Senate vs.

Ermita , GR 169777, April 20, 2006

Senate vs. Ermita , GR 169777, April 20, 2006
FACTS:
This is a petition or !ertiorari an" prohi#ition proer that the $resi"ent has a#%se" po&er #' iss%in( E.). *6*
+Ens%rin( )#servan!e o the $rin!iples o Separation o $o&ers, A"heren!e to the R%le on E,e!%tive $rivile(e
an" Respe!t or the Ri(hts o $%#li! )i!ials Appearin( in -e(islative .n/%iries in Ai" o -e(islation 0n"er the
Constit%tion, an" or )ther $%rposes1. $etitioners pra' or its "e!laration as n%ll an" voi" or #ein(
%n!onstit%tional.
.n the e,er!ise o its le(islative po&er, the Senate o the $hilippines, thro%(h its vario%s Senate Committees,
!on"%!ts in/%iries or investi(ations in ai" o le(islation &hi!h !all or, inter alia, the atten"an!e o oi!ials an"
emplo'ees o the e,e!%tive "epartment, #%rea%s, an" oi!es in!l%"in( those emplo'e" in Government )&ne"
an" Controlle" Corporations, the Arme" For!es o the $hilippines 2AF$3, an" the $hilippine 4ational $oli!e
2$4$3.
The Committee o the Senate iss%e" invitations to vario%s oi!ials o the E,e!%tive 5epartment or them to
appear as reso%r!e spea6ers in a p%#li! hearin( on the rail&a' pro7e!t, others on the iss%es o massive ele!tion
ra%" in the $hilippine ele!tions, &ire tappin(, an" the role o militar' in the so8!alle" +Gloria(ate S!an"al1.
Sai" oi!ials &ere not a#le to atten" "%e to la!6 o !onsent rom the $resi"ent as provi"e" #' E.). *6*, Se!tion
9 &hi!h re/%ires all the p%#li! oi!ials en%merate" in Se!tion 22#3 to se!%re the !onsent o the $resi"ent prior
to appearin( #eore either ho%se o Con(ress.
.SS0E:
.s Se!tion 9 o E.). *6*, &hi!h re/%ires all the p%#li! oi!ials, en%merate" in Se!tion 22#3 to se!%re the
!onsent o the $resi"ent prior to appearin( #eore either ho%se o Con(ress, vali" an" !onstit%tional:
R0-.4G:
4o. The en%meration in Se!tion 2 2#3 o E.). *6* is #roa" an" is !overe" #' the e,e!%tive privile(e. The
"o!trine o e,e!%tive privile(e is premise" on the a!t that !ertain inormation m%st, as a matter o ne!essit',
#e 6ept !oni"ential in p%rs%it o the p%#li! interest. The privile(e #ein(, #' "einition, an e,emption rom the
o#li(ation to "is!lose inormation, in this !ase to Con(ress, the ne!essit' m%st #e o s%!h hi(h "e(ree as to
o%t&ei(h the p%#li! interest in enor!in( that o#li(ation in a parti!%lar !ase.
Con(ress %n"o%#te"l' has a ri(ht to inormation rom the e,e!%tive #ran!h &henever it is so%(ht in ai" o
le(islation. . the e,e!%tive #ran!h &ithhol"s s%!h inormation on the (ro%n" that it is privile(e", it m%st so
assert it an" state the reason thereor an" &h' it m%st #e respe!te".
The inirm provisions o E.). *6*, ho&ever, allo& the e,e!%tive #ran!h to eva"e !on(ressional re/%ests or
inormation &itho%t nee" o !learl' assertin( a ri(ht to "o so an";or proerin( its reasons thereor. <' the
mere e,pe"ient o invo6in( sai" provisions, the po&er o Con(ress to !on"%!t in/%iries in ai" o le(islation is
r%strate".
495 SCRA 170 Political Law Constitutional Law Legislative Branch Question our Constitutionalit! o" #$%$ 4&4
In 2005, scandals involving anomalous transactions about the North Rail Project as well as the Garci tapes surfaced !his
prompted the "enate to conduct a public hearing to investigate the said anomalies particularl# the alleged overpricing in the
NRP !he investigating "enate committee issued invitations to certain department heads and militar# officials to spea$ before
the committee as resource persons %rmita submitted that he and some of the department heads cannot attend the said hearing
due to pressing matters that need immediate attention &'P (hief of "taff "enga li$ewise sent a similar letter )rilon, the senate
president, e*cepted the said re+uests for the# were sent belatedl# and arrangements were alread# made and scheduled
"ubse+uentl#, G,& issued %- ./. which too$ effect immediatel#
%- ./. basicall# prohibited )epartment heads, "enior officials of e*ecutive departments who in the judgment of the
department heads are covered b# the e*ecutive privilege0 Generals and flag officers of the &rmed 'orces of the Philippines and
such other officers who in the judgment of the (hief of "taff are covered b# the e*ecutive privilege0 Philippine National Police
1PNP2 officers with ran$ of chief superintendent or higher and such other officers who in the judgment of the (hief of the PNP
are covered b# the e*ecutive privilege0 "enior national securit# officials who in the judgment of the National "ecurit# &dviser
are covered b# the e*ecutive privilege0 and "uch other officers as ma# be determined b# the President, from appearing in such
hearings conducted b# (ongress without first securing the president3s approval
!he department heads and the militar# officers who were invited b# the "enate committee then invo$ed %- ./. to e*cept
themselves )espite %- ./., the scheduled hearing proceeded with onl# 2 militar# personnel attending 'or def#ing President
&rro#o3s order barring militar# personnel from testif#ing before legislative in+uiries without her approval, 4rig Gen Gudani
and (ol 4alutan were relieved from their militar# posts and were made to face court martial proceedings %- ./.3s
constitutionalit# was assailed for it is alleged that it infringes on the rights and duties of (ongress to conduct investigation in aid
of legislation and conduct oversight functions in the implementation of laws
ISSUE: 5hether or not %- ./. is constitutional
HELD: !he "( ruled that %- ./. is constitutional in part !o determine the validit# of the provisions of %- ./., the "( sought
to distinguish "ection 26 from "ection 22 of &rt / of the 6789 (onstitution !he (ongress3 power of in+uir# is e*pressl#
recogni:ed in "ection 26 of &rticle ;I of the (onstitution &lthough there is no provision in the (onstitution e*pressl# investing
either <ouse of (ongress with power to ma$e investigations and e*act testimon# to the end that it ma# e*ercise its legislative
functions advisedl# and effectivel#, such power is so far incidental to the legislative function as to be implied In other words,
the power of in+uir# = with process to enforce it = is an essential and appropriate au*iliar# to the legislative function &
legislative bod# cannot legislate wisel# or effectivel# in the absence of information respecting the conditions which the
legislation is intended to affect or change0 and where the legislative bod# does not itself possess the re+uisite information =
which is not infre+uentl# true = recourse must be had to others who do possess it
"ection 22 on the other hand provides for the >uestion <our !he >uestion <our is closel# related with the legislative power,
and it is precisel# as a complement to or a supplement of the ?egislative In+uir# !he appearance of the members of (abinet
would be ver#, ver# essential not onl# in the application of chec$ and balance but also, in effect, in aid of legislation "ection 22
refers onl# to >uestion <our, whereas, "ection 26 would refer specificall# to in+uiries in aid of legislation, under which
an#bod# for that matter, ma# be summoned and if he refuses, he can be held in contempt of the <ouse & distinction was thus
made between in+uiries in aid of legislation and the +uestion hour 5hile attendance was meant to be discretionar# in the
+uestion hour, it was compulsor# in in+uiries in aid of legislation "ections 26 and 22, therefore, while closel# related and
complementar# to each other, should not be considered as pertaining to the same power of (ongress -ne specificall# relates to
the power to conduct in+uiries in aid of legislation, the aim of which is to elicit information that ma# be used for legislation,
while the other pertains to the power to conduct a +uestion hour, the objective of which is to obtain information in pursuit of
(ongress3 oversight function @ltimatel#, the power of (ongress to compel the appearance of e*ecutive officials under "ection
26 and the lac$ of it under "ection 22 find their basis in the principle of separation of powers
5hile the e*ecutive branch is a coAe+ual branch of the legislature, it cannot frustrate the power of (ongress to legislate b#
refusing to compl# with its demands for information 5hen (ongress e*ercises its power of in+uir#, the onl# wa# for
department heads to e*empt themselves therefrom is b# a valid claim of privilege !he# are not e*empt b# the mere fact that
the# are department heads -nl# one e*ecutive official ma# be e*empted from this power B the President on whom e*ecutive
power is vested, hence, be#ond the reach of (ongress e*cept through the power of impeachment It is based on her being the
highest official of the e*ecutive branch, and the due respect accorded to a coAe+ual branch of government which is sanctioned
b# a longAstanding custom !he re+uirement then to secure presidential consent under "ection 6, limited as it is onl# to
appearances in the +uestion hour, is valid on its face 'or under "ection 22, &rticle ;I of the (onstitution, the appearance of
department heads in the +uestion hour is discretionar# on their part "ection 6 cannot, however, be applied to appearances of
department heads in in+uiries in aid of legislation (ongress is not bound in such instances to respect the refusal of the
department head to appear in such in+uir#, unless a valid claim of privilege is subse+uentl# made, either b# the President herself
or b# the %*ecutive "ecretar#
5hen (ongress merel# see$s 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 (hief %*ecutive, such department heads must
give a report of their performance as a matter of dut# In such instances, "ection 22, in $eeping with the separation of powers,
states that (ongress ma# onl# re'uest their appearance Nonetheless, when the in+uir# in which (ongress re+uires their
appearance is Cin aid of legislation3 under "ection 26, the appearance is (an)ator! for the same reasons stated in Arnault
NOTES: The SC ruled that Section 1 and Section 2a are valid. The rest invalid.
-n ,arch /, 2008, President &rro#o issued ,emorandum (ircular No 656, revo$ing %*ecutive -rder No ./. and
,emorandum (ircular No 608 "he advised e*ecutive officials and emplo#ees to follow and abide b# the (onstitution, e*isting
laws and jurisprudence, including, among others, the case of Senate v$ #r(ita when the# are invited to legislative in+uiries in
ai) o" legislation
Republic of the Philippines
SUPE!E COUT
,anila
%N 4&N(
".. No. 1#$$%% &ul' (1) 2$$*
+,N-LIN !. DILON as President and in re.resentation o/ the LI0E,L P,T1 O+ THE PHILIPPINES 2LP3 vs
HON. &OSE DE 4ENECI, &. in his o//icial ca.acit' as S.ea5er o/ the House o/ e.resentatives
In &ugust 2009, the "enate and the <ouse of Representatives elected their respective contingents to the (ommission on
&ppointments 1(&2
!he contingent in the "enate to the (& was composed of the following senators with their respective political partiesD
"en ,aria &na (onsuelo &" ,adrigal P)PA?aban
"en Eo$er &rro#o F&,PI
"en &lan Peter (a#etano ?a$asA(,)
"en Panfilo ?acson @N-
"en Einggo# %jercito %strada P,P
"en Euan Ponce %nrile P,P
"en ?oren ?egarda NP(
"en Richard Gordon ?a$asA(,)
"en ,ar Ro*as ?P
"en ?ito ?apid ?a$asA(,)
"en ,iriam )efensorA"antiago PRP
!he members of the contingent of the <ouse of Representatives in the (& and their respective political parties were as followsD
Rep Prospero ( Nograles ?a$asA(,)
Rep %duardo ( Gialcita ?a$asA(,)
Rep &bdullah ) )imaporo ?a$asA(,)
Rep Eose (arlos ; ?acson ?a$asA(,)
Rep %ileen R %rmitaA4uhain ?a$asA(,)
Rep Eose ; Hap ?a$asA(,)
Rep Rodolfo ! &lbano III F&,PI
Rep %duardo R Gullas F&,PI
Rep Rodolfo I-mpongI G Pla:a NP(
Rep (onrado , %strella NP(
Rep %mm#lou E !aliJoA,endo:a NP
Rep %mmanuel Eoel E ;illanueva (I4&( Part# ?ist
In the second wee$ of &ugust 2009, petitioners in the first petition, GR No 680055, went to respondent then "pea$er Eose de
;enecia to as$ for one seat for the ?iberal Part# in the (& "pea$er Eose de ;enecia merel# said that he would stud# their
demand
6
)uring the session of the <ouse of Representatives on "eptember K, 2009, petitioner in the first petition, Representative !aJada,
re+uested from the <ouse of Representatives leadership
2
one seat in the (& for the ?iberal Part#
K
!o his re+uest, Representative
Neptali Gon:ales II
.
begged the indulgence of the ?iberal Part# Ito allow the ?egal )epartment to ma$e a stud# on the matterI
5

In a separate move, Representative !aJada, b# letter of "eptember 60, 2009, re+uested the "ecretar# General of the <ouse of
Representatives the reconstitution of the <ouse contingent in the (& to include one seat for the ?iberal Part# in compliance
with the provision of "ection 68, &rticle ;I of the (onstitution
/
Representative !aJada also brought the matter to the attention
of then "pea$er )e ;enecia, reiterating the position that since there were at least 20 members of the ?iberal Part# in the 6.th
(ongress, the part# should be represented in the (&
9

&s of -ctober 65, 2009, however, no report or recommendation was proffered b# the ?egal )epartment, drawing
Representative !aJada to re+uest a report or recommendation on the matter within three da#s
8
In repl#, &tt# Grace &ndres of the ?egal &ffairs 4ureau of the <ouse of Representatives informed Representative !aJada that
the department was constrained to withhold the release of its legal opinion because the handling law#er was directed to secure
documents necessar# to establish some of the members3 part# affiliations
7
<ence spawned the filing on -ctober K6, 2009 of the first petition b# petitioner former "enator 'ran$lin , )rilon 1in
representation of the ?iberal Part#2, et al, for prohibition, mandamus, and +uo warranto with pra#er for the issuance of writ of
preliminar# injunction and temporar# restraining order, against then "pea$er )e ;enecia, Representative &rthur )efensor, "r in
his capacit# as ,ajorit# 'loor ?eader of the <ouse of Representatives, "enator ,anuel 4 ;illar in his capacit# as e* officio
chairman of the (&, &tt# ,a Gemma ) &spiras in her capacit# as "ecretar# of the (&, and the individual members of the
<ouse of Representatives contingent to the (&
60
!he petition in GR No 680055 raises the following issuesD
a 5<%!<%R !<% ?I4%R&? P&R!H 5I!< &! ?%&"! !5%N!H 1202 ,%,4%R" 5<- "IGN%) <%R%IN &"
P%!I!I-N%R", I" (-N"!I!@!I-N&??H %N!I!?%) !- -N% 162 "%&! IN !<% (-,,I""I-N -N &PP-IN!,%N!"
b 5<%!<%R !<% <-@"% -' R%PR%"%N!&!I;%"3 R%"P-N)%N!" <&;% (-,,I!!%) GR&;% &4@"% -'
)I"(R%!I-N &,-@N!ING !- ?&(F -R %L(%"" -' E@RI")I(!I-N IN (-N"!I!@!ING !<% (-,,I""I-N -N
&PP-IN!,%N!" IN (-N!R&;%N!I-N -' !<% R%>@IR%) PR-P-R!I-N&? (-N"!I!@!I-N 4H )%PRI;ING !<%
?I4%R&? P&R!H -' I!" (-N"!I!@!I-N&? %N!I!?%,%N! !- -N% 162 "%&! !<%R%IN
c 5<%!<%R &" & R%"@?! -' !<% GR&;% &4@"% -' )I"(R%!I-N (-,,I!!%) 4H !<% <-@"% -'
R%PR%"%N!&!I;%" R%"P-N)%N!", !<% 5RI!" PR&H%) '-R IN !<I" P%!I!I-N 4% I""@%) N@??I'HING !<%
(@RR%N! (-,P-"I!I-N -' !<% (-,,I""I-N -N &PP-IN!,%N!", R%"!R&INING !<% (@RR%N! <-@"% -'
R%PR%"%N!&!I;% ,%,4%R" 'R-, "I!!ING &N) P&R!I(IP&!ING IN !<% PR-(%%)ING" -' !<%
(-,,I""I-N -N &PP-IN!,%N!", -@"!ING !<% &''%(!%) R%"P-N)%N!" 5<- @"@RP%), IN!R@)%) IN!-
&N) @N?&5'@??H <%?) P-"I!I-N" IN !<% (-,,I""I-N -N &PP-IN!,%N!" &N) R%>@IRING !<%
R%"P-N)%N!" !- R%(-N"!I!@!% &N)M-R R%%?%(! !<% ,%,4%R" -' "&I) (-,,I""I-N
66
1Italics in the
original2
&nd it pra#s that this (ourtD
a Immediatel# upon the filing of the instant Petition, issue a !emporar# Restraining -rder andMor a 5rit of Preliminar#
Prohibitor# and ,andator# Injunction, enjoining all Respondents and all persons under their direction, authorit#,
supervision, and control from further proceeding with their actions relating to the illegal and unconstitutional
constitution of the (ommission on &ppointments and to the unlawful e*ercise of its members3 functions, contrar# to the
rule on proportional representation of political parties with respect to the <ouse of Representatives contingent in the
said (ommission0
b &fter careful consideration of the merits of the case, render judgment ma$ing the injunction permanent and ordering
Respondents and all persons under their direction, authorit#, supervision, and control0
c )eclare Respondents3 action in not allotting one 162 seat to Petitioners null and void for being a direct violation of
"ection 68, &rticle ;I of the (onstitution0
d )eclare the proceedings of the (ommission on &ppointments null and void, insofar as the# violate the rule on
proportional representation of political parties in said (ommission0
e -ust the affected respondents, whoever the# are, who usurped, intruded into and have unlawfull# held positions in
the (ommission on &ppointments and
f Re+uire Respondents to alter, reorgani:e, reconstitute and reconfigure the composition of the (ommission on
&ppointments in accordance with proportional representation based on the actual numbers of members belonging to
dul# accredited and registered political parties who were elected into office during the last ,a# 6., 2009 %lections b#,
at the ver# least, respecting and allowing (ongressman &lfonso ; @mali, Er as the dul# nominated (ommission on
&ppointments member of the ?iberal Part# of the Philippines to sit therein as such
Respondents "enator ;illar and (& "ecretar# &spiras filed their (omment
6K
on )ecember /, 2009, moving for the dismissal of
the petition on these groundsD
I. THE PO6E TO ELECT !E!0ES TO THE CO!!ISSION ON ,PPOINT!ENTS 0ELON"S TO E,CH
HOUSE O+ CON"ESS PUSU,NT TO THE CONSTITUTION. ,S SUCH) THE PETITION IS NOT DIECTED
,T THE HEEIN ESPONDENTS.
II. THE CONSTITUTION DOES NOT E7UIE TH,T THE CO!!ISSION !UST H,4E CO!PLETE
!E!0ESHIP IN ODE TH,T IT C,N +UNCTION. 6H,T THE CONSTITUTION E7UIES IS TH,T
THEE !UST ,T LE,ST 0E , !,&OIT1 O+ ,LL THE !E!0ES O+ THE CO!!ISSION +O IT TO
4,LIDL1 CONDUCT ITS POCEEDIN"S ,ND T,NS,CT ITS 0USINESS.
6.
1%mphasis in the original2
!hen "pea$er )e ;enecia and Representative )efensor filed their (omment and -pposition
65
on 'ebruar# 68, 2008, moving too
for the dismissal of the petition on these groundsD
I. THE ,CTS CO!PL,INED O+ DO NOT CONSTITUTE ",4E ,0USE O+ DISCETION TH,T 6ILL &USTI+1
THE ",NT O+ THE E8T,ODIN,1 6IT O+ !,ND,!US.
6/
II. THE LI0E,L P,T1 DOES NOT POSSESS THE E7UISITE NU!0E O+ !E!0ES TH,T 6OULD
ENTITLE THE P,T1 TO , SE,T IN THE CO!!ISSION ON ,PPOINT!ENTS. IT IS) THEE+OE) NOT THE
POPE P,T1 TO INSTITUTE THE INST,NT PETITION +O 7UO 6,,NTO.
69
III. THE PETITIONES +,ILED TO E8H,UST THE E!EDIES ,4,IL,0LE TO THE!.
68
I4. THE CON+LICTIN" CL,I!S O+ THE P,TIES ,S TO THE ,++ILI,TION O+ THE !E!0ES NEED TO
0E SETTLED IN , TI,L.
67
1%mphasis in the original2
,eantime, "enator ,a &na (onsuelo &" ,adrigal of P)PA?aban, b# separate letters of &pril 69, 2008 to "enator ;illar and
"pea$er Prospero Nograles, claimed that the composition of the "enate contingent in the (& violated the constitutional
re+uirement of proportional representation for the following reasonsD
6 P,P has two representatives in the (& although it onl# has two members in the "enate and thus NisO entitled onl# to
one 162 seat
2 F&,PI has onl# one 162 member in the "enate and thus is not entitled to a (& seat and #et it is represented in the
(&
K PRP has onl# one 162 member in the "enate and thus is not entitled to a (& seat and #et it is represented in the (&
. If "enators Richard Gordon and Pilar Euliana (a#etano are Independents, then "en Gordon cannot be a member of
the (& as Independents cannot be represented in the (& even though there will be three Independents in the (&
5 If "en &lan Peter (a#etano is now NP, he still can sit in the (& representing NP
20
"he also claimed that the composition of the <ouse of Representatives contingent in the (& violated the constitutional
re+uirement of proportional representation for the following reasonsD
6 ?a$asA(,) currentl# has five 152 members in the (ommission on &ppointments although it is entitled onl# to four
1.2 representatives and thus NisO in e*cess of a member0
2 F&,PI currentl# has three 1K2 members in the (ommission on &ppointments although it is entitled onl# to two 122
representatives and thus is e*cess of a member0
K ?iberal Part# is not represented in the (ommission on &ppointments although it is entitled to one 162 nominee0 and
. Part#A?ist (I4&( has a representative in the (ommission on &ppointments although it onl# has two members in the
<ouse of Representatives and therefore NisO not entitled to an# seat
26
"enator ,adrigal thus re+uested the reorgani:ation of the membership of the (& and that, in the meantime, Iall actions of NtheO
(& be held in abe#ance as the same ma# be construed as illegal and unconstitutionalI
22
4# letter of ,a# 6K, 2008, "enator ,adrigal again wrote "enator ;illar as followsD
!oda#, I was advised that the (ommittee on 4udget and ,anagement of "enator ,ar Ro*as has endorsed the ad interim
appointment of Rolando G &nda#a as "ecretar# of the )epartment of 4udget and ,anagement for approval b# the (& in the
plenar# I believe it is imperative that the serious constitutional +uestions that I have raised be settled before the plenar# acts on
this endorsement b# the (ommittee on 4udget and ,anagement -therwise, li$e )amocles3 sword, a specter of doubt continues
to be raised on the validit# of actions ta$en b# the (& and its committees
2K
"till later or on ,a# 67, 2008, "enator ,adrigal sent another letter to "enator ;illar declaring that she Icannot in good
conscience continue to participate in the proceedings of the (&, until such time as NsheO getNsO a response to NherO letters and
until the constitutional issue of the (&3s composition is resolved b# the leadership of the (ommission,I
2.
and that without an#
such resolution, she would be forced to invo$e "ection 20 of the (& rules against ever# official whose confirmation would be
submitted to the bod# for deliberation
25
!he (& (ommittee on Rules and Resolutions, b# letterAcomment of ,a# 2/, 2008, opined that the (& has neither the power
nor the discretion to reject a member who is elected b# either <ouse, and that an# complaints about the election of a member or
members should be addressed to the bod# that elected them
2/
4# letter of ,a# 28, 2008, "enator ;illar advised "enator ,adrigal as followsD
Noting #our position that #ou will not continue to participate in the proceedings of the (& P Iuntil the constitutional issue of
the (&3s composition is resolved b# the leadership of the (ommissionI * * *, the "ecretar# of the (ommission, upon m#
instructions, transmitted the same to the (& (ommittee on Rules and Resolutions It was m# intention to have the (ommittee
stud# and deliberate on the matter and to recommend what stepMs to ta$e on #our re+uest that Iall actions of the (ommission be
held in abe#anceI * * *
In view however, of #our manifestation during the ,a# 2/, 2008 meeting of the (& (ommittee on Rules and Resolutions, and
of the written co99ent o/ Sen. ,rro'o that IIf there is a complaint in the election of a member or members, it shall be
addressed to the bod# that elected them, namel# the "enate andMor the <ouse,I I have given instructions to transmit the original
copies of #our letters to the "enate "ecretar# for their immediate inclusion in the -rder of 4usiness of the "ession of the "enate
so that #our concerns ma# be addressed b# the "enate in caucus andMor in plenar#
29
1%mphasis and underscoring supplied2
@ndaunted, "enator ,adrigal, b# letter of Eune 2, 2008 addressed to "enator ;illar, reiterated her re+uest that all actions of the
(& be held in abe#ance pending the reorgani:ation of both the "enate and <ouse of Representatives contingents
28
"enator ,adrigal thereafter filed on Eune 6K, 2008 the second petition, GR No 68K055, for prohibition and mandamus with
pra#er for issuance of temporar# restraining orderMwrit of preliminar# injunction against "enator ;illar in his capacit# as "enate
President and %*A-fficio (hairman of the (&, "pea$er Nograles, and the (&,
27
alleging that respondents committed grave
abuse of discretion amounting to lac$ or e*cess of jurisdiction
,. . . . IN +,ILIN" TO CO!PL1 6ITH THE CONSTITUTION,LL1 E7UIED POPOTION,L P,T1
EPESENT,TION O+ THE !E!0ES O+ THE CO!!ISSION ON ,PPOINT!ENTS:
0. . . . IN CONTINUOUSL1 CONDUCTIN" HE,IN"S ,ND POCEEDIN"S ON THE ,PPOINT!ENTS
DESPITE THE CO!!ISSION ON ,PPOINT!ENTS; UNCONSTITUTION,L CO!POSITION 6HICH !UST 0E
POHI0ITED 01 THIS HONO,0LE COUT: and
C. . . . IN +,ILIN") DESPITE EPE,TED DE!,NDS +O! PETITIONE) TO E<O",NI=E THE
CO!!ISSION ON ,PPOINT!ENTS IN ,CCOD,NCE 6ITH THE !,ND,TED POPOTION,L P,T1
EPESENT,TION O+ THE 1*#> CONSTITUTION) 6HICH E7UIE!ENT !UST 0E EN+OCED 01 THIS
HONO,0LE COUT.
K0
1%mphasis in the original2
"he thus pra#ed for the
6 issuNance ofO a temporar# restraining orderMa writ of preliminar# injunction to enjoin Respondents from
proceeding with their illegal and unlawful actions as officials and members of the (ommission on &ppointments which
composition is unconstitutional, pending resolution of the instant Petition0
2 )eclarNation thatO the composition of the (ommission on &ppointments NisO null and void insofar as it violates the
proportional part# representation re+uirement mandated b# &rticle ;I, "ection 68 of the 6789 Philippine (onstitution0
K IssuNance ofO a 5rit of Prohibition against respondents "enate President ,anuel ;illar, "pea$er Prospero Nograles
and "ecretar# Gemma &spiras to desist from further proceeding with their illegal and unlawful actions as officers of the
(ommission on &ppointments, the composition of which is null and void for being violative of the proportional part#
representation re+uirement under &rticle ;I, "ection 68 of the 6789 Philippine (onstitution0 and
. IssuNance ofO a 5rit of ,andamus commanding respondents "enate President ,anuel ;illar, "pea$er Prospero
Nograles and "ecretar# Gemma &spiras to reorgani:e and reconstitute the (ommission on &ppointments in accordance
with the 6789 (onstitution
K6
!he (ourt consolidated GR No 680055
K2
and GR No 68K055 on Eul# 6, 2008
Petitioners in the first petition, GR No 680055, later filed on &ugust 65, 2008 a ,otion with ?eave of (ourt to 5ithdraw the
Petition,
KK
alleging that with the designation of Representative &lfonso ; @mali, Er of the ?iberal Part# as a member of the
<ouse of Representatives contingent in the (& in replacement of Representative %duardo , Gullas of F&,PI, their petition
had become moot and academic
In his (omment of &ugust 67, 2008 on the second petition, respondent "enator ;illar proffered the following argumentsD
I.
Petitioner has no standin? to /ile @theA .etition.
II.
Petitioner /ailed to oBserve the doctrine o/ .ri9ar' Curisdiction or .rior resort. Each House o/ Con?ress has the sole
/unction o/ reconstitutin? or chan?in? the co9.osition o/ its oDn contin?ent to the C,.
III.
Petitioner is esto..ed.
I4.
Presu9.tion o/ re?ularit' in the conduct o/ o//icial /unctions.
4.
The eEtraordinar' re9edies o/ ProhiBition and !anda9us and the relie/ o/ a TO are not availaBle to the Petitioner.
K.
1%mphasis in the original0 underscoring supplied2
In his (omment and -pposition
K5
filed on "eptember K, 2008, "pea$er Nograles proffered the following argumentsD
,. 6ITH ESPECT TO THE HOUSE O+ EPESENT,TI4ES) THE PETITIONS H,4E ,LE,D1 0ECO!E
!OOT ,ND ,C,DE!IC UPON THE ELECTION O+ EPESENT,TI4E ,L+ONSO 4. U!,LI) &.) !E!0E
O+ THE LI0E,L P,T1) TO THE HOUSE CONTIN"ENT TO THE CO!!ISSION ON ,PPOINT!ENTS.
K/
0. THE ,CTS CO!PL,INED O+ DO NOT CONSTITUTE ",4E ,0USE O+ DISCETION TH,T 6ILL
&USTI+1 THE ,SSU!PTION O+ &UISDICTION 01 THE
HONO,0LE COUT ,ND THE ",NT O+ THE E8T,ODIN,1 6ITS O+ !,ND,!US ,ND
POHI0ITION.
K9
C. THE E!ED1 O+ THOSE 6HO SEE- TO ECONSTITUTE THE HOUSE CONTIN"ENT TO THE
CO!!ISSION ON ,PPOINT!ENTS ESTS) IN THE +IST INST,NCE) 6ITH THE HOUSE O+
EPESENT,TI4ES.
K8
D. CONSIDEIN" THE ,+OE!ENTIONED +,CTS ,ND &UISPUDENCE) IT IS SU0!ITTED TH,T
SEN,TO !,DI",L H,S NO ST,NDIN" TO PUSUE THE INST,NT C,SE
E. THE PETITION IS NOT ,CCO!P,NIED 01 , 4EI+IC,TION ,ND CETI+IC,TION O+ NON<+OU!
SHOPPIN" ,S E7UIED 01 ULE F% SECTIONS 2 ,ND ( ,ND SUPE!E COUT ,D!INIST,TI4E
CICUL, NO. 2#<*1. 1%mphasis and underscoring in the original2
!he first petition, GR No 680055, has thus indeed been rendered moot with the designation of a ?iberal Part# member of the
<ouse contingent to the (&, hence, as pra#ed for, the petition is withdrawn
&s for the second petition, GR No 68K055, it fails
"enator ,adrigal failed to show that she sustained direct injur# as a result of the act complained of
K7
<er petition does not in
fact allege that she or her political part# P)PA?aban was deprived of a seat in the (&, or that she or P)PA?aban possesses
personal and substantial interest to confer on herMit locus standi
"enator ,adrigal3s primar# recourse rests with the respective <ouses of (ongress and not with this (ourt !he doctrine of
.ri9ar' Curisdiction dictates that prior recourse to the <ouse is necessar# before she ma# bring her petition to court
.0
"enator
;illar3s invocation of said doctrine is thus wellAta$en, as is the following observation of "pea$er Nograles, citing "en Pimentel,
Er v <ouse of Representatives %lectoral !ribunalD
.6

