Petitioners Vs Vs Respondents: en Banc

EN BANC
[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 OSMEÑA 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.
[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.
[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.
[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.
[G.R. No. 169834. April 20, 2006.]
PDP-LABAN , petitioner, vs . EXECUTIVE SECRETARY EDUARDO R.

ERMITA , respondent.
CD Technologies Asia, Inc. 2019 cdasiaonline.com

[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 : p
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 con dential 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 o cials and employees of the executive
department, bureaus, and o ces 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 o cials 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 o cials 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 led 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 led 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.
SIcCEA
Also invited to the above-said hearing scheduled on September 28 2005 was the
AFP Chief of Staff, General Generoso S. Senga who, by letter 3 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 o cers 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 letter 4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the NorthRail
project] to which various o cials of the Executive Department have been invited" in
order to "afford said o cials 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, wrote 5 Executive Secretary Ermita that the
Senators "are unable to accede to [his request]" as it "was sent belatedly" and "[a]ll
preparations and arrangements as well as notices to all resource persons were
completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter 6 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 con dentiality 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 O cials and Employees provides that Public
O cials and Employees shall not use or divulge con dential or classi ed
information o cially known to them by reason of their o ce and not made
available to the public to prejudice the public interest.
Executive privilege covers all con dential or classi ed information
between the President and the public o cers covered by this executive order,
including :
i. Conversations and correspondence between the President and the

public o cial 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);
ii. 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).
iii. 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);
iv. Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December
1998);
v. 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:
i. Senior o cials of executive departments who in the judgment of
the department heads are covered by the executive privilege;

ii. Generals and ag o cers of the Armed Forces of the Philippines
and such other o cers who in the judgment of the Chief of Staff
are covered by the executive privilege;
iii. Philippine National Police (PNP) o cers with rank of chief

superintendent or higher and such other o cers who in the
judgment of the Chief of the PNP are covered by the executive
privilege;
iv. Senior national security o cials who in the judgment of the

National Security Adviser are covered by the executive privilege; and
v. Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public O cials Before Congress. —

