Art.

VI Section 21 & 22

1. 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 TAÑADA, 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.:

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, the herein
1

petitioners were impleaded as party defendants.

The complaint insofar as pertinent to herein petitioners, as defendants, alleges among

others that:

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 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 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" bef ore 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
 Thereafter, the Senate Blue
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

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 dated 5 June 1989 rejecting the petitioner's plea to be excused from
6

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.

which the Court granted in the

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

resolution of 21 December 1989, and required the respondent Senate Blue Ribbon
9

Committee to comment on the petition in intervention. In compliance, therewith,

respondent Senate Blue Ribbon Committee filed its comment thereon. 10

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. In Angara vs. Electoral Commission, the Court held: 11

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, "(t)he political question doctrine
12

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 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
the inquiry, to be within the jurisdiction of the legislative
Jean L. Arnault vs. Leon Nazareno, et al., 16

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, so that he could repond to the said Lopa 17

letter, and also to vindicate his reputation as a Member of the Senate of the Philippines,
considering the claim of Mr. Lopa that his (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

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 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
nominee-directors 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 of inquiry, 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 investigators or to
"punish" those investigated are indefensible. (emphasis supplied)

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.

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, it was held that: 21

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 exclusively the concern of the Judiciary. Neither can it suplant the
Executive in what exclusively belongs to the Executive. ...

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 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
 Thir right constured as the right to remain
One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. 24

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. thus — 25

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.

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, the Court reiterated the doctrine in 26

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. 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.

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 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.

The facts are undisputed.

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 the Committee 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 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 notice10 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,' 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.

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:

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. MacKellar17 explains
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 investigation having
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 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 co-extensive 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. Peña,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.

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 of Tañada v. Tuvera29 and Legaspi v. Civil Service Commission30 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
with Article 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. In The
Province of Batangas v. Romulo,35 the 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
Constitution."37 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" was approved 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 power to the committees. Father Bernas, 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 rule…as 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,41 sustained 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

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
self-incrimination.

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?; and second, 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 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. Belmonte,54 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 self-incrimination 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 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.

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 Macapagal-Arroyo, 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.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, 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

PDP- LABAN, 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 co-equal branch of government, which thus
entitles it to a strong presumption of constitutionality. Once the challenged order is
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 invitations 2
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 that they may better enlighten the Senate Committee on its investigation."

Senate President Drilon, however, wrote5 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."

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.

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

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of powers
under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further,
Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public
Officials and Employees provides that Public Officials and Employees shall not use or
divulge confidential or classified information officially known to them by reason of
their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the

President and the public officers covered by this executive order, including:

Conversations and correspondence between the President and the public official
covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995;
Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23
May 1995; Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and

executive agreements (Chavez v. Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on

Good Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department

heads are covered by the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the Chief of Staff are covered by the executive
privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher
and such other officers who in the judgment of the Chief of the PNP are covered by
the executive privilege;

Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public

officials enumerated in Section 2 (b) hereof shall secure prior consent of the President
prior to appearing before either House of Congress to ensure the observance of the
principle of separation of powers, adherence to the rule on executive privilege and
respect for the rights of public officials appearing in inquiries in aid of legislation.
(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 letter9 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 Arroyo’s 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 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 non-governmental 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
Senate’s 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 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

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 Management18 having invoked E.O. 464.

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, 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 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.

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 (c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22

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 memorandum27 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 E.O. 464 violates the following constitutional provisions:

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 Court’s 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
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 Muna’s 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 Court’s 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 legislation45 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 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 rights51 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-Laban’s 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 President’s consent was based on its role as
Commander-in-Chief of the Armed Forces, not on E.O. 464.

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.

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.

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:

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)

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.

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 Senate’s 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; 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 Court’s 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 House’s 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 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 informer’s 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

Tribe’s 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 Black’s Law Dictionary on "executive privilege" is similarly instructive
regarding the scope of the doctrine.

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 Nixon’s 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 President’s 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 President’s powers. The Court, nonetheless, rejected the President’s
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 Washington’s 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 President’s 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.77 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, 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 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.

In Chavez v. PCGG,79 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-à-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 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-à-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 the Committee on Style]

We now go, Mr. Presiding Officer, to the Article on Legislative and may I request the
chairperson of the Legislative Department, Commissioner Davide, to give his
reaction.

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 Davide’s 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 Maambong’s 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 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 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.

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 official’s 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 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 Ermita’s 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 closed-door
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 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 privilege.96
(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 claimant’s 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 claimant’s 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 claimant’s 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 Energy99 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 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 Court’s 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 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 President’s 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
responsibilities.106 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."

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.

Right to Information

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 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:
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.107 (Emphasis and underscoring supplied)

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
legislature’s 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, Tañada 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 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 accomplish…was 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.

G.R. No. 170165 August 15, 2006

B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F.

BALUTAN Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE
CARPIO-MORALES, ARMED FORCES OF THE CALLEJO, SR.,
PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C. ROA AS THE
PRE-TRIAL TINGA, INVESTIGATING OFFICER, THE CHICO-NAZARIO,
PROVOST MARSHALL GENERAL GARCIA, and OF THE ARMED
FORCES OF THE PHILIPPINES AND THE GENERAL COURT-MARTIAL,
Respondents.

DECISION

TINGA, J.:

A most dangerous general proposition is foisted on the Court — that soldiers who
defy orders of their superior officers are exempt

from the strictures of military law and discipline if such defiance is predicated on an
act otherwise valid under civilian law. Obedience and deference to the military chain
of command and the President as commander-in-chief are the cornerstones of a
professional military in the firm cusp of civilian control. These values of obedience
and deference expected of military officers are content-neutral, beyond the sway of
the officer’s own sense of what is prudent or rash, or more elementally, of right or
wrong. A self-righteous military invites itself as the scoundrel’s activist solution to
the "ills" of participatory democracy.

Petitioners seek the annulment of a directive from President Gloria

Macapagal-Arroyo1 enjoining them and other military officers from testifying before
Congress without the President’s consent. Petitioners also pray for injunctive relief
against a pending preliminary investigation against them, in preparation for possible
court-martial proceedings, initiated within the military justice system in connection
with petitioners’ violation of the aforementioned directive.

The Court is cognizant that petitioners, in their defense, invoke weighty constitutional
principles that center on fundamental freedoms enshrined in the Bill of Rights.
Although these concerns will not be

addressed to the satisfaction of petitioners, the Court recognizes these values as of

paramount importance to our civil society, even if not determinative of the resolution
of this petition. Had the relevant issue before us been the right of the Senate to compel
the testimony of petitioners, the constitutional questions raised by them would have
come to fore. Such a scenario could have very well been presented to the Court in
such manner, without the petitioners having had to violate a direct order from their
commanding officer. Instead, the Court has to resolve whether petitioners may be
subjected to military discipline on account of their defiance of a direct order of the
AFP Chief of Staff.

