Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 169777
April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN
M. DRILON, in his capacity as Senate President, JUAN M.
FLAVIER, in his capacity as Senate President Pro Tempore,
FRANCIS N. PANGILINAN, in his capacity as Majority
Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as
Minority Leader, SENATORS RODOLFO G. BIAZON,
"COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO
ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN
PONCE ENRILE, RICHARD J. GORDON, PANFILO M.
LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO
OSMENA III, RALPH G. RECTO, and MAR ROXAS,
Petitioners, vs.
EDUARDO R. ERMITA, in his capacity as Executive
Secretary and alter-ego of President Gloria MacapagalArroyo, and anyone acting in his stead and in behalf of the
President of the Philippines, Respondents.
x-------------------------x
G.R. No. 169659
April 20, 2006
BAYAN MUNA represented by DR. REYNALDO LESACA,
JR., Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep.
RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO
CASINO, Rep. JOEL VIRADOR, COURAGE represented by
FERDINAND GAITE, and COUNSELS FOR THE DEFENSE
OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS
BALBIN, Petitioners, vs.
EDUARDO ERMITA, in his capacity as Executive Secretary
and alter-ego of President Gloria Macapagal-Arroyo,
Respondent.
x-------------------------x
G.R. No. 169660
April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner, vs.
EDUARDO R. ERMITA, in his capacity as Executive
Secretary, AVELINO J. CRUZ, JR., in his capacity as
Secretary of Defense, and GENEROSO S. SENGA, in his
capacity as AFP Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667
April 20, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary, Respondent.
x-------------------------x
G.R. No. 169834
April 20, 2006
PDP- LABAN, Petitioner, vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA,
Respondent.
x-------------------------x
G.R. No. 171246
April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA,
ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A.
RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P.
LEGASPI, J. B. JOVY C. BERNABE, BERNARD L.
DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED
BAR FOR THE PHILIPPINES, Petitioners, vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA,
Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly
republican state. Even in the early history of republican thought,
however, it has been recognized that the head of government
may keep certain information confidential in pursuit of the public
interest. Explaining the reason for vesting executive power in
only one magistrate, a distinguished delegate to the U.S.
Constitutional Convention said: "Decision, activity, secrecy, and
dispatch will generally characterize the proceedings of one man,
in a much more eminent degree than the proceedings of any
greater number; and in proportion as the number is increased,
these qualities will be diminished."
History has been witness, however, to the fact that the power to
withhold information lends itself to abuse, hence, the necessity
to guard it zealously.

The present consolidated petitions for certiorari and prohibition

proffer that the President has abused such power by issuing
Executive Order No. 464 (E.O. 464) last September 28, 2005.
They thus pray for its declaration as null and void for being
unconstitutional.
In resolving the controversy, this Court shall proceed with the
recognition that the issuance under review has come from a coequal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is
found to be indeed violative of the Constitution, it is duty-bound
to declare it so. For the Constitution, being the highest
expression of the sovereign will of the Filipino people, must
prevail over any issuance of the government that contravenes its
mandates.
In the exercise of its legislative power, the Senate of the
Philippines, through its various Senate Committees, conducts
inquiries or investigations in aid of legislation which call for, inter
alia, the attendance of officials and employees of the executive
department, bureaus, and offices including those employed in
Government Owned and Controlled Corporations, the Armed
Forces of the Philippines (AFP), and the Philippine National
Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a
whole issued invitations to various officials of the Executive
Department for them to appear on September 29, 2005 as
resource speakers in a public hearing on the railway project of
the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail
Project). The public hearing was sparked by a privilege speech
of Senator Juan Ponce Enrile urging the Senate to investigate
the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project.
The Senate Committee on National Defense and Security
likewise issued invitations dated September 22, 2005 to the
following officials of the AFP: the Commanding General of the
Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector
General of the AFP Vice Admiral Mateo M. Mayuga; Deputy
Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R.
Danga; Chief of the Intelligence Service of the AFP Brig. Gen.
Marlu Q. Quevedo; Assistant Superintendent of the Philippine
Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and
Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in
a public hearing scheduled on September 28, 2005 on the
following: (1) Privilege Speech of Senator Aquilino Q. Pimentel
Jr., delivered on June 6, 2005 entitled "Bunye has Provided
Smoking Gun or has Opened a Can of Worms that Show
Massive Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada
delivered on July 26, 2005 entitled "The Philippines as the WireTapping Capital of the World"; (3) Privilege Speech of Senator
Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and
Present Danger"; (4) Senate Resolution No. 285 filed by Senator
Maria Ana Consuelo Madrigal Resolution Directing the
Committee on National Defense and Security to Conduct an
Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and
(5) Senate Resolution No. 295 filed by Senator Biazon
Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, on the WireTapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September
28 2005 was the AFP Chief of Staff, General Generoso S.
Senga who, by letter dated September 27, 2005, requested for
its postponement "due to a pressing operational situation that
demands [his utmost personal attention" while "some of the
invited AFP officers are currently attending to other urgent
operational matters."
On September 28, 2005, Senate President Franklin M. Drilon
received from Executive Secretary Eduardo R. Ermita a letter
dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to
which various officials of the Executive Department have been
invited" in order to "afford said officials ample time and
opportunity to study and prepare for the various issues so that

they may better enlighten the Senate Committee on its

investigation."
Senate President Drilon, however, wrote Executive Secretary
Ermita that the Senators "are unable to accede to [his request]"
as it "was sent belatedly" and "[a]ll preparations and
arrangements as well as notices to all resource persons were
completed [the previous] week."
Senate President Drilon likewise received on September 28,
2005 a letter from the President of the North Luzon Railways
Corporation Jose L. Cortes, Jr. requesting that the hearing on
the NorthRail project be postponed or cancelled until a copy of
the report of the UP Law Center on the contract agreements
relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464,
"Ensuring Observance of the Principle of Separation of Powers,
Adherence to the Rule on Executive Privilege and Respect for
the Rights of Public Officials Appearing in Legislative Inquiries in
Aid of Legislation Under the Constitution, and For Other
Purposes," which, pursuant to Section 6 thereof, took effect
immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before
Congress. In accordance with Article VI, Section 22 of the
Constitution and to implement the Constitutional provisions on
the separation of powers between co-equal branches of the
government, all heads of departments of the Executive Branch
of the government shall secure the consent of the President
prior to appearing before either House of Congress.
When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall only
be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive
Privilege.
(a) Nature and Scope. - The rule of confidentiality based on
executive privilege is fundamental to the operation of
government and rooted in the separation of powers under the
Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees
provides that Public Officials and Employees shall not use or
divulge confidential or classified information officially known to
them by reason of their office and not made available to the
public to prejudice the public interest.
Executive privilege covers all confidential or classified
information between the President and the public officers
covered by this executive order, including:
Conversations and correspondence between the President and
the public official covered by this executive order (Almonte vs.
Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in
the interest of national security should not be divulged (Almonte
vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v.
Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998).
Information between inter-government agencies prior to the
conclusion of treaties and executive agreements (Chavez v.
Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v.
Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);
Matters affecting national security and public order (Chavez v.
Public Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this
executive order:
Senior officials of executive departments who in the judgment of
the department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines
and such other officers who in the judgment of the Chief of Staff
are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the
judgment of the Chief of the PNP are covered by the executive
privilege;

Senior national security officials who in the judgment of the

National Security Adviser are covered by the executive privilege;
and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before
Congress. All public officials enumerated in Section 2 (b)
hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence
to the rule on executive privilege and respect for the rights of
public officials appearing in inquiries in aid of legislation.
(Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received
from Executive Secretary Ermita a copy of E.O. 464, and
another letter informing him "that officials of the Executive
Department invited to appear at the meeting [regarding the
NorthRail project] will not be able to attend the same without the
consent of the President, pursuant to [E.O. 464]" and that "said
officials have not secured the required consent from the
President." On even date which was also the scheduled date of
the hearing on the alleged wiretapping, Gen. Senga sent a letter
to Senator Biazon, Chairperson of the Committee on National
Defense and Security, informing him "that per instruction of
[President Arroyo], thru the Secretary of National Defense, no
officer of the [AFP] is authorized to appear before any Senate or
Congressional hearings without seeking a written approval from
the President" and "that no approval has been granted by the
President to any AFP officer to appear before the public hearing
of the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary
Ermita and Gen. Senga, the investigation scheduled by the
Committee on National Defense and Security pushed through,
with only Col. Balutan and Brig. Gen. Gudani among all the AFP
officials invited attending.
For defying President Arroyos order barring military personnel
from testifying before legislative inquiries without her approval,
Brig. Gen. Gudani and Col. Balutan were relieved from their
military posts and were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29,
2005, Executive Secretary Ermita, citing E.O. 464, sent letter of
regrets, in response to the invitations sent to the following
government officials: Light Railway Transit Authority
Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ)
Chief State Counsel Ricardo V. Perez, then Presidential Legal
Counsel Merceditas Gutierrez, Department of Transportation
and Communication (DOTC) Undersecretary Guiling
Mamonding, DOTC Secretary Leandro Mendoza, Philippine
National Railways General Manager Jose Serase II, Monetary
Board Member Juanita Amatong, Bases Conversion
Development Authority Chairperson Gen. Narciso Abaya and
Secretary Romulo L. Neri. NorthRail President Cortes sent
personal regrets likewise citing E.O. 464.
On October 3, 2005, three petitions, docketed as G.R. Nos.
169659, 169660, and 169667, for certiorari and prohibition, were
filed before this Court challenging the constitutionality of E.O.
464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran,
Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino,
Courage, an organization of government employees, and
Counsels for the Defense of Liberties (CODAL), a group of
lawyers dedicated to the promotion of justice, democracy and
peace, all claiming to have standing to file the suit because of
the transcendental importance of the issues they posed, pray, in
their petition that E.O. 464 be declared null and void for being
unconstitutional; that respondent Executive Secretary Ermita, in
his capacity as Executive Secretary and alter-ego of President
Arroyo, be prohibited from imposing, and threatening to impose
sanctions on officials who appear before Congress due to
congressional summons. Additionally, petitioners claim that E.O.
464 infringes on their rights and impedes them from fulfilling
their respective obligations. Thus, Bayan Muna alleges that E.O.
464 infringes on its right as a political party entitled to participate
in governance; Satur Ocampo, et al. allege that E.O. 464

infringes on their rights and duties as members of Congress to

conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws; Courage alleges that the
tenure of its members in public office is predicated on, and
threatened by, their submission to the requirements of E.O. 464
should they be summoned by Congress; and CODAL alleges
that its members have a sworn duty to uphold the rule of law,
and their rights to information and to transparent governance are
threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that
his constitutional rights as a citizen, taxpayer and law
practitioner, are affected by the enforcement of E.O. 464, prays
in his petition that E.O. 464 be declared null and void for being
unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.
(ALG), alleging that as a coalition of 17 legal resource nongovernmental organizations engaged in developmental
lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens
of the Philippines and a part of the general public, it has legal
standing to institute the petition to enforce its constitutional right
to information on matters of public concern, a right which was
denied to the public by E.O. 464, prays, that said order be
declared null and void for being unconstitutional and that
respondent Executive Secretary Ermita be ordered to cease
from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines,
alleging that it has a vital interest in the resolution of the issue of
the validity of E.O. 464 for it stands to suffer imminent and
material injury, as it has already sustained the same with its
continued enforcement since it directly interferes with and
impedes the valid exercise of the Senates powers and functions
and conceals information of great public interest and concern,
filed its petition for certiorari and prohibition, docketed as G.R.
No. 169777 and prays that E.O. 464 be declared
unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party
with members duly elected into the Philippine Senate and House
of Representatives, filed a similar petition for certiorari and
prohibition, docketed as G.R. No. 169834, alleging that it is
affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented through its members in
Congress, particularly in the conduct of inquiries in aid of
legislation and transcendental issues need to be resolved to
avert a constitutional crisis between the executive and legislative
branches of the government.
Meanwhile, by letter dated February 6, 2006, Senator Biazon
reiterated his invitation to Gen. Senga for him and other military
officers to attend the hearing on the alleged wiretapping
scheduled on February 10, 2005. Gen. Senga replied, however,
by letter dated February 8, 2006, that "[p]ursuant to Executive
Order No. 464, th[e] Headquarters requested for a clearance
from the President to allow [them] to appear before the public
hearing" and that "they will attend once [their] request is
approved by the President." As none of those invited appeared,
the hearing on February 10, 2006 was cancelled.
In another investigation conducted jointly by the Senate
Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of the
fertilizer fund under the Ginintuang Masaganang Ani program of
the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed to
attend, DA Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide Authority
Executive Director Norlito R. Gicana, and those from the
Department of Budget and Management having invoked E.O.
464.
In the budget hearings set by the Senate on February 8 and 13,
2006, Press Secretary and Presidential Spokesperson Ignacio
R. Bunye, DOJ Secretary Raul M. Gonzalez and Department of
Interior and Local Government Undersecretary Marius P. Corpus
communicated their inability to attend due to lack of appropriate
clearance from the President pursuant to E.O. 464. During the
February 13, 2005 budget hearing, however, Secretary Bunye
was allowed to attend by Executive Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the

incumbent members of the Board of Governors of the Integrated
Bar of the Philippines, as taxpayers, and the Integrated Bar of
the Philippines as the official organization of all Philippine
lawyers, all invoking their constitutional right to be informed on
matters of public interest, filed their petition for certiorari and
prohibition, docketed as G.R. No. 171246, and pray that E.O.
464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining
Order enjoining respondents from implementing, enforcing, and
observing E.O. 464.
In the oral arguments on the petitions conducted on February
21, 2006, the following substantive issues were ventilated: (1)
whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official
Gazette or in a newspaper of general circulation; and (2)
whether E.O. 464 violates the following provisions of the
Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art.
IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and
Art. XIII, Sec. 16. The procedural issue of whether there is an
actual case or controversy that calls for judicial review was not
taken up; instead, the parties were instructed to discuss it in
their respective memoranda.
After the conclusion of the oral arguments, the parties were
directed to submit their respective memoranda, paying particular
attention to the following propositions: (1) that E.O. 464 is, on its
face, unconstitutional; and (2) assuming that it is not, it is
unconstitutional as applied in four instances, namely: (a) the so
called Fertilizer scam; (b) the NorthRail investigation (c) the
Wiretapping activity of the ISAFP; and (d) the investigation on
the Venable contract.
Petitioners in G.R. No. 169660 and G.R. No. 169777 filed their
memoranda on March 7, 2006, while those in G.R. No. 169667
and G.R. No. 169834 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did not file any
memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their
motion for extension to file memorandum was granted,
subsequently filed a manifestation dated March 14, 2006 that it
would no longer file its memorandum in the interest of having the
issues resolved soonest, prompting this Court to issue a
Resolution reprimanding them.
Petitioners submit that E.O. 464 violates the following
constitutional provisions:
Art. VI, Sec. 21
Art. VI, Sec. 22
Art. VI, Sec. 1
Art. XI, Sec. 1
Art. III, Sec. 7
Art. III, Sec. 4
Art. XIII, Sec. 16
Art. II, Sec. 2
Respondents Executive Secretary Ermita et al., on the other
hand, pray in their consolidated memorandum on March 13,
2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in
Congress;
2. Whether E.O. 464 violates the right of the people to
information on matters of public concern; and
3. Whether respondents have committed grave abuse of
discretion when they implemented E.O. 464 prior to its
publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
E.O. 464, ascertainment of whether the requisites for a valid
exercise of the Courts power of judicial review are present is in
order.
Like almost all powers conferred by the Constitution, the power
of judicial review is subject to limitations, to wit: (1) there must
be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have
standing to challenge the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of

constitutionality must be raised at the earliest opportunity; and

(4) the issue of constitutionality must be the very lis mota of the
case.
Except with respect to the requisites of standing and existence
of an actual case or controversy where the disagreement
between the parties lies, discussion of the rest of the requisites
shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the
allegations in G.R. Nos. 169659, 169660 and 169667 make it
clear that they, adverting to the non-appearance of several
officials of the executive department in the investigations called
by the different committees of the Senate, were brought to
vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the
exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific
prerogative, power, and privilege of the House of
Representatives which had been effectively impaired by E.O.
464, there being no mention of any investigation called by the
House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing
the marginalized and underrepresented, and that of the other
petitioner groups and individuals who profess to have standing
as advocates and defenders of the Constitution, respondents
contend that such interest falls short of that required to confer
standing on them as parties "injured-in-fact."
Respecting petitioner Chavez, respondents contend that Chavez
may not claim an interest as a taxpayer for the implementation
of E.O. 464 does not involve the exercise of taxing or spending
power.
With regard to the petition filed by the Senate, respondents
argue that in the absence of a personal or direct injury by reason
of the issuance of E.O. 464, the Senate and its individual
members are not the proper parties to assail the constitutionality
of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism
Association v. Ongpin and Valmonte v. Philippine Charity
Sweepstakes Office, respondents assert that to be considered a
proper party, one must have a personal and substantial interest
in the case, such that he has sustained or will sustain direct
injury due to the enforcement of E.O. 464.
That the Senate of the Philippines has a fundamental right
essential not only for intelligent public decision-making in a
democratic system, but more especially for sound legislation is
not disputed. E.O. 464, however, allegedly stifles the ability of
the members of Congress to access information that is crucial to
law-making. Verily, the Senate, including its individual members,
has a substantial and direct interest over the outcome of the
controversy and is the proper party to assail the constitutionality
of E.O. 464. Indeed, legislators have standing to maintain
inviolate the prerogative, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their
prerogatives as legislators.
In the same vein, party-list representatives Satur Ocampo
(Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador
(Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano
(Anakpawis), and Liza Maza (Gabriela) are allowed to sue to
question the constitutionality of E.O. 464, the absence of any
claim that an investigation called by the House of
Representatives or any of its committees was aborted due to the
implementation of E.O. 464 notwithstanding, it being sufficient
that a claim is made that E.O. 464 infringes on their
constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets the
standing requirement as it obtained three seats in the House of
Representatives in the 2004 elections and is, therefore, entitled
to participate in the legislative process consonant with the
declared policy underlying the party list system of affording
citizens belonging to marginalized and underrepresented
sectors, organizations and parties who lack well-defined political

constituencies to contribute to the formulation and enactment of

legislation that will benefit the nation.
As Bayan Muna and Representatives Ocampo et al. have the
standing to file their petitions, passing on the standing of their
co-petitioners Courage and Codal is rendered unnecessary.
In filing their respective petitions, Chavez, the ALG which claims
to be an organization of citizens, and the incumbent members of
the IBP Board of Governors and the IBP in behalf of its lawyer
members, invoke their constitutional right to information on
matters of public concern, asserting that the right to information,
curtailed and violated by E.O. 464, is essential to the effective
exercise of other constitutional rights and to the maintenance of
the balance of power among the three branches of the
government through the principle of checks and balances.
It is well-settled that when suing as a citizen, the interest of the
petitioner in assailing the constitutionality of laws, presidential
decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives, this Court
held that when the proceeding involves the assertion of a public
right, the mere fact that he is a citizen satisfies the requirement
of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with
legal standing in view of the transcendental issues raised in its
petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground
of transcendental importance, however, it must establish (1) the
character of the funds (that it is public) or other assets involved
in the case, (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government, and (3) the lack of
any party with a more direct and specific interest in raising the
questions being raised. The first and last determinants not being
present as no public funds or assets are involved and petitioners
in G.R. Nos. 169777 and 169659 have direct and specific
interests in the resolution of the controversy, petitioner PDPLaban is bereft of standing to file its petition. Its allegation that
E.O. 464 hampers its legislative agenda is vague and uncertain,
and at best is only a "generalized interest" which it shares with
the rest of the political parties. Concrete injury, whether actual or
threatened, is that indispensable element of a dispute which
serves in part to cast it in a form traditionally capable of judicial
resolution. In fine, PDP-Labans alleged interest as a political
party does not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the
absence of the executive officials invited by the Senate to its
hearings after the issuance of E.O. 464, particularly those on the
NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there
being no showing that President Arroyo has actually withheld her
consent or prohibited the appearance of the invited officials.
These officials, they claim, merely communicated to the Senate
that they have not yet secured the consent of the President, not
that the President prohibited their attendance. Specifically with
regard to the AFP officers who did not attend the hearing on
September 28, 2005, respondents claim that the instruction not
to attend without the Presidents consent was based on its role
as Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an
unfounded apprehension that the President will abuse its power
of preventing the appearance of officials before Congress, and
that such apprehension is not sufficient for challenging the
validity of E.O. 464.
The Court finds respondents assertion that the President has
not withheld her consent or prohibited the appearance of the
officials concerned immaterial in determining the existence of an
actual case or controversy insofar as E.O. 464 is concerned. For
E.O. 464 does not require either a deliberate withholding of
consent or an express prohibition issuing from the President in
order to bar officials from appearing before Congress.
As the implementation of the challenged order has already
resulted in the absence of officials invited to the hearings of
petitioner Senate of the Philippines, it would make no sense to
wait for any further event before considering the present case
ripe for adjudication. Indeed, it would be sheer abandonment of