All public o cials 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
o cials 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 letter 8 informing him "that o cials 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 o cials have not secured the required consent
from the President." On even date which was also the scheduled date of the hearing on
the alleged wiretapping, Gen. Senga sent a letter 9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per instruction of
[President Arroyo], thru the Secretary of National Defense, no o cer 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 o cer 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 o cials
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 o cials: 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. 1 0 NorthRail President
Cortes sent personal regrets likewise citing E.O. 464. 1 1
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and
169667, for certiorari and prohibition, were led before this Court challenging the
constitutionality of E.O. 464.IATHaS
I n 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 le 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 o cials who appear before Congress due to congressional summons.
Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them
from ful lling 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 o ce 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.
I n 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.
I n G.R. No. 169667 , petitioner Alternative Law Groups, Inc. 1 2 (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, 1 3 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, led 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, led 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 letter 1 4 dated February 6, 2006, Senator Biazon reiterated his
invitation to Gen. Senga for him and other military o cers to attend the hearing on the
alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by
letter 1 5 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. 1 6
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 o cials 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, 1 7
and those from the Department of Budget and Management 1 8 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, 1 9 DOJ Secretary Raul M.
Gonzalez 2 0 and Department of Interior and Local Government Undersecretary Marius
P. Corpus 2 1 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 o cial organization of all Philippine lawyers, all
invoking their constitutional right to be informed on matters of public interest, led
their petition for certiorari and prohibition, docketed as G.R. No. 171246 , and pray
that E.O. 464 be declared null and void. STaCcA
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 O cial
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. 2 2
Petitioners in G.R. No. 169660 2 3 and G.R. No. 169777 2 4 led their memoranda
on March 7, 2006, while those in G.R. No. 169667 2 5 and G.R. No. 169834 2 6 led theirs
the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not le any
memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension
to file memorandum 2 7 was granted, subsequently filed a manifestation 2 8 dated March
14, 2006 that it would no longer le its memorandum in the interest of having the
issues resolved soonest, prompting this Court to issue a Resolution reprimanding
them. 2 9
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 21 3 0
Art. VI, Sec. 22 3 1
Art. VI, Sec. 1 3 2
Art. XI, Sec. 1 3 3
Art. III, Sec. 7 3 4
Art. III, Sec. 4 3 5
Art. XIII, Sec. 16 3 6
Art. II, Sec. 28 3 7
Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum 3 8 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. 3 9
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 o cials 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 speci c 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. cECTaD
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." 4 0
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. 4 1
With regard to the petition led 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.
Ongpin 4 2 and Valmonte v. Philippine Charity Sweepstakes O ce , 4 3 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. 4 4
That the Senate of the Philippines has a fundamental right essential not only for
intelligent public decision-making in a democratic system, but more especially for
sound legislation 4 5 is not disputed. E.O. 464, however, allegedly sti es the ability of the
members of Congress to access information that is crucial to law-making. 4 6 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 o ce and are allowed to sue to
question the validity of any o cial action which they claim infringes their prerogatives
as legislators. 4 7
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 su cient 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-de ned political
constituencies to contribute to the formulation and enactment of legislation that will
benefit the nation. 4 8
As Bayan Muna and Representatives Ocampo et al. have the standing to le their
petitions, passing on the standing of their co-petitioners COURAGE and CODAL is
rendered unnecessary. 4 9
In ling 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, 5 0 invoke their constitutional right to
information on matters of public concern, asserting that the right to information,
curtailed and violated by E.O. 464, is essential to the effective exercise of other
constitutional rights 5 1 and to the maintenance of the balance of power among the
three branches of the government through the principle of checks and balances. 5 2
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 , 5 3
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 speci c interest in raising the questions being raised. 5 4 The
rst 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 speci c interests in
the resolution of the controversy, petitioner PDP-Laban is bereft of standing to le 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. 5 5 In ne, PDP-Laban's alleged interest as a political party does not
suffice to clothe it with legal standing.
SIAEHC
Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the
executive o cials 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 o cials. 5 6 These o cials, 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. 5 7 Speci cally with regard to the AFP o cers
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
o cials before Congress, and that such apprehension is not su cient for challenging
the validity of E.O. 464.
The Court nds respondents' assertion that the President has not withheld her
consent or prohibited the appearance of the o cials 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 o cials 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 o cials before
Congress, deprives Congress of the information in the possession of these o cials. 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 , 5 8 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 . 5 9 .
. . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover o cials 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. 6 0 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 o cers 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 o cials who are the most familiar with and informed on executive
operations. EHaASD
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 o cials on the operation of their o ces 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 , 6 1 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 o cials 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 in rmity 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
led 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 gures prominently in the challenged order, it being
mentioned in its provisions, its preambular clauses, 6 2 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. 6 3 Being of American origin, it
is best understood in light of how it has been de ned and used in the legal literature of
the United States.
Schwartz de nes executive privilege as "the power of the Government to
withhold information from the public, the courts, and the Congress ." 6 4 Similarly,
Rozell de nes it as "the right of the President and high-level executive branch o cers to
withhold information from Congress, the courts, and ultimately the public." 6 5
Executive privilege is, nonetheless, not a clear or unitary concept. 6 6 It has
encompassed claims of varying kinds. 6 7 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 o cers charged with the enforcement of that law. Finally, a
generic privilege for internal deliberations has been said to attach to
intragovernmental documents re ecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and
policies are formulated. 6 8
Tribe's comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive o cials have claimed a
variety of privileges to resist disclosure of information the con dentiality of
which they felt was crucial to ful llment 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
quali ed right to withhold information related to pending investigations. . . ." 6 9
(Emphasis and underscoring supplied)
The entry in Black's Law Dictionary on "executive privilege" is similarly instructive