The solicited writs of certiorari and prohibition do not avail; the petition must be
denied.

I.

The petitioners are high-ranking officers of the Armed Forces of the Philippines
(AFP). Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and
Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine
Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan were
assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the
PMA Assistant Superintendent, and the latter as the Assistant Commandant of
Cadets.2

On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior
officers of the AFP to appear at a public hearing before the Senate Committee on
National Defense and Security (Senate Committee) scheduled on 28 September 2005.
The hearing was scheduled after topics concerning the conduct of the 2004 elections
emerged in the public eye, particularly allegations of massive cheating and the
surfacing of copies of an audio excerpt purportedly of a phone conversation between
President Gloria Macapagal Arroyo and an official of the Commission on Elections
(COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano.
At the time of the 2004 elections, Gen. Gudani had been designated as commander,
and Col. Balutan a member, of "Joint Task Force Ranao" by the AFP Southern
Command. "Joint Task Force Ranao" was tasked with the maintenance of peace and
order during the 2004 elections in the provinces of Lanao del Norte and Lanao del
Sur.3 `

Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso
Senga (Gen. Senga) were among the several AFP officers who received a letter
invitation from Sen. Biazon to attend the 28 September 2005 hearing. On 23
September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would be
unable to attend the hearing due to a previous commitment in Brunei, but he
nonetheless "directed other officers from the AFP who were invited to attend the
hearing."4

On 26 September 2005, the Office of the Chief of Staff of the AFP issued a
Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing
(Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen.
Senga.5 Noting that Gen. Gudani and Col. Balutan had been invited to attend the
Senate Committee hearing on 28 September 2005, the Memorandum directed the two
officers to attend the hearing.6 Conformably, Gen. Gudani and Col. Balutan filed their
respective requests for travel authority addressed to the PMA Superintendent.

On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the
postponement of the hearing scheduled for the following day, since the AFP Chief of
Staff was himself unable to attend said hearing, and that some of the invited officers
also could not attend as they were "attending to other urgent operational matters." By
this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila
to attend the hearing.

Then on the evening of 27 September 2005, at around 10:10 p.m., a message was
transmitted to the PMA Superintendent from the office of Gen. Senga, stating as
follows:

PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL

SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING
WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP
AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.7

The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing
the senator that "no approval has been granted by the President to any AFP officer to
appear" before the hearing scheduled on that day. Nonetheless, both Gen. Gudani and
Col. Balutan were present as the hearing started, and they both testified as to the
conduct of the 2004 elections.

The Office of the Solicitor General (OSG), representing the respondents before this
Court, has offered additional information surrounding the testimony of Gen. Gudani
and Col. Balutan. The OSG manifests that the couriers of the AFP Command Center
had attempted to deliver the radio message to Gen. Gudani’s residence in a
subdivision in Parañaque City late in the night of 27 September 2005, but they were
not permitted entry by the subdivision guards. The next day, 28 September 2005,
shortly before the start of the hearing, a copy of Gen. Senga’s letter to Sen. Biazon
sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino of
the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he already
had a copy. Further, Gen. Senga called Commodore Tolentino on the latter’s cell
phone and asked to talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen.
Senga instructed Commodore Tolentino to inform Gen. Gudani that "it was an order,"
yet Gen. Gudani still refused to take Gen. Senga’s call.8

A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the
office of Gen. Senga issued a statement which noted that the two had appeared before
the Senate Committee "in spite of the fact that a guidance has been given that a
Presidential approval should be sought prior to such an appearance;" that such
directive was "in keeping with the time[-]honored principle of the Chain of
Command;" and that the two officers "disobeyed a legal order, in violation of
A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be
subjected to General Court Martial proceedings x x x" Both Gen. Gudani and Col.
Balutan were likewise relieved of their assignments then.9

On the very day of the hearing, 28 September 2005, President

Gloria-Macapagal-Arroyo issued Executive Order No. 464 (E.O. 464). The OSG
notes that the E.O. "enjoined officials of the executive department including the
military establishment from appearing in any legislative inquiry without her
approval."10 This Court subsequently ruled on the constitutionality of the said
executive order in Senate v. Ermita.11 The relevance of E.O. 464 and Senate to the
present petition shall be discussed forthwith.

In the meantime, on 30 September 2005, petitioners were directed by General Senga,

through Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before
the Office of the Provost Marshal General (OPMG) on 3 October 2005 for
investigation. During their appearance before Col. Galarpe, both petitioners invoked
their right to remain silent.12 The following day, Gen. Gudani was compulsorily
retired from military service, having reached the age of 56.13

In an Investigation Report dated 6 October 2005, the OPMG recommended that

petitioners be charged with violation of Article of War 65, on willfully disobeying a
superior officer, in relation to Article of War 97, on conduct prejudicial to the good
order and military discipline.14 As recommended, the case was referred to a Pre-Trial
Investigation Officer (PTIO) preparatory to trial by the General Court Martial
(GCM).15 Consequently, on 24 October 2005, petitioners were separately served with
Orders respectively addressed to them and signed by respondent Col. Gilbert Jose C.
Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners
to appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for
violation of Articles 6516 and 9717 of Commonwealth Act No. 408,18 and to submit
their counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate
General.19 The Orders were accompanied by respective charge sheets against
petitioners, accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was
filed, particularly seeking that (1) the order of President Arroyo coursed through Gen.
Senga preventing petitioners from testifying before Congress without her prior
approval be declared unconstitutional; (2) the charges stated in the charge sheets
against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their
successors-in-interest or persons acting for and on their behalf or orders, be
permanently enjoined from proceeding against petitioners, as a consequence of their
having testified before the Senate on 28 September 2005.20

Petitioners characterize the directive from President Arroyo requiring her prior
approval before any AFP personnel appear before Congress as a "gag order," which
violates the principle of separation of powers in government as it interferes with the
investigation of the Senate Committee conducted in aid of legislation. They also
equate the "gag order" with culpable violation of the Constitution, particularly in
relation to the public’s constitutional right to information and transparency in matters
of public concern. Plaintively, petitioners claim that "the Filipino people have every
right to hear the [petitioners’] testimonies," and even if the "gag order" were
unconstitutional, it still was tantamount to "the crime of obstruction of justice."
Petitioners further argue that there was no law prohibiting them from testifying before
the Senate, and in fact, they were appearing in obeisance to the authority of Congress
to conduct inquiries in aid of legislation.

Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military
jurisdiction on account of his compulsory retirement on 4 October 2005. It is pointed
out that Article 2, Title I of the Articles of War defines persons subject to military law
as "all officers and soldiers in the active service" of the AFP.

II.