duty if this Court would now refrain from passing on the

constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive
officials before Congress, deprives Congress of the information
in the possession of these officials. To resolve the question of
whether such withholding of information violates the
Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is in
order.
The power of inquiry
The Congress power of inquiry is expressly recognized in
Section 21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or
any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the
1973 Constitution except that, in the latter, it vests the power of
inquiry in the unicameral legislature established therein the
Batasang Pambansa and its committees.
The 1935 Constitution did not contain a similar provision.
Nonetheless, in Arnault v. Nazareno, a case decided in 1950
under that Constitution, the Court already recognized that the
power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly
anomalous purchase of the Buenavista and Tambobong Estates
by the Rural Progress Administration. Arnault, who was
considered a leading witness in the controversy, was called to
testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he
was, by resolution of the Senate, detained for contempt.
Upholding the Senates power to punish Arnault for contempt,
this Court held:
Although there is no provision in the Constitution expressly
investing either House of Congress with power to make
investigations and exact testimony to the end that it may
exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry with process to
enforce it is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change;
and where the legislative body does not itself possess the
requisite information which is not infrequently true recourse
must be had to others who do possess it. Experience has shown
that mere requests for such information are often unavailing, and
also that information which is volunteered is not always accurate
or complete; so some means of compulsion is essential to obtain
what is needed.. . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of
the executive branch may be deduced from the same case. The
power of inquiry, the Court therein ruled, is co-extensive with the
power to legislate. The matters which may be a proper subject of
legislation and those which may be a proper subject of
investigation are one. It follows that the operation of
government, being a legitimate subject for legislation, is a proper
subject for investigation.
Thus, the Court found that the Senate investigation of the
government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the
expenditure of public funds of which Congress is the guardian,
the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is
within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of
the executive branch, it would be incongruous to hold that the
power of inquiry does not extend to executive officials who are
the most familiar with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with process to
enforce it," is grounded on the necessity of information in the
legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning, Congress has

the right to that information and the power to compel the

disclosure thereof.
As evidenced by the American experience during the so-called
"McCarthy era," however, the right of Congress to conduct
inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected
to judicial review pursuant to the Courts certiorari powers under
Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee, the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to
the public officials concerned, or to any person for that matter,
the possible needed statute which prompted the need for the
inquiry. Given such statement in its invitations, along with the
usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room
for speculation on the part of the person invited on whether the
inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that
proscribe the legislative power of inquiry. The provision requires
that the inquiry be done in accordance with the Senate or
Houses duly published rules of procedure, necessarily implying
the constitutional infirmity of an inquiry conducted without duly
published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to
the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts,
upon the proper suit filed by the persons affected, even if they
belong to the executive branch. Nonetheless, there may be
exceptional circumstances, none appearing to obtain at present,
wherein a clear pattern of abuse of the legislative power of
inquiry might be established, resulting in palpable violations of
the rights guaranteed to members of the executive department
under the Bill of Rights. In such instances, depending on the
particulars of each case, attempts by the Executive Branch to
forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still
recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege." Since
this term figures prominently in the challenged order, it being
mentioned in its provisions, its preambular clauses, and in its
very title, a discussion of executive privilege is crucial for
determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It
has been used even prior to the promulgation of the 1986
Constitution. Being of American origin, it is best understood in
light of how it has been defined and used in the legal literature of
the United States.
Schwartz defines executive privilege as "the power of the
Government to withhold information from the public, the courts,
and the Congress." Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public."
Executive privilege is, nonetheless, not a clear or unitary
concept. It has encompassed claims of varying kinds. Tribe, in
fact, comments that while it is customary to employ the phrase
"executive privilege," it may be more accurate to speak of
executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct
kinds of considerations, and may be asserted, with differing
degrees of success, in the context of either judicial or legislative
investigations."
One variety of the privilege, Tribe explains, is the state secrets
privilege invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such nature
that its disclosure would subvert crucial military or diplomatic
objectives. Another variety is the informers privilege, or the
privilege of the Government not to disclose the identity of
persons who furnish information of violations of law to officers
charged with the enforcement of that law. Finally, a generic
privilege for internal deliberations has been said to attach to

intragovernmental documents reflecting advisory opinions,

recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated.
Tribes comment is supported by the ruling in In re Sealed Case,
thus:
Since the beginnings of our nation, executive officials have
claimed a variety of privileges to resist disclosure of information
the confidentiality of which they felt was crucial to fulfillment of
the unique role and responsibilities of the executive branch of
our government. Courts ruled early that the executive had a right
to withhold documents that might reveal military or state secrets.
The courts have also granted the executive a right to withhold
the identity of government informers in some circumstances and
a qualified right to withhold information related to pending
investigations. x x x" (Emphasis and underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is
similarly instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation
of powers, exempts the executive from disclosure requirements
applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important
executive responsibilities involved in maintaining governmental
operations, and extends not only to military and diplomatic
secrets but also to documents integral to an appropriate
exercise of the executive domestic decisional and policy making
functions, that is, those documents reflecting the frank
expression necessary in intra-governmental advisory and
deliberative communications. (Emphasis and underscoring
supplied)
That a type of information is recognized as privileged does not,
however, necessarily mean that it would be considered
privileged in all instances. For in determining the validity of a
claim of privilege, the question that must be asked is not only
whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be
honored in a given procedural setting.
The leading case on executive privilege in the United States is
U.S. v. Nixon, decided in 1974. In issue in that case was the
validity of President Nixons claim of executive privilege against
a subpoena issued by a district court requiring the production of
certain tapes and documents relating to the Watergate
investigations. The claim of privilege was based on the
Presidents general interest in the confidentiality of his
conversations and correspondence. The U.S. Court held that
while there is no explicit reference to a privilege of confidentiality
in the U.S. Constitution, it is constitutionally based to the extent
that it relates to the effective discharge of a Presidents powers.
The Court, nonetheless, rejected the Presidents claim of
privilege, ruling that the privilege must be balanced against the
public interest in the fair administration of criminal justice.
Notably, the Court was careful to clarify that it was not there
addressing the issue of claims of privilege in a civil litigation or
against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege
against Congress are rare. Despite frequent assertion of the
privilege to deny information to Congress, beginning with
President Washingtons refusal to turn over treaty negotiation
records to the House of Representatives, the U.S. Supreme
Court has never adjudicated the issue. However, the U.S. Court
of Appeals for the District of Columbia Circuit, in a case decided
earlier in the same year as Nixon, recognized the Presidents
privilege over his conversations against a congressional
subpoena. Anticipating the balancing approach adopted by the
U.S. Supreme Court in Nixon, the Court of Appeals weighed the
public interest protected by the claim of privilege against the
interest that would be served by disclosure to the Committee.
Ruling that the balance favored the President, the Court
declined to enforce the subpoena.
In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez. Almonte used
the term in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision which explains
the basis for the privilege:
"The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of

confidentiality of judicial deliberations, for example, has all the

values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore
alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying
a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the
Ombudsman against the therein petitioners. It did not involve, as
expressly stated in the decision, the right of the people to
information. Nonetheless, the Court recognized that there are
certain types of information which the government may withhold
from the public, thus acknowledging, in substance if not in name,
that executive privilege may be claimed against citizens
demands for information.
In Chavez v. PCGG, the Court held that this jurisdiction
recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national
security matters." The same case held that closed-door Cabinet
meetings are also a recognized limitation on the right to
information.
Similarly, in Chavez v. Public Estates Authority the Court ruled
that the right to information does not extend to matters
recognized as "privileged information under the separation of
powers," by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet
meetings. It also held that information on military and diplomatic
secrets and those affecting national security, and information on
investigations of crimes by law enforcement agencies before the
prosecution of the accused were exempted from the right to
information.
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is
recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional
concept, a claim thereof may be valid or not depending on the
ground invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive officials are
exempt from the duty to disclose information by the mere fact of
being executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines heavily
against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials
covered by them to secure the consent of the President prior to
appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court
to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not,
unlike Section 3, require a prior determination by any official
whether they are covered by E.O. 464. The President herself
has, through the challenged order, made the determination that
they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on the
department heads possession of any information which might
be covered by executive privilege. In fact, in marked contrast to
Section 3 vis--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-vis Section 21 which provides for the power of either House of
Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional
Commission shows, the framers were aware that these two
provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now
Section 22 on the Question Hour] yesterday, I noticed that
members of the Cabinet cannot be compelled anymore to
appear before the House of Representatives or before the
Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang
Pambansa as the Gentleman himself has experienced in the
interim Batasang Pambansa one of the most competent inputs
that we can put in our committee deliberations, either in aid of
legislation or in congressional investigations, is the testimonies
of Cabinet ministers. We usually invite them, but if they do not
come and it is a congressional investigation, we usually issue
subpoenas.
I want to be clarified on a statement made by Commissioner
Suarez when he said that the fact that the Cabinet ministers may
refuse to come to the House of Representatives or the Senate
[when requested under Section 22] does not mean that they
need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of
legislation or congressional investigation. According to
Commissioner Suarez, that is allowed and their presence can be
had under Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because
Section 20 refers only to what was originally the Question Hour,
whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be
summoned and if he refuses, he can be held in contempt of the
House. (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of
legislation and the question hour. While attendance was meant
to be discretionary in the question hour, it was compulsory in
inquiries in aid of legislation. The reference to Commissioner
Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads
discretionary in the question hour.
So clearly was this distinction conveyed to the members of the
Commission that the Committee on Style, precisely in
recognition of this distinction, later moved the provision on
question hour from its original position as Section 20 in the
original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following
exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the
Committee on Style] We now go, Mr. Presiding Officer, to the
Article on Legislative and may I request the chairperson of the
Legislative Department, Commissioner Davide, to give his
reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide
is recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one
reaction to the Question Hour. I propose that instead of putting it
as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr.
Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when
we sequenced this but we reasoned that in Section 21, which is
Legislative Inquiry, it is actually a power of Congress in terms of
its own lawmaking; whereas, a Question Hour is not actually a
power in terms of its own lawmaking power because in
Legislative Inquiry, it is in aid of legislation. And so we put

Question Hour as Section 31. I hope Commissioner Davide will

consider this.
MR. DAVIDE. The Question Hour is closely related with the
legislative power, and it is precisely as a complement to or a
supplement of the Legislative Inquiry. The appearance of the
members of Cabinet would be very, very essential not only in the
application of check and balance but also, in effect, in aid of
legislation.
MR. MAAMBONG. After conferring with the committee, we find
merit in the suggestion of Commissioner Davide. In other words,
we are accepting that and so this Section 31 would now become
Section 22. Would it be, Commissioner Davide?
MR. DAVIDE. Yes. (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations,
Commissioners Davide and Maambong proceeded from the
same assumption that these provisions pertained to two different
functions of the legislature. Both Commissioners understood that
the power to conduct inquiries in aid of legislation is different
from the power to conduct inquiries during the question hour.
Commissioner Davides only concern was that the two
provisions on these distinct powers be placed closely together,
they being complementary to each other. Neither Commissioner
considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners alone.
From the above-quoted exchange, Commissioner Maambongs
committee the Committee on Style shared the view that the
two provisions reflected distinct functions of Congress.
Commissioner Davide, on the other hand, was speaking in his
capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing
that of his Committee.
In the context of a parliamentary system of government, the
"question hour" has a definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister
and the other ministers accountable for their acts and the
operation of the government, corresponding to what is known in
Britain as the question period. There was a specific provision for
a question hour in the 1973 Constitution which made the
appearance of ministers mandatory. The same perfectly
conformed to the parliamentary system established by that
Constitution, where the ministers are also members of the
legislature and are directly accountable to it.
An essential feature of the parliamentary system of government
is the immediate accountability of the Prime Minister and the
Cabinet to the National Assembly. They shall be responsible to
the National Assembly for the program of government and shall
determine the guidelines of national policy. Unlike in the
presidential system where the tenure of office of all elected
officials cannot be terminated before their term expired, the
Prime Minister and the Cabinet remain in office only as long as
they enjoy the confidence of the National Assembly. The
moment this confidence is lost the Prime Minister and the
Cabinet may be changed.
The framers of the 1987 Constitution removed the mandatory
nature of such appearance during the question hour in the
present Constitution so as to conform more fully to a system of
separation of powers. To that extent, the question hour, as it is
presently understood in this jurisdiction, departs from the
question period of the parliamentary system. That department
heads may not be required to appear in a question hour does
not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light
of the absence of a mandatory question period, the need to
enforce Congress right to executive information in the
performance of its legislative function becomes more imperative.
As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the
subject under discussion, it is that the Congress has the right to
obtain information from any source even from officials of
departments and agencies in the executive branch. In the United
States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very
separation that makes the congressional right to obtain
information from the executive so essential, if the functions of
the Congress as the elected representatives of the people are

adequately to be carried out. The absence of close rapport

between the legislative and executive branches in this country,
comparable to those which exist under a parliamentary system,
and the nonexistence in the Congress of an institution such as
the British question period have perforce made reliance by the
Congress upon its right to obtain information from the executive
essential, if it is intelligently to perform its legislative tasks.
Unless the Congress possesses the right to obtain executive
information, its power of oversight of administration in a system
such as ours becomes a power devoid of most of its practical
content, since it depends for its effectiveness solely upon
information parceled out ex gratia by the executive. (Emphasis
and underscoring supplied)
Sections 21 and 22, therefore, while closely related and
complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically
relates to the power to conduct inquiries in aid of legislation, the
aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a
question hour, the objective of which is to obtain information in
pursuit of Congress oversight function.
When Congress merely seeks to be informed on how
department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that
of the President to whom, as Chief Executive, such department
heads must give a report of their performance as a matter of
duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request
their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is "in aid of legislation"
under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in
pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of
executive officials under Section 21 and the lack of it under
Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate
by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be
exempted from this power the President on whom executive
power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the
highest official of the executive branch, and the due respect
accorded to a co-equal branch of government which is
sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also
exempt from this power of inquiry. Unlike the Presidency, judicial
power is vested in a collegial body; hence, each member thereof
is exempt on the basis not only of separation of powers but also
on the fiscal autonomy and the constitutional independence of
the judiciary. This point is not in dispute, as even counsel for the
Senate, Sen. Joker Arroyo, admitted it during the oral argument
upon interpellation of the Chief Justice.
Having established the proper interpretation of Section 22,
Article VI of the Constitution, the Court now proceeds to pass on
the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article
VI of the Constitution and the absence of any reference to
inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question
hour contemplated in the provision of said Section 22 of Article
VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way
that will render it constitutional.
The requirement then to secure presidential consent under
Section 1, limited as it is only to appearances in the question
hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the
question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of

department heads in inquiries in aid of legislation. Congress is
not bound in such instances to respect the refusal of the
department head to appear in such inquiry, unless a valid claim
of privilege is subsequently made, either by the President herself
or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated
in Section 2(b) to secure the consent of the President prior to
appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all
officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated
in the same section (i.e. department heads, Chief of Staff of the
AFP, Chief of the PNP, and the National Security Adviser), are
"covered by the executive privilege."
The enumeration also includes such other officers as may be
determined by the President. Given the title of Section 2
"Nature, Scope and Coverage of Executive Privilege" , it is
evident that under the rule of ejusdem generis, the determination
by the President under this provision is intended to be based on
a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464
virtually states that executive privilege actually covers persons.
Such is a misuse of the doctrine. Executive privilege, as
discussed above, is properly invoked in relation to specific
categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the
nature, scope and coverage of executive privilege, the reference
to persons being "covered by the executive privilege" may be
read as an abbreviated way of saying that the person is in
possession of information which is, in the judgment of the head
of office concerned, privileged as defined in Section 2(a). The
Court shall thus proceed on the assumption that this is the
intention of the challenged order.
Upon a determination by the designated head of office or by the
President that an official is "covered by the executive privilege,"
such official is subjected to the requirement that he first secure
the consent of the President prior to appearing before Congress.
This requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President. The
proviso allowing the President to give its consent means nothing
more than that the President may reverse a prohibition which
already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the
determination by a head of office, authorized by the President
under E.O. 464, or by the President herself, that such official is
in possession of information that is covered by executive
privilege. This determination then becomes the basis for the
officials not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify
his failure to be present, such invocation must be construed as a
declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested
information is privileged, and that the President has not reversed
such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied
claim that the information is being withheld by the executive
branch, by authority of the President, on the basis of executive
privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive
Secretary Ermita to Senate President Drilon illustrates the
implied nature of the claim of privilege authorized by E.O. 464. It
reads:
In connection with the inquiry to be conducted by the Committee
of the Whole regarding the Northrail Project of the North Luzon
Railways Corporation on 29 September 2005 at 10:00 a.m.,
please be informed that officials of the Executive Department
invited to appear at the meeting will not be able to attend the
same without the consent of the President, pursuant to
Executive Order No. 464 (s. 2005), entitled "Ensuring
Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For
The Rights Of Public Officials Appearing In Legislative Inquiries
In Aid Of Legislation Under The Constitution, And For Other

Purposes". Said officials have not secured the required consent

from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that
the matter on which these officials are being requested to be
resource persons falls under the recognized grounds of the
privilege to justify their absence. Nor does it expressly state that
in view of the lack of consent from the President under E.O. 464,
they cannot attend the hearing.
Significant premises in this letter, however, are left unstated,
deliberately or not. The letter assumes that the invited officials
are covered by E.O. 464. As explained earlier, however, to be
covered by the order means that a determination has been
made, by the designated head of office or the President, that the
invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter
that such determination has been made, the same must be
deemed implied. Respecting the statement that the invited
officials have not secured the consent of the President, it only
means that the President has not reversed the standing
prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the
conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has
made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has
been no contrary pronouncement from the President. In fine, an
implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the
issue of whether executive privilege may be invoked against
Congress, it is gathered from Chavez v. PEA that certain
information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case
holds:
There is no claim by PEA that the information demanded by
petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential
conversations, correspondences, or discussions during closeddoor Cabinet meetings which, like internal-deliberations of the
Supreme Court and other collegiate courts, or executive
sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a
co-equal branch of government. A frank exchange of exploratory
ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise
Presidential, Legislative and Judicial power. This is not the
situation in the instant case. (Emphasis and underscoring
supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright
as invalid by the mere fact that it sanctions claims of executive
privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.
While the validity of claims of privilege must be assessed on a
case to case basis, examining the ground invoked therefor and
the particular circumstances surrounding it, there is, in an
implied claim of privilege, a defect that renders it invalid per se.
By its very nature, and as demonstrated by the letter of
respondent Executive Secretary quoted above, the implied claim
authorized by Section 3 of E.O. 464 is not accompanied by any
specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the
privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the
phrase "confidential or classified information between the
President and the public officers covered by this executive
order."
Certainly, Congress has the right to know why the executive
considers the requested information privileged. It does not
suffice to merely declare that the President, or an authorized
head of office, has determined that it is so, and that the
President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested

information could be classified as privileged. That the message

is couched in terms that, on first impression, do not seem like a
claim of privilege only makes it more pernicious. It threatens to
make Congress doubly blind to the question of why the
executive branch is not providing it with the information that it
has requested.
A claim of privilege, being a claim of exemption from an
obligation to disclose information, must, therefore, be clearly
asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted
by it; it can neither be claimed nor waived by a private party. It is
not to be lightly invoked. There must be a formal claim of
privilege, lodged by the head of the department which has
control over the matter, after actual personal consideration by
that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet
do so without forcing a disclosure of the very thing the privilege
is designed to protect. (Underscoring supplied)
Absent then a statement of the specific basis of a claim of
executive privilege, there is no way of determining whether it
falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected.
These, in substance, were the same criteria in assessing the
claim of privilege asserted against the Ombudsman in Almonte
v. Vasquez and, more in point, against a committee of the
Senate in Senate Select Committee on Presidential Campaign
Activities v. Nixon.
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential
harm resulting from disclosure impossible, thereby preventing
the Court from balancing such harm against plaintiffs needs to
determine whether to override any claims of privilege.
(Underscoring supplied)
And so is U.S. v. Article of Drug:
On the present state of the record, this Court is not called upon
to perform this balancing operation. In stating its objection to
claimants interrogatories, government asserts, and nothing
more, that the disclosures sought by claimant would inhibit the
free expression of opinion that non-disclosure is designed to
protect. The government has not shown nor even alleged
that those who evaluated claimants product were involved in
internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts
upon which the privilege is based must be established. To find
these interrogatories objectionable, this Court would have to
assume that the evaluation and classification of claimants
products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua
sponte. (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy similarly emphasizes
that "an agency must provide precise and certain reasons for
preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America amplifies, thus:
A formal and proper claim of executive privilege requires a
specific designation and description of the documents within its
scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court
to analyze the claim short of disclosure of the very thing sought
to be protected. As the affidavit now stands, the Court has little
more than its sua sponte speculation with which to weigh the
applicability of the claim. An improperly asserted claim of
privilege is no claim of privilege. Therefore, despite the fact that
a claim was made by the proper executive as Reynolds requires,
the Court can not recognize the claim in the instant case
because it is legally insufficient to allow the Court to make a just
and reasonable determination as to its applicability. To recognize
such a broad claim in which the Defendant has given no precise
or compelling reasons to shield these documents from outside
scrutiny, would make a farce of the whole procedure. (Emphasis
and underscoring supplied)
Due respect for a co-equal branch of government, moreover,
demands no less than a claim of privilege clearly stating the
grounds therefor. Apropos is the following ruling in McPhaul v.
U.S:
We think the Courts decision in United States v. Bryan, 339 U.S.
323, 70 S. Ct. 724, is highly relevant to these questions. For it is