regarding the scope of the doctrine. HITAEC
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 re ecting the frank expression necessary in intra-governmental
advisory and deliberative communications. 7 0 (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. 7 1
The leading case on executive privilege in the United States is U.S. v. Nixon , 7 2
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
con dentiality of his conversations and correspondence. The U.S. Court held that while
there is no explicit reference to a privilege of con dentiality 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. 7 3 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. 7 4 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. 7 5 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. 7 6
In this jurisdiction, the doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez . 7 7 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 con dentiality of his
conversations and correspondences , like the claim of con dentiality 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 . . . " (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. 7 8 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, 7 9 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." 8 0 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 , 8 1 the Court ruled that the right to
information does not extend to matters recognized as "privileged information under the
separation of powers," 8 2 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 o cials are exempt from the duty to disclose
information by the mere fact of being executive o cials. 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 o cials covered by them
to secure the consent of the President prior to appearing before Congress. There are
signi cant differences between the two provisions, however, which constrain this Court
to discuss the validity of these provisions separately.
Section 1 speci cally applies to department heads. It does not, unlike Section 3,
require a prior determination by any o cial 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. TcCEDS
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. . . . 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 clari ed 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 con rm this, Madam
President?
MR. DAVIDE. We con rm that , Madam President, because Section

20 refers only to what was originally the Question Hour, whereas,
Section 21 would refer speci cally 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 . 8 3 (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 O cer, 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.

MR. DAVIDE. Thank you, Mr. Presiding O cer. 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 nd
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. 8 4 (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. TcSaHC
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 re ected 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
de nite 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, 8 5 corresponding to what is known in Britain as the question period.
There was a speci c provision for a question hour in the 1973 Constitution 8 6 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 o ce of all elected o cials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain in
o ce only as long as they enjoy the con dence of the National Assembly. The
moment this con dence is lost the Prime Minister and the Cabinet may be
changed. 8 7
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. 8 8 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 o cials 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. 8 9
(Emphasis and underscoring supplied) aTEAHc
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
speci cally 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. 9 0
In ne, 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
o cials under Section 21 and the lack of it under Section 22 nd 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 o cial 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 scal 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 speci c 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 o cials 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 o cials of executive
departments, all o cers of the AFP and the PNP, and all senior national security
o cials who, in the judgment of the heads of o ces 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 o cers 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 nding 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 speci c 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 informationwhich is, in the judgment of the head of o ce concerned,
privileged as de ned in Section 2(a). The Court shall thus proceed on the assumption
that this is the intention of the challenged order.
TADCSE
Upon a determination by the designated head of o ce or by the President that

an o cial is "covered by the executive privilege," such o cial is subjected to the
requirement that he rst secure the consent of the President prior to appearing before
Congress. This requirement effectively bars the appearance of the o cial 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 o ce, authorized by the President under E.O. 464, or by the President herself, that
such o cial is in possession of information that is covered by executive privilege. This
determination then becomes the basis for the o cial's not showing up in the legislative
investigation.
In view thereof, whenever an o cial 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 o ce 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 o cials 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 O cials Appearing In Legislative Inquiries In Aid Of Legislation
Under The Constitution, And For Other Purposes". Said o cials 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 o cials 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.
Signi cant premises in this letter, however, are left unstated, deliberately or not.
The letter assumes that the invited o cials 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 o ce or the President, that the invited o cial 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 o cials 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 o ces 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 ne, 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
con dential. 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. 9 1 (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 speci c 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
"con dential or classi ed information between the President and the public o cers
covered by this executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not su ce to merely declare that the
President, or an authorized head of o ce, 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 classi ed as privileged. That the
message is couched in terms that, on rst 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. ETAICc
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 o cer. 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. 9 2
(Underscoring supplied)
Absent then a statement of the speci c 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. 9 3 These,
in substance, were the same criteria in assessing the claim of privilege asserted
against the Ombudsman in Almonte v. Vasquez 9 4 and, more in point, against a
committee of the Senate in Senate Select Committee on Presidential Campaign
Activities v. Nixon. 9 5
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of speci city 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. 9 6 (Underscoring supplied)
And so is U.S. v. Article of Drug : 9 7

