault that "the operation of government, being a
legitimate subject for legislation, is a proper subject for
investigation" and that "the power of inquiry is coextensive with the power to legislate."
Considering these jurisprudential instructions, we find Section
4(b) directly repugnant with Article VI, Section 21. Section
4(b) exempts the PCGG members and staff from the
Congress' power of inquiry. This cannot be countenanced.
Nowhere in the Constitution is any provision granting such

exemption. The Congress' power of inquiry, being broad,

encompasses everything that concerns the administration of
existing laws as well as proposed or possibly needed
statutes.22 It even extends "to government agencies created
by Congress and officers whose positions are within the
power of Congress to regulate or even abolish."23 PCGG
belongs to this class.
Certainly, a mere provision of law cannot pose a limitation to the
broad power of Congress, in the absence of any constitutional
basis.
Furthermore, Section 4(b) is also inconsistent with Article XI,
Section 1 of the Constitution stating that: "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."
The provision presupposes that since an incumbent of a public
office is invested with certain powers and charged with certain
duties pertinent to sovereignty, the powers so delegated to the
officer are held in trust for the people and are to be
exercised in behalf of the government or of all citizens
who may need the intervention of the officers. Such trust
extends to all matters within the range of duties
pertaining to the office. In other words, public officers
are but the servants of the people, and not their rulers.24
Section 4(b), being in the nature of an immunity, is
inconsistent with the principle of public accountability. It
places the PCGG members and staff beyond the reach of courts,
Congress and other administrative bodies. Instead of
encouraging public accountability, the same provision only
institutionalizes
irresponsibility
and
non-accountability.
In Presidential
Commission
on
Good
Government
v.

CONSTI_CONGRESS-03
71
Pea,25 Justice Florentino P. Feliciano characterized as "obiter"
the portion of the majority opinion barring, on the basis of
Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed
against the PCGG and its Commissioners. He eloquently opined:
The above underscored portions are, it is respectfully submitted,
clearly obiter. It is important to make clear that the Court
is not here interpreting, much less upholding as valid
and constitutional, the literal terms of Section 4 (a), (b)
of Executive Order No.1. If Section 4 (a) were given its literal
import as immunizing the PCGG or any member thereof from
civil liability "for anything done or omitted in the discharge of
the task contemplated by this Order," the constitutionality of
Section 4 (a) would, in my submission, be open to most serious
doubt. For so viewed, Section 4 (a) would institutionalize the
irresponsibility and non-accountability of members and staff of
the PCGG, a notion that is clearly repugnant to both the 1973
and 1987 Constitution and a privileged status not claimed by
any other official of the Republic under the 1987 Constitution. x
x x.
xxxxxx
It would seem constitutionally offensive to suppose that
a member or staff member of the PCGG could not be
required to testify before the Sandiganbayan or that
such members were exempted from complying with
orders of this Court.
Chavez v. Sandiganbayan26 reiterates the same view. Indeed,
Section 4(b) has been frowned upon by this Court even before
the filing of the present petitions.
Corollarily, Section 4(b) also runs counter to the following
constitutional provisions ensuring the people's access to
information:

Article II, Section 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.
Article III, Section 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.
These twin provisions of the Constitution seek to promote
transparency in policy-making and in the operations of the
government, as well as provide the people sufficient information
to enable them to exercise effectively their constitutional rights.
Armed with the right information, citizens can participate in
public discussions leading to the formulation of government
policies and their effective implementation. In Valmonte v.
Belmonte, Jr.27 the Court explained that an informed citizenry is
essential to the existence and proper functioning of any
democracy, thus:
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the
government and the people. 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.

CONSTI_CONGRESS-03
72
Consequently, the conduct of inquiries in aid of legislation is not
only intended to benefit Congress but also the citizenry. The
people are equally concerned with this proceeding and have the
right to participate therein in order to protect their interests. The
extent of their participation will largely depend on the
information gathered and made known to them. In other words,
the right to information really goes hand-in-hand with the
constitutional policies of full public disclosure and honesty in the
public service. It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in checking
abuse
in
the
government.28 The
cases
ofTaada
v.
29
Tuvera and Legaspi v. Civil Service Commission 30 have
recognized a citizen's interest and personality to enforce a
public duty and to bring an action to compel public officials and
employees to perform that duty.
Section 4(b) limits or obstructs the power of Congress to secure
from PCGG members and staff information and other data in aid
of its power to legislate. Again, this must not be countenanced.
In Senate v. Ermita,31 this Court stressed:
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.
A statute may be declared unconstitutional because it is not
within the legislative power to enact; or it creates or

establishes methods or forms that infringe constitutional

principles; or its purpose or effect violates the Constitution
or its basic principles.32 As shown in the above discussion,
Section 4(b) is inconsistent withArticle VI, Section
21 (Congress'
power
of
inquiry), Article
XI,
Section
1 (principle of public accountability),Article II, Section
28 (policy of full disclosure) and Article III, Section 7 (right to
public information).
Significantly, Article XVIII, Section 3 of the Constitution provides:
All existing laws, decrees, executive orders, proclamations,
letters of instructions, and other executive issuances not
inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.
The clear import of this provision is that all existing laws,
executive orders, proclamations, letters of instructions and
other executive issuances inconsistent or repugnant to the
Constitution are repealed.
Jurisprudence is replete with decisions invalidating laws,
decrees, executive orders, proclamations, letters of instructions
and other executive issuances inconsistent with the
Constitution. In Pelaez v. Auditor General,33 the Court considered
repealed Section 68 of the Revised Administrative Code of 1917
authorizing the Executive to change the seat of the government
of any subdivision of local governments, upon the approval of
the 1935 Constitution. Section 68 was adjudged incompatible
and inconsistent with the Constitutional grant of limited
executive supervision over local governments. In Islamic Da'wah
Council of the Philippines, Inc., v. Office of the Executive
Secretary,34 the Court declared Executive Order No. 46, entitled
"Authorizing the Office on Muslim Affairs to Undertake Philippine
Halal Certification," void for encroaching on the religious
freedom of Muslims. InThe Province of Batangas v. Romulo,35 the

CONSTI_CONGRESS-03
73
Court declared some provisions of the General Appropriations
Acts of 1999, 2000 and 2001 unconstitutional for violating the
Constitutional precept on local autonomy. And in Ople v.
Torres,36 the
Court
likewise
declared
unconstitutional
Administrative Order No. 308, entitled "Adoption of a National
Computerized Identification Reference System," for being
violative of the right to privacy protected by the Constitution.
These Decisions, and many others, highlight that the
Constitution is the highest law of the land. It is "the basic and
paramount law to which all other laws must conform and
to which all persons, including the highest officials of the
land, must defer. No act shall be valid, however noble its
intentions,
if
it
conflicts
with
the
37
Constitution." Consequently, this Court has no recourse but
to declare Section 4(b) of E.O. No. 1 repealed by the 1987
Constitution.
Significantly, during the oral arguments on September 21, 2006,
Chairman Sabio admitted that should this Court rule that
Section 4(b) is unconstitutional or that it does not apply to the
Senate, he will answer the questions of the Senators, thus:
CHIEF JUSTICE PANGANIBAN:
Okay. Now, if the Supreme Court rules that Sec. 4(b) is
unconstitutional or that it does not apply to the Senate, will you
answer the questions of the Senators?
CHAIRMAN SABIO:
Your Honor, my father was a judge, died being a judge. I was
here in the Supreme Court as Chief of Staff of Justice Feria. I
would definitely honor the Supreme Court and the rule of law.
CHIEF JUSTICE PANGANIBAN:
You will answer the questions of the Senators if we say that?

CHAIRMAN SABIO:
Yes, Your Honor. That is the law already as far as I am
concerned.
With his admission, Chairman Sabio is not fully convinced that
he and his Commissioners are shielded from testifying before
respondent Senate Committees by Section 4(b) of E.O. No. 1. In
effect, his argument that the said provision exempts him and his
co-respondent Commissioners from testifying before respondent
Senate Committees concerning Senate Res. No. 455 utterly
lacks merit.
Incidentally, an argument repeated by Chairman Sabio is that
respondent Senate Committees have no power to punish him
and his Commissioners for contempt of the Senate.
The argument is misleading.
Article VI, Section 21 provides:
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.
It must be stressed that the Order of Arrest for "contempt of
Senate Committees and the Philippine Senate" wasapproved
by Senate President Villar and signed by fifteen (15)
Senators. From this, it can be concluded that the Order is
under the authority, not only of the respondent Senate
Committees, but of the entire Senate.
At any rate, Article VI, Section 21 grants the power of inquiry not
only to the Senate and the House of Representatives, but also
to any of their respective committees. Clearly, there is
a direct conferral of powerto the committees. Father Bernas,

CONSTI_CONGRESS-03
74
in his Commentary on the 1987 Constitution, correctly pointed
out its significance:
It should also be noted that the Constitution explicitly
recognizes the power of investigation not just of Congress but
also of "any of its committees." This is significant because it
constitutes a direct conferral of investigatory power
upon the committees and it means that the means which
the Houses can take in order to effectively perform its
investigative function are also available to the
Committees.38
This is a reasonable conclusion. The conferral of the legislative
power of inquiry upon any committee of Congress must carry
with it all powers necessary and proper for its effective
discharge. Otherwise, Article VI, Section 21 will be meaningless.
The indispensability and usefulness of the power of contempt in
a legislative inquiry is underscored in a catena of cases, foreign
and local.
In the 1821 case of Anderson v. Dunn,39 the function of the
Houses of Congress with respect to the contempt power was
likened to that of a court, thus:
But the court in its reasoning goes beyond this, and though
the grounds of the decision are not very clearly stated, we take
them to be: that there is in some cases a power in each
House of Congress to punish for contempt; that this
power is analogous to that exercised by courts of justice,
and that it being the well established doctrine that when
it appears that a prisoner is held under the order of a
court of general jurisdiction for a contempt of its
authority, no other court will discharge the prisoner or
make further inquiry into the cause of his commitment.
That this is the general ruleas regards the relation of one court
to another must be conceded.

In McGrain,40 the U.S. Supreme Court held: "Experience has

shown that mere requests for such information are often
unavailing, and also that information which is
volunteered is not always accurate or complete; so some
means of compulsion is essential to obtain what is
needed." The Court, in Arnault v. Nazareno,41sustained the
Congress' power of contempt on the basis of this observation.
In Arnault v. Balagtas,42 the Court further explained that the
contempt power of Congress is founded upon reason and policy
and that the power of inquiry will not be complete if for every
contumacious act, Congress has to resort to judicial
interference, thus:
The principle that Congress or any of its bodies has the
power to punish recalcitrant witnesses is founded upon reason
and policy. Said power must be considered implied or incidental
to the exercise of legislative power. How could a legislative
body obtain the knowledge and information on which to
base intended legislation if it cannot require and compel
the disclosure of such knowledge and information if it is
impotent to punish a defiance of its power and
authority? When the framers of the Constitution adopted
the principle of separation of powers, making each
branch supreme within the realm of its respective
authority, it must have intended each department's
authority to be full and complete, independently of the
other's authority or power. And how could the authority
and power become complete if for every act of refusal,
every act of defiance, every act of contumacy against it,
the legislative body must resort to the judicial
department for the appropriate remedy, because it is
impotent by itself to punish or deal therewith, with the
affronts committed against its authority or dignity.43

CONSTI_CONGRESS-03
75
In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang
Panlungsod of Dumaguete,44 the Court characterized contempt
power as a matter of self-preservation, thus:
The exercise by the legislature of the contempt power is
a matter of self-preservation as that branch of the
government vested with the legislative power, independently of
the judicial branch, asserts its authority and punishes contempts
thereof. The contempt power of the legislature is, therefore, sui
generis x x x.
Meanwhile, with respect to G.R. No. 174177, the petition of
Philcomsat Holdings Corporation and its directors and officers,
this Court holds that the respondent Senate Committees' inquiry
does not violate their right to privacy and right against selfincrimination.
One important limitation on the Congress' power of inquiry is
that "the rights of persons appearing in or affected by
such inquiries shall be respected." This is just another way
of saying that the power of inquiry must be "subject to the
limitations placed by the Constitution on government action." As
held in Barenblatt v. United States,45 "the Congress, in
common with all the other branches of the Government,
must exercise its powers subject to the limitations
placed by the Constitution on governmental action, more
particularly in the context of this case, the relevant
limitations of the Bill of Rights."
First is the right to privacy.
Zones of privacy are recognized and protected in our
laws.46 Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with
customary legal process. The meticulous regard we accord to
these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by

civilized men,"47 but also from our adherence to the Universal

Declaration of Human Rights which mandates that, "no one
shall be subjected to arbitrary interference with his privacy" and
"everyone has the right to the protection of the law against
such interference or attacks."48
Our Bill of Rights, enshrined in Article III of the Constitution,
provides at least two guarantees that explicitly create zones of
privacy. It highlights a person's "right to be let alone" or the
"right to determine what, how much, to whom and when
information about himself shall be disclosed."49 Section
2 guarantees "the right of the people to be secure in their
persons,
houses,
papers
and
effects
against
unreasonable searches and seizures of whatever nature
and for any purpose." Section 3 renders inviolable the
"privacy of communication and correspondence" and
further cautions that "any evidence obtained in violation of
this or the preceding section shall be inadmissible for
any purpose in any proceeding."
In evaluating a claim for violation of the right to privacy, a court
must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has
been violated by unreasonable government intrusion. 50 Applying
this determination to these cases, the important inquiries
are: first, did the directors and officers of Philcomsat Holdings
Corporation exhibit a reasonable expectation of privacy?;
andsecond, did the government violate such expectation?
The answers are in the negative. Petitioners were invited in the
Senate's public hearing to deliberate on Senate Res. No. 455,
particularly "on the anomalous losses incurred by the
Philippine Overseas Telecommunications Corporation
(POTC), Philippine Communications Satellite Corporation
(PHILCOMSAT), and Philcomsat Holdings Corporations
(PHC) due to the alleged improprieties in the operations

CONSTI_CONGRESS-03
76
by their respective board of directors." Obviously, the
inquiry focus on petitioners' acts committed in the discharge of
their duties as officers and directors of the said corporations,
particularly Philcomsat Holdings Corporation. Consequently,
they have no reasonable expectation of privacy over
matters involving their offices in a corporation where the
government has interest. Certainly, such matters are of
public concern and over which the people have the right
to information.
This goes to show that the right to privacy is not absolute where
there is an overriding compelling state interest. In Morfe v.
Mutuc,51 the Court, in line with Whalen v. Roe,52 employed the
rational basis relationship test when it held that there was no
infringement of the individual's right to privacy as the
requirement to disclosure information is for a valid purpose, i.e.,
to curtail and minimize the opportunities for official corruption,
maintain a standard of honesty in public service, and promote
morality
in
public
administration.53 In Valmonte
v.
54
Belmonte, the Court remarked that as public figures, the
Members of the former Batasang Pambansa enjoy a
more limited right to privacy as compared to ordinary
individuals, and their actions are subject to closer scrutiny.
Taking this into consideration, the Court ruled that the right of
the people to access information on matters of public concern
prevails over the right to privacy of financial transactions.
Under the present circumstances, the alleged anomalies in the
PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and
the conspiratorial participation of the PCGG and its officials
are compelling reasons for the Senate to exact vital
information from the directors and officers of Philcomsat
Holdings Corporations, as well as from Chairman Sabio and his
Commissioners to aid it in crafting the necessary legislation to
prevent corruption and formulate remedial measures and policy
determination regarding PCGG's efficacy. There being no

reasonable expectation of privacy on the part of those directors

and officers over the subject covered by Senate Res. No. 455, it
follows that their right to privacy has not been violated by
respondent Senate Committees.
Anent the right against self-incrimination, it must be
emphasized that this right maybe invoked by the said directors
and officers of Philcomsat Holdings Corporation only when the
incriminating question is being asked, since they have no
way of knowing in advance the nature or effect of the
questions to be asked of them."55 That this right
may possibly be violated or abused is no ground for denying
respondent Senate Committees their power of inquiry. The
consolation is that when this power is abused, such issue may
be presented before the courts. At this juncture, what is
important is that respondent Senate Committees have
sufficient Rules to guide them when the right against selfincrimination is invoked. Sec. 19 reads:
Sec. 19. Privilege Against Self-Incrimination
A witness can invoke his right against self-incrimination only
when a question tends to elicit an answer that will incriminate
him is propounded to him. However, he may offer to answer any
question in an executive session.
No person can refuse to testify or be placed under oath or
affirmation or answer questions before an incriminatory
question is asked. His invocation of such right does not by itself
excuse him from his duty to give testimony.
In such a case, the Committee, by a majority vote of the
members present there being a quorum, shall determine
whether the right has been properly invoked. If the Committee
decides otherwise, it shall resume its investigation and the
question or questions previously refused to be answered shall
be repeated to the witness. If the latter continues to refuse to

