POLITICAL LAW REVIEW 2016

a.LEGISLATIVE INQUIRY AND OVERSIGHT FUNCTION

I.

BENGZON, JR. V. SENATE BLUE RIBBON COMMITTEE

KAPUNAN, J.:

The power of congress to conduct investigations in inherent in the legislative process.

That power is broad. it encompasses inquiries concerning the administration of existing
laws as well as proposed, or possibly needed statutes. It includes surveys of defects in
our social,economic, or political system for the purpose of enabling Congress to remedy
them. It comprehends probes into departments of the Federal Government to expose
corruption, inefficiency or waste. But broad asis this power ofinquiry, it is not unlimited.
There is no general authority to expose the private affairs ofindividuals without
justification in terms of the functions of congress.
Since congress may only investigate into those areas in which it may potentially
legislate or appropriate, it cannot inquire into matters which are within the exclusive
province of one of the other branches of the government. Lacking the judicial power
given to the Judiciary, it cannot inquire into mattes that are exclusively the concern of
the Judiciary. Neither can it suplant the Executive in what exclusively belongs to the
Executive.
FACTS:
In pursuance of a speech made by Senator Enrile during a priviledged hour asking the
Senate to look into the matter of the alleged acquisition of the Lopa Group of the properties of
Kokoy Romualdez which is a subject of sequestration by the PCG and citing probable violations
of Republic Act No. 3019 Anti-Graft and Corrupt Practices Act, Section 5, petitioner Ricardo
Lopa and others were subpoenaed by the Committee to appear before it and testify on "what
they know" regarding the "sale of thirty-six (36) corporations belonging to Benjamin "Kokoy"
Romualdez."
, Ricardo Lopa declined to testify on the ground that his testimony may "unduly prejudice" the
defendants in Civil Case No. 0035 before the Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr.
likewise refused to testify involing his constitutional right to due process, and averring that the
publicity generated by respondents Committee's inquiry could adversely affect his rights as well
as those of the other petitioners who are his co-defendants in Civil Case No. 0035 before the
Sandiganbayan.
Claiming that the Senate Blue Ribbon Committee is poised to subpoena them and required
their attendance and testimony in proceedings before the Committee, in excess of its jurisdiction
and legislative purpose, in clear and blatant disregard of their constitutional rights, and to their
grave and irreparable damager, prejudice and injury, and that there is no appeal nor any other
plain, speedy and adequate remedy in the ordinary course of law, the petitioners filed the
present petition for prohibition with a prayer for temporary restraning order and/or injunctive
relief

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In its comment, respondent Committee claims that this court cannot properly inquire into the
motives of the lawmakers in conducting legislative investigations, much less cna it enjoin the
Congress or any its regular and special commitees like what petitioners seek from making
inquiries in aid of legislation, under the doctrine of separation of powers, which obtaines in our
present system of government.

RULING:
The Supreme court granted the petition.
1. The Court has Jurisdiction
T he separation of powers is a fundamental principle in our system of government. It
obtains not hrough express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters wihtin its
jurisdiction, and is supreme within its own sphere. But it does not follow from the fact
that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government...
But in the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The ovelapping and interlacing of funcstions and duties between the
several deaprtments, however, sometimes makes it hard to say just where the
political excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated, in cases of conflict, the judicial departments is the
only constitutional organ which can be called upon to determine the proper allocation
of powers between the several departments and among the integral or constituent
units thereof.
The Constitution is a definition of the powers of government. Who is to determine
the nature, scope and extent of such powers? The Constitution itself has provided for
the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries; it does not assert any superiority over
the other departments; it does not inr eality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by tyhe
Constitution to determine conflicting claims of authority under the Constitution and to
established for the parties in an actual controversy the rights which that instrument
secures and guarantess to them. This is in thruth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review under the
Constitution. Even the, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and

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limited further to the constitutional question raised or the very lis mota presented.
Any attempt at abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities. Narrowed as its function is in this
manner, the judiciary does not pass upon questions of wisdom, justice or expediency
of legislation. More thatn that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also becuase the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.
The Court is thus of the considered view that it has jurisdiction over the present
controversy for the purpose of determining the scope and extent of the power of the
Senate Blue Ribbon Committee to conduct inquiries into private affirs in purported
aid of legislation.
2. The Legislature has no power to inquire on the matter at issue.
A.