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 nd these interrogatories objectionable, this
Court would have to assume that the evaluation and classi cation of claimant's
products was a matter of internal policy formulation, an assumption in which this
Court is unwilling to indulge sua sponte. 9 8 (Emphasis and underscoring
supplied)
Mobil Oil Corp. v. Department of Energy 9 9 similarly emphasizes that "an agency
must provide 'precise and certain' reasons for preserving the con dentiality of
requested information."
Black v. Sheraton Corp. of America 1 0 0 amplifies, thus:
A formal and proper claim of executive privilege requires a speci c
designation and description of the documents within its scope as well as precise
and certain reasons for preserving their con dentiality . Without this
speci city, it is impossible for a court to analyze the claim short of disclosure of
the very thing sought to be protected. As the a davit 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 insu cient 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 . 1 0 1 (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: 1 0 2
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. 1 0 3 A useful analogy in determining the requisite
degree of particularity would be the privilege against self-incrimination. Thus, Hoffman
v. U.S. 1 0 4 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 justi ed, 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 ." . . .
(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 insu cient
for Congress to determine whether the withholding of information is justi ed under the
circumstances of each case. It severely frustrates the power of inquiry of Congress.
STECAc
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated .

No in rmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of o ce 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 o ces 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
o ce determines that a certain information is privileged, such determination is
presumed to bear the President's authority and has the effect of prohibiting the o cial
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 con dential nature of which is crucial to the ful llment of the unique
role and responsibilities of the executive branch, 1 0 5 or in those instances where
exemption from disclosure is necessary to the discharge of highly important executive
responsibilities. 1 0 6 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 de nition, 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 nds 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 o cial 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 o cial 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 o cial 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 o cials to
secure the consent of the President under Section 3 of E.O. 464 is to ensure "respect
for the rights of public o cials 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 o cials 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 quali ed sense, that in every exercise of its power of
inquiry, the people are exercising their right to information. cIECTH
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 o cials 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. 1 0 7 (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 o cials 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. 1 0 8 (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 in rm 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) 1 0 9
Resort to any means then by which o cials of the executive branch could refuse to
divulge information cannot be presumed valid. Otherwise, we shall not have merely
nulli ed 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.
EcAHDT
SO ORDERED.
Panganiban, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia and Velasco,
Jr., JJ., concur.
Puno, J., is on leave.
Footnotes
*. Henceforth, in consolidated petitions which assail the validity or constitutionality of an
issuance of a government official or agency, the petitioner which is the most directly
affected by the issuance shall be first in the order of enumeration of the titles of the
petitions irrespective of their docket numbers or dates of filing.
1. HAMILTON, THE FEDERALIST No. 70.
2. Annexes "J-2" to "J-7," rollo (G.R. No. 169777), pp. 72-77.

3. Annex "G," id. at 58.
4. Annex "B," id. at 52.
5. Annex "C," id. at 53.

6. Annex "D," id. at 54-55.
7. Annex "A," id. at 48-51.
8. Annex "F," id. at 57.

9. Annex "H," id. at 59.
10. Rollo (G.R. No. 169777), p. 379.
11. Ibid.
12. The petitioner names the following organizations as members: Albert Schweitzer
Association, Philippines, Inc. (ASAP), Alternative Law Research and Development Center,
Inc. (ALTERLAW), Ateneo Human Rights Center (AHRC), Balay Alternative Legal
Advocates for Development in Mindanaw, Inc (BALAOD Mindanaw), Children's Legal
Bureau (CLB), Inc., Environment Legal Assistance Center (ELAC), Free Rehabilitation,
Economic, Education and Legal Assistance Volunteers Association, Inc. (FREELAVA),
Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN),
Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-
Philippines, Inc. (LRC-LSK/FOEI-Phils.), Paglilingkod Batas Pangkapatiran Foundation
(PBPF), Participatory Research Organization of Communities and Education Towards
Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc., Pilipina Legal Resources
Center (PLRC), Sentro ng Alternatibong Lingap Panligal (SALIGAN), Tanggapang
Panligal ng Katutubong Pilipino (PANLIPI), Tanggol Kalikasan (TK), Women's Legal
Bureau (WLB), and Women's Legal Education, Advocacy and Defense Foundation, Inc.
(WomenLEAD).
13. Rollo (G.R. No. 169667), p. 22.
14. Annex "H," id. at 460-461.
15. Annex "H-1," id. at 462.