CONSTI_CONGRESS-03
77
answer the question, the Committee may punish him for
contempt for contumacious conduct.
The same directors and officers contend that the Senate is
barred from inquiring into the same issues being litigated before
the Court of Appeals and the Sandiganbayan. Suffice it to state
that the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation provide that the filing or pendency of any
prosecution of criminal or administrative action should not stop
or abate any inquiry to carry out a legislative purpose.
Let it be stressed at this point that so long as the constitutional
rights of witnesses, like Chairman Sabio and his Commissioners,
will be respected by respondent Senate Committees, it their
duty to cooperate with them in their efforts to obtain the facts
needed for intelligent legislative action. The unremitting
obligation of every citizen is to respond to subpoenae, to
respect the dignity of the Congress and its Committees, and to
testify fully with respect to matters within the realm of proper
investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners
Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier;
and Manuel Andal and Julio Jalandoni, PCGG's nominees to
Philcomsat Holdings Corporation, as well as its directors and
officers,
must
comply
with
the Subpoenae
Ad
Testificandum issued by respondent Senate Committees
directing them to appear and testify in public hearings relative
to Senate Resolution No. 455.
WHEREFORE, the petition in G.R. No. 174340 for habeas
corpus is DISMISSED, for being moot. The petitions in G.R Nos.
174318 and 174177 are likewise DISMISSED.
Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987
Constitution. Respondent Senate Committees' power of inquiry
relative to Senate Resolution 455 is upheld. PCGG Chairman

Camilo L. Sabio and Commissioners Ricardo Abcede, Narciso

Nario, Nicasio Conti and Tereso Javier; and Manuel Andal and
Julio Jalandoni, PCGG's nominees to Philcomsat Holdings
Corporation, as well as its directors and officers, petitioners in
G.R. No. 174177, are ordered to comply with the Subpoenae Ad
Testificandum issued by respondent Senate Committees
directing them to appear and testify in public hearings relative
to Senate Resolution No. 455.
SO ORDERED.
G.R. No. 180643

September 4, 2008

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.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that
adheres to the Office of the President. It exists to protect public
interest, not to benefit a particular public official. Its purpose,
among others, is to assure that the nation will receive the
benefit of candid, objective and untrammeled communication
and exchange of information between the President and his/her
advisers in the process of shaping or forming policies and
arriving at decisions in the exercise of the functions of the
Presidency under the Constitution. The confidentiality of the
Presidents conversations and correspondence is not unique. It
is akin to the confidentiality of judicial deliberations. It
possesses the same value as the right to privacy of all citizens

CONSTI_CONGRESS-03
78
and more, because it is dictated by public interest and the
constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon to
exercise its power of review and arbitrate a hotly, even
acrimoniously, debated dispute between the Courts co-equal
branches of government. In this task, this Court should neither
curb the legitimate powers of any of the co-equal and
coordinate branches of government nor allow any of them to
overstep the boundaries set for it by our Constitution. The
competing interests in the case at bar are the claim of executive
privilege by the President, on the one hand, and the respondent
Senate Committees assertion of their power to conduct
legislative inquiries, on the other. The particular facts and
circumstances of the present case, stripped of the politically and
emotionally charged rhetoric from both sides and viewed in the
light of settled constitutional and legal doctrines, plainly lead to
the conclusion that the claim of executive privilege must be
upheld.
Assailed in this motion for reconsideration is our Decision dated
March 25, 2008 (the "Decision"), granting the petition
for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public
Officers and Investigations,1 Trade and Commerce,2 and National
Defense
and
Security
(collectively
the
"respondent
3
Committees").
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent
Committees and testified for about eleven (11) hours on matters
concerning the National Broadband Project (the "NBN Project"),
a project awarded by the Department of Transportation and
Communications ("DOTC") to Zhong Xing Telecommunications
Equipment ("ZTE"). Petitioner disclosed that then Commission

on Elections ("COMELEC") Chairman Benjamin Abalos offered

him P200 Million in exchange for his approval of the NBN
Project. He further narrated that he informed President Gloria
Macapagal Arroyo ("President Arroyo") of the bribery attempt
and that she instructed him not to accept the bribe. However,
when probed further on President Arroyo and petitioners
discussions relating to the NBN Project, petitioner refused to
answer, invoking "executive privilege." To be specific, petitioner
refused to answer questions on: (a) whether or not President
Arroyo followed up the NBN Project,4 (b) whether or not she
directed him to prioritize it,5 and (c) whether or not she directed
him to approve it.6
Respondent Committees persisted in knowing petitioners
answers to these three questions by requiring him to appear
and testify once more on November 20, 2007. On November 15,
2007, Executive Secretary Eduardo R. Ermita wrote to
respondent Committees and requested them to dispense with
petitioners testimony on the ground of executive privilege. 7 The
letter of Executive Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions
fall under conversations and correspondence between the
President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May
1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the
confidentiality of conversations of the President is necessary in
the exercise of her executive and policy decision making
process. The expectation of a President to the confidentiality of
her conversations and correspondences, like the value which we
accord deference for the privacy of all citizens, is the necessity
for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making.
Disclosure of conversations of the President will have a chilling
effect on the President, and will hamper her in the effective

CONSTI_CONGRESS-03
79
discharge of her duties and responsibilities, if she is not
protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that
the information sought to be disclosed might impair our
diplomatic as well as economic relations with the Peoples
Republic of China. Given the confidential nature in which these
information were conveyed to the President, he cannot provide
the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to
protect.
In light of the above considerations, this Office is constrained to
invoke the settled doctrine of executive privilege as refined
in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on
the subject in an unprecedented 11-hour hearing, wherein he
has answered all questions propounded to him except the
foregoing questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on the ZTE /
NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before
respondent Committees upon orders of the President invoking
executive privilege. On November 22, 2007, the respondent
Committees issued the show-cause letter requiring him to
explain why he should not be cited in contempt. On November
29, 2007, in petitioners reply to respondent Committees, he
manifested that it was not his intention to ignore the Senate
hearing and that he thought the only remaining questions were
those he claimed to be covered by executive privilege. He also
manifested his willingness to appear and testify should there be
new matters to be taken up. He just requested that he be
furnished "in advance as to what else" he "needs to clarify."

Respondent Committees found petitioners explanations

unsatisfactory. Without responding to his request for advance
notice of the matters that he should still clarify, they issued the
Order dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136
& 144; and privilege speeches of Senator Lacson and Santiago
(all on the ZTE-NBN Project), citing petitioner in contempt of
respondent Committees and ordering his arrest and detention at
the Office of the Senate Sergeant-at-Arms until such time that
he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of
the above Order.8 He insisted that he had not shown "any
contemptible conduct worthy of contempt and arrest." He
emphasized his willingness to testify on new matters, but
respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition
for certiorari he previously filed with this Court on December 7,
2007. According to him, this should restrain respondent
Committees from enforcing the order dated January 30, 2008
which declared him in contempt and directed his arrest and
detention.
Petitioner then filed his Supplemental Petition for Certiorari (with
Urgent Application for TRO/Preliminary Injunction) on February
1, 2008. In the Courts Resolution dated February 4, 2008, the
parties were required to observe the status quo prevailing prior
to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition
for certiorari on two grounds: first, the communications elicited
by the three (3) questions were covered by executive privilege;
and second, respondent Committees committed grave abuse of
discretion in issuing the contempt order. Anent the first ground,
we considered the subject communications as falling under
the presidential communications privilege because (a) they
related to a quintessential and non-delegable power of the

CONSTI_CONGRESS-03
80
President, (b) they were received by a close advisor of the
President, and (c) respondent Committees failed to adequately
show a compelling need that would justify the limitation of the
privilege and the unavailability of the information elsewhere by
an appropriate investigating authority. As to the second ground,
we found that respondent Committees committed grave abuse
of discretion in issuing the contempt order because (a) there
was a valid claim of executive privilege, (b) their invitations to
petitioner did not contain the questions relevant to the inquiry,
(c) there was a cloud of doubt as to the regularity of the
proceeding that led to their issuance of the contempt order, (d)
they violated Section 21, Article VI of the Constitution because
their inquiry was not in accordance with the "duly published
rules of procedure," and (e) they issued the contempt order
arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present
motion for reconsideration, anchored on the following grounds:
I
CONTRARY TO THIS HONORABLE COURTS DECISION,
THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE
ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT
MERELY THEIR OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS DECISION,
THERE
CAN
BE
NO
PRESUMPTION
THAT
THE
INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.
III

CONTRARY TO THIS HONORABLE COURTS DECISION,

THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT
THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE
(3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE,
CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR
WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE
STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE
COURT IN THE DECISION IS APPLIED, THERE IS NO
SHOWING THAT THE ELEMENTS OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF
A COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF
THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN
THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE
RESPONDENTS PERFORMANCE OF THEIR PRIMARY
FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE
TO INFORMATION, AND THE CONSTITUTIONAL POLICIES
ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY
OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS DECISION,
RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF
DISCRETION IN ISSUING THE ASSAILED CONTEMPT
ORDER, CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM
PRIVILEGE IN THE INSTANT CASE.

OF

EXECUTIVE

CONSTI_CONGRESS-03
81
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED
REQUIREMENTS LAID DOWN INSENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN
ACCORDANCE WITH THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS
UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION
REQUIRING THAT ITS RULES OF PROCEDURE BE DULY
PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE
COURT CONSIDERED THE OSGS INTERVENTION ON THIS
ISSUE
WITHOUT
GIVING
RESPONDENTS
THE
OPPORTUNITY TO COMMENT.
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER
IS NOT ARBITRARY OR PRECIPITATE.
In his Comment, petitioner charges respondent Committees with
exaggerating and distorting the Decision of this Court. He avers
that there is nothing in it that prohibits respondent Committees
from investigating the NBN Project or asking him additional
questions. According to petitioner, the Court merely applied the
rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision
did not reverse the presumption against executive secrecy laid
down in Senate v. Ermita; second, respondent Committees
failed to overcome the presumption of executive privilege
because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they
admitted that they could dispense with petitioners testimony if
certain NEDA documents would be given to them; third, the
requirement of specificity applies only to the privilege for State,
military and diplomatic secrets, not to the necessarily broad and
all-encompassing
presidential
communications
privilege; fourth, there is no right to pry into the Presidents
thought processes or exploratory exchanges; fifth, petitioner is

not covering up or hiding anything illegal; sixth, the Court has

the power and duty to annul the Senate Rules; seventh, the
Senate is not a continuing body, thus the failure of the present
Senate to publish its Rules of Procedure Governing Inquiries in
Aid of Legislation (Rules) has a vitiating effect on them; eighth,
the requirement for a witness to be furnished advance copy of
questions comports with due process and the constitutional
mandate that the rights of witnesses be respected; and ninth,
neither petitioner nor respondent has the final say on the matter
of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1)
there is no categorical pronouncement from the Court that the
assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason
for them "to make much" of the distinction between Sections 21
and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against
disclosure as earlier held in Almonte v. Vasquez9 and Chavez v.
Public Estates Authority (PEA)10; (3) the communications elicited
by the three (3) questions are covered by executive privilege,
because all the elements of the presidential communications
privilege are present; (4) the subpoena ad testificandum issued
by respondent Committees to petitioner is fatally defective
under existing law and jurisprudence; (5) the failure of the
present Senate to publish its Rules renders the same void; and
(6) respondent Committees arbitrarily issued the contempt
order.
Incidentally, respondent Committees objection to the Resolution
dated March 18, 2008 (granting the Office of the Solicitor
Generals Motion for Leave to Intervene and to Admit Attached
Memorandum) only after the promulgation of the Decision in
this case is foreclosed by its untimeliness.

CONSTI_CONGRESS-03
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The core issues that arise from the foregoing respective
contentions of the opposing parties are as follows:
(1) whether or not there is a recognized presumptive
presidential communications privilege in our legal system;
(2) whether or not there is factual or legal basis to hold that the
communications elicited by the three (3) questions are covered
by executive privilege;
(3) whether or not respondent Committees have shown that the
communications elicited by the three (3) questions are critical to
the exercise of their functions; and
(4) whether or not respondent Committees committed grave
abuse of discretion in issuing the contempt order.
We shall discuss these issues seriatim.
I
There
Is
a
Recognized
Presidential Communications Privilege

Presumptive

Respondent Committees ardently argue that the Courts

declaration that presidential communications are presumptively
privileged reverses the "presumption" laid down in Senate v.
Ermita11 that "inclines heavily against executive secrecy and in
favor of disclosure." Respondent Committees then claim that the
Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the
presumption in favor of thepresidential communications
privilege is mentioned and adopted in our legal system. That is
far from the truth. The Court, in the earlier case of Almonte v.
Vasquez,12 affirmed that the presidential communications
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the

Constitution. Even Senate v. Ermita,13 the case relied upon by

respondent Committees, reiterated this concept. There, the
Court enumerated the cases in which the claim of executive
privilege
was
recognized,
among
them Almonte
v.
Chavez, Chavez
v.
Presidential
Commission
on
Good
Government
(PCGG),14 and Chavez
v.
PEA.15 The
Court
articulated in these cases that "there are certain types of
information which the government may withhold from the
public,16" that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military,
diplomatic and other national security matters";17 and that "the
right to information does not extend to matters
recognized as privileged information under the
separation of powers, by which the Court meant
Presidential
conversations,
correspondences,
and
discussions in closed-door Cabinet meetings."18
Respondent Committees observation that this Courts Decision
reversed the "presumption that inclines heavily against
executive secrecy and in favor of disclosure" arises from a
piecemeal interpretation of the said Decision. The Court has
repeatedly held that in order to arrive at the true intent and
meaning of a decision, no specific portion thereof should be
isolated and resorted to, but the decision must be considered in
its entirety.19
Note that the aforesaid presumption is made in the context of
the circumstances obtaining in Senate v. Ermita, which declared
void Sections 2(b) and 3 of Executive Order (E.O.) No. 464,
Series of 2005. The pertinent portion of the decision in the said
case reads:
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisprudence, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is

CONSTI_CONGRESS-03
83
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. (Emphasis and underscoring
supplied)
Obviously, the last sentence of the above-quoted paragraph in
Senate v. Ermita refers to the "exemption" being claimed by the
executive officials mentioned in Section 2(b) of E.O. No. 464,
solely by virtue of their positions in the Executive Branch. This
means that when an executive official, who is one of those
mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be
exempt from disclosure, there can be no presumption of
authorization to invoke executive privilege given by the
President to said executive official, such that the presumption
in this situation inclines heavily against executive secrecy and in
favor of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing
ruling in this wise:
Section 2(b) in relation to Section 3 virtually provides that, once
the head of office determines that a certain information is
privileged, such determination is presumed to bear the
Presidents authority and has the effect of prohibiting the official
from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the

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, or in
those
instances
where
exemption
from
disclosure
is necessary to the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus
premised on the fact that certain information 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.
The constitutional infirmity found in the blanket authorization to
invoke executive privilege granted by the President to executive
officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive
Secretary Ermita, who invoked executive privilege on a specific

CONSTI_CONGRESS-03
84
matter involving an executive agreement between the
Philippines and China, which was the subject of the three (3)
questions propounded to petitioner Neri in the course of the
Senate Committees investigation. Thus, the factual setting of
this case markedly differs from that passed upon in Senate v.
Ermita.
Moreover, contrary to the claim of respondents, the Decision in
this present case hews closely to the ruling in Senate v.
Ermita,21 to wit:
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. 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.
Schwart defines executive privilege as "the power of the
Government to withhold information from the public, the
courts, and the Congress. Similarly, Rozell defines it as "the
right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately
the public." x x x In this jurisdiction, the doctrine of executive
privilege was recognized by this Court in Almonte v. Vasquez.
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, he 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 italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a
presumptive privilege for Presidential communication," which
was recognized early on in Almonte v. Vasquez. To construe the
passage inSenate v. Ermita adverted to in the Motion for
Reconsideration of respondent Committees, referring to the nonexistence of a "presumptive authorization" of an executive
official, to mean that the "presumption" in favor of executive
privilege "inclines heavily against executive secrecy and in favor
of disclosure" is to distort the ruling in the Senate v. Ermita and
make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning
of the relationship between the Executive Department and the
Legislative Department to explain why there should be no
implied authorization or presumptive authorization to invoke
executive privilege by the Presidents subordinate officials, as
follows:
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 he being the highest official of