We first proceed to define the proper litigable issues. Notably, the guilt or innocence
of petitioners in violating Articles 65 and 97 of the Articles of War is not an issue
before this Court, especially considering that per records, petitioners have not yet
been subjected to court martial proceedings. Owing to the absence of such
proceedings, the correct inquiry should be limited to whether respondents could
properly initiate such proceedings preparatory to a formal court-martial, such as the
aforementioned preliminary investigation, on the basis of petitioners’ acts surrounding
their testimony before the Senate on 28 September 2005. Yet this Court, consistent
with the principle that it is not a trier of facts at first instance,21 is averse to making
any authoritative findings of fact, for that function is first for the court-martial court to
fulfill.

Thus, we limit ourselves to those facts that are not controverted before the Court,
having been commonly alleged by petitioners and the OSG (for respondents).
Petitioners were called by the Senate Committee to testify in its 28 September 2005
hearing. Petitioners attended such hearing and testified before the Committee, despite
the fact that the day before, there was an order from Gen. Senga (which in turn was
sourced "per instruction" from President Arroyo) prohibiting them from testifying
without the prior approval of the President. Petitioners do not precisely admit before
this Court that they had learned of such order prior to their testimony, although the
OSG asserts that at the very least, Gen. Gudani already knew of such order before he
testified.22 Yet while this fact may be ultimately material in the court-martial
proceedings, it is not determinative of this petition, which as stated earlier, does not
proffer as an issue whether petitioners are guilty of violating the Articles of War.

What the Court has to consider though is whether the violation of the aforementioned
order of Gen. Senga, which emanated from the President, could lead to any
investigation for court-martial of petitioners. It has to be acknowledged as a general
principle23 that AFP personnel of whatever rank are liable under military law for
violating a direct order of an officer superior in rank. Whether petitioners did violate
such an order is not for the Court to decide, but it will be necessary to assume, for the
purposes of this petition, that petitioners did so.

III.

Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling in Senate
on the present petition. Notably, it is not alleged that petitioners were in any way
called to task for violating E.O. 464, but instead, they were charged for violating
the direct order of Gen. Senga not to appear before the Senate Committee, an
order that stands independent of the executive order. Distinctions are called for,
since Section 2(b) of E.O. 464 listed "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," as among those public officials required in
Section 3 of E.O. 464 "to secure prior consent of the President prior to appearing
before either House of Congress." The Court in Senate declared both Section 2(b) and
Section 3 void,24 and the impression may have been left following Senate that it
settled as doctrine, that the President is prohibited from requiring military personnel
from attending congressional hearings without having first secured prior presidential
consent. That impression is wrong.

Senate turned on the nature of executive privilege, a presidential prerogative which is

encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the
executive branch to seek prior presidential approval before appearing before Congress,
the notion of executive control also comes into consideration.25 However, the ability
of the President to require a military official to secure prior consent before appearing
before Congress pertains to a wholly different and independent specie of presidential
authority—the commander-in-chief powers of the President. By tradition and
jurisprudence, the commander-in-chief powers of the President are not encumbered
by the same degree of restriction as that which may attach to executive privilege or
executive control.

During the deliberations in Senate, the Court was very well aware of the pendency of
this petition as well as the issues raised herein. The decision in Senate was rendered
with the comfort that the nullification of portions of E.O. 464 would bear no impact
on the present petition since petitioners herein were not called to task for violating the
executive order. Moreover, the Court was then cognizant that Senate and this case
would ultimately hinge on disparate legal issues. Relevantly, Senate purposely did not
touch upon or rule on the faculty of the President, under the aegis of the
commander-in-chief powers26 to require military officials from securing prior consent
before appearing before Congress. The pertinent factors in considering that question
are markedly outside of those which did become relevant in adjudicating the issues
raised in Senate. It is in this petition that those factors come into play.

At this point, we wish to dispose of another peripheral issue before we strike at the
heart of the matter. General Gudani argues that he can no longer fall within the
jurisdiction of the court-martial, considering his retirement last 4 October 2005. He
cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject
to military law as, among others, "all officers and soldiers in the active service of the
[AFP]," and points out that he is no longer in the active service.

This point was settled against Gen. Gudani’s position in Abadilla v. Ramos,27 where
the Court declared that an officer whose name was dropped from the roll of officers
cannot be considered to be outside the jurisdiction of military authorities when
military justice proceedings were initiated against him before the termination of his
service. Once jurisdiction has been acquired over the officer, it continues until his
case is terminated. Thus, the Court held:

The military authorities had jurisdiction over the person of Colonel Abadilla at the
time of the alleged offenses. This jurisdiction having been vested in the military
authorities, it is retained up to the end of the proceedings against Colonel Abadilla.
Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of
the parties but continues until the case is terminated.28

Citing Colonel Winthrop’s treatise on Military Law, the Court further stated:

We have gone through the treatise of Colonel Winthrop and We find the following
passage which goes against the contention of the petitioners, viz —

3. Offenders in general — Attaching of jurisdiction. It has further been held, and is

now settled law, in regard to military offenders in general, that if the military
jurisdiction has once duly attached to them previous to the date of the termination of
their legal period of service, they may be brought to trial by court-martial after that
date, their discharge being meanwhile withheld. This principle has mostly been
applied to cases where the offense was committed just prior to the end of the term. In
such cases the interests of discipline clearly forbid that the offender should go
unpunished. It is held therefore that if before the day on which his service legally
terminates and his right to a discharge is complete, proceedings with a view to
trial are commenced against him — as by arrest or the service of charges, — the
military jurisdiction will fully attach and once attached may be continued by a
trial by court-martial ordered and held after the end of the term of the
enlistment of the accused x x x 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the
acts complained of and the initiation of the proceedings against him occurred before
he compulsorily retired on 4 October 2005. We see no reason to unsettle the Abadilla
doctrine. The OSG also points out that under Section 28 of Presidential Decree No.
1638, as amended, "[a]n officer or enlisted man carried in the retired list [of the
Armed Forces of the Philippines] shall be subject to the Articles of War x x x"30 To
this citation, petitioners do not offer any response, and in fact have excluded the
matter of Gen. Gudani’s retirement as an issue in their subsequent memorandum.

IV.

We now turn to the central issues.

Petitioners wish to see annulled the "gag order" that required them to secure
presidential consent prior to their appearance before the Senate, claiming that it
violates the constitutional right to information and transparency in matters of public
concern; or if not, is tantamount at least to the criminal acts of obstruction of justice
and grave coercion. However, the proper perspective from which to consider this
issue entails the examination of the basis and authority of the President to issue such
an order in the first place to members of the AFP and the determination of whether
such an order is subject to any limitations.