The committee investigation wanted by Senator Enrile is not in aid of a

legislation, The power to conduct formal inquiries or investigations in specifically
provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in
Aid of Legislation. Such inquiries may refer to the implementation or reexamination of any law or in connection with any proposed legislation or the
formulation of future legislation. They may also extend to any and all matters
vested by the Constitution in Congress and/or in the Seante alone.

the Senate may refer to any committee or committees any speech or resolution
filed by any Senator which in tis judgment requires an appropriate inquiry in aid of
legislation. In order therefore to ascertain the character or nature of an inquiry, resort
must be had to the speech or resolution under which such an inquiry is proposed to
be made.
Verily, the speech of Senator Enrile contained no suggestion of
contemplated legislation; he merely called upon the Senate to look into a possible
violation of Sec. 5 of RA No. 3019, otherwise known as "The Anti-Graft and
Corrupt Practices Act." I other words, the purpose of the inquiry to be conducted
by respondent Blue Ribbon commitee was to find out whether or not the relatives
of President Aquino, particularly Mr. ricardo Lopa, had violated the law in
connection with the alleged sale of the 36 or 39 corporations belonging to
Benjamin "Kokoy" Romualdez to the Lopaa Group. There appears to be,
therefore, no intended legislation involved.
The Court is also not impressed with the respondent Committee's
argument that the questioned inquiry is to be conducted pursuant to Senate
Resolution No. 212. The said resolution was introduced by Senator Jose D. Lina

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in view of the representaions made by leaders of school youth, community groups

and youth of non-governmental organizations to the Senate Committee on Youth
and Sports Development, to look into the charges against the PCGG filed by three
(3) stockholders of Oriental petroleum, i.e., that it has adopted a "get-rich-quick
scheme" for its nominee-directors in a sequestered oil exploration firm.
the inquiry under Senate Resolution No. 212 is to look into the charges
against the PCGG filed by the three (3) stockholders of Oriental Petroleum in
connection with the implementation of Section 26, Article XVIII of the
Constitution.
It cannot, therefore, be said that the contemplated inquiry on the subject of
the privilege speech of Senator Juan Ponce Enrile, i.e., the alleged sale of the 36
(or 39) corporations belonging to Benjamin "Kokoy" Romualdez to the Lopa
Group is to be conducted pursuant to Senate Resolution No. 212 because, firstly,
Senator Enrile did not indict the PCGG, and, secondly, neither Mr. Ricardo Lopa
nor the herein petitioners are connected with the government but are private
citizens.
It appeals, therefore, that the contemplated inquiry by respondent
Committee is not really "in aid of legislation" becuase it is not related to a
purpose within the jurisdiction of Congress, since the aim of the investigation is to
find out whether or not the ralatives of the President or Mr. Ricardo Lopa had
violated Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a
matter that appears more within the province of the courts rather than of the
legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died
during the pendency of this case

B.