16. Rollo (G.R. No. 169777), pp. 383-384.
17. Annex "K," rollo (G.R. No. 169777), p. 466.
18. Annex "J," id. at 465.

19. Annex "M," id. at 468.
20. Annex "N," id. at 469.
21. Annex "O," id. at 470.
22. Court En Banc Resolution dated February 21, 2006, rollo (G.R. No. 169659), pp. 370-
372.
23. Rollo (G.R. No. 169660), pp. 339-370.

24. Rollo (G.R. No. 169777), pp. 373-439.
25. Rollo (G.R. No. 169667), pp. 388-426.
26. Rollo (G.R. No. 169834), pp. 211-240.
27. Rollo (G.R. No. 169659), pp. 419-421.
28. id. at 469-471.
29. Court En Banc Resolution dated March 21, 2006, rollo (G.R. No. 169659), pp. 570-572.
30. Sec. 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.
31. Sec. 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.
32. Sec. 1. The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum.
33. Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.
34. 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 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.
35. Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances.
36. Sec. 16. The right of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making shall not be
abridged. The State shall, by law, facilitate the establishment of adequate consultation
mechanisms.
37. 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.
38. Rollo (G.R. No. 169777), pp. 524-569.
39. Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA
44, 133.
40. Citing Lujan v. Defenders of Wildlife, 504 US 555, 119 L. Ed.2d 351 (1992), rollo (G.R.
No. 169777), p. 116.
41. Citing Lim v. Hon. Exec. Sec., 430 Phil. 555 (2002), rollo (G.R. No. 169777), p. 116.
42. G.R. No. 67752, April 10, 1989, 171 SCRA 657.
43. G.R. No. 78716, September 22, 1987 (res).
44. Rollo (G.R. No. 169777), p. 117.
45. Id. at 279.
46. Ibid.
47. Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-
632.
48. Section 2 of The Party-List System Act (Republic Act 7941) reads:
SEC. 2. Declaration of Policy . — The State shall promote proportional representation in
the election of representatives to the House of Representatives through a party-list
system of registered national, regional and sectoral parties or organizations or
coalitions thereof, which will enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of
the House of Representatives. Towards this end, the State shall develop and guarantee
a full, free and open party system in order to attain the broadest possible representation
of party, sectoral or group interests in the House of Representatives by enhancing their
chances to compete for and win seats in the legislature, and shall provide the simplest
scheme possible.
49. Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744, 761 (1998).
50. IBP Board of Governors Resolution No. XVII-2005-18, rollo (G.R. No 171246), p. 28.
51. Rollo (G.R. No. 169667), p. 3.
52. Rollo (G.R. No. 169660), p. 5.
53. Supra note 39 at 136.
54. Francisco, Jr. v. House of Representatives, supra note 39 at 139.
55. Lozada v. Commission on Elections, 205 Phil. 283, 287 (1983).
56. Rollo (G.R. No. 169659), p. 79.
57. Rollo (G.R. No. 169659), pp. 80-81.
58. 87 Phil. 29 (1950).
59. Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50
A.L.R. 1 (1927).
60. Id. at 46.
61. G.R. 89914, Nov. 20, 1991, 203 SCRA 767.
62. "WHEREAS, pursuant to the rule on executive privilege, the President and those who
assist her must be free to explore the alternatives in the process of shaping policies and
making decisions since this is fundamental to the operation of the government and is
rooted in the separation of powers under the Constitution;
xxx xxx xxx

