Poli - Jack Cases

1. Tanada vs.
HRET
G.R. No. 217012, March 01, 2016
WIGBERTO "TOBY" R. TAADA, JR., Petitioner, v. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL,
ANGELINA "HELEN" D. TAN, AND ALVIN JOHN S. TAADA, Respondents.
DECISION
CARPIO, J.:
The Case
G.R. No. 217012 is a petition for certiorari1 assailing the Resolutions promulgated on 25 September 20142 and 22
January 20153 by the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 13-018 (EP). The HRET
dismissed Wigberto "Toby" R. Taada, Jr.'s (Wigberto) election protest ad cautelam on two grounds: for being
insufficient in form and substance, and for lack of jurisdiction to pronounce and declare Alvin John S. Taada (Alvin
John) as a nuisance candidate.
The Facts
The HRET recited the facts as follows:

chanRoblesvirtualLawlibrary
Culled from the records and the submissions of the parties herein, as well as from the ruling of the Supreme Court
in Taada, Jr. v. Commission on Elections, et al., [G.R. Nos. 207199-200, 22 October 2013, 708 SCRA 188] are the factual
antecedents relevant to this resolution.
For the position of Representative of the Fourth Legislative District of the Province of Quezon contested in the
National and Local Elections of 2013, three candidates filed their respective Certificates of Candidacy (CoC), namely:
Wigberto R. Taada, Jr. (Wigberto) of the Liberal Party; Angelina D. Tan (Tan) of the Nationalist People's Coalition
[(NPC)]; and Alvin John S. Taada (Alvin John) of the Lapiang Manggagawa. In October 2012, Wigberto filed twin
petitions in the Commission on Elections (COMELEC) to seek the cancellation of Alvin John's CoC (docketed as SPA
No. 13-056), and to declare Alvin John a nuisance candidate (docketed as SPA No. 13-0357). The petitions were
eventually consolidated.
On January 29, 2013, the COMELEC First Division dismissed the consolidated petitions for their lack of merit.
Wigberto duly filed his motion for reconsideration of the dismissal of his petitioners [sic], alleging the following
grounds, to wit:
a) Assuming Respondent Taada resided in Purok 3, Barangay Progreso, Gumaca, Quezon for a period of thirteen
(13) years, the said period was long ago. Presently, Respondent Taada failed to comply with the one-year residency
requirement.
b) Respondent Taada was a resident of Paraaque where he was enrolled as a voter from 2009 until 4 June 2012,
when he transferred his Voter's Registration to Gumaca, Quezon; and
c) Respondent Taada's own tweets and entries in Facebook are bereft of any political plans or activities which betray
his true intentions to run as Member of the 4th District of Gumaca, Quezon.
On April 25, 2013, the COMELEC En Banc denied Wigberto's motion for reconsideration in SPA No. 13-057, but
granted his motion for reconsideration in SPA No. 13-056, decreeing thusly:
WHEREFORE, premises considered, the Motion for Reconsideration dated 18 February 2013 is PARTIALLY
GRANTED. The Motion for Reconsideration for SPA No. 13-057 (DC) is DENIED for LACK OF MERIT. However, the
Motion for Reconsideration for SPA No. 13-056 (DC) is GRANTED. Accordingly, Respondent Alvin John S. Taada's
Certificate of Candidacy for the position of Member of the House of Representatives for the 4 th District of the
Province of Quezon is hereby CANCELLED.
On May 7, 2013, Wigberto sought the reconsideration of the denial of his petition in SPA Case No. 13-057 to urge the
declaration of Alvin John as a nuisance candidate on the basis of newly discovered evidence.
For the May 13, 2013 National and Local Elections, the name of candidate Alvin John remained in the ballots. After
the canvass of the votes, the following results indicated that Tan was the winning candidate, to wit:
Tan 84,782
Taada, Wigberto 80,698
Taada, Alvin John 7,038
On May 16, 2013, Wigberto filed with the Quezon Provincial Board of Canvassers (Quezon PBOC) his PETITION TO
CORRECT MANIFEST ERRORS IN THE CERTIFICATES OF CANVASS FOR THE POSITION OF MEMBER OF THE
HOUSE OF REPRESENTATIVES, 4TH DISTRICT QUEZON with URGENT MOTION TO SUSPEND CANVASS
AND/OR PROCLAMATION FOR THE SAID POSITION, whereby he prayed that the COMELEC direct the Quezon
PBOC to consolidate in his favor the votes canvassed for Alvin John, and to proclaim the candidate with the highest
number of votes as the winner.
The Quezon PBOC denied Wigberto's motion to have the votes garnered by Alvin John credited in his favor on the
same date of May 16, 2013, holding that the votes of Alvin John could not be counted in favor of Wigberto because
the cancellation of the former's CoC had been on the basis of his material misrepresentations under Section 78 of
the Omnibus Election Code, not on being a nuisance candidate under Section 69 of Omnibus Election Code. The Quezon
PBOC then proclaimed Tan as the winning candidate.
On May 21, 2013, Wigberto filed a SUPPLEMENT TO THE PETITION WITH ADDITIONAL PRAYER FOR
ANNULMENT OF PROCLAMATION, whereby he reiterated his prayer to be declared as the winning candidate for
the position of Representative of the Fourth District of Quezon by consolidating the votes received by Alvin John
with the votes he garnered.
On May 27, 2013, Wigberto brought in the Supreme Court his AD CAUTELAM PETITION FOR CERTIORARI,
MANDAMUS AND PROHIBITION with URGENT MOTION FOR THE ISSUANCE OF A STATUS QUO
ANTE ORDER to assail the COMELEC En Banc's Resolution promulgated on April 25, 2013 declaring Alvin John not
a nuisance candidate, docketed as G.R. Nos. 207199-200, thereby imploring the Supreme Court to declare Alvin John
as a nuisance candidate, and to order the COMELEC to credit the votes received by Alvin John in his favor.
On May 30, 2013, Wigberto filed [with] this Tribunal this election protest ad cautela, pertinently alleging as follows:
13. The fraud perpetrated upon herein Protestant in the fielding of Alvin John Taada as a nuisance candidate
consists of the following:
a. The lawyers who turned out to be counsels for Protestee collaborated, in varying degrees and at various times, in
support of the nuisance candidate Alvin John Taada, in a case of an otherwise patent conflict of interest, unless their
client Protestee in the first place was precisely the sponsor of the candidacy of Alvin John as a nuisance candidate in
order to confuse and mislead the voters into voting for Alvin John instead of herein Protestant, to wit: x x x.
b. As found by the Comelec En Banc in SPA 13-056, Alvin John Taada "is not a resident of and/or never resided" in
the Fourth District of Quezon, and that he had the "intent to mislead, misinform, or deceive the electorate" since he is
a resident of Paraaque City, and therefore disqualified from running for any elective post in the Fourth District of
Quezon. x x x.
d. Alvin John Taada was never seen campaigning in the Fourth District of Quezon Province, nor did he have any
posters in the common poster areas. Neither did he attend any campaign rally or candidate's forum. To top it all, he
did not even bother to vote in the May 13, 2013 Elections.
e. An avid user of social media such as Facebook and Twitter, Alvin John Taada never made a single post or tweet
to his friends, relatives or associates in said media about his political plans of the fact that he was running as
Congressman. Such palpable silence, if not secrecy, on one's candidacy is a trademark attitude of nuisance
candidates. They make themselves publicly scarce and difficult to track down, when the very nature of a candidacy
precisely seeks nourishment from widespread publicity and maximum exposure.
f. The fraudulent fielding of Alvin John Taada as a nuisance candidate resulted in 7,038 votes for the one and
only bona fide candidate with the surname "Taada," Wigberto "Toby" Taada, [Jr.,] whose certificate of candidacy, in
the first place, had already been ordered cancelled by the Comelec in its April 25, 2013 consolidated Resolution in
SPA 13-056 and 13-057. x x x.
22. Because of the perpetration of fraud upon herein Protestant through the malicious and intentional fielding of a
nuisance candidate in the person of Alvin John Taada to sabotage the candidacy of herein Protestant, and the
inclusion of Alvin John's name in the ballot despite the cancellation of his certificate of candidacy, Protestant is
hereby protesting the miscounting and mistabulation of the votes cast for him as votes for Alvin John in the ten (10)
Municipal Board of Canvassers of the Fourth District of Quezon and the Provincial Board of Canvassers of Quezon as
follows: x x x.
Meanwhile, on June 28, 2013, the COMELEC Second Division favorably acted on the motion to annul the
proclamation of Tan, and annulled the proclamation, and directed the Quezon PBOC to credit the 7,038 votes of
Alvin John to Wigberto, and to declare the winner after the re-computation of the votes. While Wigberto's petition
for certiorari was still pending in the Supreme Court, the COMELEC En Banc affirmed the action of the COMELEC
Second Division annulling Tan's proclamation. However, Tan had by then taken her oath and assumed office past
noon time of June 30, 2013, thereby rendering the adverse resolution on her proclamation moot.
On October 22, 2013, the Supreme Court promulgated its resolution in G.R. Nos. 207199-200 dismissing
Wigberto's AD CAUTELAM PETITION FOR CERTIORARI, MANDAMUS AND PROHIBITION with URGENT
MOTION FOR THE ISSUANCE OF A STATUS QUO ANTE ORDER, viz:
Case law states that the proclamation of a congressional candidate following the election divests the COMELEC of
jurisdiction over disputes relating to the election, returns, and qualifications of the proclaimed representative in favor
of the HRET. The phrase "election, returns and qualifications" refers to all matters affecting the validity of the
contestee's title. In particular, the term "election" refers to the conduct of the polls, including the listing of voters, the
holding of the electoral campaign, and the casting and counting of the votes; "returns" refers to the canvass of the
returns and the proclamation of winners, including questions concerning the composition of the board of canvassers
and the authenticity of the election returns; and "qualifications" refers to matters that could be raised in quo
warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his
COC.
In the foregoing light, considering that Angelina had already been proclaimed as Member of the House of
Representatives for the 4th District of Quezon Province on May 16, 2013, as she has in fact taken her oath and assumed
office past noon time of June 30, 2013, the Court is now without jurisdiction to resolve the case at bar. As they stand,
the issues concerning the conduct of the canvass and the resulting proclamation of Angelina as herein discussed are
matters which fall under the scope of the terms "election" and "returns" as above-stated and hence, properly fall
under the HRET's sole jurisdiction.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Thereafter, the Tribunal directed Tan to submit her responsive pleading to the election contest.
In compliance, Tan filed her verified answer with special and affirmative defenses and counter-protest, praying that
the Tribunal dismiss the election protest pursuant to Rule 16 in relation to Rule 21 of The 2011 Rules of the House of
Representatives Electoral Tribunal(2011 HRET Rules) for being grossly deficient in form and substance under the law,
and considering further that Wigberto was guilty of forum shopping.
In his reply and answer to the counter-protest, Wigberto insisted that the Supreme Court had already declared in
G.R. Nos. 207199-200 that the Tribunal had exclusive jurisdiction to determine whether or not Alvin John was a
nuisance candidate, and whether or not crediting the votes garnered by Alvin John to Wigberto constituted an
election contest.
On February 11, 2014, Tan filed her comment with motion to dismiss and/or set the case for preliminary hearing or
oral argument.
On February 27, 2014, the Tribunal granted Tan's motion to set the oral arguments, and held oral arguments on
March 13, 2014.4ChanRoblesVirtualawlibrary
The HRET's Ruling
The HRET promulgated the assailed Resolution on 25 September 2014.
The HRET held that Wigberto did not commit forum-shopping. Wigberto sought exclusive relief from the HRET for
his electoral protest in the belief that it was the proper forum for his predicament. He did not go to the HRET to look
for a friendly forum to obtain a favorable result.
However, the HRET held that Wigberto's election protest was insufficient in form and substance. The HRET found
that Wigberto's election protest failed to allege the facts to support a valid election protest as required by Rule 16 of
the 2011 HRET Rules. Although the pleading was captioned as an election protest, its contents were more
appropriate for a petition to annul Tan's proclamation. The HRET further stated that the material fraud in an election
protest must be of an "intrinsic nature as to which the protestant was caught off his guard," and not extrinsic, or "one
that he could have effectively prevented after the filing of Alvin John's CoC but still during the campaign period."
Finally, the HRET ruled that it has no jurisdiction to declare that Alvin John was a nuisance candidate. The HRET
relied on Section 17, Article VI of the 1987 Constitution and Rule 15 of the 2011 HRET Rules to declare that its power
to judge election contests is limited to Members of the House of Representatives. Alvin John, admittedly, is not a
Member of the House of Representatives.
The dispositive portion of the HRET's Resolution reads:

WHEREFORE, the election protest ad cautela of protestant WIGBERTO "TOBY" R. TAADA, JR. is DISMISSED for
being insufficient in form and in substance, and for lack of jurisdiction to pronounce and declare Alvin John S.
Taada as a nuisance candidate.
No pronouncement as to costs.
SO ORDERED.5ChanRoblesVirtualawlibrary
Representative Luzviminda C. Ilagan (Rep. Ilagan) of Gabriela Women's Party wrote a Concurring and Dissenting
Opinion.
Rep. Ilagan stated that Wigberto's election protest is sufficient in form and substance. The purpose of an election
protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people.
Wigberto was not raising matters of irregularities in the counting of votes at the precinct level, so there was no need
to cite the specific precincts in the protest filed before the HRET. Rep. Ilagan further stated that the principle of liberal
interpretation and application of the HRET Rules is consistent with the HRET's constitutional duty to ensure that the
will of the electorate is not defeated.
Rep. Ilagan declared that the HRET has jurisdiction to determine whether Tan committed fraud by fielding Alvin
John, and whether Alvin John is a nuisance candidate. The jurisdiction of the HRET in the adjudication of election
contests is intended to be full, complete and unimpaired. The facts and circumstances of the case, that is, the
limitations in the procedures of the computerized elections that led to the non-deletion of Alvin John's name in the
ballots despite the cancellation of his certificate of candidacy, the refusal of the COMELEC to declare Alvin John a
nuisance candidate, and the eventual decision of the COMELEC to annul Tan's proclamation and credit Alvin John's
votes to Wigberto, show that the electorate's will was not realized.
Finally, Rep. Ilagan concurred with the Resolution that Wigberto did not commit forum-shopping. Even if Wigberto
instituted actions before different institutions, the actions had different causes of action.
Wigberto filed his Motion for Reconsideration of the HRET's Resolution on 3 November 2014. He raised the
following grounds: (1) the jurisdiction of the HRET in election protests is defined by the Constitution, the law and
jurisprudence, and cannot be arbitrarily limited by the HRET; (2) the opening of ballot boxes and the revision of
ballots are not essential to an election protest; and (3) the HRET cannot refuse the exercise of its jurisdiction over the
fraud committed by a protestee on the ground that it has no power to reverse a COMELEC ruling on a nuisance
candidate.
The HRET denied Wigberto's Motion for Reconsideration in its Resolution dated 22 January 2015.
Wigberto filed the present Petition for Certiorari on 18 March 2015.

The Issues
Wigberto enumerated the following grounds warranting allowance of his petition:

1. Public respondent HRET gravely abused its discretion, amounting to lack or excess of jurisdiction,
when it whimsically, capriciously, and arbitrarily limited its own jurisdiction in election protests as
defined by the Constitution, the law, and jurisprudence.
when it whimsically, capriciously, and arbitrarily declared that an election protest is limited to the
opening of ballot boxes and the revision of ballots.
when it whimsically, capriciously, and arbitrarily declared that it cannot look into the fraudulent
fielding of a nuisance candidate as perpetrated by herein private respondent, because it has no
power to review, modify, or reverse the factual finding of the COMELEC en nuisance candidates. 6
The Court's Ruling
The petition has no merit. We affirm the Resolutions of the HRET.

