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SENATE OF THE PHILIPPINES vs ERMITA Conversations and correspondence between

Petitions for certiorari and prohibition proffer that the President and the public official
President has abused power by issuing EO 464 Military, diplomatic and other national security
Praying for the declaration of EO 464 as null and void for matters which in the interest of national security
being unconstitutional should not be divulged
Review has come from a co-equal branch of government, Information between inter-government agencies
which thus entitles it to a strong presumption of prior to the conclusion of treaties and executive
constitutionality agreements
Exercise of legislative power: Senate conducts inquiries Discussion in close-door Cabinet meetings
or investigations in aid of legislation which call for the Matters affecting national security and public
attendance of officials and employees of the executive order
department (b) Who are Covered
Facts Senior officials of executive departments who in
Senate issued invitations to various officials of the the judgment of the departments heads are
Executive Department to investigate in aid of legislation covered by executive privilege
on the following topics General and flag officers of AFP and such other
o Railway project of the North Luzon Railway officers who in the judgment of Chief of Staff
Corporation covered by the executive privilege
o Massive Electoral Fraud on May 2005 PNP officers with rank of chief superintendent or
electionsGene higher and such officers deemed by the Chief of
o Wiretapping incident PNP covered by executive privilege
o Gloriagate Scandal Senior national security officials under the
AFP Chief of Staff: General Generoso S. Senga sent a judgment of the National Security Adviser
letter asking for postponement due to pressing Such officers may be determined by the President
operational situation that demands his utmost attention Section 3: Appearance of Other Public Officials Before
while some invited AFP officers are currently attending to Congress
other urgent operational matters Officers covered by 2(b) shall secure prior consent
Ermita: sent a letter asking for postponement for Exec of the President
Dept officials to have time to study and prepare for the
issues Pursuant to EO 464, the invited executive officials
Senate President Drilon: Ermitas letter was sent expressed their regrets that they could not attend the
belatedly and all preparations for the hearing were hearing for failure of securing the consent of the
completed President. In terms of the AFP officials, they also
North Luzon Railways Corporation President: Jose Cortes expressed their regret because there was no approval
also asked for postponement until a copy of the report from the President.
of UP Law Center on contract agreements had been However, 2 AFP officials attended and were relieved
secured from their service after attending the hearings for
President issued EO 464: Ensuring Observance of the defying the orders of the President.
Principle of Separation of Powers, Adherence to the Rule As result, petitions were filed arguing that EO 464 is
of Executive Privilege and Respect for the Rights of Public unconstitutional:
Officials Appearing in Legislative Inquiries in Aid of o GR No. 169659: Bayan Muna, Members of
Legislation Under the Constitution and For Other HoR, Courage (org of govt employees),
Purposes CODAL (group of lawyers)
o Took effect immediately Infringes on their rights and
Salient Provisions impeded them from fulfilling their
Section 1: Appearance by heads of Departments Before respective obligations
Congress Infringes on their rights and duties
All heads shall secure the consent of the President as members of Congress to
prior to appearing before either House of conduct investigation in aid of
Congress legislation
Security of the State or public interest so requires o GR No 169660: Francisco Chavez
and the President so states in writing executive Claiming that his constitutional
session rights as a citizen, taxpayer and law
Section 2: Nature, Scope, and Coverage of Executive practitioners are affected by the
Privilege enforcement of EO 464
(a) Nature and Scope: Confidential or Classified o GR No 169667: Alternative Law Groups
Information Constitutional right to information
on matters of public concern
o Gr No 169777: Senate of The Philippines does not involve the exercise of taxing or
Interferes with and impedes the spending power
valid exercise of Senates powers o Senate absence of a personal or direct
and functions and conceals injury
information of great public interest Ruling of the Court:
and concern o Senate legislators have standing to
o GR No 169834: PDP-Laban maintain inviolate the prerogative, powers
Hampers is legislative agenda to be and privilege vested by the Constitution on