It is violative of the separation of powers between the Senate or Congress and

that Judiciary. The pending civil case of the petitioners under Civil Case No. 0035
before the Sandiganbayan is where these issues by the Senate should be discussed.
It cannot be overlooked that when respondent Committee decide to conduct its
investigation of the petitioners, the complaint in Civil No. 0035 had already been filed
with the Sandiganbayan. A perusal of that complaint shows that one of its principal
causes of action against herein petitioners, as defendants therein, is the alleged sale
of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez. Since the
issues in said complaint had long been joined by the filing of petitioner's respective
answers thereto, the issue sought to be investigated by the respondent Committee is
one over which jurisdiction had been acquired by the Sandiganbayan. In short, the
issue had been pre-empted by that court. To allow the respondent Committee to
conduct its own investigation of an issue already before the Sandiganbayan would not
only pose the possibility of conflicting judgments betweena legislative committee and

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a judicial tribunal, but if the Committee's judgment were to be reached before that of
the Sandiganbayan, the possibility of its influence being made to bear on the ultimate
judgment of the Sandiganbayan can not be discounted.
In fine, for the rspondent Committee to probe and inquire into the same
justiciable controversy already before the Sandiganbayan, would be an
encroachment into the exclusive domain of judicial jurisdiction that had much earlier
set in.

II.

SENATE OF THE PHILIPINES V ERMITA

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.
Facts:
This case is regarding the railway project of the North Luzon Railways
Corporation with the China National Machinery and Equipment Group as well as the
Wiretapping activity of the ISAFP, and the Fertilizer scam.
The Senate Committees sent invitations to various officials of the Executive Department
and AFP officials for them to appear before Senate on Sept. 29, 2005. Before said date
arrived, Executive Sec. Ermita sent a letter to Senate President Drilon, requesting for a
postponement of the hearing on Sept. 29 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 refused the request.

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On Sept. 28, 2005, the President issued EO 464, effective immediately, which, among
others, mandated that 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. Pursuant to this Order, Executive Sec. Ermita communicated to the
Senate that the executive and AFP officials would not be able to attend the meeting
since the President has not yet given her consent. Despite the lack of consent, Col.
Balutan and Brig. Gen. Gudani, among all the AFP officials invited, attended the
investigation. Both faced court marshal for such attendance.
petitioners, 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.

Ruling:
To determine the constitutionality of E.O. 464, the Supreme Court discussed the two
different functions of the Legislature: The power to conduct inquiries in aid of legislation
and the power to conduct inquiry during question hour.
A. Question Hour:
The power to conduct inquiry during question hours is recognized in Article 6, Section 22
of the 1987 Constitution, which reads:
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

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and the President so states in writing, the appearance shall be conducted in executive
session.
The objective of conducting a question hour 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 had issued, the department
heads appearance is merely requested.
The Supreme Court construed Section 1 of E.O. 464 as those in relation to the
appearance of department heads during question hour as it explicitly referred to Section
22, Article 6 of the 1987 Constitution.
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
B. In aid of Legislation:
The Legislatures power to conduct inquiry in aid of legislation is expressly recognized in
Article 6, section21 of the 1987 Constitution, which reads:
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 power of inquiry in aid of legislation is inherent in the power to legislate. 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, recourse must be had to others
who do possess it.

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But 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.
This is the power of the government to withhold information from the public, the courts,
and the Congress. This is recognized only to certain types of information of a sensitive
character. When Congress exercise 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 official may be
exempted from this power -- the President.
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.
The letter sent by the Executive Secretary to Senator Drilon 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. The letter assumes that the
invited official possesses information that is covered by the executive privilege. 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.
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

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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.
Wherefore, the petitions are partly granted. Sections 2(b) and 3 of E.O. 464 are declared
void. Section 1(a) are however valid.
III.

GAUDANI V. SENGA

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.
FACTS:
The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election fraud
and the surfacing of the Hello Garci tapes. PGMA issued EO 464 enjoining officials of the
executive department including the military establishment from appearing in any legislative
inquiry without her consent. AFP Chief of Staff Gen. Senga issued a Memorandum, prohibiting
Gen. Gudani, Col. Balutan et al from appearing before the Senate Committee without
Presidential approval. However, the two appeared before the Senate in spite the fact that a
directive has been given to them. As a result, the two were relieved of their assignments for
allegedly violating the Articles of War and the time honoured principle of the Chain of
Command. Gen. Senga ordered them to be subjected before the General Court
Martial proceedings for willfuly violating an order of a superior officer.