CONSTI_CONGRESS-03
85
the executive branch, and the due respect accorded to a coequal branch of governments which is sanctioned by a longstanding custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of
presidential communications when invoked by the President on
a matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given
preference or priority, in the absence of proof of a compelling or
critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render
meaningless the presumption accorded by settled jurisprudence
in
favor
of
executive
privilege.
In
fact, Senate
v.
Ermita reiterates jurisprudence citing "the considerations
justifying
a
presumptive
privilege
for
Presidential
communications."23
II
There
Are
Factual
and
Legal
Bases
to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited
by the three (3) questions are not covered by executive
privilege
because
the
elements
of
the presidential
communications privilegeare not present.
A. The power to enter into an executive agreement is a
"quintessential and non-delegable presidential power."
First, respondent Committees contend that the power to secure
a foreign loan does not relate to a "quintessential and nondelegable presidential power," because the Constitution does
not vest it in the President alone, but also in the Monetary Board
which is required to give its prior concurrence and to report to
Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another
entity does not make such power less executive.
"Quintessential" is defined as the most perfect embodiment of
something, the concentrated essence of substance. 24 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.25 The power to enter into an executive
agreement is in essence an executive power. This authority of
the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized
in Philippine jurisprudence.26 Now, the fact that the President
has to secure the prior concurrence of the Monetary Board,
which shall submit to Congress a complete report of its decision
before contracting or guaranteeing foreign loans, does not
diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the
legislative, executive and judicial branches of government by no
means prescribes absolute autonomy in the discharge by each
branch of that part of the governmental power assigned to it by
the sovereign people. There is the corollary doctrine of checks
and balances, which has been carefully calibrated by the
Constitution to temper the official acts of each of these three
branches. Thus, by analogy, the fact that certain legislative acts
require action from the President for their validity does not
render such acts less legislative in nature. A good example is
the power to pass a law. Article VI, Section 27 of the Constitution
mandates that every bill passed by Congress shall, before it
becomes a law, be presented to the President who shall approve
or veto the same. The fact that the approval or vetoing of the
bill is lodged with the President does not render the power to
pass law executive in nature. This is because the power to pass
law is generally a quintessential and non-delegable power of the
Legislature. In the same vein, the executive power to enter or

CONSTI_CONGRESS-03
86
not to enter into a contract to secure foreign loans does not
become less executive in nature because of conditions laid
down in the Constitution. The final decision in the exercise of the
said executive power is still lodged in the Office of the President.
B. The "doctrine of operational proximity" was laid down
precisely to limit the scope of the presidential
communications privilege but, in any case, it is not
conclusive.
Second, respondent Committees also seek reconsideration of
the application of the "doctrine of operational proximity" for the
reason that "it maybe misconstrued to expand the scope of the
presidential communications privilege to communications
between those who are operationally proximate to the
President but who may have "no direct communications with
her."
It must be stressed that the doctrine of "operational proximity"
was laid down in In re: Sealed Case27precisely to limit the scope
of the presidential communications privilege. The U.S. court was
aware of the dangers that a limitless extension of the privilege
risks and, therefore, carefully cabined its reach by explicitly
confining it to White House staff, and not to staffs of the
agencies, and then only to White House staff that has
"operational proximity" to direct presidential decision-making,
thus:
We are aware that such an extension, unless carefully
circumscribed to accomplish the purposes of the privilege, could
pose a significant risk of expanding to a large swath of the
executive branch a privilege that is bottomed on a recognition
of the unique role of the President. In order to limit this risk, the
presidential communications privilege should be construed as
narrowly as is consistent with ensuring that the confidentiality of
the Presidents decision-making process is adequately

protected. Not every person who plays a role in the

development of presidential advice, no matter how
remote and removed from the President, can qualify for
the privilege. In particular, the privilege should not
extend to staff outside the White House in executive
branch agencies. Instead, the privilege should apply only to
communications authored or solicited and received by those
members of an immediate White House advisors staff who have
broad and significant responsibility for investigation and
formulating the advice to be given the President on the
particular matter to which the communications relate. Only
communications at that level are close enough to the
President to be revelatory of his deliberations or to pose
a risk to the candor of his advisers. See AAPS, 997 F.2d
at 910 (it is "operational proximity" to the President that
matters in determining whether "[t]he Presidents
confidentiality
interests"
is
implicated).(Emphasis
supplied)
In the case at bar, the danger of expanding the privilege "to a
large swath of the executive branch" (a fear apparently
entertained by respondents) is absent because the official
involved here is a member of the Cabinet, thus, properly within
the term "advisor" of the President; in fact, her alter ego and a
member of her official family. Nevertheless, in circumstances in
which the official involved is far too remote, this Court also
mentioned in the Decision the organizational test laid down
in Judicial Watch, Inc. v. Department of Justice.28 This goes to
show that the operational proximity test used in the Decision is
not considered conclusive in every case. In determining which
test to use, the main consideration is to limit the availability of
executive privilege only to officials who stand proximate to the
President, not only by reason of their function, but also by
reason of their positions in the Executives organizational
structure. Thus, respondent Committees fear that the scope of

CONSTI_CONGRESS-03
87
the privilege would be unnecessarily expanded with the use of
the operational proximity test is unfounded.
C. The Presidents claim of executive privilege is not
merely based on a generalized interest; and in balancing
respondent Committees and the Presidents clashing
interests, the Court did not disregard the 1987
Constitutional provisions on government transparency,
accountability and disclosure of information.

cannot provide the Committee any further details of these

conversations, without disclosing the very thing the privilege is
designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that 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. This is a matter of
respect for a coordinate and co-equal department.

Third, respondent Committees claim that the Court erred in

upholding the Presidents invocation, through the Executive
Secretary, of executive privilege because (a) between
respondent Committees specific and demonstrated need and
the Presidents generalized interest in confidentiality, there is a
need to strike the balance in favor of the former; and (b) in the
balancing of interest, the Court disregarded the provisions of the
1987 Philippine Constitution on government transparency,
accountability and disclosure of information, specifically, Article
III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI,
Section 1;32 Article XVI, Section 10;33 Article VII, Section
20;34 and Article XII, Sections 9,35 21,36 and 22.37

It is easy to discern the danger that goes with the disclosure of

the Presidents communication with her advisor. The NBN Project
involves a foreign country as a party to the agreement. It was
actually a product of the meeting of minds between officials of
the Philippines and China. Whatever the President says about
the agreement - particularly while official negotiations are
ongoing - are matters which China will surely view with
particular interest. There is danger in such kind of exposure. It
could adversely affect our diplomatic as well as economic
relations with the Peoples Republic of China. We reiterate the
importance of secrecy in matters involving foreign negotiations
as stated in United States v. Curtiss-Wright Export Corp., 38 thus:

It must be stressed that the Presidents claim of executive

privilege is not merely founded on her generalized interest in
confidentiality. The Letter dated November 15, 2007 of
Executive
Secretary
Ermita
specified presidential
communications privilege in relation to diplomatic and
economic relations with another sovereign nation as the
bases for the claim. Thus, the Letter stated:

The nature of foreign negotiations requires caution, and their

success must often depend on secrecy, and even when brought
to a conclusion, a full disclosure of all the measures, demands,
or eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have
a pernicious influence on future negotiations or produce
immediate inconveniences, perhaps danger and mischief, in
relation to other powers. The necessity of such caution and
secrecy was one cogent reason for vesting the power of making
treaties in the President, with the advice and consent of the
Senate, the principle on which the body was formed confining it
to a small number of members. To admit, then, a right in the
House of Representatives to demand and to have as a matter of

The context in which executive privilege is being invoked

is that the information sought to be disclosed might
impair our diplomatic as well as economic relations with
the Peoples Republic of China. Given the confidential nature
in which this information were conveyed to the President, he

CONSTI_CONGRESS-03
88
course all the papers respecting a negotiation with a foreign
power would be to establish a dangerous precedent.

Stimson have clearly analyzed and justified the practice. In the

words of Mr. Stimson:

US jurisprudence clearly guards against the dangers of allowing

Congress access to all papers relating to a negotiation with a
foreign power. In this jurisdiction, the recent case of Akbayan
Citizens Action Party, et al. v. Thomas G. Aquino, et al.39 upheld
the privileged character of diplomatic negotiations. In Akbayan,
the Court stated:

"A complicated negotiation cannot be carried through

without many, many private talks and discussion, man to
man;
many
tentative
suggestions
and
proposals. Delegates from other countries come and tell
you in confidence of their troubles at home and of their
differences with other countries and with other
delegates; they tell you of what they would do under
certain circumstances and would not do under other
circumstances If these reports should become
public who would ever trust American Delegations in
another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284)

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been
recognized in this jurisdiction. In discussing valid limitations on
the right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject
to reasonable safeguards for the sake of national interest." Even
earlier, the same privilege was upheld in Peoples Movement for
Press Freedom (PMPF) v. Manglapus wherein the Court
discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking
information from the Presidents representatives on the state of
the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that
"secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech
or of the press nor of the freedom of access to
information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of
authority and expedition of decision which are inherent
in executive action. Another essential characteristic of
diplomacy is its confidential nature . Although much has
been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and

xxxx
There is frequent criticism of the secrecy in which
negotiation with foreign powers on nearly all subjects is
concerned. This, it is claimed, is incompatible with the
substance of democracy. As expressed by one writer, "It can
be said that there is no more rigid system of silence anywhere in
the world." (E.J. Young, Looking Behind the Censorship, J. B.
Lipincott Co., 1938) President Wilson in starting his efforts for
the conclusion of the World War declared that we must have
"open covenants, openly arrived at." He quickly abandoned his
thought.
No one who has studied the question believes that such a
method of publicity is possible.In the moment that
negotiations are started, pressure groups attempt to
"muscle in." An ill-timed speech by one of the parties or
a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to a
widespread propaganda to block the negotiations. After

CONSTI_CONGRESS-03
89
a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion
before it is approved. (The New American Government and Its
Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine
in U.S. v. Curtiss-Wright Export Corp. that the President is
the sole organ of the nation in its negotiations with foreign
countries,viz:
"x x x In this vast external realm, with its important,
complicated, delicate and manifold problems, the President
alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the
Senate cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great arguments of March 7,
1800, in the House of Representatives, "The President is the
sole organ of the nation in its external relations, and its
sole representative with foreign nations." Annals, 6th
Cong., col. 613 (Emphasis supplied; underscoring in the
original)
Considering that the information sought through the three (3)
questions subject of this Petition involves the Presidents
dealings with a foreign nation, with more reason, this Court is
wary of approving the view that Congress may peremptorily
inquire into not only official, documented acts of the President
but even her confidential and informal discussions with her
close advisors on the pretext that said questions serve some
vague legislative need. Regardless of who is in office, this Court
can easily foresee unwanted consequences of subjecting a Chief
Executive to unrestricted congressional inquiries done with
increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of

intense and unchecked legislative incursion into the core of the

Presidents decision-making process, which inevitably would
involve her conversations with a member of her Cabinet.
With respect to respondent Committees invocation of
constitutional prescriptions regarding the right of the people to
information and public accountability and transparency, the
Court finds nothing in these arguments to support respondent
Committees case.
There is no debate as to the importance of the constitutional
right of the people to information and the constitutional policies
on public accountability and transparency. These are the twin
postulates vital to the effective functioning of a democratic
government. The citizenry can become prey to the whims and
caprices of those to whom the power has been delegated if they
are denied access to information. And the policies on public
accountability and democratic government would certainly be
mere empty words if access to such information of public
concern is denied.
In the case at bar, this Court, in upholding executive privilege
with respect to three (3) specific questions, did not in any way
curb the publics right to information or diminish the importance
of public accountability and transparency.
This Court did not rule that the Senate has no power to
investigate the NBN Project in aid of legislation. There is nothing
in the assailed Decision that prohibits respondent Committees
from inquiring into the NBN Project. They could continue the
investigation and even call petitioner Neri to testify again. He
himself has repeatedly expressed his willingness to do so. Our
Decision merely excludes from the scope of respondents
investigation the three (3) questions that elicit answers covered
by executive privilege and rules that petitioner cannot be
compelled to appear before respondents to answer the said

CONSTI_CONGRESS-03
90
questions. We have discussed the reasons why these answers
are covered by executive privilege. That there is a recognized
public interest in the confidentiality of such information is a
recognized principle in other democratic States. To put it simply,
the right to information is not an absolute right.

information on inter-government exchanges prior to the

conclusion of treaties and executive agreements. It was
further held that even where there is no need to protect
such state secrets, they must be "examined in strict
confidence and given scrupulous protection."

Indeed, the constitutional provisions cited by respondent

Committees do not espouse an absolute right to information. By
their wording, the intention of the Framers to subject such right
to the regulation of the law is unmistakable. The highlighted
portions of the following provisions show the obvious limitations
on the right to information, thus:

Incidentally, the right primarily involved here is the right of

respondent Committees to obtain information allegedly in aid of
legislation, not the peoples right to public information. This is
the reason why we stressed in the assailed Decision the
distinction between these two rights. As laid down in Senate v.
Ermita, "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" and "neither does the right to information grant a
citizen the power to exact testimony from government officials."
As pointed out, these rights belong to Congress, not to the
individual citizen. It is worth mentioning at this juncture that the
parties here are respondent Committees and petitioner Neri and
that there was no prior request for information on the part of
any individual citizen. This Court will not be swayed by attempts
to blur the distinctions between the Legislature's right to
information in a legitimate legislative inquiry and the public's
right to information.

Article III, 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
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.
Article II, 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.(Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it
was stated that there are no specific laws prescribing the exact
limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it
enumerated the recognized restrictions to such rights, among
them: (1) national security matters, (2) trade secrets and
banking transactions, (3) criminal matters, and (4) other
confidential information. National security matters include state
secrets regarding military and diplomatic matters, as well as

For clarity, it must be emphasized that the assailed

Decision did not enjoin respondent Committees from
inquiring into the NBN Project. All that is expected from
them is to respect matters that are covered by executive
privilege.
III.
Respondent
Committees
Failed
to
Show
That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions

CONSTI_CONGRESS-03
91
In their Motion for Reconsideration, respondent Committees
devote an unusually lengthy discussion on the purported
legislative nature of their entire inquiry, as opposed to an
oversight inquiry.
At the outset, it must be clarified that the Decision did not pass
upon the nature of respondent Committees inquiry into the NBN
Project. To reiterate, this Court recognizes respondent
Committees power to investigate the NBN Project in aid of
legislation. However, this Court cannot uphold the view that
when a constitutionally guaranteed privilege or right is validly
invoked by a witness in the course of a legislative investigation,
the legislative purpose of respondent Committees questions
can be sufficiently supported by the expedient of mentioning
statutes and/or pending bills to which their inquiry as a whole
may have relevance. The jurisprudential test laid down by this
Court in past decisions on executive privilege is that the
presumption of privilege can only be overturned by a showing
of compelling need for disclosure of the information covered
by executive privilege.
In the Decision, the majority held that "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." In the
Motion for Reconsideration, respondent Committees argue that
the information elicited by the three (3) questions are necessary
in the discharge of their legislative functions, among them, (a)
to consider the three (3) pending Senate Bills, and (b) to curb
graft and corruption.
We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is
subject to balancing against other interests and it is necessary
to resolve the competing interests in a manner that would

preserve the essential functions of each branch. There, the

Court weighed between presidential privilege and the legitimate
claims of the judicial process. In giving more weight to the
latter, the Court ruled that the President's generalized assertion
of privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege
would stand in the way of the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted
in the Honorable Chief Justice Puno's dissenting opinion, as
follows:
"... this presumptive privilege must be considered in light of our
historic commitment to the rule of law. This is nowhere more
profoundly manifest than in our view that 'the twofold aim (of
criminal justice) is that guild shall not escape or innocence
suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633.
We have elected to employ an adversary system of criminal
justice in which the parties contest all issues before a court of
law. The need to develop all relevant facts in the
adversary
system
is
both
fundamental
and
comprehensive. The ends of criminal justice would be
defeated if judgments were to be founded on a partial or
speculative presentation of the facts. The very integrity
of the judicial system and public confidence in the
system depend on full disclosure of all the facts, within
the framework of the rules of evidence. To ensure that
justice is done, it is imperative to the function of courts
that compulsory process be available for the production of
evidence needed either by the prosecution or by the defense.
xxx xxx xxx

CONSTI_CONGRESS-03
92
The right to the production of all evidence at a criminal trial
similarly has constitutional dimensions. The Sixth Amendment
explicitly confers upon every defendant in a criminal trial
theright 'to be confronted with the witness against him'
and 'to have compulsory process for obtaining witnesses in
his favor.' Moreover, the Fifth Amendment also guarantees
that no person shall be deprived of liberty without due
process of law. It is the manifest duty of the courts to
vindicate those guarantees, and to accomplish that it is
essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general
privilege
of
confidentiality
of
Presidential
communications in performance of the President's
responsibilities against the inroads of such a privilege on
the fair administration of criminal justice. (emphasis
supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that
is demonstrably relevant in a criminal trial would cut
deeply into the guarantee of due process of law and
gravely
impair
the
basic
function
of
the
courts. A President's
acknowledged
need
for
confidentiality in
the
communications
of
his
office
is general in nature, whereas theconstitutional need for
production of relevant evidence in a criminal proceeding
is specific and central to the fair adjudication of a
particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution
may betotally frustrated. The President's broad interest in
confidentiality
of
communication willnot
be
vitiated by disclosure
of
a
limited
number
of
conversations preliminarily shown to have some
bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to

subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality,
it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal
justice. The generalized assertion of privilege must yield to
the demonstrated,
specific
need for evidence in a
pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a courts need for
facts in order to adjudge liability in a criminal case but rather
with the Senates need for information in relation to its
legislative functions. This leads us to consider once again just
how critical is the subject information in the discharge of
respondent Committees functions. The burden to show this is
on the respondent Committees, since they seek to intrude into
the sphere of competence of the President in order to gather
information which, according to said respondents, would "aid"
them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v.
Nixon41 expounded on the nature of a legislative inquiry in aid of
legislation in this wise:
The sufficiency of the Committee's showing of need has come to
depend, therefore, entirely on whether the subpoenaed
materials are critical to the performance of its legislative
functions. There is a clear difference between Congress'
legislative tasks and the responsibility of a grand jury, or any
institution engaged in like functions. While fact-finding by a
legislative committee is undeniably a part of its task,
legislative judgments normally depend more on the
predicted consequences of proposed legislative actions
and their political acceptability, than on precise
reconstruction of past events; Congress frequently legislates
on the basis of conflicting information provided in its hearings.