Wigberto's Procedural Errors
In G.R. Nos. 207199-200, this Court narrated the following events:

In a Resolution dated January 29, 2013, the COMELEC First Division dismissed both petitions for lack of merit. On
Wigberto's motion for reconsideration, the COMELEC En Banc, in a Resolution dated April 25, 2013, upheld the
COMELEC First Division's ruling in SPA No. 13-057 (DC) that Alvin John was not a nuisance candidate as defined
under Section 69 of Batas Pambansa Bilang 881, as amended, otherwise known as the "Omnibus Election Code of the
Philippines" (OEC). However, in SPA No. 13-056 (DC), it granted the motion for reconsideration and cancelled Alvin
John's CoC for having committed false material representations concerning his residency in accordance with Section
78 of the OEC.
On May 15, 2013, Wigberto filed a 2nd Motion for Partial Reconsideration of the COMELEC En Banc's ruling in
SPA No. 13-057 (DC) on the ground of newly discovered evidence. He alleged that Alvin John's candidacy was
not bona fide because: (a) Alvin John was merely forced by his father to file his CoC; (b) he had no election
paraphernalia posted in official COMELEC posting areas in several barangays of Gumaca, Quezon Province; (c) he
did not even vote during the May 13, 2013 National Elections; and (d) his legal representation appeared to have been
in collusion with the lawyers of Angelina.
On May 15 and 16, 2013, Wigberto filed with the COMELEC En Banc an Extremely Urgent Motion to Admit
Additional and Newly Discovered Evidence and to Urgently Resolve Motion for Reconsideration and an Urgent
Manifestation and Supplemental thereto. These motions, however, remained un-acted upon until the filing of the
present petition before the Court on May 27, 2013. Thus, in order to avoid charges of forum-shopping, said motions
were withdrawn by Wigberto.7ChanRoblesVirtualawlibrary
Wigberto committed several fatal procedural errors.
First, Wigberto filed a prohibited pleading: a motion for reconsideration of a resolution of the COMELEC En Banc.
Section 1(d), Rule 13 of the COMELEC Rules of Procedure specifically prohibits the filing of a "motion for
reconsideration of an en bane ruling, resolution, order or decision except in election offense cases." Consequently, the
COMELEC En Banc ruling became final and executory,8 precluding Wigberto from raising again in any other forum
Alvin John's nuisance candidacy as an issue.
Second, Wigberto filed his petition beyond the period provided by the COMELEC Rules of Procedure. The
COMELEC En Banc promulgated its resolution on Alvin John's alleged nuisance candidacy on 25 April 2013.
Wigberto filed his petition in G.R. Nos. 207199-200 before this Court on 27 May 2013. By this date, the COMELEC En
Banc's resolution on Alvin John's alleged nuisance candidacy was already final and executory. Section 3, Rule 37 of
the COMELEC Rules of Procedure provides:
Section 3. Decisions Final After Five Days. - Decisions in pre-proclamation cases and petitions to deny due course to or
cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to
postpone or suspend elections shall become final and executory after the lapse of five (5) days from their
promulgation, unless restrained by the Supreme Court.
What Wigberto should have done was to file a petition for certiorari with this Court within five days from
promulgation of the 25 April 2013 resolution of the COMELEC En Banc. Wigberto failed to timely assail before this
Court through a petition for certiorari the COMELEC En Banc resolution declaring that Alvin John was not a nuisance
candidate.
The HRET's Exercise of its Jurisdiction

The HRET did not commit any grave abuse of discretion in declaring that it has no jurisdiction to determine whether
Alvin John was a nuisance candidate. If Wigberto timely filed a petition before this Court within the period allotted
for special actions and questioned Alvin John's nuisance candidacy, then it is proper for this Court to assume
jurisdiction and rule on the matter. As things stand, the COMELEC En Banc's ruling on Alvin John's nuisance
candidacy had long become final and executory.
To our mind, it appears that Wigberto's petition challenging Alvin John's nuisance candidacy filed before the HRET,
and now before this Court, is a mere afterthought. It was only after Angelina was proclaimed a winner that Wigberto
renewed his zeal in pursuing Alvin John's alleged nuisance candidacy. It is not enough for Wigberto to have Alvin
John's COC cancelled, because the effect of such cancellation only leads to stray votes.9 Alvin John must also be
declared a nuisance candidate, because only then will Alvin John's votes be credited to Wigberto.10
Wigberto further argues that this Court directed him to seek resolution regarding Alvin John's purported nuisance
candidacy before the HRET. This is inaccurate. We directed Wigberto to the HRET to question the conduct of the
canvass and Tan's proclamation. We stated thus:
In the foregoing light, considering that Angelina had already been proclaimed as Member of the House of
Representatives for the 4th District of Quezon Province on May 16, 2013, as she has in fact taken her oath and
assumed office past noon time of June 30, 2013, the Court is now without jurisdiction to resolve the case at bar. As
they stand, the issues concerning the conduct of the canvass and the resulting proclamation of Angelina as herein
discussed are matters which fall under the scope of the terms "election" and "returns" as above-stated and hence,
properly fall under the HRET's sole jurisdiction.11ChanRoblesVirtualawlibrary
WHEREFORE, we DISMISS the petition and AFFIRM the assailed Resolutions promulgated on 25 September 2014
and 22 January 2015 by the House of Representatives Electoral Tribunal in HRET Case No. 13-018 (EP).
SO ORDERED.cralawlawlibrary
Sereno, C.J., Leonardo-De Castro, Del Castillo, Mendoza, Reyes, Perlas-Bernabe, Leonen, Jardeleza, and Caguioa, JJ., concur.
Velasco, Jr., J., no part. HRET Chairman.
Brion, J., on leave.
Peralta, J., no part, member of the HRET.
Bersamin, J., I take no part, being a member of HRET
Perez, J., I concur. See short concurrence.chanroblesvirtuallawlibrary
Endnotes:
1
Under Rule 65 of the 1997 Rules of Civil Procedure.
2
Rollo, pp. 39-52. Penned by Associate Justice Lucas P. Bersamin, with Associate Justice and Chairperson Presbitero J.
Velasco, Jr., Associate Justice Diosdado M. Peralta, and Representatives Ma. Theresa B. Bonoan and Wilfrido Mark M.
Enverga concurring. Representative Luzviminda C. Ilagan penned a Concurring and Dissenting Opinion, which was
joined by Representatives Franklin P. Bautista, Joselito Andrew R. Mendoza, and Jerry P. Treas.
3
Id. at 70-71.
4
Id. at 39-44.
5
Id. at 50.
6
Id. at 14.
7
Taada, Jr. v. Commission on Elections, G.R. Nos. 207199-200, 22 October 2013, 708 SCRA 188, 191-192. Citations
omitted. Emphases added.
8
The HRET's 25 September 2014 Resolution stated that Wigberto sought reconsideration of the denial of his petition
before the COMELEC En Banc in SPA Case No. 13-057 on 7 May 2013. On the other hand, our resolution in G.R. Nos.
207199-200 stated that Wigberto filed a second motion for partial reconsideration of the COMELEC En Banc's ruling
in SPA Case No. 13-057 on 15 May 2013. Wigberto also filed with the COMELEC En Banc on 15 and 16 May 2013 an
Extremely Urgent Motion to Admit Additional and Newly Discovered Evidence and to Urgently Resolve Motion for
Reconsideration and an Urgent Manifestation and Supplemental thereto. In any event, Wigberto still filed said
pleadings beyond the reglementary period.
9
Section 6, Republic Act No. 6646, The Electoral Reforms Law of 1987 provides:
Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and,
upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
Our ruling in Dela Cruz v. Commission on Elections, 698 Phil. 548 (2012), prompted the issuance of COMELEC
10
Resolution No. 9599, In The Matter of the Amendment to Rule 24 of the Comelec Rules of Procedure as amended by
Resolution No. 9523 (2012). The amendment reads:
Section 5. Applicability of Rule 23. - Except for motu proprio cases, Sections 3, 4, 5, 6, 7, and 8 of Rule 23 shall apply in
proceedings against nuisance candidates.
If the person declared as a nuisance candidate and whose certificate of candidacy has been cancelled or denied due
course does not have the same name and/or surname as a bona fide candidate for the same office, the votes cast for
such nuisance candidate shall be deemed stray pursuant to Section 9 of Rule 23.
course has the same name and/or surname as a bona fidecandidate for the same office, the votes cast shall not be
considered stray but shall be counted and tallied for the bona fide candidate. However, if there are two or more bona
fide candidates with the same name and/or surname as the nuisance candidate, the votes cast for the nuisance
candidate shall be considered as stray votes.
11
Taada, Jr. v. Commission on Elections, G.R. Nos. 207199-200, 22 October 2013, 708 SCRA 188, 196. Citations omitted.
CONCURRING OPINION
PEREZ, J.:
I register my vote with the majority for the dismissal of the instant petition. The House of Representatives Electoral
Tribunal (HRET) did not commit grave abuse of discretion in disclaiming jurisdiction over the protest filed by herein
petitioner Wigberto "Toby" R. Taada, Jr. (Wigberto).
A perusal of the protest petitioner filed before the tribunal reveals that his claim of entitlement to office as Quezon
province's Representative for its Third Legislative District is anchored on the postulation that the 7,038 votes cast for
his political rival, private respondent John Alvin S. Taada (John Alvin), an alleged nuisance candidate, should
instead be credited in his favor.1 These votes combined with the 80,698 already credited to petitioner exceeds private
respondent Angelina Tan's tally of votes that totaled 84,782.
It is patent from petitioner's line of argument that the declaration of Alvin John as a nuisance candidate is a
precondition before the relief he seeks can be granted. Unfortunately, the HRET lacks the authority to rule on
whether or not Alvin John is indeed a nuisance candidate as Wigberto pegged him to be.
Under the 2015 Revised Rules of the HRET (HRET Rules), the electoral tribunal only has jurisdiction over two types
of election contests: election protests and quo warranto cases.2 An election protest is the proper remedy against acts or
omissions constituting electoral frauds or anomalies in contested polling precincts, and for the revision of ballots.3 On
the other hand, the eligibility of the Member of the Lower House is impugned in a quo warranto case.4 Evidently, the
HRET Rules do not prescribe procedural guidelines on how the Certificate of Candidacy of a political aspirant can be
cancelled on the ground that he or she is a nuisance candidate. Rather, this remedial vehicle is instituted in the
Commission on Elections (COMELEC) Rules of Procedure, particularly Rule 245 thereof, by virtue of Sec. 69 of Batas
Pambansa Blg. 881, otherwise known as the Omnibus Election Code.6
It is worth recalling in the case at bar that the COMELEC, in the exercise of its jurisdiction, has resolved that Alvin
John is not a nuisance candidate, although he committed false material representations in his certificate of
candidacy.7 It was error, however, for petitioner to assume that the HRET may thereafter reverse the COMELEC's
findings. The tribunal is not vested with appellate jurisdiction over the rulings of the COMELEC En Banc. As the
Court held in Codilla Sr. vs. Hon. De Venecia,8 the HRET cannot assume jurisdiction over a cancellation case involving
Members of Lower House that had already been decided by the COMELEC and is under review by the Supreme
Court.9 I see no bar against applying the same restriction by analogy to proceedings against nuisance candidates
wherein a final judgment has already been rendered by the polling commission, even more so in this case where
Alvin John can never be deemed a "Member" of Congress over whom the HRET can exercise jurisdiction.
In Reyes v. COMELEC,10 the Court made clear that the jurisdiction of the HRET, as circumscribed under Article VI,
Section 17 of the Constitution,11 is limited to the election, returns, and qualification of the Members of the House of
Representatives. And to be considered a Member of the Lower House, there must be a concurrence of the following
requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office. This remains to be the standing
test of membership in Congress being applied by the Court.
To set the record straight, the dismissal of the petitions in G.R. Nos. 207199-200 on October 22, 2013 was never
intended to modify, much less overturn, the doctrine laid down in Reyes. Noteworthy is that the dismissal was
effected through a minute resolution, in contrast to the Decision in Reyes, which was the result of a deeper scrutiny
of the issue regarding the HRET's jurisdiction. Moreover, the statement in our ruling in G.R. Nos. 207199-200 that
proclamation alone vests the HRET with jurisdiction over election, returns, and qualification of the winning
candidate is mere obiter dictum, for as the Court observed, all of the three requisites for private respondent Tan's
membership in the Congress were present.12 To dispel any lingering doubt, the Court has ruled in the recent case
of Timuay vs. COMELEC13 that "once a winning candidate has been proclaimed, taken his oath, and assumed office as a
Member of the House of representatives, the jurisdiction of the [COMELEC] over election contests relating to his/her election,
returns, and qualification ends, and the HRET's own jurisdiction begins" in consonance with our ruling in Reyes.
Applying Reyes, it becomes indisputable that Alvin John cannot be considered a "Member" of Congress. Having
garnered the least number of votes in a landslide defeat, he could have never been recognized as the winning
candidate. Consequently, he could not have validly taken an oath of office, nor could he have discharged the
functions pertaining to a district representative. As a non-member of Congress, the HRET could not therefore assume
jurisdiction over the issues concerning his eligibility, e.g. the issue on whether or not he is a nuisance candidate.
In view of the foregoing considerations, I concur in the DISMISSAL the instant petition.chanroblesvirtuallawlibrary
Endnotes:
1
Sec. 5, Rule 24 of the COMELEC Rules of Procedure
Section 5. Applicability of Rule 23. - x x x
course does not have the same name and/or surname as a bona fide candidate for the same office, the votes cast for
such nuisance candidate shall be deemed stray pursuant to Section 9 of Rule 23.
2
Rules 15-18 of the 2015 Revised Rules of the HRET.
3
Rule 17 of the 2015 Revised Rules of the HRET.
4
Rule 18 of the 2015 Revised Rules of the HRET.
5
Entitled "Proceedings Against Nuisance Candidates"
6
Section 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested
party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed
to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the
names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate
has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a
faithful determination of the true will of the electorate.
7
April 25, 2013 Resolution of the COMELEC En Banc in SPA 13-056 and SPA 13-057.
8
G.R. No. 150605, December 10, 2002.
9
Concurring Opinion of former Associate Justice Roberto A. Abad in Reyes vs. COMELEC, G.R. No. 207164, October
22, 2013.
10
G.R. No. 207164, June 25, 2013.
11
SECTION 17. The Senate and the House of Representatives shall each have an Electoral Tribunal, which shall be the
sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list system represented therein. The
senior Justice in the Electoral Tribunal shall be its Chairman.
Tan was validly proclaimed on May 16, 2013, she has already taken her oath, and she has assumed office by
12
midday of June 30, 2013.
13
G.R. No. 207144, February 3, 2015.
2. Abayon vs HRET 2016
3. Daza vs. Singson
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 86344 December 21, 1989
REP. RAUL A. DAZA, petitioner,
vs.
REP. LUIS C. SINGSON and HON. RAOUL V. VICTORINO IN THE LATTER'S CAPACITY AS SECRETARY
OF THE COMMISSION ON APPOINTMENTS, respondent.
CRUZ, J.:
After the congressional elections of May 11, 1987, the House of Representatives proportionally apportioned its twelve
seats in the Commission on Appointments among the several political parties represented in that chamber, including
the Lakas ng Bansa, the PDP-Laban, the NP-Unido, the Liberal Party, and the KBL, in accordance with Article VI,
Section 18, of the Constitution. Petitioner Raul A. Daza was among those chosen and was listed as a representative of
the Liberal Party. 1
On September 16, 1988, the Laban ng Demokratikong Pilipino was reorganized, resulting in a political realignment in
the House of Representatives. Twenty four members of the Liberal Party formally resigned from that party and
joined the LDP, thereby swelling its number to 159 and correspondingly reducing their former party to only 17
members. 2
On the basis of this development, the House of Representatives revised its representation in the Commission on
Appointments by withdrawing the seat occupied by the petitioner and giving this to the newly-formed LDP. On
December 5, 1988, the chamber elected a new set of representatives consisting of the original members except the
petitioner and including therein respondent Luis C. Singson as the additional member from the LDP. 3
The petitioner came to this Court on January 13, 1989, to challenge his removal from the Commission on
Appointments and the assumption of his seat by the respondent. Acting initially on his petition for prohibition and
injunction with preliminary injunction, we issued a temporary restraining order that same day to prevent both the
petitioner and the respondent from serving in the Commission on Appointments.4
Briefly stated, the contention of the petitioner is that he cannot be removed from the Commission on Appointments
because his election thereto is permanent under the doctrine announced in Cunanan v. Tan. 5 His claim is that the
reorganization of the House representation in the said body is not based on a permanent political realignment
because the LDP is not a duly registered political party and has not yet attained political stability.