In order that the remedies of Prohibition and ,andamus ma# be availed of, there must be Ino appeal, nor an# plain, speed# and
ade+uate remed# in the ordinar# course of lawIlavv*h+1
It is worth recalling that, in the 66th (ongress, "enator &+uilino Pimentel advocated the allocation of a position in the
(ommission on &ppointments for the Part#A?ist Representatives Eust li$e the Petitioner in the instant case, "enator Pimentel
first wrote to the "enate President, re+uesting that the (ommission on &ppointments be restructured to conform to the
constitutional provision on proportional representation *** 5ithout awaiting final determination of the +uestion ***, Pimentel
filed a Petition for Prohibition and ,andamus with the "upreme (ourt In the said case, the <onorable (ourt ruledD
I!he (onstitution e*pressl# grants to the <ouse of Representatives the prerogative, within constitutionall# defined limits, to
choose from among its district and part#Alist representatives those who ma# occup# the seats allotted to the <ouse in the <R%!
and the (& "ection 68, &rticle ;I of the (onstitution e*plicitl# confers on the "enate and on the <ouse the authorit# to elect
among their members those who would fill the 62 seats for "enators and 62 seats for <ouse members in the (ommission on
&ppointments @nder "ection 69, &rticle ;I of the (onstitution, each chamber e*ercises the power to choose, within
constitutionall# defined limits, who among their members would occup# the allotted / seats of each chamber3s respective
electoral tribunal
!hus, even assu9in? that .art'<list re.resentatives co9.rise a su//icient nu9Ber and have a?reed to desi?nate co99on
no9inees to the HET and the C,) their .ri9ar' recourse clearl' rests Dith the House o/ e.resentatives and not this
Court. @nder "ections 69 and 68, &rticle ;I of the (onstitution, part#Alist representatives must first show to the <ouse that
the# possess the re+uired strength to be entitled to seats in the <R%! and the (& -nl# if the <ouse fails to compl# with the
directive of the (onstitution on proportional representation of political parties in the <R%! and the (& can the part#Alist
representatives see$ recourse to this (ourt under its power of judicial review Under the doctrine o/ .ri9ar' Curisdiction)
.rior recourse to the House is necessar' Be/ore .etitioners 9a' Brin? the instant case to the court. ConseGuentl')
.etitioner;s direct recourse to this Court is .re9ature.
'ollowing the ruling in Pimentel, it cannot be said that recourse was alread# had in the <ouse of Representatives 'urnishing a
cop# of Petitioner3s letter to the "enate President and to the "pea$er of the <ouse of Representatives does not constitute the
primar# recourse re+uired prior to the invocation of the jurisdiction of the "upreme (ourt 'urther, it is the ,embers of the
<ouse who claim to have been deprived of a seat in the (ommission on &ppointments that must first show to the <ouse that
the# possess the re+uired numerical strength to be entitled to seats in the (ommission on &ppointments Eust li$e "enator
Pimentel, demanding seats in the (ommission on &ppointments for (ongressmen, who have not even raised the issue of its
present composition in the <ouse, is not "enator ,adrigal3s affair
.2
1Italics, underscoring, and emphasis supplied b#
Representative Nograles2
It bears noting that "enator ;illar had alread# transmitted original copies of "enator ,adrigal3s letters to the "enate "ecretar#
for inclusion in the -rder of 4usiness of the "ession of the "enate to address her concerns "enator ,adrigal3s filing of the
second petition is thus premature
"enator ,adrigal3s suggestion = that "enators Pilar Euliana (a#etano and Richard Gordon be considered independent senators
such that the latter should not be allowed to be a member of the (&,
.K
and that "enator &lan Peter (a#etano be considered a
member of the NP such that he ma# sit in the (& as his inclusion in NP will entitle his part# to one seat = involves a
determination of part# affiliations, a +uestion of fact which the (ourt does not resolve
6HEE+OE) the ,otion with ?eave of (ourt to 5ithdraw the Petition in GR No 680055 is ",NTED. !he Petition is
6ITHD,6N. !he Petition in GR No 68K055 is DIS!ISSED.
Republic of the Philippines
SUPE!E COUT
,anila
%N 4&N(
".. No. 1F*>>>
H
,.ril 2$) 2$$F
SEN,TE O+ THE PHILIPPINES) re.resented B' +,N-LIN !. DILON) in his ca.acit' as Senate President vs
EDU,DO . E!IT,) in his ca.acit' as EEecutive Secretar' and alter<e?o o/ President "loria !aca.a?al<,rro'o
& transparent government is one of the hallmar$s of a trul# republican state %ven in the earl# histor# of republican thought,
however, it has been recogni:ed that the head of government ma# $eep certain information confidential in pursuit of the public
interest %*plaining the reason for vesting e*ecutive power in onl# one magistrate, a distinguished delegate to the @"
(onstitutional (onvention saidD I)ecision, activit#, secrec#, and dispatch will generall# characteri:e the proceedings of one
man, in a much more eminent degree than the proceedings of an# greater number0 and in proportion as the number is increased,
these +ualities will be diminishedI
6
<istor# has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessit#
to guard it :ealousl#
!he present consolidated petitions for certiorari and prohibition proffer that the President has abused such power b# issuing
%*ecutive -rder No ./. 1%- ./.2 last "eptember 28, 2005 !he# thus pra# for its declaration as null and void for being
unconstitutional
In resolving the controvers#, this (ourt shall proceed with the recognition that the issuance under review has come from a coA
e+ual branch of government, which thus entitles it to a strong presumption of constitutionalit# -nce the challenged order is
found to be indeed violative of the (onstitution, it is dut#Abound to declare it so 'or the (onstitution, being the highest
e*pression of the sovereign will of the 'ilipino people, must prevail over an# issuance of the government that contravenes its
mandates
In the e*ercise of its legislative power, the "enate of the Philippines, through its various "enate (ommittees, conducts in+uiries
or investigations in aid of legislation which call for, inter alia, the attendance of officials and emplo#ees of the e*ecutive
department, bureaus, and offices including those emplo#ed in Government -wned and (ontrolled (orporations, the &rmed
'orces of the Philippines 1&'P2, and the Philippine National Police 1PNP2
-n "eptember 26 to 2K, 2005, the (ommittee of the "enate as a whole issued invitations to various officials of the %*ecutive
)epartment for them to appear on "eptember 27, 2005 as resource spea$ers in a public hearing on the railwa# project of the
North ?u:on Railwa#s (orporation with the (hina National ,achiner# and %+uipment Group 1hereinafter North Rail Project2
!he public hearing was spar$ed b# a privilege speech of "enator Euan Ponce %nrile urging the "enate to investigate the alleged
overpricing and other unlawful provisions of the contract covering the North Rail Project
!he "enate (ommittee on National )efense and "ecurit# li$ewise issued invitations
2
dated "eptember 22, 2005 to the following
officials of the &'PD the (ommanding General of the Philippine &rm#, ?t Gen <ermogenes ( %speron0 Inspector General of
the &'P ;ice &dmiral ,ateo , ,a#uga0 )eput# (hief of "taff for Intelligence of the &'P Rear &dmiral !irso R )anga0 (hief
of the Intelligence "ervice of the &'P 4rig Gen ,arlu > >uevedo0 &ssistant "uperintendent of the Philippine ,ilitar#
&cadem# 1P,&2 4rig Gen 'rancisco ; Gudani0 and &ssistant (ommandant, (orps of (adets of the P,&, (ol &le*ander '
4alutan, for them to attend as resource persons in a public hearing scheduled on "eptember 28, 2005 on the followingD 162
Privilege "peech of "enator &+uilino > Pimentel Er, delivered on Eune /, 2005 entitled I4un#e has Provided "mo$ing Gun or
has -pened a (an of 5orms that "how ,assive %lectoral 'raud in the Presidential %lection of ,a# 2005I0 122 Privilege "peech
of "enator Einggo# % %strada delivered on Eul# 2/, 2005 entitled I!he Philippines as the 5ireA!apping (apital of the 5orldI0
1K2 Privilege "peech of "enator Rodolfo 4ia:on delivered on &ugust 6, 2005 entitled I(lear and Present )angerI0 1.2 "enate
Resolution No 285 filed b# "enator ,aria &na (onsuelo ,adrigal = Resolution )irecting the (ommittee on National )efense
and "ecurit# to (onduct an In+uir#, in &id of ?egislation, and in the National Interest, on the Role of the ,ilitar# in the "oA
called IGloriagate "candalI0 and 152 "enate Resolution No 275 filed b# "enator 4ia:on = Resolution )irecting the (ommittee
on National )efense and "ecurit# to (onduct an In+uir#, in &id of ?egislation, on the 5ireA!apping of the President of the
Philippines
&lso invited to the aboveAsaid hearing scheduled on "eptember 28 2005 was the &'P (hief of "taff, General Generoso " "enga
who, b# letter
K
dated "eptember 29, 2005, re+uested for its postponement Idue to a pressing operational situation that demands
Nhis utmost personal attentionI while Isome of the invited &'P officers are currentl# attending to other urgent operational
mattersI
-n "eptember 28, 2005, "enate President 'ran$lin , )rilon received from %*ecutive "ecretar# %duardo R %rmita a letter
.
dated "eptember 29, 2005 Irespectfull# re+uestNingO for the postponement of the hearing Nregarding the NorthRail projectO to
which various officials of the %*ecutive )epartment have been invitedI in order to Iafford said officials ample time and
opportunit# to stud# and prepare for the various issues so that the# ma# better enlighten the "enate (ommittee on its
investigationI
"enate President )rilon, however, wrote
5
%*ecutive "ecretar# %rmita that the "enators Iare unable to accede to Nhis re+uestOI as
it Iwas sent belatedl#I and INaOll preparations and arrangements as well as notices to all resource persons were completed Nthe
previousO wee$I
"enate President )rilon li$ewise received on "eptember 28, 2005 a letter
/
from the President of the North ?u:on Railwa#s
(orporation Eose ? (ortes, Er re+uesting that the hearing on the NorthRail project be postponed or cancelled until a cop# of the
report of the @P ?aw (enter on the contract agreements relative to the project had been secured
-n "eptember 28, 2005, the President issued %- ./., I%nsuring -bservance of the Principle of "eparation of Powers,
&dherence to the Rule on %*ecutive Privilege and Respect for the Rights of Public -fficials &ppearing in ?egislative In+uiries
in &id of ?egislation @nder the (onstitution, and 'or -ther Purposes,I
9
which, pursuant to "ection / thereof, too$ effect
immediatel# !he salient provisions of the -rder are as followsD
"%(!I-N 6 &ppearance b# <eads of )epartments 4efore (ongress = In accordance with &rticle ;I, "ection 22 of the
(onstitution and to implement the (onstitutional provisions on the separation of powers between coAe+ual branches of the
government, all heads of departments of the %*ecutive 4ranch of the government shall secure the consent of the President prior
to appearing before either <ouse of (ongress
5hen the securit# of the "tate or the public interest so re+uires and the President so states in writing, the appearance shall onl#
be conducted in e*ecutive session
"%(!I-N 2 Nature, "cope and (overage of %*ecutive Privilege =
1a2 Nature and "cope A !he rule of confidentialit# based on e*ecutive privilege is fundamental to the operation of government
and rooted in the separation of powers under the (onstitution 1&lmonte vs ;as+ue:, GR No 75K/9, 2K ,a# 67752 'urther,
Republic &ct No /96K or the (ode of (onduct and %thical "tandards for Public -fficials and %mplo#ees provides that Public
-fficials and %mplo#ees shall not use or divulge confidential or classified information officiall# $nown to them b# reason of
their office and not made available to the public to prejudice the public interest
%*ecutive privilege covers all confidential or classified information between the President and the public officers covered b#
this e*ecutive order, includingD
(onversations and correspondence between the President and the public official covered b# this e*ecutive order 1&lmonte vs
;as+ue: GR No 75K/9, 2K ,a# 67750 (have: v Public %states &uthorit#, GR No 6KK250, 7 Eul# 200220
,ilitar#, diplomatic and other national securit# matters which in the interest of national securit# should not be divulged
1&lmonte vs ;as+ue:, GR No 75K/9, 2K ,a# 67750 (have: v Presidential (ommission on Good Government, GR No
6K096/, 7 )ecember 67782
Information between interAgovernment agencies prior to the conclusion of treaties and e*ecutive agreements 1(have: v
Presidential (ommission on Good Government, GR No 6K096/, 7 )ecember 677820
)iscussion in closeAdoor (abinet meetings 1(have: v Presidential (ommission on Good Government, GR No 6K096/, 7
)ecember 677820
,atters affecting national securit# and public order 1(have: v Public %states &uthorit#, GR No 6KK250, 7 Eul# 20022
1b2 5ho are covered = !he following are covered b# this e*ecutive orderD
"enior officials of e*ecutive departments who in the judgment of the department heads are covered b# the e*ecutive privilege0
Generals and flag officers of the &rmed 'orces of the Philippines and such other officers who in the judgment of the (hief of
"taff are covered b# the e*ecutive privilege0
Philippine National Police 1PNP2 officers with ran$ of chief superintendent or higher and such other officers who in the
judgment of the (hief of the PNP are covered b# the e*ecutive privilege0
"enior national securit# officials who in the judgment of the National "ecurit# &dviser are covered b# the e*ecutive privilege0
and
"uch other officers as ma# be determined b# the President
"%(!I-N K &ppearance of -ther Public -fficials 4efore (ongress = &ll public officials enumerated in "ection 2 1b2 hereof
shall secure prior consent of the President prior to appearing before either <ouse of (ongress to ensure the observance of the
principle of separation of powers, adherence to the rule on e*ecutive privilege and respect for the rights of public officials
appearing in in+uiries in aid of legislation 1%mphasis and underscoring supplied2
&lso on "eptember 28, 2005, "enate President )rilon received from %*ecutive "ecretar# %rmita a cop# of %- ./., and
another letter
8
informing him Ithat officials of the %*ecutive )epartment invited to appear at the meeting Nregarding the
NorthRail projectO will not be able to attend the same without the consent of the President, pursuant to N%- ./.OI and that
Isaid officials have not secured the re+uired consent from the PresidentI -n even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen "enga sent a letter
7
to "enator 4ia:on, (hairperson of the (ommittee on National
)efense and "ecurit#, informing him Ithat per instruction of NPresident &rro#oO, thru the "ecretar# of National )efense, no
officer of the N&'PO is authori:ed to appear before an# "enate or (ongressional hearings without see$ing a written approval
from the PresidentI and Ithat no approval has been granted b# the President to an# &'P officer to appear before the public
hearing of the "enate (ommittee on National )efense and "ecurit# scheduled NonO 28 "eptember 2005I
)espite the communications received from %*ecutive "ecretar# %rmita and Gen "enga, the investigation scheduled b# the
(ommittee on National )efense and "ecurit# pushed through, with onl# (ol 4alutan and 4rig Gen Gudani among all the &'P
officials invited attending
'or def#ing President &rro#o3s order barring militar# personnel from testif#ing before legislative in+uiries without her
approval, 4rig Gen Gudani and (ol 4alutan were relieved from their militar# posts and were made to face court martial
proceedings
&s to the NorthRail project hearing scheduled on "eptember 27, 2005, %*ecutive "ecretar# %rmita, citing %- ./., sent letter
of regrets, in response to the invitations sent to the following government officialsD ?ight Railwa# !ransit &uthorit#
&dministrator ,el+uiades Robles, ,etro Rail !ransit &uthorit# &dministrator Roberto ?astimoso, )epartment of Eustice 1)-E2
(hief "tate (ounsel Ricardo ; Pere:, then Presidential ?egal (ounsel ,erceditas Gutierre:, )epartment of !ransportation and
(ommunication 1)-!(2 @ndersecretar# Guiling ,amonding, )-!( "ecretar# ?eandro ,endo:a, Philippine National
Railwa#s General ,anager Eose "erase II, ,onetar# 4oard ,ember Euanita &matong, 4ases (onversion )evelopment
&uthorit# (hairperson Gen Narciso &ba#a and "ecretar# Romulo ? Neri
60
NorthRail President (ortes sent personal regrets
li$ewise citing %- ./.
66
-n -ctober K, 2005, three petitions, doc$eted as GR Nos 6/7/57, 6/7//0, and 6/7//9, for certiorari and prohibition, were
filed before this (ourt challenging the constitutionalit# of %- ./.
In GR No 6/7/57, petitioners part#Alist 4a#an ,una, <ouse of Representatives ,embers "atur -campo, (rispin 4eltran,
Rafael ,ariano, ?i:a ,a:a, Eoel ;irador and !eodoro (asino, (ourage, an organi:ation of government emplo#ees, and
(ounsels for the )efense of ?iberties 1(-)&?2, a group of law#ers dedicated to the promotion of justice, democrac# and
peace, all claiming to have standing to file the suit because of the transcendental importance of the issues the# posed, pra#, in
their petition that %- ./. be declared null and void for being unconstitutional0 that respondent %*ecutive "ecretar# %rmita, in
his capacit# as %*ecutive "ecretar# and alterAego of President &rro#o, be prohibited from imposing, and threatening to impose
sanctions on officials who appear before (ongress due to congressional summons &dditionall#, petitioners claim that %- ./.
infringes on their rights and impedes them from fulfilling their respective obligations !hus, 4a#an ,una alleges that %- ./.
infringes on its right as a political part# entitled to participate in governance0 "atur -campo, et al allege that %- ./. infringes
on their rights and duties as members of (ongress to conduct investigation in aid of legislation and conduct oversight functions
in the implementation of laws0 (ourage alleges that the tenure of its members in public office is predicated on, and threatened
b#, their submission to the re+uirements of %- ./. should the# be summoned b# (ongress0 and (-)&? alleges that its
members have a sworn dut# to uphold the rule of law, and their rights to information and to transparent governance are
threatened b# the imposition of %- ./.
In GR No 6/7//0, petitioner 'rancisco I (have:, claiming that his constitutional rights as a citi:en, ta*pa#er and law
practitioner, are affected b# the enforcement of %- ./., pra#s in his petition that %- ./. be declared null and void for being
unconstitutional
In GR No 6/7//9, petitioner &lternative ?aw Groups, Inc
62
1&?G2, alleging that as a coalition of 69 legal resource nonA
governmental organi:ations engaged in developmental law#ering and wor$ with the poor and marginali:ed sectors in different
parts of the countr#, and as an organi:ation of citi:ens 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 b# %- ./.,
6K
pra#s, that said order be declared null and void for being unconstitutional and that respondent
%*ecutive "ecretar# %rmita be ordered to cease from implementing it
-n -ctober 66, 2005, Petitioner "enate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the
validit# of %- ./. for it stands to suffer imminent and material injur#, as it has alread# sustained the same with its continued
enforcement since it directl# interferes with and impedes the valid e*ercise of the "enate3s powers and functions and conceals
information of great public interest and concern, filed its petition for certiorari and prohibition, doc$eted as GR No 6/7999
and pra#s that %- ./. be declared unconstitutional
-n -ctober 6., 2005, P)PA?aban, a registered political part# with members dul# elected into the Philippine "enate and <ouse
of Representatives, filed a similar petition for certiorari and prohibition, doc$eted as GR No 6/78K., alleging that it is
affected b# the challenged %- ./. because it hampers its legislative agenda to be implemented through its members in
(ongress, particularl# in the conduct of in+uiries in aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the e*ecutive and legislative branches of the government
,eanwhile, b# letter
6.
dated 'ebruar# /, 200/, "enator 4ia:on reiterated his invitation to Gen "enga for him and other militar#
officers to attend the hearing on the alleged wiretapping scheduled on 'ebruar# 60, 2005 Gen "enga replied, however, b#
letter
65
dated 'ebruar# 8, 200/, that INpOursuant to %*ecutive -rder No ./., thNeO <ead+uarters re+uested for a clearance from
the President to allow NthemO to appear before the public hearingI and that Ithe# will attend once NtheirO re+uest is approved b#
the PresidentI &s none of those invited appeared, the hearing on 'ebruar# 60, 200/ was cancelled
6/
In another investigation conducted jointl# b# the "enate (ommittee on &griculture and 'ood and the 4lue Ribbon (ommittee
on the alleged mismanagement and use of the fertili:er fund under the Ginintuang ,asaganang &ni program of the )epartment
of &griculture 1)&2, several (abinet officials were invited to the hearings scheduled on -ctober 5 and 2/, November 2. and
)ecember 62, 2005 but most of them failed to attend, )& @ndersecretar# 4elinda Gon:ales, )& &ssistant "ecretar# 'eli* Eose
,ontes, 'ertili:er and Pesticide &uthorit# %*ecutive )irector Norlito R Gicana,
69
and those from the )epartment of 4udget and
,anagement
68
having invo$ed %- ./.
In the budget hearings set b# the "enate on 'ebruar# 8 and 6K, 200/, Press "ecretar# and Presidential "po$esperson Ignacio R
4un#e,
67
)-E "ecretar# Raul , Gon:ale:
20
and )epartment of Interior and ?ocal Government @ndersecretar# ,arius P
(orpus
26
communicated their inabilit# to attend due to lac$ of appropriate clearance from the President pursuant to %- ./.
)uring the 'ebruar# 6K, 2005 budget hearing, however, "ecretar# 4un#e was allowed to attend b# %*ecutive "ecretar# %rmita
-n 'ebruar# 6K, 200/, Eose &nselmo I (adi: and the incumbent members of the 4oard of Governors of the Integrated 4ar of
the Philippines, as ta*pa#ers, and the Integrated 4ar of the Philippines as the official organi:ation of all Philippine law#ers, all
invo$ing their constitutional right to be informed on matters of public interest, filed their petition for certiorari and prohibition,
doc$eted as GR No 6962./, and pra# that %- ./. be declared null and void
&ll the petitions pra# for the issuance of a !emporar# Restraining -rder enjoining respondents from implementing, enforcing,
and observing %- ./.
In the oral arguments on the petitions conducted on 'ebruar# 26, 200/, the following substantive issues were ventilatedD 162
whether respondents committed grave abuse of discretion in implementing %- ./. prior to its publication in the -fficial
Ga:ette or in a newspaper of general circulation0 and 122 whether %- ./. violates the following provisions of the (onstitutionD
&rt II, "ec 28, &rt III, "ec ., &rt III, "ec 9, &rt I; "ec 6, &rt ;I, "ec 26, &rt ;I, "ec 22, &rt LI, "ec 6, and &rt LIII,
"ec 6/ !he procedural issue of whether there is an actual case or controvers# that calls for judicial review was not ta$en up0
instead, the parties were instructed to discuss it in their respective memoranda
&fter the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, pa#ing particular
attention to the following propositionsD 162 that %- ./. is, on its face, unconstitutional0 and 122 assuming that it is not, it is
unconstitutional as applied in four instances, namel#D 1a2 the so called 'ertili:er scam0 1b2 the NorthRail investigation 1c2 the
5iretapping activit# of the I"&'P0 and 1d2 the investigation on the ;enable contract
22
Petitioners in GR No 6/7//0
2K
and GR No 6/7999
2.
filed their memoranda on ,arch 9, 200/, while those in GR No
6/7//9
25
and GR No 6/78K.
2/
filed theirs the ne*t da# or on ,arch 8, 200/ Petitioners in GR No 6962./ did not file an#
memorandum
Petitioners 4a#an ,una et al in GR No 6/7/57, after their motion for e*tension to file memorandum
29
was granted,
subse+uentl# filed a manifestation
28
dated ,arch 6., 200/ that it would no longer file its memorandum in the interest of having
the issues resolved soonest, prompting this (ourt to issue a Resolution reprimanding them
27