The vitality of the tenet that the President is the commander-in-chief of the Armed
Forces is most crucial to the democratic way of life, to civilian supremacy over the
military, and to the general stability of our representative system of government. The
Constitution reposes final authority, control and supervision of the AFP to the
President, a civilian who is not a member of the armed forces, and whose duties as
commander-in-chief represent only a part of the organic duties imposed upon the
office, the other functions being clearly civil in nature.31 Civilian supremacy over the
military also countermands the notion that the military may bypass civilian authorities,
such as civil courts, on matters such as conducting warrantless searches and seizures.32

Pursuant to the maintenance of civilian supremacy over the military, the Constitution
has allocated specific roles to the legislative and executive branches of government in
relation to military affairs. Military appropriations, as with all other appropriations,
are determined by Congress, as is the power to declare the existence of a state of
war.33 Congress is also empowered to revoke a proclamation of martial law or the
suspension of the writ of habeas corpus.34 The approval of the Commission on
Appointments is also required before the President can promote military officers from
the rank of colonel or naval captain.35 Otherwise, on the particulars of civilian
dominance and administration over the military, the Constitution is silent, except for
the commander-in-chief clause which is fertile in meaning and

implication as to whatever inherent martial authority the President may possess.36

The commander-in-chief provision in the Constitution is denominated as Section 18,

Article VII, which begins with the simple declaration that "[t]he President shall be the
Commander-in-Chief of all armed forces of the Philippines x x x"37 Outside explicit
constitutional limitations, such as those found in Section 5, Article XVI, the
commander-in-chief clause vests on the President, as commander-in-chief, absolute
authority over the persons and actions of the members of the armed forces. Such
authority includes the ability of the President to restrict the travel, movement and
speech of military officers, activities which may otherwise be sanctioned under
civilian law.

Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col. Kapunan was
ordered confined under "house arrest" by then Chief of Staff (later President) Gen.
Fidel Ramos. Kapunan was also ordered, as a condition for his house arrest, that he
may not issue any press statements or give any press conference during his period of
detention. The Court unanimously upheld such restrictions, noting:

[T]he Court is of the view that such is justified by the requirements of military
discipline. It cannot be gainsaid that certain liberties of persons in the military
service, including the freedom of speech, may be circumscribed by rules of
military discipline. Thus, to a certain degree, individual rights may be curtailed,
because the effectiveness of the military in fulfilling its duties under the law
depends to a large extent on the maintenance of discipline within its ranks.
Hence, lawful orders must be followed without question and rules must be
faithfully complied with, irrespective of a soldier's personal views on the matter.
It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an
officer in the AFP, have to be considered.39

Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military
way of life circumscribes several of the cherished freedoms of civilian life. It is part
and parcel of the military package. Those who cannot abide by these limitations
normally do not pursue a military career and instead find satisfaction in other fields;
and in fact many of those discharged from the service are inspired in their later
careers precisely by their rebellion against the regimentation of military life. Inability
or unwillingness to cope with military discipline is not a stain on character, for the
military mode is a highly idiosyncratic path which persons are not generally
conscripted into, but volunteer themselves to be part of. But for those who do make
the choice to be a soldier, significant concessions to personal freedoms are expected.
After all, if need be, the men and women of the armed forces may be commanded
upon to die for country, even against their personal inclinations.

It may be so that military culture is a remnant of a less democratic era, yet it has been
fully integrated into the democratic system of governance. The constitutional role of
the armed forces is as protector of the people and of the State.40 Towards this end, the
military must insist upon a respect for duty and a discipline without counterpart in
civilian life.41 The laws and traditions governing that discipline have a long history;
but they are founded on unique military exigencies as powerful now as in the past.42 In
the end, it must be borne in mind that the armed forces has a distinct subculture with
unique needs, a specialized society separate from civilian society. 43 In the elegant
prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians
and diplomats. They are those of a world apart, a very ancient world, which exists in
parallel with the everyday world but does not belong to it. Both worlds change over
time, and the warrior world adopts in step to the civilian. It follows it, however, at a
distance. The distance can never be closed, for the culture of the warrior can never be
that of civilization itself….44

Critical to military discipline is obeisance to the military chain of command. Willful

disobedience of a superior officer is punishable by court-martial under Article 65 of
the Articles of War.45 "An individual soldier is not free to ignore the lawful orders or
duties assigned by his immediate superiors. For there would be an end of all discipline
if the seaman and marines on board a ship of war [or soldiers deployed in the field],
on a distant service, were permitted to act upon their own opinion of their rights [or
their opinion of the

President’s intent], and to throw off the authority of the commander whenever they
supposed it to be unlawfully exercised."46

Further traditional restrictions on members of the armed forces are those imposed on
free speech and mobility. Kapunan is ample precedent in justifying that a soldier may
1 âwphi1

be restrained by a superior officer from speaking out on certain matters. As a general

rule, the discretion of a military officer to restrain the speech of a soldier under his/her
command will be accorded deference, with minimal regard if at all to the reason for
such restraint. It is integral to military discipline that the soldier’s speech be with the
consent and approval of the military commander.

The necessity of upholding the ability to restrain speech becomes even more
imperative if the soldier desires to speak freely on political matters. The Constitution
requires that "[t]he armed forces shall be insulated from partisan politics," and that
‘[n]o member of the military shall engage directly or indirectly in any partisan
political activity, except to vote."47 Certainly, no constitutional provision or military
indoctrination will eliminate a soldier’s ability to form a personal political opinion,
yet it is vital that such opinions be kept out of the public eye. For one, political belief
is a potential source of discord among people, and a military torn by political strife is
incapable of fulfilling its constitutional function as protectors of the people and of the
State. For another, it is ruinous to military discipline to foment an atmosphere that
promotes an active dislike of or dissent against the President, the commander-in-chief
of the armed forces. Soldiers are constitutionally obliged to obey a President they may
dislike or distrust. This fundamental principle averts the country from going the way
of banana republics.

Parenthetically, it must be said that the Court is well aware that our country’s recent
past is marked by regime changes wherein active military dissent from the chain of
command formed a key, though not exclusive, element. The Court is not blind to
history, yet it is a judge not of history but of the Constitution. The Constitution, and
indeed our modern democratic order, frown in no uncertain terms on a politicized
military, informed as they are on the trauma of absolute martial rule. Our history
might imply that a political military is part of the natural order, but this view cannot
be affirmed by the legal order. The evolutionary path of our young democracy
necessitates a reorientation from this view, reliant as our socio-political culture has
become on it. At the same time, evolution mandates a similar demand that our system
of governance be more responsive to the needs and aspirations of the citizenry, so as
to avoid an environment vulnerable to a military apparatus able at will to exert an
undue influence in our polity.

Of possibly less gravitas, but of equal importance, is the principle that mobility of
travel is another necessary restriction on members of the military. A soldier cannot
leave his/her post without the consent of the commanding officer. The reasons are
self-evident. The commanding officer has to be aware at all times of the location of
the troops under command, so as to be able to appropriately respond to any exigencies.
For the same reason, commanding officers have to be able to restrict the movement or
travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences, such as a
soldier being denied permission to witness the birth of his first-born, or to attend the
funeral of a parent. Yet again, military life calls for considerable personal sacrifices
during the period of conscription, wherein the higher duty is not to self but to country.