For his part, the respondent argues that the question raised by the petitioner is political in nature and so beyond the
jurisdiction of this Court. He also maintains that he has been improperly impleaded, the real party respondent being
the House of Representatives which changed its representation in the Commission on Appointments and removed
the petitioner. Finally, he stresses that nowhere in the Constitution is it required that the political party be registered
to be entitled to proportional representation in the Commission on Appointments.
In addition to the pleadings filed by the parties, a Comment was submitted by the Solicitor General as amicus curiae
in compliance with an order from the Court.
At the core of this controversy is Article VI, Section 18, of the Constitution providing as follows:
Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate, as
ex officio Chairman, twelve Senators and twelve Members of the House of Representatives, elected
by each House on the basis of proportional representation from the political parties and parties or
organizations registered under the party-list system represented therein. The Chairman of the
Commission shall not vote, except in case of a tie. The Commission shall act on all appointments
submitted to it within thirty session days of the Congress from their submission. The Commission
shall rule by a majority vote of all the Members.
Ruling first on the jurisdictional issue, we hold that, contrary to the respondent's assertion, the Court has the
competence to act on the matter at bar. Our finding is that what is before us is not a discretionary act of the House of
Representatives that may not be reviewed by us because it is political in nature. What is involved here is the legality,
not the wisdom, of the act of that chamber in removing the petitioner from the Commission on Appointments. That is
not a political question because, as Chief Justice Concepcion explained in Tanada v. Cuenco. 6
... the term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, ... it refers "to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the
Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.
In the aforementioned case, the Court was asked by the petitioners therein to annul the election of two members of
the Senate Electoral Tribunal of that chamber, on the ground that they had not been validly nominated. The Senate
then consisted of 23 members from the Nacionalista Party and the petitioner as the lone member of the Citizens
Party. Senator Lorenzo M. Tanada nominated only himself as the minority representative in the Tribunal, whereupon
the majority elected Senators Mariano J. Cuenco. and Francisco Delgado, from its own ranks, to complete the nine-
man composition of the Tribunal as provided for in the 1935 Constitution. The petitioner came to this Court,
contending that under Article VI, Section 11, of that Charter, the six legislative members of the Tribunal were to be
chosen by the Senate, "three upon nomination of the party having the largest number of votes and three of the party
having the second largest number of votes therein." As the majority party in the Senate, the Nacionalista Party could
nominate only three members and could not also fill the other two seats pertaining to the minority.
By way of special and affirmative defenses, the respondents contended inter alia that the subject of the petition was
an internal matter that only the Senate could resolve. The Court rejected this argument, holding that what was
involved was not the wisdom of the Senate in choosing the respondents but the legality of the choice in light of the
requirement of the Constitution. The petitioners were questioning the manner of filling the Tribunal, not the
discretion of the Senate in doing so. The Court held that this was a justiciable and not a political question, thus:
Such is not the nature of the question for determination in the present case. Here, we are called
upon to decide whether the election of Senators Cuenco and Delgado by the Senate, as members of
the Senate Electoral Tribunal, upon nomination by Senator Primicias-member and spokesman of
the party having the largest number of votes in the Senate-behalf of its Committee on Rules,
contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be
chosen "upon nomination ... of the party having the second largest number of votes" in the Senate
and hence, is null and void. The Senate is not clothed with "full discretionary authority" in the
choice of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to
constitutional limitations which are claimed to be mandatory in nature. It is clearly within the
legitimate province of the judicial department to pass upon the validity of the proceeding in
connection therewith.
... whether an election of public officers has been in accordance with law is for the judiciary.
Moreover, where the legislative department has by statute prescribed election procedure in a given
situation, the judiciary may determine whether a particular election has been in conformity with
such statute, and particularly, whether such statute has been applied in a way to deny or transgress
on constitutional or statutory rights ...' (1 6 C.J.S., 439; emphasis supplied)
It is, therefore, our opinion that we have, not only jurisdiction but also the duty, to consider and
determine the principal issue raised by the parties herein."
Although not specifically discussed, the same disposition was made in Cunanan v. Tan as it likewise involved the
manner or legality of the organization of the Commission on Appointments, not the wisdom or discretion of the
House in the choice of its representatives.
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even
if we were to assume that the issue presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
The respondent's contention that he has been improperly impleaded is even less persuasive. While he may be
technically correct in arguing that it is not he who caused the petitioner's removal, we feel that this objection is also
not an insuperable obstacle to the resolution of this controversy. We may, for one thing, treat this proceeding as a
petition for quo warranto as the petitioner is actually questioning the respondent's right to sit as a member of the
Commission on Appointments. For another, we have held as early as in the Emergency Powers Cases 7 that where
serious constitutional questions are involved, "the transcendental importance to the public of these cases demands
that they be settled promptly and definitely brushing aside, if we must, technicalities of procedure." The same policy
has since then been consistently followed by the Court, as in Gonzales v. Commission on Elections, 8 where we held
through Chief Justice Fernando:
In the course of the deliberations, a serious procedural objection was raised by five members of the
Court. It is their view that respondent Commission on Elections not being sought to be restrained
from performing any specific act, this suit cannot be characterized as other than a mere request for
an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it.
Nonetheless, a majority would affirm the original stand that under the circumstances, it could still
rightfully be treated as a petition for prohibition.
The language of justice Laurel fits the case: "All await the decision of this Court on the
constitutional question. Considering, therefore, the importance which the instant case has assumed
and to prevent multiplicity of suits, strong reasons of public policy demand that [its]
constitutionality ... be now resolved.' It may likewise be added that the exceptional character of the
situation that confronts us, the paramount public interest, and the undeniable necessity for ruling,
the national elections being barely six months away, reinforce our stand. It would appear
undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the
enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on
the matter.
Coming now to the more crucial question, the Court notes that both the petitioner and the respondent are invoking
the case of Cunanan v. Tan to support their respective positions. It is best, therefore, to make a quick review of that
case for a proper disposition of this one.
In the election for the House of Representatives held in 1961, 72 seats were won by the Nacionalista Party, 29 by the
Liberal Party and 1 by an independent. Accordingly, the representation of the chamber in the Commission on
Appointments was apportioned to 8 members from the Nacionalista Party and 4 from the Liberal Party.
Subsequently, 25 members of the Nacionalista Party, professing discontent over the House leadership, made
common cause with the Liberal Party and formed what was called the Allied Majority to install a new Speaker and
reorganize the chamber. Included in this reorganization was the House representation in the Commission on
appointments where three of the Nacionalista congressmen originally chosen were displaced by three of their party
colleagues who had joined the Allied Majority.
Petitioner Carlos Cunanan's ad interim appointment as Deputy Administrator of the Reforestration Administration
was rejected by the Commission on Appointments as thus reorganized and respondent Jorge Tan, Jr. was thereafter
designated in his place. Cunanan then came to this Court, contending that the rejection of his appointment was null
and void because the Commission itself was invalidly constituted.
The Court agreed. It noted that the Allied Majority was a merely temporary combination as the Nacionalista
defectors had not disaffiliated from their party and permanently joined the new political group. Officially, they were
still members of the Nacionalista Party. The reorganization of the Commission on Appointments was invalid because
it was not based on the proportional representation of the political parties in the House of Representatives as
required by the Constitution. The Court held:
... In other words, a shifting of votes at a given time, even if du to arrangements of a more or less
temporary nature, like the one that has led to the formation of the so-called "Allied Majority," does
not suffice to authorize a reorganization of the membership of the Commission for said House.
Otherwise the Commission on Appointments may have to be reorganized as often as votes shift
from one side to another in the House. The framers of our Constitution could not have intended to
thus place a constitutional organ, like the Commission on Appointments, at the mercy of each
House of Congress.
The petitioner vigorously argues that the LDP is not the permanent political party contemplated in the Constitution
because it has not been registered in accordance with Article IX-B, Section 2(5), in relation to the other provisions of
the Constitution. He stresses that the so-called party has not yet achieved stability and suggests it might be no
different from several other political groups that have died "a-bornin'," like the LINA, or have subsequently
floundered, like the UNIDO.
The respondent also cites Cunanan but from a different viewpoint. According to him, that case expressly allows
reorganization at any time to reflect changes in the political alignments in Congress, provided only that such changes
are permanent. The creation of the LDP constituting the bulk of the former PDP-Laban and to which no less than 24
Liberal congressmen had transferred was a permanent change. That change fully justified his designation to the
Commission on Appointments after the reduction of the LP representation therein. Thus, the Court held:
Upon the other hand, the constitutional provision to the effect that "there shall be a Commission on
Appointments consisting of twelve (12) Senators and twelve (12) members of the House of
Representatives elected by each House, respectively, on the basis of proportional
REPRESENTATION OF THE POLITICAL PARTIES THEREIN," necessarily connotes the authority
of each House of Congress to see to it that this requirement is duly complied with. As a
consequence, it may take appropriate measures, not only upon the initial organization of the
Commission, but also, subsequently thereto. If by reason of successful election protests against
members of a House, or of their expulsion from the political party to which they belonged and/or
of their affiliation with another political party, the ratio in the representation of the political parties
in the House is materially changed, the House is clothed with authority to declare vacant the
necessary number of seats in the Commission on Appointments held by members of said House
belonging to the political party adversely affected by the change and then fill said vacancies in
conformity with the Constitution.
In the course of the spirited debate on this matter between the petitioner and the respondent (who was supported by
the Solicitor General) an important development has supervened to considerably simplify the present controversy.
The petitioner, to repeat, bases his argument heavily on the non-registration of the LDP which, he claims has not
provided the permanent political realignment to justify the questioned reorganization. As he insists:
(c) Assuming that the so-called new coalesced majority is actually the LDP itself,
then the proposed reorganization is likewise illegal and ineffectual, because the
LDP, not being a duly registered political party, is not entitled to the "rights and
privileges granted by law to political parties' (See. 160, BP No. 881), and therefore
cannot legally claim the right to be considered in determining the required
proportional representation of political parties in the House of Representatives. 9
xxx xxx xxx
... the clear constitutional intent behind Section 18, Article VI, of the 1987 Constitution, is to give the
right of representation in the Commission on Appointment only to political parties who are duly
registered with the Comelec. 10
On November 23, 1989, however, that argument boomeranged against the petitioner. On that date, the Commission
on Elections in an en banc resolution affirmed the resolution of its First Division dated August 28, 1989, granting the
petition of the LDP for registration as a political party. 11 This has taken the wind out of the sails of the petitioner, so
to speak, and he must now limp to shore as best he can.
The petitioner's contention that, even if registered, the party must still pass the test of time to prove its permanence is
not acceptable. Under this theory, a registered party obtaining the majority of the seats in the House of
Representatives (or the Senate) would still not be entitled to representation in the Commission on Appointments as
long as it was organized only recently and has not yet "aged." The Liberal Party itself would fall in such a category.
That party was created in December 1945 by a faction of the Nacionalista Party that seceded therefrom to support
Manuel A. Roxas's bid for the Presidency of the Philippines in the election held on April 23, 1946. 12 The Liberal Party
won. At that time it was only four months old. Yet no question was raised as to its right to be represented in the
Commission on Appointments and in the Electoral Tribunals by virtue of its status as the majority party in both
chambers of the Congress.
The LDP has been in existence for more than one year now. It now has 157 members in the House of Representatives
and 6 members in the Senate. Its titular head is no less than the President of the Philippines and its President is
Senator Neptali A. Gonzales, who took over recently from Speaker Ramon V. Mitra. It is true that there have been,
and there still are, some internal disagreements among its members, but these are to be expected in any political
organization, especially if it is democratic in structure. In fact even the monolithic Communist Party in a number of
socialist states has undergone similar dissension, and even upheavals. But it surely cannot be considered still
temporary because of such discord.
If the petitioner's argument were to be pursued, the 157 members of the LDP in the House of Representatives would
have to be denied representation in the Commission on Appointments and, for that matter, also the Electoral
Tribunal. By the same token, the KBL, which the petitioner says is now "history only," should also be written off. The
independents also cannot be represented because they belong to no political party. That would virtually leave the
Liberal Party only with all of its seventeen members to claim all the twelve seats of the House of Representatives in
the Commission on Appointments and the six legislative seats in the House Electoral Tribunal.
It is noteworthy that when with 41 members the Liberal Party was alloted two of the seats in the Commission on
Appointments, it did not express any objection. 13 Inconsistently, the petitioner is now opposed to the withdrawal
from it of one seat although its original number has been cut by more than half.
As for the other condition suggested by the petitioner, to wit, that the party must survive in a general congressional
election, the LDP has doubtless also passed that test, if only vicariously. It may even be said that as it now commands
the biggest following in the House of Representatives, the party has not only survived but in fact prevailed. At any
rate, that test was never laid down in Cunanan.
To summarize, then, we hold, in view of the foregoing considerations, that the issue presented to us is justiciable
rather political, involving as it does the legality and not the wisdom of the act complained of, or the manner of filling
the Commission on Appointments as prescribed by the Constitution. Even if the question were political in nature, it
would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII,
Section 1, of the Constitution, which includes the authority to determine whether grave abuse of discretion
amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government.
As for the alleged technical flaw in the designation of the party respondent, assuming the existence of such a defect,
the same may be brushed aside, conformably to existing doctrine, so that the important constitutional issue raised
may be addressed. Lastly, we resolve that issue in favor of the authority of the House of Representatives to change its
representation in the Commission on Appointments to reflect at any time the changes that may transpire in the
political alignments of its membership. It is understood that such changes must be permanent and do not include the
temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and
permanent shifts of allegiance from one political party to another.
The Court would have preferred not to intervene in this matter, leaving it to be settled by the House of
Representatives or the Commission on Appointments as the bodies directly involved. But as our jurisdiction has been
invoked and, more importantly, because a constitutional stalemate had to be resolved, there was no alternative for us
except to act, and to act decisively. In doing so, of course, we are not imposing our will upon the said agencies, or
substituting our discretion for theirs, but merely discharging our sworn responsibility to interpret and apply the
Constitution. That is a duty we do not evade, lest we ourselves betray our oath.
WHEREFORE, the petition is DISMISSED. The temporary restraining order dated January 13, 1989, is LIFTED. The
Court holds that the respondent has been validly elected as a member of the Commission on Appointments and is
entitled to assume his seat in that body pursuant to Article VI, Section 18, of the Constitution. No pronouncement as
to costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Cows, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part.
4. Cosetang v. Mitra
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 86649 July 12, 1990
ANNA DOMINIQUE M.L. COSETENG and KABABAIHAN PARA SA INANG BAYAN, petitioners,
vs.
HON. RAMON V. MITRA, JR., as speaker of the House of Representatives of the Congress of the Philippines;
HON. FRANCISCO SUMULONG, as Majority Floor Leader of the House of Representatives of the Congress of
the Philippines; HON. JOVITO SALONGA, as Ex-Oficio Chairman of the Commission on Appointments; HON.
ROQUE R. ABLAN, JR., HON. LORNA L. VERANO-YAP, HON. MIGUEL ROMERO, HON. ANTONIO V.
