Our country enjoys a democratic form of government wherein the power to

decide rests upon the people. Thus, it is important for us to be informed on how our
leaders decide on matters relating to public concern, and how they formulate plans to
accomplish public good and ensure sustainable development.
Article XI, Section 1 of the 1987 Constitution reads,
“Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.”
Public accountability is one of the standards of a genuine and modern
democratic government. Democracy remains ostensible as long as those in power
cannot be held accountable for their acts and omissions, for their decision, and how
they spend public funds. Likewise, transparency must be developed to maximize the
genuineness of public accountability.
Transparency in governance means that all documents, information, decision-
making processes, data/information used for decision/policy making are available to the
public – with very few, clearly and narrowly defined, exceptions. Such transparency
helps keep government accountable, and allows for citizens to meaningfully engage and
participate in governance1. Transparency as a policy of the State relates with the right of
the people to be informed on matters of public concern.
Right to information is not only recognized by our Constitution but also by
international law.
Article III, Section 7 of the 1987 Constitution states that,
“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.”
Additionally, according to Article II, Section 28 of the 1987 Constitution,
“Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.”
Right to information is an integral part or an extension of the right to freedom of
expression. Article 19 of Universal Declaration of Human Rights states that,
“Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”

1
https://www.theguardian.com/global-development/2013/jun/13/transparency-philippines-vincent-lazatintaken
October 2, 2016
 Resolution 59 (1946) of the UN General Assembly2states,
“Freedom of information is a fundamental human right and is the touchstone of all the
freedoms to which the United Nations is consecrated… Freedom of information requires
as an indispensable element the willingness and capacity to employ its privileges
without abuse. It requires as a basic discipline the moral obligation to seek the facts
without prejudice and to spread knowledge without malicious intent.”
The relevance of freedom of information has also been highlighted in
international conventions such as Brisbane Declaration on Freedom of Information: The
Right to Know (2010), the Maputo Declaration on Fostering Freedom of Expression,
Access to Information ad Empowerment of People (2008) and the Dakar Declaration on
Media and Good Governance (2005), all emerging from UNESCO’s annual celebrations
of World Press Freedom Day.3
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The right to information has long been enshrined in the Constitution. The desire
for accountability and transparency was a result of the traumatic experience of many
Filipinos during the Martial Law years. However, Congress has yet to enact the
Freedom of Information Act which has been pending since 2013.
Even without a law, the constitutional provisions on the right to information is
operational. In the case of Subido v Ozaeta4, the Supreme Court declares that,
“Except, perhaps when it is clear that the purpose of the examination is unlawful, or
sheer, idle curiosity, we do not believe it is the duty under the law of registration officers
to concern themselves with the motives, reasons, and objects of the person seeking
access to the records. It is not their prerogative to see that the information which the
records contain is not flaunted before public gaze, or that scandal is not made of it. If it
be wrong to publish the contents of the records, it is the legislature and not the
officials having custody thereof which is called upon to devise a remedy.”
Furthermore, in the case of Legaspi v CSC5, the Supreme Court said,
“It is clear from the foregoing pronouncements of this Court that government agencies
are without discretion in refusing disclosure of, or access to, information of
public concern. This is not to lose sight of the reasonable regulations which may be
imposed by said agencies in custody of public records on the manner in which the right
to information may be exercised by the public...the authority to regulate the manner of
examining public records does not carry with it the power to prohibit. A distinction
has to be made between the discretion to refuse outright the disclosure of or access to
a particular information and the authority to regulate the manner in which the access is
to be afforded.”
2
Resolution 59 of the UN General Assembly, CALLING OF AN INTERNATIONAL CONFERENCE ON FREEDOM OF
INFORMATION (14 December 1946)
3
http://www.unesco.org/new/en/communication-and-information/freedom-of-expression/freedom-of-
information/ taken October 2, 2016
4
80 Phil. 383(1948),
5
G.R. No. L-72119 (1987)
 Clearly, as stated in the decisions of the Supreme Court, the constitutional
provisions on the right to information is operational even without a law. However, it lacks
standard of operation which the people can freely avail without resulting to litigation.
On July 23, 2016, newly-elected President Rodrigo R. Duterte signed Executive
Order No. 2 mandating full public disclosure of all offices under the Executive branch.
The coverage of Executive Order No. 2 s 2016 (EO 2) is stated under Section 2,
“This order shall cover all government offices under the Executive Branch, including
but not limited to the national government and all its offices, departments, bureaus,
offices, and instrumentalities, including government-owned or -controlled corporations,
and state universities and colleges. Local government units (LGUs) are encouraged to
observe and be guided by this Order.”
Section 3 of EO 2 reads,
“Every Filipino shall have access to information, official records, public 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.”
Any Filipino citizen may request for the needed information through a letter sent
to the concerned office along with a valid proof of identity provided that it is not included
in the exceptions.
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The Constitution guarantees the separation of powers of the Executive,
Legislative and Judicial branches of the government. This doctrine refers to the division
of government responsibilities into distinct branches to regulate and limit one branch
from exercising the core functions of another. The purpose of which is to prevent the
concentration of power into one branch and provide for checks and balances.
One of the powers inherent, incidental and implied to the Legislative branch is
the power to conduct inquiries in aid of legislation. The essence of this certain power is
stated under the case of Arnault v Nazareno6,
“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 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
effect 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. The fact
that the Constitution expressly gives to Congress the power to punish its Members for