Indeed, the military practice is to require a soldier to obtain permission from the
commanding officer before he/she may leave his destination. A soldier who goes from
the properly appointed place of duty or absents from his/her command, guard,
quarters, station, or camp without proper leave is subject to punishment by
court-martial.48 It is even clear from the record that petitioners had actually requested
for travel authority from the PMA in Baguio City to Manila, to attend the Senate
Hearing.49 Even petitioners are well aware that it was necessary for them to obtain
permission from their superiors before they could travel to Manila to attend the Senate
Hearing.

It is clear that the basic position of petitioners impinges on these fundamental

principles we have discussed. They seek to be exempted from military justice for
having traveled to the Senate to testify before the Senate Committee against the
express orders of Gen. Senga, the AFP Chief of Staff. If petitioners’ position is
affirmed, a considerable exception would be carved from the unimpeachable right of
military officers to restrict the speech and movement of their juniors. The ruinous
consequences to the chain of command and military discipline simply cannot warrant
the Court’s imprimatur on petitioner’s position.

V.

Still, it would be highly myopic on our part to resolve the issue solely on generalities
surrounding military discipline. After all, petitioners seek to impress on us that their
acts are justified as they were responding to an invitation from the Philippine Senate,
a component of the legislative branch of government. At the same time, the order for
them not to testify ultimately came from the President, the head of the executive
branch of government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the
armed forces from testifying before a legislative inquiry? We hold that the President
has constitutional authority to do so, by virtue of her power as commander-in-chief,
and that as a consequence a military officer who defies such injunction is liable under
military justice. At the same time, we also hold that any chamber of Congress which
seeks the appearance before it of a military officer against the consent of the President
has adequate remedies under law to compel such attendance. Any military official
whom Congress summons to testify before it may be compelled to do so by the
President. If the President is not so inclined, the President may be commanded by
judicial order to compel the attendance of the military officer. Final judicial orders
have the force of the law of the land which the President has the duty to faithfully
execute.50

Explication of these principles is in order.

As earlier noted, we ruled in Senate that the President may not issue a blanket
requirement of prior consent on executive officials summoned by the legislature to
attend a congressional hearing. In doing so, the Court recognized the considerable
limitations on executive privilege, and affirmed that the privilege must be formally
invoked on specified grounds. However, the ability of the President to prevent
military officers from testifying before Congress does not turn on executive
privilege, but on the Chief Executive’s power as commander-in-chief to control
the actions and speech of members of the armed forces. The President’s
prerogatives as commander-in-chief are not hampered by the same limitations as
in executive privilege.

Our ruling that the President could, as a general rule, require military officers to seek
presidential approval before appearing before Congress is based foremost on the
notion that a contrary rule unduly diminishes the prerogatives of the President as
commander-in-chief. Congress holds significant control over the armed forces in
matters such as budget appropriations and the approval of higher-rank promotions,51
yet it is on the President that the Constitution vests the title as commander-in-chief
and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the
President’s ability to control the individual members of the armed forces be accorded
the utmost respect. Where a military officer is torn between obeying the President and
obeying the Senate, the Court will without hesitation affirm that the officer has to
choose the President. After all, the Constitution prescribes that it is the President, and
not the Senate, who is the commander-in-chief of the armed forces.52

At the same time, the refusal of the President to allow members of the military to
appear before Congress is still subject to judicial relief. The Constitution itself
recognizes as one of the legislature’s functions is the conduct of inquiries in aid of
legislation.53 Inasmuch as it is ill-advised for Congress to interfere with the
President’s power as commander-in-chief, it is similarly detrimental for the President
to unduly interfere with Congress’s right to conduct legislative inquiries. The impasse
did not come to pass in this petition, since petitioners testified anyway despite the
presidential prohibition. Yet the Court is aware that with its pronouncement today that
the President has the right to require prior consent from members of the armed forces,
the clash may soon loom or actualize.

We believe and hold that our constitutional and legal order sanctions a modality by
which members of the military may be compelled to attend legislative inquiries even
if the President desires otherwise, a modality which does not offend the Chief
Executive’s prerogatives as commander-in-chief. The remedy lies with the courts.

The fact that the executive branch is an equal, coordinate branch of government to the
legislative creates a wrinkle to any basic rule that persons summoned to testify before
Congress must do so. There is considerable interplay between the legislative and
executive branches, informed by due deference and respect as to their various
constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is
only as a last resort that one branch seeks to compel the other to a particular mode of
behavior. The judiciary, the third coordinate branch of government, does not enjoy a
similar dynamic with either the legislative or executive branches. Whatever weakness
inheres on judicial power due to its inability to originate national policies and
legislation, such is balanced by the fact that it is the branch empowered by the
Constitution to compel obeisance to its rulings by the other branches of government.

As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon

Committee,55 among others, the Court has not shirked from reviewing the exercise by
Congress of its power of legislative inquiry.56 Arnault recognized that the legislative
power of inquiry and the process to enforce it, "is an essential and appropriate
auxiliary to the legislative function."57 On the other hand, Bengzon acknowledged that
the power of both houses of Congress to conduct inquiries in aid of legislation is not
"absolute or unlimited", and its exercise is circumscribed by Section 21, Article VI of
the Constitution.58 From these premises, the Court enjoined the Senate Blue Ribbon
Committee from requiring the petitioners in Bengzon from testifying and producing
evidence before the committee, holding that the inquiry in question did not involve
any intended legislation.

Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the
constitutional scope and limitations on the constitutional power of congressional
inquiry. Thus:

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 inquirites 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 Court’s certiorari powers under Section 1, Article
VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 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 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 critical safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s 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 to the executive branch. Nonetheless,
there may be exceptional circumstances… 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 sanction59 .

In Senate, the Court ruled that the President could not impose a blanket prohibition
barring executive officials from testifying before Congress without the President’s
consent notwithstanding the invocation of executive privilege to justify such
prohibition. The Court did not rule that the power to conduct legislative inquiry ipso
facto superseded the claim of executive privilege, acknowledging instead that the
viability of executive privilege stood on a case to case basis. Should neither branch
yield to the other branch’s assertion, the constitutional recourse is to the courts, as the
final arbiter if the dispute. It is only the courts that can compel, with conclusiveness,
attendance or non-attendance in legislative inquiries.