Petitioners submit that %- ./. violates the following constitutional provisionsD
&rt ;I, "ec 26
K0
&rt ;I, "ec 22
K6
&rt ;I, "ec 6
K2
&rt LI, "ec 6
KK
&rt III, "ec 9
K.
&rt III, "ec .
K5
&rt LIII, "ec 6/
K/
&rt II, "ec 28
K9
Respondents %*ecutive "ecretar# %rmita et al, on the other hand, pra# in their consolidated memorandum on ,arch 6K, 200/
for the dismissal of the petitions for lac$ of merit
!he (ourt s#nthesi:es the issues to be resolved as followsD
6 5hether %- ./. contravenes the power of in+uir# vested in (ongress0
2 5hether %- ./. violates the right of the people to information on matters of public concern0 and
K 5hether respondents have committed grave abuse of discretion when the# implemented %- ./. prior to its
publication in a newspaper of general circulation
%ssential re+uisites for judicial review
4efore proceeding to resolve the issue of the constitutionalit# of %- ./., ascertainment of whether the re+uisites for a valid
e*ercise of the (ourt3s power of judicial review are present is in order
?i$e almost all powers conferred b# the (onstitution, the power of judicial review is subject to limitations, to witD 162 there must
be an actual case or controvers# calling for the e*ercise of judicial power0 122 the person challenging the act must have standing
to challenge the validit# of the subject act or issuance0 otherwise stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injur# as a result of its enforcement0 1K2 the +uestion of constitutionalit#
must be raised at the earliest opportunit#0 and 1.2 the issue of constitutionalit# must be the ver# lis mota of the case
K7
%*cept with respect to the re+uisites of standing and e*istence of an actual case or controvers# where the disagreement between
the parties lies, discussion of the rest of the re+uisites shall be omitted
"tanding
Respondents, through the "olicitor General, assert that the allegations in GR Nos 6/7/57, 6/7//0 and 6/7//9 ma$e it clear
that the#, adverting to the nonAappearance of several officials of the e*ecutive department in the investigations called b# the
different committees of the "enate, were brought to vindicate the constitutional dut# of the "enate or its different committees to
conduct in+uir# in aid of legislation or in the e*ercise of its oversight functions !he# maintain that Representatives -campo et
al have not shown an# specific prerogative, power, and privilege of the <ouse of Representatives which had been effectivel#
impaired b# %- ./., there being no mention of an# investigation called b# the <ouse of Representatives or an# of its
committees which was aborted due to the implementation of %- ./.
&s for 4a#an ,una3s alleged interest as a part#Alist representing the marginali:ed and underrepresented, and that of the other
petitioner groups and individuals who profess to have standing as advocates and defenders of the (onstitution, respondents
contend that such interest falls short of that re+uired to confer standing on them as parties IinjuredAinAfactI
.0

Respecting petitioner (have:, respondents contend that (have: ma# not claim an interest as a ta*pa#er for the implementation
of %- ./. does not involve the e*ercise of ta*ing or spending power
.6

5ith regard to the petition filed b# the "enate, respondents argue that in the absence of a personal or direct injur# b# reason of
the issuance of %- ./., the "enate and its individual members are not the proper parties to assail the constitutionalit# of %-
./.
Invo$ing this (ourt3s ruling in National %conomic Protectionism &ssociation v -ngpin
.2
and ;almonte v Philippine (harit#
"weepsta$es -ffice,
.K
respondents assert that to be considered a proper part#, one must have a personal and substantial interest
in the case, such that he has sustained or will sustain direct injur# due to the enforcement of %- ./.
..

!hat the "enate of the Philippines has a fundamental right essential not onl# for intelligent public decisionAma$ing in a
democratic s#stem, but more especiall# for sound legislation
.5
is not disputed %- ./., however, allegedl# stifles the abilit# of
the members of (ongress to access information that is crucial to lawAma$ing
./
;eril#, the "enate, including its individual
members, has a substantial and direct interest over the outcome of the controvers# and is the proper part# to assail the
constitutionalit# of %- ./. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges
vested b# the (onstitution in their office and are allowed to sue to +uestion the validit# of an# official action which the# claim
infringes their prerogatives as legislators
.9
In the same vein, part#Alist representatives "atur -campo 14a#an ,una2, !eodoro (asino 14a#an ,una2, Eoel ;irador 14a#an
,una2, (rispin 4eltran 1&na$pawis2, Rafael ,ariano 1&na$pawis2, and ?i:a ,a:a 1Gabriela2 are allowed to sue to +uestion the
constitutionalit# of %- ./., the absence of an# claim that an investigation called b# the <ouse of Representatives or an# of its
committees was aborted due to the implementation of %- ./. notwithstanding, it being sufficient that a claim is made that
%- ./. infringes on their constitutional rights and duties as members of (ongress to conduct investigation in aid of legislation
and conduct oversight functions in the implementation of laws
!he national political part#, 4a#an ,una, li$ewise meets the standing re+uirement as it obtained three seats in the <ouse of
Representatives in the 200. elections and is, therefore, entitled to participate in the legislative process consonant with the
declared polic# underl#ing the part# list s#stem of affording citi:ens belonging to marginali:ed and underrepresented sectors,
organi:ations and parties who lac$ wellAdefined political constituencies to contribute to the formulation and enactment of
legislation that will benefit the nation
.8

&s 4a#an ,una and Representatives -campo et al have the standing to file their petitions, passing on the standing of their coA
petitioners (ourage and (odal is rendered unnecessar#
.7
In filing their respective petitions, (have:, the &?G which claims to be an organi:ation of citi:ens, and the incumbent members
of the I4P 4oard of Governors and the I4P in behalf of its law#er members,
50
invo$e their constitutional right to information on
matters of public concern, asserting that the right to information, curtailed and violated b# %- ./., is essential to the effective
e*ercise of other constitutional rights
56
and to the maintenance of the balance of power among the three branches of the
government through the principle of chec$s and balances
52

It is wellAsettled that when suing as a citi:en, the interest of the petitioner in assailing the constitutionalit# of laws, presidential
decrees, orders, and other regulations, must be direct and personal In 'ranciso v <ouse of Representatives,
5K
this (ourt held
that when the proceeding involves the assertion of a public right, the mere fact that he is a citi:en satisfies the re+uirement of
personal interest
&s for petitioner P)PA?aban, it asseverates that it is clothed with legal standing in view of the transcendental issues raised in its
petition which this (ourt needs to resolve in order to avert a constitutional crisis 'or it to be accorded standing on the ground of
transcendental importance, however, it must establish 162 the character of the funds 1that it is public2 or other assets involved in
the case, 122 the presence of a clear case of disregard of a constitutional or statutor# prohibition b# the public respondent agenc#
or instrumentalit# of the government, and 1K2 the lac$ of an# part# with a more direct and specific interest in raising the
+uestions being raised
5.
!he first and last determinants not being present as no public funds or assets are involved and
petitioners in GR Nos 6/7999 and 6/7/57 have direct and specific interests in the resolution of the controvers#, petitioner
P)PA?aban is bereft of standing to file its petition Its allegation that %- ./. hampers its legislative agenda is vague and
uncertain, and at best is onl# a Igenerali:ed interestI which it shares with the rest of the political parties (oncrete injur#,
whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionall#
capable of judicial resolution
55
In fine, P)PA?aban3s alleged interest as a political part# does not suffice to clothe it with legal
standing
Actual Case or Controvers!
Petitioners assert that an actual case e*ists, the# citing the absence of the e*ecutive officials invited b# the "enate to its hearings
after the issuance of %- ./., particularl# those on the NorthRail project and the wiretapping controvers#
Respondents counter that there is no case or controvers#, there being no showing that President &rro#o has actuall# withheld her
consent or prohibited the appearance of the invited officials
5/
!hese officials, the# claim, merel# communicated to the "enate
that the# have not #et secured the consent of the President, not that the President prohibited their attendance
59
"pecificall# with
regard to the &'P officers who did not attend the hearing on "eptember 28, 2005, respondents claim that the instruction not to
attend without the President3s consent was based on its role as (ommanderAinA(hief of the &rmed 'orces, not on %- ./.
Respondents thus conclude that the petitions merel# rest on an unfounded apprehension that the President will abuse its power
of preventing the appearance of officials before (ongress, and that such apprehension is not sufficient for challenging the
validit# of %- ./.
!he (ourt finds respondents3 assertion that the President has not withheld her consent or prohibited the appearance of the
officials concerned immaterial in determining the e*istence of an actual case or controvers# insofar as %- ./. is concerned
'or %- ./. does not re+uire either a deliberate withholding of consent or an e*press prohibition issuing from the President in
order to bar officials from appearing before (ongress
&s the implementation of the challenged order has alread# resulted in the absence of officials invited to the hearings of
petitioner "enate of the Philippines, it would ma$e no sense to wait for an# further event before considering the present case
ripe for adjudication Indeed, it would be sheer abandonment of dut# if this (ourt would now refrain from passing on the
constitutionalit# of %- ./.
Constitutionalit! o" #$%$ 4&4
%- ./., to the e*tent that it bars the appearance of e*ecutive officials before (ongress, deprives (ongress of the information
in the possession of these officials !o resolve the +uestion of whether such withholding of information violates the
(onstitution, consideration of the general power of (ongress to obtain information, otherwise $nown as the power of in+uir#, is
in order
!he power of in+uir#
!he (ongress power of in+uir# is e*pressl# recogni:ed in "ection 26 of &rticle ;I of the (onstitution which readsD
"%(!I-N 26 !he "enate or the <ouse of Representatives or an# of its respective committees ma# conduct in+uiries in aid of
legislation in accordance with its dul# published rules of procedure !he rights of persons appearing in or affected b# such
in+uiries shall be respected 1@nderscoring supplied2
!his provision is worded e*actl# as "ection 8 of &rticle ;III of the 679K (onstitution e*cept that, in the latter, it vests the power
of in+uir# in the unicameral legislature established therein = the 4atasang Pambansa = and its committees
!he 67K5 (onstitution did not contain a similar provision Nonetheless, in &rnault v Na:areno,
58
a case decided in 6750 under
that (onstitution, the (ourt alread# recogni:ed that the power of in+uir# is inherent in the power to legislate
&rnault involved a "enate investigation of the reportedl# anomalous purchase of the 4uenavista and !ambobong %states b# the
Rural Progress &dministration &rnault, who was considered a leading witness in the controvers#, was called to testif# thereon
b# the "enate -n account of his refusal to answer the +uestions of the senators on an important point, he was, b# resolution of
the "enate, detained for contempt @pholding the "enate3s power to punish &rnault for contempt, this (ourt heldD
&lthough there is no provision in the (onstitution e*pressl# investing either <ouse of (ongress with power to ma$e
investigations and e*act testimon# to the end that it ma# e*ercise its legislative functions advisedl# and effectivel#, such power
is so far incidental to the legislative function as to be implied In other words, the power of in+uir# = with process to enforce it =
is an essential and appropriate au*iliar# to the legislative function & legislative bod# cannot legislate wisel# or effectivel# in
the absence of information respecting the conditions which the legislation is intended to affect or change0 and where the
legislative bod# does not itself possess the re+uisite information = which is not infre+uentl# true = recourse must be had to
others who do possess it %*perience has shown that mere re+uests for such information are often unavailing, and also that
information which is volunteered is not alwa#s accurate or complete0 so some means of compulsion is essential to obtain what is
needed
57
1%mphasis and underscoring supplied2
!hat this power of in+uir# is broad enough to cover officials of the e*ecutive branch ma# be deduced from the same case !he
power of in+uir#, the (ourt therein ruled, is coAe*tensive with the power to legislate
/0
!he matters which ma# be a proper
subject of legislation and those which ma# 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
!hus, the (ourt found that the "enate investigation of the government transaction involved in &rnault was a proper e*ercise of
the power of in+uir# 4esides being related to the e*penditure of public funds of which (ongress is the guardian, the
transaction, the (ourt held, Ialso involved government agencies created b# (ongress and officers whose positions it is within
the power of (ongress to regulate or even abolishI
"ince (ongress has authorit# to in+uire into the operations of the e*ecutive branch, it would be incongruous to hold that the
power of in+uir# does not e*tend to e*ecutive officials who are the most familiar with and informed on e*ecutive operations
&s discussed in &rnault, the power of in+uir#, Iwith process to enforce it,I is grounded on the necessit# of information in the
legislative process If the information possessed b# e*ecutive officials on the operation of their offices is necessar# for wise
legislation on that subject, b# parit# of reasoning, (ongress has the right to that information and the power to compel the
disclosure thereof
&s evidenced b# the &merican e*perience during the soAcalled I,c(arth# era,I however, the right of (ongress to conduct
in+uiries in aid of legislation is, in theor#, no less susceptible to abuse than e*ecutive or judicial power It ma# thus be subjected
to judicial review pursuant to the (ourt3s certiorari powers under "ection 6, &rticle ;III of the (onstitution
'or one, as noted in 4eng:on v "enate 4lue Ribbon (ommittee,
/6
the in+uir# itself might not properl# be in aid of legislation,
and thus be#ond the constitutional power of (ongress "uch in+uir# could not usurp judicial functions Parentheticall#, one
possible wa# for (ongress to avoid such a result as occurred in 4eng:on is to indicate in its invitations to the public officials
concerned, or to an# person for that matter, the possible needed statute which prompted the need for the in+uir# Given such
statement in its invitations, along with the usual indication of the subject of in+uir# and the +uestions relative to and in
furtherance thereof, there would be less room for speculation on the part of the person invited on whether the in+uir# is in aid of
legislation
"ection 26, &rticle ;I li$ewise establishes crucial safeguards that proscribe the legislative power of in+uir# !he provision
re+uires that the in+uir# be done in accordance with the "enate or <ouse3s dul# published rules of procedure, necessaril#
impl#ing the constitutional infirmit# of an in+uir# conducted without dul# published rules of procedure "ection 26 also
mandates that the rights of persons appearing in or affected b# such in+uiries be respected, an imposition that obligates
(ongress to adhere to the guarantees in the 4ill of Rights
!hese abuses are, of course, remediable before the courts, upon the proper suit filed b# the persons affected, even if the# belong
to the e*ecutive branch Nonetheless, there ma# be e*ceptional circumstances, none appearing to obtain at present, wherein a
clear pattern of abuse of the legislative power of in+uir# might be established, resulting in palpable violations of the rights
guaranteed to members of the e*ecutive department under the 4ill of Rights In such instances, depending on the particulars of
each case, attempts b# the %*ecutive 4ranch to forestall these abuses ma# be accorded judicial sanction
%ven where the in+uir# is in aid of legislation, there are still recogni:ed e*emptions to the power of in+uir#, which e*emptions
fall under the rubric of Ie*ecutive privilegeI "ince this term figures prominentl# in the challenged order, it being mentioned in
its provisions, its preambular clauses,
/2
and in its ver# title, a discussion of e*ecutive privilege is crucial for determining the
constitutionalit# of %- ./.
#,ecutive *rivilege
!he phrase Ie*ecutive privilegeI is not new in this jurisdiction It has been used even prior to the promulgation of the 678/
(onstitution
/K
4eing of &merican origin, it is best understood in light of how it has been defined and used in the legal literature
of the @nited "tates
"chwart: defines e*ecutive privilege as Ithe power of the Government to withhold information from the public, the courts, and
the (ongressI
/.
"imilarl#, Ro:ell defines it as Ithe right of the President and highAlevel e*ecutive branch officers to withhold
information from (ongress, the courts, and ultimatel# the publicI
/5

%*ecutive privilege is, nonetheless, not a clear or unitar# concept
//
It has encompassed claims of var#ing $inds
/9
!ribe, in fact,
comments that while it is customar# to emplo# the phrase Ie*ecutive privilege,I it ma# be more accurate to spea$ of e*ecutive
privileges Isince presidential refusals to furnish information ma# be actuated b# an# of at least three distinct $inds of
considerations, and ma# be asserted, with differing degrees of success, in the conte*t of either judicial or legislative
investigationsI
-ne variet# of the privilege, !ribe e*plains, is the state secrets privilege invo$ed b# @" Presidents, beginning with
5ashington, on the ground that the information is of such nature that its disclosure would subvert crucial militar# or diplomatic
objectives &nother variet# is the informer3s privilege, or the privilege of the Government not to disclose the identit# of persons
who furnish information of violations of law to officers charged with the enforcement of that law 'inall#, a generic privilege for
internal deliberations has been said to attach to intragovernmental documents reflecting advisor# opinions, recommendations
and deliberations comprising part of a process b# which governmental decisions and policies are formulated
/8

!ribe3s comment is supported b# the ruling in In re "ealed (ase, thusD
"ince the beginnings of our nation, e*ecutive officials have claimed a variet# of privileges to resist disclosure of information the
confidentialit# of which the# felt was crucial to fulfillment of the uni+ue role and responsibilities of the e*ecutive branch of our
government (ourts ruled earl# that the e*ecutive had a right to withhold documents that might reveal militar# or state secrets
!he courts have also granted the e*ecutive a right to withhold the identit# of government informers in some circumstances and a
+ualified right to withhold information related to pending investigations * * *I
/7
1%mphasis and underscoring supplied2
!he entr# in 4lac$3s ?aw )ictionar# on Ie*ecutive privilegeI is similarl# instructive regarding the scope of the doctrine
!his privilege, based on the constitutional doctrine of separation of powers, e*empts the e*ecutive from disclosure re+uirements
applicable to the ordinar# citi:en or organi:ation where such e*emption is necessar# to the discharge of highl# important
e*ecutive responsibilities involved in maintaining governmental operations, and e*tends not onl# to militar# and diplomatic
secrets but also to documents integral to an appropriate e*ercise of the e*ecutive3 domestic decisional and polic# ma$ing
functions, that is, those documents reflecting the fran$ e*pression necessar# in intraAgovernmental advisor# and deliberative
communications
90
1%mphasis and underscoring supplied2
!hat a t#pe of information is recogni:ed as privileged does not, however, necessaril# mean that it would be considered
privileged in all instances 'or in determining the validit# of a claim of privilege, the +uestion that must be as$ed is not onl#
whether the re+uested information falls within one of the traditional privileges, but also whether that privilege should be
honored in a given procedural setting
96

!he leading case on e*ecutive privilege in the @nited "tates is @" v Ni*on,
92
decided in 679. In issue in that case was the
validit# of President Ni*on3s claim of e*ecutive privilege against a subpoena issued b# a district court re+uiring the production
of certain tapes and documents relating to the 5atergate investigations !he claim of privilege was based on the President3s
general interest in the confidentialit# of his conversations and correspondence !he @" (ourt held that while there is no
e*plicit reference to a privilege of confidentialit# in the @" (onstitution, it is constitutionall# based to the e*tent that it relates
to the effective discharge of a President3s powers !he (ourt, nonetheless, rejected the President3s claim of privilege, ruling that
the privilege must be balanced against the public interest in the fair administration of criminal justice Notabl#, the (ourt was
careful to clarif# that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional
demands for information
(ases in the @" which involve claims of e*ecutive privilege against (ongress are rare
9K
)espite fre+uent assertion of the
privilege to den# information to (ongress, beginning with President 5ashington3s refusal to turn over treat# negotiation records
to the <ouse of Representatives, the @" "upreme (ourt has never adjudicated the issue
9.
<owever, the @" (ourt of &ppeals
for the )istrict of (olumbia (ircuit, in a case decided earlier in the same #ear as Ni*on, recogni:ed the President3s privilege
over his conversations against a congressional subpoena
95
&nticipating the balancing approach adopted b# the @" "upreme
(ourt in Ni*on, the (ourt of &ppeals weighed the public interest protected b# the claim of privilege against the interest that
would be served b# disclosure to the (ommittee Ruling that the balance favored the President, the (ourt declined to enforce the
subpoena
9/