CUENCO, HON. ROGACIANO M. MERCADO, HON. ALAWADIN T. BANDON, JR., HON. JOSE L.
CABOCHAN, HON. CARLOS R. IMPERIAL, HON. MA. CLARA L. LOBREGAT, HON. NATALIO M.
BELTRAN, JR., HON. CARMELO J. LOCSIN & HON. LUIS C. SINGSON, as Members of the Commission on
Appointments for the House of Representatives of the CONGRESS OF THE PHILIPPINES, respondents.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioners.
Panganiban, Benitez, Barinaga & Bautista Law Offices for Lorna L. Verano-Yap.
GRIO-AQUINO, J.:
The congressional elections of May 11, 1987 resulted in the election to the House of Representatives of the candidates
of diverse political parties such as the PDP-Laban, Lakas ng Bansa (LB), Liberal Party (LP), NP-Unido, Kilusan ng
Bagong Lipunan (KBL), Panaghiusa, Kababaihan Para sa Inang Bayan (KAIBA), and some independents. Petitioner
Anna Dominique M.L. Coseteng was the only candidate elected under the banner of KAIBA.
On August 26, 1987, the House of Representatives, upon nomination by the Majority Floor Leader, Cong. Francisco
Sumulong, elected from the Coalesced Majority, eleven (11) out of twelve (12) congressmen to represent the House in
the Commission on Appointments. They were:
1. Hon. Miguel Romero LP (Liberal Party)
2. Hon. Antonio V. Cuenco LB-Panaghiusa
3. Hon. Rogaciano Mercado LB (Lakas ng Bayan)
4. Hon. Raul Daza LP
5. Hon. Alawadin T. Bandon Jr. PDP-Laban
6. Hon. Jose Cabochan PDP-Laban
7. Hon. Lorna L. Verano-Yap LP
8. Hon. Carlos R. Imperial IND
9. Hon. Ma. Clara L. Lobregat IND
10. Hon Natalio M. Beltran, Jr. LB/Unido/NP
11. Hon. Carmelo J. Locsin PDP-Laban/LB
(pp. 115-116, Rollo.)
On September 22, 1987, upon nomination of the Minority Floor Leader, the House elected Honorable Roque Ablan,
Jr., KBL, as the twelfth member of the Commission on Appointments, representing the Coalesced Minority in the
House.
A year later, on September 16, 1988, the "Laban ng Demokratikong Pilipino" (LDP, for brevity) was organized as a
political party. As 158 out of 202 members of the House of Representatives formally affiliated with the LDP, the
House committees, including the House representation in the Commission on Appointments, had to be reorganized.
On October 8, 1988, petitioner Coseteng wrote a letter to Speaker Ramon Mitra requesting that as representative of
KAIBA, she be appointed as a member of the Commission on Appointments and House Electoral Tribunal (p.
15, Rollo). Her request was endorsed by nine (9) congressmen, namely, Hon. Lally Laurel-Trinidad, Bonifacio Gillego,
Luz Reyes Bakunawa, Gerardo Cabochan, Jose D. Aspiras, Oscar Santos, Eduardo N. Joson, Antonio H. Cerilles and
Isacio Pelaez.
On December 5, 1988, the House of Representatives, on motion of the Majority Floor Leader and over the objection of
Cong. Raul A. Daza, LP, revised the House majority membership in the Commission on Appointments to conform
with the new political alignments by replacing Rep. Raul A. Daza, LP, with Rep. Luis C. Singson, LDP, as follows:
1. Hon. Miguel L. Romero LDP
2. Hon. Antonio V. Cuenco LDP
3. Hon. Rogaciano M. Mercado LDP
4. Hon. Alawadin T. Bandon, Jr. LDP
5. Hon. Jose L. Cabochan LDP
6. Hon. Carlos R. Imperial LDP
7. Hon. Maria Clara L. Lobregat LDP
8. Hon. Natalio M. Beltran, Jr. LDP
9. Hon. Carmelo J. Locsin LDP
10. Hon. Luis C. Singson LDP
11. Hon. Lorna L. Verano-Yap LP
(p. 122, Rollo.)
Congressman Ablan, KBL, was retained as the 12th member representing the House minority.
On February 1, 1989, Congresswoman Coseteng and her party, the KAIBA, filed this Petition for Extraordinary Legal
Writs (which may be considered as a petition for quo warranto and injunction) praying this Court to declare as null
and void the election of respondent Ablan, Verano-Yap, Romero, Cuenco, Mercado, Bandon, Cabochan, Imperial,
Lobregat, Beltran, Locsin, and Singson, as members of the Commission on Appointments, to enjoin them from acting
as such and to enjoin also the other respondents from recognizing them as members of the Commission on
Appointments on the theory that their election to that Commission violated the constitutional mandate of
proportional representation because:
1) the New Majority (158 LDP members out of the 202 members of the House) is entitled to only nine (9) seats out of
the twelve to be filled by the House (p. 29, Rollo);
2) the members representing the political parties, or coalitions thereof, must be nominated by their respective
political parties or coalitions;
3) the nomination and election of respondent Verano-Yap by the respondents as representative of the minority was
clearly invalid (p. 31, Rollo); and
4) that similarly invalid was the retention of respondent Ablan as Minority member in the Commission because he
was neither nominated nor elected as such by the minority party or parties in the House (p. 31, Rollo).
Petitioner Coseteng further alleged that she is qualified to sit in the Commission on Appointments as a representative
of the Minority because she has the support of nine (9) other congressmen and congresswomen of the Minority (p.
31, Rollo).
In their collective Comment, the respondents House of Representatives, the Speaker, the Majority Floor Leader, the
members of the Commission on Appointments including Congressman Roque R. Ablan, but excluding
Congresswoman Lorna Verano-Yap (who filed a separate Comment), alleged: (1) that the legality of the
reorganization of the Commission on Appointments is a political question, hence, outside the jurisdiction of this
Court to decide, and (2) that in any case, the reorganization was "strictly in consonance with Section 18, Article VI of
the 1987 Constitution" i.e., on the basis of proportional representation of the political parties, considering the majority
coalition "as a form of a political party" (pp. 115, 118, Rollo). They further alleged that as of March 3, 1989, 160
members of the House (including 26 former Liberals) had expressly renounced in writing their respective political
party affiliations and formally affiliated with the LDP leaving only 15 Liberals in the House (p. 119, Rollo).itc-
aslAfter its petition for registration as a political party was granted on August 28, 1989 by the First Division of the
COMELEC) and affirmed on November 23, 1989 by the COMELEC en banc, the LDP become the new Majority in the
House. They finally argued that as KAIBA is part of the Coalesced Majority which supports the administration of
President Corazon C. Aquino, not of the minority, petitioner is bound by the choice of the Coalesced Majority of the
members who would sit in the Commission on Appointments.
Representative Lorna Verano-Yap, in her comment alleged that the petitioner has no better light than those already
selected, to be chosen as a member of the Commission on Appointments because: (1) the Constitution was not
violated in electing Yap and eleven (11) other House members to the Commission on Appointments; (2) respondent
Yap is a rightful incumbent; and (3) petitioner's claim to a seat on the Commission on Appointments is without legal
and factual basis (pp. 217-218, Rollo).
The Commission on Appointments took a neutral stand on the petition as the issues involved may touch on the
validity of its organization and the legality of the entitlement of the LDP or the LP to representation, which are raised
in the case of Daza vs. Singson, G.R. No. 86344, then pending before this Court (pp. 195-198, Rollo).
The issue here is whether the members of the House in the Commission on Appointments were chosen on the basis
of proportional representation from the political parties therein as provided in Section 18, Article VI of the 1987
Constitution which reads:
Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate,
as ex oficio Chairman, twelve Senators, and twelve Members of the House of Representatives
elected by each House on the basis of proportional representation from the political parties and
parties or organizations registered under the party-list system represented therein. The chairman of
the Commission shall not vote, except in case of a tie. The Commission shall act on all
appointments submitted to it within thirty session days of the Congress from their submission. The
commission shall rule by a majority vote of all the Members. (Art. VI, 1987 Constitution.)
After deliberating on the petition and the comments of the respondents, we hold that the petition should be
dismissed, not because it raises a political question, which it does not, but because the revision of the House
representation in the Commission on Appointments is based on proportional representation of the political parties
therein as provided in Section 18, Article VI of the 1987 Constitution.
The "political question" issue was settled in Daza vs. Singson, G.R. No. 86344, December 21, 1989, where this Court
ruled that "the legality, and not the wisdom, of the manner of filling the Commission on Appointments as prescribed
by the Constitution" is justiciable, and, "even if the question were political in nature, it would still come within our
powers of review under the expanded jurisdiction conferred upon us by Article VIII, Section 1, of the Constitution,
which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of
jurisdiction has been committed by any branch or instrumentality of the government."
The composition of the House membership in the Commission on Appointments was based on proportional
representation of the political parties in the House. There are 160 members of the LDP in the House. They represent
79% of the House membership (which may be rounded out to 80%). Eighty percent (80%) of 12 members in the
Commission on Appointments would equal 9.6 members, which may be rounded out to ten (10) members from the
LDP. The remaining two seats were apportioned to the LP (respondent Lorna Verano-Yap) as the next largest party
in the Coalesced Majority and the KBL (respondent Roque Ablan) as the principal opposition party in the House.
There is no doubt that this apportionment of the House membership in the Commission on Appointments was done
"on the basis of proportional representation of the political parties therein."
The other political parties or groups in the House, such as petitioner's KAIBA (which is presumably a member also of
the Coalesced Majority), are bound by the majority's choices. Even if KAIBA were to be considered as an opposition
party, its lone member (petitioner Coseteng) represents only .4% or less than 1% of the House membership, hence,
she is not entitled to one of the 12 House seats in the Commission on Appointments. To be able to claim proportional
membership in the Commission on Appointments, a political party should represent at least 8.4% of the House
membership, i.e., it should have been able to elect at least 17 congressmen or congresswomen.
The indorsements of the nine (9) congressmen and congresswomen in favor of the petitioner's election to the
Commission are inconsequential because they are not members of her party and they signed identical indorsements
in favor of her rival, respondent Congresswoman Verano-Yap.
There is no merit in the petitioner's contention that the House members in the Commission on Appointments should
have been nominated and elected by their respective political parties. The petition itself shows that they were
nominated by their respective floor leaders in the House. They were elected by the House (not by their party) as
provided in Section 18, Article VI of the Constitution. The validity of their election to the Commission on
Appointments eleven (11) from the Coalesced Majority and one from the minority is unassailable.
WHEREFORE, the petition is dismissed for lack of merit. Costs against the petitioner.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes, Medialdea and
Regalado, JJ., concur.
Sarmiento, J., took no part.
5. Guingona vs. Gonzales
G.R. No. 106971 October 20, 1992

TEOFISTO T. GUINGONA, JR., AND LAKAS-NATIONAL UNION OF CHRISTIAN DEMOCRATS (LAKAS-
NUCD), petitioners,
vs.
NEPTALI A. GONZALES, ALBERTO ROMULO and WIGBERTO E. TAADA, respondents.
NATIONALIST PEOPLE'S COALITION, petitioner-in-intervention.
CAMPOS, JR., J.:

This is a petition for Prohibition to prohibit respondents Senator Alberto Romulo and Wigberto Taada from sitting
and assuming the position of members of the Commission on Appointments and to prohibit Senators Neptali
Gonzales, as ex-officio Chairman, of said Commission from recognizing and allowing the respondent senators to sit
as members thereof.
As a result of the national elections held last May 11, 1992, the Senate is composed of the following members or
Senators representing the respective political affiliations:
LDP 15 senators
NPC 5 senators
LAKAS-NUCD 3 senators
LP-PDP-LABAN 1 senator
Applying the mathematical formula agreed to by the parties as follow as:
No. of senators of a political party x 12 seats

Total no. of senators elected
the resulting composition of the senate based on the rule of proportional representation of each political
party with elected representatives in the Senate, is as follows:
Political Party/ Proportional
Political Coalition Membership Representatives
LDP 15 7.5 members
NPC 5 2.5 members
LAKAS-NUCD 3 1.5 members
LP-PDP-LABAN 1 .5 members
At the organization meeting of the Senate held on August 27, 1992, Senator Romulo in his capacity as Majority Floor
Leader nominated, for and in his behalf of the LDP, eight (8) senators for membership in the Commission on
Appointments, namely Senators Angara, Herrera, Alvarez, Aquino, Mercado, Ople, Sotto and Romulo. The
nomination of the eight senators 2 was objected to by Petitioner, Senator Guingona, as Minority Floor Leader, and
Senator John Osmea, in representation of the NPC. To resolve the impasse, Senator Arturo Tolentino proposed a
compromise to the effect that Senate elect 3
. . . 12 members to the Commission on Appointments, eight coming from the LDP, two coming
from NPC, one coming from the Liberal Party, with the understanding that there are strong
reservations against this proportion of these numbers so that if later on in action in the Supreme
Court, if any party is found to have an excess in representation, and if any party is found to have a
deficiency in representation, that party will be entitled to nominate and have elected by this body
its additional representatives.
The proposed compromise above stated was a temporary arrangement and, inspite of the objections of
Senator Guingona and Osmea, to enable the Commission on Appointments to be organized by the election
of its members, it was approved. The elected members consisted of eight LDP, one LP-PDP-LABAN, two
NPC and one LAKAS-NUCD.
On September 23, 1992, Senator Teofisto Guingona. Jr., in his behalf and in behalf of Lakas-National Union of
Christian Democrats (LAKAS-NUCD), filed a petition for the issuance of a writ of prohibition to prohibit the
respondent Senate President Neptali Gonzales, as ex-officio Chairman of the Commission on Appointments, from
recognizing the membership of Senators Alberto Romulo as the eight senator elected by the LDP, and Wigberto E.
Taada, as the lone member representing the LP-PDP-LABAN, in the Commission on Appointments, on the ground
that the proposed compromise of Senator Tolentino was violative of the rule of proportional representation, and that
it is the right of the minority political parties in the Senate, consistent with the Constitution, 4 to combine their
fractional representation in the Commission on Appointments to complete one seat therein, and to decide who,
among the senators in their ranks, shall be additionally nominated and elected thereto.
Section 18 Article VI of the Constitution of 1987 provides fro the creation of a Commission on Appointments and the
allocation of its membership, as follows:
Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate as
ex-officio Chairman, twelve members of the House of Representatives, elected by each house on the
basis of proportional representation from the political parties or organizations registered under the
party list system represented therein. The Chairman of the Commission shall not vote except in
case of a tie. The Commission shall act on all appointments submitted to it within the session days
of the Congress from their submission of all the members. (Emphasis supplied.)
Based on the mathematical computation of proportional representation of the various political parties with elected
senators in the senators in the Senate, each of these political parties is entitled to a fractional membership in the
Commission on Appointments as stated in the first paragraph of this decision.5 Each political party has a claim to an
extra half seat, and the election of respondents Senator Romulo and Senator Taada to the Commission on
Appointments by the LDP majority is precisely questioned by the petitioners because, according to them, it unduly
increased the membership of LDP and LP-PDP-LABAN in the commission and reduced the membership of the
LAKAS-NUCD and NPC correspondingly. In view of the conflicting claims of each of the political parties/coalition
duly represented in the Senate to a fractional membership in the Commission on Appointments, the election of
respondents Senator Romulo and Senator Taada has become controversial and its validity questionable. Hence, this
petition. It has been established that the legality of filling up the membership of the Commission on Appointments is
a justiciable issue and not a political question. 6
We deem it necessary to resolve the respondents' argument as to the nature of the instant petition. There is no doubt
that the issues involved herein are constitutional in nature and are of vital importance to our nation. They involve the
interpretation of Section 18, Article VI of the Constitution which creates a Commission on Appointments. Where
constitutional issues are properly raised in the context of the alleged facts, procedural questions acquire a relatively
minor significance 7 and the "transcendental importance to the public of the case demands that they be settled
promptly and definitely brushing aside . . . technicalities of procedure". 8
For the purpose of resolving the case at bar, the instant petition may be regarded as one of prohibition 9 wherein the
Senate is claimed to have acted without or in excess of its jurisdiction when it designated respondent Senator Romulo
as eighth member of the Commission on Appointments, upon nomination by the LDP, and respondent Senator
Taada as LP nominee, notwithstanding, that, in both instance, LDP and LP are each entitled only to "half a
member". In the alternative, the petition may be regarded as one for mandamus, 10 in which it is claimed that the
LAKAS-NUCD and NPC were unlawfully excluded from the use and enjoyment of a right or office to which each is
entitled. Considering the importance of the case at bar and in keeping with the Court's duty under the Constitution to
keep the other branches of the government within the limits of the Constitution and the laws of the land, this Court
has decided to brush aside legal technicalities of procedure and take cognizance of this case.