Following these principles, it is clear that if the President or the Chief of Staff refuses
to allow a member of the AFP to appear before Congress, the legislative body seeking
such testimony may seek judicial relief to compel the attendance. Such judicial action
should be directed at the heads of the executive branch or the armed forces, the
persons who wield authority and control over the actions of the officers concerned.
The legislative purpose of such testimony, as well as any defenses against the same —
whether grounded on executive privilege, national security or similar concerns —
would be accorded due judicial evaluation. All the constitutional considerations
pertinent to either branch of government may be raised, assessed, and ultimately
weighed against each other. And once the courts speak with finality, both branches of
government have no option but to comply with the decision of the courts, whether the
effect of the decision is to their liking or disfavor.

Courts are empowered, under the constitutional principle of judicial review, to

arbitrate disputes between the legislative and executive branches of government on
the proper constitutional parameters of power.60 This is the fair and workable solution
implicit in the constitutional allocation of powers among the three branches of
government. The judicial filter helps assure that the particularities of each case would
ultimately govern, rather than any overarching principle unduly inclined towards one
branch of government at the expense of the other. The procedure may not move as
expeditiously as some may desire, yet it ensures thorough deliberation of all relevant
and cognizable issues before one branch is compelled to yield to the other. Moreover,
judicial review does not preclude the legislative and executive branches from
negotiating a mutually acceptable solution to the impasse. After all, the two branches,
exercising as they do functions and responsibilities that are political in nature, are free
to smooth over the thorns in their relationship with a salve of their own choosing.

And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of
the President, as commander-in-chief, to authorize the appearance of the
military officers before Congress. Even if the President has earlier disagreed
with the notion of officers appearing before the legislature to testify, the Chief
Executive is nonetheless obliged to comply with the final orders of the courts.

Petitioners have presented several issues relating to the tenability or wisdom of the
President’s order on them and other military officers not to testify before Congress
without the President’s consent. Yet these issues ultimately detract from the main
point — that they testified before the Senate despite an order from their commanding
officer and their commander-in-chief for them not to do so,61 in contravention of the
traditions of military discipline which we affirm today. The issues raised by
1âwphi1

petitioners could have very well been raised and properly adjudicated if the proper
procedure was observed. Petitioners could have been appropriately allowed to testify
before the Senate without having to countermand their Commander-in-chief and
superior officer under the setup we have prescribed.

We consider the other issues raised by petitioners unnecessary to the resolution of this
petition.

Petitioners may have been of the honest belief that they were defying a direct order of
their Commander-in-Chief and Commanding General in obeisance to a paramount
idea formed within their consciences, which could not be lightly ignored. Still, the
Court, in turn, is guided by the superlative principle that is the Constitution, the
embodiment of the national conscience. The Constitution simply does not permit the
infraction which petitioners have allegedly committed, and moreover, provides for an
orderly manner by which the same result could have been achieved without offending
constitutional principles.

WHEREFORE, the petition is DENIED. No pronouncement as to costs.

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 President’s 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 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 Court’s
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 Committees").3

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 petitioner’s
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 petitioner’s 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 petitioner’s 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 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 People’s 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 petitioner’s 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 petitioner’s 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 Court’s 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 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:

CONTRARY TO THIS HONORABLE COURT’S 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 COURT’S DECISION, THERE CAN

BE NO PRESUMPTION THAT THE INFORMATION WITHHELD IN THE
INSTANT CASE IS PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURT’S 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 COURT’S DECISION,

RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN
ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN

THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS

LAID DOWN IN SENATE 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 OSG’S
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 petitioner’s 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 President’s 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 General’s 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.

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 Presumptive
Presidential Communications Privilege

Respondent Committees ardently argue that the Court’s 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 the presidential 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 Court’s 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 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 President’s 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 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 in Senate v. Ermita adverted to in the Motion for
Reconsideration of respondent Committees, referring to the non-existence 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 President’s 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 the executive branch, and
the due respect accorded to a co-equal branch of governments which is sanctioned by
a long-standing 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 privilege are 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 non-delegable 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 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 President’s 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 advisor’s 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 President’s 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 Executive’s
organizational structure. Thus, respondent Committees’ fear that the scope of the
privilege would be unnecessarily expanded with the use of the operational proximity
test is unfounded.

C. The President’s claim of executive privilege is not merely based on a generalized

interest; and in balancing respondent Committees’ and the President’s clashing
interests, the Court did not disregard the 1987 Constitutional provisions on
government transparency, accountability and disclosure of information.

Third, respondent Committees claim that the Court erred in upholding the President’s
invocation, through the Executive Secretary, of executive privilege because (a)
between respondent Committees’ specific and demonstrated need and the President’s
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 must be stressed that the President’s 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 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 People’s Republic of China. Given the confidential nature in which this
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. (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.

It is easy to discern the danger that goes with the disclosure of the President’s
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 People’s 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:

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

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:

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 People’s 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
President’s 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 Stimson have clearly analyzed and justified the practice. In the words of Mr.
Stimson:

"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)

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 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 President’s 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 President’s 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 public’s 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 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.

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:

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 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."

Incidentally, the right primarily involved here is the right of respondent Committees
to obtain information allegedly in aid of legislation, not the people’s 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.

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

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

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 the right '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
the constitutional 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 be totally frustrated. The President's broad interest in
confidentiality of communication will not 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 court’s need for facts in order to
adjudge liability in a criminal case but rather with the Senate’s 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. 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 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

Yes. But my question is how critical is this to the lawmaking function of the Senate?

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

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.

CHIEF JUSTICE PUNO

But the question is just following it up.

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 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

Again, that is speculative.

ATTY. AGABIN

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

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 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 President’s
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 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 anyone’s 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.49 In 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 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 Legislature’s 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 petitioner’s 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) 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.

We reaffirm our earlier ruling.

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
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-à-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:

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 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)

Clearly, petitioner’s 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 Court’s 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
respondent Committees. Section 18 of the Rules provides that:

"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 respondent Committee 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.57 These 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 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 XLIV
UNFINISHED BUSINESS

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 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 Senate’s main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

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 LII
DATE OF TAKING EFFECT

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 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 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 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 Ermita’s 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 petitioner’s 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 their internal 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
Legislature’s all-encompassing, 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 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 for Reconsideration dated April 8,

2008 is hereby DENIED.

SO ORDERED.

G.R. No. 174105 April 2, 2009

REGHIS M. ROMERO II, EDMOND Q. SESE, LEOPOLDO T. SANCHEZ, REGHIS M.
ROMERO III, MICHAEL L. ROMERO, NATHANIEL L. ROMERO, and JEROME R.
CANLAS, Petitioners,
vs.
SENATOR JINGGOY E. ESTRADA and SENATE COMMITTEE ON LABOR,
EMPLOYMENT AND HUMAN RESOURCES DEVELOPMENT, Respondents.

DECISION

VELASCO, JR., J.:

At issue once again is Section 21, Article VI of the 1987 Constitution which 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.