CONSTI_CONGRESS-03
93
In contrast, the responsibility of the grand jury turns entirely on
its ability to determine whether there is probable cause to
believe that certain named individuals did or did not commit
specific crimes. If, for example, as in Nixon v. Sirica, one of
those crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their
original form, is undeniable. We see no comparable need in
the legislative process, at least not in the circumstances
of this case. Indeed, whatever force there might once have
been in the Committee's argument that the subpoenaed
materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis
supplied)
Clearly, the need for hard facts in crafting legislation cannot be
equated with the compelling or demonstratively critical and
specific need for facts which is so essential to the judicial power
to adjudicate actual controversies. Also, the bare standard of
"pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between
two (2) separate, co-equal and coordinate Branches of the
Government.
Whatever test we may apply, the starting point in resolving the
conflicting claims between the Executive and the Legislative
Branches is the recognized existence of the presumptive
presidential communications privilege. This is conceded even in
the Dissenting Opinion of the Honorable Chief Justice Puno,
which states:
A hard look at Senate v. Ermita ought to yield the conclusion
that it bestowed a qualified presumption in favor of the
Presidential communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixon
cases Sirica and Senate Select Committee on Presidential

Campaign Activities, et al., v. Nixon in the D.C. Court of

Appeals, as well as subsequent cases all recognize that there
is a presumptive privilege in favor of Presidential
communications. The Almonte case quoted U.S. v. Nixon and
recognized a presumption in favor of confidentiality of
Presidential communications.
The presumption in favor of Presidential communications puts
the burden on the respondent Senate Committees to overturn
the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3)
questions subject of this case, to enable them to craft
legislation. Here, there is simply a generalized assertion that the
information is pertinent to the exercise of the power to legislate
and a broad and non-specific reference to pending Senate bills.
It is not clear what matters relating to these bills could not be
determined without the said information sought by the three (3)
questions. As correctly pointed out by the Honorable Justice
Dante O. Tinga in his Separate Concurring Opinion:
If respondents are operating under the premise that
the president and/or her executive officials have
committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the
answer to those three questions will not necessarily
bolster or inhibit respondents from proceeding with such
legislation. They could easily presume the worst of the
president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not
critically needed before legislatives bodies can come up with
relevant legislation unlike in the adjudication of cases by courts
of law. Interestingly, during the Oral Argument before this Court,
the counsel for respondent Committees impliedly admitted that
the Senate could still come up with legislations even without

CONSTI_CONGRESS-03
94
petitioner answering the three (3) questions. In other words, the
information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the
lawmaking function of the Senate. For instance, question
Number 1 whether the President followed up the NBN project.
According to the other counsel this question has already been
asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your
Honor.
CHIEF JUSTICE PUNO

ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if
we look at this problem in its factual setting as counsel for
petitioner has observed, there are intimations of a bribery
scandal involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to
prioritize this ZTE, is that critical to the lawmaking function of
the Senate? Will it result to the failure of the Senate to cobble a
Bill without this question?
ATTY. AGABIN

I believe it is critical, Your Honor.

I think it is critical to lay the factual foundations for a proposed

amendment to the Procurement Law, Your Honor, because the
petitioner had already testified that he was offered a P200
Million bribe, so if he was offered a P200 Million bribe it is
possible that other government officials who had something to
do with the approval of the contract would be offered the same
amount of bribes.

CHIEF JUSTICE PUNO

CHIEF JUSTICE PUNO

Why?

Again, that is speculative.

ATTY. AGABIN

ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam

Santiago, she would like to indorse a Bill to include Executive
Agreements had been used as a device to the circumventing the
Procurement Law.

That is why they want to continue with the investigation, Your

Honor.

Yes. But my question is how critical is this to the lawmaking

function of the Senate?
ATTY. AGABIN

CHIEF JUSTICE PUNO

But the question is just following it up.

CHIEF JUSTICE PUNO

How about the third question, whether the President said to go
ahead and approve the project after being told about the
alleged bribe. How critical is that to the lawmaking function of

CONSTI_CONGRESS-03
95
the Senate? And the question is may they craft a Bill a remedial
law without forcing petitioner Neri to answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation.
And sound legislation requires that a proposed Bill should have
some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint
the specific need for the information sought or how the
withholding of the information sought will hinder the
accomplishment of their legislative purpose is very evident in
the above oral exchanges. Due to the failure of the respondent
Committees to successfully discharge this burden, the
presumption in favor of confidentiality of presidential
communication stands. The implication of the said presumption,
like any other, is to dispense with the burden of proof as to
whether the disclosure will significantly impair the Presidents
performance of her function. Needless to state this is assumed,
by virtue of the presumption.

Anent respondent Committees bewailing that they would have

to "speculate" regarding the questions covered by the privilege,
this does not evince a compelling need for the information
sought. Indeed,Senate Select Committee on Presidential
Campaign Activities v. Nixon43 held that while fact-finding by a
legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted
consequences of proposed legislative actions and their political
acceptability than on a precise reconstruction of past events. It
added that, normally, Congress legislates on the basis of
conflicting information provided in its hearings. We cannot
subscribe to the respondent Committees self-defeating
proposition that without the answers to the three (3) questions
objected to as privileged, the distinguished members of the
respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be
stressed that respondent Committees need for information in
the exercise of this function is not as compelling as in instances
when the purpose of the inquiry is legislative in nature. This is
because curbing graft and corruption is merely an oversight
function of Congress.44 And if this is the primary objective of
respondent Committees in asking the three (3) questions
covered by privilege, it may even contradict their claim that
their purpose is legislative in nature and not oversight. In any
event, whether or not investigating graft and corruption is a
legislative or oversight function of Congress, respondent
Committees investigation cannot transgress bounds set by the
Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court
ruled:
The "allocation of constitutional boundaries" is a task
that this Court must perform under the Constitution.
Moreover, as held in a recent case, "the political question

CONSTI_CONGRESS-03
96
doctrine neither interposes an obstacle to judicial determination
of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the
principle in appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated
inquiry by respondent Committee is not really in aid of
legislation because it is not related to a purpose within
the jurisdiction of Congress, since the aim of the
investigation is to find out whether or not the relatives
of the President or Mr. Ricardo Lopa had violated Section
5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices
Act, a matter that appears more within the province of
the courts rather than of the Legislature."47 (Emphasis and
underscoring supplied)
The general thrust and the tenor of the three (3) questions is to
trace the alleged bribery to the Office of the President. 48 While it
may be a worthy endeavor to investigate the potential
culpability of high government officials, including the President,
in a given government transaction, it is simply not a task for the
Senate to perform. The role of the Legislature is to make laws,
not to determine anyones guilt of a crime or wrongdoing. Our
Constitution has not bestowed upon the Legislature the latter
role. Just as the Judiciary cannot legislate, neither can the
Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an
inquiry in aid of legislation and a "search for truth," which in
respondent Committees view appears to be equated with the
search for persons responsible for "anomalies" in government
contracts.

No matter how noble the intentions of respondent Committees

are, they cannot assume the power reposed upon our
prosecutorial bodies and courts. The determination of who is/are
liable for a crime or illegal activity, the investigation of the role
played by each official, the determination of who should be
haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially
the determination of criminal guilt, are not functions of the
Senate. Congress is neither a law enforcement nor a trial
agency. Moreover, it bears stressing that no inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate
task of the Congress, i.e. legislation. Investigations conducted
solely to gather incriminatory evidence and "punish" those
investigated are indefensible. There is no Congressional power
to expose for the sake of exposure. 49In this regard, the
pronouncement in Barenblatt v. United States50 is instructive,
thus:
Broad as it is, the power is not, however, without
limitations. Since Congress may only investigate into the areas
in which it may potentially legislate or appropriate, it cannot
inquire into matters which are within the exclusive province of
one of the other branches of the government. Lacking the
judicial power given to the Judiciary, it cannot inquire into
matters that are exclusively the concern of the Judiciary. Neither
can it supplant the Executive in what exclusively belongs to the
Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating
to the NBN Project have already been filed against President
Arroyo and other personalities before the Office of the
Ombudsman. Under our Constitution, it is the Ombudsman who
has the duty "to investigate any act or omission of any
public official, employee, office or agency when such act
or omission appears to be illegal, unjust, improper, or
inefficient."51 The Office of the Ombudsman is the body

CONSTI_CONGRESS-03
97
properly equipped by the Constitution and our laws to
preliminarily determine whether or not the allegations of
anomaly are true and who are liable therefor. The same holds
true for our courts upon which the Constitution reposes the duty
to determine criminal guilt with finality. Indeed, the rules of
procedure in the Office of the Ombudsman and the courts
are well-defined and ensure that the constitutionally
guaranteed rights of all persons, parties and witnesses
alike, are protected and safeguarded.
Should respondent Committees uncover information related to a
possible crime in the course of their investigation, they have the
constitutional duty to refer the matter to the appropriate agency
or branch of government. Thus, the Legislatures need for
information in an investigation of graft and corruption cannot be
deemed compelling enough to pierce the confidentiality of
information validly covered by executive privilege. As discussed
above, the Legislature can still legislate on graft and corruption
even without the information covered by the three (3) questions
subject of the petition.
Corollarily, respondent Committees justify their rejection of
petitioners claim of executive privilege on the ground that there
is no privilege when the information sought might involve a
crime or illegal activity, despite the absence of an
administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required
to overcome the presumption favoring confidentiality
turned, not on the nature of the presidential conduct that
the subpoenaed material might reveal, but, instead, on
the nature and appropriateness of the function in the
performance of which the material was sought, and the
degree to which the material was necessary to its
fulfillment.

Respondent Committees assert that Senate Select Committee

on Presidential Campaign Activities v. Nixon does not apply to
the case at bar because, unlike in the said case, no
impeachment proceeding has been initiated at present. The
Court is not persuaded. While it is true that no impeachment
proceeding has been initiated, however, complaints relating to
the NBN Project have already been filed against President
Arroyo and other personalities before the Office of the
Ombudsman. As the Court has said earlier, the prosecutorial
and judicial arms of government are the bodies equipped and
mandated by the Constitution and our laws to determine
whether or not the allegations of anomaly in the NBN Project are
true and, if so, who should be prosecuted and penalized for
criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to
the exacting standards of evidence essential to arrive at
accurate factual findings to which to apply the law. Hence,
Section 10 of the Senate Rules of Procedure Governing Inquiries
in Aid of Legislation provides that "technical rules of evidence
applicable to judicial proceedings which do not affect
substantive rights need not be observed by the Committee."
Court rules which prohibit leading, hypothetical, or repetitive
questions or questions calling for a hearsay answer, to name a
few, do not apply to a legislative inquiry. Every person, from the
highest public official to the most ordinary citizen, has the right
to be presumed innocent until proven guilty in proper
proceedings by a competent court or body.
IV
Respondent
Committees
Committed
Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave
abuse of discretion in issuing the contempt order because (1)

CONSTI_CONGRESS-03
98
there is no legitimate claim of executive privilege; (2) they did
not violate the requirements laid down in Senate v. Ermita; (3)
they issued the contempt order in accordance with their
internal Rules; (4) they did not violate the requirement under
Article VI, Section 21 of the Constitution requiring the
publication of their Rules; and (5) their issuance of the contempt
order is not arbitrary or precipitate.

informed what matters are to be covered by the inquiry. It will

also allow them to prepare the pertinent information and
documents. To our mind, these requirements concede too little
political costs or burdens on the part of Congress when viewed
vis--vis the immensity of its power of inquiry. The logic of these
requirements is well articulated in the study conducted by
William P. Marshall,55 to wit:

We reaffirm our earlier ruling.

A second concern that might be addressed is that the current

system allows committees to continually investigate the
Executive
without
constraint. One
process
solution
addressing this concern is to require each investigation
be tied to a clearly stated purpose. At present, the charters
of some congressional committees are so broad that virtually
any matter involving the Executive can be construed to fall
within their province. Accordingly, investigations can proceed
without articulation of specific need or purpose. A requirement
for a more precise charge in order to begin an inquiry should
immediately work to limit the initial scope of the investigation
and should also serve to contain the investigation once it is
instituted.Additionally, to the extent clear statements of
rules cause legislatures to pause and seriously consider
the constitutional implications of proposed courses of
action in other areas, they would serve that goal in the
context of congressional investigations as well.

The legitimacy of the claim of executive privilege having been

fully discussed in the preceding pages, we see no reason to
discuss it once again.
Respondent Committees second argument rests on the view
that the ruling in Senate v. Ermita, requiring invitations or
subpoenas to contain the "possible needed statute which
prompted the need for the inquiry" along with the "usual
indication of the subject of inquiry and the questions relative to
and in furtherance thereof" is not provided for by the
Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of
compliance with these requirements.
An unconstrained congressional investigative power, like an
unchecked Executive, generates its own abuses. Consequently,
claims that the investigative power of Congress has been
abused (or has the potential for abuse) have been raised many
times.53 Constant exposure to congressional subpoena takes its
toll on the ability of the Executive to function effectively. The
requirements set forth in Senate v. Ermita are modest
mechanisms that would not unduly limit Congress power. The
legislative inquiry must be confined to permissible areas and
thus, prevent the "roving commissions" referred to in the U.S.
case, Kilbourn v. Thompson.54 Likewise, witnesses have their
constitutional right to due process. They should be adequately

The key to this reform is in its details. A system that

allows a standing committee to simply articulate its
reasons to investigate pro forma does no more than
imposes minimal drafting burdens. Rather, the system
must be designed in a manner that imposes actual
burdens on the committee to articulate its need for
investigation and allows for meaningful debate about
the merits of proceeding with the investigation.(Emphasis
supplied)

CONSTI_CONGRESS-03
99
Clearly, petitioners request to be furnished an advance copy of
questions is a reasonable demand that should have been
granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November
13, 2007 made no specific reference to any pending Senate bill.
It did not also inform petitioner of the questions to be asked. As
it were, the subpoena merely commanded him to "testify on
what he knows relative to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that
their Rules of Procedure Governing Inquiries in Aid of
Legislation (the "Rules") are beyond the reach of this Court.
While it is true that this Court must refrain from reviewing the
internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists,
the Court has the duty to look into Congress compliance
therewith. We cannot turn a blind eye to possible violations of
the Constitution simply out of courtesy. In this regard, the
pronouncement in Arroyo v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all
deny to the courts the power to inquire into allegations that, in
enacting a law, a House of Congress failed to comply with its
own rules, in the absence of showing that there was a violation
of a constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus:
The Constitution empowers each House to determine its rules
of proceedings. It
may
not
by
its
rules
ignore
constitutional restraints or violate fundamental rights,
and there should be a reasonable relation between the
mode or method of proceeding established by the rule
and the result which is sought to be attained."
In the present case, the Courts exercise of its power of judicial
review is warranted because there appears to be a clear abuse

of the power of contempt on the part of

Committees. Section 18 of the Rules provides that:

respondent

"The Committee, by a vote of majority of all its members,

may punish for contempt any witness before it who disobey any
order of the Committee or refuses to be sworn or to testify or to
answer proper questions by the Committee or any of its
members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt
as to the validity of the contempt order because during the
deliberation of the three (3) respondent Committees, only seven
(7) Senators were present. This number could hardly fulfill the
majority requirement needed by respondentCommittee on
Accountability of Public Officers and Investigations which has a
membership
of
seventeen
(17)
Senators
and
respondent Committee on National Defense and Security which
has a membership of eighteen (18) Senators. With respect to
respondent Committee on Trade and Commerce which has a
membership of nine (9) Senators, only three (3) members were
present.57These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino
Pimentel, Jr. whereby the former raised the issue of lack of the
required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008
hearing before this Court, Senator Francis Pangilinan stated that
any defect in the committee voting had been cured because
two-thirds of the Senators effectively signed for the Senate in
plenary session.58
Obviously the deliberation of the respondent Committees that
led to the issuance of the contempt order is flawed. Instead of
being submitted to a full debate by all the members of the
respondent Committees, the contempt order was prepared and
thereafter presented to the other members for signing. As a