RULING:
1. President has constitutional authority to issue an orde to the members of the AFP preventing
them from testifying before a legislative inquiry.

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
Commander-in-Chief of all armed forces of the Philippines 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.

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, 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.
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. [45] 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

Presidents intent], and to throw off the authority of the commander whenever they supposed it
to be unlawfully exercised.[46]
Further traditional restrictions on members of the armed forces are those imposed on free
speech and mobility. 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. [47] 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.
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.

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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.
2.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.
SC ruled in Senate v. Ermita 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.
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 prior consent from members of the armed
forces, the clash may soon loom or actualize.
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

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testify, the Chief Executive is nonetheless obliged to comply with the final orders of
the courts.
IV.

NERI V. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS

Executive privilege is not a personal privilege, but one that adheres to the Office of the
President. It exists to protect public interest, not to benefit a particular public official. Its purpose,
among others, is to assure that the nation will receive the benefit of candid, objective and
untrammeled communication and exchange of information between the President and his/her
advisers in the process of shaping or forming policies and arriving at decisions in the exercise of
the functions of the Presidency under the Constitution. The confidentiality of the Presidents
conversations and correspondence is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of all citizens and more,
because it is dictated by public interest and the constitutionally ordained separation of
governmental powers.
FACTS:
petitioner appeared before respondent Committees and testified for about eleven (11) hours on
matters concerning the National Broadband Project (the "NBN Project"), a project awarded by
the Department of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner 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 Gloria
Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him not to
accept the bribe. However, when probed further on President Arroyo and petitioners
discussions relating to the NBN Project, petitioner refused to answer, invoking "executive
privilege." To be specific, petitioner refused to answer questions on: (a) whether or not President
Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c)
whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioners answers to these three questions by
requiring him to appear and testify once more on November 20, 2007. On November 15, 2007,
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to
dispense with petitioners testimony on the ground of executive privilege.
petitioner did not appear before respondent Committees upon orders of the President invoking
executive privilege. On November 22, 2007, the respondent Committees issued the show-cause
letter requiring him to explain why he should not be cited in contempt. On November 29, 2007,
in petitioners reply to respondent Committees, he manifested 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.
RULING:

1.

YES. There is a presidential communications privilege.

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In Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),

and Chavez v. PEA, the Court articulated in these cases that "there are certain types of
information which the government may withhold from the public, " that there is a "governmental
privilege against public disclosure with respect to state secrets regarding military, diplomatic and
other national security matters"; and 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."
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.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked
executive privilege on a specific matter involving an executive agreement between the
Philippines and China, which was the subject of the three (3) questions propounded to petitioner
Neri in the course of the Senate Committees investigation. Thus, the factual setting of this case
markedly differs from that passed upon in Senate v. Ermita.
if what is involved is the presumptive privilege of presidential communications when invoked by
the President on a matter clearly within the domain of the Executive, the said presumption
dictates that the same be recognized and be given preference or priority, in the absence of proof
of a compelling or critical need for disclosure by the one assailing such presumption. Any
construction to the contrary will render meaningless the presumption accorded by settled
jurisprudence in favor of executive privilege.
2. YES. The three (3) questions are covered by executive privilege
A. Respondent Committees contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the Constitution does not vest it
in the President alone, but also in the Monetary Board which is required to give its prior
concurrence and to report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power
less executive. "Quintessential" is defined as the most perfect embodiment of something, the
concentrated essence of substance.24 On the other hand, "non-delegable" means that a power
or duty cannot be delegated to another or, even if delegated, the responsibility remains with the
obligor.25 The power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of
the Legislature has traditionally been recognized in Philippine jurisprudence
The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive. In the case at bar,
the danger of expanding the privilege "to a large swath of the executive branch" (a fear
apparently entertained by respondents) is absent because the official involved here is a member