The Case

This is a petition for prohibition with application for temporary restraining order (TRO) and
preliminary injunction under Rule 65, assailing the constitutionality of the invitations and
other compulsory processes issued by the Senate Committee on Labor, Employment, and
Human Resources Development (Committee) in connection with its investigation on the
investment of Overseas Workers Welfare Administration (OWWA) funds in the Smokey
Mountain project.

The Facts

On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc., received
from the Committee an invitation,1 signed by the Legislative Committee Secretary, which
pertinently reads as follows:

Dear Mr. Romero:

Pursuant to P.S. Resolution No. 537, entitled: "RESOLUTION

DIRECTING THE LABOR COMMITTEE TO INVESTIGATE, IN AID OF
LEGISLATION, THE LIABILITY FOR PLUNDER OF THE FORMER
PRESIDENT RAMOS AND OTHERS, FOR THE ILLEGAL INVESTMENT
OF OWWA FUNDS IN THE SMOKEY MOUNTAIN PROJECT, CAUSING
A LOSS TO OWWA OF P550.86 MILLION" and P.S. Resolution No. 543,
entitled: "RESOLUTION DIRECTING THE COMMITTEE ON LABOR AND
EMPLOYMENT, IN ITS ONGOING INQUIRY IN AID OF LEGISLATION,
ON THE ALLEGED OWWA LOSS OF P480 MILLION TO FOCUS ON
THE CULPABILITY OF THEN PRESIDENT FIDEL RAMOS, THEN
OWWA ADMINISTRATOR WILHELM SORIANO, AND R-II BUILDERS
OWNER REGHIS ROMERO II," x x x the Committee on Labor,
Employment and Human Resources Development chaired by Sen.
Jinggoy Ejercito Estrada will conduct a public hearing at 1:00 p.m. on the
23rd day of August 2006 at the Sen. G.T. Pecson Room, 2nd floor, Senate
of the Philippines, Pasay City.
The inquiry/investigation is specifically intended to aid the Senate in the review and
possible amendments to the pertinent provisions of R.A. 8042, "the Migrant Workers Act"
and to craft a much needed legislation relative to the stated subject matter and purpose of
the aforementioned Resolutions.

By virtue of the power vested in Congress by Section 21, Article VI of 1987 Constitution
regarding inquiries in aid of legislation, may we have the privilege of inviting you to the
said hearing to shed light on any matter, within your knowledge and competence, covered
by the subject matter and purpose of the inquiry. Rest assured that your rights, when
properly invoked and not unfounded, will be duly respected. (Emphasis in the original.)

In his letter-reply2 dated August 18, 2006, petitioner Romero II requested to be excused
from appearing and testifying before the Committee at its scheduled hearings of the
subject matter and purpose of Philippine Senate (PS) Resolution Nos. 537 and 543. He
predicated his request on grounds he would later substantially reiterate in this petition for
prohibition.

On August 28, 2006, the Committee sent petitioner Romero II a letter informing him that
his request, being unmeritorious, was denied.3 On the same date, invitations were sent to
each of the other six petitioners, then members of the Board of Directors of R-II Builders,
Inc., requesting them to attend the September 4, 2006 Committee hearing. The following
day, Senator Jinggoy Estrada, as Chairperson of the Committee, caused the service of a
subpoena ad testificandum4 on petitioner Romero II directing him to appear and testify
before the Committee at its hearing on September 4, 2006 relative to the aforesaid Senate
resolutions. The Committer later issued separate subpoenas5 to other petitioners, albeit
for a different hearing date.

On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No. 174105,
seeking to bar the Committee from continuing with its inquiry and to enjoin it from
compelling petitioners to appear before it pursuant to the invitations thus issued.

Failing to secure the desired TRO sought in the petition, petitioner Romero II appeared at
the September 4, 2006 Committee investigation.

Two days after, petitioner Romero II filed a Manifestation with Urgent Plea for a TRO6
alleging, among others, that: (1) he answered questions concerning the investments of
OWWA funds in the Smokey Mountain project and how much of OWWA’s original
investment had already been paid; (2) when Senator Estrada called on Atty. Francisco I.
Chavez, as resource person, the latter spoke of the facts and issues he raised with the
Court in Chavez v. National Housing Authority,7 none of which were related to the subject
of the inquiry; and (3) when Senator Estrada adjourned the investigation, he asked
petitioners Romero II and Canlas to return at the resumption of the investigation.

The manifestation was followed by the filing on September 19, 2006 of another urgent
motion for a TRO in which petitioners imputed to the Committee the intention to harass
them as, except for petitioner Romero II, none of them had even been mentioned in
relation to the subject of the investigation.

Meanwhile, respondents, in compliance with our September 5, 2006 Resolution that

ordered them to submit a comment on the original plea for a TRO, interposed an
opposition,8 observing that the Senate’s motives in calling for an investigation in aid of
legislation were a political question. They also averred that the pendency of Chavez "is
not sufficient ground to divest the respondents of their jurisdiction to conduct an inquiry
into the matters alleged in the petition."

In this petition, petitioners in gist claim that: (1) the subject matter of the investigation is
sub judice owing to the pendency of the Chavez petition; (2) since the investigation has
been intended to ascertain petitioners’ criminal liability for plunder, it is not in aid of
legislation; (3) the inquiry compelled them to appear and testify in violation of their rights
against self-incrimination; and (4) unless the Court immediately issues a TRO, some or all
of petitioners would be in danger of being arrested, detained, and forced to give testimony
against their will, before the Court could resolve the issues raised in G.R. No. 164527.

In their Comment dated October 17, 2006,9 respondents made a distinction between the
issues raised in Chavez and the subject matter of the Senate resolutions, nixing the notion
of sub judice that petitioners raised at every possible turn. Respondents averred that the
subject matter of the investigation focused on the alleged dissipation of OWWA funds and
the purpose of the probe was to aid the Senate determine the propriety of amending
Republic Act No. 8042 or The Migrant Workers Act of 1995 and enacting laws to protect
OWWA funds in the future. They likewise raised the following main arguments: (1) the
proposed resolutions were a proper subject of legislative inquiry; and (2) petitioners’ right
against self-incrimination was well-protected and could be invoked when incriminating
questions were propounded.

On December 28, 2006, petitioners filed their Reply10 reiterating the arguments stated in
their petition, first and foremost of which is: Whether or not the subject matter of the
Committee’s inquiry is sub judice.

The Court’s Ruling

The Court resolves to dismiss the instant petition.

The Subject Matter of the Senate Inquiry Is no Longer Sub Judice

Petitioners contend that the subject matter of the legislative inquiry is sub judice in view of
the Chavez petition.