In this jurisdiction, the doctrine of e*ecutive privilege was recogni:ed b# this (ourt in &lmonte v ;as+ue:
99
&lmonte used the
term in reference to the same privilege subject of Ni*on It +uoted the following portion of the Ni*on decision which e*plains
the basis for the privilegeD
I!he e*pectation of a President to the confidentialit# of his conversations and correspondences, li$e the claim of confidentialit#
of judicial deliberations, for e*ample, has all the values to which we accord deference for the privac# of all citi:ens and, added
to those values, is the necessit# for protection of the public interest in candid, objective, and even blunt or harsh opinions in
Presidential decisionAma$ing & President and those who assist him must be free to e*plore alternatives in the process of
shaping policies and ma$ing decisions and to do so in a wa# man# would be unwilling to e*press e*cept privatel# !hese are the
considerations justif#ing a presumptive privilege for Presidential communications !he privilege is fundamental to the operation
of government and ine*tricabl# rooted in the separation of powers under the (onstitution * * * I 1%mphasis and underscoring
supplied2
&lmonte involved a subpoena duces tecum issued b# the -mbudsman against the therein petitioners It did not involve, as
e*pressl# stated in the decision, the right of the people to information
98
Nonetheless, the (ourt recogni:ed that there are certain
t#pes of information which the government ma# withhold from the public, thus ac$nowledging, in substance if not in name, that
e*ecutive privilege ma# be claimed against citi:ens3 demands for information
In (have: v P(GG,
97
the (ourt held that this jurisdiction recogni:es the common law holding that there is a Igovernmental
privilege against public disclosure with respect to state secrets regarding militar#, diplomatic and other national securit#
mattersI
80
!he same case held that closedAdoor (abinet meetings are also a recogni:ed limitation on the right to information
"imilarl#, in (have: v Public %states &uthorit#,
86
the (ourt ruled that the right to information does not e*tend to matters
recogni:ed as Iprivileged information under the separation of powers,I
82
b# which the (ourt meant Presidential conversations,
correspondences, and discussions in closedAdoor (abinet meetings It also held that information on militar# and diplomatic
secrets and those affecting national securit#, and information on investigations of crimes b# law enforcement agencies before
the prosecution of the accused were e*empted from the right to information
'rom the above discussion on the meaning and scope of e*ecutive privilege, both in the @nited "tates and in this jurisdiction, a
clear principle emerges %*ecutive privilege, whether asserted against (ongress, the courts, or the public, is recogni:ed onl# in
relation to certain t#pes of information of a sensitive character 5hile e*ecutive privilege is a constitutional concept, a claim
thereof ma# be valid or not depending on the ground invo$ed to justif# it and the conte*t in which it is made Noticeabl# absent
is an# recognition that e*ecutive officials are e*empt from the dut# to disclose information b# the mere fact of being e*ecutive
officials Indeed, the e*traordinar# character of the e*emptions indicates that the presumption inclines heavil# against e*ecutive
secrec# and in favor of disclosure
;alidit# of "ection 6
"ection 6 is similar to "ection K in that both re+uire the officials covered b# them to secure the consent of the President prior to
appearing before (ongress !here are significant differences between the two provisions, however, which constrain this (ourt to
discuss the validit# of these provisions separatel#
"ection 6 specificall# applies to department heads It does not, unli$e "ection K, re+uire a prior determination b# an# official
whether the# are covered b# %- ./. !he President herself has, through the challenged order, made the determination that the#
are 'urther, unli$e also "ection K, the coverage of department heads under "ection 6 is not made to depend on the department
heads3 possession of an# information which might be covered b# e*ecutive privilege In fact, in mar$ed contrast to "ection K
visAQAvis "ection 2, there is no reference to e*ecutive privilege at all Rather, the re+uired prior consent under "ection 6 is
grounded on &rticle ;I, "ection 22 of the (onstitution on what has been referred to as the +uestion hour
"%(!I-N 22 !he heads of departments ma# upon their own initiative, with the consent of the President, or upon the re+uest of
either <ouse, as the rules of each <ouse shall provide, appear before and be heard b# such <ouse on an# matter pertaining to
their departments 5ritten +uestions shall be submitted to the President of the "enate or the "pea$er of the <ouse of
Representatives at least three da#s before their scheduled appearance Interpellations shall not be limited to written +uestions,
but ma# cover matters related thereto 5hen the securit# of the "tate or the public interest so re+uires and the President so states
in writing, the appearance shall be conducted in e*ecutive session
)etermining the validit# of "ection 6 thus re+uires an e*amination of the meaning of "ection 22 of &rticle ;I "ection 22 which
provides for the +uestion hour must be interpreted visAQAvis "ection 26 which provides for the power of either <ouse of
(ongress to Iconduct in+uiries in aid of legislationI &s the following e*cerpt of the deliberations of the (onstitutional
(ommission shows, the framers were aware that these two provisions involved distinct functions of (ongress
,R ,&&,4-NG * * * 5hen we amended "ection 20 Nnow "ection 22 on the >uestion <ourO #esterda#, I noticed that
members of the (abinet cannot be compelled an#more to appear before the <ouse of Representatives or before the "enate I
have a particular problem in this regard, ,adam President, because in our e*perience in the Regular 4atasang Pambansa = as
the Gentleman himself has e*perienced in the interim 4atasang 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 (abinet
ministers 5e usuall# invite them, but if the# do not come and it is a congressional investigation, we usuall# issue subpoenas
I want to be clarified on a statement made b# (ommissioner "uare: when he said that the fact that the (abinet ministers ma#
refuse to come to the <ouse of Representatives or the "enate Nwhen re+uested under "ection 22O does not mean that the# need
not come when the# are invited or subpoenaed b# the committee of either <ouse when it comes to in+uiries in aid of legislation
or congressional investigation &ccording to (ommissioner "uare:, that is allowed and their presence can be had under "ection
26 )oes the gentleman confirm this, ,adam PresidentR
,R )&;I)% 5e confirm that, ,adam President, because "ection 20 refers onl# to what was originall# the >uestion <our,
whereas, "ection 26 would refer specificall# to in+uiries in aid of legislation, under which an#bod# for that matter, ma# be
summoned and if he refuses, he can be held in contempt of the <ouse
8K
1%mphasis and underscoring supplied2
& distinction was thus made between in+uiries in aid of legislation and the +uestion hour 5hile attendance was meant to be
discretionar# in the +uestion hour, it was compulsor# in in+uiries in aid of legislation !he reference to (ommissioner "uare:
bears noting, he being one of the proponents of the amendment to ma$e the appearance of department heads discretionar# in the
+uestion hour
"o clearl# was this distinction conve#ed to the members of the (ommission that the (ommittee on "t#le, precisel# in
recognition of this distinction, later moved the provision on +uestion hour from its original position as "ection 20 in the original
draft down to "ection K6, far from the provision on in+uiries in aid of legislation !his gave rise to the following e*change
during the deliberationsD
,R G@ING-N& Nspea$ing in his capacit# as (hairman of the (ommittee on "t#leO 5e now go, ,r Presiding -fficer, to the
&rticle on ?egislative and ma# I re+uest the chairperson of the ?egislative )epartment, (ommissioner )avide, to give his
reaction
!<% PR%"I)ING -''I(%R 1,r Eamir2 (ommissioner )avide is recogni:ed-avv*hi-$net
,R )&;I)% !han$ #ou, ,r Presiding -fficer I have onl# one reaction to the >uestion <our I propose that instead of
putting it as "ection K6, it should follow ?egislative In+uiries
!<% PR%"I)ING -''I(%R 5hat does the committee sa#R
,R G@ING-N& I as$ (ommissioner ,aambong to repl#, ,r Presiding -fficer
,R ,&&,4-NG &ctuall#, we considered that previousl# when we se+uenced this but we reasoned that in "ection 26, which
is ?egislative In+uir#, it is actuall# a power of (ongress in terms of its own lawma$ing0 whereas, a >uestion <our is not
actuall# a power in terms of its own lawma$ing power because in ?egislative In+uir#, it is in aid of legislation &nd so we put
>uestion <our as "ection K6 I hope (ommissioner )avide will consider this
,R )&;I)% !he >uestion <our is closel# related with the legislative power, and it is precisel# as a complement to or a
supplement of the ?egislative In+uir# !he appearance of the members of (abinet would be ver#, ver# essential not onl# in the
application of chec$ and balance but also, in effect, in aid of legislation
,R ,&&,4-NG &fter conferring with the committee, we find merit in the suggestion of (ommissioner )avide In other
words, we are accepting that and so this "ection K6 would now become "ection 22 5ould it be, (ommissioner )avideR
,R )&;I)% Hes
(onsistent with their statements earlier in the deliberations, (ommissioners )avide and ,aambong proceeded from the same
assumption that these provisions pertained to two different functions of the legislature 4oth (ommissioners understood that the
power to conduct in+uiries in aid of legislation is different from the power to conduct in+uiries during the +uestion hour
(ommissioner )avide3s onl# concern was that the two provisions on these distinct powers be placed closel# together, the#
being complementar# to each other Neither (ommissioner considered them as identical functions of (ongress
!he foregoing opinion was not the two (ommissioners3 alone 'rom the aboveA+uoted e*change, (ommissioner ,aambong3s
committee = the (ommittee on "t#le = shared the view that the two provisions reflected distinct functions of (ongress
(ommissioner )avide, on the other hand, was spea$ing in his capacit# as (hairman of the (ommittee on the ?egislative
)epartment <is views ma# thus be presumed as representing that of his (ommittee
In the conte*t of a parliamentar# s#stem of government, the I+uestion hourI has a definite meaning It is a period of
confrontation initiated b# Parliament to hold the Prime ,inister and the other ministers accountable for their acts and the
operation of the government,
85
corresponding to what is $nown in 4ritain as the +uestion period !here was a specific provision
for a +uestion hour in the 679K (onstitution
8/
which made the appearance of ministers mandator# !he same perfectl#
conformed to the parliamentar# s#stem established b# that (onstitution, where the ministers are also members of the legislature
and are directl# accountable to it
&n essential feature of the parliamentar# s#stem of government is the immediate accountabilit# of the Prime ,inister and the
(abinet to the National &ssembl# !he# shall be responsible to the National &ssembl# for the program of government and shall
determine the guidelines of national polic# @nli$e in the presidential s#stem where the tenure of office of all elected officials
cannot be terminated before their term e*pired, the Prime ,inister and the (abinet remain in office onl# as long as the# enjo#
the confidence of the National &ssembl# !he moment this confidence is lost the Prime ,inister and the (abinet ma# be
changed
89

!he framers of the 6789 (onstitution removed the mandator# nature of such appearance during the +uestion hour in the present
(onstitution so as to conform more full# to a s#stem of separation of powers
88
!o that e*tent, the +uestion hour, as it is
presentl# understood in this jurisdiction, departs from the +uestion period of the parliamentar# s#stem !hat department heads
ma# not be re+uired to appear in a +uestion 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 mandator# +uestion period, the need to enforce
(ongress3 right to e*ecutive information in the performance of its legislative function becomes more imperative &s "chwart:
observesD
Indeed, if the separation of powers has an#thing to tell us on the subject under discussion, it is that the (ongress has the right to
obtain information from an# source = even from officials of departments and agencies in the e*ecutive branch In the @nited
"tates there is, unli$e the situation which prevails in a parliamentar# s#stem such as that in 4ritain, a clear separation between
the legislative and e*ecutive branches It is this ver# separation that ma$es the congressional right to obtain information from
the e*ecutive so essential, if the functions of the (ongress as the elected representatives of the people are ade+uatel# to be
carried out !he absence of close rapport between the legislative and e*ecutive branches in this countr#, comparable to those
which e*ist under a parliamentar# s#stem, and the none*istence in the (ongress of an institution such as the 4ritish +uestion
period have perforce made reliance b# the (ongress upon its right to obtain information from the e*ecutive essential, if it is
intelligentl# to perform its legislative tas$s @nless the (ongress possesses the right to obtain e*ecutive information, its power
of oversight of administration in a s#stem such as ours becomes a power devoid of most of its practical content, since it depends
for its effectiveness solel# upon information parceled out e* gratia b# the e*ecutive
87
1%mphasis and underscoring supplied2
"ections 26 and 22, therefore, while closel# related and complementar# to each other, should not be considered as pertaining to
the same power of (ongress -ne specificall# relates to the power to conduct in+uiries in aid of legislation, the aim of which is
to elicit information that ma# be used for legislation, while the other pertains to the power to conduct a +uestion hour, the
objective of which is to obtain information in pursuit of (ongress3 oversight function
5hen (ongress merel# see$s 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 (hief %*ecutive, such department heads must
give a report of their performance as a matter of dut# In such instances, "ection 22, in $eeping with the separation of powers,
states that (ongress ma# onl# re+uest their appearance Nonetheless, when the in+uir# in which (ongress re+uires their
appearance is Iin aid of legislationI under "ection 26, the appearance is mandator# for the same reasons stated in &rnault
70

In fine, the oversight function of (ongress ma# be facilitated b# compulsor# process onl# to the e*tent that it is performed in
pursuit of legislation !his is consistent with the intent discerned from the deliberations of the (onstitutional (ommission
@ltimatel#, the power of (ongress to compel the appearance of e*ecutive officials under "ection 26 and the lac$ of it under
"ection 22 find their basis in the principle of separation of powers 5hile the e*ecutive branch is a coAe+ual branch of the
legislature, it cannot frustrate the power of (ongress to legislate b# refusing to compl# with its demands for information
5hen (ongress e*ercises its power of in+uir#, the onl# wa# for department heads to e*empt themselves therefrom is b# a valid
claim of privilege !he# are not e*empt b# the mere fact that the# are department heads -nl# one e*ecutive official ma# be
e*empted from this power B the President on whom e*ecutive power is vested, hence, be#ond the reach of (ongress e*cept
through the power of impeachment It is based on her being the highest official of the e*ecutive branch, and the due respect
accorded to a coAe+ual branch of government which is sanctioned b# a longAstanding custom
4# the same to$en, members of the "upreme (ourt are also e*empt from this power of in+uir# @nli$e the Presidenc#, judicial
power is vested in a collegial bod#0 hence, each member thereof is e*empt on the basis not onl# of separation of powers but also
on the fiscal autonom# and the constitutional independence of the judiciar# !his point is not in dispute, as even counsel for the
"enate, "en Eo$er &rro#o, admitted it during the oral argument upon interpellation of the (hief Eustice
<aving established the proper interpretation of "ection 22, &rticle ;I of the (onstitution, the (ourt now proceeds to pass on the
constitutionalit# of "ection 6 of %- ./.
"ection 6, in view of its specific reference to "ection 22 of &rticle ;I of the (onstitution and the absence of an# reference to
in+uiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the +uestion
hour contemplated in the provision of said "ection 22 of &rticle ;I !he reading is dictated b# the basic rule of construction that
issuances must be interpreted, as much as possible, in a wa# that will render it constitutional
!he re+uirement then to secure presidential consent under "ection 6, limited as it is onl# to appearances in the +uestion hour, is
valid on its face 'or under "ection 22, &rticle ;I of the (onstitution, the appearance of department heads in the +uestion hour
is discretionar# on their part
"ection 6 cannot, however, be applied to appearances of department heads in in+uiries in aid of legislation (ongress is not
bound in such instances to respect the refusal of the department head to appear in such in+uir#, unless a valid claim of privilege
is subse+uentl# made, either b# the President herself or b# the %*ecutive "ecretar#
;alidit# of "ections 2 and K
"ection K of %- ./. re+uires all the public officials enumerated in "ection 21b2 to secure the consent of the President prior to
appearing before either house of (ongress !he enumeration is broad It covers all senior officials of e*ecutive departments, all
officers of the &'P and the PNP, and all senior national securit# officials who, in the judgment of the heads of offices designated
in the same section 1ie department heads, (hief of "taff of the &'P, (hief of the PNP, and the National "ecurit# &dviser2, are
Icovered b# the e*ecutive privilegeI
!he enumeration also includes such other officers as ma# be determined b# the President Given the title of "ection 2 B
INature, "cope and (overage of %*ecutive PrivilegeI B, it is evident that under the rule of ejusdem generis, the determination
b# the President under this provision is intended to be based on a similar finding of coverage under e*ecutive privilege
%n passant, the (ourt notes that "ection 21b2 of %- ./. virtuall# states that e*ecutive privilege actuall# covers persons "uch
is a misuse of the doctrine %*ecutive privilege, as discussed above, is properl# invo$ed in relation to specific categories of
information and not to categories of persons
In light, however, of "ec 21a2 of %- ./. which deals with the nature, scope and coverage of e*ecutive privilege, the reference
to persons being Icovered b# the e*ecutive privilegeI ma# be read as an abbreviated wa# of sa#ing that the person is in
possession of information which is, in the judgment of the head of office concerned, privileged as defined in "ection 21a2 !he
(ourt shall thus proceed on the assumption that this is the intention of the challenged order
@pon a determination b# the designated head of office or b# the President that an official is Icovered b# the e*ecutive
privilege,I such official is subjected to the re+uirement that he first secure the consent of the President prior to appearing before
(ongress !his re+uirement effectivel# bars the appearance of the official concerned unless the same is permitted b# the
President !he proviso allowing the President to give its consent means nothing more than that the President ma# reverse a
prohibition which alread# e*ists b# virtue of %- ./.
!hus, underl#ing this re+uirement of prior consent is the determination b# a head of office, authori:ed b# the President under
%- ./., or b# the President herself, that such official is in possession of information that is covered b# e*ecutive privilege
!his determination then becomes the basis for the official3s not showing up in the legislative investigation
In view thereof, whenever an official invo$es %- ./. to justif# his failure to be present, such invocation must be construed as
a declaration to (ongress that the President, or a head of office authori:ed b# the President, has determined that the re+uested
information is privileged, and that the President has not reversed such determination "uch declaration, however, even without
mentioning the term Ie*ecutive privilege,I amounts to an implied claim that the information is being withheld b# the e*ecutive
branch, b# authorit# of the President, on the basis of e*ecutive privilege ;eril#, there is an implied claim of privilege
!he letter dated "eptember 28, 2005 of respondent %*ecutive "ecretar# %rmita to "enate President )rilon illustrates the implied
nature of the claim of privilege authori:ed b# %- ./. It readsD
In connection with the in+uir# to be conducted b# the (ommittee of the 5hole regarding the Northrail Project of the North
?u:on Railwa#s (orporation on 27 "eptember 2005 at 60D00 am, please be informed that officials of the %*ecutive
)epartment invited to appear at the meeting will not be able to attend the same without the consent of the President, pursuant to
%*ecutive -rder No ./. 1s 20052, entitled I%nsuring -bservance -f !he Principle -f "eparation -f Powers, &dherence !o
!he Rule -n %*ecutive Privilege &nd Respect 'or !he Rights -f Public -fficials &ppearing In ?egislative In+uiries In &id -f
?egislation @nder !he (onstitution, &nd 'or -ther PurposesI "aid officials have not secured the re+uired consent from the
President 1@nderscoring supplied2
!he letter does not e*plicitl# invo$e e*ecutive privilege or that the matter on which these officials are being re+uested to be
resource persons falls under the recogni:ed grounds of the privilege to justif# their absence Nor does it e*pressl# state that in
view of the lac$ of consent from the President under %- ./., the# cannot attend the hearing
"ignificant premises in this letter, however, are left unstated, deliberatel# or not !he letter assumes that the invited officials are
covered b# %- ./. &s e*plained earlier, however, to be covered b# the order means that a determination has been made, b#
the designated head of office or the President, that the invited official possesses information that is covered b# e*ecutive
privilege !hus, although it is not stated in the letter that such determination has been made, the same must be deemed implied
Respecting the statement that the invited officials have not secured the consent of the President, it onl# means that the President
has not reversed the standing prohibition against their appearance before (ongress
Inevitabl#, %*ecutive "ecretar# %rmita3s letter leads to the conclusion that the e*ecutive branch, either through the President or
the heads of offices authori:ed under %- ./., has made a determination that the information re+uired b# the "enate is
privileged, and that, at the time of writing, there has been no contrar# pronouncement from the President In fine, an implied
claim of privilege has been made b# the e*ecutive
5hile there is no Philippine case that directl# addresses the issue of whether e*ecutive privilege ma# be invo$ed against
(ongress, it is gathered from (have: v P%& that certain information in the possession of the e*ecutive ma# validl# be claimed
as privileged even against (ongress !hus, the case holdsD
!here is no claim b# P%& that the information demanded b# petitioner is privileged information rooted in the separation of
powers !he information does not cover Presidential conversations, correspondences, or discussions during closedAdoor (abinet
meetings which, li$e internalAdeliberations of the "upreme (ourt and other collegiate courts, or e*ecutive sessions of either
house of (ongress, are recogni:ed as confidential !his $ind of information cannot be pried open b# a coAe+ual branch of
government & fran$ e*change of e*plorator# ideas and assessments, free from the glare of publicit# and pressure b# interested
parties, is essential to protect the independence of decisionAma$ing of those tas$ed to e*ercise Presidential, ?egislative and
Eudicial power !his is not the situation in the instant case
76
1%mphasis and underscoring supplied2
"ection K of %- ./., therefore, cannot be dismissed outright as invalid b# the mere fact that it sanctions claims of e*ecutive
privilege !his (ourt must loo$ further and assess the claim of privilege authori:ed b# the -rder to determine whether it is
valid
5hile the validit# of claims of privilege must be assessed on a case to case basis, e*amining the ground invo$ed therefor and
the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per se 4#
its ver# nature, and as demonstrated b# the letter of respondent %*ecutive "ecretar# +uoted above, the implied claim authori:ed
b# "ection K of %- ./. is not accompanied b# an# specific allegation of the basis thereof 1eg, whether the information
demanded involves militar# or diplomatic secrets, closedAdoor (abinet meetings, etc2 5hile "ection 21a2 enumerates the t#pes
of information that are covered b# the privilege under the challenged order, (ongress is left to speculate as to which among
them is being referred to b# the e*ecutive !he enumeration is not even intended to be comprehensive, but a mere statement of
what is included in the phrase Iconfidential or classified information between the President and the public officers covered b#
this e*ecutive orderI
(ertainl#, (ongress has the right to $now wh# the e*ecutive considers the re+uested information privileged It does not suffice
to merel# declare that the President, or an authori:ed head of office, has determined that it is so, and that the President has not
overturned that determination "uch declaration leaves (ongress in the dar$ on how the re+uested information could be
classified as privileged !hat the message is couched in terms that, on first impression, do not seem li$e a claim of privilege
onl# ma$es it more pernicious It threatens to ma$e (ongress doubl# blind to the +uestion of wh# the e*ecutive branch is not
providing it with the information that it has re+uested
& claim of privilege, being a claim of e*emption from an obligation to disclose information, must, therefore, be clearl# asserted
&s @" v Re#nolds teachesD
!he privilege belongs to the government and must be asserted b# it0 it can neither be claimed nor waived b# a private part# It is
not to be lightl# invo$ed !here must be a formal claim of privilege, lodged b# the head of the department which has control
over the matter, after actual personal consideration b# that officer !he court itself must determine whether the circumstances
are appropriate for the claim of privilege, and #et do so without forcing a disclosure of the ver# thing the privilege is designed to
protect
&bsent then a statement of the specific basis of a claim of e*ecutive privilege, there is no wa# 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
7K
!hese,
in substance, were the same criteria in assessing the claim of privilege asserted against the -mbudsman in &lmonte v ;as+ue:
7.
and, more in point, against a committee of the "enate in "enate "elect (ommittee on Presidential (ampaign &ctivities v
Ni*on
75

&- "mith v 'ederal !rade (ommission is enlighteningD
N!Ohe lac$ of specificit# renders an assessment of the potential harm resulting from disclosure impossible, thereb# preventing
the (ourt from balancing such harm against plaintiffs3 needs to determine whether to override an# claims of privilege
&nd so is @" v &rticle of )rugD
-n the present state of the record, this (ourt is not called upon to perform this balancing operation In stating its objection to
claimant3s interrogatories, government asserts, and nothing more, that the disclosures sought b# claimant would inhibit the free
e*pression of opinion that nonAdisclosure is designed to protect !he government has not shown = nor even alleged = that those
who evaluated claimant3s product were involved in internal polic#ma$ing, generall#, or in this particular instance Privilege
cannot be set up b# an unsupported claim !he facts upon which the privilege is based must be established !o find these
interrogatories objectionable, this (ourt would have to assume that the evaluation and classification of claimant3s products was
a matter of internal polic# formulation, an assumption in which this (ourt is unwilling to indulge sua sponte
,obil -il (orp v )epartment of %nerg# similarl# emphasi:es that Ian agenc# must provide Cprecise and certain3 reasons for
preserving the confidentialit# of re+uested informationI
4lac$ v "heraton (orp of &merica amplifies, thusD
& formal and proper claim of e*ecutive privilege re+uires a specific designation and description of the documents within its
scope as well as precise and certain reasons for preserving their confidentialit# 5ithout this specificit#, it is impossible for a
court to anal#:e the claim short of disclosure of the ver# thing sought to be protected &s the affidavit now stands, the (ourt has
little more than its sua sponte speculation with which to weigh the applicabilit# of the claim &n improperl# asserted claim of
privilege is no claim of privilege !herefore, despite the fact that a claim was made b# the proper e*ecutive as Re#nolds
re+uires, the (ourt can not recogni:e the claim in the instant case because it is legall# insufficient to allow the (ourt to ma$e a
just and reasonable determination as to its applicabilit# !o recogni:e such a broad claim in which the )efendant has given no
precise or compelling reasons to shield these documents from outside scrutin#, would ma$e a farce of the whole procedure
606
1%mphasis and underscoring supplied2
)ue respect for a coAe+ual branch of government, moreover, demands no less than a claim of privilege clearl# stating the
grounds therefor &propos is the following ruling in ,cPhaul v @"D
5e thin$ the (ourt3s decision in @nited "tates v 4r#an, KK7 @" K2K, 90 " (t 92., is highl# relevant to these +uestions 'or it
is as true here as it was there, that Cif 1petitioner2 had legitimate reasons for failing to produce the records of the association, a
decent respect for the <ouse of Representatives, b# whose authorit# the subpoenas issued, would have re+uired that 1he2 state
1his2 reasons for noncompliance upon the return of the writ "uch a statement would have given the "ubcommittee an
opportunit# to avoid the bloc$ing of its in+uir# b# ta$ing other appropriate steps to obtain the records C!o den# the (ommittee
the opportunit# to consider the objection or remed# is in itself a contempt of its authorit# and an obstruction of its processes
<is failure to ma$e an# such statement was Ia patent evasion of the dut# of one summoned to produce papers before a
congressional committeeN, andO cannot be condonedI 1%mphasis and underscoring supplied0 citations omitted2
@pon the other hand, (ongress must not re+uire the e*ecutive to state the reasons for the claim with such particularit# as to
compel disclosure of the information which the privilege is meant to protect & useful analog# in determining the re+uisite
degree of particularit# would be the privilege against selfAincrimination !hus, <offman v @" declaresD
!he witness is not e*onerated from answering merel# because he declares that in so doing he would incriminate himself = his
sa#Aso does not of itself establish the ha:ard of incrimination It is for the court to sa# whether his silence is justified, and to
re+uire him to answer if Cit clearl# appears to the court that he is mista$en3 <owever, if the witness, upon interposing his claim,
were re+uired to prove the ha:ard in the sense in which a claim is usuall# re+uired to be established in court, he would be
compelled to surrender the ver# protection which the privilege is designed to guarantee !o sustain the privilege, it need onl# be
evident from the implications of the +uestion, in the setting in which it is as$ed, that a responsive answer to the +uestion or an
e*planation of wh# it cannot be answered might be dangerous because injurious disclosure could resultI
!he claim of privilege under "ection K of %- ./. in relation to "ection 21b2 is thus invalid per se It is not asserted It is merel#
implied Instead of providing precise and certain reasons for the claim, it merel# invo$es %- ./., coupled with an
announcement that the President has not given her consent It is woefull# insufficient for (ongress to determine whether the
withholding of information is justified under the circumstances of each case It severel# frustrates the power of in+uir# of
(ongress
In fine, "ection K and "ection 21b2 of %- ./. must be invalidated
No infirmit#, however, can be imputed to "ection 21a2 as it merel# provides guidelines, binding onl# on the heads of office
mentioned in "ection 21b2, on what is covered b# e*ecutive privilege It does not purport to be conclusive on the other branches
of government It ma# thus be construed as a mere e*pression of opinion b# the President regarding the nature and scope of
e*ecutive privilege
Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authorit#
to the heads of offices in "ection 21b2 Petitioner "enate of the Philippines, in particular, cites the case of the @nited "tates
where, so it claims, onl# the President can assert e*ecutive privilege to withhold information from (ongress
"ection 21b2 in relation to "ection K virtuall# provides that, once the head of office determines that a certain information is
privileged, such determination is presumed to bear the President3s authorit# and has the effect of prohibiting the official from
appearing before (ongress, subject onl# to the e*press pronouncement of the President that it is allowing the appearance of such
official !hese provisions thus allow the President to authori:e claims of privilege b# mere silence
"uch presumptive authori:ation, however, is contrar# to the e*ceptional nature of the privilege %*ecutive privilege, as alread#
discussed, is recogni:ed with respect to information the confidential nature of which is crucial to the fulfillment of the uni+ue
role and responsibilities of the e*ecutive branch,
605
or in those instances where e*emption from disclosure is necessar# to the
discharge of highl# important e*ecutive responsibilities
60/
!he doctrine of e*ecutive privilege is thus premised on the fact that
certain informations must, as a matter of necessit#, be $ept confidential in pursuit of the public interest !he privilege being, b#
definition, an e*emption from the obligation to disclose information, in this case to (ongress, the necessit# must be of such high
degree as to outweigh the public interest in enforcing that obligation in a particular case
In light of this highl# e*ceptional nature of the privilege, the (ourt finds it essential to limit to the President the power to invo$e
the privilege "he ma# of course authori:e the %*ecutive "ecretar# to invo$e the privilege on her behalf, in which case the
%*ecutive "ecretar# must state that the authorit# is I4# order of the President,I which means that he personall# consulted with
her !he privilege being an e*traordinar# power, it must be wielded onl# b# the highest official in the e*ecutive hierarch# In
other words, the President ma# not authori:e her subordinates to e*ercise such power !here is even less reason to uphold such
authori:ation in the instant case where the authori:ation is not e*plicit but b# mere silence "ection K, in relation to "ection 21b2,
is further invalid on this score
It follows, therefore, that when an official is being summoned b# (ongress on a matter which, in his own judgment, might be
covered b# e*ecutive privilege, he must be afforded reasonable time to inform the President or the %*ecutive "ecretar# of the
possible need for invo$ing the privilege !his is necessar# in order to provide the President or the %*ecutive "ecretar# with fair
opportunit# to consider whether the matter indeed calls for a claim of e*ecutive privilege If, after the lapse of that reasonable
time, neither the President nor the %*ecutive "ecretar# invo$es the privilege, (ongress is no longer bound to respect the failure
of the official to appear before (ongress and ma# then opt to avail of the necessar# legal means to compel his appearance
!he (ourt notes that one of the e*pressed purposes for re+uiring officials to secure the consent of the President under "ection K
of %- ./. is to ensure Irespect for the rights of public officials appearing in in+uiries in aid of legislationI !hat such rights
must indeed be respected b# (ongress is an echo from &rticle ;I "ection 26 of the (onstitution mandating that INtOhe rights of
persons appearing in or affected b# such in+uiries shall be respectedI
In light of the above discussion of "ection K, it is clear that it is essentiall# an authori:ation for implied claims of e*ecutive
privilege, for which reason it must be invalidated !hat such authori:ation is partl# motivated b# the need to ensure respect for
such officials does not change the infirm nature of the authori:ation itself
Right to Information
%- ./. is concerned onl# with the demands of (ongress for the appearance of e*ecutive officials in the hearings conducted b#
it, and not with the demands of citi:ens 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 controvers# is not merel# the legislative
power of in+uir#, but the right of the people to information
!here are, it bears noting, clear distinctions between the right of (ongress to information which underlies the power of in+uir#
and the right of the people to information on matters of public concern 'or one, the demand of a citi:en for the production of
documents pursuant to his right to information does not have the same obligator# force as a subpoena duces tecum issued b#
(ongress Neither does the right to information grant a citi:en the power to e*act testimon# from government officials !hese
powers belong onl# to (ongress and not to an individual citi:en
!hus, while (ongress is composed of representatives elected b# the people, it does not follow, e*cept in a highl# +ualified
sense, that in ever# e*ercise of its power of in+uir#, the people are e*ercising their right to information
!o the e*tent that investigations in aid of legislation are generall# conducted in public, however, an# e*ecutive issuance tending
to undul# limit disclosures of information in such investigations necessaril# deprives the people of information which, being
presumed to be in aid of legislation, is presumed to be a matter of public concern !he citi:ens are thereb# denied access to
information which the# can use in formulating their own opinions on the matter before (ongress B opinions which the# can
then communicate to their representatives and other government officials through the various legal means allowed b# their
freedom of e*pression !hus holds ;almonte v 4elmonteD
It is in the interest of the "tate that the channels for free political discussion be maintained to the end that the government ma#
perceive and be responsive to the people3s will Het, this open dialogue can be effective onl# to the e*tent that the citi:enr# is
informed and thus able to formulate its will intelligentl# -nl# when the participants in the discussion are aware of the issues
and have access to information relating thereto can such bear fruit
609
1%mphasis and underscoring supplied2
!he impairment of the right of the people to information as a conse+uence of %- ./. is, therefore, in the sense e*plained
above, just as direct as its violation of the legislature3s power of in+uir#
Implementation of %- ./. prior to its publication
5hile %- ./. applies onl# to officials of the e*ecutive branch, it does not follow that the same is e*empt from the need for
publication -n the need for publishing even those statutes that do not directl# appl# to people in general, !aJada v !uvera
statesD
!he term IlawsI should refer to all laws and not onl# to those of general application, for strictl# spea$ing all laws relate to the
people in general albeit there are some that do not appl# to them directl# &n e*ample is a law granting citi:enship to a
particular individual, li$e a relative of President ,arcos who was decreed instant naturali:ation It surel# cannot be said that
such a law does not affect the public although it un+uestionabl# does not appl# directl# to all the people !he subject of such
law is a matter of public interest which an# member of the bod# politic ma# +uestion in the political forums or, if he is a proper
part#, even in courts of justice
&lthough the above statement was made in reference to statutes, logic dictates that the challenged order must be covered b# the
publication re+uirement &s e*plained above, %- ./. has a direct effect on the right of the people to information on matters of
public concern It is, therefore, a matter of public interest which members of the bod# politic ma# +uestion before this (ourt
)ue process thus re+uires that the people should have been apprised of this issuance before it was implemented
(onclusion
(ongress undoubtedl# has a right to information from the e*ecutive branch whenever it is sought in aid of legislation If the
e*ecutive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor
and wh# it must be respected
!he infirm provisions of %- ./., however, allow the e*ecutive branch to evade congressional re+uests for information without
need of clearl# asserting a right to do so andMor proffering its reasons therefor 4# the mere e*pedient of invo$ing said
provisions, the power of (ongress to conduct in+uiries in aid of legislation is frustrated !hat is impermissible 'or
NwOhat republican theor# did accomplishPwas to reverse the old presumption in favor of secrec#, based on the divine right of
$ings and nobles, and replace it with a presumption in favor of publicit#, based on the doctrine of popular sovereignt#
1@nderscoring supplied2
607