6
G.R. No. L-13820 (1950)
disorderly behavior, does not by necessary implication exclude the power to punish for
contempt any other person.”
The power to conduct inquiries in aid of legislation is also enshrined under the
1987 Constitution. Article VI, Section 21 states that,
“The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.”
Additionally, Article VI, Section 22 states,
“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.”
The latter provision speaks about question hour and pertains only to matters
related to their departments. It establishes a rule for the exercise of “oversight function”
by Congress to determine how laws are being implemented. However, Section 21 is
broader and extensive considering the liberal interpretation of the term “in aid of
legislation.” Again in the case of Arnault v Nazareno,
“Since, as we have noted, the Congress of the Philippines has a wider range of
legislative field than either the Congress of the United States or a State Legislature, we
think it is correct to say that the field of inquiry into which it may enter is also wider. It
would be difficult to define any limits by which the subject matter of its inquiry
can be bounded. It is not necessary to do so in this case. Suffice it to say that it must
be coextensive with the range of the legislative power.”
The right of Congress to conduct inquiries in aid of legislation is susceptible to
abuse. But such power is limited only to certain subjects as explicitly stated, that it must
be “in aid of legislation and accordance with its duly published rules of procedure.”
Furthermore, the rights of persons appearing in or affected by such inquiries shall be
respected.
Even if the inquiry is “in aid of legislation,” there are still exemptions to such
power. One example is if it falls under “executive privilege.” Bernard Schwartz defined
executive privilege as “the power of the Government to withhold information from the
public, the courts, and the Congress.” 7

7
B. Schwartz, Executive Privilege and Congressional Investigatory Power 47 Cal. L. 3
 During the height of the NBN-ZTE Deal Scandal, then-President Gloria
Macapagal-Arroyo issued Executive Order No. 464 s 2005 (EO 464). The purpose of
such issuance is “to prevent such inquires in aid of legislation from being used for
partisan political purposes, disrupting diplomatic relations with foreign government, and
weakening the stability of the State, thereby impeding the efforts of the government to
generate and attract foreign investments.” 8
The scope of EO 464 pertains to “all confidential or classified information
between the President and the public officers.” Under Section 2 of EO 464, it includes,
i. Conversations and correspondence between the President and the public official
covered by this executive order
ii. Military, diplomatic and other national security matters which in the interest of national
security should not be divulged
iii. Information between inter-government agencies prior to the conclusion of treaties
and executive agreements
iv. Discussion in close-door Cabinet meetings
v. Matters affecting national security and public order
Under Section 2 (b) of EO 464, officials covered by executive privilege are,
i. Senior officials of executive departments who in the judgment of the department
heads are covered by the executive privilege;
ii. 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;
iii. 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;
iv. Senior national security officials who in the judgment of the National Security Adviser
are covered by the executive privilege; and
v. Such other officers as may be determined by the President.
But in the case of Senate v Ermita9, the Supreme Court invalidated Section 2 (b) and
Section 3.
“Section 2 & 3 of E.O. 464 requires that all the public officials enumerated in Section
2(b) should secure the consent of the President prior to appearing before either house
of Congress. The enumeration is broad. In view thereof, whenever an official invokes
E.O.464 to justify the 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.”