The sub judice rule restricts comments and disclosures pertaining to judicial proceedings
to avoid prejudging the issue, influencing the court, or obstructing the administration of
justice. A violation of the sub judice rule may render one liable for indirect contempt under
Sec. 3(d), Rule 71 of the Rules of Court.11 The rationale for the rule adverted to is set out
in Nestle Philippines v. Sanchez:

[I]t is a traditional conviction of civilized society everywhere that courts and juries, in the
decision of issues of fact and law should be immune from every extraneous influence; that
facts should be decided upon evidence produced in court; and that the determination of
such facts should be uninfluenced by bias, prejudice or sympathies.12

Chavez, assuming for argument that it involves issues subject of the respondent
Committee’s assailed investigation, is no longer sub judice or "before a court or judge for
consideration."13 For by an en banc Resolution dated July 1, 2008, the Court, in G.R. No.
164527, denied with finality the motion of Chavez, as the petitioner in Chavez, for
reconsideration of the Decision of the Court dated August 15, 2007. In fine, it will not avail
petitioners any to invoke the sub judice effect of Chavez and resist, on that ground, the
assailed congressional invitations and subpoenas. The sub judice issue has been
rendered moot and academic by the supervening issuance of the en banc Resolution of
July 1, 2008 in G.R. No. 164527. An issue or a case becomes moot and academic when it
ceases to present a justiciable controversy, so that a determination of the issue would be
without practical use and value. In such cases, there is no actual substantial relief to which
the petitioner would be entitled and which would be negated by the dismissal of the
petition.14 Courts decline jurisdiction over such cases or dismiss them on the ground of
mootness, save in certain exceptional instances,15 none of which, however, obtains under
the premises.

Thus, there is no more legal obstacle––on the ground of sub judice, assuming it is
invocable––to the continuation of the Committee’s investigation challenged in this
proceeding.

At any rate, even assuming hypothetically that Chavez is still pending final adjudication by
the Court, still, such circumstance would not bar the continuance of the committee
investigation. What we said in Sabio v. Gordon suggests as much:

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 or administrative action should not
stop or abate any inquiry to carry out a legislative purpose.16

A legislative investigation in aid of legislation and court proceedings has different

purposes. On one hand, courts conduct hearings or like adjudicative procedures to settle,
through the application of a law, actual controversies arising between adverse litigants
and involving demandable rights. On the other hand, inquiries in aid of legislation are,
inter alia, undertaken as tools to enable the legislative body to gather information and,
thus, legislate wisely and effectively;17 and to determine whether there is a need to
improve existing laws or enact new or remedial legislation,18 albeit the inquiry need not
result in any potential legislation. On-going judicial proceedings do not preclude
congressional hearings in aid of legislation. Standard Chartered Bank (Philippine Branch)
v. Senate Committee on Banks, Financial Institutions and Currencies (Standard
Chartered Bank) provides the following reason:

[T]he mere filing of a criminal or an administrative complaint before a court or

quasi-judicial body should not automatically bar the conduct of legislative investigation.
Otherwise, it would be extremely easy to subvert any intended inquiry by Congress
through the convenient ploy of instituting a criminal or an administrative complaint. Surely,
the exercise of sovereign legislative authority, of which the power of legislative inquiry is
an essential component, cannot be made subordinate to a criminal or administrative
investigation.1avvphi1 .zw+

As succinctly stated in x x x Arnault v. Nazareno––

[T]he power of inquiry––with process to enforce it––is an essential and appropriate

auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively
in the absence of information respecting the conditions which the legislation is intended to
affect or change; and where the legislative body does not itself possess the requisite
information––which is not infrequently true––recourse must be had to others who possess
it.19
While Sabio and Standard Chartered Bank advert only to pending criminal and
administrative cases before lower courts as not posing a bar to the continuation of a
legislative inquiry, there is no rhyme or reason that these cases’ doctrinal pronouncement
and their rationale cannot be extended to appealed cases and special civil actions
awaiting final disposition before this Court.

The foregoing consideration is not all. The denial of the instant recourse is still indicated
for another compelling reason. As may be noted, PS Resolution Nos. 537 and 543 were
passed in 2006 and the letter-invitations and subpoenas directing the petitioners to
appear and testify in connection with the twin resolutions were sent out in the month of
August 2006 or in the past Congress. On the postulate that the Senate of each Congress
acts separately and independently of the Senate before and after it, the aforesaid
invitations and subpoenas are considered functos oficio and the related legislative inquiry
conducted is, for all intents and purposes, terminated. In this regard, the Court draws
attention to its pronouncements embodied in its Resolution of September 4, 2008 in G.R.
No. 180643 entitled Neri v. Senate Committee on Accountability of Public Officers and
Investigations:

Certainly, x x x 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 before it. The Rules of the Senate itself confirms this
when it states:

xxxx

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[ed] 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 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. x x x
(Emphasis added.)

Following the lessons of Neri, as reiterated in Garcillano v. The House of Representatives

Committees on Public Information, Public Order and Safety, et al.,20 it can very well be
stated that the termination of the assailed investigations has veritably mooted the instant
petition. This disposition becomes all the more impeccable, considering that the Senate of
the present Congress has not, per available records, opted to take up anew, as an
unfinished matter, its inquiry into the investment of OWWA funds in the Smokey Mountain
project.

With the foregoing disquisition, the Court need not belabor the other issues raised in this
recourse. Suffice it to state that when the Committee issued invitations and subpoenas to
petitioners to appear before it in connection with its investigation of the aforementioned
investments, it did so pursuant to its authority to conduct inquiries in aid of legislation. This
is clearly provided in Art. VI, Sec. 21 of the Constitution, which was quoted at the outset.
And the Court has no authority to prohibit a Senate committee from requiring persons to
appear and testify before it in connection with an inquiry in aid of legislation in accordance
with its duly published rules of procedure.21 Sabio emphasizes the importance of the duty
of those subpoenaed to appear before the legislature, even if incidentally incriminating
questions are expected to be asked:

Anent the right against self-incrimination, it must be emphasized that ["this right may be]
invoked by the said directors and officers of Philcomsat x x x 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."http://elibrary.supremecourt.gov.ph/DOCUMENTS/SUPREME_COURT/Decisions/
2006.zip%3E528,df%7C2006/OCT2006/174340.htm - _ftn 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.

xxxx

Let it be stressed at this point that so long as the constitutional rights of witnesses x x x will
be respected by respondent Senate Committees, it [is] 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.22 (Emphasis supplied.)

As a matter of long and sound practice, the Court refrains from touching on the issue of
constitutionality except when it is unavoidable and is the very lis mota23 of the controversy.
So it must be here. Indeed, the matter of the constitutionality of the assailed Committee
invitations and subpoenas issued vis-à-vis the investigation conducted pursuant to PS
Resolution Nos. 537 and 543 has ceased to be a justiciable controversy, having been
rendered moot and academic by supervening events heretofore indicated. In short, there
is no more investigation to be continued by virtue of said resolutions; there is no more
investigation the constitutionality of which is subject to a challenge.

WHEREFORE, the petition is DENIED.

No pronouncement as to costs.

SO ORDERED.