CONSTI_CONGRESS-03
100
result, the contempt order which was issued on January 30,
2008 was not a faithful representation of the proceedings that
took place on said date. Records clearly show that not all of
those who signed the contempt order were present during the
January 30, 2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
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 person appearing in or affected
by such inquiries shall be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part
of the witness settled expectation. If the limitations are not
observed, the witness settled expectation is shattered. Here,
how could there be a majority vote when the members in
attendance are not enough to arrive at such majority? Petitioner
has the right to expect that he can be cited in contempt only
through a majority vote in a proceeding in which the matter has
been fully deliberated upon. There is a greater measure of
protection for the witness when the concerns and objections of
the members are fully articulated in such proceeding. We do not
believe that respondent Committees have the discretion to set
aside their rules anytime they wish. This is especially true here
where what is involved is the contempt power. It must be
stressed that the Rules are not promulgated for their benefit.
More than anybody else, it is the witness who has the highest
stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to
respondent
Committees
fourth
argument.
Respondent
Committees argue that the Senate does not have to publish its
Rules because the same was published in 1995 and in 2006.
Further, they claim that the Senate is a continuing body; thus, it

is not required to republish the Rules, unless the same is

repealed or amended.
On the nature of the Senate as a "continuing body," this Court
sees fit to issue a clarification. Certainly, there is no debate that
the Senate as an institution is "continuing", as it is not
dissolved as an entity with each national election or change in
the composition of its members. However, in the conduct of its
day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress
before it. The Rules of the Senate itself confirms this when it
states:
RULE
UNFINISHED BUSINESS

XLIV

SEC. 123. Unfinished business at the end of the session shall be

taken up at the next session in the same status.
All pending matters and proceedings shall terminate
upon the expiration of one (1) Congress, but may be taken
by the succeeding Congress as if present for the first time.
(emphasis supplied)
Undeniably from the foregoing, all pending matters and
proceedings, i.e. unpassed bills and even legislative
investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress
and it is merely optional on the Senate of the succeeding
Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that
the Senate of the succeeding Congress (which will typically have
a different composition as that of the previous Congress) should
not be bound by the acts and deliberations of the Senate of
which they had no part. If the Senate is a continuing body even
with respect to the conduct of its business, then pending

CONSTI_CONGRESS-03
101
matters will not be deemed terminated with the expiration of
one Congress but will, as a matter of course, continue into the
next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution
and of the opposite nature of the conduct of its business is
reflected in its Rules. The Rules of the Senate (i.e. the Senates
main rules of procedure) states:
RULE
AMENDMENTS TO, OR REVISIONS OF, THE RULES

LI

SEC. 136. At the start of each session in which the Senators

elected in the preceding elections shall begin their term of
office, the President may endorse the Rules to the appropriate
committee for amendment or revision.
The Rules may also be amended by means of a motion which
should be presented at least one day before its consideration,
and the vote of the majority of the Senators present in the
session shall be required for its approval. (emphasis supplied)
RULE
DATE OF TAKING EFFECT

LII

SEC. 137. These Rules shall take effect on the date of their
adoption and shall remain in force until they are amended or
repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into
account the new composition of the Senate after an election and
the possibility of the amendment or revision of the Rules at the
start of eachsession in which the newly elected Senators shall
begin their term.
However, it is evident that the Senate has determined that its
main rules are intended to be valid from the date of their
adoption until they are amended or repealed. Such language is

conspicuously absent from the Rules. The Rules simply state

"(t)hese Rules shall take effect seven (7) days after publication
in two (2) newspapers of general circulation." 59 The latter does
not explicitly provide for the continued effectivity of such rules
until they are amended or repealed. In view of the difference in
the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would
continue into the next Congress. The Senate of the next
Congress may easily adopt different rules for its legislative
inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution
requiring that the inquiry be conducted in accordance with
the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative
inquiries in each Congress or otherwise make the published
rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or repealed
to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on
legislative inquiries to be effective even in the next Congress, it
could have easily adopted the same language it had used in its
main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed
that not all orders issued or proceedings conducted pursuant to
the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null
and void, considering that the rationale for the publication is to
protect the rights of witnesses as expressed in Section 21,
Article VI of the Constitution. Sans such violation, orders and
proceedings are considered valid and effective.
Respondent Committees last argument is that their issuance of
the contempt order is not precipitate or arbitrary. Taking into

CONSTI_CONGRESS-03
102
account the totality of circumstances, we find no merit in their
argument.
As we have stressed before, petitioner is not an unwilling
witness, and contrary to the assertion of respondent
Committees, petitioner did not assume that they no longer had
any other questions for him. He repeatedly manifested his
willingness to attend subsequent hearings and respond to new
matters. His only request was that he be furnished a copy of the
new questions in advance to enable him to adequately prepare
as a resource person. He did not attend the November 20, 2007
hearing because Executive Secretary Ermita requested
respondent Committees to dispense with his testimony on the
ground of executive privilege. Note that petitioner is an
executive official under the direct control and supervision of the
Chief Executive. Why punish petitioner for contempt when he
was merely directed by his superior? Besides, save for the three
(3) questions, he was very cooperative during the September
26, 2007 hearing.
On the part of respondent Committees, this Court observes their
haste and impatience. Instead of ruling on Executive Secretary
Ermitas claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner. They could
have informed petitioner of their ruling and given him time to
decide whether to accede or file a motion for reconsideration.
After all, he is not just an ordinary witness; he is a high- ranking
official in a co-equal branch of government. He is an alter ego of
the President. The same haste and impatience marked the
issuance of the contempt order, despite the absence of the
majority of the members of the respondent Committees, and
their subsequent disregard of petitioners motion for
reconsideration alleging the pendency of his petition
for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the

Executive and the Legislature are political branches of
government. In a free and democratic society, the interests of
these branches inevitably clash, but each must treat the other
with official courtesy and respect. This Court wholeheartedly
concurs with the proposition that it is imperative for the
continued health of our democratic institutions that we preserve
the constitutionally mandated checks and balances among the
different branches of government.
In the present case, it is respondent Committees contention
that their determination on the validity of executive privilege
should be binding on the Executive and the Courts. It is their
assertion that theirinternal procedures and deliberations cannot
be inquired into by this Court supposedly in accordance with the
principle of respect between co-equal branches of government.
Interestingly, it is a courtesy that they appear to be unwilling to
extend to the Executive (on the matter of executive privilege) or
this Court (on the matter of judicial review). It moves this Court
to wonder: In respondent Committees paradigm of checks and
balances, what are the checks to the Legislatures allencompassing, awesome power of investigation? It is a power,
like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees
well-intentioned efforts to ferret out corruption, even in the
highest echelons of government, such lofty intentions do not
validate or accord to Congress powers denied to it by the
Constitution and granted instead to the other branches of
government.
There is no question that any story of government malfeasance
deserves an inquiry into its veracity. As respondent Committees
contend, this is founded on the constitutional command of
transparency and public accountability. The recent clamor for a
"search for truth" by the general public, the religious community

CONSTI_CONGRESS-03
103
and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power.
However, the best venue for this noble undertaking is not in the
political branches of government. The customary partisanship
and the absence of generally accepted rules on evidence are
too great an obstacle in arriving at the truth or achieving justice
that meets the test of the constitutional guarantee of due
process of law. We believe the people deserve a more exacting
"search for truth" than the process here in question, if that is its
objective.
WHEREFORE,
respondent
Committees
Motion
Reconsideration dated April 8, 2008 is herebyDENIED.

for

SO ORDERED.
G.R. No. 170338

December 23, 2008

VIRGILIO
O.
GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON
PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY,
NATIONAL DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND
ELECTORAL REFORMS, respondents.
x----------------------x
G.R. No. 179275

December 23, 2008

SANTIAGO
JAVIER
RANADA
and
OSWALDO
D.
AGCAOILI, petitioners,
vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES,
REPRESENTED
BY
THE
SENATE
PRESIDENT
THE
HONORABLE MANUEL VILLAR, respondents.
x----------------------x

MAJ. LINDSAY REX SAGGE, petitioner-in-intervention

x----------------------x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C.
AQUINO, RODOLFO G. BIAZON, PANFILO M. LACSON,
LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and
ANTONIO F. TRILLANES, respondents-intervenors
DECISION
NACHURA, J.:
More than three years ago, tapes ostensibly containing a
wiretapped conversation purportedly between the President of
the Philippines and a high-ranking official of the Commission on
Elections (COMELEC) surfaced. They captured unprecedented
public attention and thrust the country into a controversy that
placed the legitimacy of the present administration on the line,
and resulted in the near-collapse of the Arroyo government. The
tapes, notoriously referred to as the "Hello Garci" tapes,
allegedly contained the Presidents instructions to COMELEC
Commissioner Virgilio Garcillano to manipulate in her favor
results of the 2004 presidential elections. These recordings were
to become the subject of heated legislative hearings conducted
separately by committees of both Houses of Congress.1
In the House of Representatives (House), on June 8, 2005, then
Minority Floor Leader Francis G. Escudero delivered a privilege
speech, "Tale of Two Tapes," and set in motion a congressional
investigation jointly conducted by the Committees on Public
Information, Public Order and Safety, National Defense and
Security, Information and Communications Technology, and
Suffrage and Electoral Reforms (respondent House Committees).
During the inquiry, several versions of the wiretapped
conversation emerged. But on July 5, 2005, National Bureau of
Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia

CONSTI_CONGRESS-03
104
and the lawyer of former NBI Deputy Director Samuel Ong
submitted to the respondent House Committees seven alleged
"original" tape recordings of the supposed three-hour taped
conversation. After prolonged and impassioned debate by the
committee members on the admissibility and authenticity of the
recordings, the tapes were eventually played in the chambers of
the House.2
On August 3, 2005, the respondent House Committees decided
to suspend the hearings indefinitely. Nevertheless, they decided
to prepare committee reports based on the said recordings and
the testimonies of the resource persons.3
Alarmed by these developments, petitioner Virgilio O. Garcillano
(Garcillano) filed with this Court a Petition for Prohibition and
Injunction, with Prayer for Temporary Restraining Order and/or
Writ of Preliminary Injunction4docketed as G.R. No. 170338. He
prayed that the respondent House Committees be restrained
from using these tape recordings of the "illegally obtained"
wiretapped conversations in their committee reports and for any
other purpose. He further implored that the said recordings and
any reference thereto be ordered stricken off the records of the
inquiry, and the respondent House Committees directed to
desist from further using the recordings in any of the House
proceedings.5
Without reaching its denouement, the House discussion and
debates on the "Garci tapes" abruptly stopped.
After more than two years of quiescence, Senator Panfilo Lacson
roused the slumbering issue with a privilege speech, "The
Lighthouse That Brought Darkness." In his discourse, Senator
Lacson promised to provide the public "the whole unvarnished
truth the whats, whens, wheres, whos and whys" of the
alleged wiretap, and sought an inquiry into the perceived

willingness of telecommunications providers to participate in

nefarious wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacsons
speech was referred to the Senate Committee on National
Defense and Security, chaired by Senator Rodolfo Biazon, who
had previously filed two bills6 seeking to regulate the sale,
purchase and use of wiretapping equipment and to prohibit the
Armed Forces of the Philippines (AFP) from performing electoral
duties.7
In the Senates plenary session the following day, a lengthy
debate ensued when Senator Richard Gordon aired his concern
on the possible transgression of Republic Act (R.A.) No. 4200 8 if
the body were to conduct a legislative inquiry on the matter. On
August 28, 2007, Senator Miriam Defensor-Santiago delivered a
privilege speech, articulating her considered view that the
Constitution absolutely bans the use, possession, replay or
communication of the contents of the "Hello Garci" tapes.
However, she recommended a legislative investigation into the
role of the Intelligence Service of the AFP (ISAFP), the Philippine
National Police or other government entities in the alleged
illegal wiretapping of public officials.9
On September 6, 2007, petitioners Santiago Ranada and
Oswaldo Agcaoili, retired justices of the Court of Appeals, filed
before this Court a Petition for Prohibition with Prayer for the
Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction,10 docketed as G.R. No. 179275, seeking
to bar the Senate from conducting its scheduled legislative
inquiry. They argued in the main that the intended legislative
inquiry violates R.A. No. 4200 and Section 3, Article III of the
Constitution.11

CONSTI_CONGRESS-03
105
As the Court did not issue an injunctive writ, the Senate
proceeded with its public hearings on the "Hello Garci" tapes on
September 7,12 1713 and October 1,14 2007.
15

Intervening as respondents, Senators Aquilino Q. Pimentel, Jr.,

Benigno Noynoy C. Aquino, Rodolfo G. Biazon, Panfilo M. Lacson,
Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F.
Trillanes filed their Comment16on the petition on September 25,
2007.
The Court subsequently heard the case on oral argument.17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the
ISAFP and one of the resource persons summoned by the
Senate to appear and testify at its hearings, moved to intervene
as petitioner in G.R. No. 179275.18
On November 20, 2007, the Court resolved to consolidate G.R.
Nos. 170338 and 179275.19
It may be noted that while both petitions involve the "Hello
Garci" recordings, they have different objectivesthe first is
poised at preventing the playing of the tapes in the House and
their subsequent inclusion in the committee reports, and the
second seeks to prohibit and stop the conduct of the Senate
inquiry on the wiretapped conversation.
The Court dismisses the first petition, G.R. No. 170338, and
grants the second, G.R. No. 179275.
-IBefore delving into the merits of the case, the Court shall first
resolve the issue on the parties standing, argued at length in
their pleadings.
In Tolentino v. COMELEC,20 we explained that "[l]egal standing
or locus standi refers to a personal and substantial interest in a

case such that the party has sustained or will sustain direct
injury because of the challenged governmental act x x x," thus,
generally, a party will be allowed to litigate only when (1) he
can show that he has personally suffered some actual or
threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged
action; and (3) the injury is likely to be redressed by a favorable
action.21
The gist of the question of standing is whether a party has
"alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions."22
However, considering that locus standi is a mere procedural
technicality, the Court, in recent cases, has relaxed the stringent
direct injury test. David v. Macapagal-Arroyo23 articulates that a
"liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute
actions involving the constitutionality or validity of laws,
regulations and rulings."24 The fairly recent Chavez v.
Gonzales25 even permitted a non-member of the broadcast
media, who failed to allege a personal stake in the outcome of
the controversy, to challenge the acts of the Secretary of Justice
and the National Telecommunications Commission. The majority,
in the said case, echoed the current policy that "this Court has
repeatedly and consistently refused to wield procedural barriers
as impediments to its addressing and resolving serious legal
questions that greatly impact on public interest, in keeping with
the Courts duty under the 1987 Constitution to determine
whether or not other branches of government have kept
themselves within the limits of the Constitution and the laws,
and that they have not abused the discretion given to them."26

CONSTI_CONGRESS-03
106
In G.R. No. 170338, petitioner Garcillano justifies his standing to
initiate the petition by alleging that he is the person alluded to
in the "Hello Garci" tapes. Further, his was publicly identified by
the members of the respondent committees as one of the voices
in the recordings.27 Obviously, therefore, petitioner Garcillano
stands to be directly injured by the House committees actions
and charges of electoral fraud. The Court recognizes his
standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their
standing by alleging that they are concerned citizens,
taxpayers, and members of the IBP. They are of the firm
conviction that any attempt to use the "Hello Garci" tapes will
further divide the country. They wish to see the legal and proper
use of public funds that will necessarily be defrayed in the
ensuing public hearings. They are worried by the continuous
violation of the laws and individual rights, and the blatant
attempt to abuse constitutional processes through the conduct
of legislative inquiries purportedly in aid of legislation. 28
Intervenor Sagge alleges violation of his right to due process
considering that he is summoned to attend the Senate hearings
without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries
in Aid of Legislation, but also of the intended legislation which
underpins the investigation. He further intervenes as a taxpayer
bewailing the useless and wasteful expenditure of public funds
involved in the conduct of the questioned hearings.29
Given that petitioners Ranada and Agcaoili allege an interest in
the execution of the laws and that intervenor Sagge asserts his
constitutional right to due process, 30 they satisfy the requisite
personal stake in the outcome of the controversy by merely
being citizens of the Republic.