"WHEREAS, recent events, particularly with respect to the invitation of a member of the
Cabinet by the Senate as well as various heads of offices, civilian and military, have
highlighted the need to ensure the observance of the principle of separation of powers,
adherence to the rule on executive privilege and respect for the rights of persons
appearing in such inquiries in aid of legislation and due regard to constitutional
mandate; . . ."
63. II Record, CONSTITUTIONAL COMMISSION 150-151 (July 23, 1986).
64. B. SCHWARTZ, EXECUTIVE PRIVILEGE AND CONGRESSIONAL INVESTIGATORY
POWER 47 Cal. L. Rev. 3.
65. M. ROZELL, Executive Privilege and the Modern Presidents: In Nixon's Shadow (83
Minn. L. Rev. 1069).
66. P. SHANE & H. BRUFF, SEPARATION OF POWERS: LAW CASES AND MATERIALS 292
(1996).
67. Id. at 293.
68. I L.TRIBE, AMERICAN CONSTITUTIONAL LAW 770-1 (3rd ed., 2000).
69. 121 F.3d 729, 326 U.S. App. D.C. 276.
70. BLACK'S LAW DICTIONARY 569-570 (6th ed., 1991) citing 5 U.S.C.A. Sec. 552(b)(1);
Black v. Sheraton Corp. of America, D.C.D.C., 371 F.Supp. 97, 100.
71. I L.TRIBE, supra note 68 at 771.
72. 418 U.S. 683 (1974).
73. In re Sealed Case 121 F.3d 729, 326 U.S.App.D.C. 276 (1997) states: "It appears that the
courts have been drawn into executive-congressional privilege disputes over access to
information on only three recent occasions. These were: United States v. AT&T, 551 F.2d
384 (D.C. Cir.1976), appeal after remand, 567 F.2d 121 (D.C.Cir. 1977); Senate Select
Committee on Presidential Campaign Activities v. Nixon (Senate Committee), 498 F.2d
725 (D.C. Cir. 1974); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C.
1983)"; Vide R. IRAOLA, Congressional Oversight, Executive Privilege, and Requests for
Information Relating to Federal Criminal Investigations and Prosecutions (87 Iowa L.
Rev. 1559): "The Supreme Court has yet to rule on a dispute over information requested
by Congress where executive privilege has been asserted; in the past twenty-five years,
there have been only three reported cases dealing with this issue."
74. J. CHAPER & R. FALLON, JR., CONSTITUTIONAL LAW: CASES COMMENTS
QUESTIONS 197 (9th ed., 2001).
75. Senate Select Committee on Presidential Campaign Activities v. Nixon 498 F.2d 725,
162 U.S.App.D.C.183 (May 23, 1974).
76. N. REDLICH & B. SCHWARTZ, CONSTITUTIONAL LAW 333 (3rd ed., 1996) states in
Note 24: "Now that the Supreme Court decision has specifically recognized a "privilege
of confidentiality of Presidential communications," the Select Committee decision
appears even stronger. If the need of the Watergate Committee for evidence was not
enough before the Supreme Court recognized executive privilege, the same would surely
have been true after the recognition. And, if the demand of the Watergate Committee,
engaged in a specific investigation of such importance, was not enough to outweigh the
nondisclosure claim, it is hard to see what Congressional demand will fare better when
met by an assertion of privilege."
77. 314 Phil. 150 (1995).
78. Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166 (1995) states: "To put this case in
perspective it should be stated at the outset that it does not concern a demand by a
citizen for information under the freedom of information guarantee of the Constitution."
79. 360 Phil. 133 (1998).
80. Chavez v. PCGG, 360 Phil. 133, 160 (1998).

81. 433 Phil. 506 (2002).
82. Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).
83. II RECORD, CONSTITUTIONAL COMMISSION 199 (July 24, 1986).
84. II RECORD, CONSTITUTIONAL COMMISSION 900-1 (October 12, 1986).
85. H. MENDOZA & A. LIM, THE NEW CONSTITUTION 177 (1974).
86. CONSTITUTION (1973), Art. VIII, Sec. 12(1).
87. R. MARTIN, THE NEW CONSTITUTION OF THE PHILIPPINES 394 (1973).

88. II RECORD, CONSTITUTIONAL COMMISSION 133 (July 23, 1986).
89. SCHWARTZ, supra at 11-12.
90. Supra.
91. Supra note 82 at 189.
92. 345 U.S. 1, 73 S. Ct. 528, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953).
93. Vide TRIBE, supra note 68.