as true here as it was there, that if (petitioner) had legitimate

reasons for failing to produce the records of the association, a
decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he)
state (his) reasons for noncompliance upon the return of the writ.
Such a statement would have given the Subcommittee an
opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. To deny the Committee
the opportunity to consider the objection or remedy is in itself a
contempt of its authority and an obstruction of its processes. His
failure to make any such statement was "a patent evasion of the
duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned."
(Emphasis and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive
to state the reasons for the claim with such particularity as to
compel disclosure of the information which the privilege is meant
to protect. A useful analogy in determining the requisite degree
of particularity would be the privilege against self-incrimination.
Thus, Hoffman v. U.S. declares:
The witness is not exonerated from answering merely because
he declares that in so doing he would incriminate himself his
say-so does not of itself establish the hazard of incrimination. It
is for the court to say whether his silence is justified, and to
require him to answer if it clearly appears to the court that he is
mistaken. However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim
is usually required to be established in court, he would be
compelled to surrender the very protection which the privilege is
designed to guarantee. To sustain the privilege, it need only be
evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous
because injurious disclosure could result." x x x (Emphasis and
underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to
Section 2(b) is thus invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. It is
woefully insufficient for Congress to determine whether the
withholding of information is justified under the circumstances of
each case. It severely frustrates the power of inquiry of
Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be
invalidated.
No infirmity, however, can be imputed to Section 2(a) as it
merely provides guidelines, binding only on the heads of office
mentioned in Section 2(b), on what is covered by executive
privilege. It does not purport to be conclusive on the other
branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and
scope of executive privilege.
Petitioners, however, assert as another ground for invalidating
the challenged order the alleged unlawful delegation of authority
to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States
where, so it claims, only the President can assert executive
privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once
the head of office determines that a certain information is
privileged, such determination is presumed to bear the
Presidents authority and has the effect of prohibiting the official
from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the
exceptional nature of the privilege. Executive privilege, as
already discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the
unique role and responsibilities of the executive branch, or in
those instances where exemption from disclosure is necessary
to the discharge of highly important executive responsibilities.
The doctrine of executive privilege is thus premised on the fact
that certain informations must, as a matter of necessity, be kept

confidential in pursuit of the public interest. The privilege being,

by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of
such high degree as to outweigh the public interest in enforcing
that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the
Court finds it essential to limit to the President the power to
invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case the
Executive Secretary must state that the authority is "By order of
the President," which means that he personally consulted with
her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In
other words, the President may not authorize her subordinates
to exercise such power. There is even less reason to uphold
such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section
2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by
Congress on a matter which, in his own judgment, might be
covered by executive privilege, he must be afforded reasonable
time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with
fair opportunity to consider whether the matter indeed calls for a
claim of executive privilege. If, after the lapse of that reasonable
time, neither the President nor the Executive Secretary invokes
the privilege, Congress is no longer bound to respect the failure
of the official to appear before Congress and may then opt to
avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for
requiring officials to secure the consent of the President under
Section 3 of E.O. 464 is to ensure "respect for the rights of
public officials appearing in inquiries in aid of legislation." That
such rights must indeed be respected by Congress is an echo
from Article VI Section 21 of the Constitution mandating that
"[t]he rights of persons appearing in or affected by such inquiries
shall be respected."
In light of the above discussion of Section 3, it is clear that it is
essentially an authorization for implied claims of executive
privilege, for which reason it must be invalidated. That such
authorization is partly motivated by the need to ensure respect
for such officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the
appearance of executive officials in the hearings conducted by it,
and not with the demands of citizens for information pursuant to
their right to information on matters of public concern. Petitioners
are not amiss in claiming, however, that what is involved in the
present controversy is not merely the legislative power of inquiry,
but the right of the people to information.
There are, it bears noting, clear distinctions between the right of
Congress to information which underlies the power of inquiry
and the right of the people to information on matters of public
concern. For one, the demand of a citizen for the production of
documents pursuant to his right to information does not have the
same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen
the power to exact testimony from government officials. These
powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by
the people, it does not follow, except in a highly qualified sense,
that in every exercise of its power of inquiry, the people are
exercising their right to information.
To the extent that investigations in aid of legislation are generally
conducted in public, however, any executive issuance tending to
unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being
presumed to be in aid of legislation, is presumed to be a matter
of public concern. The citizens are thereby denied access to
information which they can use in formulating their own opinions
on the matter before Congress opinions which they can then
communicate to their representatives and other government
officials through the various legal means allowed by their
freedom of expression. Thus holds Valmonte v. Belmonte:

10

It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may
perceive and be responsive to the peoples will. Yet, this open
dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues
and have access to information relating thereto can such bear
fruit. (Emphasis and underscoring supplied)
The impairment of the right of the people to information as a
consequence of E.O. 464 is, therefore, in the sense explained
above, just as direct as its violation of the legislatures power of
inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it
does not follow that the same is exempt from the need for
publication. On the need for publishing even those statutes that
do not directly apply to people in general, Taada v. Tuvera
states:
The term "laws" should refer to all laws and not only to those of
general application, for strictly speaking all laws relate to the
people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular
individual, like a relative of President Marcos who was decreed
instant naturalization. It surely cannot be said that such a law
does not affect the public although it unquestionably does not
apply directly to all the people. The subject of such law is a
matter of public interest which any member of the body politic
may question in the political forums or, if he is a proper party,
even in courts of justice. (Emphasis and underscoring supplied)
Although the above statement was made in reference to
statutes, logic dictates that the challenged order must be
covered by the publication requirement. As explained above,
E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. It is, therefore, a
matter of public interest which members of the body politic may
question before this Court. Due process thus requires that the
people should have been apprised of this issuance before it was
implemented.
Conclusion
Congress undoubtedly has a right to information from the
executive branch whenever it is sought in aid of legislation. If the
executive branch withholds such information on the ground that
it is privileged, it must so assert it and state the reason therefor
and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive
branch to evade congressional requests for information without
need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said
provisions, the power of Congress to conduct inquiries in aid of
legislation is frustrated. That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old
presumption in favor of secrecy, based on the divine right of
kings and nobles, and replace it with a presumption in favor of
publicity, based on the doctrine of popular sovereignty.
(Underscoring supplied)
Resort to any means then by which officials of the executive
branch could refuse to divulge information cannot be presumed
valid. Otherwise, we shall not have merely nullified the power of
our legislature to inquire into the operations of government, but
we shall have given up something of much greater value our
right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections
2(b) and 3 of Executive Order No. 464 (series of 2005),
"Ensuring Observance of the Principle of Separation of Powers,
Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing
in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes," are declared VOID.
Sections 1 and 2(a) are, however, VALID. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643
March 25, 2008
ROMULO L. NERI, petitioner, vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC

OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON

TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY, respondents.
DECISION
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the Rules of
Court assailing the show cause Letter dated November 22, 2007
and contempt Order dated January 30, 2008 concurrently issued
by respondent
Senate Committees on Accountability of Public Officers and
Investigations, Trade and Commerce, and National Defense and
Security against petitioner Romulo L. Neri, former Director
General of the National Economic and Development Authority
(NEDA).
The facts, as culled from the pleadings, are as follows:
On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong Xing
Telecommunications Equipment (ZTE) for the supply of
equipment and services for the National Broadband Network
(NBN) Project in the amount of U.S. $ 329,481,290
(approximately P16 Billion Pesos). The Project was to be
financed by the People's Republic of China.
In connection with this NBN Project, various Resolutions were
introduced in the Senate, as follows:
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q.
Pimentel, Jr., entitled RESOLUTION DIRECTING THE BLUE
RIBBON COMMITTEE AND THE COMMITTEE ON TRADE
AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION,
THE CIRCUMSTANCES LEADING TO THE APPROVAL OF
THE BROADBAND CONTRACT WITH ZTE AND THE ROLE
PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO
HALE TO THE COURTS OF LAW THE PERSONS
RESPONSIBLE FOR ANY ANOMALY IN CONNECTION
THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN
THE BOT LAW AND OTHER PERTINENT LEGISLATIONS.
(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled
RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL
ARROYO TO DIRECT THE CANCELLATION OF THE ZTE
CONTRACT
(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson,
entitled RESOLUTION DIRECTING THE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY TO CONDUCT AN
INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL
SECURITY IMPLICATIONS OF AWARDING THE NATIONAL
BROADBAND NETWORK CONTRACT TO THE CHINESE
FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT
COMPANY LIMITED (ZTE CORPORATION) WITH THE END IN
VIEW OF PROVIDING REMEDIAL LEGISLATION THAT WILL
PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND
TERRITORIAL INTEGRITY.
(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor
Santiago, entitled RESOLUTION DIRECTING THE PROPER
SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF
LEGISLATION, ON THE LEGAL AND ECONOMIC
JUSTIFICATION OF THE NATIONAL BROADBAND NETWORK
(NBN) PROJECT OF THE NATIONAL GOVERNMENT.
At the same time, the investigation was claimed to be relevant to
the consideration of three (3) pending bills in the Senate, to wit:
1. Senate Bill No. 1793, introduced by Senator Mar Roxas,
entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL
OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN
THE PROCUREMENT OF INFRASTRUCTURE PROJECTS,
GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN
THE SCOPE AND APPLICATION OF PHILIPPINE
PROCUREMENT LAWS, AMENDING FOR THE PURPOSE
REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE
GOVERNMENT PROCUREMENT REFORM ACT, AND FOR
OTHER PURPOSES;
2. Senate Bill No. 1794, introduced by Senator Mar Roxas,
entitled AN ACT IMPOSING SAFEGUARDS IN CONTRACTING
LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT
ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC
ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555,
OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT

11

ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES;

and
3. Senate Bill No. 1317, introduced by Senator Miriam Defensor
Santiago, entitled AN ACT MANDATING CONCURRENCE TO
INTERNATIONAL AGREEMENTS AND EXECUTIVE
AGREEMENTS.
Respondent Committees initiated the investigation by sending
invitations to certain personalities and cabinet officials involved
in the NBN Project. Petitioner was among those invited. He was
summoned to appear and testify on September 18, 20, and 26
and October 25, 2007. However, he attended only the
September 26 hearing, claiming he was "out of town" during the
other dates.
In the September 18, 2007 hearing, businessman Jose de
Venecia III testified that several high executive officials and
power brokers were using their influence to push the approval of
the NBN Project by the NEDA. It appeared that the Project was
initially approved as a Build-Operate-Transfer (BOT) project but,
on March 29, 2007, the NEDA acquiesced to convert it into a
government-to-government project, to be financed through a
loan from the Chinese Government.
On September 26, 2007, petitioner testified before respondent
Committees for eleven (11) hours. He disclosed that then
Commission on Elections (COMELEC) Chairman Benjamin
Abalos offered him P200 Million in exchange for his approval of
the NBN Project. He further narrated that he informed President
Arroyo about the bribery attempt and that she instructed him not
to accept the bribe. However, when probed further on what they
discussed about the NBN Project, petitioner refused to answer,
invoking "executive privilege". In particular, he refused to answer
the questions on (a) whether or not President Arroyo followed up
the NBN Project, (b) whether or not she directed him to prioritize
it, and (c) whether or not she directed him to approve.
Unrelenting, respondent Committees issued a Subpoena Ad
Testificandum to petitioner, requiring him to appear and testify on
November 20, 2007.
However, in the Letter dated November 15, 2007, Executive
Secretary Eduardo R. Ermita requested respondent Committees
to dispense with petitioner's testimony on the ground of
executive privilege. The pertinent portion of the letter reads:
With reference to the subpoena ad testificandum issued to
Secretary Romulo Neri to appear and testify again on 20
November 2007 before the Joint Committees you chair, it will be
recalled that Sec. Neri had already testified and exhaustively
discussed the ZTE / NBN project, including his conversation with
the President thereon last 26 September 2007.
Asked to elaborate further on his conversation with the
President, Sec. Neri asked for time to consult with his superiors
in line with the ruling of the Supreme Court in Senate v. Ermita,
488 SCRA 1 (2006).
Specifically, Sec. Neri sought guidance on the possible
invocation of executive privilege on the following questions, to
wit:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the
project after being told about the alleged bribe?
Following the ruling in Senate v. Ermita, the foregoing questions
fall under conversations and correspondence between the
President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995;
Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the
confidentiality of conversations of the President is necessary in
the exercise of her executive and policy decision making
process. The expectation of a President to the confidentiality of
her conversations and correspondences, like the value which we
accord deference for the privacy of all citizens, is the necessity
for protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making.
Disclosure of conversations of the President will have a chilling
effect on the President, and will hamper her in the effective
discharge of her duties and responsibilities, if she is not
protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that
the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's

Republic of China. Given the confidential nature in which these

information were conveyed to the President, he cannot provide
the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to
protect.
In light of the above considerations, this Office is constrained to
invoke the settled doctrine of executive privilege as refined in
Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on
the subject in an unprecedented 11-hour hearing, wherein he
has answered all questions propounded to him except the
foregoing questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on the ZTE /
NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before
respondent Committees. Thus, on November 22, 2007, the latter
issued the show cause Letter requiring him to explain why he
should not be cited in contempt. The Letter reads:
Since you have failed to appear in the said hearing, the
Committees on Accountability of Public Officers and
Investigations (Blue Ribbon), Trade and Commerce and National
Defense and Security require you to show cause why you
should not be cited in contempt under Section 6, Article 6 of the
Rules of the Committee on Accountability of Public Officers and
Investigations (Blue Ribbon).
The Senate expects your explanation on or before 2 December
2007.
On November 29, 2007, petitioner replied to respondent
Committees, manifesting that it was not his intention to ignore
the Senate hearing and that he thought the only remaining
questions were those he claimed to be covered by executive
privilege, thus:
It was not my intention to snub the last Senate hearing. In fact, I
have cooperated with the task of the Senate in its inquiry in aid
of legislation as shown by my almost 11 hours stay during the
hearing on 26 September 2007. During said hearing, I answered
all the questions that were asked of me, save for those which I
thought was covered by executive privilege, and which was
confirmed by the Executive Secretary in his Letter 15 November
2007. In good faith, after that exhaustive testimony, I thought
that what remained were only the three questions, where the
Executive Secretary claimed executive privilege. Hence, his
request that my presence be dispensed with.
Be that as it may, should there be new matters that were not yet
taken up during the 26 September 2007 hearing, may I be
furnished in advance as to what else I need to clarify, so that as
a resource person, I may adequately prepare myself.
In addition, petitioner submitted a letter prepared by his counsel,
Atty. Antonio R. Bautista, stating, among others that: (1) his
(petitioner) non-appearance was upon the order of the
President; and (2) his conversation with President Arroyo dealt
with delicate and sensitive national security and diplomatic
matters relating to the impact of the bribery scandal involving
high government officials and the possible loss of confidence of
foreign investors and lenders in the Philippines. The letter ended
with a reiteration of petitioner's request that he "be furnished in
advance" as to what else he needs to clarify so that he may
adequately prepare for the hearing.
In the interim, on December 7, 2007, petitioner filed with this
Court the present petition for certiorari assailing the show cause
Letter dated November 22, 2007.
Respondent Committees found petitioner's explanations
unsatisfactory. Without responding to his request for advance
notice of the matters that he should still clarify, they issued the
Order dated January 30, 2008, citing him in contempt of
respondent Committees and ordering his arrest and detention at
the Office of the Senate Sergeant-At-Arms until such time that
he would appear and give his testimony. The said Order states:
ORDER
For failure to appear and testify in the Committee's hearing on
Tuesday, September 18, 2007; Thursday, September 20, 2007;
Thursday, October 25, 2007; and Tuesday, November 20, 2007,
despite personal notice and Subpoenas Ad Testificandum sent
to and received by him, which thereby delays, impedes and
obstructs, as it has in fact delayed, impeded and obstructed the
inquiry into the subject reported irregularities, AND for failure to

12

explain satisfactorily why he should not be cited for contempt

(Neri letter of 29 November 2007), herein attached) ROMULO L.
NERI is hereby cited in contempt of this (sic) Committees and
ordered arrested and detained in the Office of the Senate
Sergeant-At-Arms until such time that he will appear and give
his testimony.
The Sergeant-At-Arms is hereby directed to carry out and
implement this Order and make a return hereof within twenty
four (24) hours from its enforcement.
SO ORDERED.
On the same date, petitioner moved for the reconsideration of
the above Order. He insisted that he has not shown "any
contemptible conduct worthy of contempt and arrest." He
emphasized his willingness to testify on new matters, however,
respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for
certiorari he filed on December 7, 2007. According to him, this
should restrain respondent Committees from enforcing the show
cause Letter "through the issuance of declaration of contempt"
and arrest.
In view of respondent Committees' issuance of the contempt
Order, petitioner filed on February 1, 2008 a Supplemental
Petition for Certiorari (With Urgent Application for
TRO/Preliminary Injunction), seeking to restrain the
implementation of the said contempt Order.
On February 5, 2008, the Court issued a Status Quo Ante Order
(a) enjoining respondent Committees from implementing their
contempt Order, (b) requiring the parties to observe the status
quo prevailing prior to the issuance of the assailed order, and (c)
requiring respondent Committees to file their comment.
Petitioner contends that respondent Committees' show cause
Letter and contempt Order were issued with grave abuse of
discretion amounting to lack or excess of jurisdiction. He
stresses that his conversations with President Arroyo are
"candid discussions meant to explore options in making policy
decisions." According to him, these discussions "dwelt on the
impact of the bribery scandal involving high government officials
on the country's diplomatic relations and economic and military
affairs and the possible loss of confidence of foreign investors
and lenders in the Philippines." He also emphasizes that his
claim of executive privilege is upon the order of the President
and within the parameters laid down in Senate v. Ermita and
United States v. Reynolds. Lastly, he argues that he is precluded
from disclosing communications made
to him in official confidence under Section 7 of Republic Act No.
6713, otherwise known as Code of Conduct and Ethical
Standards for Public Officials and Employees, and Section 24
(e) of Rule 130 of the Rules of Court.
Respondent Committees assert the contrary. They argue that (1)
petitioner's testimony is material and pertinent in the
investigation conducted in aid of legislation; (2) there is no valid
justification for petitioner to claim executive privilege; (3) there is
no abuse of their authority to order petitioner's arrest; and (4)
petitioner has not come to court with clean hands.
In the oral argument held last March 4, 2008, the following
issues were ventilated:
1. What communications between the President and petitioner
Neri are covered by the principle of 'executive privilege'?
1.a Did Executive Secretary Ermita correctly invoke the principle
of executive privilege, by order of the President, to cover (i)
conversations of the President in the exercise of her executive
and policy decision-making and (ii) information, which might
impair our diplomatic as well as economic relations with the
People's Republic of China?
1.b. Did petitioner Neri correctly invoke executive privilege to
avoid testifying on his conversations with the President on the
NBN contract on his assertions that the said conversations
"dealt with delicate and sensitive national security and diplomatic
matters relating to the impact of bribery scandal involving high
government officials and the possible loss of confidence of
foreign investors and lenders in the Philippines" x x x within the
principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?
1.c Will the claim of executive privilege in this case violate the
following provisions of the Constitution:
Sec. 28, Art. II (Full public disclosure of all transactions involving
public interest)

Sec. 7, Art. III (The right of the people to information on matters

of public concern)
Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that the laws be
faithfully executed)
and the due process clause and the principle of separation of
powers?
2. What is the proper procedure to be followed in invoking
executive privilege?
3. Did the Senate Committees gravely abuse their discretion in
ordering the arrest of petitioner for non-compliance with the
subpoena?
After the oral argument, the parties were directed to manifest to
the Court within twenty-four (24) hours if they are amenable to
the Court's proposal of allowing petitioner to immediately resume
his testimony before the Senate Committees to answer the other
questions of the Senators without prejudice to the decision on
the merits of this pending petition. It was understood that
petitioner may invoke executive privilege in the course of the
Senate Committees proceedings, and if the respondent
Committees disagree thereto, the unanswered questions will be
the subject of a supplemental pleading to be resolved along with
the three (3) questions subject of the present petition. At the
same time, respondent Committees were directed to submit
several pertinent documents.
The Senate did not agree with the proposal for the reasons
stated in the Manifestation dated March 5, 2008. As to the
required documents, the Senate and respondent Committees
manifested that they would not be able to submit the latter's
"Minutes of all meetings" and the "Minute Book" because it has
never been the "historical and traditional legislative practice to
keep them." They instead submitted the Transcript of
Stenographic Notes of respondent Committees' joint public
hearings.
On March 17, 2008, the Office of the Solicitor General (OSG)
filed a Motion for Leave to Intervene and to Admit Attached
Memorandum, founded on the following arguments:
(1) The communications between petitioner and the President
are covered by the principle of "executive privilege."
(2) Petitioner was not summoned by respondent Senate
Committees in accordance with the law-making body's power to
conduct inquiries in aid of legislation as laid down in Section 21,
Article VI of the Constitution and Senate v. Ermita.
(3) Respondent Senate Committees gravely abused its
discretion for alleged non-compliance with the Subpoena dated
November 13, 2007.
The Court granted the OSG's motion the next day, March 18,
2008.
As the foregoing facts unfold, related events transpired.
On March 6, 2008, President Arroyo issued Memorandum
Circular No. 151, revoking Executive Order No. 464 and
Memorandum Circular No. 108. She advised executive officials
and employees to follow and abide by the Constitution, existing
laws and jurisprudence, including, among others, the case of
Senate v. Ermita when they are invited to legislative inquiries in
aid of legislation.
At the core of this controversy are the two (2) crucial queries, to
wit:
First, are the communications elicited by the subject three (3)
questions covered by executive privilege?
And second, did respondent Committees commit grave abuse of
discretion in issuing the contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark case of Senate v.
Ermita becomes imperative. Senate draws in bold strokes the
distinction between the legislative and oversight powers of the
Congress, as embodied under Sections 21 and 22, respectively,
of Article VI of the Constitution, to wit:
SECTION 21. The Senate or the House of Representatives or
any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
SECTION 22. The heads of department may upon their own
initiative, with the consent of the President, or upon the request
of either House, or as the rules of each House shall provide,