Resort to an# means then b# which officials of the e*ecutive branch could refuse to divulge information cannot be presumed
valid -therwise, we shall not have merel# nullified the power of our legislature to in+uire into the operations of government,
but we shall have given up something of much greater value = our right as a people to ta$e part in government
5<%R%'-R%, the petitions are P&R!?H GR&N!%) "ections 21b2 and K of %*ecutive -rder No ./. 1series of 20052,
I%nsuring -bservance of the Principle of "eparation of Powers, &dherence to the Rule on %*ecutive Privilege and Respect for
the Rights of Public -fficials &ppearing in ?egislative In+uiries in &id of ?egislation @nder the (onstitution, and 'or -ther
Purposes,I are declared ;-I) "ections 6 and 21a2 are, however, ;&?I)
Neri vs "enate
GR No 680/.K, ,arch 25, 2008
'ormer N%)& )irector General Romulo Neri testified before the "enate for 66 hours relating to the G!%AN4N
mess <owever, when probed further on what he and the President discussed about the N4N Project, he refused
to answer, invo$ing Se*ecutive privilegeT In particular, he refused to answer K +uestionsD
1a2 whether or not President &rro#o followed up the N4N Project
1b2 whether or not she directed him to prioriti:e it
1c2 whether or not she directed him to approve it
@nrelenting, the "enate (ommittees issued a "ubpoena &d !estificandum to Neri, re+uiring him to appear and
testif# on November 20, 2009 <owever, %*ecutive "ecretar# %duardo R %rmita re+uested the "enate
(ommittees to dispense with Neri3s testimon# on the ground of e*ecutive privilege In his letter, %rmita said
Sthat the information sought to be disclosed might impair our diplomatic as well as economic relations with
(hinaT Neri did not appear before the (ommittees &s a result, the "enate issued an -rder citing him in
contempt and ordered his arrest and detention until such time that he would appear and give his testimon#
&re the communications elicited b# the subject three 1K2 +uestions covered b# e*ecutive privilegeR
"@GG%"!%) &N"5%RD
Hes !he (ommunications elicited b# the K >uestions are covered b# %*ecutive Privilege *** Swe are
convinced that the communications elicited b# the +uestions are covered b# the presidential communications
privilege 'irst, the communications relate to a S+uintessential and nonAdelegable powerT of the President, ie
the power to enter into an e*ecutive agreement with other countries !his authorit# of the President to enter into
e*ecutive agreements without the concurrence of the ?egislature has traditionall# been recogni:ed in Philippine
jurisprudence "econd, the communications are SreceivedT b# a close advisor of the President @nder the
Soperational pro*imit#T test, petitioner can be considered a close advisor, being a member of President &rro#o3s
cabinet &nd third, there is no ade+uate showing of a compelling need that would justif# the limitation of the
privilege and of the unavailabilit# of the information elsewhere b# an appropriate investigating authorit#
!he "enate contends that the grant of the e*ecutive privilege violates the SRight of the people to information on
matters of public concernT Is the senate correctR
&N"5%RD No 5hile (ongress is composed of representatives elected b# the people, it does not follow, e*cept
in a highl# +ualified sense, that in ever# e*ercise of its power of in+uir#, the people are e*ercising their right to
information !he right of (ongress or an# of its (ommittees to obtain information in aid of legislation cannot be
e+uated with the people3s right to public information !he distinction between such rights is laid down in "enate
v %rmitaD !here are clear distinctions between the right of (ongress to information which underlies the power
of in+uir# and the right of people to information on matters of public concern 'or one, the demand of a citi:en
for the production of documents pursuant to his right to information does not have the same obligator# force as
a subpoena duces tecum issued b# (ongress Neither does the right to information grant a citi:en the power to
e*act testimon# from government officials !hese powers belong onl# to (ongress, not to an individual citi:en
1visit fellesterblogspotcom2
-n ,arch /, 2008, President &rro#o issued ,emorandum (ircular No 656, revo$ing %- ./. Is there a
recogni:ed claim of e*ecutive privilege despite the revocation of %- ./.R
&N"5%RD Hes !he revocation of %- ./. does not in an# wa# diminish our concept of e*ecutive privilege
!his is because this concept has (onstitutional underpinnings
In "enate v %rmita, the e*ecutive privilege should be invo$ed b# the President or through the %*ecutive
"ecretar# Sb# order of the PresidentT )id %*ecutive "ecretar# %rmita correctl# invo$e the principle of
e*ecutive privilege, b# order of the PresidentR
&N"5%RD Hes !he ?etter dated November 69, 2009 of %*ecutive "ecretar# %rmita satisfies the re+uirement It
serves as the formal claim of privilege !here, he e*pressl# states that Sthis -ffice is constrained to invo$e the
settled doctrine of e*ecutive privilege as refined in "enate v %rmita, and has advised "ecretar# Neri
accordingl#T -bviousl#, he is referring to the -ffice of the President !hat is more than enough compliance
,a# the (ongress re+uire the e*ecutive to state the reasons for the claim with particularit#R
&N"5%RD No !he (ongress must not re+uire the e*ecutive to state the reasons for the claim with such
particularit# as to compel disclosure of the information which the privilege is meant to protect !his is a matter
of respect to a coordinate and coAe+ual department 1"enate v %rmita2
Is the contempt and arrest -rder of Neri validR
&N"5%RD No !here being a legitimate claim of e*ecutive privilege, the issuance of the contempt -rder
suffers from constitutional infirmit# !he respondent (ommittees did not compl# with the re+uirement laid
down in "enate v %rmita that the invitations should contain the Spossible needed statute which prompted the
need for the in+uir#,T along with Sthe usual indication of the subject of in+uir# and the +uestions relative to and
in furtherance thereofT !he "( also find merit in the argument of the -"G that respondent (ommittees violated
"ection 26 of &rticle ;I of the (onstitution, re+uiring that the in+uir# be in accordance with the Sdul# published
rules of procedureT !he respondent (ommittees3 issuance of the contempt -rder is arbitrar# and precipitate It
must be pointed out that respondent (ommittees did not first pass upon the claim of e*ecutive privilege and
inform petitioner of their ruling Instead, the# curtl# dismissed his e*planation as Sunsatisfactor#T and
simultaneousl# issued the -rder citing him in contempt and ordering his immediate arrest and detention 1Neri
vs "enate, GR No 680/.K, ,arch 25, 20082
549 SCRA 77 Political Law Constitutional Law .he Legislative /e*art(ent 0n'uir! in ai) o" legislation #,ecutive
Privilege
Legislative 1Sec 213 4 %versight 1Sec 223 Powers
In &pril &pril 2009, )-!( entered into a contract with Ghong Ling !elecommunications %+uipment 1G!%2 for the suppl# of
e+uipment and services for the National 4roadband Networ$ 1N4N2 Project in the amount of UK27,.86,27000 1appro*imatel#
P6/ 4illion Pesos2 !he Project was to be financed b# the People3s Republic of (hina !he "enate passed various resolutions
relative to the N4N deal -n the other hand, Eoe )e ;enecia issued a statement that several high e*ecutive officials and power
bro$ers were using their influence to push the approval of the N4N Project b# the N%)&
Neri, the head of N%)&, was then invited to testif# before the "enate 4lue Ribbon <e appeared in one hearing wherein he was
interrogated for 66 hrs and during which he admitted that &balos of (-,%?%( tried to bribe him with P200, in e*change for
his approval of the N4N project <e further narrated that he informed President &rro#o about the briber# attempt and that she
instructed him not to accept the bribe <owever, when probed further on what the# discussed about the N4N Project,
Neri refused to answer, invo$ing Se,ecutive *rivilegeS In particular, he refused to answer the +uestions on 1a2 whether or not
President &rro#o followed up the N4N Project, 1B2 whether or not she directed him to prioriti:e it, and 1c2 whether or not she
directed him to approve <e later refused to attend the other hearings and %rmita sent a letter to the "4R( averring that the
communications between G,& and Neri is privileged and that the jurisprudence laid down in "enate vs %rmita be applied !he
"4R( cited Neri for contempt
ISSUE: 5hether or not the three +uestions sought b# the "4R( to be answered falls under e*ecutive privilege
HELD: !he oversight function of (ongress ma# be facilitated b# compulsor# process onl# to the e*tent that it is performed in
pursuit of legislation
!he communications elicited b# the three 1K2 +uestions are covered b# the .residential co99unications .rivile?e
1st, the communications relate to a SGuintessential and non<dele?aBle .oDerT of the President, ie the power to enter into an
e*ecutive agreement with other countries !his authorit# of the President to enter into e,ecutive agree(ents without the
concurrence of the ?egislature has traditionall# been recogni:ed in Philippine jurisprudence
2nd, the communications are SreceivedT b# a close advisor of the President @nder the So.erational .roEi9it'I test) petitioner
can be considered a close advisor, being a member of President &rro#o3s cabinet &nd
3rd, there is no ade+uate showing of a compelling need that would justif# the limitation of the privilege and of the
unavailaBilit' of the information elsewhere b# an appropriate investigating authorit#
Republic of the Philippines
SUPE!E COUT
,anila
%N 4&N(
".. No. 1#$FJ( !arch 2%) 2$$#
O!ULO L. NEI) petitioner, vs SEN,TE CO!!ITTEE ON ,CCOUNT,0ILIT1 O+ PU0LIC O++ICES ,ND
IN4ESTI",TIONS) SEN,TE CO!!ITTEE ON T,DE ,ND CO!!ECE) ,ND SEN,TE CO!!ITTEE ON
N,TION,L DE+ENSE ,ND SECUIT1) respondents
&t bar is a petition for certiorari under Rule /5 of the Rules of (ourt assailing the show cause Letter
6
dated November 22,
2009 and contempt -rder
2
dated Eanuar# K0, 2008 concurrentl# issued b# respondent
"enate (ommittees on &ccountabilit# of Public -fficers and Investigations,
K
!rade and (ommerce,
.
and National )efense and
"ecurit#
5
against petitioner Romulo ? Neri, former )irector General of the National %conomic and )evelopment &uthorit#
1N%)&2
!he facts, as culled from the pleadings, are as followsD
-n &pril 26, 2009, the )epartment of !ransportation and (ommunication 1)-!(2 entered into a contract with Ghong Ling
!elecommunications %+uipment 1G!%2 for the suppl# of e+uipment and services for the National 4roadband Networ$ 1N4N2
Project in the amount of @" U K27,.86,270 1appro*imatel# P6/ 4illion Pesos2 !he Project was to be financed b# the PeopleVs
Republic of (hina
In connection with this N4N Project, various Resolutions were introduced in the "enate, as followsD
162 P.S. es. No. 12>, introduced b# "enator &+uilino > Pimentel, Er, entitled R%"-?@!I-N )IR%(!ING !<%
4?@% RI44-N (-,,I!!%% &N) !<% (-,,I!!%% -N !R&)% &N) IN)@"!RH !- IN;%"!IG&!%, IN
&I) -' ?%GI"?&!I-N, !<% (IR(@,"!&N(%" ?%&)ING !- !<% &PPR-;&? -' !<% 4R-&)4&N)
(-N!R&(! 5I!< G!% &N) !<% R-?% P?&H%) 4H !<% -''I(I&?" (-N(%RN%) IN G%!!ING I!
(-N"@,,&!%) &N) !- ,&F% R%(-,,%N)&!I-N" !- <&?% !- !<% (-@R!" -' ?&5 !<%
P%R"-N" R%"P-N"I4?% '-R &NH &N-,&?H IN (-NN%(!I-N !<%R%5I!< &N) !- P?@G !<%
?--P<-?%", I' &NH IN !<% 4-! ?&5 &N) -!<%R P%R!IN%N! ?%GI"?&!I-N"
122 P.S. es. No. 1JJ, introduced b# "enator ,ar Ro*as, entitled W R%"-?@!I-N @RGING PR%"I)%N! G?-RI&
,&(&P&G&? &RR-H- !- )IR%(! !<% (&N(%??&!I-N -' !<% G!% (-N!R&(!
1K2 P.S. es. No. 12*, introduced b# "enator Panfilo , ?acson, entitled R%"-?@!I-N )IR%(!ING !<%
(-,,I!!%% -N N&!I-N&? )%'%N"% &N) "%(@RI!H !- (-N)@(! &N IN>@IRH IN &I) -'
?%GI"?&!I-N IN!- !<% N&!I-N&? "%(@RI!H I,P?I(&!I-N" -' &5&R)ING !<% N&!I-N&?
4R-&)4&N) N%!5-RF (-N!R&(! !- !<% (<IN%"% 'IR, G<-NG LING !%?%(-,,@NI(&!I-N"
%>@IP,%N! (-,P&NH ?I,I!%) 1G!% (-RP-R&!I-N2 5I!< !<% %N) IN ;I%5 -' PR-;I)ING
R%,%)I&? ?%GI"?&!I-N !<&! 5I?? PR-!%(! -@R N&!I-N&? "-;%R%IGN!H, "%(@RI!H &N)
!%RRI!-RI&? IN!%GRI!H
1.2 P.S. es. No. 1(F, introduced b# "enator ,iriam )efensor "antiago, entitled R%"-?@!I-N )IR%(!ING !<%
PR-P%R "%N&!% (-,,I!!%% !- (-N)@(! &N IN>@IRH, IN &I) -' ?%GI"?&!I-N, -N !<% ?%G&?
&N) %(-N-,I( E@"!I'I(&!I-N -' !<% N&!I-N&? 4R-&)4&N) N%!5-RF 1N4N2 PR-E%(! -' !<%
N&!I-N&? G-;%RN,%N!
&t the same time, the investigation was claimed to be relevant to the consideration of three 1K2 pending bills in the "enate, to
witD
6 Senate 0ill No. 1>*(, introduced b# "enator ,ar Ro*as, entitled &N &(! "@4E%(!ING !R%&!I%",
IN!%RN&!I-N&? -R %L%(@!I;% &GR%%,%N!" IN;-?;ING '@N)ING IN !<% PR-(@R%,%N! -'
IN'R&"!R@(!@R% PR-E%(!", G--)", &N) (-N"@?!ING "%R;I(%" !- 4% IN(?@)%) IN !<% "(-P%
&N) &PP?I(&!I-N -' P<I?IPPIN% PR-(@R%,%N! ?&5", &,%N)ING '-R !<% P@RP-"% R%P@4?I(
&(! N- 768., -!<%R5I"% FN-5N &" !<% G-;%RN,%N! PR-(@R%,%N! R%'-R, &(!, &N) '-R
-!<%R P@RP-"%"0
2 Senate 0ill No. 1>*J, introduced b# "enator ,ar Ro*as, entitled &N &(! I,P-"ING "&'%G@&R)" IN
(-N!R&(!ING ?-&N" (?&""I'I%) &" -''I(I&? )%;%?-P,%N! &""I"!&N(%, &,%N)ING '-R !<%
P@RP-"% R%P@4?I( &(! N- 8682, &" &,%N)%) 4H R%P@4?I( &(! N- 8555, -!<%R5I"% FN-5N &"
!<% -''I(I&? )%;%?-P,%N! &""I"!&N(% &(! -' 677/, &N) '-R -!<%R P@RP-"%"0 and
K Senate 0ill No. 1(1>, introduced b# "enator ,iriam )efensor "antiago, entitled &N &(! ,&N)&!ING
(-N(@RR%N(% !- IN!%RN&!I-N&? &GR%%,%N!" &N) %L%(@!I;% &GR%%,%N!"
Respondent (ommittees initiated the investigation b# sending invitations to certain personalities and cabinet officials involved
in the N4N Project Petitioner was among those invited <e was summoned to appear and testif# on "eptember 68, 20, and 2/
and -ctober 25, 2009 <owever, he attended onl# the "eptember 2/ hearing, claiming he was Iout of townI during the other
dates
In the "eptember 68, 2009 hearing, businessman Eose de ;enecia III testified that several high e*ecutive officials and power
bro$ers were using their influence to push the approval of the N4N Project b# the N%)& It appeared that the Project was
initiall# approved as a 4uildA-perateA!ransfer 14-!2 project but, on ,arch 27, 2009, the N%)& ac+uiesced to convert it into a
governmentAtoAgovernment project, to be financed through a loan from the (hinese Government
-n "eptember 2/, 2009, petitioner testified before respondent (ommittees for eleven 1662 hours <e disclosed that then
(ommission on %lections 1(-,%?%(2 (hairman 4enjamin &balos offered him P200 ,illion in e*change for his approval of
the N4N Project <e further narrated that he informed President &rro#o about the briber# attempt and that she instructed him
not to accept the bribe <owever, when probed further on what the# discussed about the N4N Project, petitioner refused to
answer, invo$ing Ie*ecutive privilegeI In particular, he refused to answer the +uestions on 1a2 whether or not President &rro#o
followed up the N4N Project,
/
1b2 whether or not she directed him to prioriti:e it,
9
and 1c2 whether or not she directed him to
approve
8