Following the Courts ruling in Francisco, Jr. v. The House of

Representatives,31 we find sufficient petitioners Ranadas and
Agcaoilis and intervenor Sagges allegation that the continuous
conduct by the Senate of the questioned legislative inquiry will
necessarily involve the expenditure of public funds. 32 It should
be noted that inFrancisco, rights personal to then Chief Justice
Hilario G. Davide, Jr. had been injured by the alleged
unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this
case, they invariably invoked the vindication of their own rights
as taxpayers, members of Congress, citizens, individually or in a
class suit, and members of the bar and of the legal profession
which were also supposedly violated by the therein assailed
unconstitutional acts.33
Likewise, a reading of the petition in G.R. No. 179275 shows that
the petitioners and intervenor Sagge advance constitutional
issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. The issues are
of transcendental and paramount importance not only to the
public but also to the Bench and the Bar, and should be resolved
for the guidance of all.34
Thus, in the exercise of its sound discretion and given the liberal
attitude it has shown in prior cases climaxing in the more recent
case of Chavez, the Court recognizes the legal standing of
petitioners Ranada and Agcaoili and intervenor Sagge.
- II The Court, however, dismisses G.R. No. 170338 for being moot
and academic. Repeatedly stressed in our prior decisions is the
principle that the exercise by this Court of judicial power is
limited to the determination and resolution of actual cases and
controversies.35 By actual cases, we mean existing conflicts
appropriate or ripe for judicial determination, not conjectural or

CONSTI_CONGRESS-03
107
anticipatory, for otherwise the decision of the Court will amount
to an advisory opinion. The power of judicial inquiry does not
extend to hypothetical questions because any attempt at
abstraction could only lead to dialectics and barren legal
questions
and
to
sterile
conclusions
unrelated
to
actualities.36 Neither will the Court determine a moot question in
a case in which no practical relief can be granted. A case
becomes moot when its purpose has become stale. 37 It is
unnecessary to indulge in academic discussion of a case
presenting a moot question as a judgment thereon cannot have
any practical legal effect or, in the nature of things, cannot be
enforced.38
In G.R. No. 170338, petitioner Garcillano implores from the
Court, as aforementioned, the issuance of an injunctive writ to
prohibit the respondent House Committees from playing the
tape recordings and from including the same in their committee
report. He likewise prays that the said tapes be stricken off the
records of the House proceedings. But the Court notes that the
recordings were already played in the House and heard by its
members.39 There is also the widely publicized fact that the
committee reports on the "Hello Garci" inquiry were completed
and submitted to the House in plenary by the respondent
committees.40 Having been overtaken by these events, the
Garcillano petition has to be dismissed for being moot and
academic. After all, prohibition is a preventive remedy to
restrain the doing of an act about to be done, and not intended
to provide a remedy for an act already accomplished.41
- III As to the petition in G.R. No. 179275, the Court grants the same.
The Senate cannot be allowed to continue with the conduct of
the questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides

that "[t]he 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 requisite of publication of the rules is intended
to satisfy the basic requirements of due process. 42 Publication is
indeed imperative, for it will be the height of injustice to punish
or otherwise burden a citizen for the transgression of a law or
rule of which he had no notice whatsoever, not even a
constructive one.43 What constitutes publication is set forth in
Article 2 of the Civil Code, which provides that "[l]aws shall take
effect after 15 days following the completion of their publication
either in the Official Gazette, or in a newspaper of general
circulation in the Philippines."44
The respondents in G.R. No. 179275 admit in their pleadings and
even on oral argument that the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in
2006.45 With respect to the present Senate of the 14 th Congress,
however, of which the term of half of its members commenced
on June 30, 2007, no effort was undertaken for the publication of
these rules when they first opened their session.
Recently, the Court had occasion to rule on this very same
question. In Neri v. Senate Committee on Accountability of
Public Officers and Investigations,46 we said:
Fourth, we find merit in the argument of the OSG that
respondent Committees likewise violated Section 21 of Article VI
of the Constitution, requiring that the inquiry be in accordance
with the "duly published rules of procedure." We quote the
OSGs explanation:
The phrase "duly published rules of procedure" requires the
Senate of every Congress to publish its rules of procedure

CONSTI_CONGRESS-03
108
governing inquiries in aid of legislation because every Senate is
distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the
Senates membership, the composition of the Senate also
changes by the end of each term. Each Senate may thus enact a
different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of
legislation conducted by the 14th Senate, are therefore,
procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring
Opinion, reinforces this ruling with the following rationalization:
The present Senate under the 1987 Constitution is no longer a
continuing legislative body. The present Senate has twenty-four
members, twelve of whom are elected every three years for a
term of six years each. Thus, the term of twelve Senators
expires every three years, leaving less than a majority of
Senators to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a majority of
Senators to "constitute a quorum to do business." Applying the
same reasoning inArnault v. Nazareno, the Senate under the
1987 Constitution is not a continuing body because less than
majority of the Senators continue into the next Congress. The
consequence is that the Rules of Proceduremust be republished
by the Senate after every expiry of the term of twelve
Senators.47
The subject was explained with greater lucidity in
our Resolution48 (On the Motion for Reconsideration) in the same
case, viz.:
On the nature of the Senate as a "continuing body," this Court
sees fit to issue a clarification. Certainly, there is no debate that
the Senate as an institution is "continuing," as it is not
dissolved as an entity with each national election or change in

the composition of its members. However, in the conduct of its

day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress
before it. The Rules of the Senate itself confirms this when it
states:
RULE
UNFINISHED BUSINESS

XLIV

SEC. 123. Unfinished business at the end of the session shall be

taken up at the next session in the same status.
All pending matters and proceedings shall terminate
upon the expiration of one (1) Congress, but may be taken
by the succeeding Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and
proceedings, i.e., unpassed bills and even legislative
investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress
and it is merely optional on the Senate of the succeeding
Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that
the Senate of the succeeding Congress (which will typically have
a different composition as that of the previous Congress) should
not be bound by the acts and deliberations of the Senate of
which they had no part. If the Senate is a continuing body even
with respect to the conduct of its business, then pending
matters will not be deemed terminated with the expiration of
one Congress but will, as a matter of course, continue into the
next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution
and of the opposite nature of the conduct of its business is
reflected in its Rules. The Rules of the Senate (i.e. the Senates
main rules of procedure) states:

CONSTI_CONGRESS-03
109
RULE
AMENDMENTS TO, OR REVISIONS OF, THE RULES

LI

Congress may easily adopt different rules for its legislative

inquiries which come within the rule on unfinished business.

SEC. 136. At the start of each session in which the Senators

elected in the preceding elections shall begin their term of
office, the President may endorse the Rules to the appropriate
committee for amendment or revision.

The language of Section 21, Article VI of the Constitution

requiring that the inquiry be conducted in accordance with the
duly published rules of procedure is categorical. It is incumbent
upon the Senate to publish the rules for its legislative inquiries
in each Congress or otherwise make the published rules clearly
state that the same shall be effective in subsequent Congresses
or until they are amended or repealed to sufficiently put public
on notice.

The Rules may also be amended by means of a motion which

should be presented at least one day before its consideration,
and the vote of the majority of the Senators present in the
session shall be required for its approval.
RULE
DATE OF TAKING EFFECT

LII

SEC. 137. These Rules shall take effect on the date of their
adoption and shall remain in force until they are amended or
repealed.
Section 136 of the Senate Rules quoted above takes into
account the new composition of the Senate after an election and
the possibility of the amendment or revision of the Rules at the
start of each session in which the newly elected Senators shall
begin their term.
However, it is evident that the Senate has determined that its
main rules are intended to be valid from the date of their
adoption until they are amended or repealed. Such language is
conspicuously absent from theRules. The Rules simply state
"(t)hese Rules shall take effect seven (7) days after publication
in two (2) newspapers of general circulation." The latter does
not explicitly provide for the continued effectivity of such rules
until they are amended or repealed. In view of the difference in
the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would
continue into the next Congress. The Senate of the next

If it was the intention of the Senate for its present rules on

legislative inquiries to be effective even in the next Congress, it
could have easily adopted the same language it had used in its
main rules regarding effectivity.
Respondents justify their non-observance of the constitutionally
mandated publication by arguing that the rules have never been
amended since 1995 and, despite that, they are published in
booklet form available to anyone for free, and accessible to the
public at the Senates internet web page.49
The Court does not agree. The absence of any amendment to
the rules cannot justify the Senates defiance of the clear and
unambiguous language of Section 21, Article VI of the
Constitution. The organic law instructs, without more, that the
Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of
procedure, and does not make any distinction whether or not
these rules have undergone amendments or revision. The
constitutional mandate to publish the said rules prevails over
any custom, practice or tradition followed by the Senate.
Justice Carpios response to the same argument raised by the
respondents is illuminating:

CONSTI_CONGRESS-03
110
The publication of the Rules of Procedure in the website of the
Senate, or in pamphlet form available at the Senate, is not
sufficient under the Taada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of
general circulation. The Rules of Procedure even provide that
the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation," precluding any other
form of publication. Publication in accordance with Taada is
mandatory to comply with the due process requirement because
the Rules of Procedure put a persons liberty at risk. A person
who violates the Rules of Procedure could be arrested and
detained by the Senate.
The invocation by the respondents of the provisions of R.A. No.
8792,50 otherwise known as the Electronic Commerce Act of
2000, to support their claim of valid publication through the
internet is all the more incorrect. R.A. 8792 considers an
electronic data message or an electronic document as the
functional equivalent of a written document only for evidentiary
purposes.51 In other words, the law merely recognizes the
admissibility in evidence (for their being the original) of
electronic data messages and/or electronic documents.52 It does
not make the internet a medium for publishing laws, rules and
regulations.
Given this discussion, the respondent Senate Committees,
therefore, could not, in violation of the Constitution, use its
unpublished rules in the legislative inquiry subject of these
consolidated cases. The conduct of inquiries in aid of legislation
by the Senate has to be deferred until it shall have caused the
publication of the rules, because it can do so only "in
accordance with its duly published rules of procedure."
Very recently, the Senate caused the publication of the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation in
the October 31, 2008 issues of Manila Bulletin and Malaya.

While we take judicial notice of this fact, the recent publication

does not cure the infirmity of the inquiry sought to be prohibited
by the instant petitions. Insofar as the consolidated cases are
concerned, the legislative investigation subject thereof still
could not be undertaken by the respondent Senate Committees,
because no published rules governed it, in clear contravention
of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to
discuss the other issues raised in the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and
the petition in G.R. No. 179275 is GRANTED. Let a writ of
prohibition be issued enjoining the Senate of the Republic of the
Philippines and/or any of its committees from conducting any
inquiry in aid of legislation centered on the "Hello Garci" tapes.
SO ORDERED.
G.R. No. 166715

August 14, 2008

ABAKADA
GURO
PARTY
LIST
(formerly
1
AASJS) OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED
VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B.
GOROSPE
and
EDWIN
R.
SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of
Finance, HON. GUILLERMO L. PARAYNO, JR., in his
capacity as Commissioner of the Bureau of Internal
Revenue, and HON. ALBERTO D. LINA, in his Capacity as
Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:

CONSTI_CONGRESS-03
111
This petition for prohibition1 seeks to prevent respondents from
implementing and enforcing Republic Act (RA) 9335 2 (Attrition
Act of 2005).
RA 9335 was enacted to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR)
and the Bureau of Customs (BOC). The law intends to encourage
BIR and BOC officials and employees to exceed their revenue
targets by providing a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund (Fund) and a
Revenue Performance Evaluation Board (Board).3 It covers all
officials and employees of the BIR and the BOC with at least six
months of service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC
in excess of their revenue targets for the year, as determined by
the Development Budget and Coordinating Committee (DBCC).
Any incentive or reward is taken from the fund and allocated to
the BIR and the BOC in proportion to their contribution in the
excess collection of the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the
Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and
Management (DBM) or his/her Undersecretary, the Director
General of the National Economic Development Authority
(NEDA) or his/her Deputy Director General, the Commissioners
of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a
representative from the officials nominated by their recognized
organization.6
Each Board has the duty to (1) prescribe the rules and
guidelines for the allocation, distribution and release of the
Fund; (2) set criteria and procedures for removing from the
service officials and employees whose revenue collection falls

short of the target; (3) terminate personnel in accordance with

the criteria adopted by the Board; (4) prescribe a system for
performance evaluation; (5) perform other functions, including
the issuance of rules and regulations and (6) submit an annual
report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service
Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA 9335, 8 to be approved
by a Joint Congressional Oversight Committee created for such
purpose.9
Petitioners, invoking their right as taxpayers filed this petition
challenging the constitutionality of RA 9335, a tax reform
legislation. They contend that, by establishing a system of
rewards and incentives, the law "transform[s] the officials and
employees of the BIR and the BOC into mercenaries and bounty
hunters" as they will do their best only in consideration of such
rewards. Thus, the system of rewards and incentives invites
corruption and undermines the constitutionally mandated duty
of these officials and employees to serve the people with utmost
responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of
rewards and incentives only to officials and employees of the
BIR and the BOC violates the constitutional guarantee of equal
protection. There is no valid basis for classification or distinction
as to why such a system should not apply to officials and
employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the
power to fix revenue targets to the President as it lacks a
sufficient standard on that matter. While Section 7(b) and (c) of
RA 9335 provides that BIR and BOC officials may be dismissed
from the service if their revenue collections fall short of the
target by at least 7.5%, the law does not, however, fix the

CONSTI_CONGRESS-03
112
revenue targets to be achieved. Instead, the fixing of revenue
targets has been delegated to the President without sufficient
standards. It will therefore be easy for the President to fix an
unrealistic and unattainable target in order to dismiss BIR or
BOC personnel.
Finally, petitioners assail the creation of a congressional
oversight committee on the ground that it violates the doctrine
of separation of powers. While the legislative function is deemed
accomplished and completed upon the enactment and approval
of the law, the creation of the congressional oversight
committee
permits
legislative
participation
in
the
implementation and enforcement of the law.
In their comment, respondents, through the Office of the
Solicitor General, question the petition for being premature as
there is no actual case or controversy yet. Petitioners have not
asserted any right or claim that will necessitate the exercise of
this Courts jurisdiction. Nevertheless, respondents acknowledge
that public policy requires the resolution of the constitutional
issues involved in this case. They assert that the allegation that
the reward system will breed mercenaries is mere speculation
and does not suffice to invalidate the law. Seen in conjunction
with the declared objective of RA 9335, the law validly classifies
the BIR and the BOC because the functions they perform are
distinct from those of the other government agencies and
instrumentalities. Moreover, the law provides a sufficient
standard that will guide the executive in the implementation of
its provisions. Lastly, the creation of the congressional oversight
committee under the law enhances, rather than violates,
separation of powers. It ensures the fulfillment of the legislative
policy and serves as a check to any over-accumulation of power
on the part of the executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the
parties, the Court finds that petitioners have failed to overcome

the presumption of constitutionality in favor of RA 9335, except

as shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights,
an assertion of opposite legal claims susceptible of judicial
adjudication.10 A closely related requirement is ripeness, that is,
the question must be ripe for adjudication. And a constitutional
question is ripe for adjudication when the governmental act
being challenged has a direct adverse effect on the individual
challenging it.11Thus, to be ripe for judicial adjudication, the
petitioner must show a personal stake in the outcome of the
case or an injury to himself that can be redressed by a favorable
decision of the Court.12
In this case, aside from the general claim that the dispute has
ripened into a judicial controversy by the mere enactment of the
law even without any further overt act,13 petitioners fail either to
assert any specific and concrete legal claim or to demonstrate
any direct adverse effect of the law on them. They are unable to
show a personal stake in the outcome of this case or an injury to
themselves. On this account, their petition is procedurally
infirm.
This notwithstanding, public interest requires the resolution of
the constitutional issues raised by petitioners. The grave nature
of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the
legislative branch is alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary
to settle the dispute.14
Accountability
Public Officers
Section 1, Article 11 of the Constitution states:

of

CONSTI_CONGRESS-03
113
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.
Public office is a public trust. It must be discharged by its holder
not for his own personal gain but for the benefit of the public for
whom he holds it in trust. By demanding accountability and
service with responsibility, integrity, loyalty, efficiency,
patriotism and justice, all government officials and employees
have the duty to be responsive to the needs of the people they
are called upon to serve.
Public officers enjoy the presumption of regularity in the
performance of their duties. This presumption necessarily
obtains in favor of BIR and BOC officials and employees. RA
9335 operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for the purpose of
encouraging the officials and employees of the BIR and the BOC
to exceed their revenue targets and optimize their revenuegeneration capability and collection.15
The presumption is disputable but proof to the contrary is
required to rebut it. It cannot be overturned by mere conjecture
or denied in advance (as petitioners would have the Court do)
specially in this case where it is an underlying principle to
advance a declared public policy.
Petitioners claim that the implementation of RA 9335 will turn
BIR and BOC officials and employees into "bounty hunters and
mercenaries" is not only without any factual and legal basis; it is
also purely speculative.
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear
and unequivocal breach of the Constitution, not a doubtful and

equivocal one.16 To invalidate RA 9335 based on petitioners

baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which
approved it.
Public service is its own reward. Nevertheless, public officers
may by law be rewarded for exemplary and exceptional
performance. A system of incentives for exceeding the set
expectations of a public office is not anathema to the concept of
public accountability. In fact, it recognizes and reinforces
dedication to duty, industry, efficiency and loyalty to public
service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated
a law which awards to officers of the customs as well as other
parties an amount not exceeding one-half of the net proceeds of
forfeitures in violation of the laws against smuggling.
Citing Dorsheimer v. United States,18 the U.S. Supreme Court
said:
The offer of a portion of such penalties to the collectors is to
stimulate and reward their zeal and industry in detecting
fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law
be entitled to a reward when, as a consequence of their zeal in
the enforcement of tax and customs laws, they exceed their
revenue targets. In addition, RA 9335 establishes safeguards to
ensure that the reward will not be claimed if it will be either the
fruit of "bounty hunting or mercenary activity" or the product of
the irregular performance of official duties. One of these
precautionary measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the
BIR and the BOC. The officials, examiners, and employees of
the [BIR] and the [BOC] who violate this Act or who are guilty of
negligence, abuses or acts of malfeasance or misfeasance or fail