13

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.
Senate cautions that while the above provisions are closely
related and complementary to each other, they should not be
considered as pertaining to the same power of Congress.
Section 21 relates to the power to conduct inquiries in aid of
legislation. Its aim is to elicit information that may be used for
legislation. On the other hand, Section 22 pertains to the power
to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress' oversight function. Simply
stated, while both powers allow Congress or any of its
committees to conduct inquiry, their objectives are different.
This distinction gives birth to another distinction with regard to
the use of compulsory process. Unlike in Section 21, Congress
cannot compel the appearance of executive officials under
Section 22. The Court's pronouncement in Senate v. Ermita is
clear:
When Congress merely seeks to be informed on how
department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that
of the President to whom, as Chief Executive, such department
heads must give a report of their performance as a matter of
duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request
their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is 'in aid of legislation'
under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in
pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission
Ultimately, the power of Congress to compel the appearance of
executive officials under section 21 and the lack of it under
Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate
by refusing to comply with its demands for information.
(Emphasis supplied.)
The availability of the power of judicial review to resolve the
issues raised in this case has also been settled in Senate v.
Ermita, when it held:
As evidenced by the American experience during the so-called
"McCarthy era," however, the right of Congress to conduct
inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected
to judicial review pursuant to the Court's certiorari powers under
Section 1, Article VIII of the Constitution.
Hence, this decision.
I
The Communications Elicited by the Three (3) Questions are
Covered by Executive Privilege
We start with the basic premises where the parties have
conceded.
The power of Congress to conduct inquiries in aid of legislation
is broad. This is based on the proposition that a legislative body
cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is
intended to affect or change. Inevitably, adjunct thereto is the
compulsory process to enforce it. But, the power, broad as it is,
has limitations. To be valid, it is imperative that it is done in
accordance with the Senate or House duly published rules of
procedure and that the rights of the persons appearing in or
affected by such inquiries be respected.
The power extends even to executive officials and the only way
for them to be exempted is through a valid claim of executive
privilege. This directs us to the consideration of the question -- is
there a recognized claim of executive privilege despite the
revocation of E.O. 464?

A- There is a Recognized Claim

of Executive Privilege Despite the
Revocation of E.O. 464
At this juncture, it must be stressed that the revocation of E.O.
464 does not in any way diminish our concept of executive
privilege. This is because this concept has Constitutional
underpinnings. Unlike the United States which has further
accorded the concept with statutory status by enacting the
Freedom of Information Act and the Federal Advisory Committee
Act, the Philippines has retained its constitutional origination,
occasionally interpreted only by this Court in various cases. The
most recent of these is the case of Senate v. Ermita where this
Court declared unconstitutional substantial portions of E.O. 464.
In this regard, it is worthy to note that Executive Ermita's Letter
dated November 15, 2007 limits its bases for the claim of
executive privilege to Senate v. Ermita, Almonte v. Vasquez, and
Chavez v. PEA. There was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita, have
comprehensively discussed the concept of executive privilege,
we deem it imperative to explore it once more in view of the
clamor for this Court to clearly define the communications
covered by executive privilege.
The Nixon and post-Watergate cases established the broad
contours of the presidential communications privilege. In United
States v. Nixon, the U.S. Court recognized a great public interest
in preserving "the confidentiality of conversations that take place
in the President's performance of his official duties." It thus
considered presidential communications as "presumptively
privileged." Apparently, the presumption is founded on the
"President's generalized interest in confidentiality." The privilege
is said to be necessary to guarantee the candor of presidential
advisors and to provide "the President and those who assist
him with freedom to explore alternatives in the process of
shaping policies and making decisions and to do so in a way
many would be unwilling to express except privately."
In In Re: Sealed Case, the U.S. Court of Appeals delved deeper.
It ruled that there are two (2) kinds of executive privilege; one is
the presidential communications privilege and, the other is the
deliberative process privilege. The former pertains to
"communications, documents or other materials that reflect
presidential decision-making and deliberations and that the
President believes should remain confidential." The latter
includes 'advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions
and policies are formulated."
Accordingly, they are characterized by marked distinctions.
Presidential communications privilege applies to decisionmaking of the President while, the deliberative process privilege,
to decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the
President's unique constitutional role; the second on common
law privilege. Unlike the deliberative process privilege, the
presidential communications privilege applies to documents in
their entirety, and covers final and post-decisional materials as
well as pre-deliberative ones As a consequence, congressional
or judicial negation of the presidential communications privilege
is always subject to greater scrutiny than denial of the
deliberative process privilege.
Turning on who are the officials covered by the presidential
communications privilege, In Re: Sealed Case confines the
privilege only to White House Staff that has "operational
proximity" to direct presidential decision-making. Thus, the
privilege is meant to encompass only those functions that form
the core of presidential authority, involving what the court
characterized as "quintessential and non-delegable Presidential
power," such as commander-in-chief power, appointment and
removal power, the power to grant pardons and reprieves, the
sole-authority to receive ambassadors and other public officers,
the power to negotiate treaties, etc.
The situation in Judicial Watch, Inc. v. Department of Justice
tested the In Re: Sealed Case principles. There, while the
presidential decision involved is the exercise of the President's
pardon power, a non-delegable, core-presidential function, the
Deputy Attorney General and the Pardon Attorney were deemed
to be too remote from the President and his senior White House
advisors to be protected. The Court conceded that

14

functionally those officials were performing a task directly related

to the President's pardon power, but concluded that an
organizational test was more appropriate for confining the
potentially broad sweep that would result from the In Re: Sealed
Case's functional test. The majority concluded that, the lesser
protections of the deliberative process privilege would suffice.
That privilege was, however, found insufficient to justify the
confidentiality of the 4,341 withheld documents.
But more specific classifications of communications covered by
executive privilege are made in older cases. Courts ruled early
that the Executive has a right to withhold documents that might
reveal military or state secrets, identity of government informers
in some circumstances,, and information related to pending
investigations. An area where the privilege is highly revered is in
foreign relations. In United States v. Curtiss-Wright Export Corp.
the U.S. Court, citing President George Washington,
pronounced:
The nature of foreign negotiations requires caution, and their
success must often depend on secrecy, and even when brought
to a conclusion, a full disclosure of all the measures, demands,
or eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have a
pernicious influence on future negotiations or produce
immediate inconveniences, perhaps danger and mischief, in
relation to other powers. The necessity of such caution and
secrecy was one cogent reason for vesting the power of making
treaties in the President, with the advice and consent of the
Senate, the principle on which the body was formed confining it
to a small number of members. To admit, then, a right in the
House of Representatives to demand and to have as a matter of
course all the papers respecting a negotiation with a foreign
power would be to establish a dangerous precedent.
Majority of the above jurisprudence have found their way in our
jurisdiction. In Chavez v. PCGG, this Court held that there is a
"governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other security
matters." In Chavez v. PEA, there is also a recognition of the
confidentiality of Presidential conversations, correspondences,
and discussions in closed-door Cabinet meetings. In Senate v.
Ermita, the concept of presidential communications privilege is
fully discussed.
As may be gleaned from the above discussion, the claim of
executive privilege is highly recognized in cases where the
subject of inquiry relates to a power textually committed by the
Constitution to the President, such as the area of military and
foreign relations. Under our Constitution, the President is the
repository of the commander-in-chief, appointing, pardoning,
and diplomatic powers. Consistent with the doctrine of
separation of powers, the information relating to these powers
may enjoy greater confidentiality than others.
The above cases, especially, Nixon, In Re Sealed Case and
Judicial Watch, somehow provide the elements of presidential
communications privilege, to wit:
1) The protected communication must relate to a "quintessential
and non-delegable presidential power."
2) The communication must be authored or "solicited and
received" by a close advisor of the President or the President
himself. The judicial test is that an advisor must be in
"operational proximity" with the President.
3) The presidential communications privilege remains a qualified
privilege that may be overcome by a showing of adequate need,
such that the information sought "likely contains important
evidence" and by the unavailability of the information elsewhere
by an appropriate investigating authority.
In the case at bar, Executive Secretary Ermita premised his
claim of executive privilege on the ground that the
communications elicited by the three (3) questions "fall under
conversation and correspondence between the President and
public officials" necessary in "her executive and policy decisionmaking process" and, that "the information sought to be
disclosed might impair our diplomatic as well as economic
relations with the People's Republic of China." Simply put, the
bases are presidential communications privilege and executive
privilege on matters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the
communications elicited by the three (3) questions are covered

by the presidential communications privilege. First, the

communications relate to a "quintessential and non-delegable
power" of the President, i.e. the power to enter into an executive
agreement with other countries. This authority of the President
to enter into executive agreements without the concurrence of
the Legislature has traditionally been recognized in Philippine
jurisprudence. Second, the communications are "received" by a
close advisor of the President. Under the "operational proximity"
test, petitioner can be considered a close advisor, being a
member of President Arroyo's cabinet. And third, there is no
adequate showing of a compelling need that would justify the
limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority.
The third element deserves a lengthy discussion.
United States v. Nixon held that a claim of executive privilege is
subject to balancing against other interest. In other words,
confidentiality in executive privilege is not absolutely protected
by the Constitution. The U.S. Court held:
[N]either the doctrine of separation of powers, nor the need for
confidentiality of high-level communications, without more, can
sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances.
The foregoing is consistent with the earlier case of Nixon v.
Sirica, where it was held that presidential communications are
presumptively privileged and that the presumption can be
overcome only by mere showing of public need by the branch
seeking access to conversations. The courts are enjoined to
resolve the competing interests of the political branches of the
government "in the manner that preserves the essential
functions of each Branch." Here, the record is bereft of any
categorical explanation from respondent Committees to show a
compelling or citical need for the answers to the three (3)
questions in the enactment of a law. Instead, the questions veer
more towards the exercise of the legislative oversight function
under Section 22 of Article VI rather than Section 21 of the same
Article. Senate v. Ermita ruled that the "the oversight function of
Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation." It is conceded
that it is difficult to draw the line between an inquiry in aid of
legislation and an inquiry in the exercise of oversight function of
Congress. In this regard, much will depend on the content of the
questions and the manner the inquiry is conducted.
Respondent Committees argue that a claim of executive
privilege does not guard against a possible disclosure of a crime
or wrongdoing. We see no dispute on this. It is settled in United
States v. Nixon that "demonstrated, specific need for evidence in
pending criminal trial" outweighs the President's "generalized
interest in confidentiality." However, the present case's
distinction with the Nixon case is very evident. In Nixon, there is
a pending criminal proceeding where the information is
requested and it is the demands of due process of law and the
fair administration of criminal justice that the information be
disclosed. This is the reason why the U.S. Court was quick to
"limit the scope of its decision." It stressed that it is "not
concerned here with the balance between the President's
generalized interest in confidentiality x x x and congressional
demands for information." Unlike in Nixon, the information here
is elicited, not in a criminal proceeding, but in a legislative
inquiry. In this regard, Senate v. Ermita stressed that the validity
of the claim of executive privilege depends not only on the
ground invoked but, also, on the procedural setting or the
context in which the claim is made. Furthermore, in Nixon, the
President did not interpose any claim of need to protect military,
diplomatic or sensitive national security secrets. In the present
case, Executive Secretary Ermita categorically claims executive
privilege on the grounds of presidential communications
privilege in relation to her executive and policy decision-making
process and diplomatic secrets.
The respondent Committees should cautiously tread into the
investigation of matters which may present a conflict of interest
that may provide a ground to inhibit the Senators participating in
the inquiry if later on an impeachment proceeding is initiated on
the same subject matter of the present Senate inquiry.
Pertinently, in Senate Select Committee on Presidential
Campaign Activities v. Nixon, it was held that since an
impeachment proceeding had been initiated by a House

15

Committee, the Senate Select Committee's immediate oversight

need for five presidential tapes should give way to the House
Judiciary Committee which has the constitutional authority to
inquire into presidential impeachment. The Court expounded on
this issue in this wise:
It is true, of course, that the Executive cannot, any more than the
other branches of government, invoke a general confidentiality
privilege to shield its officials and employees from investigations
by the proper governmental institutions into possible criminal
wrongdoing. The Congress learned this as to its own privileges
in Gravel v. United States, as did the judicial branch, in a sense,
in Clark v. United States, and the executive branch itself in Nixon
v. Sirica. But under Nixon v. Sirica, the showing required to
overcome the presumption favoring confidentiality turned, not on
the nature of the presidential conduct that the subpoenaed
material might reveal, but, instead, on the nature and
appropriateness of the function in the performance of which the
material was sought, and the degree to which the material was
necessary to its fulfillment. Here also our task requires and our
decision implies no judgment whatever concerning possible
presidential involvement in culpable activity. On the contrary, we
think the sufficiency of the Committee's showing must depend
solely on whether the subpoenaed evidence is demonstrably
critical to the responsible fulfillment of the Committee's functions.
In its initial briefs here, the Committee argued that it has shown
exactly this. It contended that resolution, on the basis of the
subpoenaed tapes, of the conflicts in the testimony before it
'would aid in a determination whether legislative involvement in
political campaigns is necessary' and 'could help engender the
public support needed for basic reforms in our electoral system.'
Moreover, Congress has, according to the Committee, power to
oversee the operations of the executive branch, to investigate
instances of possible corruption and malfeasance in office, and
to expose the results of its investigations to public view. The
Committee says that with respect to Watergate-related matters,
this power has been delegated to it by the Senate, and that to
exercise its power responsibly, it must have access to the
subpoenaed tapes.
We turn first to the latter contention. In the circumstances of this
case, we need neither deny that the Congress may have, quite
apart from its legislative responsibilities, a general oversight
power, nor explore what the lawful reach of that power might be
under the Committee's constituent resolution. Since passage of
that resolution, the House Committee on the Judiciary has
begun an inquiry into presidential impeachment. The
investigative authority of the Judiciary Committee with respect to
presidential conduct has an express constitutional source. x x x
We have been shown no evidence indicating that Congress itself
attaches any particular value to this interest. In these
circumstances, we think the need for the tapes premised solely
on an asserted power to investigate and inform cannot justify
enforcement of the Committee's subpoena.
The sufficiency of the Committee's showing of need has come to
depend, therefore, entirely on whether the subpoenaed
materials are critical to the performance of its legislative
functions. There is a clear difference between Congress'
legislative tasks and the responsibility of a grand jury, or any
institution engaged in like functions. While fact-finding by a
legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted
consequences of proposed legislative actions and their political
acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting
information provided in its hearings. In contrast, the
responsibility of the grand jury turns entirely on its ability to
determine whether there is probable cause to believe that
certain named individuals did or did not commit specific crimes.
If, for example, as in Nixon v. Sirica, one of those crimes is
perjury concerning the content of certain conversations, the
grand jury's need for the most precise evidence, the exact text of
oral statements recorded in their original form, is undeniable. We
see no comparable need in the legislative process, at least not
in the circumstances of this case. Indeed, whatever force there
might once have been in the Committee's argument that the
subpoenaed materials are necessary to its legislative judgments

has been substantially undermined by subsequent events.

(Emphasis supplied)
Respondent Committees further contend that the grant of
petitioner's claim of executive privilege violates the constitutional
provisions on the right of the people to information on matters of
public concern. We might have agreed with such contention if
petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing,
where he was questioned for eleven (11) hours. Not only that, he
expressly manifested his willingness to answer more questions
from the Senators, with the exception only of those covered by
his claim of executive privilege.
The right to public information, like any other right, is subject to
limitation. Section 7 of Article III provides:
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
The provision itself expressly provides the limitation, i.e. as may
be provided by law. Some of these laws are Section 7 of
Republic Act (R.A.) No. 6713, Article 229 of the Revised Penal
Code, Section 3 (k) of R.A. No. 3019, and Section 24(e) of Rule
130 of the Rules of Court. These are in addition to what our
body of jurisprudence classifies as confidential and what our
Constitution considers as belonging to the larger concept of
executive privilege. Clearly, there is a recognized public interest
in the confidentiality of certain information. We find the
information subject of this case belonging to such kind.
More than anything else, though, the right of Congress or any of
its Committees to obtain information in aid of legislation cannot
be equated with the people's right to public information. The
former cannot claim that every legislative inquiry is an exercise
of the people's right to information. The distinction between such
rights is laid down in Senate v. Ermita:
There are, it bears noting, clear distinctions between the right of
Congress to information which underlies the power of inquiry
and the right of people to information on matters of public
concern. For one, the demand of a citizen for the production of
documents pursuant to his right to information does not have the
same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen
the power to exact testimony from government officials. These
powers belong only to Congress, not to an individual citizen.
Thus, while Congress is composed of representatives elected by
the people, it does not follow, except in a highly qualified sense,
that in every exercise of its power of inquiry, the people are
exercising their right to information.
The members of respondent Committees should not invoke as
justification in their exercise of power a right properly belonging
to the people in general. This is because when they discharge
their power, they do so as public officials and members of
Congress. Be that as it may, the right to information must be
balanced with and should give way, in appropriate cases, to
constitutional precepts particularly those pertaining to delicate
interplay of executive-legislative powers and privileges which is
the subject of careful review by numerous decided cases.
B- The Claim of Executive Privilege
is Properly Invoked
We now proceed to the issue -- whether the claim is properly
invoked by the President. Jurisprudence teaches that for the
claim to be properly invoked, there must be a formal claim of
privilege, lodged by the head of the department which has
control over the matter." A formal and proper claim of executive
privilege requires a "precise and certain reason" for preserving
their confidentiality.
The Letter dated November 17, 2007 of Executive Secretary
Ermita satisfies the requirement. It serves as the formal claim of
privilege. There, he expressly states that "this Office is
constrained to invoke the settled doctrine of executive privilege
as refined in Senate v. Ermita, and has advised Secretary Neri
accordingly." Obviously, he is referring to the Office of the
President. That is more than enough compliance. In Senate v.
Ermita, a less categorical letter was even adjudged to be
sufficient.