@nrelenting, respondent (ommittees issued a Su5*oena A) .esti"ican)u( to petitioner, re+uiring him to appear and testif# on
November 20, 2009
<owever, in the ?etter dated November 65, 2009, %*ecutive "ecretar# %duardo R %rmita re+uested respondent (ommittees to
dispense with petitionerVs testimon# on the ground of e*ecutive privilege !he pertinent portion of the letter readsD
5ith reference to the su5*oena a) testi"ican)u( issued to "ecretar# Romulo Neri to appear and testif# again on 20
November 2009 before the Eoint (ommittees #ou chair, it will be recalled that "ec Neri had alread# testified and
e*haustivel# discussed the G!% M N4N project, including his conversation with the President thereon last 2/ "eptember
2009
&s$ed to elaborate further on his conversation with the President, "ec Neri as$ed for time to consult with his superiors
in line with the ruling of the "upreme (ourt in Senate v$ #r(ita, .88 "(R& 6 1200/2
"pecificall#, "ec Neri sought guidance on the possible invocation of e*ecutive privilege on the following +uestions, to
witD
a3 6hether the President /olloDed u. the 2N0N3 .roCectK
B3 6ere 'ou dictated to .rioritiLe the =TEK
c3 6hether the President said to ?o ahead and a..rove the .roCect a/ter Bein? told aBout the alle?ed BriBeK
'ollowing the ruling in Senate v$ #r(ita, the foregoing +uestions fall under conversations and correspondence between
the President and public officials which are considered e*ecutive privilege 1Al(onte v$ 6as'ue7, GR 75/K9, 2K ,a#
67750 Chave7 v$ P#A, GR 6KK250, Eul# 7, 20022 ,aintaining the confidentialit# of conversations of the President is
necessar# in the e*ercise of her e*ecutive and polic# decision ma$ing process !he e*pectation of a President to the
confidentialit# of her conversations and correspondences, li$e the value which we accord deference for the privac# of
all citi:ens, is the necessit# for protection of the public interest in candid, objective, and even blunt or harsh opinions in
Presidential decisionAma$ing )isclosure of conversations of the President will have a chilling effect on the President,
and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected b# the
confidentialit# of her conversations
!he conte*t in which e*ecutive privilege is being invo$ed is that the information sought to be disclosed might impair
our diplomatic as well as economic relations with the PeopleVs Republic of (hina Given the confidential nature in
which these information were conve#ed to the President, he cannot provide the (ommittee an# further details of these
conversations, without disclosing the ver# thing the privilege is designed to protect
In light of the above considerations, this -ffice is constrained to invo$e the settled doctrine of e*ecutive privilege as
refined in Senate v$ #r(ita, and has advised "ecretar# Neri accordingl#
(onsidering that "ec Neri has been lengthil# interrogated on the subject in an unprecedented 66Ahour hearing, wherein
he has answered all +uestions propounded to him e*cept the foregoing +uestions involving e*ecutive privilege, we
therefore re+uest that his testimon# on 20 November 2009 on the G!% M N4N project be dispensed with
-n November 20, 2009, petitioner did not appear before respondent (ommittees !hus, on November 22, 2009, the latter issued
the show cause ?etter re+uiring him to e*plain wh# he should not be cited in contempt !he ?etter readsD
"ince #ou have failed to appear in the said hearing, the (ommittees on &ccountabilit# of Public -fficers and
Investigations 14lue Ribbon2, !rade and (ommerce and National )efense and "ecurit# re+uire #ou to show cause wh#
#ou should not be cited in contempt under "ection /, &rticle / of the Rules of the (ommittee on &ccountabilit# of
Public -fficers and Investigations 14lue Ribbon2
!he "enate e*pects #our e*planation on or before 2 )ecember 2009
-n November 27, 2009, petitioner replied to respondent (ommittees, manifesting that it was not his intention to ignore the
"enate hearing and that he thought the onl# remaining +uestions were those he claimed to be covered b# e*ecutive privilege,
thusD
It was not m# intention to snub the last "enate hearing In fact, I have cooperated with the tas$ of the "enate in its
in+uir# in aid of legislation as shown b# m# almost 66 hours sta# during the hearing on 2/ "eptember 2009 )uring
said hearing, I answered all the +uestions that were as$ed of me, save for those which I thought was covered b#
e*ecutive privilege, and which was confirmed b# the %*ecutive "ecretar# in his ?etter 65 November 2009 In good
faith, after that e*haustive testimon#, I thought that what remained were onl# the three +uestions, where the %*ecutive
"ecretar# claimed e*ecutive privilege <ence, his re+uest that m# presence be dispensed with
4e that as it ma#, should there be new matters that were not #et ta$en up during the 2/ "eptember 2009 hearing, ma# I
be furnished in advance as to what else I need to clarif#, so that as a resource person, I ma# ade+uatel# prepare m#self
In addition, petitioner submitted a letter prepared b# his counsel, &tt# &ntonio R 4autista, stating, among others thatD 162 his
1petitioner2 nonAappearance was upon the order of the President0 and 122 his conversation with President &rro#o dealt with
delicate and sensitive national securit# and diplomatic matters relating to the impact of the briber# scandal involving high
government officials and the possible loss of confidence of foreign investors and lenders in the Philippines !he letter ended
with a reiteration of petitionerVs re+uest that he Ibe furnished in advanceI as to what else he needs to clarif# so that he ma#
ade+uatel# prepare for the hearing
In the interim, on )ecember 9, 2009, petitioner filed with this (ourt the present petition for certiorari assailing the show cause
Letter dated November 22, 2009
Respondent (ommittees found petitionerVs e*planations unsatisfactor# 5ithout responding to his re+uest for advance notice of
the matters that he should still clarif#, the# issued the Order dated Eanuar# K0, 2008, citing him in contempt of respondent
(ommittees and ordering his arrest and detention at the -ffice of the "enate "ergeantA&tA&rms until such time that he would
appear and give his testimon# !he said -rder statesD
ODE
'or failure to appear and testif# in the (ommitteeVs hearing on !uesda#, "eptember 68, 20090 !hursda#, "eptember 20,
20090 !hursda#, -ctober 25, 20090 and !uesda#, November 20, 2009, despite personal notice and "ubpoenas &d
!estificandum sent to and received b# him, which thereb# dela#s, impedes and obstructs, as it has in fact dela#ed,
impeded and obstructed the in+uir# into the subject reported irregularities, &N) for failure to e*plain satisfactoril# wh#
he should not be cited for contempt 1Neri letter of 27 November 20092, herein attached2 O!ULO L. NEI is hereB'
cited in conte9.t o/ this 2sic3 Co99ittees and ordered arrested and detained in the O//ice o/ the Senate
Ser?eant<,t<,r9s until such ti9e that he Dill a..ear and ?ive his testi9on'.
!he "ergeantA&tA&rms is hereb# directed to carr# out and implement this -rder and ma$e a return hereof within twent#
four 12.2 hours from its enforcement
"- -R)%R%)
-n the same date, petitioner moved for the reconsideration of the above -rder
7
<e insisted that he has not shown Ian#
contemptible conduct worth# of contempt and arrestI <e emphasi:ed his willingness to testif# on new matters, however,
respondent (ommittees did not respond to his re+uest for advance notice of +uestions <e also mentioned the petition for
certiorari he filed on )ecember 9, 2009 &ccording to him, this should restrain respondent (ommittees from enforcing the
show cause ?etter Ithrough the issuance of declaration of contemptI and arrest
In view of respondent (ommitteesV issuance of the contempt -rder, petitioner filed on 'ebruar# 6, 2008 a Su**le(ental Petition
"or Certiorari 18ith 9rgent A**lication "or .R%:Preli(inar! 0n;unction2, see$ing to restrain the implementation of the said
contempt -rder
-n 'ebruar# 5, 2008, the (ourt issued a Status Quo Ante %r)er 1a2 enjoining respondent (ommittees from implementing their
conte(*t %r)er, 1B2 re+uiring the parties to observe the status +uo prevailing prior to the issuance of the assailed order, and 1c2
re+uiring respondent (ommittees to file their comment
Petitioner contends that respondent (ommitteesV show cause Letter and contempt -rder were issued with grave abuse of
discretion amounting to lac$ or e*cess of jurisdiction <e stresses that his conversations with President &rro#o are Icandid
discussions 9eant to eE.lore o.tions in 9a5in? .olic' decisionsI &ccording to him, these discussions IdDelt on the i9.act
o/ the BriBer' scandal involvin? hi?h ?overn9ent o//icials on the countr'Ms di.lo9atic relations and econo9ic and
9ilitar' a//airs and the .ossiBle loss o/ con/idence o/ /orei?n investors and lenders in the Phili..inesI <e also emphasi:es
that his claim of e*ecutive privilege is upon the order of the President and within the parameters laid down in Senate v$ #r(ita
60
and 9nite) States v$ Re!nol)s
66
?astl#, he argues that he is precluded from disclosing communications made
to him in official confidence under "ection 9
62
of Republic &ct No /96K, otherwise $nown as Co)e o" Con)uct an) #thical
Stan)ar)s "or Pu5lic %""icials an) #(*lo!ees, and "ection 2.
6K
1e2 of Rule 6K0 of the Rules of (ourt
Respondent (ommittees assert the contrar# !he# argue that 162 petitionerVs testimon# is material and pertinent in the
investigation conducted in ai) o" legislation0 122 there is no valid justification for petitioner to claim e*ecutive privilege0 1K2
there is no abuse of their authorit# to order petitionerVs arrest0 and 1.2 petitioner has not come to court with clean hands
In the oral argument held last ,arch ., 2008, the following issues were ventilatedD
1. 5hat communications between the President and petitioner Neri are covered b# the principle of Ve*ecutive
privilegeVR
1.a )id %*ecutive "ecretar# %rmita correctl# invo$e the principle of e*ecutive privilege, b# order of the
President, to cover 2i3 conversations of the President in the e*ercise of her e*ecutive and polic# decisionA
ma$ing and 2ii3 information, which might impair our diplomatic as well as economic relations with the
PeopleVs Republic of (hinaR
1.B. )id petitioner Neri correctl# invo$e e*ecutive privilege to avoid testif#ing on his conversations with the
President on the N4N contract on his assertions that the said conversations Ndealt Dith delicate and sensitive
national securit' and di.lo9atic 9atters relatin? to the i9.act o/ BriBer' scandal involvin? hi?h
?overn9ent o//icials and the .ossiBle loss o/ con/idence o/ /orei?n investors and lenders in the
Phili..inesN * * * within the principles laid down in "enate v %rmita 1.88 "(R& 6 N200/O2R
1.c 5ill the claim of e*ecutive privilege in this case violate the following provisions of the (onstitutionD
Sec. 2#) ,rt. II 1'ull public disclosure of all transactions involving public interest2
Sec. >) ,rt. III 1!he right of the people to information on matters of public concern2
Sec. 1) ,rt. 8I 1Public office is a public trust2
Sec. 1>) ,rt. 4II 1!he President shall ensure that the laws be faithfull# e*ecuted and the due process clause
and the principle of separation of powersR
2. 5hat is the proper procedure to be followed in invo$ing e*ecutive privilegeR
(. )id the "enate (ommittees gravel# abuse their discretion in ordering the arrest of petitioner for nonAcompliance with
the subpoenaR
&fter the oral argument, the parties were directed to manifest to the (ourt within twent#Afour 12.2 hours if the# are amenable to
the (ourtVs proposal of allowing petitioner to immediatel# resume his testimon# before the "enate (ommittees to answer the
other +uestions of the "enators without prejudice to the decision on the merits of this pending petition It was understood that
petitioner ma# invo$e e*ecutive privilege in the course of the "enate (ommittees proceedings, and if the respondent
(ommittees disagree thereto, the unanswered +uestions will be the subject of a supplemental pleading to be resolved along with
the three 1K2 +uestions subject of the present petition
6.
&t the same time, respondent (ommittees were directed to submit
several pertinent documents
65

!he "enate did not agree with the proposal for the reasons stated in the ,anifestation dated ,arch 5, 2008 &s to the re+uired
documents, the "enate and respondent (ommittees manifested that the# would not be able to submit the latterVs I,inutes of all
meetingsI and the I,inute 4oo$I because it has never been the Ihistorical and traditional legislative practice to $eep themI
6/
!he# instead submitted the !ranscript of "tenographic Notes of respondent (ommitteesV joint public hearings
-n ,arch 69, 2008, the -ffice of the "olicitor General 1-"G2 filed a <otion "or Leave to 0ntervene an) to A)(it Attache)
<e(oran)u(, founded on the following argumentsD
213 !he communications between petitioner and the President are covered b# the principle of Ie*ecutive privilegeI
223 Petitioner was not summoned b# respondent "enate (ommittees in accordance with the lawAma$ing bod#Vs power
to conduct in+uiries in aid of legislation as laid down in "ection 26, &rticle ;I of the (onstitution and Senate v$ #r(ita
2(3 Respondent "enate (ommittees gravel# abused its discretion for alleged nonAcompliance with the Su5*oena dated
November 6K, 2009
!he (ourt granted the -"GVs motion the ne*t da#, ,arch 68, 2008
&s the foregoing facts unfold, related events transpired
-n ,arch /, 2008, President &rro#o issued ,emorandum (ircular No 656, revo$ing %*ecutive -rder No ./. and
,emorandum (ircular No 608 "he advised e*ecutive officials and emplo#ees to follow and abide b# the (onstitution, e*isting
laws and jurisprudence, including, among others, the case of Senate v$ #r(ita
69
when the# are invited to legislative in+uiries in
ai) o" legislation
&t the core of this controvers# are the two 122 crucial +ueries, to witD
First, are the communications elicited b# the subject three 1K2 +uestions covered b# e*ecutive privilegeR
And second, did respondent (ommittees commit grave abuse of discretion in issuing the contempt OrderR
5e grant the petition
&t the outset, a glimpse at the landmar$ case of Senate v$ #r(ita
68
becomes imperative Senate draws in bold stro$es the
distinction between the le?islative and oversi?ht powers of the (ongress, as embodied under "ections 26 and 22, respectivel#,
of &rticle ;I of the (onstitution, to witD
"%(!I-N 26 !he "enate or the <ouse of Representatives or an# of its respective committees ma# conduct in+uiries in
aid o/ le?islation in accordance with its dul# published rules of procedure !he rights of persons appearing in or
affected b# such in+uiries shall be respected
"%(!I-N 22 !he heads of department ma# upon their own initiative, with the consent of the President, or upon the
re+uest of either <ouse, or as the rules of each <ouse shall provide, appear before and be heard b# such <ouse on an#
matter pertaining to their departments 5ritten +uestions shall be submitted to the President of the "enate or the
"pea$er of the <ouse of Representatives at least three da#s before their scheduled appearance Interpellations shall not
be limited to written +uestions, but ma# cover matters related thereto 5hen the securit# of the state or the public
interest so re+uires and the President so states in writing, the appearance shall be conducted in e*ecutive session
Senate cautions that while the above provisions are closel# related and complementar# to each other, the# should not be
considered as pertaining to the same power of (ongress "ection 26 relates to the power to conduct in+uiries in ai) o"
legislation Its aim is to elicit information that ma# be used for legislation -n the other hand, "ection 22 pertains to the power
to conduct a +uestion hour, the objective of which is to obtain information in pursuit of (ongressV oversight function
67
"impl#
stated, while both powers allow (ongress or an# of its committees to conduct in+uir#, their oBCectives are different
!his distinction gives birth to another distinction with regard to the use of compulsor# process @nli$e in "ection 26, (ongress
cannot compel the appearance of e*ecutive officials under "ection 22 !he (ourtVs pronouncement in Senate v$ #r(ita
20
is clearD
5hen (ongress merel# see$s 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 (hief %*ecutive, such
department heads must give a report of their performance as a matter of dut# In such instances, "ection 22, in $eeping
with the separation of powers, states that (ongress ma# onl# re'uest their appearance Nonetheless, when the in+uir# in
which (ongress re+uires their appearance is Vin aid of legislationV under "ection 26, the appearance is (an)ator! for the
same reasons stated in Arnault
In /ine) the oversi?ht /unction o/ Con?ress 9a' Be /acilitated B' co9.ulsor' .rocess onl' to the eEtent that it is
.er/or9ed in .ursuit o/ le?islation !his is consistent with the intent discerned from the deliberations of the
(onstitutional (ommission
@ltimatel#, the power of (ongress to compel the appearance of e*ecutive officials under section 26 and the lac$ of it
under "ection 22 find their basis in the principle of separation of powers 5hile the e*ecutive branch is a coAe+ual
branch of the legislature, it cannot frustrate the power of (ongress to legislate b# refusing to compl# with its demands
for information 1%mphasis supplied2
!he availabilit# of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v$ #r(ita,
when it heldD
&s evidenced b# the &merican e*perience during the soAcalled I,c(arth# era,I however, the right of (ongress to
conduct in+uiries in aid of legislation is, in theor#, no less susceptible to abuse than e*ecutive or judicial power It ma#
thus be subjected to judicial review pursuant to the (ourtVs certiorari powers under "ection 6, &rticle ;III of the
(onstitution
<ence, this decision
I
The Communications Elicited by the Three (3) Questions are Covered by Executive rivile!e
5e start with the basic premises where the parties have conceded
!he power of (ongress to conduct in+uiries in ai) o" legislation is broad !his is based on the proposition that a legislative bod#
cannot legislate wisel# or effectivel# in the absence of information respecting the conditions which the legislation is intended to
affect or change
26
Inevitabl#, adjunct thereto is the compulsor# process to enforce it 4ut, the power, broad as it is, has
limitations !o be valid, it is imperative that it is done in accordance with the "enate or <ouse dul# published rules of procedure
and that the rights of the persons appearing in or affected b# such in+uiries be respected
!he power e*tends even to e*ecutive officials and the onl# wa# for them to be e*empted is through a valid claim of e*ecutive
privilege
22
!his directs us to the consideration of the +uestion AA is there a reco?niLed clai9 o/ eEecutive .rivile?e des.ite the
revocation o/ E.O. JFJK
A" There is a #eco!ni$ed Claim o% Executive rivile!e &es'ite the #evocation o% E()( *+*
&t this juncture, it must be stressed that the revocation of %- ./. does not in an# wa# diminish our concept of e*ecutive
privilege !his is because this concept has (onstitutional underpinnings @nli$e the @nited "tates which has further accorded
the concept with statutor# status b# enacting the =ree)o( o" 0n"or(ation Act
2K
and the =e)eral A)visor! Co((ittee Act,
2.
the
Philippines has retained its constitutional origination, occasionall# interpreted onl# b# this (ourt in various cases !he most
recent of these is the case of Senate v$ #r(ita where this (ourt declared unconstitutional substantial portions of %- ./. In this
regard, it is worth# to note that %*ecutive %rmitaVs ?etter dated November 65, 2009 limits its bases for the claim of e*ecutive
privilege to Senate v$ #r(ita, Al(onte v$ 6as'ue7,
25
and Chave7 v$ P#A
2/
!here was never a mention of %- ./.
5hile these cases, especiall# Senate v$ #r(ita,
29
have comprehensivel# discussed the concept of e*ecutive privilege, we deem it
imperative to e*plore it once more in view of the clamor for this (ourt to clearl# define the communications covered b#
e*ecutive privilege
!he >i,on and *ost?8atergate cases established the broad contours of the .residential co99unications .rivile?e
28
In 9nite)
States v$ >i,on,
27
the @" (ourt recogni:ed a great public interest in preserving Ithe con/identialit' o/ conversations that ta5e
.lace in the PresidentMs .er/or9ance o/ his o//icial dutiesI It thus considered presidential communications as
I.resu9.tivel' .rivile?edI &pparentl#, the presumption is founded on the IPresidentMs ?eneraliLed interest in
con/identialit'I !he privilege is said to be necessar# to guarantee the candor of presidential advisors and to provide Ithe
President and those Dho assist hi9O Dith /reedo9 to eE.lore alternatives in the .rocess o/ sha.in? .olicies and 9a5in?
decisions and to do so in a Da' 9an' Dould Be unDillin? to eE.ress eEce.t .rivatel'I
In 0n Re@ Seale) Case,
K0
the @" (ourt of &ppeals delved deeper It ruled that there are two 122 $inds of e*ecutive privilege0 one
is the .residential co99unications .rivile?e and) the other is the deliBerative .rocess .rivile?e !he former pertains to
Ico99unications) docu9ents or other 9aterials that re/lect .residential decision<9a5in? and deliBerations and that the
President Believes should re9ain con/identialI !he latter includes Vadvisor' o.inions) reco99endations and deliBerations
co9.risin? .art o/ a .rocess B' Dhich ?overn9ental decisions and .olicies are /or9ulatedI
&ccordingl#, the# are characteri:ed b# mar$ed distinctions Presidential co99unications .rivile?e applies to decision<
9a5in? o/ the President while, the deliBerative .rocess .rivile?e, to decision<9a5in? o/ eEecutive o//icials !he first is
rooted in the constitutional principle of separation of power and the PresidentVs uni+ue constitutional role0 the second on
common law privilege @nli$e the deliBerative .rocess .rivile?e, the .residential co99unications .rivile?e applies to
docu9ents in their entiret') and covers /inal and .ost<decisional 9aterials as Dell as .re<deliBerative ones
K6
&s a
conse+uence, congressional or judicial negation of the .residential co99unications .rivile?e is alwa#s subject to greater
scrutin# than denial of the deliBerative .rocess .rivile?e
!urning on who are the officials covered b# the .residential co99unications .rivile?e, 0n Re@ Seale) Case confines the
privilege onl# to 5hite <ouse "taff that has Ioperational pro*imit#I to direct presidential decisionAma$ing !hus, the privilege
is meant to encompass onl# those functions that form the core of presidential authorit#, involving what the court characteri:ed
as I+uintessential and nonAdelegable Presidential power,I such as commanderAinAchief power, appointment and removal power,
the power to grant pardons and reprieves, the soleAauthorit# to receive ambassadors and other public officers, the power to
negotiate treaties, etc
K2

!he situation in Eudicial 5atch, Inc v )epartment of Eustice
KK
tested the 0n Re@ Seale) Case principles !here, while the
presidential decision involved is the e*ercise of the PresidentVs pardon power, a nonAdelegable, coreApresidential function, the
)eput# &ttorne# General and the Pardon &ttorne# were deemed to be too remote from the President and his senior 5hite <ouse
advisors to be protected !he (ourt conceded that
functionall# those officials were performing a tas$ directl# related to the PresidentVs pardon power, but concluded that an
organi:ational test was more appropriate for confining the potentiall# broad sweep that would result from the 0n Re@ Seale)
CaseAs functional test !he majorit# concluded that, the lesser protections of the deliberative process privilege would suffice
!hat privilege was, however, found insufficient to justif# the confidentialit# of the .,K.6 withheld documents
4ut more specific classifications of communications covered b# e*ecutive privilege are made in older cases (ourts ruled earl#
that the %*ecutive has a right to withhold documents that might reveal 9ilitar' or state secrets,
K.
identit' o/ ?overn9ent
in/or9ers in so9e circu9stances,,
K5
and in/or9ation related to .endin? investi?ations
K/
&n area where the privilege is
highl# revered is in /orei?n relations In 9nite) States v$ Curtiss?8right #,*ort Cor*
K9
the @" (ourt, citing President George
5ashington, pronouncedD
!he nature of foreign negotiations re+uires caution, and their success must often depend on secrec#, and even when
brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which ma# have been
proposed or contemplated would be e*tremel# impolitic, for this might have a pernicious influence on future
negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers !he
necessit# of such caution and secrec# was one cogent reason for vesting the power of ma$ing treaties in the President,
with the advice and consent of the "enate, the principle on which the bod# was formed confining it to a small number
of members !o admit, then, a right in the <ouse of Representatives to demand and to have as a matter of course all the
papers respecting a negotiation with a foreign power would be to establish a dangerous precedent
,ajorit# of the above jurisprudence have found their wa# in our jurisdiction In Chave7 v$ PCBB
K8
, this (ourt held that there is
a Igovernmental privilege against public disclosure with respect to state secrets regarding militar#, diplomatic and other securit#
mattersI In Chave7 v$ P#A,
K7
there is also a recognition of the confidentialit# of Presidential conversations, correspondences,
and discussions in closedAdoor (abinet meetings In Senate v$ #r(ita, the concept of .residential co99unications .rivile?e is
full# discussed
&s ma# be gleaned from the above discussion, the claim of e*ecutive privilege is highl# recogni:ed in cases where the subject
of in+uir# relates to a power te*tuall# committed b# the (onstitution to the President, such as the area of militar# and foreign
relations @nder our (onstitution, the President is the repositor# of the commanderAinAchief,
.0
appointing,
.6
pardoning,
.2
and
diplomatic
.K
powers (onsistent with the doctrine of separation of powers, the information relating to these powers ma# enjo#
greater confidentialit# than others
!he above cases, especiall#, >i,onC 0n Re Seale) Case and Du)icial 8atch, somehow provide the elements of .residential
co99unications .rivile?e, to witD
62 !he protected communication must relate to a I+uintessential and nonAdelegable presidential powerI
22 !he communication must be authored or Isolicited and receivedI b# a close advisor of the President or the President
himself !he judicial test is that an advisor must be in Ioperational pro*imit#I with the President
K2 !he .residential co99unications .rivile?e remains a +ualified privilege that ma# be overcome b# a showing of
ade+uate need, such that the information sought Ili$el# contains important evidenceI and b# the unavailabilit# of the
information elsewhere b# an appropriate investigating authorit#
..