CONSTI_CONGRESS-03
114
to exercise extraordinary diligence in the performance of their
duties shall be held liable for any loss or injury suffered by any
business establishment or taxpayer as a result of such violation,
negligence, abuse, malfeasance, misfeasance or failure to
exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is
equality under the same conditions and among persons similarly
situated; it is equality among equals, not similarity of treatment
of persons who are classified based on substantial differences in
relation to the object to be accomplished. 19When things or
persons are different in fact or circumstance, they may be
treated in law differently. InVictoriano v. Elizalde Rope Workers
Union,20 this Court declared:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the
[S]tate. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality
of operation of statutes does not mean indiscriminate operation
on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that
things which are different in fact be treated in law as
though they were the same. The equal protection clause
does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the
territory within which it is to operate.
The equal protection of the laws clause of the Constitution
allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of things

in speculation or practice because they agree with one another

in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so
that it goes without saying that the mere fact of inequality in no
manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable,
which means that the classification should be based on
substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that
it must not be limited to existing conditions only; and
that it must apply equally to each member of the class.
This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the
purpose of enacting laws over matters within its jurisdiction, the
state is recognized as enjoying a wide range of discretion. It is
not necessary that the classification be based on scientific or
marked differences of things or in their relation. Neither is it
necessary that the classification be made with mathematical
nicety. Hence, legislative classification may in many cases
properly rest on narrow distinctions, for the equal protection
guaranty does not preclude the legislature from recognizing
degrees of evil or harm, and legislation is addressed to evils as
they may appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification,
that is, a classification that has a reasonable foundation or
rational basis and not arbitrary.22 With respect to RA 9335, its
expressed public policy is the optimization of the revenuegeneration capability and collection of the BIR and the
BOC.23 Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives
and/or sanctions provided in the law should logically pertain to
the said agencies. Moreover, the law concerns only the BIR and

CONSTI_CONGRESS-03
115
the BOC because they have the common distinct primary
function of generating revenues for the national government
through the collection of taxes, customs duties, fees and
charges.

(1) Collect custom duties, taxes and the corresponding

fees, charges and penalties;

The BIR performs the following functions:

(3) Exercise police authority for the enforcement of tariff and

customs laws;

Sec. 18. The Bureau of Internal Revenue. The Bureau of

Internal Revenue, which shall be headed by and subject to the
supervision and control of the Commissioner of Internal
Revenue, who shall be appointed by the President upon the
recommendation of the Secretary [of the DOF], shall have the
following functions:
(1) Assess and collect all taxes, fees and charges and
account for all revenues collected;
(2) Exercise duly delegated police powers for the proper
performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal
economic activities;
(4) Exercise supervision and control over its constituent and
subordinate units; and
(5) Perform such other functions as may be provided by law.24
xxx

xxx

xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. The Bureau of Customs which
shall be headed and subject to the management and control of
the Commissioner of Customs, who shall be appointed by the
President upon the recommendation of the Secretary[of the
DOF] and hereinafter referred to as Commissioner, shall have
the following functions:

(2) Account for all customs revenues collected;

(4) Prevent and suppress smuggling, pilferage and all other

economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities
in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
xxx

xxx

xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They
principally perform the special function of being the
instrumentalities through which the State exercises one of its
great inherent functions taxation. Indubitably, such substantial
distinction is germane and intimately related to the purpose of
the law. Hence, the classification and treatment accorded to the
BIR and the BOC under RA 9335 fully satisfy the demands of
equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative
power: (1) the completeness test and (2) the sufficient standard
test. A law is complete when it sets forth therein the policy to be

CONSTI_CONGRESS-03
116
executed, carried out or implemented by the delegate. 26 It lays
down a sufficient standard when it provides adequate guidelines
or limitations in the law to map out the boundaries of the
delegates authority and prevent the delegation from running
riot.27 To be sufficient, the standard must specify the limits of the
delegates authority, announce the legislative policy and
identify the conditions under which it is to be implemented. 28
RA 9335 adequately states the policy and standards to guide
the President in fixing revenue targets and the implementing
agencies in carrying out the provisions of the law. Section 2
spells out the policy of the law:
SEC. 2. Declaration of Policy. It is the policy of the State to
optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund and a
Revenue Performance Evaluation Board in the above agencies
for the purpose of encouraging their officials and employees to
exceed their revenue targets.
Section 4 "canalized within banks that keep it from
overflowing"29 the delegated power to the President to fix
revenue targets:
SEC. 4. Rewards and Incentives Fund. A Rewards and
Incentives Fund, hereinafter referred to as the Fund, is hereby
created, to be sourced from the collection of the BIR and the
BOC in excess of their respective revenue targets of the
year, as determined by the Development Budget and
Coordinating
Committee
(DBCC),
in
the
following
percentages:

30% or below

15%

More than 30%

15% of the first 30% plus 2

remaining excess

The Fund shall be deemed automatically appropriated the year

immediately following the year when the revenue collection
target was exceeded and shall be released on the same fiscal
year.
Revenue targets shall refer to the original estimated
revenue collection expected of the BIR and the BOC for a
given fiscal year as stated in the Budget of Expenditures
and Sources of Financing (BESF) submitted by the
President to Congress. The BIR and the BOC shall submit to
the DBCC the distribution of the agencies revenue targets as
allocated among its revenue districts in the case of the BIR, and
the collection districts in the case of the BOC.
xxx

xxx

xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue

collection expected respectively of the BIR and the BOC for a
given fiscal year as approved by the DBCC and stated in the
BESF submitted by the President to Congress. 30 Thus, the
determination of revenue targets does not rest solely on the
President as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Boards
authority and identifies the conditions under which officials and
employees whose revenue collection falls short of the target by
at least 7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. The Board in the

agency shall have the following powers and functions:
Excess of Collection of the Percent (%) of the Excess Collection to
Excess the Revenue Targets Accrue to the Fund
xxx
xxx
xxx

CONSTI_CONGRESS-03
117
(b) To set the criteria and procedures for removing from
service officials and employees whose revenue collection
falls short of the target by at least seven and a half
percent (7.5%), with due consideration of all relevant
factors affecting the level of collection as provided in the
rules and regulations promulgated under this Act, subject to
civil service laws, rules and regulations and compliance
with substantive and procedural due process: Provided,
That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created,
not exceeding two years in operation, as has no historical record
of collection performance that can be used as basis for
evaluation; and
2. Where the revenue or customs official or employee is a recent
transferee in the middle of the period under consideration
unless the transfer was due to nonperformance of revenue
targets or potential nonperformance of revenue targets:
Provided, however, That when the district or area of
responsibility covered by revenue or customs officials or
employees has suffered from economic difficulties brought
about by natural calamities orforce majeure or economic causes
as may be determined by the Board, termination shall be
considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria
adopted in the preceding paragraph: Provided, That such
decision shall be immediately executory: Provided, further,
That the application of the criteria for the separation of
an official or employee from service under this Act shall
be without prejudice to the application of other relevant
laws on accountability of public officers and employees,
such as the Code of Conduct and Ethical Standards of
Public Officers and Employees and the Anti-Graft and
Corrupt Practices Act;

xxx

xxx

xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of

officials and employees of the BIR and the BOC. The guarantee
of security of tenure only means that an employee cannot be
dismissed from the service for causes other than those provided
by law and only after due process is accorded the employee. 31 In
the case of RA 9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of the target by
at least 7.5%) with due consideration of all relevant factors
affecting the level of collection. This standard is analogous to
inefficiency and incompetence in the performance of official
duties, a ground for disciplinary action under civil service
laws.32 The action for removal is also subject to civil service
laws, rules and regulations and compliance with substantive and
procedural due process.
At any rate, this Court has recognized the following as sufficient
standards: "public interest," "justice and equity," "public
convenience and welfare" and "simplicity, economy and
welfare."33 In this case, the declared policy of optimization of the
revenue-generation capability and collection of the BIR and the
BOC is infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. There is
hereby created a Joint Congressional Oversight Committee
composed of seven Members from the Senate and seven
Members from the House of Representatives. The Members from
the Senate shall be appointed by the Senate President, with at
least two senators representing the minority. The Members from
the House of Representatives shall be appointed by the Speaker
with at least two members representing the minority. After the
Oversight Committee will have approved the implementing rules

CONSTI_CONGRESS-03
118
and regulations (IRR) it shall thereafter
officio and therefore cease to exist.

become functus

The Joint Congressional Oversight Committee in RA 9335 was

created for the purpose of approving the implementing rules
and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR,
BOC and CSC. On May 22, 2006, it approved the said IRR. From
then on, it became functus officio and ceased to exist. Hence,
the issue of its alleged encroachment on the executive function
of implementing and enforcing the law may be considered moot
and academic.
This notwithstanding, this might be as good a time as any for
the Court to confront the issue of the constitutionality of the
Joint Congressional Oversight Committee created under RA 9335
(or other similar laws for that matter).

The power of oversight has been held to be intrinsic in the grant

of legislative power itself and integral to the checks and
balances inherent in a democratic system of government. x x x
xxxxxx
Over the years, Congress has invoked its oversight power with
increased frequency to check the perceived "exponential
accumulation of power" by the executive branch. By the
beginning of the 20th century, Congress has delegated an
enormous amount of legislative authority to the executive
branch and the administrative agencies. Congress, thus, uses its
oversight power to make sure that the administrative agencies
perform their functions within the authority delegated to them.
xxxxxxxxx
Categories of congressional oversight functions

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on

the concept of congressional oversight in Macalintal v.
Commission on Elections34 is illuminating:

The acts done by Congress purportedly in the exercise of its

oversight powers may be divided into three categories,
namely: scrutiny, investigation and supervision.

Concept and bases of congressional oversight

a. Scrutiny

Broadly defined, the power of oversight embraces all

activities undertaken by Congress to enhance its
understanding
of
and
influence
over
the implementation of legislation it has enacted. Clearly,
oversight
concerns post-enactment measures
undertaken by Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to determine
whether agencies are properly administered, (c) to
eliminate executive waste and dishonesty, (d) to prevent
executive usurpation of legislative authority, and (d) to
assess executive conformity with the congressional
perception of public interest.

Congressional scrutiny implies a lesser intensity and continuity

of attention to administrative operations. Its primary purpose is
to determine economy and efficiency of the operation of
government activities. In the exercise of legislative scrutiny,
Congress may request information and report from the other
branches of government. It can give recommendations or pass
resolutions for consideration of the agency involved.
xxx

xxx

xxx

b. Congressional investigation
While congressional scrutiny is regarded as a passive process of
looking at the facts that are readily available, congressional
investigation involves a more intense digging of facts. The

CONSTI_CONGRESS-03
119
power of Congress to conduct investigation is recognized by the
1987 Constitution under section 21, Article VI, xxx
xxx
xxx
c. Legislative supervision
The third and most encompassing form by which Congress
exercises its oversight power is thru legislative supervision.
"Supervision" connotes a continuing and informed awareness on
the part of a congressional committee regarding executive
operations in a given administrative area. While both
congressional scrutiny and investigation involve inquiry
into past executive branch actions in order to influence future
executive branch performance, congressional supervision allows
Congress to scrutinize the exercise of delegated law-making
authority, and permits Congress to retain part of that delegated
authority.
Congress exercises supervision over the executive agencies
through its veto power. It typically utilizes veto provisions when
granting the President or an executive agency the power to
promulgate regulations with the force of law. These provisions
require the President or an agency to present the proposed
regulations to Congress, which retains a "right" to approve or
disapprove any regulation before it takes effect. Such legislative
veto provisions usually provide that a proposed regulation will
become a law after the expiration of a certain period of time,
only if Congress does not affirmatively disapprove of the
regulation in the meantime. Less frequently, the statute
provides that a proposed regulation will become law if Congress
affirmatively approves it.
Supporters of legislative veto stress that it is necessary to
maintain the balance of power between the legislative and the
executive branches of government as it offers lawmakers a way
to delegate vast power to the executive branch or to

independent agencies while retaining the option to cancel

particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this
arrangement promotes democratic accountability as it provides
legislative check on the activities of unelected administrative
agencies. One proponent thus explains:
It is too late to debate the merits of this delegation policy: the
policy is too deeply embedded in our law and practice. It
suffices to say that the complexities of modern government
have often led Congress-whether by actual or perceived
necessity- to legislate by declaring broad policy goals and
general statutory standards, leaving the choice of policy options
to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the
judgment of parties who may or may not have participated in or
agreed with the development of those aims. Consequently,
absent safeguards, in many instances the reverse of our
constitutional scheme could be effected: Congress proposes, the
Executive disposes. One safeguard, of course, is the legislative
power to enact new legislation or to change existing law. But
without some means of overseeing post enactment activities of
the executive branch, Congress would be unable to determine
whether its policies have been implemented in accordance with
legislative intent and thus whether legislative intervention is
appropriate.
Its opponents, however, criticize the legislative veto as undue
encroachment upon the executive prerogatives. They urge
that any post-enactment measures undertaken by the
legislative branch should be limited to scrutiny and
investigation;
any
measure
beyond
that
would
undermine the separation of powers guaranteed by the
Constitution. They contend that legislative veto constitutes an
impermissible evasion of the Presidents veto authority and
intrusion into the powers vested in the executive or judicial

CONSTI_CONGRESS-03
120
branches of government. Proponents counter that legislative
veto enhances separation of powers as it prevents the executive
branch and independent agencies from accumulating too much
power. They submit that reporting requirements and
congressional committee investigations allow Congress to
scrutinize only the exercise of delegated law-making authority.
They do not allow Congress to review executive proposals
before they take effect and they do not afford the opportunity
for ongoing and binding expressions of congressional intent. In
contrast, legislative veto permits Congress to participate
prospectively in the approval or disapproval of "subordinate law"
or those enacted by the executive branch pursuant to a
delegation of authority by Congress. They further argue that
legislative veto "is a necessary response by Congress to the
accretion of policy control by forces outside its chambers." In an
era of delegated authority, they point out that legislative veto
"is the most efficient means Congress has yet devised to retain
control over the evolution and implementation of its policy as
declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S.
Supreme Court resolved the validity of legislative veto
provisions. The case arose from the order of the immigration
judge suspending the deportation of Chadha pursuant to
244(c)(1) of the Immigration and Nationality Act. The United
States House of Representatives passed a resolution vetoing the
suspension pursuant to 244(c)(2) authorizing either House of
Congress, by resolution, to invalidate the decision of the
executive branch to allow a particular deportable alien to remain
in the United States. The immigration judge reopened the
deportation proceedings to implement the House order and the
alien was ordered deported. The Board of Immigration Appeals
dismissed the aliens appeal, holding that it had no power to
declare unconstitutional an act of Congress. The United States
Court of Appeals for Ninth Circuit held that the House was
without constitutional authority to order the aliens deportation

and that 244(c)(2) violated the constitutional doctrine on

separation of powers.
On appeal, the U.S. Supreme Court declared 244(c)(2)
unconstitutional. But the Court shied away from the issue
of separation of powers and instead held that the provision
violates the presentment clause and bicameralism. It held that
the one-house veto was essentially legislative in purpose and
effect. As such, it is subject to the procedures set out in Article I
of the Constitution requiring the passage by a majority of both
Houses and presentment to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in
memorandum decision, two lower court decisions invalidating
the legislative veto provisions in the Natural Gas Policy Act of
1978 and the Federal Trade Commission Improvement Act of
1980. Following this precedence, lower courts invalidated
statutes containing legislative veto provisions although some of
these provisions required the approval of both Houses of
Congress and thus met the bicameralism requirement of Article
I. Indeed, some of these veto provisions were not even
exercised.35(emphasis supplied)
In Macalintal, given the concept and configuration of the power
of congressional oversight and considering the nature and
powers of a constitutional body like the Commission on
Elections, the Court struck down the provision in RA 9189 (The
Overseas Absentee Voting Act of 2003) creating a Joint
Congressional Committee. The committee was tasked not only
to monitor and evaluate the implementation of the said law but
also to review, revise, amend and approve the IRR promulgated
by the Commission on Elections. The Court held that these
functions infringed on the constitutional independence of the
Commission on Elections.36

CONSTI_CONGRESS-03
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With this backdrop, it is clear that congressional oversight is not
unconstitutional per se, meaning, it neither necessarily
constitutes an encroachment on the executive power to
implement laws nor undermines the constitutional separation of
powers. Rather, it is integral to the checks and balances
inherent in a democratic system of government. It may in fact
even enhance the separation of powers as it prevents the overaccumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment
"beyond the legislative sphere," the Constitution imposes two
basic and related constraints on Congress.37 It may not vest
itself, any of its committees or its members with either
executive or judicial power.38 And, when it exercises its
legislative power, it must follow the "single, finely wrought and
exhaustively considered, procedures" specified under the
Constitution,39 including the procedure for enactment of laws
and presentment.
Thus, any post-enactment congressional measure such as this
should be limited to scrutiny and investigation. In particular,
congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress power of appropriation
and the budget hearings conducted in connection with it, its
power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation40 and
(2) investigation and monitoring41 of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.42
Any action or step beyond that will undermine the separation of
powers guaranteed by the Constitution. Legislative vetoes fall in
this class.