16

With regard to the existence of "precise and certain reason," we

find the grounds relied upon by Executive Secretary Ermita
specific enough so as not "to leave respondent Committees in
the dark on how the requested information could be classified as
privileged." The case of Senate v. Ermita only requires that an
allegation be made "whether the information demanded involves
military or diplomatic secrets, closed-door Cabinet meetings,
etc." The particular ground must only be specified. The
enumeration is not even intended to be comprehensive." The
following statement of grounds satisfies the requirement:
The context in which executive privilege is being invoked is that
the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's
Republic of China. Given the confidential nature in which these
information were conveyed to the President, he cannot provide
the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to
protect.
At any rate, as held further in Senate v. Ermita, the Congress
must not require the executive to state the reasons for the claim
with such particularity as to compel disclosure of the information
which the privilege is meant to protect. This is a matter of
respect to a coordinate and co-equal department.
II
Respondent Committees Committed Grave Abuse of Discretion
in Issuing the Contempt Order
Grave abuse of discretion means "such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or, in other words where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law."
It must be reiterated that when respondent Committees issued
the show cause Letter dated November 22, 2007, petitioner
replied immediately, manifesting that it was not his intention to
ignore the Senate hearing and that he thought the only
remaining questions were the three (3) questions he claimed to
be covered by executive privilege. In addition thereto, he
submitted Atty. Bautista's letter, stating that his non-appearance
was upon the order of the President and specifying the reasons
why his conversations with President Arroyo are covered by
executive privilege. Both correspondences include an
expression of his willingness to testify again, provided he "be
furnished in advance" copies of the questions. Without
responding to his request for advance list of questions,
respondent Committees issued the Order dated January 30,
2008, citing him in contempt of respondent Committees and
ordering his arrest and detention at the Office of the Senate
Sergeant-At-Arms until such time that he would appear and give
his testimony. Thereupon, petitioner filed a motion for
reconsideration, informing respondent Committees that he had
filed the present petition for certiorari.
Respondent Committees committed grave abuse of discretion in
issuing the contempt Order in view of five (5) reasons.
First, there being a legitimate claim of executive privilege, the
issuance of the contempt Order suffers from constitutional
infirmity.
Second, respondent Committees did not comply with the
requirement laid down in Senate v. Ermita that the invitations
should contain the "possible needed statute which prompted the
need for the inquiry," along with "the usual indication of the
subject of inquiry and the questions relative to and in furtherance
thereof." Compliance with this requirement is imperative, both
under Sections 21 and 22 of Article VI of the Constitution. This
must be so to ensure that the rights of both persons appearing in
or affected by such inquiry are respected as mandated by said
Section 21 and by virtue of the express language of Section 22.
Unfortunately, despite petitioner's repeated demands,
respondent Committees did not send him an advance list of
questions.
Third, a reading of the transcript of respondent Committees'
January 30, 2008 proceeding reveals that only a minority of the
members of the Senate Blue Ribbon Committee was present
during the deliberation. Section 18 of the Rules of Procedure
Governing Inquiries in Aid of Legislation provides that:

"The Committee, by a vote of majority of all its members, may

punish for contempt any witness before it who disobeys any
order of the Committee or refuses to be sworn or to testify or to
answer proper questions by the Committee or any of its
members."
Clearly, the needed vote is a majority of all the members of the
Committee. Apparently, members who did not actually
participate in the deliberation were made to sign the contempt
Order. Thus, there is a cloud of doubt as to the validity of the
contempt Order dated January 30, 2008. We quote the pertinent
portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x
The Chair will call either a caucus or will ask the Committee on
Rules if there is a problem. Meaning, if we do not have the
sufficient numbers. But if we have a sufficient number, we will
just hold a caucus to be able to implement that right away
becauseAgain, our Rules provide that any one held in
contempt and ordered arrested, need the concurrence of a
majority of all members of the said committee and we have three
committees conducting this.
So thank you very much to the members
SEN. PIMENTEL. Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the
Minority Leader and give him the floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think,
with consulting the other committees. But I am of the opinion
that the Blue Ribbon Committee is the lead committee, and
therefore, it should have preference in enforcing its own
decisions. Meaning to say, it is not something that is subject to
consultation with other committees. I am not sure that is the right
interpretation. I think that once we decide here, we enforce what
we decide, because otherwise, before we know it, our
determination is watered down by delay and, you know, the socalled "consultation" that inevitably will have to take place if we
follow the premise that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee
should not forget it's the lead committee here, and therefore, the
will of the lead committee prevails over all the other, you, know
reservations that other committees might have who are only
secondary or even tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much
to the Minority Leader. And I agree with the wisdom of his
statements. I was merely mentioning that under Section 6 of the
Rules of the Committee and under Section 6, "The Committee
by a vote of a majority of all its members may punish for
contempt any witness before it who disobeys any order of the
Committee."
So the Blue Ribbon Committee is more than willing to take that
responsibility. But we only have six members here today, I am
the seventh as chair and so we have not met that number. So I
am merely stating that, sir, that when we will prepare the
documentation, if a majority of all members sign and I am
following the Sabio v. Gordon rule wherein I do believe, if I am
not mistaken, Chairman Gordon prepared the documentation
and then either in caucus or in session asked the other
members to sign. And once the signatures are obtained, solely
for the purpose that Secretary Neri or Mr. Lozada will not be able
to legally question our subpoena as being insufficient in
accordance with law.
SEN. PIMENTEL. Mr. Chairman, the caution that the chair is
suggesting is very well-taken. But I'd like to advert to the fact
that the quorum of the committee is only two as far as I
remember. Any two-member senators attending a Senate
committee hearing provide that quorum, and therefore there is
more than a quorum demanded by our Rules as far as we are
concerned now, and acting as Blue Ribbon Committee, as
Senator Enrile pointed out. In any event, the signatures that will
follow by the additional members will only tend to strengthen the
determination of this Committee to put its foot forward put
down on what is happening in this country, Mr. Chairman,
because it really looks terrible if the primary Committee of the
Senate, which is the Blue Ribbon Committee, cannot even
sanction people who openly defy, you know, the summons of
this Committee. I know that the Chair is going through an
agonizing moment here. I know that. But nonetheless, I think we
have to uphold, you know, the institution that we are

17

representing because the alternative will be a disaster for all of

us, Mr. Chairman. So having said that, I'd like to reiterate my
point.
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100
percent with the intentions of the Minority Leader. But let me
very respectfully disagree with the legal requirements. Because,
yes, we can have a hearing if we are only two but both under
Section 18 of the Rules of the Senate and under Section 6 of the
Rules of the Blue Ribbon Committee, there is a need for a
majority of all members if it is a case of contempt and arrest. So,
I am simply trying to avoid the court rebuking the Committee,
which will instead of strengthening will weaken us. But I do
agree, Mr. Minority Leader, that we should push for this and
show the executive branch that the well-decided the issue has
been decided upon the Sabio versus Gordon case. And it's very
clear that we are all allowed to call witnesses. And if they refure
or they disobey not only can we cite them in contempt and have
them arrested. x x x
Fourth, we find merit in the argument of the OSG that
respondent Committees likewise violated Section 21 of Article VI
of the Constitution, requiring that the inquiry be in accordance
with the "duly published rules of procedure." We quote the
OSG's explanation:
The phrase 'duly published rules of procedure' requires the
Senate of every Congress to publish its rules of procedure
governing inquiries in aid of legislation because every Senate is
distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the
Senate's membership, the composition of the Senate also
changes by the end of each term. Each Senate may thus enact
a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore, procedurally infirm.
And fifth, respondent Committees' issuance of the contempt
Order is arbitrary and precipitate. It must be pointed out that
respondent Committees did not first pass upon the claim of
executive privilege and inform petitioner of their ruling. Instead,
they curtly dismissed his explanation as "unsatisfactory" and
simultaneously issued the Order citing him in contempt and
ordering his immediate arrest and detention.
A fact worth highlighting is that petitioner is not an unwilling
witness. He manifested several times his readiness to testify
before respondent Committees. He refused to answer the three
(3) questions because he was ordered by the President to claim
executive privilege. It behooves respondent Committees to first
rule on the claim of executive privilege and inform petitioner of
their finding thereon, instead of peremptorily dismissing his
explanation as "unsatisfactory." Undoubtedly, respondent
Committees' actions constitute grave abuse of discretion for
being arbitrary and for denying petitioner due process of law.
The same quality afflicted their conduct when they (a)
disregarded petitioner's motion for reconsideration alleging that
he had filed the present petition before this Court and (b)
ignored petitioner's repeated request for an advance list of
questions, if there be any aside from the three (3) questions as
to which he claimed to be covered by executive privilege.
Even the courts are repeatedly advised to exercise the power of
contempt judiciously and sparingly with utmost self-restraint with
the end in view of utilizing the same for correction and
preservation of the dignity of the court, not for retaliation or
vindication. Respondent Committees should have exercised the
same restraint, after all petitioner is not even an ordinary
witness. He holds a high position in a co-equal branch of
government.
In this regard, it is important to mention that many incidents of
judicial review could have been avoided if powers are
discharged with circumspection and deference. Concomitant
with the doctrine of separation of powers is the mandate to
observe respect to a co-equal branch of the government.
One last word.
The Court was accused of attempting to abandon its
constitutional duty when it required the parties to consider a
proposal that would lead to a possible compromise. The
accusation is far from the truth. The Court did so, only to test a
tool that other jurisdictions find to be effective in settling similar
cases, to avoid a piecemeal consideration of the questions for

review and to avert a constitutional crisis between the executive

and legislative branches of government.
In United States v. American Tel. & Tel 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 inaccurately reflect their true needs. Instead, it
remanded the record to the District Court for further proceedings
during which the parties are required to negotiate a settlement.
In the subsequent case of United States v. American Tel. &Tel
Co., it was held that "much of this spirit of compromise is
reflected in the generality of language found in the Constitution."
It proceeded to state:
Under this view, the coordinate branches do not exist in an
exclusively adversary relationship to one another when a conflict
in authority arises. Rather each branch should take cognizance
of an implicit constitutional mandate to seek optimal
accommodation through a realistic evaluation of the needs of the
conflicting branches in the particular fact situation.
It thereafter concluded that: "The Separation of Powers often
impairs efficiency, in terms of dispatch and the immediate
functioning of government. It is the long-term staying power of
government that is enhanced by the mutual accommodation
required by the separation of powers."
In rendering this decision, the Court emphasizes once more that
the basic principles of constitutional law cannot be subordinated
to the needs of a particular situation. As magistrates, our
mandate is to rule objectively and dispassionately, always
mindful of Mr. Justice Holmes' warning on the dangers inherent
in cases of this nature, thus:
"some accident of immediate and overwhelming interest
appeals to the feelings and distorts the judgment. These
immediate interests exercise a kind of hydraulic pressure which
makes what previously was clear seem doubtful, and before
which even well settled principles of law will bend."
In this present crusade to "search for truth," we should turn to
the fundamental constitutional principles which underlie our
tripartite system of government, where the Legislature enacts
the law, the Judiciary interprets it and the Executive implements
it. They are considered separate, co-equal, coordinate and
supreme within their respective spheres but, imbued with a
system of checks and balances to prevent unwarranted exercise
of power. The Court's mandate is to preserve these
constitutional principles at all times to keep the political branches
of government within constitutional bounds in the exercise of
their respective powers and prerogatives, even if it be in the
search for truth. This is the only way we can preserve the
stability of our democratic institutions and uphold the Rule of
Law.
WHEREFORE, the petition is hereby GRANTED. The subject
Order dated January 30, 2008, citing petitioner Romulo L. Neri in
contempt of the Senate Committees and directing his arrest and
detention, is hereby nullified. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 170165
August 15, 2006
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL.
ALEXANDER F. BALUTAN Petitioners, vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF
STAFF OF THE CARPIO-MORALES, ARMED FORCES OF
THE CALLEJO, SR., PHILIPPINES, COL. GILBERTO
AZCUNA, JOSE C. ROA AS THE PRE-TRIAL TINGA,
INVESTIGATING OFFICER, THE CHICO-NAZARIO,
PROVOST MARSHALL GENERAL GARCIA, and OF THE
ARMED FORCES OF THE PHILIPPINES AND THE GENERAL
COURT-MARTIAL, Respondents.
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court
that soldiers who defy orders of their superior officers are
exempt
from the strictures of military law and discipline if such defiance
is predicated on an act otherwise valid under civilian law.
Obedience and deference to the military chain of command and
the President as commander-in-chief are the cornerstones of a

18

professional military in the firm cusp of civilian control. These

values of obedience and deference expected of military officers
are content-neutral, beyond the sway of the officers own sense
of what is prudent or rash, or more elementally, of right or wrong.
A self-righteous military invites itself as the scoundrels activist
solution to the "ills" of participatory democracy.
Petitioners seek the annulment of a directive from President
Gloria Macapagal-Arroyo enjoining them and other military
officers from testifying before Congress without the Presidents
consent. Petitioners also pray for injunctive relief against a
pending preliminary investigation against them, in preparation
for possible court-martial proceedings, initiated within the military
justice system in connection with petitioners violation of the
aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke
weighty constitutional principles that center on fundamental
freedoms enshrined in the Bill of Rights. Although these
concerns will not be
addressed to the satisfaction of petitioners, the Court recognizes
these values as of paramount importance to our civil society,
even if not determinative of the resolution of this petition. Had
the relevant issue before us been the right of the Senate to
compel the testimony of petitioners, the constitutional questions
raised by them would have come to fore. Such a scenario could
have very well been presented to the Court in such manner,
without the petitioners having had to violate a direct order from
their commanding officer. Instead, the Court has to resolve
whether petitioners may be subjected to military discipline on
account of their defiance of a direct order of the AFP Chief of
Staff.
The solicited writs of certiorari and prohibition do not avail; the
petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of
the Philippines (AFP). Both petitioners, Brigadier General
Francisco Gudani (Gen. Gudani) and Lieutenant Colonel
Alexander Balutan (Col. Balutan), belonged to the Philippine
Marines. At the time of the subject incidents, both Gen. Gudani
and Col. Balutan were assigned to the Philippine Military
Academy (PMA) in Baguio City, the former as the PMA Assistant
Superintendent, and the latter as the Assistant Commandant of
Cadets.
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon)
invited several senior officers of the AFP to appear at a public
hearing before the Senate Committee on National Defense and
Security (Senate Committee) scheduled on 28 September 2005.
The hearing was scheduled after topics concerning the conduct
of the 2004 elections emerged in the public eye, particularly
allegations of massive cheating and the surfacing of copies of an
audio excerpt purportedly of a phone conversation between
President Gloria Macapagal Arroyo and an official of the
Commission on Elections (COMELEC) widely reputed as then
COMELEC Commissioner Virgilio Garcillano. At the time of the
2004 elections, Gen. Gudani had been designated as
commander, and Col. Balutan a member, of "Joint Task Force
Ranao" by the AFP Southern Command. "Joint Task Force
Ranao" was tasked with the maintenance of peace and order
during the 2004 elections in the provinces of Lanao del Norte
and Lanao del Sur.`
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant
General Generoso Senga (Gen. Senga) were among the several
AFP officers who received a letter invitation from Sen. Biazon to
attend the 28 September 2005 hearing. On 23 September 2005,
Gen. Senga replied through a letter to Sen. Biazon that he would
be unable to attend the hearing due to a previous commitment in
Brunei, but he nonetheless "directed other officers from the AFP
who were invited to attend the hearing."
On 26 September 2005, the Office of the Chief of Staff of the
AFP issued a Memorandum addressed to the Superintendent of
the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed
by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga.
Noting that Gen. Gudani and Col. Balutan had been invited to
attend the Senate Committee hearing on 28 September 2005,
the Memorandum directed the two officers to attend the hearing.
Conformably, Gen. Gudani and Col. Balutan filed their

respective requests for travel authority addressed to the PMA

Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen.
Biazon, requesting the postponement of the hearing scheduled
for the following day, since the AFP Chief of Staff was himself
unable to attend said hearing, and that some of the invited
officers also could not attend as they were "attending to other
urgent operational matters." By this time, both Gen. Gudani and
Col. Balutan had already departed Baguio for Manila to attend
the hearing.
Then on the evening of 27 September 2005, at around 10:10
p.m., a message was transmitted to the PMA Superintendent
from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP
PERSONNEL SHALL APPEAR BEFORE ANY
CONGRESSIONAL OR SENATE HEARING WITHOUT HER
APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND
LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.
The following day, Gen. Senga sent another letter to Sen.
Biazon, this time informing the senator that "no approval has
been granted by the President to any AFP officer to appear"
before the hearing scheduled on that day. Nonetheless, both
Gen. Gudani and Col. Balutan were present as the hearing
started, and they both testified as to the conduct of the 2004
elections.
The Office of the Solicitor General (OSG), representing the
respondents before this Court, has offered additional information
surrounding the testimony of Gen. Gudani and Col. Balutan. The
OSG manifests that the couriers of the AFP Command Center
had attempted to deliver the radio message to Gen. Gudanis
residence in a subdivision in Paraaque City late in the night of
27 September 2005, but they were not permitted entry by the
subdivision guards. The next day, 28 September 2005, shortly
before the start of the hearing, a copy of Gen. Sengas letter to
Sen. Biazon sent earlier that day was handed at the Senate by
Commodore Amable B. Tolentino of the AFP Office for
Legislative Affairs to Gen. Gudani, who replied that he already
had a copy. Further, Gen. Senga called Commodore Tolentino
on the latters cell phone and asked to talk to Gen. Gudani, but
Gen. Gudani refused. In response, Gen. Senga instructed
Commodore Tolentino to inform Gen. Gudani that "it was an
order," yet Gen. Gudani still refused to take Gen. Sengas call.
A few hours after Gen. Gudani and Col. Balutan had concluded
their testimony, the office of Gen. Senga issued a statement
which noted that the two had appeared before the Senate
Committee "in spite of the fact that a guidance has been given
that a Presidential approval should be sought prior to such an
appearance;" that such directive was "in keeping with the
time[-]honored principle of the Chain of Command;" and that the
two officers "disobeyed a legal order, in violation of A[rticles of]
W[ar] 65 (Willfully Disobeying Superior Officer), hence they will
be subjected to General Court Martial proceedings x x x" Both
Gen. Gudani and Col. Balutan were likewise relieved of their
assignments then.
On the very day of the hearing, 28 September 2005, President
Gloria-Macapagal-Arroyo issued Executive Order No. 464 (E.O.
464). The OSG notes that the E.O. "enjoined officials of the
executive department including the military establishment from
appearing in any legislative inquiry without her approval." This
Court subsequently ruled on the constitutionality of the said
executive order in Senate v. Ermita. The relevance of E.O. 464
and Senate to the present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were
directed by General Senga, through Col. Henry A. Galarpe of the
AFP Provost Marshal General, to appear before the Office of the
Provost Marshal General (OPMG) on 3 October 2005 for
investigation. During their appearance before Col. Galarpe, both
petitioners invoked their right to remain silent. The following day,
Gen. Gudani was compulsorily retired from military service,
having reached the age of 56.
In an Investigation Report dated 6 October 2005, the OPMG
recommended that petitioners be charged with violation of Article
of War 65, on willfully disobeying a superior officer, in relation to
Article of War 97, on conduct prejudicial to the good order and
military discipline. As recommended, the case was referred to a
Pre-Trial Investigation Officer (PTIO) preparatory to trial by the

19

General Court Martial (GCM). Consequently, on 24 October

2005, petitioners were separately served with Orders
respectively addressed to them and signed by respondent Col.
Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the
PTIO. The Orders directed petitioners to appear in person before
Col. Roa at the Pre-Trial Investigation of the Charges for
violation of Articles 65 and 97 of Commonwealth Act No. 408,
and to submit their counter-affidavits and affidavits of witnesses
at the Office of the Judge Advocate General. The Orders were
accompanied by respective charge sheets against petitioners,
accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari
and prohibition was filed, particularly seeking that (1) the order
of President Arroyo coursed through Gen. Senga preventing
petitioners from testifying before Congress without her prior
approval be declared unconstitutional; (2) the charges stated in
the charge sheets against petitioners be quashed; and (3) Gen.
Senga, Col. Galarpe, Col. Roa, and their successors-in-interest
or persons acting for and on their behalf or orders, be
permanently enjoined from proceeding against petitioners, as a
consequence of their having testified before the Senate on 28
September 2005.
Petitioners characterize the directive from President Arroyo
requiring her prior approval before any AFP personnel appear
before Congress as a "gag order," which violates the principle of
separation of powers in government as it interferes with the
investigation of the Senate Committee conducted in aid of
legislation. They also equate the "gag order" with culpable
violation of the Constitution, particularly in relation to the publics
constitutional right to information and transparency in matters of
public concern. Plaintively, petitioners claim that "the Filipino
people have every right to hear the [petitioners] testimonies,"
and even if the "gag order" were unconstitutional, it still was
tantamount to "the crime of obstruction of justice." Petitioners
further argue that there was no law prohibiting them from
testifying before the Senate, and in fact, they were appearing in
obeisance to the authority of Congress to conduct inquiries in
aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no
longer subject to military jurisdiction on account of his
compulsory retirement on 4 October 2005. It is pointed out that
Article 2, Title I of the Articles of War defines persons subject to
military law as "all officers and soldiers in the active service" of
the AFP.
II.
We first proceed to define the proper litigable issues. Notably,
the guilt or innocence of petitioners in violating Articles 65 and
97 of the Articles of War is not an issue before this Court,
especially considering that per records, petitioners have not yet
been subjected to court martial proceedings. Owing to the
absence of such proceedings, the correct inquiry should be
limited to whether respondents could properly initiate such
proceedings preparatory to a formal court-martial, such as the
aforementioned preliminary investigation, on the basis of
petitioners acts surrounding their testimony before the Senate
on 28 September 2005. Yet this Court, consistent with the
principle that it is not a trier of facts at first instance, is averse to
making any authoritative findings of fact, for that function is first
for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted
before the Court, having been commonly alleged by petitioners
and the OSG (for respondents). Petitioners were called by the
Senate Committee to testify in its 28 September 2005 hearing.
Petitioners attended such hearing and testified before the
Committee, despite the fact that the day before, there was an
order from Gen. Senga (which in turn was sourced "per
instruction" from President Arroyo) prohibiting them from
testifying without the prior approval of the President. Petitioners
do not precisely admit before this Court that they had learned of
such order prior to their testimony, although the OSG asserts
that at the very least, Gen. Gudani already knew of such order
before he testified. Yet while this fact may be ultimately material
in the court-martial proceedings, it is not determinative of this
petition, which as stated earlier, does not proffer as an issue
whether petitioners are guilty of violating the Articles of War.