implemented through its members their office and are allowed to sue to
in Congress question the validity of any official which
Oral Arguments they claim infringes their prerogatives as
o Whether respondents committed grave legislators
abuse of discretion in implementing EO 464 Same with party-list
prior to its publication in the Official representatives (even in the
Gazette or in a newspaper absence of investigation by HoR)
o Whether EO 464 violates the provisions of Same with Bayan Muna 3 seats
the Constitution in the HoR
Parties were directed to submit memoranda: o Chavez, ALG, IBP in the assertion of a
o That EO 464 is on its face unconstitutional public right, the mere fact that he is a
o Assuming that it is not, it is unconstitutional citizen satisfies the requirement of personal
as applied in: interest
Fertilizer Scam o PDP-Laban bereft of standing to file its
NorthRail investigation petition
Wiretapping activity of the ISAFP Its allegations that EO 464 hampers
Investigation on the Venable its legislative agenda is vague and
contract uncertain = generalized interest
Bayan Muna: no longer filed its memorandum in the shared with other political parties
interest of having the issued resolved soonest Actual Case or Controversy
Issues Petitioner: case = absence of the executive officials to the
1. Whether EO 464 contravenes the power of inquiry hearings after the issuance of EO 464
vested in Congress Respondents: merely communicated to the Senate that
2. Whether EO 464 violates the right of the people to they have not yet secured the consent of the President
information on matters of public concern o Unfounded apprehension by the petitions that
3. Whether respondents have committed grave abuse the President will abuse its power of preventing
of discretion when they implemented EO 464 prior the appearance of officials before Congress
to its publication in a newspaper of general Court: Presidents consent = immaterial
circulation o EO 464 does not require a deliberate
Held: withholding of consent or an express prohibition
Essential requisites for Judicial Review issuing from the President in order to bar
1. There must be an actual case or controversy calling officials from appearing before Congress
for the exercise of judicial power o Absence of the officials = ripe for adjudication
2. The person challenging the act must have standing Constitutionality of EO 464
to challenge the validity of the subject act or The Power of Inquiry
issuance Congress power of inquiry Section 21 of Article VI of
3. Question of constitutionality must be raised at the the Constitution
earliest opportunity Arnault vs Nazareno: power of inquiry is inherent in the
4. Issue of constitutionality must be the very lis mota of power to legislate
the case The power of inquiry is an essential appropriate auxiliary
Standing to the legislative function. A legislative body cannot
Respondents: legislate wisely or effectively in the absence of
o Rep Ocampo et el have not shown any information respecting the conditions which the
specific prerogative being no mention of legislation is intended to affect or change
any investigation called by the HoR The power of inquiry is co-extensive with the power to
o Bayan Muna interest falls short of that legislate
required to confer standing on them as It would be incongruous to hold that the power of inquiry
parties injured-in-fact. does not extend to executive officials who are the most
o Chavez may not claim an interest as a familiar with and informed on executive operations
taxpayer for the implementation of EO 464
The inquiry itself might not be properly in aid of Chavez vs PCGG
legislation. Possible way for Congress to avoid such: o States secrets regarding military, diplomatic and
indicate in its invitations the public officials concerned or other national security matters
the possible needed statutes which prompted the need o Closed-door Cabinet meetings
for the inquiry Chavez v Public Estates
Section 21, Article VI: rights of persons appearing in or o Presidential conversations, correspondences,
affected by such inquiries be respected and discussions in closed-door Cabinet meetings
Abuse of such power: none at the present (abuse should o Information on military and diplomatic
be a clear pattern resulting in violation of the rights discussions affecting national security
guaranteed by the Bill of Rights) o Information on investigations of crimes by law
Exemption of inquiry in aid of legislation = executive enforcement agencies before the prosecution of
privilege the accused were exempted from the right to
Executive Privilege information
Power of the Government to withhold information from Executive privilege is recognized only in relation to
the public, the courts and the Congress certain types of information of a sensitive character.
