SENATE OF THE PHILIPPINES vs ERMITA
Petitions for certiorari and prohibition proffer that the
President has abused power by issuing EO 464
Praying for the declaration of EO 464 as null and void for
being unconstitutional
Review has come from a co-equal branch of government,
which thus entitles it to a strong presumption of
constitutionality
Exercise of legislative power: Senate conducts inquiries
or investigations in aid of legislation which call for the
attendance of officials and employees of the executive
department
Facts
Senate issued invitations to various officials of the
Executive Department to investigate in aid of legislation
on the following topics
o Railway project of the North Luzon Railway
Corporation
o Massive Electoral Fraud on May 2005
electionsGene
o Wiretapping incident
o Gloriagate Scandal
AFP Chief of Staff: General Generoso S. Senga sent a
letter asking for postponement due to pressing
operational situation that demands his utmost attention
while some invited AFP officers are currently attending to
other urgent operational matters
Ermita: sent a letter asking for postponement for Exec
Dept officials to have time to study and prepare for the
issues
Senate President Drilon: Ermitas letter was sent
belatedly and all preparations for the hearing were
completed
North Luzon Railways Corporation President: Jose Cortes
also asked for postponement until a copy of the report
of UP Law Center on contract agreements had been
secured
President issued EO 464: Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule
of 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
o Took effect immediately
Salient Provisions
Section 1: Appearance by heads of Departments Before
Congress
All heads shall secure the consent of the President
prior to appearing before either House of
Congress
Security of the State or public interest so requires
and the President so states in writing executive
session
Section 2: Nature, Scope, and Coverage of Executive
Privilege
(a) Nature and Scope: Confidential or Classified
Information
Conversations and correspondence between
President and the public official
Military, diplomatic and other national security
matters which in the interest of national security
should not be divulged
Information between inter-government agencies
prior to the conclusion of treaties and executive
agreements
Discussion in close-door Cabinet meetings
Matters affecting national security and public
order
(b) Who are Covered
Senior officials of executive departments who in
the judgment of the departments heads are
covered by executive privilege
General and flag officers of AFP and such other
officers who in the judgment of Chief of Staff
covered by the executive privilege
PNP officers with rank of chief superintendent or
higher and such officers deemed by the Chief of
PNP covered by executive privilege
Senior national security officials under the
judgment of the National Security Adviser
Such officers may be determined by the President
Section 3: Appearance of Other Public Officials Before
Congress
Officers covered by 2(b) shall secure prior consent
of the President
Pursuant to EO 464, the invited executive officials
expressed their regrets that they could not attend the
hearing for failure of securing the consent of the
President. In terms of the AFP officials, they also
expressed their regret because there was no approval
from the President.
However, 2 AFP officials attended and were relieved
from their service after attending the hearings for
defying the orders of the President.
As result, petitions were filed arguing that EO 464 is
unconstitutional:
o GR No. 169659: Bayan Muna, Members of
HoR, Courage (org of govt employees),
CODAL (group of lawyers)
Infringes on their rights and
impeded them from fulfilling their
respective obligations
Infringes on their rights and duties
as members of Congress to
conduct investigation in aid of
legislation
o GR No 169660: Francisco Chavez
Claiming that his constitutional
rights as a citizen, taxpayer and law
practitioners are affected by the
enforcement of EO 464
o GR No 169667: Alternative Law Groups
Constitutional right to information
on matters of public concern
 o Gr No 169777: Senate of The Philippines
Interferes with and impedes the
valid exercise of Senates powers
and functions and conceals
information of great public interest
and concern
o GR No 169834: PDP-Laban
Hampers is legislative agenda to be
implemented through its members
in Congress
Oral Arguments
o Whether respondents committed grave
abuse of discretion in implementing EO 464
prior to its publication in the Official
Gazette or in a newspaper
o Whether EO 464 violates the provisions of
the Constitution
Parties were directed to submit memoranda:
o That EO 464 is on its face unconstitutional
o Assuming that it is not, it is unconstitutional
as applied in:
Fertilizer Scam
NorthRail investigation
Wiretapping activity of the ISAFP
Investigation on the Venable
contract
Bayan Muna: no longer filed its memorandum in the
interest of having the issued resolved soonest
Issues
1. Whether EO 464 contravenes the power of inquiry
vested in Congress
2. Whether EO 464 violates the right of the people to
information on matters of public concern
3. Whether respondents have committed grave abuse
of discretion when they implemented EO 464 prior
to its publication in a newspaper of general
circulation
Held:
Essential requisites for Judicial Review
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
3. Question of constitutionality must be raised at the
earliest opportunity
4. Issue of constitutionality must be the very lis mota of
the case
Standing
Respondents:
o Rep Ocampo et el have not shown any
specific prerogative being no mention of
any investigation called by the HoR
o Bayan Muna interest falls short of that
required to confer standing on them as
parties injured-in-fact.
o Chavez may not claim an interest as a
taxpayer for the implementation of EO 464
does not involve the exercise of taxing or
spending power
o Senate absence of a personal or direct
injury
Ruling of the Court:
o Senate legislators have standing to
maintain inviolate the prerogative, powers
and privilege vested by the Constitution on
their office and are allowed to sue to
question the validity of any official which
they claim infringes their prerogatives as
legislators
Same with party-list
representatives (even in the
absence of investigation by HoR)
Same with Bayan Muna 3 seats
in the HoR
o Chavez, ALG, IBP in the assertion of a
public right, the mere fact that he is a
citizen satisfies the requirement of personal
interest
o PDP-Laban bereft of standing to file its
petition
Its allegations that EO 464 hampers
its legislative agenda is vague and
uncertain = generalized interest
shared with other political parties
Actual Case or Controversy
Petitioner: case = absence of the executive officials to the
hearings after the issuance of EO 464
Respondents: merely communicated to the Senate that
they have not yet secured the consent of the President
o Unfounded apprehension by the petitions that
the President will abuse its power of preventing
the appearance of officials before Congress
Court: Presidents consent = immaterial
o EO 464 does not require a deliberate
withholding of consent or an express prohibition
issuing from the President in order to bar
officials from appearing before Congress
o Absence of the officials = ripe for adjudication
Constitutionality of EO 464
The Power of Inquiry
Congress power of inquiry Section 21 of Article VI of
the Constitution
Arnault vs Nazareno: power of inquiry is inherent in the
power to legislate
The power of inquiry is an essential 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
The power of inquiry is co-extensive with the power to
legislate
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
 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