What the Court has to consider though is whether the violation

of the aforementioned order of Gen. Senga, which emanated
from the President, could lead to any investigation for courtmartial of petitioners. It has to be acknowledged as a general
principle that AFP personnel of whatever rank are liable under
military law for violating a direct order of an officer superior in
rank. Whether petitioners did violate such an order is not for the
Court to decide, but it will be necessary to assume, for the
purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the
Courts ruling in Senate on the present petition. Notably, it is not
alleged that petitioners were in any way called to task for
violating E.O. 464, but instead, they were charged for violating
the direct order of Gen. Senga not to appear before the Senate
Committee, an order that stands independent of the executive
order. Distinctions are called for, since Section 2(b) of E.O. 464
listed "generals and flag officers of the Armed Forces of the
Philippines and such other officers who in the judgment of the
Chief of Staff are covered by the executive privilege," as among
those public officials required in Section 3 of E.O. 464 "to secure
prior consent of the President prior to appearing before either
House of Congress." The Court in Senate declared both Section
2(b) and Section 3 void, and the impression may have been left
following Senate that it settled as doctrine, that the President is
prohibited from requiring military personnel from attending
congressional hearings without having first secured prior
presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential
prerogative which is encumbered by significant limitations.
Insofar as E.O. 464 compelled officials of the executive branch
to seek prior presidential approval before appearing before
Congress, the notion of executive control also comes into
consideration. However, the ability of the President to require a
military official to secure prior consent before appearing before
Congress pertains to a wholly different and independent specie
of presidential authoritythe commander-in-chief powers of the
President. By tradition and jurisprudence, the commander-inchief powers of the President are not encumbered by the same
degree of restriction as that which may attach to executive
privilege or executive control.
During the deliberations in Senate, the Court was very well
aware of the pendency of this petition as well as the issues
raised herein. The decision in Senate was rendered with the
comfort that the nullification of portions of E.O. 464 would bear
no impact on the present petition since petitioners herein were
not called to task for violating the executive order. Moreover, the
Court was then cognizant that Senate and this case would
ultimately hinge on disparate legal issues. Relevantly, Senate
purposely did not touch upon or rule on the faculty of the
President, under the aegis of the commander-in-chief powers to
require military officials from securing prior consent before
appearing before Congress. The pertinent factors in considering
that question are markedly outside of those which did become
relevant in adjudicating the issues raised in Senate. It is in this
petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue
before we strike at the heart of the matter. General Gudani
argues that he can no longer fall within the jurisdiction of the
court-martial, considering his retirement last 4 October 2005. He
cites Article 2, Title I of Commonwealth Act No. 408, which
defines persons subject to military law as, among others, "all
officers and soldiers in the active service of the [AFP]," and
points out that he is no longer in the active service.
This point was settled against Gen. Gudanis position in Abadilla
v. Ramos, where the Court declared that an officer whose name
was dropped from the roll of officers cannot be considered to be
outside the jurisdiction of military authorities when military justice
proceedings were initiated against him before the termination of
his service. Once jurisdiction has been acquired over the officer,
it continues until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of
Colonel Abadilla at the time of the alleged offenses. This
jurisdiction having been vested in the military authorities, it is
retained up to the end of the proceedings against Colonel
Abadilla. Well-settled is the rule that jurisdiction once acquired is

20

not lost upon the instance of the parties but continues until the
case is terminated.
Citing Colonel Winthrops treatise on Military Law, the Court
further stated:
We have gone through the treatise of Colonel Winthrop and We
find the following passage which goes against the contention of
the petitioners, viz
3. Offenders in general Attaching of jurisdiction. It has further
been held, and is now settled law, in regard to military offenders
in general, that if the military jurisdiction has once duly attached
to them previous to the date of the termination of their legal
period of service, they may be brought to trial by court-martial
after that date, their discharge being meanwhile withheld. This
principle has mostly been applied to cases where the offense
was committed just prior to the end of the term. In such cases
the interests of discipline clearly forbid that the offender should
go unpunished. It is held therefore that if before the day on
which his service legally terminates and his right to a discharge
is complete, proceedings with a view to trial are commenced
against him as by arrest or the service of charges, the
military jurisdiction will fully attach and once attached may be
continued by a trial by court-martial ordered and held after the
end of the term of the enlistment of the accused x x x
Thus, military jurisdiction has fully attached to Gen. Gudani
inasmuch as both the acts complained of and the initiation of the
proceedings against him occurred before he compulsorily retired
on 4 October 2005. We see no reason to unsettle the Abadilla
doctrine. The OSG also points out that under Section 28 of
Presidential Decree No. 1638, as amended, "[a]n officer or
enlisted man carried in the retired list [of the Armed Forces of
the Philippines] shall be subject to the Articles of War x x x"To
this citation, petitioners do not offer any response, and in fact
have excluded the matter of Gen. Gudanis retirement as an
issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required
them to secure presidential consent prior to their appearance
before the Senate, claiming that it violates the constitutional right
to information and transparency in matters of public concern; or
if not, is tantamount at least to the criminal acts of obstruction of
justice and grave coercion. However, the proper perspective
from which to consider this issue entails the examination of the
basis and authority of the President to issue such an order in the
first place to members of the AFP and the determination of
whether such an order is subject to any limitations.
The vitality of the tenet that the President is the commander-inchief of the Armed Forces is most crucial to the democratic way
of life, to civilian supremacy over the military, and to the general
stability of our representative system of government. The
Constitution reposes final authority, control and supervision of
the AFP to the President, a civilian who is not a member of the
armed forces, and whose duties as commander-in-chief
represent only a part of the organic duties imposed upon the
office, the other functions being clearly civil in nature. Civilian
supremacy over the military also countermands the notion that
the military may bypass civilian authorities, such as civil courts,
on matters such as conducting warrantless searches and
seizures.
Pursuant to the maintenance of civilian supremacy over the
military, the Constitution has allocated specific roles to the
legislative and executive branches of government in relation to
military affairs. Military appropriations, as with all other
appropriations, are determined by Congress, as is the power to
declare the existence of a state of war. Congress is also
empowered to revoke a proclamation of martial law or the
suspension of the writ of habeas corpus. The approval of the
Commission on Appointments is also required before the
President can promote military officers from the rank of colonel
or naval captain. Otherwise, on the particulars of civilian
dominance and administration over the military, the Constitution
is silent, except for the commander-in-chief clause which is
fertile in meaning and
implication as to whatever inherent martial authority the
President may possess.

The commander-in-chief provision in the Constitution is

denominated as Section 18, Article VII, which begins with the
simple declaration that "[t]he President shall be the Commanderin-Chief of all armed forces of the Philippines x x x" Outside
explicit constitutional limitations, such as those found in Section
5, Article XVI, the commander-in-chief clause vests on the
President, as commander-in-chief, absolute authority over the
persons and actions of the members of the armed forces. Such
authority includes the ability of the President to restrict the travel,
movement and speech of military officers, activities which may
otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa is useful in this regard. Lt.
Col. Kapunan was ordered confined under "house arrest" by
then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan
was also ordered, as a condition for his house arrest, that he
may not issue any press statements or give any press
conference during his period of detention. The Court
unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the
requirements of military discipline. It cannot be gainsaid that
certain liberties of persons in the military service, including the
freedom of speech, may be circumscribed by rules of military
discipline. Thus, to a certain degree, individual rights may be
curtailed, because the effectiveness of the military in fulfilling its
duties under the law depends to a large extent on the
maintenance of discipline within its ranks. Hence, lawful orders
must be followed without question and rules must be faithfully
complied with, irrespective of a soldier's personal views on the
matter. It is from this viewpoint that the restrictions imposed on
petitioner Kapunan, an officer in the AFP, have to be considered.
Any good soldier, or indeed any ROTC cadet, can attest to the
fact that the military way of life circumscribes several of the
cherished freedoms of civilian life. It is part and parcel of the
military package. Those who cannot abide by these limitations
normally do not pursue a military career and instead find
satisfaction in other fields; and in fact many of those discharged
from the service are inspired in their later careers precisely by
their rebellion against the regimentation of military life. Inability
or unwillingness to cope with military discipline is not a stain on
character, for the military mode is a highly idiosyncratic path
which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice
to be a soldier, significant concessions to personal freedoms are
expected. After all, if need be, the men and women of the armed
forces may be commanded upon to die for country, even against
their personal inclinations.
It may be so that military culture is a remnant of a less
democratic era, yet it has been fully integrated into the
democratic system of governance. The constitutional role of the
armed forces is as protector of the people and of the State.
Towards this end, the military must insist upon a respect for duty
and a discipline without counterpart in civilian life. The laws and
traditions governing that discipline have a long history; but they
are founded on unique military exigencies as powerful now as in
the past. In the end, it must be borne in mind that the armed
forces has a distinct subculture with unique needs, a specialized
society separate from civilian society. In the elegant prose of the
eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not
those of politicians and diplomats. They are those of a world
apart, a very ancient world, which exists in parallel with the
everyday world but does not belong to it. Both worlds change
over time, and the warrior world adopts in step to the civilian. It
follows it, however, at a distance. The distance can never be
closed, for the culture of the warrior can never be that of
civilization itself.
Critical to military discipline is obeisance to the military chain of
command. Willful disobedience of a superior officer is
punishable by court-martial under Article 65 of the Articles of
War. "An individual soldier is not free to ignore the lawful orders
or duties assigned by his immediate superiors. For there would
be an end of all discipline if the seaman and marines on board a
ship of war [or soldiers deployed in the field], on a distant
service, were permitted to act upon their own opinion of their
rights [or their opinion of the

21

Presidents intent], and to throw off the authority of the

commander whenever they supposed it to be unlawfully
exercised."
Further traditional restrictions on members of the armed forces
are those imposed on free speech and mobility.1wphi1
Kapunan is ample precedent in justifying that a soldier may be
restrained by a superior officer from speaking out on certain
matters. As a general rule, the discretion of a military officer to
restrain the speech of a soldier under his/her command will be
accorded deference, with minimal regard if at all to the reason
for such restraint. It is integral to military discipline that the
soldiers speech be with the consent and approval of the military
commander.
The necessity of upholding the ability to restrain speech
becomes even more imperative if the soldier desires to speak
freely on political matters. The Constitution requires that "[t]he
armed forces shall be insulated from partisan politics," and that
[n]o member of the military shall engage directly or indirectly in
any partisan political activity, except to vote." Certainly, no
constitutional provision or military indoctrination will eliminate a
soldiers ability to form a personal political opinion, yet it is vital
that such opinions be kept out of the public eye. For one,
political belief is a potential source of discord among people, and
a military torn by political strife is incapable of fulfilling its
constitutional function as protectors of the people and of the
State. For another, it is ruinous to military discipline to foment an
atmosphere that promotes an active dislike of or dissent against
the President, the commander-in-chief of the armed forces.
Soldiers are constitutionally obliged to obey a President they
may dislike or distrust. This fundamental principle averts the
country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that
our countrys recent past is marked by regime changes wherein
active military dissent from the chain of command formed a key,
though not exclusive, element. The Court is not blind to history,
yet it is a judge not of history but of the Constitution. The
Constitution, and indeed our modern democratic order, frown in
no uncertain terms on a politicized military, informed as they are
on the trauma of absolute martial rule. Our history might imply
that a political military is part of the natural order, but this view
cannot be affirmed by the legal order. The evolutionary path of
our young democracy necessitates a reorientation from this
view, reliant as our socio-political culture has become on it. At
the same time, evolution mandates a similar demand that our
system of governance be more responsive to the needs and
aspirations of the citizenry, so as to avoid an environment
vulnerable to a military apparatus able at will to exert an undue
influence in our polity.
Of possibly less gravitas, but of equal importance, is the
principle that mobility of travel is another necessary restriction
on members of the military. A soldier cannot leave his/her post
without the consent of the commanding officer. The reasons are
self-evident. The commanding officer has to be aware at all
times of the location of the troops under command, so as to be
able to appropriately respond to any exigencies. For the same
reason, commanding officers have to be able to restrict the
movement or travel of their soldiers, if in their judgment, their
presence at place of call of duty is necessary. At times, this may
lead to unsentimental, painful consequences, such as a soldier
being denied permission to witness the birth of his first-born, or
to attend the funeral of a parent. Yet again, military life calls for
considerable personal sacrifices during the period of
conscription, wherein the higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain
permission from the commanding officer before he/she may
leave his destination. A soldier who goes from the properly
appointed place of duty or absents from his/her command,
guard, quarters, station, or camp without proper leave is subject
to punishment by court-martial. It is even clear from the record
that petitioners had actually requested for travel authority from
the PMA in Baguio City to Manila, to attend the Senate Hearing.
Even petitioners are well aware that it was necessary for them to
obtain permission from their superiors before they could travel to
Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these
fundamental principles we have discussed. They seek to be

exempted from military justice for having traveled to the Senate

to testify before the Senate Committee against the express
orders of Gen. Senga, the AFP Chief of Staff. If petitioners
position is affirmed, a considerable exception would be carved
from the unimpeachable right of military officers to restrict the
speech and movement of their juniors. The ruinous
consequences to the chain of command and military discipline
simply cannot warrant the Courts imprimatur on petitioners
position.
V.
Still, it would be highly myopic on our part to resolve the issue
solely on generalities surrounding military discipline. After all,
petitioners seek to impress on us that their acts are justified as
they were responding to an invitation from the Philippine Senate,
a component of the legislative branch of government. At the
same time, the order for them not to testify ultimately came from
the President, the head of the executive branch of government
and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President
prevent a member of the armed forces from testifying before a
legislative inquiry? We hold that the President has constitutional
authority to do so, by virtue of her power as commander-in-chief,
and that as a consequence a military officer who defies such
injunction is liable under military justice. At the same time, we
also hold that any chamber of Congress which seeks the
appearance before it of a military officer against the consent of
the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to
testify before it may be compelled to do so by the President. If
the President is not so inclined, the President may be
commanded by judicial order to compel the attendance of the
military officer. Final judicial orders have the force of the law of
the land which the President has the duty to faithfully execute.
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not
issue a blanket requirement of prior consent on executive
officials summoned by the legislature to attend a congressional
hearing. In doing so, the Court recognized the considerable
limitations on executive privilege, and affirmed that the privilege
must be formally invoked on specified grounds. However, the
ability of the President to prevent military officers from testifying
before Congress does not turn on executive privilege, but on the
Chief Executives power as commander-in-chief to control the
actions and speech of members of the armed forces. The
Presidents prerogatives as commander-in-chief are not
hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require
military officers to seek presidential approval before appearing
before Congress is based foremost on the notion that a contrary
rule unduly diminishes the prerogatives of the President as
commander-in-chief. Congress holds significant control over the
armed forces in matters such as budget appropriations and the
approval of higher-rank promotions, yet it is on the President
that the Constitution vests the title as commander-in-chief and
all the prerogatives and functions appertaining to the position.
Again, the exigencies of military discipline and the chain of
command mandate that the Presidents ability to control the
individual members of the armed forces be accorded the utmost
respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without
hesitation affirm that the officer has to choose the President.
After all, the Constitution prescribes that it is the President, and
not the Senate, who is the commander-in-chief of the armed
forces.
At the same time, the refusal of the President to allow members
of the military to appear before Congress is still subject to
judicial relief. The Constitution itself recognizes as one of the
legislatures functions is the conduct of inquiries in aid of
legislation. Inasmuch as it is ill-advised for Congress to interfere
with the Presidents power as commander-in-chief, it is similarly
detrimental for the President to unduly interfere with Congresss
right to conduct legislative inquiries. The impasse did not come
to pass in this petition, since petitioners testified anyway despite
the presidential prohibition. Yet the Court is aware that with its
pronouncement today that the President has the right to require

22

prior consent from members of the armed forces, the clash may
soon loom or actualize.
We believe and hold that our constitutional and legal order
sanctions a modality by which members of the military may be
compelled to attend legislative inquiries even if the President
desires otherwise, a modality which does not offend the Chief
Executives prerogatives as commander-in-chief. The remedy
lies with the courts.
The fact that the executive branch is an equal, coordinate
branch of government to the legislative creates a wrinkle to any
basic rule that persons summoned to testify before Congress
must do so. There is considerable interplay between the
legislative and executive branches, informed by due deference
and respect as to their various constitutional functions.
Reciprocal courtesy idealizes this relationship; hence, it is only
as a last resort that one branch seeks to compel the other to a
particular mode of behavior. The judiciary, the third coordinate
branch of government, does not enjoy a similar dynamic with
either the legislative or executive branches. Whatever weakness
inheres on judicial power due to its inability to originate national
policies and legislation, such is balanced by the fact that it is the
branch empowered by the Constitution to compel obeisance to
its rulings by the other branches of government.
As evidenced by Arnault v. Nazareno and Bengzon v. Senate
Blue Ribbon Committee, among others, the Court has not
shirked from reviewing the exercise by Congress of its power of
legislative inquiry. Arnault recognized that the legislative power
of inquiry and the process to enforce it, "is an essential and
appropriate auxiliary to the legislative function." On the other
hand, Bengzon acknowledged that the power of both houses of
Congress to conduct inquiries in aid of legislation is not
"absolute or unlimited", and its exercise is circumscribed by
Section 21, Article VI of the Constitution. From these premises,
the Court enjoined the Senate Blue Ribbon Committee from
requiring the petitioners in Bengzon from testifying and
producing evidence before the committee, holding that the
inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It
elucidated on the constitutional scope and limitations on the
constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to
enforce it," is grounded on the necessity of information in the
legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning, Congress has
the right to that information and the power to compel the
disclosure thereof.
As evidenced by the American experience during the so-called
"McCarthy era", however, the right of Congress to conduct
inquirites in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected
to judicial review pursuant to the Courts certiorari powers under
Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee, the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such
result as occurred in Bengzon is to indicate in its invitations to
the public officials concerned, or to any person for that matter,
the possible needed statute which prompted the need for the
inquiry. Given such statement in its invitations, along with the
usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room
for speculation on the part of the person invited on whether the
inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that
proscribe the legislative power of inquiry. The provision requires
that the inquiry be done in accordance with the Senate or
Houses duly published rules of procedure, necessarily implying
the constitutional infirmity of an inquiry conducted without duly
published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to
the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts,

upon the proper suit filed by the persons affected, even if they
belong to the executive branch. Nonetheless, there may be
exceptional circumstances wherein a clear pattern of abuse of
the legislative power of inquiry might be established, resulting in
palpable violations of the rights guaranteed to members of the
executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the
Executive Branch to forestall these abuses may be accorded
judicial sanction .
In Senate, the Court ruled that the President could not impose a
blanket prohibition barring executive officials from testifying
before Congress without the Presidents consent
notwithstanding the invocation of executive privilege to justify
such prohibition. The Court did not rule that the power to
conduct legislative inquiry ipso facto superseded the claim of
executive privilege, acknowledging instead that the viability of
executive privilege stood on a case to case basis. Should
neither branch yield to the other branchs assertion, the
constitutional recourse is to the courts, as the final arbiter if the
dispute. It is only the courts that can compel, with
conclusiveness, attendance or non-attendance in legislative
inquiries.
Following these principles, it is clear that if the President or the
Chief of Staff refuses to allow a member of the AFP to appear
before Congress, the legislative body seeking such testimony
may seek judicial relief to compel the attendance. Such judicial
action should be directed at the heads of the executive branch
or the armed forces, the persons who wield authority and control
over the actions of the officers concerned. The legislative
purpose of such testimony, as well as any defenses against the
same whether grounded on executive privilege, national
security or similar concerns would be accorded due judicial
evaluation. All the constitutional considerations pertinent to
either branch of government may be raised, assessed, and
ultimately weighed against each other. And once the courts
speak with finality, both branches of government have no option
but to comply with the decision of the courts, whether the effect
of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of
judicial review, to arbitrate disputes between the legislative and
executive branches of government on the proper constitutional
parameters of power. This is the fair and workable solution
implicit in the constitutional allocation of powers among the three
branches of government. The judicial filter helps assure that the
particularities of each case would ultimately govern, rather than
any overarching principle unduly inclined towards one branch of
government at the expense of the other. The procedure may not
move as expeditiously as some may desire, yet it ensures
thorough deliberation of all relevant and cognizable issues
before one branch is compelled to yield to the other. Moreover,
judicial review does not preclude the legislative and executive
branches from negotiating a mutually acceptable solution to the
impasse. After all, the two branches, exercising as they do
functions and responsibilities that are political in nature, are free
to smooth over the thorns in their relationship with a salve of
their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls
on the shoulders of the President, as commander-in-chief, to
authorize the appearance of the military officers before
Congress. Even if the President has earlier disagreed with the
notion of officers appearing before the legislature to testify, the
Chief Executive is nonetheless obliged to comply with the final
orders of the courts.
Petitioners have presented several issues relating to the
tenability or wisdom of the Presidents order on them and other
military officers not to testify before Congress without the
Presidents consent. Yet these issues ultimately detract from the
main point that they testified before the Senate despite an
order from their commanding officer and their commander-inchief for them not to do so, in contravention of the traditions of
military discipline which we affirm today.1wphi1 The issues
raised by petitioners could have very well been raised and
properly adjudicated if the proper procedure was observed.
Petitioners could have been appropriately allowed to testify
before the Senate without having to countermand their