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of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and
a member of her official family.
"operational proximity" was laid down in In re: Sealed Case27precisely to limit the scope of the
presidential communications privilege.
In that case it was stated that not every person who plays a role in the development of
presidential advice, no matter how remote and removed from the President, can qualify for the
privilege. In particular, the privilege should not extend to staff outside the White House in
executive branch agencies. Instead, the privilege should apply only to communications authored
or solicited and received by those members of an immediate White House advisors staff who
have broad and significant responsibility for investigation and formulating the advice to be given
the President on the particular matter to which the communications relate.
Claim of executive privilege is not merely founded on her generalized interest in confidentiality.
The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential
communications privilege in relation to diplomatic and economic relations with another
sovereign nation as the bases for the claim.
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 Peoples Republic
of China. Given the confidential nature in which this 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 upholding executive privilege with respect to three (3) specific questions, it did not in any way
curb the publics right to information or diminish the importance of public accountability and
transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits respondent Committees from
inquiring into the NBN Project. They could continue the investigation and even call petitioner
Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision
merely excludes from the scope of respondents investigation the three (3) questions that elicit
answers covered by executive privilege and rules that petitioner cannot be compelled to appear
before respondents to answer the said questions. We have discussed the reasons why these
answers are covered by executive privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in other democratic States. To put it
simply, the right to information is not an absolute right.
3.

NO. The three (3) questions are not critical to the Legislatures function.

In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability
in a criminal case but rather with the Senates need for information in relation to its legislative
functions. This leads us to consider once again just how critical is the subject information in the
discharge of respondent Committees functions. The burden to show this is on the respondent
Committees, since they seek to intrude into the sphere of competence of the President in order
to gather information which, according to said respondents, would "aid" them in crafting
legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees
need for information in the exercise of this function is not as compelling as in instances when

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the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is
merely an oversight function of Congress. And if this is the primary objective of respondent
Committees in asking the three (3) questions covered by privilege, it may even contradict their
claim that their purpose is legislative in nature and not oversight. In any event, whether or not
investigating graft and corruption is a legislative or oversight function of Congress, respondent
Committees investigation cannot transgress bounds set by the Constitution.
Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no
inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the
Congress, i.e. legislation. Investigations conducted solely to gather incriminatory evidence and
"punish" those investigated are indefensible. There is no Congressional power to expose for the
sake of exposure.
5.

YES. The Senate committed grave abuse of discretion in issuing the contempt order.

The deliberation of the respondent Committees that led to the issuance of the contempt order is
flawed. Instead of being submitted to a full debate by all the members of the respondent
Committees, the contempt order was prepared and thereafter presented to the other members
for signing. As a result, the contempt order which was issued on January 30, 2008 was not a
faithful representation of the proceedings that took place on said date. Records clearly show
that not all of those who signed the contempt order were present during the January 30, 2008
deliberation when the matter was taken up.
SEPARATE CONCURRING OPINION
BRION, J.
First Point: Constitutional Rights of Romulo Neri
The 1987 Constitution that expressly provides that The rights of persons appearing in or
affected by such inquiries shall be respected. Interestingly, this Section as a whole seeks to
strengthen the hand of the Legislature in the exercise of inquiries in aid of legislation. In so
doing, however, it makes the above reservation for the individual who may be at the receiving
end of legislative might. What these rights are the Section does not expressly say, but these
rights are recognized by jurisprudence and cannot be other than those provided under the Bill of
Rights the constitutional provisions that level the individuals playing field as against the
government and its inherent and express powers.
Thus, Neri cannot be deprived of his liberty without due process of law, as provided under
Article III Section 1 of the Bill of Rights. Short of actual denial of liberty, Neri should as a
matter of constitutional right likewise be protected from the humiliation that he so feared in a
congressional investigation.