8
Executive Order No. 464, s 2005
9
G.R. No. 169777 (2006)
 Furthermore,
“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… 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 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.”
Long before President Arroyo signed EO 464, many cases decided by the
Supreme Court provided operation of invoking executive privilege. The case of Almonte
v Vasquez10, quoted the case of United States v Nixon 418 U.S. 683, 708-9, 41 L. Ed.
2d 1039, 1061-4 (1973) which reads,
“The expectation of a President to the confidentiality of his conversations and
correspondence, 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 the
government and inextricably rooted in the separation of powers under the
Constitution…”
In the case of Chavez v PCGG11., 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. But where there is no need
to protect such state secrets, the privilege may not be invoked to withhold documents
and other information, provided that they are examined in strict confidence and given
scrupulous protection. Likewise, information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest.”
Furthermore, the same case added several restrictions,

10
G.R. No. 95367 (1995)
11
G.R. No. 130716 (1998)
“The information and the transactions referred to in the subject provisions of the
Constitution have as yet no defined scope and extent. There are no specific laws
prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. However, the following are some of the
recognized restrictions: (1) national security matters and intelligence information, (2)
trade secrets and banking transactions, (3) criminal matters, and (4) other confidential
information.”
Similarly, in Chavez v. Public Estates Authority12,the Supreme Court ruled that,
“The right to information, however, does not extend to matters recognized as
privileged information under the separation of powers. The right does not also apply
to information on military and diplomatic secrets, information affecting national security,
and information on investigations of crimes by law enforcement agencies before the
prosecution of the accused, which courts have long recognized as confidential. The
right may also be subject to other limitations that Congress may impose by law.”
The case of Neri v Senate Committee on Accountability of Public Officers and
Investigations13,the Court provided the elements for executive privilege:
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.
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There is no conflict of operation with regards to Executive Order No. 2 s 2016 (EO 2)
and Executive Order No. 464 s 2015 (EO 464). EO2 included executive and privilege
communication under EO 464 as well as those generally included in the jurisprudence
relating to the said law. Section 4 of Executive Order No. 2 states that,
“Access to information shall be denied when the information falls under any exception
enshrined in the Constitution, existing laws, or jurisprudence.”
An executive order issued by the President has the authority as that of a law enacted by
Congress. In the Dissenting Opinion of Justice Ynares-Santiago in the case of KMU v
Director-General of NEDA,

12
G.R. No. 133250 (2002)
13
G.R. No. 180643 (2008)
“The Administrative Code of 1987 empowers the President to issue executive orders
and rests upon her residual powers; that the President has the inherent right to
formulate rules which officials of the executive branch shall abide.”
Since EO 464 is still operational and can be considered as an “existing law,” it falls
under the exception as generally stated in EO 2.
Additionally, EO 464 is not the only exception to EO 2. Laws and jurisprudence like
Executive Order No. 608 s 2007, Bank Secrecy Act, Foreign Currency Deposit Act,
Insurance Code, Intellectual Property Code, and all other laws, as well as cases like
Chavez v Gonzales, Neri v Senate, Senate v Ermita, Chavez v PCGG, and all other
related cases.
If Congress will call for a legislative hearing “in aid of legislation,” information listed
under EO 464 and to related jurisprudence still enjoys declassification unless consented
by the President.
In conclusion, EO 2 supplements EO 464 by looking at the exceptions listed under the
latter law. Considering the nature of EO 2 and EO 464, the latter focuses on the
confidential or classified information under the Executive Branch, while the former
focuses on the operation of a constitutional provision on the right to information. It
includes the process and procedures of how the people can obtain government
information and the limitations on such exercise. Furthermore EO 2 is not in conflict with
the Constitution, existing laws or jurisprudence since it recognizes and is limited by their
existence as stated in Section 4 of its provisions.