The issues for determination by this Court may be stated as follows:
1) Whether the election of Senators Alberto Romulo and Wigberto E. Taada as members of the
Commission on Appointments is in accordance with the provision of Section 18 of Article VI of the
1987 Constitution.
2) If said membership of the respondent senators in the Commission is violative of the
Constitutional provision, did the respondent Senate act in grave abuse of discretion in electing the
respondent Senators?
3) If there was grave abuse of discretion by respondent Senate, acting through the LDP majority,
should a writ of prohibition enjoining, prohibiting and restraining respondent Senators from sitting
as members of and participating in the proceeding of the Commission on Appointments be issued?
It is an established fact to which all the parties agree that the mathematical representation of each of the political
parties represented in the Senate is as follows:
LDP 7.5
NPC .5
LAKAS-NUCD 2.5
LP-PDP-LABAN 1.5
It is also a fact accepted by all such parties that each of them entitled to a fractional membership on the basis
of the rule on proportional representation of each of the political parties. A literal interpretation of Section 18
of Article VI of the Constitution leads to no other manner of application than as above. The problem is what
to do with the fraction of .5 or 1/2 to which each of the parties is entitled. The LDP majority in the Senate
converted a fractional half membership into a whole membership of one senator by adding one half or .5 to
7.5 to be able to elect Senator Romulo. In so doing one other party's fractional membership was
correspondingly reduced leaving the latter's representation in the Commission on Appointments to less
than their proportional representation in the Senate. This is clearly a violation of Section 18 because it is no
longer in compliance with its mandate that membership in the Commission be based on the proportional
representation of the political parties. The election of Senator Romulo gave more representation to the LDP
and reduced the representation of one political party either the LAKAS-NUCD or the NPC.
On the claim of Senator Taada that under the ruling in the case of Senator Lorenzo Taada, 11 and the cases of
Senator Juan Ponce Enrile, he has a right to be elected as a member of the Commission on Appointments because of:
(a) the physical impossibility of dividing a person, so that the fractional membership must be rounded up into one
senator; (b) being the sole elected senator of his party, his party is entitled to be represented in the Commission on
Appointments; (c) having been elected senator, rounding up into one full senator his fractional membership is
consistent with the provision and spirit of the Constitution and would be in full accord with the principle of
republicanism that emphasizes democracy.
The cases of the two former senators mentioned cannot be invoked as a precedent in support of incumbent Senator
Taada's claim to a membership in the present Commission on Appointments. In the time of his illustrious father, out
of 24 elected senators in the upper chamber of Congress, 23 belonged to the Nacionalista Party, while Senator
Lorenzo Taada, who belonged to the Citizen's Party, was the lone opposition. By force of circumstance, he became a
member of the Commission on Appointments because he alone represented the minority party. Had there been
another senator belonging to a party other than the Citizens' Party, this problem of who should sit as the sole
representative of the opposition party would have arisen. In the case of Senator Ponce Enrile, there were two senators
elected from the opposition party, namely, he and Senator Estrada. Applying the rule of proportional representation
mentioned earlier (see formula), the opposition was entitled to full member (not a fractional membership). Senator
Enrile was thus legally nominated and elected as the minority representative in the Senate. In the present case, if
there were a political parties in the Senate, and We follow Senators Taada's claim that he is entitled to full
membership as lone representative of his party, We the anomaly of having 13 senators, where the Constitution allows
only twelve (12) in the Commission on Appointments.
We find the respondents' claim to membership in the Commission on Appointments by nomination and election of
the LDP majority in the Senate as not in accordance with Section 18 of Article VI of the 1987 Constitution and
therefore violative of the same because it is not in compliance with the requirements that twelve senators shall be
elected on the basis of proportional representation of the resulting fractional membership of the political parties
represented therein. To disturb the resulting fractional membership of the political parties in the Commission on
Appointments by adding together two halves to make a whole is a breach of the rule on proportional representation
because it will give the LDP an added member in the Commission by utilizing the fractional membership of the
minority political party, who is deprived of half a representation.
The provision of Section 18 on proportional representation is mandatory in character and does not leave any
discretion to the majority party in the Senate to disobey or disregard the rule on proportional representation;
otherwise, the party with a majority representation in the Senate or the House of Representatives can by sheer force
of number impose its will on the hapless minority. By requiring a proportional representation in the Commission on
Appointments, Section 18 in effect works as a check on the majority party in the Senate and helps to maintain the
balance of power. No party can claim more than what it is entitled to under such rule. To allow it to elect more than
its proportional share of members is to confer upon such a party a greater share in the membership in the
Commission on Appointments and more power to impose its will on the minority, who by the same token, suffers a
diminution of its rightful membership in the Commission.
Section 18, also assures representation in the Commission on Appointments of any political party who succeeds in
electing members to the Senate, provided that the number of senators so elected enables it to put a representative in
the Commission on Appointments. Drawing from the ruling in the case of Coseteng vs. Mitra, Jr., 12 a political party
must have at least two senators in the Senate to be able to have a representatives in the Commission on
Appointments, so that any number less than 2 will not entitle such a party a membership in the Commission on
Appointments. This applies to the respondent Senator Taada.
We lay down the following guidelines accordingly:
1) In the Senate, political party or coalition must have at least two duly elected senators for every
seat in the Commission on Appointments.
2) Where there are more than two political parties represented in the Senate, a political
party/coalition with a single senator in the Senate cannot constitutionally claims seat in the
Commission.
We do not agree with respondents' claim that it is mandatory to elect 12 Senators to the Commission on
Appointments. The Constitution does not contemplate that the Commission on Appointments must
necessarily include twelve (12) senators and twelve (12) members of the House of Representatives. What the
Constitution requires is that there be at least a majority of the entire membership. Under Section 18, the
Commission shall rule by majority vote of all the members and in Section 19, the Commission shall meet
only while congress is in session, at the call of its Chairman or a majority of all its members "to discharge
such powers and functions herein conferred upon it". Implementing the above provisions of the
Constitution, Section 10 Chapter 3 of the Rules of the Commission on Appointments, provides as follows:
Sec. 10. Place of Meeting and Quorum: The Commission shall meet at either the session hall of
the Senate or the House of Representatives upon call of the Chairman or as the Commission may
designate. The presence of at least thirteen (13) members is necessary to constitute a quorum.
Provided, however, that at least four (4) of the members constituting the quorum should come
from either house. . . .
It is quite evident that the Constitution does not require the election and presence of twelve (12) senators and twelve
(12) members of the House of Representatives in order that the Commission may function. Other instances may be
mentioned of Constitutional collegial bodies which perform their composition is expressly specified by the
Constitution. Among these are the Supreme
Court, 13 Civil Service Commission, 14 Commission on Election, 15 Commission on Audit. 16 They perform their
function so long and there is the required quorum, usually a majority of its membership. The Commission on
Appointments may perform its functions and transact it s business even if only ten (10) senators are elected thereto as
long as a quorum exists.
It may also be mentioned that while the Constitution provides for equal membership from the Senate and the House
of Representatives in the Commission on Appointments, the senators on the one hand, and the representatives, on
the other, do not vote separately but jointly, and usually along party lines. Even if Senator Taada would not be able
sit in the Commission on Appointments, the LP-LDP-LABAN would still be represented in the Commission by
congressman Ponce Enrile who has become a member of the LP. On the other hand, there is nothing to stop any of
the political party in order to fill up the two vacancies resulting from this decision.
Assuming that the Constitution intended that there be always twelve (12) senators in the Commission on
Appointments, the instant situation cannot be rectified by the Senate in disregard of the rule on proportional
representation. The election of senator Romulo and Senator Taada as members of the Commission on Appointments
by the LDP majority in the Senate was clearly a violation of Section 18 of Article VI of the 1987 Constitution. Their
nomination and election by the LDP majority by sheer force of superiority in numbers during the Senate organization
meeting of August 27, 1992 was done in grave abuse of discretion. Where power is exercised in a manner inconsistent
with the command of the Constitution, and by reason of numerical strength, knowingly and not merely
inadvertently, said exercise amounts to abuse of authority granted by law and grave abuse of discretion is properly
found to exist.
In the light of the foregoing and on the basis of the applicable rules and jurisprudence on the matter before this
Court, We declare the election of Senator Alberto Romulo and Senator Wigberto Taada as members of the
Commission on Appointments as null and void for being in violation of the rule on proportional representation
under Section 18 of Article VI of the 1987 Constitution of the Philippines. Accordingly, a writ of prohibition is hereby
issued ordering the said respondents Senator Romulo and Senator Taada to desist from assuming, occupying and
discharging the functions of members of the Commission on Appointments; and ordering the respondents Senate
President Neptali Gonzales, in his capacity as ex-officio Chairman of the Commission on Appointments, to desist
from recognizing the membership of the respondent Senators and from allowing and permitting them from sitting
and participating as members of said Commission.
SO ORDERED.
Article VI Section 21
6. Arnault vs Nazareno
G.R. No. L-3820 July 18, 1950
JEAN L. ARNAULT, petitioner,
vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and EUSTAQUIO BALAGTAS, Director of
Prisons,respondents.
OZAETA, J.:
This is an original petition for habeas corpus to relieve the petitioner from his confinement in the New Bilibid Prison to
which he has been committed by virtue of a resolution adopted by the Senate on May 15, 1950, which reads as
follows:
Whereas, Jean L. Arnault refused to reveal the name of the person to whom he gave the P440,000, as well as
answer other pertinent questions related to the said amount; Now, therefore, be it.
Resolved, that for his refusal to reveal the name of the person to whom he gave the P440,000 Jean L. Arnault
be committed to the custody of the Sergeant-at-Arms and imprisoned in the New Bilibid Prison,
Muntinlupa, Rizal, until discharged by further order of the Senate or by the special committee created by
Senate Resolution No. 8, such discharge to be ordered when he shall have purged the contempt by revealing
to the Senate or to the said special committee the name of the person to whom he gave the P440,000, as well
as answer other pertinent questions in connection therewith.
The facts that gave rise to the adoption of said resolution, insofar as pertinent here, may be briefly stated as follows:
In the latter part of October, 1949, the Philippine Government, through the Rural Progress Administration, bought
two estates known as Buenavista and Tambobong for the sums of P4,500,000 and P500,000, respectively. Of the first
sum, P1,000,000 was paid to Ernest H. Burt, a nonresident American, thru his attorney-in-fact in the Philippines, the
Associated Estates, Inc., represented by Jean L. Arnault, for alleged interest of the said Burt in the Buenavista Estate.
The second sum of P500,000 was all paid to the same Ernest H. Burt through his other attorney-in-fact, the North
Manila Development Co., Inc., also represented by Jean L. Arnault, for the alleged interest of the said Burt in the
Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan de Dios Hospital. The Philippine Government held a
25-year lease contract on said estate, with an option to purchase it for P3,000,000 within the same period of 25 years
counted from January 1, 1939. The occupation Republic of the Philippines purported to exercise that option by
tendering to the owner the sum of P3,000,000 and, upon its rejection, by depositing it in court on June 21, 1944,
together with the accrued rentals amounting to P3224,000. Since 1939 the Government has remained in possession of
the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for P5,000,000 to Ernest H. Burt, who
made a down payment of P10,000 only and agreed to pay P5000,000 within one year and the remainder in annual
installments of P500,000 each, with the stipulation that failure on his part to make any of said payments would cause
the forfeiture of his down payment of P10,000 and would entitle the Hospital to rescind to sale to him. Aside from the
down payment of P10,000, Burt has made no other payment on account of the purchase price of said estate.
The original owner of the Tambobong Estate was the Philippine Trust Company. On May 14, 1946, the Philippine
Trust Company sold estate for the sum of P1,200,000 to Ernest H. Burt, who paid P10,000 down and promise to pay
P90,000 within nine months and the balance of P1,100,000 in ten successive installments of P110,000 each. The nine-
month period within which to pay the first installment of P90,000 expired on February 14, 1947, without Burt's
having paid the said or any other amount then or afterwards. On September 4, 1947, the Philippine Trust Company
sold, conveyed, and delivered the Tambobong Estate to the Rural Progress Administration by an absolute deed of
sale in consideration of the sum of P750,000. On February 5, 1948, the Rural Progress Administration made, under
article 1504 of the Civil Code, a notarial demand upon Burt for the resolution and cancellation of his contract of
purchase with the Philippine Trust Company due to his failure to pay the installment of P90,000 within the period of
nine months. Subsequently the Court of First Instance of Rizal ordered the cancellation of Burt's certificate of title and
the issuance of a new one in the name of the Rural Progress Administration, from which order he appealed to the
Supreme Court.1
It was in the face of the antecedents sketched in the last three preceding paragraphs that the Philippine Government,
through the Secretary of Justice as Chairman of the Board of Directors of the Rural Progress Administration and as
Chairman of the Board of Directors of the Philippine National Bank, from which the money was borrowed,
accomplished the purchase of the two estates in the latter part of October, 1949, as stated at the outset.
On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as follows:
RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA AND THE
TAMBOBONG ESTATES DEAL.
WHEREAS, it is reported that the Philippine government, through the Rural Progress Administration, has
bought the Buenavista and the Tambobong Estates for the aggregate sum of five million pesos;
WHEREAS, it is reported that under the decision of the Supreme Court dated October 31, 1949, the
Buenavista Estate could have been bought for three million pesos by virtue of a contract entered into
between the San Juan de Dios Hospital and Philippine Government in 1939;
WHEREAS, it is even alleged that the Philippine Government did not have to purchase the Buenavista
Estate because the occupation government had made tender of payment in the amount of three million
pesos, Japanese currency, which fact is believed sufficient to vest title of Ownership in the Republic of the
Philippines pursuant to decisions of the Supreme Court sustaining the validity of payments made in
Japanese military notes during the occupation;
WHEREAS, it is reported that the Philippine Government did not have to pay a single centavo for the
Tambobong Estate as it was already practically owned by virtue of a deed of sale from the Philippine Trust
Company dated September 3, 194, for seven hundred and fifty thousand pesos, and by virtue of the
recission of the contract through which Ernest H. Burt had an interest in the estate; Now, therefore, be it.
RESOLVED, That a Special Committee, be, as it hereby is, created, composed of five members to be
appointed by the President of the Senate to investigate the Buenavista and Tambobong Estate deals. It shall
be the duty of the said Committee to determine whether the said purchase was honest, valid, and proper
and whether the price involved in the deal was fair and just, the parties responsible therefor, and any other
facts the Committee may deem proper in the premises. Said Committee shall have the power to conduct
public hearings; issue subpoena or subpoena duces tecum to compel the attendance of witnesses or the
production of documents before it; and may require any official or employee of any bureau, office, branch,
subdivision, agency, or instrumentality of the Government to assist or otherwise cooperate with the Special
Committee in the performance of its functions and duties. Said Committee shall submit its report of findings
and recommendations within two weeks from the adoption of this Resolution.