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Neri did comply with the Senates orders to attend and testify; underwent hours of grilling before
the Senate Committees; did submit explanations for the times when he could not comply; and
committed to attend future hearings on matters that are not privileged. To further ensure that he
is properly guided, Neri sought judicial intervention by recourse to this Court through the present
petition.
In more ways than one, the rights of petitioner Neri the individual were grossly violated by
Senate action in contravention of the constitutional guarantee for respect of individual rights in
inquiries in aid of legislation.
Second Point: On Executive Privilege
It is not necessary for the conversation or correspondence to contain diplomatic, trade or
military secret as these matters are covered by their own reasons for confidential treatment.
What is material or critical is the fact of conversation or correspondence in the course of official
policy or decision making; privilege is recognized to afford the President and her executives the
widest latitude in terms of freedom from present and future embarrassment in their discussions
of policies and decisions.
Unless and until it can therefore be shown in the proper proceeding that the Presidential
conversation related to her involvement in, knowledge of or complicity in a crime, or where the
inquiry occurs in the setting of official law enforcement or prosecution, then the mantle of
privilege must remain so that disclosure cannot be compelled. This conclusion is dictated by
the requirement of order in the delineation of boundaries and allocation of governmental
responsibilities.
The proper proceeding is not necessarily in an inquiry in aid of legislation since the purpose of
bringing crime to light is served in proceedings before the proper police, prosecutory or judicial
body, not in the halls of congress in the course of investigating the effects of or the need for
current or future legislation.

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V.

GARCILLANO V HOUSE OF REP.

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 OSGs
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 Senates
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.
FACTS;
Case involves two Petition for Prohibition with Prayer for the Issuance of a Temporary
Restraining Order filed becore the court by petitioners (a) Garciliano and (b) Santiago
Ranada and Oswaldo Agcaoili, retired justices of the Court of Appeals.
Garcillano implores from the Court, as aforementioned, the issuance of an
injunctive writ to prohibit the respondent House Committees from playing the tape
recordings and from including the same in their committee report. He likewise prays that
the said tapes be stricken off the records of the House proceedings.While, petitioners
Santiago Ranada and Oswaldo Agcaoil They argued in the main that the intended
legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution
since there is no proer publication.
RULING.
1. The court dismissed Garcilianos petition for being moot and academic
The Court notes that the recordings were already played in the House and heard
by its members.39 There is also the widely publicized fact that the committee reports

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on the "Hello Garci" inquiry were completed and submitted to the House in plenary
by the respondent committees.40 Having been overtaken by these events, the
Garcillano petition has to be dismissed for being moot and academic. After all,
prohibition is a preventive remedy to restrain the doing of an act about to be done,
and not intended to provide a remedy for an act already accomplished.
2. The court ruled in favour of Ranada and Agcaoili.
.
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 requisite of publication of the rules is intended to satisfy the basic requirements of due
process.42 Publication is indeed imperative, for it will be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law or rule of which he had no notice
whatsoever, not even a constructive one.43 What constitutes publication is set forth in Article 2 of
the Civil Code, which provides that "[l]aws shall take effect after 15 days following the
completion of their publication either in the Official Gazette, or in a newspaper of general
circulation in the Philippines."44
The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that
the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006.45 With respect to the present
Senate of the 14th Congress, however, of which the term of half of its members commenced on
June 30, 2007, no effort was undertaken for the publication of these rules when they first
opened their session.
VI.

ROMERO II v ESTRADA

FACTS:
Petitioners Romero II and other members of the Board of Directors of R-II Builders, Inc.,
were invited on an investigation with regards to the investment of Overseas Workers Welfare
Administration (OWWA) funds in the Smokey Mountain project. The said investigation will aid
the Senate in determining possible amendments of Republic Act 8042 other known as the
Migrant Workers Act.

RULING :

NOT A SUB JUDICE

A. NO MORE ACTUAL CASE OR CONTROVERSY
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

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indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court. [11] 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.[12]
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.[13] 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.