Legislative veto is a statutory provision requiring the President

or an administrative agency to present the proposed
implementing rules and regulations of a law to Congress which,
by itself or through a committee formed by it, retains a "right"
or "power" to approve or disapprove such regulations before
they take effect. As such, a legislative veto in the form of a
congressional oversight committee is in the form of an inwardturning delegation designed to attach a congressional leash
(other than through scrutiny and investigation) to an agency to
which Congress has by law initially delegated broad powers. 43 It
radically changes the design or structure of the Constitutions
diagram of power as it entrusts to Congress a direct role in
enforcing, applying or implementing its own laws. 44
Congress has two options when enacting legislation to define
national policy within the broad horizons of its legislative
competence.45 It can itself formulate the details or it can assign
to the executive branch the responsibility for making necessary
managerial decisions in conformity with those standards. 46 In
the latter case, the law must be complete in all its essential
terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch or the
concerned administrative agency when it formulates rules and
regulations implementing the law is to fill up details
(supplementary rule-making) or ascertain facts necessary to
bring the law into actual operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies
to implement and interpret the law which they are entrusted to
enforce have the force of law and are entitled to respect. 49 Such
rules and regulations partake of the nature of a statute50 and are
just as binding as if they have been written in the statute itself.
As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent
court.51 Congress, in the guise of assuming the role of an

CONSTI_CONGRESS-03
122
overseer, may not pass upon their legality by subjecting them to
its stamp of approval without disturbing the calculated balance
of powers established by the Constitution. In exercising
discretion to approve or disapprove the IRR based on a
determination of whether or not they conformed with the
provisions of RA 9335, Congress arrogated judicial power unto
itself, a power exclusively vested in this Court by the
Constitution.
Considered
Mr. Justice Dante O. Tinga

Opinion

of

Moreover, the requirement that the implementing rules of a law

be subjected to approval by Congress as a condition for their
effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment.52
Section 1, Article VI of the Constitution states:
Section 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. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and
repeal laws)53 is vested in Congress which consists of two
chambers, the Senate and the House of Representatives. A valid
exercise of legislative power requires the act of both chambers.
Corrollarily, it can be exercised neither solely by one of the two
chambers nor by a committee of either or both chambers. Thus,
assuming the validity of a legislative veto, both a singlechamber legislative veto and a congressional committee
legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution
provides:

Section 27. (1) Every bill passed by the Congress shall,

before it becomes a law, be presented to the President. If
he approves the same, he shall sign it, otherwise, he shall veto
it and return the same with his objections to the House where it
originated, which shall enter the objections at large in its Journal
and proceed to reconsider it. If, after such reconsideration, twothirds of all the Members of such House shall agree to pass the
bill, it shall be sent, together with the objections, to the other
House by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each House shall
be determined by yeas or nays, and the names of the members
voting for or against shall be entered in its Journal. The
President shall communicate his veto of any bill to the House
where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it.
(emphasis supplied)
Every bill passed by Congress must be presented to the
President for approval or veto. In the absence of presentment to
the President, no bill passed by Congress can become a law. In
this sense, law-making under the Constitution is a joint act of
the Legislature and of the Executive. Assuming that legislative
veto is a valid legislative act with the force of law, it cannot take
effect without such presentment even if approved by both
chambers of Congress.
In sum, two steps are required before a bill becomes a law. First,
it must be approved by both Houses of Congress. 54 Second, it
must be presented to and approved by the President. 55 As
summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas,
S.J.57, the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of
Representatives or the Senate except for some measures that
must originate only in the former chamber.

CONSTI_CONGRESS-03
123
The first reading involves only a reading of the number and title
of the measure and its referral by the Senate President or the
Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be
recommended for approval, with or without amendments,
sometimes after public hearings are first held thereon. If there
are other bills of the same nature or purpose, they may all be
consolidated into one bill under common authorship or as a
committee bill.
Once reported out, the bill shall be calendared for second
reading. It is at this stage that the bill is read in its entirety,
scrutinized, debated upon and amended when desired. The
second reading is the most important stage in the passage of a
bill.
The bill as approved on second reading is printed in its final
form and copies thereof are distributed at least three days
before the third reading. On the third reading, the members
merely register their votes and explain them if they are allowed
by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other
chamber, where it will also undergo the three readings. If there
are differences between the versions approved by the two
chambers, a conference committee 58 representing both Houses
will draft a compromise measure that if ratified by the Senate
and the House of Representatives will then be submitted to the
President for his consideration.
The bill is enrolled when printed as finally approved by the
Congress, thereafter authenticated with the signatures of the
Senate President, the Speaker, and the Secretaries of their
respective chambers59
The Presidents role in law-making.

The final step is submission to the President for approval. Once

approved, it takes effect as law after the required publication.60
Where Congress delegates the formulation of rules to implement
the law it has enacted pursuant to sufficient standards
established in the said law, the law must be complete in all its
essential terms and conditions when it leaves the hands of the
legislature. And it may be deemed to have left the hands of the
legislature when it becomes effective because it is only upon
effectivity of the statute that legal rights and obligations
become available to those entitled by the language of the
statute. Subject to the indispensable requisite of publication
under the due process clause, 61 the determination as to when a
law takes effect is wholly the prerogative of Congress.62 As such,
it is only upon its effectivity that a law may be executed and the
executive branch acquires the duties and powers to execute the
said law. Before that point, the role of the executive branch,
particularly of the President, is limited to approving or vetoing
the law.63
From the moment the law becomes effective, any provision of
law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates
the principle of separation of powers and is thus
unconstitutional. Under this principle, a provision that requires
Congress or its members to approve the implementing rules of a
law after it has already taken effect shall be unconstitutional, as
is a provision that allows Congress or its members to overturn
any directive or ruling made by the members of the executive
branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck
down as unconstitutional. While there may be similar provisions
of other laws that may be invalidated for failure to pass this
standard, the Court refrains from invalidating them wholesale

CONSTI_CONGRESS-03
124
but will do so at the proper time when an appropriate case
assailing those provisions is brought before us.64
The next question to be resolved is: what is the effect of the
unconstitutionality of Section 12 of RA 9335 on the other
provisions of the law? Will it render the entire law
unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. If any provision of this Act is
declared invalid by a competent court, the remainder of this Act
or any provision not affected by such declaration of invalidity
shall remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court
laid down the following rules:
The general rule is that where part of a statute is void as
repugnant to the Constitution, while another part is valid, the
valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute
creates the presumption that the legislature intended
separability, rather than complete nullity of the statute. To
justify this result, the valid portion must be so far independent
of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed
that it could not constitutionally enact the other. Enough must
remain to make a complete, intelligible and valid statute, which
carries out the legislative intent. x x x
The exception to the general rule is that when the parts of a
statute are so mutually dependent and connected, as
conditions, considerations, inducements, or compensations for
each other, as to warrant a belief that the legislature intended
them as a whole, the nullity of one part will vitiate the rest. In
making the parts of the statute dependent, conditional, or

connected with one another, the legislature intended the statute

to be carried out as a whole and would not have enacted it if
one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the
legislature to isolate and detach any invalid provision from the
other provisions so that the latter may continue in force and
effect. The valid portions can stand independently of the invalid
section. Without Section 12, the remaining provisions still
constitute a complete, intelligible and valid law which carries
out the legislative intent to optimize the revenue-generation
capability and collection of the BIR and the BOC by providing for
a system of rewards and sanctions through the Rewards and
Incentives Fund and a Revenue Performance Evaluation Board.
To be effective, administrative rules and regulations must be
published in full if their purpose is to enforce or implement
existing law pursuant to a valid delegation. The IRR of RA 9335
were published on May 30, 2006 in two newspapers of general
circulation66 and became effective 15 days thereafter.67 Until and
unless the contrary is shown, the IRR are presumed valid and
effective even without the approval of the Joint Congressional
Oversight Committee.
WHEREFORE,
the
petition
is
hereby PARTIALLY
GRANTED. Section 12 of RA 9335 creating a Joint Congressional
Oversight Committee to approve the implementing rules and
regulations of the law is declared UNCONSTITUTIONAL and
therefore NULL and VOID. The
constitutionality
of
the
remaining provisions of RA 9335 is UPHELD. Pursuant to
Section 13 of RA 9335, the rest of the provisions remain in force
and effect. SO ORDERED.

CONSTI_CONGRESS-03
125

[G.R. No. 163783. June 22, 2004]

PIMENTEL vs. CONGRESS
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this
Court dated JUN 22 2004.
G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint Committee of
Congress to Canvass the Votes Cast for President and VicePresident in the May 10, 2004 Elections.)
RESOLUTION
By the present Petition for Prohibition, petitioner Senator
Aquilino Q. Pimentel, Jr. seeks a judgment declaring null and
void the continued existence of the Joint Committee of Congress
(Joint Committee) to determine the authenticity and due
execution of the certificates of canvass and preliminarily
canvass the votes cast for Presidential and Vice-Presidential
candidates in the May 10, 2004 elections following the
adjournment of Congress sine die on June 11, 2004. The petition
corollarily prays for the issuance of a writ of prohibition directing
the Joint Committee to cease and desist from conducting any
further proceedings pursuant to the Rules of the Joint Public
Session of Congress on Canvassing.
Petitioner posits that with "the adjournment sine die on June 11,
2004 by the Twelfth Congress of its last regular session, [its]
term ... terminated and expired on the said day and the said
Twelfth Congress serving the term 2001 to 2004 passed out of
legal existence." Henceforth, petitioner goes on, "all pending
matters and proceedings terminate upon the expiration of ...

CONSTI_CONGRESS-03
126
Congress." To advance this view, he relies on "legislative
procedure, precedent or practice [as] borne [out] by the rules of
both Houses of Congress."

Presidential Elections do not support the move to stop the

ongoing canvassing by the Joint Committee, they citing the
observations of former Senate President Jovito Salonga.

Given the importance of the constitutional issue raised and to

put to rest all questions regarding the regularity, validity or
constitutionality of the canvassing of votes fro President and
Vice-President in the recently concluded national elections, this
Court assumes jurisdiction over the instant petition pursuant to
its power and duty "to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government" under Section 1 of Article VIII of the Constitution
and its original jurisdiction over petitions for prohibition under
Section 5 of the same Article.

Thus, during the 1992 Presidential elections, both Houses of

Congress adjourned sine die on May 25, 1992. On June 16,
1992, the Joint Committee finished tallying the votes for
President and Vice-President.[1]cralaw Thereafter, on June 22,
1992, the Eighth Congress convened in joint public session as
the National Board of Canvassers, and on even date proclaimed
Fidel V. Ramos and Joseph Ejercito Estrada as President and
Vice-President, respectively.[2]cralaw

After a considered and judicious examination of the arguments

raised by petitioner as well as those presented in the Comments
filed by the Solicitor General and respondent Joint Committee,
this Court finds that the petition has absolutely no basis under
the Constitution and must, therefore, be dismissed.
Petitioner's claim that his arguments are buttressed by
"legislative procedure, precedent or practice [as] borne [out] by
the rules of both Houses of Congress" is directly contradicted by
Section 42 of Rule XIV of the Rules adopted by the Senate, of
which he is an incumbent member. This section clearly provides
that the Senate shall convene in joint session during any
voluntary orcompulsory recess to canvass the votes for
President and Vice-President not later than thirty days after
the day of the elections in accordance with Section 4, Article VII
of the Constitution.
Moreover, as pointed out in the Comment filed by the Senate
Panel for respondent Joint Committee and that of the Office of
the Solicitor General, the precedents set by the 1992 and 1998

Upon the other hand, during the 1998 Presidential elections,

both Houses of Congress adjourned sine die on May 25, 1998.
The Joint Committee completed the counting of the votes for
President and Vice-President on May 27, 1998.[3]cralaw The
Tenth Congress then convened in joint public session on May 29,
1998 as the National Board of Canvassers and proclaimed
Joseph Ejercito Estrada as President and Gloria MacapagalArroyo as President and Vice-President, respectively.[4]cralaw
As for petitioner's argument that "the [e]xistence and
[p]roceedings [o]f the Joint Committee of Congress [a]re
[i]nvalid, [i]llegal and [u]nconstitutional [f]ollowing the
[a]djournment [s]ine [d]ie [o]f [b]oth Houses of Congress [o]f
[t]heir [r]egular [s]essions on June 11, 2004," he cites in support
thereof Section 15, Article VI of the Constitution which reads:
Sec. 15. The Congress shall convene once every year on the
fourth Monday of July for its regular session, unless a different
date is fixed by law, and shall continue to be in session for such
number of days as it may determine until thirty days before the
opening of its next regular session, exclusive of Saturdays,
Sundays, and legal holidays. The President may call a special
session at any time.

CONSTI_CONGRESS-03
127
Contrary to petitioner's argument, however, the term of the
present Twelfth Congress did not terminate and expire upon the
adjournment sine die of the regular session of both Houses on
June 11, 2004.
Section 15, Article VI of the Constitution cited by petitioner does
not pertain to the term of Congress, but to its regular
annual legislative sessions and the mandatory 30-day recess
before the opening of its next regular session (subject to the
power of the President to call a special session at any time).
Section 4 of Article VIII also of the Constitution clearly provides
that "[t]he term of office of the Senators shall be six years and
shall commence, unless otherwise provided by law, at noon on
the thirtieth day of June next following their election." Similarly,
Section 7 of the same Article provides that "[t]he Members of
the House of Representatives shall be elected for
a term of three years which shall begin, unless otherwise
provided by law, at noon on the thirtieth day of June next
following their election." Consequently, there being no law to
the contrary, until June 30, 2004, the present Twelfth Congress
to which the present legislators belong cannot be said to have
"passed out of legal existence."
The legislative functions of the Twelfth Congress may have
come to a close upon the final adjournment of its regular
sessions on June 11, 2004, but this does not affect its nonlegislativefunctions, such as that of being the National Board
of Canvassers. In fact, the joint public session of both Houses of
Congress convened by express directive of Section 4, Article VII
of the Constitution to canvass the votes for and to proclaim the
newly elected President and Vice-President has not, and cannot,

adjourn sine die until it has accomplished its constitutionally

mandated tasks. For only when a board of canvassers has
completed its functions is it rendered functus officio. Its
membership may change, but it retains its authority as a board
until it has accomplished its purposes. (Pelayo v. Commission on
Elections, 23 SCRA 1374, 1385 [1968], citing Bautista v. Fugoso,
60 Phil. 383, 389 [1934] and Aquino v. Commission on Elections,
L-28392, January 29 1968)
Since the Twelfth Congress has not yet completed its nonlegislative duty to canvass the votes and proclaim the duly
elected President and Vice-President, its existence as the
National Board of Canvassers, as well as that of the Joint
Committee to which it referred the preliminary tasks of
authenticating and canvassing the certificates of canvass, has
not become functus officio.
In sum, despite the adjournment sine die of Congress, there is
no legal impediment to the Joint Committee completing the
tasks assigned to it and transmitting its report for the approval
of the joint public session of both Houses of Congress, which
may reconvene without need of call by the President to a special
session.
WHEREFORE, the instant Petition is hereby DISMISSED.