The special committee created by the above resolution called and examined various witnesses, among the most
important of whom was the herein petitioner, Jean L. Arnault. An intriguing question which the committee sought to
resolve was that involved in the apparent unnecessariness and irregularity of the Government's paying to Burt the
total sum of P1,500,000 for his alleged interest of only P20,000 in the two estates, which he seemed to have forfeited
anyway long before October, 1949. The committee sought to determine who were responsible for and who benefited
from the transaction at the expense of the Government.
Arnault testified that two checks payable to Burt aggregating P1,500,000 were delivered to him on the afternoon of
October 29, 1949; that on the same date he opened a new account in the name of Ernest H. Burt with the Philippine
National Bank in which he deposited the two checks aggregating P1,500,000; and that on the same occasion he draw
on said account two checks; one for P500,000, which he transferred to the account of the Associated Agencies, Inc.,
with the Philippine National Bank, and another for P440,000 payable to cash, which he himself cashed. It was the
desire of the committee to determine the ultimate recipient of this sum of P440,000 that gave rise to the present case.
At first the petitioner claimed before the Committee:
Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving the disposition of funds, I take
the position that the transactions were legal, that no laws were being violated, and that all requisites had
been complied with. Here also I acted in a purely functional capacity of representative. I beg to be excused
from making answer which might later be used against me. I have been assured that it is my constitutional
right to refuse to incriminate myself, and I am certain that the Honorable Members of this Committee, who,
I understand, are lawyers, will see the justness of my position.
At as subsequent session of the committee (March 16) Senator De Vera, a member of the committee, interrogated him
as follows:
Senator DE VERA. Now these transactions, according to your own typewritten statement, were legal?
Mr. ARNAULT. I believe so.
Senator DE VERA. And the disposition of that fund involved, according to your own statement, did not
violate any law?
Mr. ARNAULT. I believe so.
xxx xxx xxx
Senator DE VERA. So that if the funds were disposed of in such a manner that no laws were violated, how is
it that when you were asked by the Committee to tell what steps you took to have this money delivered to
Burt, you refused to answer the questions, saying that it would incriminate you?
Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his dealings with other people.
xxx xxx xxx
Senator DE VERA. Are you afraid to state how the money was disposed of because you would be
incriminated, or you would be incriminating somebody?
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose of the money that has been paid
to me as a result of a legal transaction without having to account for any use of it.
But when in the same session the chairman of the committee, Senator Sumulong, interrogated the petitioner, the
latter testified as follows:
The CHAIRMAN. The other check of P440,000 which you also made on October 29, 1949, is payable to cash;
and upon cashing this P440,000 on October 29, 1949, what did you do with that amount?
Mr. ARNAULT. I turned it over to a certain person.
The CHAIRMAN. The whole amount of P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Who was that certain person to whom you delivered these P440,000 which you cashed on
October 29, 1949?
Mr. ARNAULT. I don't remember the name; he was a representative of Burt.
The CHAIRMAN. That representative of Burt to whom you delivered the P440,000 was a Filipino?
Mr. ARNAULT. I don't know.
The CHAIRMAN. You do not remember the name of that representative of Burt to whom you delivered this
big amount of P440,000?
Mr. ARNAULT. I am not sure; I do not remember the name.
The CHAIRMAN. That certain person who represented Burt to whom you delivered the big amount on
October 29, 1949, gave you a receipt for the amount?
Mr. ARNAULT. No.
The CHAIRMAN. Neither did you ask a receipt?
Mr. ARNAULT. I didn't ask.
The CHAIRMAN. And why did you give that certain person, representative of Burt, this big amount of
P440,000 which forms part of the P1- million paid to Burt?
Mr. ARNAULT. Because I have instructions to that effect.
The CHAIRMAN. Who gave you the instruction?
Mr. ARNAULT. Burt.
The CHAIRMAN. Where is the instruction; was that in writing?
Mr. ARNAULT. No.
The CHAIRMAN. By cable?
Mr. ARNAULT. No.
The CHAIRMAN. In what form did you receive that instruction?
Mr. ARNAULT. Verbal instruction.
The CHAIRMAN. When did you receive this verbal instruction from Burt to deliver these P440,000 to a
certain person whose name you do not like to reveal?
Mr. ARNAULT. I have instruction to comply with the request of the person.
The CHAIRMAN. Now, you said that instruction given to you by Burt was verbal?
Mr. ARNAULT. Yes.
The CHAIRMAN. When was that instruction given to you by Burt?
Mr. ARNAULT. Long time ago.
The CHAIRMAN. In what year did Burt give you that verbal instruction; when Burt was still here in the
Philippines?
Mr. ARNAULT. Yes.
The CHAIRMAN. But at that time Burt already knew that he would receive the money?
Mr. ARNAULT. No.
The CHAIRMAN. In what year was that when Burt while he was here in the Philippines gave you the
verbal instruction?
Mr. ARNAULT. In 1946.
The CHAIRMAN. And what has that certain person done for Burt to merit receiving these P440,000?
Mr. ARNAULT. I absolutely do not know.
The CHAIRMAN. You do not know?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Burt did not tell you when he gave you the verbal instruction why that certain person
should receive these P440,000?
Mr. ARNAULT. He did not tell me.
The CHAIRMAN. And Burt also authorized you to give this big amount to that certain person without
receipt?
Mr. ARNAULT. He told me that a certain person would represent him and where could I meet him.
The CHAIRMAN. Did Burt know already that certain person as early as 1946?
Mr. ARNAULT. I presume much before that.
The CHAIRMAN. Did that certain person have any intervention in the prosecution of the two cases
involving the Buenavista and Tambobong estates?
Mr. ARNAULT. Not that I know of.
The CHAIRMAN. Is that certain person related to any high government official?
Mr. ARNAULT. No, I do not know.
The CHAIRMAN. Why can you not tell us the name of that certain person?
Mr. ARNAULT. Because I am not sure of his name; I cannot remember the name.
The CHAIRMAN. When gave that certain person that P440,000 on October 29, 1949, you knew already that
person?
Mr. ARNAULT. Yes, I have seen him several times.
The CHAIRMAN. And the name of that certain person is a Filipino name?
Mr. ARNAULT. I would say Spanish name.
The CHAIRMAN. And how about his Christian name; is it also a Spanish name?
Mr. ARNAULT. I am not sure; I think the initial is J.
The CHAIRMAN. Did he have a middle name?
Mr. ARNAULT. I never knew it.
The CHAIRMAN. And how about his family name which according to your recollection is Spanish; can you
remember the first letter with which that family name begins?
Mr. ARNAULT. S, D or F.
The CHAIRMAN. And what was the last letter of the family name?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Have you seen that person again after you have delivered this P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Several times?
Mr. ARNAULT. Two or three times.
The CHAIRMAN. Here in Manila?
Mr. ARNAULT. Yes.
The CHAIRMAN. And in spite of the fact that you met that person two or three times, you never were able
to find out what was his name?
Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my name; of course, we have
not done business. Lots of people in Manila know me, but they don't know my name, and I don't know
them. They sa{ I am "chiflado" because I don't know their names.
The CHAIRMAN. That certain person is a male or female?
Mr. ARNAULT. He is a male.
The CHAIRMAN. You are sure that he is a male at least?
Mr. ARNAULT. Let us say 38 or 40 years, more or less.
The CHAIRMAN. Can you give us, more or less, a description of that certain person? What is his
complexion: light, dark or light brown?
Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili), but smaller. He walks very
straight, with military bearing.
The CHAIRMAN. Do you know the residence of that certain person to whom you gave the P440,000?
Mr. ARNAULT. No.
The CHAIRMAN. During these frequent times that you met that certain person, you never came to know
his residence?
Mr. ARNAULT. No, because he was coming to the office.
The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. Between 5-2 and 5-6.
On May 15, 1950, the petitioner was haled before the bar of the Senate, which approved and read to him the
following resolution:
Be it resolved by the Senate of the Philippines in Session assembled:
That Jean L. Arnault, now at the bar of the Senate, be arraigned for contempt consisting of contumacious
acts committed by him during the investigation conducted by the Special Committee created by Senate
Resolution No. 8 to probe the Tambobong and Buenavista estates deal of October 21, 1949, and that the
President of the Senate propounded to him the following interrogatories:
1. What excuse have you for persistently refusing to reveal the name of the person to whom you gave the
P440,000 on October 29, 1949, a person whose name it is impossible for you not to remember not only
because of the big amount of money you gave to him without receipt, but also by your own statements you
knew him as early as 1946 when General Ernest H. Burt was still in the Philippines, you made two other
deliveries of money to him without receipt, and the last time you saw him was in December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written answer alleging that the questions were
incriminatory in nature and begging leave to be allowed to stand on his constitutional right not to be compelled to be
a witness against himself. Not satisfied with that written answer Senator Sumulong, over the objection of counsel for
the petitioner, propounded to the latter the following question:
Sen. SUMULONG. During the investigation, when the Committee asked you for the name of that person to
whom you gave the P440,000, you said that you can [could] not remember his name. That was the reason
then for refusing to reveal the name of the person. Now, in the answer that you have just cited, you are
refusing to reveal the name of that person to whom you gave the P440,000 on the ground that your answer
will be self-incriminating. Now, do I understand from you that you are abandoning your former claim that
you cannot remember the name of that person, and that your reason now for your refusal to reveal the name
of that person is that your answer might be self-incriminating? In other words, the question is this: What is
your real reason for refusing to reveal the name of that person to whom you gave the P440,000: that you do
not remember his name or that your answer would be self-incriminating?
xxx xxx xxx
Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure that the accused should not be
required to testify unless he so desires.
The PRESIDENT. It is the duty of the respondent to answer the question. The question is very clear. It does
not incriminate him.
xxx xxx xxx
Mr. ARNAULT. I stand by every statement that I have made before the Senate Committee on the first,
second, and third hearings to which I was made in my letter to this Senate of May 2, 1950, in which I gave all
the reasons that were in my powers to give, as requested. I cannot change anything in those statements that
I made because they represent the best that I can do , to the best of my ability.
The PRESIDENT. You are not answering the question. The answer has nothing to do with the question.
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the reason that you gave during the
investigation for not revealing the name of the person to whom you gave the P440,000 is not the same
reason that you are now alleging because during the investigation you told us: "I do not remember his
name." But, now, you are now saying: "My answer might incriminate me." What is your real position?
Mr. ARNAULT. I have just stated that I stand by my statements that I made at the first, second, and third
hearings. I said that I wanted to be excused from answering the question. I beg to be excused from making
any answer that might be incriminating in nature. However, in this answer, if the detail of not remembering
the name of the person has not been included, it is an oversight.
Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do you remember or not the
name of the person to whom you gave the P440,000?
Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of that person, how can you say that your
answer might be incriminating? If you do not remember his name, you cannot answer the question; so how
could your answer be self-incriminating? What do you say to that?
Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see how to answer those
questions. That is why I asked for a lawyer, so he can help me. I have no means of knowing what the
situation is about. I have been in jail 13 days without communication with the outside. How could I answer
the question? I have no knowledge of legal procedure or rule, of which I am completely ignorant.
xxx xxx xxx
Sen. SUMULONG. Mr. President, I ask that the question be answered.
The PRESIDENT. The witness is ordered to answer the question. It is very clear. It does not incriminate the
witness.
xxx xxx xxx
Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg to be excused from making
further answer, please.
Sen. SUMULONG. In that mimeographed letter that you sent addressed to the President of the Senate,
dated May 2, 1950, you stated there that you cannot reveal the name of the person to whom you gave the
P440,000 because if he is a public official you might render yourself liable for prosecution for bribery, and
that if he is a private individual you might render yourself liable for prosecution for slander. Why did you
make those statements when you cannot even tell us whether that person to whom you gave the P440,000 is
a public official or a private individual ? We are giving you this chance to convince the Senate that all these
allegations of yours that your answers might incriminate you are given by you honestly or you are just
trying to make a pretext for not revealing the information desired by the Senate.
The PRESIDENT. You are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question. (The question is restated and explained.)
Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and signed it. That is all I can say
how I stand about this letter. I have no knowledge myself enough to write such a letter, so I had to secure
the help of a lawyer to help me in my period of distress.
In that same session of the Senate before which the petitioner was called to show cause why he should not be
adjudged guilty of contempt of the Senate, Senator Sumulong propounded to the petitioner questions tending to
elicit information from him as to the identity of the person to whom he delivered the P440,000; but the petitioner
refused to reveal it by saying that he did not remember. The President of the Senate then propounded to him various
questions concerning his past activities dating as far back as when witness was seven years of age and ending as
recently as the post liberation period, all of which questions the witness answered satisfactorily. In view thereof, the
President of the Senate also made an attempt to illicit the desired information from the witness, as follows:
The PRESIDENT. Now I am convinced that you have a good memory. Answer: Did you deliver the
P440,000 as a gift, or of any consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to that person, that is all.
The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
The PRESIDENT. In spite of that, you do not have the least remembrance of the name of that person?
Mr. ARNAULT. I cannot remember.
The PRESIDENT. How is it that you do not remember events that happened a short time ago and, on the
other hand, you remember events that occurred during your childhood?
Mr. ARNAULT. I cannot explain.
The Senate then deliberated and adopted the resolution of May 15 hereinabove quoted whereby the petitioner was
committed to the custody of the Sergeant-at-Arms and imprisoned until "he shall have purged the contempt by
revealing to the Senate or to the aforesaid Special Committee the name of the person to whom he gave the P440,000,
as well as answer other pertinent questions in connection therewith."
The Senate also adopted on the same date another resolution (No. 16) , to wit:
That the Special Committee created by Senate Resolution No. 8 be empowered and directed to continue its
investigation of the Tambobong and Buenavista Estates deal of October 21, 1949, more particularly to
continue the examination of Jean L. Arnault regarding the name of the person to whom he gave the P440,000
and other matters related therewith.
The first session of the Second Congress was adjourned at midnight on May 18, 1950.
The case was argued twice before us. We have given its earnest and prolonged consideration because it is the first of
its kind to arise since the Constitution of the Republic of the Philippines was adopted. For the first time this Court is
called upon to define the power of either House of Congress to punish a person not a member for contempt; and we
are fully conscious that our pronouncements here will set an important precedent for the future guidance of all
concerned.
Before discussing the specific issues raised by the parties, we deem it necessary to lay down the general principles of
law which form the background of those issues.
Patterned after the American system, our Constitution vests the powers of the Government in three independent but
coordinate Departments Legislative, Executive, and Judicial. The legislative power is vested in the Congress,
which consists of the Senate and the House of Representatives. (Section 1, Article VI.) Each house may determine the
rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its
Members, expel a Member. (Section 10, Article VI.) The judicial power is vested in the Supreme Court and in such
inferior courts as may be established by law. (Section 1, Article VIII.) Like the Constitution of the United States, ours
does not contain an express provision empowering either of the two Houses of Congress to punish nonmembers for
contempt. It may also be noted that whereas in the United States the legislative power is shared by and between the
Congress of the United States, on the one hand, and the respective legislatures of the different States, on the other
the powers not delegated to the United States by the Constitution nor prohibited by it to States being reserved to the
States, respectively, or to the people in the Philippines, the legislative power is vested in the Congress of the
Philippines alone. It may therefore be said that the Congress of the Philippines has a wider range of legislative field
than the Congress of the United States or any State Legislature. Our form of Government being patterned after the
American system the framers of our Constitution having drawn largely from American institutions and practices
we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our
Constitution, as we have done in other cases in the past. 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. (McGrain vs.Daugherty, 273 U.S., 135; 71 L. ed.,
580; 50 A.L R., 1.) The fact that the Constitution expressly gives to Congress the power to punish its Members for
disorderly behavior, does not by necessary implication exclude the power to punish for contempt any other person.
(Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed., 242.) But no person can be punished for contumacy as a witness before
either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire.
(Kilbourn vs. Thompson, 26 L. ed., 377.).
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.