B. assuming hypothetically that Chavez is still pending final adjudication by

the Court, still, such circumstance would not bar the continuance of the
committee investigation.
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 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.[16]
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; [17] and to determine whether there is a
need to improve existing laws or enact new or remedial legislation, [18] albeit
the inquiry need not result in any potential legislation. On-going judicial
proceedings do not preclude congressional hearings in aid of legislation.
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.

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C. Moot and Acaademic

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 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.

VII.

GARCIA V MATA (Under Presidential Veto and Congressional Override)

Ewan ko asan yung veto ditto.
Eusebio Garcia was a reserve officer on active duty with the Armed
Forces of the Philippines until his reversion to inactive status on 15 November
1960, pursuant to the provisions of Republic Act No. 2332. At the time of
reversion, Petitioner held the rank of Captain. Petitioner's reversion to inactive
status was pursuant to the provisions of Republic Act 2334, and such reversion
was neither for cause, at his own request, nor after court-martial
proceedings;From 15 November 1960 up to the present, petitioner has been on
inactive status and as such, he has neither received any emoluments from the
Armed Forces of the Philippines, nor was he ever employed in the Government
in any capacity; As a consequence of his reversion to inactive status, petitioner
filed the necessary petitions with the offices of the AFP Chief of Staff, the
Secretary of National Defense, and the President, respectively, but received reply
only from the Chief of Staff through the AFP Adjutant General.
Thus,he brought an action for "Mandamus and Recovery of a Sum of Money" in
the court a quo to compel the respondents Secretary of National Defense and
Chief of Staff of the Armed Forces of the Philippines 2 to reinstate him in the
active commissioned service of the Armed Forces of the Philippines, to readjust
his rank, and to pay all the emoluments and allowances due to him from the time
of his reversion to inactive status. The trial court dismissed the petition. The court
ruled that paragraph 11 of the "Special Provisions for the Armed Forces of the
Philippines" in Republic Act 1600 is "invalid, unconstitutional and inoperative."

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HELD:
R. A 1660 is UNCONSTITUTIONAL: Case dismissed.
1. The insertion of a non-appropriation item in an appropriation
measure is unconstitutional.A perusal of the challenged provision of
R.A. 1600 fails to disclose its relevance or relation to any appropriation
item therein, or to the Appropriation Act as a whole. From the very first
clause of paragraph 11 itself, which reads, After the approval of this Act,
and when there is no emergency, no reserve officer of the Armed Forces
of the Philippines may be called to a tour of active duty for more than two
years during any period of five consecutive years: the incongruity and
irrelevancy are already evident. While R.A. 1600 appropriated money for
the operation of the Government for the fiscal year 1956-1957, the said
paragraph 11 refers to the fundamental governmental policy matters of
the calling to active duty and the .reversion to inactive status of reserve
officers in the AFP. The incongruity and irrelevancy continue throughout
the entire paragraph.
2. A provision in a statute which is not fairly included in the subject
expressed in the title thereof or is not germane to or properly connected
with the subject is unconstitutional and null and void.The subject of
R.A. 1600, as expressed in its title, is restricted to appropriating funds
for the operation of the government. Any provision contained in the body
of the act that is fairly included in this restricted subject or any matter
properly connected therewith is valid and operative. But, if a provision in
the body of the act is not fairly included in this restricted subject, like the
provision relating to the policy matters of calling to active duty and
reversion to inactive duty of reserve officers of the AFP, such provision is
inoperative and of no effect.
3. A void provision of an appropriation statute confers no right and
affords no protection.Upon the foregoing dissertation, we declare
Paragraph 11 of the SPECIAL PROVISIONS FOR THE ARMED
FORCES OF THE PHILIPPINES as unconstitutional, invalid and
inoperative. Being unconstitutional, it confers no right and affords no
protection. In legal contemplation it is as though it has never been
passed.