94. Supra note 78.
95. Supra note 75.
96. 403 F.Supp. 1000, 20 Fed.R.Serv.2d 1382 (1975).
97. 43 F.R.D. 181 (1967).

98. Ibid., citation omitted.
99. 520 F.Supp.414, 32 Fed.R.Serv.2d 913 (1981).
100. 371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974).

101. Ibid., citations omitted.
102. 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960).
103. U.S. v. Reynolds, supra note 85.

104. 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
105. In re Sealed Case, supra note 69.
106. BLACK'S LAW DICTIONARY, supra note 70 at 569.
107. G.R. No. 74930, February 13, 1989, 170 SCRA 256.
108. G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453.
109. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN
CONSTITUTIONAL CONTROLS (1981) 13.

Petitioners Vs Vs Respondents: en Banc

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EN BANC

[G.R. No. 169777 * . April 20, 2006.]

SENATE OF THE PHILIPPINES, represented by FRANKLIN M.

[G.R. No. 169659. April 20, 2006.]

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep.

[G.R. No. 169660. April 20, 2006.]

FRANCISCO I. CHAVEZ , petitioner, vs . EDUARDO R. ERMITA, in his

[G.R. No. 169667. April 20, 2006.]

ALTERNATIVE LAW GROUPS, INC. (ALG) , petitioner, vs . HON.

[G.R. No. 169834. April 20, 2006.]

PDP-LABAN , petitioner, vs . EXECUTIVE SECRETARY EDUARDO R.

CD Technologies Asia, Inc. 2019 cdasiaonline.com

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.

A transparent government is one of the hallmarks of a truly republican state.

i. Conversations and correspondence between the President and the

iii. Information between inter-government agencies prior to the

v. Matters affecting national security and public order (Chavez v.

CD Technologies Asia, Inc. 2019 cdasiaonline.com

iii. Philippine National Police (PNP) o cers with rank of chief

iv. Senior national security o cials who in the judgment of the

SECTION 3. Appearance of Other Public O cials Before Congress. —

I n G.R. No. 169659 , petitioners party-list Bayan Muna, House of

As for Bayan Muna's alleged interest as a party-list representing the marginalized

Actual Case or Controversy

As discussed in Arnault, the power of inquiry, "with process to enforce it," is

The entry in Black's Law Dictionary on "executive privilege" is similarly instructive

This privilege, based on the constitutional doctrine of separation of

That a type of information is recognized as privileged does not, however,

Almonte involved a subpoena duces tecum issued by the Ombudsman against

Determining the validity of Section 1 thus requires an examination of the meaning

MR. DAVIDE. We con rm that , Madam President, because Section

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.

THE PRESIDING OFFICER. What does the committee say?

MR. MAAMBONG. Actually, we considered that previously when we

MR. DAVIDE. Yes. 8 4 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners

Upon a determination by the designated head of o ce or by the President that

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the

A claim of privilege, being a claim of exemption from an obligation to disclose

Absent then a statement of the speci c basis of a claim of executive privilege,

And so is U.S. v. Article of Drug : 9 7

Due respect for a co-equal branch of government, moreover, demands no less

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated .

To the extent that investigations in aid of legislation are generally conducted in

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

2. Annexes "J-2" to "J-7," rollo (G.R. No. 169777), pp. 72-77.

5. Annex "C," id. at 53.

8. Annex "F," id. at 57.

15. Annex "H-1," id. at 462.

18. Annex "J," id. at 465.

23. Rollo (G.R. No. 169660), pp. 339-370.

xxx xxx xxx

80. Chavez v. PCGG, 360 Phil. 133, 160 (1998).

87. R. MARTIN, THE NEW CONSTITUTION OF THE PHILIPPINES 394 (1973).

93. Vide TRIBE, supra note 68.

97. 43 F.R.D. 181 (1967).

100. 371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974).

103. U.S. v. Reynolds, supra note 85.