Section 21 and 22

SENATE VS ERMITA

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

FACTS:
Executive Order No. 464 (popularly known as E.O. 464) is a controversial executive order issued in the
Philippines on September 26, 2005, by President Gloria Macapagal Arroyo that prevents cabinet
members, police and military generals, senior national security officials, and "such other officers as may
be determined by the President" to attend congressional hearings unless the President gives permission to
those who will attend the said proceedings.
Issue :
1. won Executive Order No. 464 (E.O. 464) constitutional

Art. VI, Sec. 2130 Art. VI, Sec. 2231Art. VI, Sec. 132Art. XI, Sec. 133Art. III, Sec. 734Art. III, Sec. 435

Art. XIII, Sec. 16 36Art. II, Sec. 2837

Held : partly yes

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s duly
published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing
in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of
the President prior to appearing before Congress. There are significant differences between the two
provisions, however, which constrain this Court to discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has, through
the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on the department heads’ possession of any
information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis-à-
vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent under
Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the
question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the President,
or upon the request of either House, as the rules of each House shall provide, appear before and be heard
by such House on any matter pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the State or the public interest so requires and the President so states
in writing, the appearance shall be conducted in executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of
Article VI. Section 22 which provides for the question hour must be interpreted vis-à-vis Section 21
which provides for the power of either House of Congress to "conduct inquiries in aid of legislation." As
the following excerpt of the deliberations of the Constitutional Commission shows, the framers were
aware that these two provisions involved distinct functions of Congress.

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be
considered as pertaining to the same power of Congress. One specifically relates to the power to conduct
inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation,
while the other pertains to the power to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress’ oversight function.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the provision
of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it constitutional.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and
all senior national security officials who, in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are "covered by the executive privilege."

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above,
is properly invoked in relation to specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be read
as an abbreviated way of saying that the person is in possession of information which is, in the
judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus
proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is "covered
by the executive privilege," such official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the President. The proviso
allowing the President to give its consent means nothing more than that the President may reverse a
prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then becomes
the basis for the official’s not showing up in the legislative investigation.

may validly be claimed as privileged even against Congress. Thus, the case holds:

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim
of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the
letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered by the privilege under the
challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of
what is included in the phrase "confidential or classified information between the President and the
public officers covered by this executive order."

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92 (Underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It
is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it
merely invokes E.O. 464, coupled with an announcement that the President has not given her
consent. It is woefully insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of inquiry of
Congress.

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

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only
on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does
not purport to be conclusive on the other branches of government. It may thus be construed as a
mere expression of opinion by the President regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the President
can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the President’s authority
and has the effect of prohibiting the official from appearing before Congress, subject only to the
express pronouncement of the President that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch,105 or in those instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the
public interest in enforcing that obligation in a particular case.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of
the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress
is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such authorization
is partly motivated by the need to ensure respect for such officials does not change the infirm nature
of the authorization itself.

The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in courts of justice. 108 (Emphasis and underscoring
supplied)

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No.
464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.