In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to investigate the
Buenavista and Tambobong Estates deal is not challenged by the petitioner; and we entertain no doubt as to the
Senate's authority to do so and as to the validity of Resolution No. 8 hereinabove quoted. The transaction involved a
questionable and allegedly unnecessary and irregular expenditure of no less than P5,000,000 of public funds, of
which Congress is the constitutional guardian. It also involved government agencies created by Congress to regulate
or even abolish. As a result of the yet uncompleted investigation, the investigating committee has recommended and
the Senate approved three bills (1) prohibiting the Secretary of Justice or any other department head from
discharging functions and exercising powers other than those attached to his own office, without ]previous
congressional authorization; (2) prohibiting brothers and near relatives of any President of the Philippines from
intervening directly or indirectly and in whatever capacity in transactions in which the Government is a party, more
particularly where the decision lies in the hands of executive or administrative officers who are appointees of the
President; and (3) providing that purchases of the Rural Progress Administration of big landed estates at a price of
P100,000 or more, shall not become effective without previous congressional confirmation. 2
We shall now consider and pass upon each of the questions raised by the petitioner in support of his contention that
his commitment is unlawful.
First He contends that the Senate has no power to punish him for contempt for refusing to reveal the name of the
person to whom he gave the P440,000, because such information is immaterial to, and will not serve, any intended or
purported legislation and his refusal to answer the question has not embarrassed, obstructed, or impeded the
legislative process. It is argued that since the investigating committee has already rendered its report and has made
all its recommendations as to what legislative measures should be taken pursuant to its findings, there is no necessity
to force the petitioner to give the information desired other than that mentioned in its report, to wit: "In justice to
Judge Quirino and to Secretary Nepomuceno, this atmosphere of suspicion that now pervades the public mind must
be dissipated, and it can only be done if appropriate steps are taken by the Senate to compel Arnault to stop
pretending that he cannot remember the name of the person to whom he gave the P440,000 and answer the questions
which will definitely establish the identity of that person . . ." Senator Sumulong, Chairman of the Committee, who
appeared and argued the case for the respondents, denied that that was the only purpose of the Senate in seeking the
information from the witness. He said that the investigation had not been completed, because, due to the contumacy
of the witness, his committee had not yet determined the parties responsible for the anomalous transaction as
required by Resolution No. 8; that, by Resolution No. 16, his committee was empowered and directed to continue its
investigation, more particularly to continue its examination of the witness regarding the name of the person to whom
he gave the P440,000 and other matters related therewith; that the bills recommended by his committee had not been
approved by the House and might not be approved pending the completion of the investigation; and that those bills
were not necessarily all the measures that Congress might deem it necessary to pass after the investigation is
finished.
Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, we think the
investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject
of course to his constitutional right against self-incrimination. The inquiry, to be within the jurisdiction of the
legislative body to make, must be material or necessary to the exercise of a power in it vested by the Constitution,
such as to legislate, or to expel a Member; and every question which the investigator is empowered to coerce a
witness to answer must be material or pertinent to the subject of the inquiry or investigation. So a witness may not be
coerced to answer a question that obviously has no relation to the subject of the inquiry. But from this it does not
follow that every question that may be propounded to a witness must be material to any proposed or possible
legislation. In other words, the materiality of the question must be determined by its direct relation to any proposed
or possible legislation. The reason is, that the necessity or lack of necessity for legislative action and the form and
character of the action itself are determined by the sum total of the information to be gathered as a result of the
investigation, and not by a fraction of such information elicited from a single question.
In this connection, it is suggested by counsel for the respondents that the power of the Court is limited to
determining whether the legislative body has jurisdiction to institute the inquiry or investigation; that once that
jurisdiction is conceded, this Court cannot control the exercise of that jurisdiction; and it is insinuated, that the ruling
of the Senate on the materiality of the question propounded to the witness is not subject to review by this Court
under the principle of the separation of powers. We have to qualify this proposition. As was said by the Court of
Appeals of New York: "We are bound to presume that the action of the legislative body was with a legitimate object if
it is capable of being so construed, and we have no right to assume that the contrary was intended." (People ex
rel.McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the Supreme Court of the
United States in the said case of McGrain vs. Daugherty, it is necessary deduction from the decision in Re Chapman,
41 L. ed., 1154, that where the questions are not pertinent to the matter under inquiry a witness rightfully may refuse to
answer. So we are of the opinion that where the alleged immateriality of the information sought by the legislative
body from a witness is relied upon to contest its jurisdiction, the court is in duty bound to pass upon the contention.
The fact that the legislative body has jurisdiction or the power to make the inquiry would not preclude judicial
intervention to correct a clear abuse of discretion in the exercise of that power.
Applying the criterion laid down in the last two preceding paragraphs to the resolution of the issue under
consideration, we find that the question for the refusal to answer which the petitioner was held in contempt by the
Senate is pertinent to the matter under inquiry. In fact, this is not and cannot be disputed. Senate Resolution No. 8,
the validity of which is not challenged by the petitioner, requires the Special Committee, among other things, to
determine the parties responsible for the Buenavista and Tambobong estates deal, and it is obvious that the name of
the person to whom the witness gave the P440,000 involved in said deal is pertinent to that determination it is in
fact the very thing sought to be determined. The contention is not that the question is impertinent to the subject of the
inquiry but that it has no relation or materiality to any proposed legislation. We have already indicated that it is not
necessary for the legislative body to show that every question propounded to a witness is material to any proposed
or possible legislation; what is required is that is that it be pertinent to the matter under inquiry.
It is said that the Senate has already approved the three bills recommended by the Committee as a result of the
uncompleted investigation and that there is no need for it to know the name of the person to whom the witness gave
the P440,000. But aside from the fact that those bills have not yet been approved by the lower house and by the
President and that they may be withdrawn or modified if after the inquiry is completed they should be found
unnecessary or inadequate, there is nothing to prevent the Congress from approving other measures it may deem
necessary after completing the investigation. We are not called upon, nor is it within our province, to determine or
imagine what those measures may be. And our inability to do so is no reason for overruling the question
propounded by the Senate to the witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here. The inquiry there in question was conducted
under a resolution of the Senate and related to charges, published in the press, that senators were yielding to corrupt
influences in considering a tariff bill then before the Senate and were speculating in stocks the value of which would
be affected by pending amendments to the bill. Chapman, a member of a firm of stock brokers dealing in the stock of
the American Sugar Refining Company, appeared before the committee in response to a subpoena and asked, among
others, the following questions:
Had the firm, during the month of March, 1894, bought or sold any stock or securities, known as sugar
stocks, for or in the interest, directly or indirectly, of any United Senate senator?
Was the said firm at that time carrying any sugar stock for the benefit of, or in the interest, directly or
indirectly, of any United Senate senator?
He refused to answer the questions and was prosecuted under an Act of Congress for contempt of the Senate. Upon
being convicted and sent to jail he petitioned the Supreme Court of the United States for a writ of habeas corpus. One
of the questions decided by the Supreme Court of the United States in that case was whether the committee had the
right to compel the witness to answer said questions, and the Court held that the committee did have such right,
saying:
The questions were undoubtedly pertinent to the subject-matter of the inquiry. The resolution directed the
committee to inquire whether any senator has been, or is, speculating in what are known as sugar stocks
during the consideration of the tariff bill now before the Senate." What the Senate might or might not do upon
the facts when ascertained, we cannot say, nor are we called upon to inquire whether such ventures might be
defensible, as contended in argument, but is plain that negative answers would have cleared that body of
what the Senate regarded as offensive imputations, while affirmative answers might have led to further
action on the part of the Senate within its constitutional powers. (Emphasis supplied.)
It may be contended that the determination of the parties responsible for the deal is incumbent upon the judicial
rather than upon the legislative branch. But we think there is no basis in fact or in law for such assumption. The
petitioner has not challenged the validity of Senate Resolution No. 8, and that resolution expressly requires the
committee to determine the parties responsible for the deal. We are bound to presume that the Senate has acted in the
due performance of its constitutional function in instituting the inquiry, if the act is capable of being so construed. On
the other hand, there is no suggestion that the judiciary has instituted an inquiry to determine the parties responsible
for the deal. Under the circumstances of the case, it appearing that the questioned transaction was affected by the
head of the Department of Justice himself, it is not reasonable to expect that the Fiscal or the Court of First Instance of
Manila will take the initiative to investigate and prosecute the parties responsible for the deal until and unless the
Senate shall determined those parties are and shall taken such measures as may be within its competence to take the
redress the wrong that may have been committed against the people as a result of the transaction. As we have said,
the transaction involved no less than P5,000,000 of public funds. That certainly is a matter of a public concern which
it is the duty of the constitutional guardian of the treasury to investigate.
If the subject of investigation before the committee is within the range of legitimate legislative inquiry and the
proposed testimony of the witness called relates to that subject, obedience, to its process may be enforced by the committee
by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40 Ann. Cas. [1916 B.], 1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by the petitioner, is not applicable here.
In that case the inquiry instituted by the House of Representatives of the United States related to a private real-estate
pool or partnership in the District of Columbia. Jay Cook and Company had had an interest in the pool but become
bankrupts, and their estate was in course of administration in a federal bankruptcy court in Pennsylvania. The
United States was one of their creditors. The trustee in the bankruptcy proceeding had effected a settlement of the
bankrupts' interest in the pool, and of course his action was subject to examination and approval or disapproval by
the bankruptcy court. Some of the creditors, including the United States, were dissatisfied with the settlement. The
resolution of the House directed the Committee "to inquire into the nature and history of said real-estate pool and the
character of said settlement, with the amount of property involve, in which Jay Cooke and Co. were interested, and
the amount paid or to be paid in said settlement, with power to send for persons and papers, and report to this
House." The Supreme Court of the United States, speaking thru Mr. Justice Miller, pointed out that the resolution
contained no suggestion of contemplated legislation; that the matter was one in respect of which no valid legislation
could be had; that the bankrupts' estate and the trustee's settlement were still pending in the bankruptcy court; and
that the United States and other creditors were free to press their claims in that proceeding. And on these grounds
the court held that in undertaking the investigation "the House of Representatives not only exceeded the limit of its
own authority, but assumed a power which could only be properly exercised by another branch of the government,
because the power was in its nature clearly judicial." The principles announced and applied in that case are: that
neither House of Congress possesses a "general power of making inquiry into the private affairs of the citizen"; that
the power actually possessed is limited to inquires relating to matters of which the particular House has jurisdiction,
and in respect of which it rightfully may take other action; that if the inquiry relates to a matter wherein relief or
redress could be had only by judicial proceeding, it is not within the range of this power , but must be left to the
court, conformably to the constitutional separation of government powers.
That case differs from the present case in two important respects: (1) There the court found that the subject of the
inquiry, which related to a private real-estate pool or partnership, was not within the jurisdiction of either House of
Congress; while here if it is not disputed that the subject of the inquiry, which relates to a transaction involving a
questionable expenditure by the Government of P5,000,000 of public funds, is within the jurisdiction of the Senate, (2)
There the claim of the Government as a creditor of Jay Cooke and Company, which had had an interest in the pool,
was pending adjudication by the court; while here the interposition of the judicial power on the subject of the inquiry
cannot be expected, as we have pointed out above, until after the Senate shall have determined who the parties
responsible are and shall have taken such measures as may be within its competence to take to redress the wrong that
may have been committed against the people as a result of the transaction.
It is interesting to note that the decision in the case of Killbourn vs. Thompson has evoked strong criticisms from legal
scholars. (See Potts, Power of Legislative Bodies to Punish for Contempt [1926], 74 U. Pa. L. Rev., 692-699; James L. Land
is, Constitutional Limitations on the Congressional Power of Investigation [1926], 40 Harvard L. Rev., 153, 154, 214-220.)
We quoted the following from Professor Land is' criticism: "Mr. Justice Miller saw the case purely as an attempt by
the House to secure to the Government certain priority rights as creditor of the bankrupt concern. To him it assumed
the character of a lawsuit between the Government and Jay Cooke and Co., with the Government, acting through the
House, attempting to override the orderliness of established procedure and thereby prefer a creditors' bill not before
the courts but before Congress. That bankruptcy proceedings had already been instituted against Jay Cooke and Co.,
in a federal court gave added impetus to such a conception. The House was seeking to oust a court of prior acquired
jurisdiction by an extraordinary and unwarranted assumption of "judicial power"! The broader aspect of the
investigation had not been disclosed to the Court. That Jay Cooke and Co.'s indebtedness and the particular funds in
question were only part of the great administrative problem connected with the use and disposition of public monies,
that the particular failure was of consequence mainly in relation to the security demanded for all government
deposits, that the facts connected with one such default revealed the possibility of other and greater
maladministration, such considerations had not been put before the Court. Nor had it been acquainted with the
every-day nature of the particular investigation and the powers there exerted by the House, powers whose exercise
was customary and familiar in legislative practice. Instead of assuming the character of an extraordinary judicial
proceeding, the inquiry, place in its proper background, should have been regarded as a normal and customary part
of the legislative process. Detailed definiteness of legislative purpose was thus made the demand of the court in
Killbourn vs. Thompson. But investigators cannot foretell the results that may be achieved. The power of Congress to
exercise control over a real-estate pool is not a matter for abstract speculation but one to be determined only after an
exhaustive examination of the problem. Relationship, and not their possibilities, determine the extent of
congressional power. Constitutionality depends upon such disclosures. Their presence, whether determinative of
legislative or judicial power, cannot be relegated to guesswork. Neither Congress nor the Court can predict, prior to
the event, the result of the investigation."
The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S., 521; 61. ed., 881. The question there was
whether the House of Representatives exceeded its power in punishing, as for contempt of its authority, the District
Attorney of the Southern District of New York, who had written, published, and sent to the chairman of one of its
committees an ill-tempered and irritating letter respecting the action and purposes of the committee in interfering
with the investigation by the grand jury of alleged illegal activities of a member of the House of Representatives.
Power to make inquires and obtain evidence by compulsory process was not involved. The court recognized
distinctly that the House of Representatives had implied power to punish a person not a member for contempt, but
held that its action in this instance was without constitutional justification. The decision was put on the ground that
the letter, while offensive and vexatious, was not calculated or likely to affect the House in any of its proceedings or
in the exercise of any of its functions. This brief statement of the facts and the issues decided in that case is sufficient
to show the inapplicability thereof to the present case. There the contempt involved consisted in the district attorney's
writing to the chairman of the committee an offensive and vexatious letter, while here the contempt involved consists
in the refusal of the witness to answer questions pertinent to the subject of an inquiry which the Senate has the power
and jurisdiction to make . But in that case, it was recognized that the House of Representatives has implied power to
punish a person not a member of contempt. In that respect the case is applicable here in favor of the Senate's (and not
of the Petitioner's ) contention.
Second. It is next contended for the petitioner that the Senate lacks authority to commit him for contempt for a term
beyond its period of legislative session, which ended on May 18, 1950. This contention is based on the opinion of Mr.
Justice Malcolm, concurred in by Justices Street and Villa-Real, in the case of Lopez vs. De los Reyes (1930), 55 Phil., 170.
In that case it appears that on October 23, 1929, Candido Lopez assaulted a member of the House of Representatives
while the latter was going to the hall of the House of Representatives to attend the session which was then about to
begin, as a result of which assault said representative was unable to attend the sessions on that day and those of the
two days next following by reason of the threats which Candido Lopez made against him. By the resolution of the
House adopted November 6, 1929, Lopez was declared guilty of contempt of the House of Representatives and
ordered punished by confinement in Bilibid Prison for a period of twenty-four hours. That resolution was not
complied with because the session of the House of Representatives adjourned at midnight on November 8, 1929, and
was reiterated at the next session on September 16, 1930. Lopez was subsequently arrested, whereupon he applied for
the writ of habeas corpus in the Court of First Instance of Manila, which denied the application. Upon appeal to the
Supreme Court, six justices voted to grant the writ: Justice Malcolm, Street, and Villa-real, on the ground that the
term of imprisonment meted out to the petitioner could not legally be extended beyond the session of the body in
which the contempt occurred; and Justices Johns, Villamor, and Ostrand, on the ground that the Philippine
Legislature had no power to punish for contempt because it was a creature merely of an Act of the Congress of the
United States and not of a Constitution adopted by the people. Chief Justice Avancea, Justice Johnson, and Justice
Romualdez wrote separate opinions, concurring with Justice Malcolm, Street, and Villa-Real, that the Legislature had
inherent power to punish for contempt but dissenting from the opinion that the order of commitment could only be
executed during the particular session in which the act of contempt was committed.