In the case at bar, %*ecutive "ecretar# %rmita premised his claim of e*ecutive privilege on the ground that the communications
elicited b# the three 1K2 +uestions Ifall under conversation and correspondence between the President and public officialsI
necessar# in Iher e*ecutive and polic# decisionAma$ing processI and, that Ithe information sought to be disclosed might impair
our diplomatic as well as economic relations with the PeopleVs Republic of (hinaI "impl# put, the bases are .residential
co99unications .rivile?e and e*ecutive privilege on matters relating to di.lo9ac' or /orei?n relations
@sing the above elements, we are convinced that, indeed, the communications elicited b# the three 1K2 +uestions are covered b#
the .residential co99unications .rivile?e First, the communications relate to a I+uintessential and nonAdelegable powerI of
the President, ie the power to enter into an e*ecutive agreement with other countries !his authorit# of the President to enter
into e,ecutive agree(ents without the concurrence of the ?egislature has traditionall# been recogni:ed in Philippine
jurisprudence
.5
,econd, the communications are IreceivedI b# a close advisor of the President @nder the Ioperational
pro*imit#I test, petitioner can be considered a close advisor, being a member of President &rro#oVs cabinet &nd third, there is
no ade+uate showing of a compelling need that would justif# the limitation of the privilege and of the unavailaBilit' of the
information elsewhere b# an appropriate investigating authorit#
!he third element deserves a length# discussion
9nite) States v$ >i,on held that a claim of e*ecutive privilege is subject to Balancin? a?ainst other interest In other words,
confidentialit# in e*ecutive privilege is not aBsolutel' protected b# the (onstitution !he @" (ourt heldD
NNOeither the doctrine of separation of powers, nor the need for confidentialit# of highAlevel communications, without
more, can sustain an absolute, un+ualified Presidential privilege of immunit# from judicial process under all
circumstances
!he foregoing is consistent with the earlier case of >i,on v$ Sirica,
./
where it was held that .residential co99unications are
presumptivel# privileged and that the presumption can be overcome onl# b# mere showing of public need b# the branch see$ing
access to conversations !he courts are enjoined to resolve the competing interests of the political branches of the government
Iin the manner that preserves the essential functions of each 4ranchI
.9
<ere, the record is bereft of an# categorical e*planation
from respondent (ommittees to show a compelling or citical need for the answers to the three 1K2 +uestions in the enactment of
a law Instead, the +uestions veer more towards the e*ercise of the legislative oversight function under "ection 22 of &rticle ;I
rather than "ection 26 of the same &rticle Senate v$ #r(ita ruled that the Ithe oversi?ht /unction o/ Con?ress 9a' Be
/acilitated B' co9.ulsor' .rocess onl' to the eEtent that it is .er/or9ed in .ursuit o/ le?islationI It is conceded that it is
difficult to draw the line between an in+uir# in ai) o" legislation and an in+uir# in the e*ercise of oversight function of
(ongress In this regard, much will depend on the content of the +uestions and the manner the in+uir# is conducted
Respondent (ommittees argue that a claim of e*ecutive privilege does not guard against a possible disclosure of a crime or
wrongdoing 5e see no dispute on this It is settled in 9nite) States v$ >i,on
.8
that Idemonstrated, specific need for evidence in
.endin? cri9inal trialI outweighs the PresidentVs Igenerali:ed interest in confidentialit#I <owever, the present caseVs
distinction with the >i,on case is ver# evident In >i,on, there is a pending criminal proceeding where the information is
re+uested and it is the demands of due process of law and the fair administration of criminal justice that the information be
disclosed !his is the reason wh# the @" (ourt was +uic$ to Ili9it the sco.e o/ its decisionI It stressed that it is Inot
concerned here Dith the Balance BetDeen the PresidentMs ?eneraliLed interest in con/identialit' E E E and con?ressional
de9ands /or in/or9ationI @nli$e in Ni*on, the information here is elicited, not in a criminal proceeding, but in a legislative
in+uir# In this regard, "enate v %rmita stressed that the validit# of the claim of e*ecutive privilege depends not onl# on the
ground invo$ed but, also, on the .rocedural settin? or the conteEt in which the claim is made 'urthermore, in >i,on, the
President did not interpose an# claim of need to protect militar#, diplomatic or sensitive national securit# secrets In the present
case, %*ecutive "ecretar# %rmita categoricall# claims e*ecutive privilege on the grounds of .residential co99unications
.rivile?e in relation to her e*ecutive and polic# decisionAma$ing process and diplomatic secrets
!he respondent (ommittees should cautiousl# tread into the investigation of matters which ma# present a conflict of interest
that ma# provide a ground to inhibit the "enators participating in the in+uir# if later on an impeachment proceeding is initiated
on the same subject matter of the present "enate in+uir# Pertinentl#, in Senate Select Co((ittee on Presi)ential Ca(*aign
Activities v$ >i,on,
.7
it was held that since an impeachment proceeding had been initiated b# a <ouse (ommittee, the "enate
"elect (ommitteeVs immediate oversight need for five presidential tapes should give wa# to the <ouse Eudiciar# (ommittee
which has the constitutional authorit# to in+uire into presidential impeachment !he (ourt e*pounded on this issue in this wiseD
It is true, of course, that the %*ecutive cannot, an# more than the other branches of government, invo$e a general
confidentialit# privilege to shield its officials and emplo#ees from investigations b# the proper governmental
institutions into possible criminal wrongdoing !he (ongress learned this as to its own privileges in Bravel v$ 9nite)
States, as did the judicial branch, in a sense, in ClarE v$ 9nite) States, and the e*ecutive branch itself in >i,on v$ Sirica
0ut under -ixon v( ,irica) the shoDin? reGuired to overco9e the .resu9.tion /avorin? con/identialit' turned,
not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and
a..ro.riateness o/ the /unction in the .er/or9ance o/ Dhich the 9aterial Das sou?ht) and the de?ree to Dhich
the 9aterial Das necessar' to its /ul/ill9ent. Here also our tas5 reGuires and our decision i9.lies no Cud?9ent
Dhatever concernin? .ossiBle .residential involve9ent in cul.aBle activit'. On the contrar') De thin5 the
su//icienc' o/ the Co99itteeMs shoDin? 9ust de.end solel' on Dhether the suB.oenaed evidence is de9onstraBl'
critical to the res.onsiBle /ul/ill9ent o/ the Co99itteeMs /unctions
In its initial briefs here, the (ommittee argued that it has shown e*actl# this It contended that resolution, on the basis
of the subpoenaed tapes, of the conflicts in the testimon# before it Vwould aid in a determination whether legislative
involvement in political campaigns is necessar#V and Vcould help engender the public support needed for basic reforms
in our electoral s#stemV ,oreover, (ongress has, according to the (ommittee, power to oversee the operations of the
e*ecutive branch, to investigate instances of possible corruption and malfeasance in office, and to e*pose the results of
its investigations to public view !he (ommittee sa#s that with respect to 5atergateArelated matters, this power has
been delegated to it b# the "enate, and that to e*ercise its power responsibl#, it must have access to the subpoenaed
tapes
5e turn first to the latter contention In the circumstances of this case, we need neither den# that the (ongress ma#
have, +uite apart from its legislative responsibilities, a general oversight power, nor e*plore what the lawful reach of
that power might be under the (ommitteeVs constituent resolution "ince passage of that resolution, the <ouse
(ommittee on the Eudiciar# has begun an in+uir# into presidential impeachment !he investigative authorit# of the
Eudiciar# (ommittee with respect to presidential conduct has an e*press constitutional source * * * 6e have Been
shoDn no evidence indicatin? that Con?ress itsel/ attaches an' .articular value to this interest. In these
circu9stances) De thin5 the need /or the ta.es .re9ised solel' on an asserted .oDer to investi?ate and in/or9
cannot Custi/' en/orce9ent o/ the Co99itteeMs suB.oena.
!he sufficienc# of the (ommitteeVs showing of need has come to depend, therefore, entirel# on whether the subpoenaed
materials are critical to the performance of its legislative functions !here is a clear difference between (ongressV
legislative tas$s and the responsibilit# of a grand jur#, or an# institution engaged in li$e functions 6hile /act</indin?
B' a le?islative co99ittee is undeniaBl' a .art o/ its tas5) le?islative Cud?9ents nor9all' de.end 9ore on the
.redicted conseGuences o/ .ro.osed le?islative actions and their .olitical acce.taBilit') than on .recise
reconstruction o/ .ast events0 (ongress fre+uentl# legislates on the basis of conflicting information provided in its
hearings In contrast, the responsibilit# of the grand jur# turns entirel# on its abilit# to determine whether there is
probable cause to believe that certain named individuals did or did not commit specific crimes If, for e*ample, as in
>i,on v$ Sirica, one of those crimes is perjur# concerning the content of certain conversations, the grand jur#Vs need for
the most precise evidence, the e*act te*t of oral statements recorded in their original form, is undeniable 6e see no
co9.araBle need in the le?islative .rocess) at least not in the circu9stances o/ this case Indeed, whatever force
there might once have been in the (ommitteeVs argument that the subpoenaed materials are necessar# to its legislative
judgments has been substantiall# undermined b# subse+uent events 1%mphasis supplied2
Respondent (ommittees further contend that the grant of petitionerVs claim of e*ecutive privilege violates the constitutional
provisions on the right of the people to information on matters of public concern
50
5e might have agreed with such contention
if petitioner did not appear before them at all 4ut petitioner made himself available to them during the "eptember 2/ hearing,
where he was +uestioned for eleven 1662 hours Not onl# that, he e*pressl# manifested his willingness to answer more +uestions
from the "enators, with the e*ception onl# of those covered b# his claim of e*ecutive privilege
!he right to public information, li$e an# other right, is subject to limitation "ection 9 of &rticle III providesD
!he right of the people to information on matters of public concern shall be recogni:ed &ccess 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 polic# development, shall be afforded the citi:en, suBCect to such li9itations as 9a' Be .rovided B'
laD
!he provision itself e*pressl# provides the limitation, ie as 9a' Be .rovided B' laD "ome of these laws are "ection 9 of
Republic &ct 1R&2 No /96K,
56
&rticle 227
52
of the Revised Penal (ode, "ection K 1$2
5K
of R& No K067, and "ection 2.1e2
5.
of
Rule 6K0 of the Rules of (ourt !hese are in addition to what our bod# of jurisprudence classifies as confidential
55
and what our
(onstitution considers as belonging to the larger concept of e*ecutive privilege (learl#, there is a recogni:ed public interest in
the confidentialit# of certain information 5e find the information subject of this case belonging to such $ind
,ore than an#thing else, though, the right of (ongress or an# of its (ommittees to obtain information in ai) o" legislation
cannot be e+uated with the peopleVs right to public information !he former cannot claim that ever# legislative in+uir# is an
e*ercise of the peopleVs right to information !he distinction between such rights is laid down in Senate v$ #r(itaD
!here are, it bears noting, clear distinctions between the right of (ongress to information which underlies the power of
in+uir# and the right of people to information on matters of public concern 'or one, the demand of a citi:en for the
production of documents pursuant to his right to information does not have the same obligator# force as a su5*oena
)uces tecu( issued b# (ongress Neither does the right to information grant a citi:en the power to e*act testimon# from
government officials !hese powers belong onl# to (ongress, not to an individual citi:en
Thus) Dhile Con?ress is co9.osed o/ re.resentatives elected B' the .eo.le) it does not /olloD) eEce.t in a hi?hl'
Guali/ied sense) that in ever' eEercise o/ its .oDer o/ inGuir') the .eo.le are eEercisin? their ri?ht to in/or9ation.
!he members of respondent (ommittees should not invo$e as justification in their e*ercise of power a right properl# belonging
to the people in general !his is because when the# discharge their power, the# do so as public officials and members of
(ongress 4e that as it ma#, the right to information must be balanced with and should give wa#, in appropriate cases, to
constitutional precepts particularl# those pertaining to delicate interpla# of e*ecutiveAlegislative powers and privileges which is
the subject of careful review b# numerous decided cases
." The Claim o% Executive rivile!e is ro'erly Invo/ed
5e now proceed to the issue AA 0hether the claim is 'ro'erly invo/ed by the resident( Eurisprudence teaches that for the claim
to be properl# invo$ed, there must be a formal claim of privilege, lodged b# the head of the department which has control over
the matterI
5/
& formal and proper claim of e*ecutive privilege re+uires a Iprecise and certain reasonI for preserving their
confidentialit#
59

!he ?etter dated November 69, 2009 of %*ecutive "ecretar# %rmita satisfies the re+uirement It serves as the formal claim of
privilege !here, he e*pressl# states that Ithis O//ice is constrained to invo5e the settled doctrine o/ eEecutive .rivile?e as
re/ined in ,enate v( Ermita) and has advised Secretar' Neri accordin?l'I -bviousl#, he is referring to the -ffice of the
President !hat is more than enough compliance In Senate v$ #r(ita, a less categorical letter was even adjudged to be sufficient
5ith regard to the e*istence of Iprecise and certain reason,I we find the grounds relied upon b# %*ecutive "ecretar# %rmita
specific enough so as not Ito leave respondent (ommittees in the dar$ on how the re+uested information could be classified as
privilegedI !he case of Senate v$ #r(ita onl# re+uires that an allegation be made Iwhether the information demanded involves
militar# or diplomatic secrets, closedAdoor (abinet meetings, etcI !he particular ground must onl# be specified !he
enumeration is not even intended to be comprehensiveI
58
!he following statement of grounds satisfies the re+uirementD
!he conte*t in which e*ecutive privilege is being invo$ed is that the information sought to be disclosed might impair
our diplomatic as well as economic relations with the PeopleVs Republic of (hina Given the confidential nature in
which these information were conve#ed to the President, he cannot provide the (ommittee an# further details of these
conversations, without disclosing the ver# thing the privilege is designed to protect
&t an# rate, as held further in Senate v$ #r(ita,
57
the (ongress must not re+uire the e*ecutive to state the reasons for the claim
with such particularit# as to compel disclosure of the information which the privilege is meant to protect !his is a matter of
respect to a coordinate and coAe+ual department
II
#es'ondent Committees Committed 1rave Abuse o% &iscretion in Issuin! the Contem't )rder
Grave abuse of discretion means Isuch capricious and whimsical e*ercise of judgment as is e+uivalent to lac$ of jurisdiction, or,
in other words where the power is e*ercised in an arbitrar# or despotic manner b# reason of passion or personal hostilit# and it
must be so patent and gross as to amount to an evasion of positive dut# or to a virtual refusal to perform the dut# enjoined or to
act at all in contemplation of lawI
/0

It must be reiterated that when respondent (ommittees issued the show cause ?etter dated November 22, 2009, petitioner
replied immediatel#, manifesting that it was not his intention to ignore the "enate hearing and that he thought the onl#
remaining +uestions were the three 1K2 +uestions he claimed to be covered b# e*ecutive privilege In addition thereto, he
submitted &tt# 4autistaVs letter, stating that his nonAappearance was upon the order of the President and specif#ing the reasons
wh# his conversations with President &rro#o are covered b# e*ecutive privilege 0oth corres.ondences include an eE.ression
o/ his Dillin?ness to testi/' a?ain) .rovided he NBe /urnished in advanceN co.ies o/ the Guestions 5ithout responding to
his re+uest for advance list of +uestions, respondent (ommittees issued the -rder dated Eanuar# K0, 2008, citing him in
contempt of respondent (ommittees and ordering his arrest and detention at the -ffice of the "enate "ergeantA&tA&rms until
such time that he would appear and give his testimon# !hereupon, petitioner filed a motion for reconsideration, informing
respondent (ommittees that he had filed the present petition for certiorari
Respondent (ommittees committed grave abuse of discretion in issuing the contempt Order in view of five 152 reasons
First, there being a legitimate claim of e*ecutive privilege, the issuance of the contempt -rder suffers from constitutional
infirmit#
,econd, respondent (ommittees did not compl# with the re+uirement laid down in Senate v$ #r(ita that the invitations should
contain the Ipossible needed statute which prompted the need for the in+uir#,I along with Ithe usual indication of the subject of
in+uir# and the Guestions relative to and in furtherance thereofI (ompliance with this re+uirement is imperative, both under
"ections 26 and 22 of &rticle ;I of the (onstitution !his must be so to ensure that the rights of both persons a..earin? in or
a//ected b# such in+uir# are respected as mandated b# said "ection 26 and b# virtue of the e*press language of "ection 22
@nfortunatel#, despite petitionerVs repeated demands, respondent (ommittees did not send him an advance list of +uestions
Third, a reading of the transcript of respondent (ommitteesV Eanuar# K0, 2008 proceeding reveals that onl# a minorit# of the
members of the "enate 4lue Ribbon (ommittee was present during the deliberation
/6
"ection 68 of the Rules o" Proce)ure
Boverning 0n'uiries in Ai) o" Legislation provides thatD
I!he (ommittee, B' a vote o/ 9aCorit' of all its members, ma# punish for contempt an# witness before it who
disobe#s an# order of the (ommittee or refuses to be sworn or to testif# or to answer proper +uestions b# the
(ommittee or an# of its membersI
(learl#, the needed vote is a 9aCorit' of all the members of the (ommittee &pparentl#, members who did not actuall#
participate in the deliberation were made to sign the contempt -rder !hus, there is a cloud of doubt as to the validit# of the
contempt -rder dated Eanuar# K0, 2008 5e +uote the pertinent portion of the transcript, thusD
THE CH,I!,N 2SEN. C,1ET,NO) ,3. +or clari/ication. E E E The Chair Dill call either a caucus or Dill as5
the Co99ittee on ules i/ there is a .roBle9. !eanin?) i/ De do not have the su//icient nu9Bers. 0ut i/ De have
a su//icient nu9Ber) De Dill Cust hold a caucus to Be aBle to i9.le9ent that ri?ht aDa' BecauseO,?ain) our
ules .rovide that an' one held in conte9.t and ordered arrested) need the concurrence o/ a 9aCorit' o/ all
9e9Bers o/ the said co99ittee and De have three co99ittees conductin? this.
"o than$ #ou ver# much to the membersP
SEN. PI!ENTEL. !r. Chair9an.
THE CH,I!,N 2SEN. C,1ET,NO),3. !a' I reco?niLe the !inorit' Leader and ?ive hi9 the /loor) Senator
Pi9entel.
SEN. PI!ENTEL. !r. Chair9an) there is no .roBle9) I thin5) Dith consultin? the other co99ittees. 0ut I a9
o/ the o.inion that the 0lue iBBon Co99ittee is the lead co99ittee) and there/ore) it should have .re/erence in
en/orcin? its oDn decisions. !eanin? to sa') it is not so9ethin? that is suBCect to consultation Dith other
co99ittees. I a9 not sure that is the ri?ht inter.retation. I thin5 that once De decide here) De en/orce Dhat De
decide) Because otherDise) Be/ore De 5noD it) our deter9ination is Datered doDn B' dela' and) 'ou 5noD) the
so<called NconsultationN that inevitaBl' Dill have to ta5e .lace i/ De /olloD the .re9ise that has Been eE.lained.
"o m# suggestion, ,r (hairman, is the 4lue Ribbon (ommittee should not forget itVs the lead committee here, and
therefore, the will of the lead committee prevails over all the other, #ou, $now reservations that other committees might
have who are onl# secondar# or even tertiar# committees, ,r (hairman
THE CH,I!,N 2SEN. C,1ET,NO) ,.3 !han$ #ou ver# much to the ,inorit# ?eader &nd I agree with the
wisdom of his statements I was merel# mentioning that under "ection / of the Rules of the (ommittee and under
"ection /, I!he (ommittee b# a vote of a majorit# of all its members ma# punish for contempt an# witness before it
who disobe#s an# order of the (ommitteeI
"o the 4lue Ribbon (ommittee is more than willing to ta$e that responsibilit# 0ut De onl' have siE 9e9Bers here
toda') I a9 the seventh as chair and so De have not 9et that nu9Ber "o I am merel# stating that, sir, that when we
will prepare the documentation, if a majorit# of all members sign and I am following the "abio v Gordon rule wherein
I do believe, if I am not mista$en, (hairman Gordon prepared the documentation and then either in caucus or in session
as$ed the other members to sign &nd once the signatures are obtained, solel# for the purpose that "ecretar# Neri or ,r
?o:ada will not be able to legall# +uestion our subpoena as being insufficient in accordance with law
SEN. PI!ENTEL ,r (hairman, the caution that the chair is suggesting is ver# wellAta$en 4ut IVd li$e to advert to
the fact that the +uorum of the committee is onl# two as far as I remember &n# twoAmember senators attending a
"enate committee hearing provide that +uorum, and therefore there is more than a +uorum demanded b# our Rules as
far as we are concerned now, and acting as 4lue Ribbon (ommittee, as "enator %nrile pointed out In an# event, the
signatures that will follow b# the additional members will onl# tend to strengthen the determination of this (ommittee
to put its foot forward = put down on what is happening in this countr#, ,r (hairman, because it reall# loo$s terrible if
the primar# (ommittee of the "enate, which is the 4lue Ribbon (ommittee, cannot even sanction people who openl#
def#, #ou $now, the summons of this (ommittee I $now that the (hair is going through an agoni:ing moment here I
$now that 4ut nonetheless, I thin$ we have to uphold, #ou $now, the institution that we are representing because the
alternative will be a disaster for all of us, ,r (hairman "o having said that, IVd li$e to reiterate m# point
THE CH,I!,N 2SEN. C,1ET,NO) ,.3 'irst of all, I agree 600 percent with the intentions of the ,inorit#
?eader 0ut let 9e ver' res.ect/ull' disa?ree Dith the le?al reGuire9ents. 0ecause) 'es) De can have a hearin? i/
De are onl' tDo But Both under Section 1# o/ the ules o/ the Senate and under Section F o/ the ules o/ the 0lue
iBBon Co99ittee) there is a need /or a 9aCorit' o/ all 9e9Bers i/ it is a case o/ conte9.t and arrest "o, I am
simpl# tr#ing to avoid the court rebu$ing the (ommittee, which will instead of strengthening will wea$en us 4ut I do
agree, ,r ,inorit# ?eader, that we should push for this and show the e*ecutive branch that the wellAdecided = the
issue has been decided upon the "abio versus Gordon case &nd itVs ver# clear that we are all allowed to call witnesses
&nd if the# refure or the# disobe# not onl# can we cite them in contempt and have them arrested * * *
/2

Fourth, we find merit in the argument of the -"G that respondent (ommittees li$ewise violated "ection 26 of &rticle ;I of the
(onstitution, re+uiring that the in+uir# be in accordance with the Idul' .uBlished rules o/ .rocedureI 5e +uote the -"GVs
e*planationD
!he phrase Vdul# published rules of procedureV re+uires the "enate of ever# (ongress to publish its rules of procedure
governing in+uiries in aid of legislation because ever# "enate is distinct from the one before it or after it "ince
"enatorial elections are held ever# three 1K2 #ears for oneAhalf of the "enateVs membership, the composition of the
"enate also changes b# the end of each term %ach "enate ma# thus enact a different set of rules as it ma# deem fit Not
havin? .uBlished its #ules o% rocedure) the suBCect hearin?s in aid o/ le?islation conducted B' the 1J
th
Senate)
are there/ore) .rocedurall' in/ir9
And %i%th, respondent (ommitteesV issuance of the contempt -rder is arbitrar# and precipitate It must be pointed out that
respondent (ommittees did not /irst pass upon the claim of e*ecutive privilege and inform petitioner of their ruling Instead,
the# curtl# dismissed his e*planation as Iunsatisfactor#I and simultaneousl# issued the -rder citing him in contempt and
ordering his immediate arrest and detention
& fact worth highlighting is that .etitioner is not an unDillin? Ditness <e manifested several times his readiness to testif#
before respondent (ommittees <e refused to answer the three 1K2 +uestions because he was ordered b# the President to claim
e*ecutive privilege It behooves respondent (ommittees to first rule on the claim of e*ecutive privilege and inform petitioner of
their finding thereon, instead of peremptoril# dismissing his e*planation as Iunsatisfactor#I @ndoubtedl#, respondent
(ommitteesV actions constitute grave abuse of discretion for being arbitrar# and for den#ing petitioner due process of law !he
same +ualit# afflicted their conduct when the# 1a2 disregarded petitionerVs motion for reconsideration alleging that he had filed
the present petition before this (ourt and 1b2 ignored petitionerVs repeated re+uest for an advance list of +uestions, if there be
an# aside from the three 1K2 +uestions as to which he claimed to be covered b# e*ecutive privilege
%ven the courts are repeatedl# advised to e*ercise the power of contempt judiciousl# and sparingl# with utmost selfArestraint
with the end in view of utili:ing the same for correction and preservation of the dignit# of the court, not for retaliation or
vindication
/K
Respondent (ommittees should have e*ercised the same restraint, after all petitioner is not even an ordinar#
witness <e holds a high position in a coAe+ual branch of government
In this regard, it is important to mention that man# incidents of judicial review could have been avoided if powers are
discharged with circumspection and deference (oncomitant with the doctrine of separation of powers is the mandate to observe
respect to a coAe+ual branch of the government
-ne last word
!he (ourt was accused of attempting to abandon its constitutional dut# when it re+uired the parties to consider a proposal that
would lead to a possible compromise !he accusation is far from the truth !he (ourt did so, onl# to test a tool that other
jurisdictions find to be effective in settling similar cases, to avoid a piecemeal consideration of the +uestions for review and to
avert a constitutional crisis between the e*ecutive and legislative branches of government
In 9nite) States v$ A(erican .el$ 4 .el Co,
/.
the court refrained from deciding the case because of its desire to avoid a
resolution that might disturb the balance of power between the two branches and inaccuratel# reflect their true needs Instead, it
remanded the record to the )istrict (ourt for further proceedings during which the parties are re+uired to negotiate a settlement
In the subse+uent case of 9nite) States v$ A(erican .el$ 4.el Co,
/5
it was held that Imuch of this spirit of compromise is
reflected in the generalit# of language found in the (onstitutionI It proceeded to stateD
@nder this view, the coordinate branches do not e*ist in an e*clusivel# adversar# relationship to one another when a
conflict in authorit# arises Rather each branch should ta$e cogni:ance of an implicit constitutional mandate to see$
optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact
situation
It thereafter concluded thatD IThe Se.aration o/ PoDers o/ten i9.airs e//icienc') in ter9s o/ dis.atch and the i99ediate
/unctionin? o/ ?overn9ent. It is the lon?<ter9 sta'in? .oDer o/ ?overn9ent that is enhanced B' the 9utual
acco99odation reGuired B' the se.aration o/ .oDersI
In rendering this decision, the (ourt emphasi:es once more that the basic principles of constitutional law cannot be
subordinated to the needs of a particular situation &s magistrates, our mandate is to rule objectivel# and dispassionatel#, alwa#s
mindful of ,r Eustice <olmesV warning on the dangers inherent in cases of this nature, thusD
Isome accident of immediate and overwhelming interestPappeals to the feelings and distorts the judgment !hese
immediate interests e*ercise a $ind of h#draulic pressure which ma$es what previousl# was clear seem doubtful, and
before which even well settled principles of law will bendI
//
In this present crusade to Isearch for truth,I we should turn to the fundamental constitutional principles which underlie our
tripartite s#stem of government, where the ?egislature enacts the law, the Eudiciar# interprets it and the %*ecutive implements
it !he# are considered separate, coAe+ual, coordinate and supreme within their respective spheres but, imbued with a s#stem of
chec$s and balances to prevent unwarranted e*ercise of power !he (ourtVs mandate is to preserve these constitutional
principles at all times to $eep the political branches of government within constitutional bounds in the e*ercise of their
respective powers and prerogatives, even if it be in the search for truth !his is the onl# wa# we can preserve the stabilit# of our
democratic institutions and uphold the Rule of ?aw
6HEE+OE) the .etition is hereB' ",NTED. !he subject -rder dated Eanuar# K0, 2008, citing petitioner Romulo ?
Neri in contempt of the "enate (ommittees and directing his arrest and detention, is hereb# nullified
",CILL,NO vs. HOUSE O+ EPESENT,TI4ES 2".. No. 1>$((# ) Dece9Ber 2() 2$$#3
+,CTS:
Garcillano 1in GR No 690KK82 filed a Petition for Prohibition to restrain the <ouse Representatives (ommittees from using the
tape recordings of the Iillegall# obtainedI wiretapped conversations in their committee reports and for an# other purpose <e further
implored that the said recordings and an# reference thereto be ordered stric$en off the records of the in+uir#, and the respondent
<ouse (ommittees directed to desist from further using the recordings in an# of the <ouse proceedings Ranada and &gcaoili 1in
GR No 6972952, retired justices of the (&, filed a Petition for Prohibition to bar the "enate from conducting its
scheduled legislative in+uir# !he# argued in the main that the intended legislative in+uir# violates R& No .200 and "ection K,
&rticle III of the (onstitution ,aj ?indsa# Re* "agge, a member of the I"&'P and one of the resource persons summoned b# the
"enate to appear and testif# at its hearings, moved to intervene as petitioner in GR No 697295 5hile both petitions involve the
I<ello GarciI recordings, the# have different objectives the first is poised at preventing the pla#ing of the tapes in the <ouse and
their subse+uent inclusion in the committee reports, and the second see$s to prohibit and stop the conduct of the "enate in+uir# on
the wiretapped conversation
ISSUES :
162 5-N petitioners have legal standing NH%"O 122 5-N there is an actual case or controvers# NN-D against the <ouse of Rep
H%"D against the "enateO
HELD:
1!he (ourt dismisses the first petition, GR No 690KK8, and grants the second, GR No 6972952
? - ( @ " " ! & N ) I
General RuleD ?egal standing or locus standi refers to a personal and substantial interest in a case such that the part# has sustained or
will sustain direct injur# because of the challenged governmental act * * *,I thus, generall#, a part# will be allowed to litigate onl#
when 162 he can show that he has personall# suffered some actual or threatened injur# because of the allegedl# illegal conduct of the
government0 122 the injur# is fairl# traceable to the challenged action0 and 1K2 the injur# is li$el# to be redressed b# a favorable
action %*ceptionM?iberal applicationD <owever, considering that locus standi is a mere procedural technicalit#, the (ourt, in
recent cases, has rela*ed the stringent direct injur# test
)avid v ,acapagalA&rro#o articulates that a Iliberal polic# has been observed, allowing ordinar# citi:ens, members of
(ongress, and civic organi:ations to prosecute actions involving the constitutionalit# or validit# of laws, regulations and rulings
Garcillano X direct injur# Ranada and &gcaoili X concerned citi:ens, ta*pa#ers, and members of the I4P Intervenor "agge X alleges
violation of his right to due process considering that he is summoned to attend the "enate hearings without being apprised not onl#
of his rights therein through the publication of the "enate Rules of Procedure Governing In+uiries in &id of ?egislation, but also of
the intended legislation which underpins the investigation <e further intervenes as a ta*pa#er bewailing the useless and wasteful
e*penditure of public funds involved in the conduct of the +uestioned hearings Given that petitioners Ranada and &gcaoili allege an
interest in the e*ecution of the laws and that intervenor "agge asserts his constitutional right to due process, the# satisf# the re+uisite
personal sta$e in the outcome of the controvers# b# merel# being citi:ens of the Republic ?i$ewise, a reading of the petition in GR
No 697295 shows that the petitioners and intervenor "agge advance constitutional issues which deserve the attention of this (ourt
in view of their seriousness, novelt# and weight as precedents !he issues are of transcendental and paramount importance not onl#
to the public but also to the 4ench and the 4ar, and should be resolved for the guidance of all
0n'uir! in Ai) o" Legislation Senate Rules o" Proce)ure
In 2005, tapes which allegedl# contained a conversation between G,& and (-,%?%( (ommissioner Garcillano surfaced
!he said conversation contained a plan to rig the elections to favor G,& !he recordings then became subject to legislative
hearings conducted separatel# b# each <ouse In his privilege speech, "en %scudero motioned a congressional investigation
jointl# conducted b# the (ommittees on Public Information, Public -rder and "afet#, National )efense and "ecurit#,
Information and (ommunications !echnolog#, and "uffrage and %lectoral Reforms 1respondent <ouse (ommittees2 )uring the
in+uir#, several versions of the wiretapped conversation emerged ?acson3s motion for a senate in+uir# was referred to the
(ommittee on National )efense and "ecurit# headed b# 4ia:on Garci subse+uentl# filed to petitions -ne to prevent the
pla#ing of the tapes in the each house for the# are alleged to be inadmi8ssible and the other to prohibit and stop the conduct of
the "enate in+uir# on the wiretapped conversation
ISSUE: 5hether or not to grant the petitions of Garci
HELD: Garci3s petition to stri$e the tapes off the record cannot be granted !he tapes were alread# pla#ed in (ongress and
those tapes were alread# highl# publici:ed !he issue is alread# overta$en b# these incidents hence it has become moot and
academic !he second petition must be granted however !he "enate cannot be allowed to continue with the conduct of the
+uestioned legislative in+uir# without dul# published rules of procedure, in clear derogation of the constitutional re+uirement
"ection 26, &rticle ;I of the 6789 (onstitution e*plicitl# provides that SNtOhe "enate or the <ouse of Representatives, or an# of
its respective committees ma# conduct in+uiries in aid of legislation in accor)ance with its )ul! *u5lishe) rules o" *roce)ureT
!he re+uisite of publication of the rules is intended to satisf# the basic re+uirements of due process Publication is indeed
imperative, for it will be the height of injustice to punish or otherwise burden a citi:en for the transgression of a law or rule of
which he had no notice whatsoever, not even a constructive one 5hat constitutes publication is set forth in &rticle 2 of the (ivil
(ode, which provides that SNlOaws shall ta$e effect after 65 da#s following the completion of their publication either in the
-fficial Ga:ette, or in a newspaper of general circulation in the PhilippinesT
!he "enate admits in their pleadings and even on oral argument that the "enate Rules of Procedure Governing In+uiries in &id
of ?egislation had been published in newspapers of general circulation onl# in 6775 and in 200/ 5ith respect to the present
"enate of the 6.
th
(ongress, however, of which the term of half of its members commenced on Eune K0, 2009, no effort was
underta$en for the publication of these rules when the# first opened their session
Republic of the Philippines
SUPE!E COUT
,anila
EN 0,NC
".. No. 1>$((# Dece9Ber 2() 2$$#
4I"ILIO O. ",CILL,NO) petitioner, vs THE HOUSE O+ EPESENT,TI4ES CO!!ITTEES ON PU0LIC
IN+O!,TION) PU0LIC ODE ,ND S,+ET1) N,TION,L DE+ENSE ,ND SECUIT1) IN+O!,TION ,ND
CO!!UNIC,TIONS TECHNOLO"1) and SU++,"E ,ND ELECTO,L E+O!S) respondents
,ore than three #ears ago, tapes ostensibl# containing a wiretapped conversation purportedl# between the President of the
Philippines and a highAran$ing official of the (ommission on %lections 1(-,%?%(2 surfaced !he# captured unprecedented
public attention and thrust the countr# into a controvers# that placed the legitimac# of the present administration on the line, and
resulted in the nearAcollapse of the &rro#o government !he tapes, notoriousl# referred to as the I<ello GarciI tapes, allegedl#
contained the President3s instructions to (-,%?%( (ommissioner ;irgilio Garcillano to manipulate in her favor results of the
200. presidential elections !hese recordings were to become the subject of heated legislative hearings conducted separatel# b#
committees of both <ouses of (ongress
6