23

Commander-in-chief and superior officer under the setup we

have prescribed.
We consider the other issues raised by petitioners unnecessary
to the resolution of this petition.
Petitioners may have been of the honest belief that they were
defying a direct order of their Commander-in-Chief and
Commanding General in obeisance to a paramount idea formed
within their consciences, which could not be lightly ignored. Still,
the Court, in turn, is guided by the superlative principle that is
the Constitution, the embodiment of the national conscience.
The Constitution simply does not permit the infraction which
petitioners have allegedly committed, and moreover, provides for
an orderly manner by which the same result could have been
achieved without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to
costs. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 167173
December 27, 2007
STANDARD CHARTERED BANK (Philippine Branch), PAUL
SIMON MORRIS, SUNDARA RAMESH, OWEN BELMAN,
SANJAY AGGARWAL, RAJAMANI CHANDRASHEKAR,
MARIVEL GONZALES, MA. ELLEN VICTOR, CHONA G.
REYES, ZENAIDA IGLESIAS, RAMONA BERNAD,
MICHAELANGELO AGUILAR, and FERNAND TANSINGCO,
Petitioners, vs.
SENATE COMMITTEE ON BANKS, FINANCIAL
INSTITUTIONS AND CURRENCIES, as represented by its
Chairperson, HON. EDGARDO J. ANGARA, Respondent.
DECISION
NACHURA, J.:
Before us is a Petition for Prohibition (With Prayer for Issuance
of Temporary Restraining Order and/or Injunction) dated and
filed on March 11, 2005 by petitioners against respondent
Senate Committee on Banks, Financial Institutions and
Currencies, as represented by its Chairperson Edgardo J.
Angara (respondent).
Petitioner Standard Chartered Bank (SCB)-Philippines is an
institution incorporated in England with limited liability and is
licensed to engage in banking, trust, and other related
operations in the Philippines. Petitioners Paul Simon Morris,
Sundara Ramesh, Owen Belman, Sanjay Aggarwal, Rajamani
Chandrashekar, Marivel Gonzales, Ma. Ellen Victor, Chona G.
Reyes, Zenaida Iglesias, Ramona Bernad, Michaelangelo
Aguilar, and Fernand Tansingco are the Chief Executive Officer,
Chief Operations Officer, Country Head of Consumer Banking,
General Manager for Credit Card and Personal Loans, Chief
Financial Officer, Legal and Compliance Officer, former Trust
and Investment Services Head, Country Tax Officer, Head of
Corporate Affairs, Head of Banking Services, Head of Client
Relationships, and the Head of Global Markets of SCBPhilippines, respectively. Respondent, on the other hand, is one
of the permanent committees of the Senate of the Philippines.
The petition seeks the issuance of a temporary restraining order
(TRO) to enjoin respondent from (1) proceeding with its inquiry
pursuant to Philippine Senate (P.S.) Resolution No. 166; (2)
compelling petitioners who are officers of petitioner SCBPhilippines to attend and testify before any further hearing to be
conducted by respondent, particularly that set on March 15,
2005; and (3) enforcing any hold-departure order (HDO) and/or
putting the petitioners on the Watch List. It also prays that
judgment be rendered (1) annulling the subpoenae ad
testificandum and duces tecum issued to petitioners, and (2)
prohibiting the respondent from compelling petitioners to appear
and testify in the inquiry being conducted pursuant to P.S.
Resolution No. 166.
The facts are as follows:
On February 1, 2005, Senator Juan Ponce Enrile, Vice
Chairperson of respondent, delivered a privilege speech entitled
"Arrogance of Wealth" before the Senate based on a letter from
Atty. Mark R. Bocobo denouncing SCB-Philippines for selling
unregistered foreign securities in violation of the Securities
Regulation Code (R.A. No. 8799) and urging the Senate to
immediately conduct an inquiry, in aid of legislation, to prevent

the occurrence of a similar fraudulent activity in the future. Upon

motion of Senator Francis Pangilinan, the speech was referred
to respondent. Prior to the privilege speech, Senator Enrile had
introduced P.S. Resolution No. 166, to wit:
RESOLUTION
DIRECTING THE COMMITTEE ON BANKS, FINANCIAL
INSTITUTIONS AND CURRENCIES, TO CONDUCT AN
INQUIRY, IN AID OF LEGISLATION, INTO THE ILLEGAL SALE
OF UNREGISTERED AND HIGH-RISK SECURITIES BY
STANDARD CHARTERED BANK, WHICH RESULTED IN
BILLIONS OF PESOS OF LOSSES TO THE INVESTING
PUBLIC
WHEREAS, Republic Act No. 7721, otherwise known as the
"Law Liberalizing the Entry and Scope of Operations of Foreign
Banks in the Philippines," was approved on May 18, 1994 to
promote greater participation of foreign banks in the Philippine
Banking Industry that will stimulate economic growth and serve
as a channel for the flow of funds into the economy;
WHEREAS, to promote greater competition in the Philippine
Banking Industry, foreign banks were accorded the same
privileges, allowed to perform the same functions and subjected
to the same limitations under relevant banking laws imposed
upon domestic banks;
WHEREAS, Standard Chartered Bank was among the foreign
banks granted the privilege to do business in our country under
Republic Act No. 7721;
WHEREAS, there are complaints against Standard Chartered
Bank whose actions have reportedly defrauded hundreds of
Filipino investors of billions of pesos through the sale of
unregistered securities in the form of high-risk mutual funds
falsely advertised and marketed as safe investment havens;
WHEREAS, there are reports that Standard Chartered Bank
clearly knew that its actions were violative of Philippine banking
and securities laws but cleverly disguised its illegal acts through
the use of pro-forma agreements containing waivers of liability in
favor of the bank;
WHEREAS, there are reports that in the early stages of
conducting these questionable activities, the Bangko Sentral ng
Pilipinas warned and eventually fined Standard Chartered Bank
a measly P30,000 for violating Philippine banking laws;
WHEREAS, the particular operations of Standard Chartered
Bank may constitute "conducting business in an unsafe and
unsound manner," punishable under Section 37 of Republic Act
No. 7653 and should have drawn the higher penalty of
revocation of its quasi-banking license;
WHEREAS, Republic Act No. 8791 or the "General Banking Act
of 2000" deems a particular act or omission as conducting
business in an unsafe and unsound manner as follows:
"Section 56.2 The act or omission has resulted or may result in
material loss or damage or abnormal risk to the institution's
depositors, creditors, investors, stockholders or to the Bangko
Sentral or to the public in general."
WHEREAS, the sale of unregistered securities is also a clear
violation of Republic Act No. 8799 or "The Securities Regulation
Code of 2000" which states:
"Section 8.1 Securities shall not be sold or offered for sale or
distribution within the Philippines, without a registration
statement duly filed with and approved by the Commission. Prior
to such sale, information on the securities, in such form and with
such substance as the Commission may prescribe, shall be
made available to each prospective purchaser."
WHEREAS, the Securities and Exchange Commission (SEC)
reportedly issued a Cease-and-Desist Order (CDO) against
Standard Chartered Bank for the sale of these unregistered
securities but the case was reportedly settled administratively
and dismissed after Standard Chartered Bank paid a fine of P7
Million;
WHEREAS, the SEC reportedly made an official finding that
Standard Chartered Bank actively engaged in promoting and
marketing the so-called "Global Third Party Mutual Funds" to the
investing public and even set revenue quotas for the sale of
these funds;
WHEREAS, existing laws including the Securities Regulation
Code seem to be inadequate in preventing the sale of
unregistered securities and in effectively enforcing the

24

registration rules intended to protect the investing public from

fraudulent practices;
WHEREAS, the regulatory intervention by the SEC and BSP
likewise appears inadequate in preventing the conduct of
proscribed activities in a manner that would protect the investing
public;
WHEREAS, there is a need for remedial legislation to address
the situation, having in mind the imposition of proportionate
penalties to offending entities and their directors, officers and
representatives among other additional regulatory measures;
Now, therefore, BE IT RESOLVED, AS IT IS HEREBY
RESOLVED, to direct the Committee on Banks, Currencies, and
Financial Institutions, to conduct an inquiry, in aid of legislation,
into the reported sale of unregistered and high-risk securities by
Standard Chartered Bank which resulted in billions of losses to
the investing public.
Acting on the referral, respondent, through its Chairperson,
Senator Edgardo J. Angara, set the initial hearing on February
28, 2005 to investigate, in aid of legislation, the subject matter of
the speech and resolution filed by Senator Enrile.
Respondent invited petitioners, among others, to attend the
hearing, requesting them to submit their written position paper.
Petitioners, through counsel, submitted to respondent a letter
dated February 24, 2005 presenting their position, particularly
stressing that there were cases pending in court allegedly
involving the same issues subject of the legislative inquiry,
thereby posing a challenge to the jurisdiction of respondent to
continue with the inquiry.
On February 28, 2005, respondent commenced the
investigation. Senator Enrile inquired who among those invited
as resource persons were present and who were absent.
Thereafter, Senator Enrile moved that subpoenae be issued to
those who did not attend the hearing and that the Senate
request the Department of Justice, through the Bureau of
Immigration and Deportation, to issue an HDO against them
and/or include them in the Bureaus Watch List. Senator Juan
Flavier seconded the motion and the motion was approved.
Respondent then proceeded with the investigation proper.
Towards the end of the hearing, petitioners, through counsel,
made an Opening Statement that brought to the attention of
respondent the lack of proper authorization from affected clients
for the bank to make disclosures of their accounts and the lack
of copies of the accusing documents mentioned in Senator
Enrile's privilege speech, and reiterated that there were pending
court cases regarding the alleged sale in the Philippines by
SCB-Philippines of unregistered foreign securities.
The February 28, 2005 hearing was adjourned without the
setting of the next hearing date. However, petitioners were later
served by respondent with subpoenae ad testificandum and
duces tecum to compel them to attend and testify at the hearing
set on March 15, 2005. Hence, this petition.
The grounds relied upon by petitioners are as follows:
I.
THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR
ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF JURISDICTION IN CONDUCTING AN
INVESTIGATION, PURPORTEDLY IN AID OF LEGISLATION,
BUT IN REALITY PROBING INTO THE ISSUE OF WHETHER
THE STANDARD CHARTERED BANK HAD SOLD
UNREGISTERED FOREIGN SECURITIES IN THE
PHILIPPINES. SAID ISSUE HAS LONG BEEN THE SUBJECT
OF CRIMINAL AND CIVIL ACTIONS NOW PENDING BEFORE
THE COURT OF APPEALS, REGIONAL TRIAL COURT OF
PASIG CITY, METROPOLITAN TRIAL COURT OF MAKATI
CITY AND THE PROSECUTOR'S OFFICE OF MAKATI CITY.
II.
THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION BY CONDUCTING
AN INVESTIGATION, PURPORTEDLY "IN AID OF
LEGISLATION," BUT IN REALITY IN "AID OF COLLECTION"
BY A HANDFUL OF TWO (2) CLIENTS OF STANDARD
CHARTERED BANK OF LOSSES WHICH WERE FOR THEIR
ACCOUNT AND RISK. AT ANY RATE, SUCH COLLECTION IS
WITHIN THE PROVINCE OF THE COURT RATHER THAN OF
THE LEGISLATURE.
III.

THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR

ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF JURISDICTION IN COMPELLING PETITIONERS,
SOME OF WHOM ARE RESPONDENTS IN THE PENDING
CRIMINAL AND CIVIL ACTIONS BROUGHT BY SAID
CLIENTS, IN VIOLATION OF PETITIONERS RIGHT AGAINST
SELF-INCRIMINATION AND RIGHT TO PURSUE AND
DEFEND THEIR CAUSE IN COURT RATHER THAN ENGAGE
IN TRIAL BY PUBLICITY A CLEAR VIOLATION OF DUE
PROCESS, RIGHT TO PRIVACY AND TO TRAVEL.
IV.
THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION BY
DISREGARDING ITS OWN RULES.
Petitioners argue that respondent has no jurisdiction to conduct
the inquiry because its subject matter is the very same subject
matter of the following cases, to wit:
(a) CA-G.R. SP No. 85078, entitled "Manuel V. Baviera vs. Hon.
Esperanza P. Rosario, et al., pending before the 9th Division of
the Court of Appeals. In the petition, Mr. Baviera seeks to annul
and set aside the dismissal by the Department of Justice of his
complaint against Standard Chartered Bank and its officers
accusing them of SELLING UNREGISTERED FOREIGN
SECURITIES IN VIOLATION OF P.D. NO. 1869 (SYNDICATED
ESTAFA) AND ARTICLE 315 OF THE REVISED PENAL CODE.
(b) CA-G.R. SP No. 86200, entitled "Manuel V. Baviera vs. Hon.
Rafael Buenaventura, et al.", pending before the 15th Division of
the Court of Appeals. In the petition, Mr. Baviera seeks to annul
and set aside the termination for lack of probable cause by the
Anti-Money Laundering Council ("AMLC") of the investigation of
Standard Chartered Bank for money laundering activities BY
SELLING UNREGISTERED FOREIGN SECURITIES.
(c) CA-G.R. SP No. 87328, entitled "Manuel V. Baviera vs. Hon.
Esperanza Paglinawan Rozario, et al.," pending before the 16th
Division of the Court of Appeals. The petition seeks to annul and
set aside the dismissal by the Department of Justice of Mr.
Baviera's complaint accusing SCB and its officers of violation of
the Securities Regulation Code by SELLING UNREGISTERED
FOREIGN SECURITIES.
(d) Civil Case No. 70173, entitled "Mr. Noel G. Sanchez, et al.
vs. Standard Chartered Bank," pending before Branch 155 of the
Regional Trial Court of Pasig City. Plaintiff seeks damages and
recovery of their investment accusing the bank of SELLING
UNREGISTERED FOREIGN SECURITIES.
(e) Criminal Case No. 332034, entitled "People of the Philippines
vs. Manuel V. Baviera," pending before Branch 64 of the
Metropolitan Trial Court of Makati City. Petitioner Morris is the
private complainant in this information for extortion or blackmail
against Mr. Baviera for demanding the payment of US$2 Million
with the threat to EXPOSE THE BANK'S "LARGE SCALE
SCAM" CONSISTING [OF] ILLEGAL SELLING OF
UNREGISTERED FOREIGN SECURITIES BY THE BANK,
before various government offices, such as the Department of
Justice, the BIR, Bangko Sentral ng Pilipinas, Regional Trial
Courts, and both houses of Congress.
(f) Criminal Case No. 331395, entitled "People of the Philippines
vs. Manuel V. Baviera," pending before Branch 64 of the
Metropolitan Trial Court of Makati City. Petitioners Victor and
Chona Reyes are the private complainants in this information for
perjury committed by Mr. Baviera in securing a hold departure
order against the petitioners herein from the Department of
Justice for their alleged involvement in syndicated estafa and
swindling BY SELLING UNREGISTERED FOREIGN
SECURITIES.
(g) I.S. No. 2004-B-2279-80, entitled "Aurelio Litonjua III and
Aurelio Litonjua, Jr. vs. Antonette de los Reyes, et al.," pending
before the Office of the Prosecutor, Makati City. This is a criminal
complaint accusing SCB and its officers of estafa for SELLING
UNREGISTERED FOREIGN SECURITIES.
Citing Bengzon, Jr. v. Senate Blue Ribbon Committee, the
petitioners claim that since the issue of whether or not SCBPhilippines illegally sold unregistered foreign securities is
already preempted by the courts that took cognizance of the
foregoing cases, the respondent, by this investigation, would
encroach upon the judicial powers vested solely in these courts.

25

The argument is misplaced. Bengzon does not apply squarely to

petitioners case.
It is true that in Bengzon, the Court declared that the issue to be
investigated was one over which jurisdiction had already been
acquired by the Sandiganbayan, and to allow the [Senate Blue
Ribbon] Committee to investigate the matter would create the
possibility of conflicting judgments; and that the inquiry into the
same justiciable controversy would be an encroachment on the
exclusive domain of judicial jurisdiction that had set in much
earlier.
To the extent that, in the case at bench, there are a number of
cases already pending in various courts and administrative
bodies involving the petitioners, relative to the alleged sale of
unregistered foreign securities, there is a resemblance between
this case and Bengzon. However, the similarity ends there.
Central to the Courts ruling in Bengzon -- that the Senate Blue
Ribbon Committee was without any constitutional mooring to
conduct the legislative investigation -- was the Courts
determination that the intended inquiry was not in aid of
legislation. The Court found that the speech of Senator Enrile,
which sought such investigation contained no suggestion of any
contemplated legislation; it merely called upon the Senate to
look into possible violations of Section 5, Republic Act No. 3019.
Thus, the Court held that the requested probe failed to comply
with a fundamental requirement of Section 21, Article VI of the
Constitution, which states:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation
in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall
be respected.
Accordingly, we stopped the Senate Blue Ribbon Committee
from proceeding with the legislative investigation in that case.
Unfortunately for the petitioners, this distinguishing factual milieu
in Bengzon does not obtain in the instant case. P.S. Resolution
No. 166 is explicit on the subject and nature of the inquiry to be
(and already being) conducted by the respondent Committee, as
found in the last three Whereas clauses thereof, viz.:
WHEREAS, existing laws including the Securities Regulation
Code seem to be inadequate in preventing the sale of
unregistered securities and in effectively enforcing the
registration rules intended to protect the investing public from
fraudulent practices;
WHEREAS, the regulatory intervention by the SEC and BSP
likewise appears inadequate in preventing the conduct of
proscribed activities in a manner that would protect the investing
public;
WHEREAS, there is a need for remedial legislation to address
the situation, having in mind the imposition of proportionate
penalties to offending entities and their directors, officers and
representatives among other additional regulatory measures;
(emphasis supplied)
The unmistakable objective of the investigation, as set forth in
the said resolution, exposes the error in petitioners allegation
that the inquiry, as initiated in a privilege speech by the very
same Senator Enrile, was simply "to denounce the illegal
practice committed by a foreign bank in selling unregistered
foreign securities x x x." This fallacy is made more glaring when
we consider that, at the conclusion of his privilege speech,
Senator Enrile urged the Senate "to immediately conduct an
inquiry, in aid of legislation, so as to prevent the occurrence of a
similar fraudulent activity in the future."
Indeed, the mere filing of a criminal or an administrative
complaint before a court or a quasi-judicial body should not
automatically bar the conduct of legislative investigation.
Otherwise, it would be extremely easy to subvert any intended
inquiry by Congress through the convenient ploy of instituting a
criminal or an administrative complaint. Surely, the exercise of
sovereign legislative authority, of which the power of legislative
inquiry is an essential component, cannot be made subordinate
to a criminal or an administrative investigation.
As succinctly stated in the landmark case Arnault v. Nazareno
[T]he power of inquiry with process to enforce it is an
essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the

legislation is intended to affect or change; and where the

legislative body does not itself possess the requisite information
which is not infrequently true recourse must be had to others
who possess it.
Neither can the petitioners claim that they were singled out by
the respondent Committee. The Court notes that among those
invited as resource persons were officials of the Securities and
Exchange Commission (SEC) and the Bangko Sentral ng
Pilipinas (BSP). These officials were subjected to the same
critical scrutiny by the respondent relative to their separate
findings on the illegal sale of unregistered foreign securities by
SCB-Philippines. It is obvious that the objective of the
investigation was the quest for remedies, in terms of legislation,
to prevent the recurrence of the allegedly fraudulent activity.
Still, petitioners insist that the inquiry conducted by respondent
was, in fact, "in aid of collection." They claim that Atty. Bocobo
and Manuel Baviera, the latter a party to the pending court
cases cited by petitioners, were only seeking a friendly forum so
that they could recover their investments from SCB-Philippines;
and that the respondent has allowed itself to be used as the
conveniently available vehicle to effect this purpose.
However, as correctly pointed out by respondent in its Comment
on the petition, Atty. Bocobo did not file a complaint before the
Senate for the purpose of recovering his investment. On the
contrary, and as confirmed during the initial hearing on February
28, 2005, his letter-complaint humbly requested the Senate to
conduct an inquiry into the purportedly illegal activities of SCBPhilippines, with the end view of preventing the future
occurrence of any similar fraudulent activity by the banks in
general. Baviera, on the other hand, was not a "complainant" but
merely a witness in the investigation, invited to testify on the
alleged illegal sale of unregistered foreign securities by SCBPhilippines, being one of the supposed victims thereof.
The Court further notes that when it denied petitioners prayer for
the issuance of a TRO to restrain the hearing set on March 15,
2005, respondent proceeded with the investigation. On the said
date, outraged by petitioners imputation that it was conducting
the investigation "in aid of collection," respondent held
petitioners, together with their counsel, Atty. Reynaldo
Geronimo, in contempt and ordered their detention for six hours.
Petitioners filed a Motion for Partial Reconsideration of this
Courts Resolution dated March 14, 2005 only with respect to
the denial of the prayer for the issuance of a TRO and/or writ of
preliminary injunction, alleging that their being held in contempt
was without legal basis, as the phrase "in aid of collection"
partakes of an absolutely privileged allegation in the petition.
We do not agree. The Court has already expounded on the
essence of the contempt power of Congress and its committees
in this wise
The principle that Congress or any of its bodies has the power to
punish recalcitrant witnesses is founded upon reason and policy.
Said power must be considered implied or incidental to the
exercise of legislative power. How could a legislative body obtain
the knowledge and information on which to base intended
legislation if it cannot require and compel the disclosure of such
knowledge and information, if it is impotent to punish a defiance
of its power and authority? When the framers of the Constitution
adopted the principle of separation of powers, making each
branch supreme within the realm of its respective authority, it
must have intended each departments authority to be full and
complete, independently of each others authority or power. And
how could the authority and power become complete if for every
act of refusal, every act of defiance, every act of contumacy
against it, the legislative body must resort to the judicial
department for the appropriate remedy, because it is impotent by
itself to punish or deal therewith, with affronts committed against
its authority or dignity.
The exercise by Congress or by any of its committees of the
power to punish contempt is based on the principle of selfpreservation. As the branch of the government vested with the
legislative power, independently of the judicial branch, it can
assert its authority and punish contumacious acts against it.
Such power is sui generis, as it attaches not to the discharge of
legislative functions per se, but to the sovereign character of the
legislature as one of the three independent and coordinate
branches of government.