Right of the President and high-level branch officers Absent is any recognition that executive officials are
3 distinct kinds exempt from the duty to disclose information by mere
o State secrets privilege: information is of such fact of being executive officials
nature that its disclosure would subvert crucial Validity of Section 1
military or diplomatic objectives Section 1 vs Section 3
o Informers privilege: privilege of the Section 1 Section 3
Government not to disclose the identity of Secure consent of the President prior to appearing
persons who furnish information before Congress
o Generic Privilege: internal deliberations Applies to department Require a prior
comprising part of a process by which heads determination by any
governmental decisions and policies are official covered by EO
formulated 464
Based on the constitutional doctrine of separation of Section 1
powers o No reference to executive privilege
o Exemption is necessary to the discharge of o Article VI, Section 22: Question Hour (with the
highly important executive responsibilities consent of the President)
involved in maintaining governmental Section 21 vs Section 22
operations and extends not only to military and o Different
diplomatic secrets but also to documents o Section 21: inquiry in aid of legislation
integral to an appropriate exercise of the Objective: conduct inquiries in aid of
executive domestic decisional and policy making legislation
functions Appearance is mandator
A type of information is recognized as privilege not o Section 22: Question Hour
necessary to be considered privileged at all instances Mr Maambong: not actually a power in
o Determination: whether the requested terms of its own lawmaking power
information falls within one of the traditional Complement to or a supplement of the
privileges, but also that privilege should be Legislative Inquiry
honored in a given procedural setting The framers removed the mandatory
US vs Nixon nature of question hour to conform to
o Privilege must be balanced against the public separation of powers
interest in the fair administration of justice Absence of a mandatory question
Doctrine of executive privilege was recognized by this period, the need to enforce Congress
Court in Almonte v Vasquez: Considerations justifying a right to executive information becomes
presumptive privilege for Presidential communications more imperative
o This exception = privacy of all citizens It is the very separation that makes the
o Protection of public interest in candid, objective, congressional right to obtain
and even blunt or harsh opinions in decision- information from the executive so
making essential
o Process of shaping policies privately Objective: obtain information in pursuit
Court recognized that there are certain types of of Congress oversight function
information which the government may withhold from Executive cannot frustrate the power of Congress to
the public executive privilege may be claimed against legislate
citizens demands for information Department heads not exempt; Only the President
Section 1 limited to Question Hour; no reference to
inquiries in aid of legislation
Valid on its face
Valid of Sections 2 and 3
Section 3: requires officials listed in Section 2(b) to
secure the consent of the President
Section 2(b): executive privilege actually covers persons
o Misuse of the doctrine
o Executive privilege is invoked in relation to
specific categories of information and to
categories of persons
Underlying the requirement of consent: official is in
possession of information that is covered by executive
privilege
Letter of Executive Secretary Ermita: does not explicitly
invoke executive privilege (without consent of the
President)
o Implies that the officials are covered by EO 464
o Not accompanied by any specific allegation of
basis Congress is left to speculate
Congress has the right to know why the executive
considers the requested information privileged
Congress must not require such particularity to compel
disclosure of the information
Sections 2(b) and 3 determination of head =
Presidents authority
o Contrary to the exceptional nature of the
privilege
Court: limited to the President
o May authorize Executive Secretary (By order of
the President)
o President may not authorize her subordinates to
exercise such power
Need for reasonable time when an official is summoned
o lapse of that time: Congress may opt to avail of
necessary legal means to compel appearance
Right to Information
Distinctions between the right of Congress to information
and right of people to information on matters of public
concern
o Demand of the citizen: does not have same
obligatory force as subpoena
o Citizen: no power to exact testimony from govt
officials
o It does not follow that in every exercise of its
power of inquiry, people are exercising their
right to information
Caveat: being presumed to be in aid of legislation =
presumed to be a matter of public concern
Impairment of right of the people to information = direct
violation of the legislatures power of inquiry
On the Publication
EO 464 has a direct effect on the right of the people to
information on matters of public concern
o People should have been apprised before it was
implemented