In the <ouse of Representatives 1<ouse2, on Eune 8, 2005, then ,inorit# 'loor ?eader 'rancis G %scudero delivered a privilege
speech, I!ale of !wo !apes,I and set in motion a congressional investigation jointl# conducted b# the (ommittees on Public
Information, Public -rder and "afet#, National )efense and "ecurit#, Information and (ommunications !echnolog#, and
"uffrage and %lectoral Reforms 1respondent <ouse (ommittees2 )uring the in+uir#, several versions of the wiretapped
conversation emerged 4ut on Eul# 5, 2005, National 4ureau of Investigation 1N4I2 )irector Re#naldo 5#coco, &tt# &lan
Paguia and the law#er of former N4I )eput# )irector "amuel -ng submitted to the respondent <ouse (ommittees seven
alleged IoriginalI tape recordings of the supposed threeAhour taped conversation &fter prolonged and impassioned debate b#
the committee members on the admissibilit# and authenticit# of the recordings, the tapes were eventuall# pla#ed in the
chambers of the <ouse
2
-n &ugust K, 2005, the respondent <ouse (ommittees decided to suspend the hearings indefinitel# Nevertheless, the# decided
to prepare committee reports based on the said recordings and the testimonies of the resource persons
K
&larmed b# these developments, petitioner ;irgilio - Garcillano 1Garcillano2 filed with this (ourt a Petition for Prohibition
and Injunction, with Pra#er for !emporar# Restraining -rder andMor 5rit of Preliminar# Injunction
.
doc$eted as GR No
690KK8 <e pra#ed that the respondent <ouse (ommittees be restrained from using these tape recordings of the Iillegall#
obtainedI wiretapped conversations in their committee reports and for an# other purpose <e further implored that the said
recordings and an# reference thereto be ordered stric$en off the records of the in+uir#, and the respondent <ouse (ommittees
directed to desist from further using the recordings in an# of the <ouse proceedings
5
5ithout reaching its denouement, the <ouse discussion and debates on the IGarci tapesI abruptl# stopped
&fter more than two #ears of +uiescence, "enator Panfilo ?acson roused the slumbering issue with a privilege speech, I!he
?ighthouse !hat 4rought )ar$nessI In his discourse, "enator ?acson promised to provide the public Ithe whole unvarnished
truth = the what3s, when3s, where3s, who3s and wh#3sI of the alleged wiretap, and sought an in+uir# into the perceived
willingness of telecommunications providers to participate in nefarious wiretapping activities
-n motion of "enator 'rancis Pangilinan, "enator ?acson3s speech was referred to the "enate (ommittee on National )efense
and "ecurit#, chaired b# "enator Rodolfo 4ia:on, who had previousl# filed two bills
/
see$ing to regulate the sale, purchase and
use of wiretapping e+uipment and to prohibit the &rmed 'orces of the Philippines 1&'P2 from performing electoral duties
9
In the "enate3s plenar# session the following da#, a length# debate ensued when "enator Richard Gordon aired his concern on
the possible transgression of Republic &ct 1R&2 No .200
8
if the bod# were to conduct a legislative in+uir# on the matter -n
&ugust 28, 2009, "enator ,iriam )efensorA"antiago delivered a privilege speech, articulating her considered view that the
(onstitution absolutel# bans the use, possession, repla# or communication of the contents of the I<ello GarciI tapes <owever,
she recommended a legislative investigation into the role of the Intelligence "ervice of the &'P 1I"&'P2, the Philippine
National Police or other government entities in the alleged illegal wiretapping of public officials
7
-n "eptember /, 2009, petitioners "antiago Ranada and -swaldo &gcaoili, retired justices of the (ourt of &ppeals, filed before
this (ourt a Petition for Prohibition with Pra#er for the Issuance of a !emporar# Restraining -rder andMor 5rit of Preliminar#
Injunction,
60
doc$eted as GR No 697295, see$ing to bar the "enate from conducting its scheduled legislative in+uir# !he#
argued in the main that the intended legislative in+uir# violates R& No .200 and "ection K, &rticle III of the (onstitution
66

&s the (ourt did not issue an injunctive writ, the "enate proceeded with its public hearings on the I<ello GarciI tapes on
"eptember 9,
62
69
6K
and -ctober 6,
6.
2009
Intervening as respondents,
65
"enators &+uilino > Pimentel, Er, 4enigno No#no# ( &+uino, Rodolfo G 4ia:on, Panfilo ,
?acson, ?oren 4 ?egarda, ,& Eamb# &" ,adrigal and &ntonio ' !rillanes filed their (omment
6/
on the petition on
"eptember 25, 2009
!he (ourt subse+uentl# heard the case on oral argument
69

-n -ctober 2/, 2009, ,aj ?indsa# Re* "agge, a member of the I"&'P and one of the resource persons summoned b# the
"enate to appear and testif# at its hearings, moved to intervene as petitioner in GR No 697295
68
-n November 20, 2009, the (ourt resolved to consolidate GR Nos 690KK8 and 697295
67

It ma# be noted that while both petitions involve the I<ello GarciI recordings, the# have different objectives=the first is poised
at preventing the pla#ing of the tapes in the <ouse and their subse+uent inclusion in the committee reports, and the second see$s
to prohibit and stop the conduct of the "enate in+uir# on the wiretapped conversation
!he (ourt dismisses the first petition, GR No 690KK8, and grants the second, GR No 697295
A I A
4efore delving into the merits of the case, the (ourt shall first resolve the issue on the parties3 standing, argued at length in their
pleadings
In .olentino v$ C%<#L#C,
20
we e*plained that ICNlOegal standing3 or locus stan)i refers to a personal and substantial interest in a
case such that the part# has sustained or will sustain direct injur# because of the challenged governmental act * * *,I thus,
generall#, a part# will be allowed to litigate onl# when 162 he can show that he has personall# suffered some actual or
threatened injur# because of the allegedl# illegal conduct of the government0 122 the injur# is fairl# traceable to the
challenged action0 and 1K2 the injur# is li$el# to be redressed b# a favorable action
26
!he gist of the +uestion of standing is whether a part# has Ialleged such a personal sta$e in the outcome of the controvers# as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court so largel# depends for
illumination of difficult constitutional +uestionsI
22

<owever, considering that locus stan)i is a mere procedural technicalit#, the (ourt, in recent cases, has rela*ed the stringent
direct injur# test /avi) v$ <aca*agal?Arro!o
2K
articulates that a Iliberal polic# has been observed, allowing ordinar# citi:ens,
members of (ongress, and civic organi:ations to prosecute actions involving the constitutionalit# or validit# of laws,
regulations and rulingsI
2.
!he fairl# recent Chave7 v$ Bon7ales
25
even permitted a nonAmember of the broadcast media, who
failed to allege a personal sta$e in the outcome of the controvers#, to challenge the acts of the "ecretar# of Eustice and the
National !elecommunications (ommission !he majorit#, in the said case, echoed the current polic# that Ithis (ourt has
repeatedl# and consistentl# refused to wield procedural barriers as impediments to its addressing and resolving serious legal
+uestions that greatl# impact on public interest, in $eeping with the (ourt3s dut# under the 6789 (onstitution to determine
whether or not other branches of government have $ept themselves within the limits of the (onstitution and the laws, and that
the# have not abused the discretion given to themI
2/

In GR No 690KK8, petitioner Garcillano justifies his standing to initiate the petition b# alleging that he is the person alluded to
in the I<ello GarciI tapes 'urther, his was publicl# identified b# the members of the respondent committees as one of the
voices in the recordings
29
-bviousl#, therefore, petitioner Garcillano stands to be directl# injured b# the <ouse committees3
actions and charges of electoral fraud !he (ourt recogni:es his standing to institute the petition for prohibition
In GR No 697295, petitioners Ranada and &gcaoili justif# their standing b# alleging that the# are concerned citi:ens,
ta*pa#ers, and members of the I4P !he# are of the firm conviction that an# attempt to use the I<ello GarciI tapes will further
divide the countr# !he# wish to see the legal and proper use of public funds that will necessaril# be defra#ed in the ensuing
public hearings !he# are worried b# the continuous violation of the laws and individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of legislative in+uiries purportedl# in aid of legislation
28

Intervenor "agge alleges violation of his right to due process considering that he is summoned to attend the "enate hearings
without being apprised not onl# of his rights therein through the publication of the "enate Rules of Procedure Governing
In+uiries in &id of ?egislation, but also of the intended legislation which underpins the investigation <e further intervenes as a
ta*pa#er bewailing the useless and wasteful e*penditure of public funds involved in the conduct of the +uestioned hearings
27

Given that petitioners Ranada and &gcaoili allege an interest in the e*ecution of the laws and that intervenor "agge asserts his
constitutional right to due process,
K0
the# satisf# the re+uisite personal sta$e in the outcome of the controvers# b# merel# being
citi:ens of the Republic
'ollowing the (ourt3s ruling in =ranciscoC Dr$ v$ .he ouse o" Re*resentatives,
K6
we find sufficient petitioners Ranada3s and
&gcaoili3s and intervenor "agge3s allegation that the continuous conduct b# the "enate of the +uestioned legislative in+uir# will
necessaril# involve the e*penditure of public funds
K2
It should be noted that in =rancisco, rights personal to then (hief Eustice
<ilario G )avide, Er had been injured b# the alleged unconstitutional acts of the <ouse of Representatives, #et the (ourt
granted standing to the petitioners therein for, as in this case, the# invariabl# invo$ed the vindication of their own rights=as
ta*pa#ers, members of (ongress, citi:ens, individuall# or in a class suit, and members of the bar and of the legal profession=
which were also supposedl# violated b# the therein assailed unconstitutional acts
KK
?i$ewise, a reading of the petition in GR No 697295 shows that the petitioners and intervenor "agge advance constitutional
issues which deserve the attention of this (ourt in view of their seriousness, novelt# and weight as precedents !he issues are of
transcendental and paramount importance not onl# to the public but also to the 4ench and the 4ar, and should be resolved for
the guidance of all
K.

!hus, in the e*ercise of its sound discretion and given the liberal attitude it has shown in prior cases clima*ing in the more
recent case of Chave7, the (ourt recogni:es the legal standing of petitioners Ranada and &gcaoili and intervenor "agge
A II A
!he (ourt, however, dismisses GR No 690KK8 for being moot and academic Repeatedl# stressed in our prior decisions is the
principle that the e*ercise b# this (ourt of judicial power is limited to the determination and resolution of actual cases and
controversies
K5
4# actual cases, we mean e*isting conflicts appropriate or ripe for judicial determination, not conjectural or
anticipator#, for otherwise the decision of the (ourt will amount to an advisor# opinion !he power of judicial in+uir# does not
e*tend to h#pothetical +uestions because an# attempt at abstraction could onl# lead to dialectics and barren legal +uestions and
to sterile conclusions unrelated to actualities
K/
Neither will the (ourt determine a moot +uestion in a case in which no practical
relief can be granted & case becomes moot when its purpose has become stale
K9
It is unnecessar# to indulge in academic
discussion of a case presenting a moot +uestion as a judgment thereon cannot have an# practical legal effect or, in the nature of
things, cannot be enforced
K8

In GR No 690KK8, petitioner Garcillano implores from the (ourt, as aforementioned, the issuance of an injunctive writ to
prohibit the respondent <ouse (ommittees from pla#ing the tape recordings and from including the same in their committee
report <e li$ewise pra#s that the said tapes be stric$en off the records of the <ouse proceedings 4ut the (ourt notes that the
recordings were alread# pla#ed in the <ouse and heard b# its members
K7
!here is also the widel# publici:ed fact that the
committee reports on the I<ello GarciI in+uir# were completed and submitted to the <ouse in plenar# b# the respondent
committees
.0
<aving been overta$en b# these events, the Garcillano petition has to be dismissed for being moot and academic
&fter all, prohibition is a preventive remed# to restrain the doing of an act about to be done, and not intended to provide a
remed# for an act alread# accomplished
.6
A III A
&s to the petition in GR No 697295, the (ourt grants the same !he "enate cannot be allowed to continue with the conduct of
the +uestioned legislative in+uir# without dul# published rules of procedure, in clear derogation of the constitutional
re+uirement
"ection 26, &rticle ;I of the 6789 (onstitution e*plicitl# provides that INtOhe "enate or the <ouse of Representatives, or an# of
its respective committees ma# conduct in+uiries in aid of legislation in accor)ance with its )ul! *u5lishe) rules o" *roce)ureI
!he re+uisite of publication of the rules is intended to satisf# the basic re+uirements of due process
.2
Publication is indeed
imperative, for it will be the height of injustice to punish or otherwise burden a citi:en for the transgression of a law or rule of
which he had no notice whatsoever, not even a constructive one
.K
5hat constitutes publication is set forth in &rticle 2 of the
(ivil (ode, which provides that INlOaws shall ta$e effect after 65 da#s following the completion of their publication either in the
-fficial Ga:ette, or in a newspaper of general circulation in the PhilippinesI
..

!he respondents in GR No 697295 admit in their pleadings and even on oral argument that the "enate Rules of Procedure
Governing In+uiries in &id of ?egislation had been published in newspapers of general circulation onl# in 6775 and in 200/
.5
5ith respect to the present "enate of the 6.
th
(ongress, however, of which the term of half of its members commenced on Eune
K0, 2009, no effort was underta$en for the publication of these rules when the# first opened their session
Recentl#, the (ourt had occasion to rule on this ver# same +uestion In >eri v$ Senate Co((ittee on Accounta5ilit! o" Pu5lic
%""icers an) 0nvestigations,
./
we saidD
Fourth, we find merit in the argument of the -"G that respondent (ommittees li$ewise violated "ection 26 of &rticle
;I of the (onstitution, re+uiring that the in+uir# be in accordance with the Idul' .uBlished rules o/ .rocedureI 5e
+uote the -"G3s e*planationD
!he phrase Idul# published rules of procedureI re+uires the "enate of ever# (ongress to publish its rules of
procedure governing in+uiries in aid of legislation because ever# "enate is distinct from the one before it or after it
"ince "enatorial elections are held ever# three 1K2 #ears for oneAhalf of the "enate3s membership, the composition
of the "enate also changes b# the end of each term %ach "enate ma# thus enact a different set of rules as it ma#
deem fit Not havin? .uBlished its #ules o% rocedure) the suBCect hearin?s in aid o/ le?islation conducted B'
the 1J
th
Senate) are there/ore) .rocedurall' in/ir9
Eustice &ntonio ! (arpio, in his )issenting and (oncurring -pinion, reinforces this ruling with the following rationali:ationD
!he present "enate under the 6789 (onstitution is no longer a continuing legislative bod# !he present "enate has
twent#Afour members, twelve of whom are elected ever# three #ears for a term of si* #ears each !hus, the term of
twelve "enators e*pires ever# three #ears, leaving less than a 9aCorit' o/ Senators to continue into the neEt
Con?ress !he 6789 (onstitution, li$e the 67K5 (onstitution, re+uires a majorit# of "enators to Iconstitute a +uorum to
do businessI &ppl#ing the same reasoning in Arnault v$ >a7areno, the "enate under the 6789 (onstitution is not a
continuing bod# because less than majorit# of the "enators continue into the ne*t (ongress !he conse+uence is that the
Rules o" Proce)ure must be republished b# the "enate after ever# e*pir# of the term of twelve "enators
.9
!he subject was e*plained with greater lucidit# in our Resolution
.8
1%n the <otion "or Reconsi)eration2 in the same case, vi7D
-n the nature of the "enate as a Icontinuing bod#,I this (ourt sees fit to issue a clarification (ertainl#, there is no
debate that the "enate as an institution is Icontinuing,I as it is not dissolved as an entit# with each national election or
change in the composition of its members <owever, in the conduct of its da#AtoAda# business the "enate of each
(ongress acts separatel# and independentl# of the "enate of the (ongress before it !he Rules of the "enate itself
confirms this when it statesD
R@?% L?I;
@N'INI"<%) 4@"IN%""
"%( 62K @nfinished business at the end of the session shall be ta$en up at the ne*t session in the same status
,ll .endin? 9atters and .roceedin?s shall ter9inate u.on the eE.iration o/ one 213 Con?ress, but ma# be
ta$en b# the succeeding (ongress as if present for the first time
@ndeniabl# from the foregoing, all pending matters and proceedings, ie, unpassed bills and even legislative
investigations, of the "enate of a particular (ongress are considered ter9inated upon the e*piration of that (ongress
and it is merel# optional on the "enate of the succeeding (ongress to ta$e up such unfinished matters, not in the sa9e
status, but as if presented /or the /irst ti9e !he logic and practicalit# of such a rule is readil# apparent considering
that the "enate of the succeeding (ongress 1which will t#picall# have a different composition as that of the previous
(ongress2 should not be bound b# the acts and deliberations of the "enate of which the# had no part If the "enate is a
continuing bod# even with respect to the conduct of its business, then pending matters will not be deemed terminated
with the e*piration of one (ongress but will, as a matter of course, continue into the ne*t (ongress with the same
status
!his dichotom# of the continuit# of the "enate as an institution and of the opposite nature of the conduct of its business
is reflected in its Rules !he Rules of the "enate 1ie the "enate3s main rules of procedure2 statesD
ULE LI
,!END!ENTS TO) O E4ISIONS O+) THE ULES
"%( 6K/ &t the start of each session in which the "enators elected in the preceding elections shall begin their
term of office, the President ma# endorse the Rules to the appropriate committee for amendment or revision
!he Rules ma# also be amended b# means of a motion which should be presented at least one da# before its
consideration, and the vote of the majorit# of the "enators present in the session shall be re+uired for its
approval
ULE LII
D,TE O+ T,-IN" E++ECT
"%( 6K9 !hese Rules shall ta$e effect on the date of their adoption and shall remain in force until the# are
amended or repealed
"ection 6K/ of the "enate Rules +uoted above ta$es into account the new composition of the "enate after an election
and the possibilit# of the amendment or revision of the Rules at the start of each session in which the newl# elected
"enators shall begin their term
<owever, it is evident that the "enate has determined that its main rules are intended to be valid from the date of their
adoption until the# are amended or repealed "uch language is conspicuousl# absent from the Rules !he Rules simpl#
state I1t2hese Rules shall ta$e effect seven 192 da#s after publication in two 122 newspapers of general circulationI !he
latter does not e*plicitl# provide for the continued effectivit# of such rules until the# are amended or repealed In view
of the difference in the language of the two sets of "enate rules, it cannot be presumed that the Rules 1on legislative
in+uiries2 would continue into the ne*t (ongress !he "enate of the ne*t (ongress ma# easil# adopt different rules for
its legislative in+uiries which come within the rule on unfinished business
!he language of "ection 26, &rticle ;I of the (onstitution re+uiring that the in+uir# be conducted in accordance with
the dul# published rules of procedure is categorical It is incumbent upon the "enate to publish the rules for its
legislative in+uiries in each (ongress or otherwise ma$e the published rules clearl# state that the same shall be
effective in subse+uent (ongresses or until the# are amended or repealed to sufficientl# put public on notice
If it was the intention of the "enate for its present rules on legislative in+uiries to be effective even in the ne*t
(ongress, it could have easil# adopted the same language it had used in its main rules regarding effectivit#
Respondents justif# their nonAobservance of the constitutionall# mandated publication b# arguing that the rules have never been
amended since 6775 and, despite that, the# are published in boo$let form available to an#one for free, and accessible to the
public at the "enate3s internet web page
.7

!he (ourt does not agree !he absence of an# amendment to the rules cannot justif# the "enate3s defiance of the clear and
unambiguous language of "ection 26, &rticle ;I of the (onstitution !he organic law instructs, without more, that the "enate or
its committees ma# conduct in+uiries in aid of legislation onl! in accor)ance with )ul! *u5lishe) rules o" *roce)ureC an) )oes
not (aEe an! )istinction whether or not these rules have un)ergone a(en)(ents or revision !he constitutional mandate to
publish the said rules prevails over an# custom, practice or tradition followed b# the "enate
Eustice (arpio3s response to the same argument raised b# the respondents is illuminatingD
!he publication of the Rules o" Proce)ure in the website of the "enate, or in pamphlet form available at the "enate, is
not sufficient under the .aFa)a v$ .uvera ruling which re+uires publication either in the -fficial Ga:ette or in a
newspaper of general circulation !he Rules o" Proce)ure even provide that the rules Ishall ta$e effect seven 192 da#s
after publication in two 122 newspapers of general circulation,I precluding an# other form of publication Publication in
accordance with .aFa)a is mandator# to compl# with the due process re+uirement because the Rules o" Proce)ure put a
person3s libert# at ris$ & person who violates the Rules o" Proce)ure could be arrested and detained b# the "enate
!he invocation b# the respondents of the provisions of R& No 8972,
50
otherwise $nown as the %lectronic (ommerce &ct of
2000, to support their claim of valid publication through the internet is all the more incorrect R& 8972 considers an electronic
data message or an electronic document as the functional e+uivalent of a written document onl# for evi)entiar! *ur*oses
56
In
other words, the law merel# recogni:es the admissibilit# in evidence 1for their being the original2 of electronic data messages
andMor electronic documents
52
0t )oes not (aEe the internet a (e)iu( "or *u5lishing lawsC rules an) regulations
Given this discussion, the respondent "enate (ommittees, therefore, could not, in violation of the (onstitution, use its
unpublished rules in the legislative in+uir# subject of these consolidated cases !he conduct of in+uiries in aid of legislation b#
the "enate has to be deferred until it shall have caused the publication of the rules, because it can do so onl# Iin accor)ance
with its )ul! *u5lishe) rules o" *roce)ureI
;er# recentl#, the "enate caused the publication of the "enate Rules of Procedure Governing In+uiries in &id of ?egislation in
the -ctober K6, 2008 issues of <anila Bulletin and <ala!a 5hile we ta$e judicial notice of this fact, the recent publication
does not cure the infirmit# of the in+uir# sought to be prohibited b# the instant petitions Insofar as the consolidated cases are
concerned, the legislative investigation subject thereof still could not be underta$en b# the respondent "enate (ommittees,
because no published rules governed it, in clear contravention of the (onstitution
5ith the foregoing dis+uisition, the (ourt finds it unnecessar# to discuss the other issues raised in the consolidated petitions
5<%R%'-R%, the petition in GR No 690KK8 is )I",I""%), and the petition in GR No 697295 is GR&N!%) ?et a writ
of prohibition be issued enjoining the "enate of the Republic of the Philippines andMor an# of its committees from conducting
an# in+uir# in aid of legislation centered on the I<ello GarciI tapes