26

In this case, petitioners imputation that the investigation was "in

aid of collection" is a direct challenge against the authority of the
Senate Committee, as it ascribes ill motive to the latter. In this
light, we find the contempt citation against the petitioners
reasonable and justified.
Furthermore, it is axiomatic that the power of legislative
investigation includes the power to compel the attendance of
witnesses. Corollary to the power to compel the attendance of
witnesses is the power to ensure that said witnesses would be
available to testify in the legislative investigation. In the case at
bench, considering that most of the officers of SCB-Philippines
are not Filipino nationals who may easily evade the compulsive
character of respondents summons by leaving the country, it
was reasonable for the respondent to request the assistance of
the Bureau of Immigration and Deportation to prevent said
witnesses from evading the inquiry and defeating its purpose. In
any event, no HDO was issued by a court. The BID instead
included them only in the Watch List, which had the effect of
merely delaying petitioners intended travel abroad for five (5)
days, provided no HDO is issued against them.
With respect to the right of privacy which petitioners claim
respondent has violated, suffice it to state that privacy is not an
absolute right. While it is true that Section 21, Article VI of the
Constitution, guarantees respect for the rights of persons
affected by the legislative investigation, not every invocation of
the right to privacy should be allowed to thwart a legitimate
congressional inquiry. In Sabio v. Gordon, we have held that the
right of the people to access information on matters of public
concern generally prevails over the right to privacy of ordinary
financial transactions. In that case, we declared that the right to
privacy is not absolute where there is an overriding compelling
state interest. Employing the rational basis relationship test, as
laid down in Morfe v. Mutuc, there is no infringement of the
individuals right to privacy as the requirement to disclosure
information is for a valid purpose, in this case, to ensure that the
government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign
securities. Suffice it to state that this purpose constitutes a
reason compelling enough to proceed with the assailed
legislative investigation.
As regards the issue of self-incrimination, the petitioners, officers
of SCB-Philippines, are not being indicted as accused in a
criminal proceeding. They were summoned by respondent
merely as resource persons, or as witnesses, in a legislative
inquiry. As distinguished by this Court
[An] accused occupies a different tier of protection from an
ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as
each question requiring an incriminating answer is shot at him,
an accused may altogether refuse to take the witness stand and
refuse to answer any and all questions.
Concededly, this right of the accused against self-incrimination is
extended to respondents in administrative investigations that
partake of the nature of or are analogous to criminal
proceedings. The privilege has consistently been held to extend
to all proceedings sanctioned by law; and to all cases in which
punishment is sought to be visited upon a witness, whether a
party or not.
However, in this case, petitioners neither stand as accused in a
criminal case nor will they be subjected by the respondent to any
penalty by reason of their testimonies. Hence, they cannot
altogether decline appearing before respondent, although they
may invoke the privilege when a question calling for an
incriminating answer is propounded.
Petitioners argument, that the investigation before respondent
may result in a recommendation for their prosecution by the
appropriate government agencies, such as the Department of
Justice or the Office of the Ombudsman, does not persuade.
As held in Sinclair v. United States -It may be conceded that Congress is without authority to compel
disclosures for the purpose of aiding the prosecution of pending
suits; but the authority of that body, directly or through its
Committees, to require pertinent disclosures in aid of its own
constitutional power is not abridged because the information
sought to be elicited may also be of use in such suits. x x x It is
plain that investigation of the matters involved in suits brought or

to be commenced under the Senate resolution directing the

institution of suits for the cancellation of the leases might directly
aid in respect of legislative action.
The prosecution of offenders by the prosecutorial agencies and
the trial before the courts is for the punishment of persons who
transgress the law. The intent of legislative inquiries, on the
other hand, is to arrive at a policy determination, which may or
may not be enacted into law.
Except only when it exercises the power to punish for contempt,
the respondent, as with the other Committees of the Senate or
of the House of Representatives, cannot penalize violators even
if there is overwhelming evidence of criminal culpability. Other
than proposing or initiating amendatory or remedial legislation,
respondent can only recommend measures to address or
remedy whatever irregularities may be unearthed during the
investigation, although it may include in its Report a
recommendation for the criminal indictment of persons who may
appear liable. At best, the recommendation, along with the
evidence, contained in such a Report would be persuasive, but it
is still up to the prosecutorial agencies and the courts to
determine the liabilities of the offender.
Finally, petitioners sought anew, in their Manifestation and
Motion dated June 21, 2006, the issuance by this Court of a
TRO and/or writ of preliminary injunction to prevent respondent
from submitting its Committee Report No. 75 to the Senate in
plenary for approval. However, 16 days prior to the filing of the
Manifestation and Motion, or on June 5, 2006, respondent had
already submitted the report to the Senate in plenary. While
there is no showing that the said report has been approved by
the Senate, the subject of the Manifestation and Motion has
inescapably become moot and academic.
WHEREFORE, the Petition for Prohibition is DENIED for lack of
merit. The Manifestation and Motion dated June 21, 2006 is,
likewise, DENIED for being moot and academic. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 174105
April 2, 2009
REGHIS M. ROMERO II, EDMOND Q. SESE, LEOPOLDO T.
SANCHEZ, REGHIS M. ROMERO III, MICHAEL L. ROMERO,
NATHANIEL L. ROMERO, and JEROME R. CANLAS,
Petitioners, vs.
SENATOR JINGGOY E. ESTRADA and SENATE COMMITTEE
ON LABOR, EMPLOYMENT AND HUMAN RESOURCES
DEVELOPMENT, Respondents.
DECISION
VELASCO, JR., J.:
At issue once again is Section 21, Article VI of the 1987
Constitution which provides:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation
in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall
be respected.
The Case
This is a petition for prohibition with application for temporary
restraining order (TRO) and preliminary injunction under Rule
65, assailing the constitutionality of the invitations and other
compulsory processes issued by the Senate Committee on
Labor, Employment, and Human Resources Development
(Committee) in connection with its investigation on the
investment of Overseas Workers Welfare Administration
(OWWA) funds in the Smokey Mountain project.
The Facts
On August 15, 2006, petitioner Reghis Romero II, as owner of RII Builders, Inc., received from the Committee an invitation,
signed by the Legislative Committee Secretary, which pertinently
reads as follows:
Dear Mr. Romero:
Pursuant to P.S. Resolution No. 537, entitled: "RESOLUTION
DIRECTING THE LABOR COMMITTEE TO INVESTIGATE, IN
AID OF LEGISLATION, THE LIABILITY FOR PLUNDER OF
THE FORMER PRESIDENT RAMOS AND OTHERS, FOR THE
ILLEGAL INVESTMENT OF OWWA FUNDS IN THE SMOKEY
MOUNTAIN PROJECT, CAUSING A LOSS TO OWWA OF

27

P550.86 MILLION" and P.S. Resolution No. 543, entitled:

"RESOLUTION DIRECTING THE COMMITTEE ON LABOR
AND EMPLOYMENT, IN ITS ONGOING INQUIRY IN AID OF
LEGISLATION, ON THE ALLEGED OWWA LOSS OF P480
MILLION TO FOCUS ON THE CULPABILITY OF THEN
PRESIDENT FIDEL RAMOS, THEN OWWA ADMINISTRATOR
WILHELM SORIANO, AND R-II BUILDERS OWNER REGHIS
ROMERO II," x x x the Committee on Labor, Employment and
Human Resources Development chaired by Sen. Jinggoy
Ejercito Estrada will conduct a public hearing at 1:00 p.m. on the
23rd day of August 2006 at the Sen. G.T. Pecson Room, 2nd
floor, Senate of the Philippines, Pasay City.
The inquiry/investigation is specifically intended to aid the
Senate in the review and possible amendments to the pertinent
provisions of R.A. 8042, "the Migrant Workers Act" and to craft a
much needed legislation relative to the stated subject matter and
purpose of the aforementioned Resolutions.
By virtue of the power vested in Congress by Section 21, Article
VI of 1987 Constitution regarding inquiries in aid of legislation,
may we have the privilege of inviting you to the said hearing to
shed light on any matter, within your knowledge and
competence, covered by the subject matter and purpose of the
inquiry. Rest assured that your rights, when properly invoked
and not unfounded, will be duly respected. (Emphasis in the
original.)
In his letter-reply dated August 18, 2006, petitioner Romero II
requested to be excused from appearing and testifying before
the Committee at its scheduled hearings of the subject matter
and purpose of Philippine Senate (PS) Resolution Nos. 537 and
543. He predicated his request on grounds he would later
substantially reiterate in this petition for prohibition.
On August 28, 2006, the Committee sent petitioner Romero II a
letter informing him that his request, being unmeritorious, was
denied. On the same date, invitations were sent to each of the
other six petitioners, then members of the Board of Directors of
R-II Builders, Inc., requesting them to attend the September 4,
2006 Committee hearing. The following day, Senator Jinggoy
Estrada, as Chairperson of the Committee, caused the service
of a subpoena ad testificandum on petitioner Romero II directing
him to appear and testify before the Committee at its hearing on
September 4, 2006 relative to the aforesaid Senate resolutions.
The Committer later issued separate subpoenas to other
petitioners, albeit for a different hearing date.
On August 30, 2006, petitioners filed the instant petition,
docketed as G.R. No. 174105, seeking to bar the Committee
from continuing with its inquiry and to enjoin it from compelling
petitioners to appear before it pursuant to the invitations thus
issued.
Failing to secure the desired TRO sought in the petition,
petitioner Romero II appeared at the September 4, 2006
Committee investigation.
Two days after, petitioner Romero II filed a Manifestation with
Urgent Plea for a TRO alleging, among others, that: (1) he
answered questions concerning the investments of OWWA
funds in the Smokey Mountain project and how much of
OWWAs original investment had already been paid; (2) when
Senator Estrada called on Atty. Francisco I. Chavez, as resource
person, the latter spoke of the facts and issues he raised with
the Court in Chavez v. National Housing Authority, none of which
were related to the subject of the inquiry; and (3) when Senator
Estrada adjourned the investigation, he asked petitioners
Romero II and Canlas to return at the resumption of the
investigation.
The manifestation was followed by the filing on September 19,
2006 of another urgent motion for a TRO in which petitioners
imputed to the Committee the intention to harass them as,
except for petitioner Romero II, none of them had even been
mentioned in relation to the subject of the investigation.
Meanwhile, respondents, in compliance with our September 5,
2006 Resolution that ordered them to submit a comment on the
original plea for a TRO, interposed an opposition, observing that
the Senates motives in calling for an investigation in aid of
legislation were a political question. They also averred that the
pendency of Chavez "is not sufficient ground to divest the
respondents of their jurisdiction to conduct an inquiry into the
matters alleged in the petition."

In this petition, petitioners in gist claim that: (1) the subject

matter of the investigation is sub judice owing to the pendency of
the Chavez petition; (2) since the investigation has been
intended to ascertain petitioners criminal liability for plunder, it is
not in aid of legislation; (3) the inquiry compelled them to appear
and testify in violation of their rights against self-incrimination;
and (4) unless the Court immediately issues a TRO, some or all
of petitioners would be in danger of being arrested, detained,
and forced to give testimony against their will, before the Court
could resolve the issues raised in G.R. No. 164527.
In their Comment dated October 17, 2006, respondents made a
distinction between the issues raised in Chavez and the subject
matter of the Senate resolutions, nixing the notion of sub judice
that petitioners raised at every possible turn. Respondents
averred that the subject matter of the investigation focused on
the alleged dissipation of OWWA funds and the purpose of the
probe was to aid the Senate determine the propriety of
amending Republic Act No. 8042 or The Migrant Workers Act of
1995 and enacting laws to protect OWWA funds in the future.
They likewise raised the following main arguments: (1) the
proposed resolutions were a proper subject of legislative inquiry;
and (2) petitioners right against self-incrimination was wellprotected and could be invoked when incriminating questions
were propounded.
On December 28, 2006, petitioners filed their Reply reiterating
the arguments stated in their petition, first and foremost of which
is: Whether or not the subject matter of the Committees inquiry
is sub judice.
The Courts Ruling
The Court resolves to dismiss the instant petition.
The Subject Matter of the Senate Inquiry Is no Longer Sub
Judice
Petitioners contend that the subject matter of the legislative
inquiry is sub judice in view of the Chavez petition.
The sub judice rule restricts comments and disclosures
pertaining to judicial proceedings to avoid prejudging the issue,
influencing the court, or obstructing the administration of justice.
A violation of the sub judice rule may render one liable for
indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court.
The rationale for the rule adverted to is set out in Nestle
Philippines v. Sanchez:
[I]t is a traditional conviction of civilized society everywhere that
courts and juries, in the decision of issues of fact and law should
be immune from every extraneous influence; that facts should
be decided upon evidence produced in court; and that the
determination of such facts should be uninfluenced by bias,
prejudice or sympathies.
Chavez, assuming for argument that it involves issues subject of
the respondent Committees assailed investigation, is no longer
sub judice or "before a court or judge for consideration." For by
an en banc Resolution dated July 1, 2008, the Court, in G.R. No.
164527, denied with finality the motion of Chavez, as the
petitioner in Chavez, for reconsideration of the Decision of the
Court dated August 15, 2007. In fine, it will not avail petitioners
any to invoke the sub judice effect of Chavez and resist, on that
ground, the assailed congressional invitations and subpoenas.
The sub judice issue has been rendered moot and academic by
the supervening issuance of the en banc Resolution of July 1,
2008 in G.R. No. 164527. An issue or a case becomes moot and
academic when it ceases to present a justiciable controversy, so
that a determination of the issue would be without practical use
and value. In such cases, there is no actual substantial relief to
which the petitioner would be entitled and which would be
negated by the dismissal of the petition. Courts decline
jurisdiction over such cases or dismiss them on the ground of
mootness, save in certain exceptional instances, none of which,
however, obtains under the premises.
Thus, there is no more legal obstacleon the ground of sub
judice, assuming it is invocableto the continuation of the
Committees investigation challenged in this proceeding.
At any rate, even assuming hypothetically that Chavez is still
pending final adjudication by the Court, still, such circumstance
would not bar the continuance of the committee investigation.
What we said in Sabio v. Gordon suggests as much:
The same directors and officers contend that the Senate is
barred from inquiring into the same issues being litigated before

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the Court of Appeals and the Sandiganbayan. Suffice it to state

that the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation provide that the filing or pendency of any prosecution
or administrative action should not stop or abate any inquiry to
carry out a legislative purpose.
A legislative investigation in aid of legislation and court
proceedings has different purposes. On one hand, courts
conduct hearings or like adjudicative procedures to settle,
through the application of a law, actual controversies arising
between adverse litigants and involving demandable rights. On
the other hand, inquiries in aid of legislation are, inter alia,
undertaken as tools to enable the legislative body to gather
information and, thus, legislate wisely and effectively; and to
determine whether there is a need to improve existing laws or
enact new or remedial legislation albeit the inquiry need not
result in any potential legislation. On-going judicial proceedings
do not preclude congressional hearings in aid of legislation.
Standard Chartered Bank (Philippine Branch) v. Senate
Committee on Banks, Financial Institutions and Currencies
(Standard Chartered Bank) provides the following reason:
[T]he mere filing of a criminal or an administrative complaint
before a court or quasi-judicial body should not automatically bar
the conduct of legislative investigation. Otherwise, it would be
extremely easy to subvert any intended inquiry by Congress
through the convenient ploy of instituting a criminal or an
administrative complaint. Surely, the exercise of sovereign
legislative authority, of which the power of legislative inquiry is
an essential component, cannot be made subordinate to a
criminal or administrative investigation.1avvphi1.zw+
As succinctly stated in x x x Arnault v. Nazareno
[T]he power of inquirywith process to enforce itis an
essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the
legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite
informationwhich is not infrequently truerecourse must be
had to others who possess it.
While Sabio and Standard Chartered Bank advert only to
pending criminal and administrative cases before lower courts
as not posing a bar to the continuation of a legislative inquiry,
there is no rhyme or reason that these cases doctrinal
pronouncement and their rationale cannot be extended to
appealed cases and special civil actions awaiting final
disposition before this Court.
The foregoing consideration is not all. The denial of the instant
recourse is still indicated for another compelling reason. As may
be noted, PS Resolution Nos. 537 and 543 were passed in 2006
and the letter-invitations and subpoenas directing the petitioners
to appear and testify in connection with the twin resolutions were
sent out in the month of August 2006 or in the past Congress.
On the postulate that the Senate of each Congress acts
separately and independently of the Senate before and after it,
the aforesaid invitations and subpoenas are considered functos
oficio and the related legislative inquiry conducted is, for all
intents and purposes, terminated. In this regard, the Court draws
attention to its pronouncements embodied in its Resolution of
September 4, 2008 in G.R. No. 180643 entitled Neri v. Senate
Committee on Accountability of Public Officers and
Investigations:
Certainly, x x x the Senate as an institution is "continuing," as it
is not dissolved as an entity with each national election or
change in the composition of its members. However, in the
conduct of its day-to-day business, the Senate of each Congress
acts separately and independently of the Senate before it. The
Rules of the Senate itself confirms this when it states:
xxxx
SEC. 123. Unfinished business at the end of the session shall
be taken up at the next session in the same status.

All pending matters and proceedings shall terminate upon the

expiration of one (1) Congress, but may be taken by the
succeeding Congress as if present[ed] for the first time.
Undeniably from the foregoing, all pending matters and
proceedings, i.e., unpassed bills and even legislative
investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and
it is merely optional on the Senate of the succeeding Congress
to take up such unfinished matters, not in the same status, but
as if presented for the first time. The logic and practicality of
such rule is readily apparent considering that the Senate of the
succeeding Congress (which will typically have a different
composition as that of the previous Congress) should not be
bound by the acts and deliberations of the Senate of which they
had no part. x x x (Emphasis added.)
Following the lessons of Neri, as reiterated in Garcillano v. The
House of Representatives Committees on Public Information,
Public Order and Safety, et al., it can very well be stated that the
termination of the assailed investigations has veritably mooted
the instant petition. This disposition becomes all the more
impeccable, considering that the Senate of the present
Congress has not, per available records, opted to take up anew,
as an unfinished matter, its inquiry into the investment of OWWA
funds in the Smokey Mountain project.
With the foregoing disquisition, the Court need not belabor the
other issues raised in this recourse. Suffice it to state that when
the Committee issued invitations and subpoenas to petitioners to
appear before it in connection with its investigation of the
aforementioned investments, it did so pursuant to its authority to
conduct inquiries in aid of legislation. This is clearly provided in
Art. VI, Sec. 21 of the Constitution, which was quoted at the
outset. And the Court has no authority to prohibit a Senate
committee from requiring persons to appear and testify before it
in connection with an inquiry in aid of legislation in accordance
with its duly published rules of procedure. Sabio emphasizes the
importance of the duty of those subpoenaed to appear before
the legislature, even if incidentally incriminating questions are
expected to be asked:
Anent the right against self-incrimination, it must be emphasized
that ["this right may be] invoked by the said directors and officers
of Philcomsat x x x only when the incriminating question is being
asked, since they have no way of knowing in advance the nature
or effect of the questions to be asked of them That this right may
possibly be violated or abused is no ground for denying
respondent Senate Committees their power of inquiry. The
consolation is that when this power is abused, such issue may
be presented before the courts.
xxxx
Let it be stressed at this point that so long as the constitutional
rights of witnesses x x x will be respected by respondent Senate
Committees, it [is] their duty to cooperate with them in their
efforts to obtain the facts needed for intelligent legislative action.
The unremitting obligation of every citizen is to respond to
subpoenae, to respect the dignity of the Congress and its
Committees, and to testify fully with respect to matters within the
realm of proper investigation. (Emphasis supplied.)
As a matter of long and sound practice, the Court refrains from
touching on the issue of constitutionality except when it is
unavoidable and is the very lis mota of the controversy. So it
must be here. Indeed, the matter of the constitutionality of the
assailed Committee invitations and subpoenas issued vis--vis
the investigation conducted pursuant to PS Resolution Nos. 537
and 543 has ceased to be a justiciable controversy, having been
rendered moot and academic by supervening events heretofore
indicated. In short, there is no more investigation to be continued
by virtue of said resolutions; there is no more investigation the
constitutionality of which is subject to a challenge.
WHEREFORE, the petition is DENIED. No pronouncement as to
costs. SO ORDERED.

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