Thus, on the question under consideration, the Court was equally divided and no decisive pronouncement was
made. The opinion of Mr. Justice Malcolm is based mainly on the following passage in the case of
Anderson vs.Dunn, supra:
And although the legislative power continues perpetual, the legislative body ceases to exist on the moment
of its adjournment or periodical dissolution. It follows that imprisonment must terminate with that
adjournment.
as well as on the following quotation from Marshall vs. Gordon, supra:
And the essential nature of the power also makes clear the cogency and application of the two limitations
which were expressly pointed out in Anderson vs. Dunn, supra, that is, that the power even when applied to
subjects which justified its exercise is limited to imprisonment and such imprisonment may not be extended
beyond the session of the body in which the contempt occurred.
Interpreting the above quotations, Chief Justice Avancea held:
From this doctrine it follows, in my judgement, that the imposition of the penalty is limited to the existence
of the legislative body, which ceases to function upon its final periodical dissolution. The doctrine refers to
its existence and not to any particular session thereof. This must be so, inasmuch as the basis of the power to
impose such penalty is the right which the Legislature has to self-preservation, and which right is
enforceable during the existence of the legislative body. Many causes might be conceived to constitute
contempt to the Legislature, which would continue to be a menace to its preservation during the existence of
the legislative body against which contempt was committed.
If the basis of the power of the legislature to punish for contempt exists while the legislative body exercising
it is in session, then that power and the exercise thereof must perforce continue until the final adjournment
and the election of its successor.
Mr. Justice Johnson's more elaborate opinion, supported by quotations from Cooley's Constitutional Limitations and
from Jefferson's Manual, is to the same effect. Mr. Justice Romualdez said: "In my opinion, where as in the case before
us, the members composing the legislative body against which the contempt was committed have not yet completed
their three-year term, the House may take action against the petitioner herein."
We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon relied upon by Justice Malcolm
are obiter dicta. Anderson vs. Dunn was an action of trespass against the Sergeant-at-Arms of the House of
Representatives of the United States for assault and battery and false imprisonment. The plaintiff had been arrested
for contempt of the House, brought before the bar of the House, and reprimanded by the Speaker, and then
discharged from custody. The question as to the duration of the penalty was not involved in that case. The question
there was "whether the House of Representatives can take cognizance of contempt committed against themselves,
under any circumstances." The court there held that the House of Representatives had the power to punish for
contempt, and affirmed the judgment of the lower court in favor of the defendant. In Marshall vs. Gordon, the
question presented was whether the House had the power under the Constitution to deal with the conduct of the
district attorney in writing a vexatious letter as a contempt of its authority, and to inflict punishment upon the writer
for such contempt as a matter of legislative power. The court held that the House had no such power because the
writing of the letter did not obstruct the performance of legislative duty and did not endanger the preservation of the
power of the House to carry out its legislative authority. Upon that ground alone, and not because the House had
adjourned, the court ordered the discharge of the petitioner from custody.
The case where the question was squarely decided is McGrain vs. Daugherty, supra. There it appears that the Senate
had adopted a resolution authorizing and directing a select committee of five senators to investigate various charges
of misfeasance and nonfeasance in the Department of Justice after Attorney General Harry M. Daugherty became its
supervising head. In the course of the investigation the committee caused to be served on Mally S. Daugherty,
brother of Harry M. Daugherty and president of the Midland National Bank of Washington Court House, Ohio, a
subpoena commanding him to appear before it for the purpose of giving testimony relating to the subject under
consideration. The witness failed to appear without offering any excuse for his failure. The committee reported the
matter to the Senate and the latter adopted a resolution, "That the President of the Senate pro tempore issue his
warrant commanding the Sergeant-at-Arms or his deputy to take into custody the body of the said M.S. Daugherty
wherever found, and to bring the said M.S. Daugherty before the bar of the Senate, then and there to answer such
questions pertinent to the matter under inquiry as the Senate may order the President of the Senate pro tempore to
propound; and to keep the said M.S. Daugherty in custody to await the further order of the Senate." Upon being
arrested, the witness petitioned the federal court in Cincinnati for a writ of habeas corpus. The federal court granted
the writ and discharged the witness on the ground that the Senate, in directing the investigation and in ordering the
arrest, exceeded its power under the Constitution. Upon appeal to the Supreme Court of the United States, one of the
contentions of the witness was that the case ha become moot because the investigation was ordered and the
committee was appointed during the Sixty-eighth Congress, which expired on March 4, 1926. In overruling the
contention, the court said:
. . . The resolution ordering the investigation in terms limited the committee's authority to the period of the
Sixty-eighth Congress; but this apparently was changed by a later and amendatory resolution authorizing
the committee to sit at such times and places as it might deem advisable or necessary. It is said in Jefferson's
Manual: "Neither House can continue any portion of itself in any parliamentary function beyond the end of
the session without the consent of the other two branches. When done, it is by a bill constituting them
commissioners for the particular purpose." But the context shows that the reference is to the two houses of
Parliament when adjourned by prorogation or dissolution by the King. The rule may be the same with the
House of Representatives whose members are all elected for the period of a single Congress: but it cannot
well be the same with the Senate, which is a continuing body whose members are elected for a term of six
years and so divided into classes that the seats of one third only become vacant at the end of each Congress,
two thirds always continuing into the next Congress, save as vacancies may occur through death or
resignation.
Mr. Hinds in his collection of precedents, says: "The Senate, as a continuing body, may continue its
committees through the recess following the expiration of a Congress;" and, after quoting the above
statement from Jefferson's Manual, he says: "The Senate, however being a continuing body, gives authority
to its committees during the recess after the expiration of a Congress." So far as we are advised the select
committee having this investigation in charge has neither made a final report nor been discharged; nor has
been continued by an affirmative order. Apparently its activities have been suspended pending the decision
of this case. But, be this as it may, it is certain that the committee may be continued or revived now by
motion to that effect, and if, continued or revived, will have all its original powers. This being so, and the
Senate being a continuing body, the case cannot be said to have become moot in the ordinary sense. The
situation is measurably like that in Southern P. Terminal Co. vs. Interstate Commerce Commission, 219 U. S.,
498, 514-516; 55 L. ed., 310, 315, 316; 31 Sup. Ct. Rep., 279, where it was held that a suit to enjoin the
enforcement of an order of the Interstate Commerce Commission did not become moot through the
expiration of the order where it was capable of repetition by the Commission and was a matter of public
interest. Our judgment may yet be carried into effect and the investigation proceeded with from the point at
which it apparently was interrupted by reason of the habeas corpus proceedings. In these circumstances we
think a judgment should be rendered as was done in the case cited.
What has been said requires that the final order in the District Court discharging the witness from custody
be reversed.
Like the Senate of the United States , the Senate of the Philippines is a continuing body whose members are elected
for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds
always continuing into the next Congress save as vacancies may occur thru death or resignation. Members of the
House of Representatives are all elected for a term of four years; so that the term of every Congress is four years. The
Second Congress of the Philippines was constituted on December 30, 1949, and will expire on December 30, 1953. The
resolution of the Senate committing the Petitioner was adopted during the first session of the Second Congress,
which began on the fourth Monday of January and ended in May 18, 1950.
Had said resolution of commitment been adopted by the House of Representatives, we think it could be enforced
until the final adjournment of the last session of the Second Congress in 1953. We find no sound reason to limit the
power of the legislative body to punish for contempt to the end of every session and not to the end of the last session
terminating the existence of that body. The very reason for the exercise of the power to punish for contempt is to
enable the legislative body to perform its constitutional function without impediment or obstruction. Legislative
functions may be and in practice are performed during recess by duly constituted committees charged with the duty
of performing investigations or conducting hearing relative to any proposed legislation. To deny to such committees
the power of inquiry with process to enforce it would be to defeat the very purpose for which that the power is
recognized in the legislative body as an essential and appropriate auxiliary to is legislative function. It is but logical
to say that the power of self-preservation is coexistent with the life to be preserved.
But the resolution of commitment here in question was adopted by the Senate, which is a continuing body and which
does not cease exist upon the periodical dissolution of the Congress or of the House of Representatives. There is no
limit as to time to the Senate's power to punish for contempt in cases where that power may constitutionally be
exerted as in the present case.
Mere reflection upon the situation at hand convinces us of the soundness of this proposition. The Senate has ordered
an investigation of the Buenavista and Tambobong estates deal, which we have found it is within its competence to
make. That investigation has not been completed because of the refusal of the petitioner as a witness to answer
certain questions pertinent to the subject of the inquiry. The Senate has empowered the committee to continue the
investigation during the recess. By refusing to answer the questions, the witness has obstructed the performance by
the Senate of its legislative function, and the Senate has the power to remove the obstruction by compelling the
witness to answer the questions thru restraint of his liberty until he shall have answered them. That power subsists as
long as the Senate, which is a continuing body, persists in performing the particular legislative function involved. To
hold that it may punish the witness for contempt only during the session in which investigation was begun, would be
to recognize the right of the Senate to perform its function but at the same time to deny to it an essential and
appropriate means for its performance. Aside from this, if we should hold that the power to punish for contempt
terminates upon the adjournment of the session, the Senate would have to resume the investigation at the next and
succeeding sessions and repeat the contempt proceedings against the witness until the investigation is completed-an
absurd, unnecessary, and vexatious procedure, which should be avoided.
As against the foregoing conclusion it is argued for the petitioner that the power may be abusively and oppressively
exerted by the Senate which might keep the witness in prison for life. But we must assume that the Senate will not be
disposed to exert the power beyond its proper bounds. And if, contrary to this assumption, proper limitations are
disregarded, the portals of this Court are always open to those whose rights might thus be transgressed.
Third. Lastly, the petitioner invokes the privilege against self-incrimination. He contends that he would incriminate
himself if he should reveal the name of the person to whom he gave the P440,000 if that person be a public official be
(witness) might be accused of bribery, and if that person be a private individual the latter might accuse him of oral
defamation.
The ground upon which the witness' claim is based is too shaky, in firm, and slippery to afford him safety. At first he
told the Committee that the transactions were legal, that no laws were violated, and that all requisites had been
replied with; but at the time he begged to be excused from making answers "which might later be used against me."
A little later he explained that although the transactions were legal he refused to answer questions concerning them
"because it violates the right of a citizen to privacy in his dealings with other people . . . I simply stand on my
privilege to dispose of the money that has been paid to me as a result of a legal transaction without having to account
for the use of it." But after being apparently convinced by the Committee that his position was untenable, the witness
testified that, without securing any receipt, he turned over the P440,000 to a certain person, a representative of Burt,
in compliance with Burt's verbal instruction made in 1946; that as far as he know, that certain person had nothing to
do with the negotiations for the settlement of the Buenavista and Tambobong cases; that he had seen that person
several times before he gave him the P440,000 on October 29, 1949, and that since then he had seen him again two or
three times, the last time being in December, 1949, in Manila; that the person was a male, 39 to 40 years of age,
between 5 feet, 2 inches and 5 feet, 6 inches in height. Butt the witness would not reveal the name of that person on
these pretexts: " I don't remember the name; he was a representative of Burt." "I am not sure; I don't remember the
name."
We are satisfied that those answers of the witness to the important question, what is the name of that person to
whom you gave the P440,000? were obviously false. His insistent claim before the bar of the Senate that if he should
reveal the name he would incriminate himself, necessarily implied that he knew the name. Moreover, it is
unbelievable that he gave the P440,000 to a person to him unknown.
"Testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable as contempt,
assuming that a refusal to testify would be so punishable." (12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In the case of
Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was called to testify before a grand jury engaged in
investigating a charge of gambling against six other men. After stating that he was sitting at a table with said men
when they were arrested, he refused to answer two questions, claiming so to do might tend to incriminate him: (1)
"Was there a game of cards being played on this particular evening at the table at which you are sitting?" (2) "Was
there a game of cards being played at another table at this time?" The foreman of the grand jury reported the matter
to the judge, who ruled "that each and all of said questions are proper and that the answers thereto would not tend to
incriminate the witness." Mason was again called and refused to answer the first question propounded to him, but,
half yielding to frustration, he said in response to the second question: "I don't know." In affirming the conviction for
contempt, the Supreme Court of the United States among other things said:
In the present case, the witness certainly were not relieved from answering merely because they declared
that so to do might incriminate them. The wisdom of the rule in this regard is well illustrated by the
enforced answer, "I don't know ," given by Mason to the second question, after he had refused to reply
under a claim of constitutional privilege.
Since according to the witness himself the transaction was legal, and that he gave the P440,000 to a representative of
Burt in compliance with the latter's verbal instruction, we find no basis upon which to sustain his claim that to reveal
the name of that person might incriminate him. There is no conflict of authorities on the applicable rule, to wit:
Generally, the question whether testimony is privileged is for the determination of the Court. At least, it is
not enough for the witness to say that the answer will incriminate him. as he is not the sole judge of his
liability. The danger of self-incrimination must appear reasonable and real to the court, from all the
circumstances, and from the whole case, as well as from his general conception of the relations of the
witness. Upon the facts thus developed, it is the province of the court to determine whether a direct answer
to a question may criminate or not. . . . The fact that the testimony of a witness may tend to show that he has
violated the law is not sufficient to entitle him to claim the protection of the constitutional provision against
self-incrimination, unless he is at the same time liable to prosecution and punishment for such violation. The
witness cannot assert his privilege by reason of some fanciful excuse, for protection against an imaginary
danger, or to secure immunity to a third person. ( 3 Wharton's Criminal Evidence, 11th ed., secs. 1135,1136.)
It is the province of the trial judge to determine from all the facts and circumstances of the case whether the
witness is justified in refusing to answer. (People vs. Gonzo, 23 N.E. [2d], 210 [Ill. App., 1939].) A witness is
not relieved from answering merely on his own declaration that an answer might incriminate him, but
rather it is for the trial judge to decide that question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.)
As against witness's inconsistent and unjustified claim to a constitutional right, is his clear duty as a citizen to give
frank, sincere, and truthful testimony before a competent authority. The state has the right to exact fulfillment of a
citizen's obligation, consistent of course with his right under the Constitution. The witness in this case has been
vociferous and militant in claiming constitutional rights and privileges but patently recreant to his duties and
obligations to the Government which protects those rights under the law. When a specific right and a specific
obligation conflict with each other, and one is doubtful or uncertain while the other is clear and imperative, the
former must give way to the latter. The right to life is one of the most sacred that the citizen may claim, and yet the
state may deprive him of it if he violates his corresponding obligation to respect the life of others. As Mr. Justice
Johnson said in Anderson vs. Dunn: "The wretch beneath the gallows may repine at the fate which awaits him, and
yet it is not certain that the laws under which he suffers were made for the security." Paraphrasing and applying that
pronouncement here, the petitioner may not relish the restraint of his liberty pending the fulfillment by him of his
duty, but it is no less certain that the laws under which his liberty is restrained were made for his welfare.
From all the foregoing, it follows that the petition must be denied, and it is so ordered, with costs.
Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.
Separate Opinions
TUASON, J., dissenting:
The estates deal which gave the petitioner's examination by a committee of the Senate was one that aroused popular
indignation as few cases of graft and corruption have. The investigation was greeted with spontaneous outburst of
applause by an outraged citizenry, and the Senate was rightly commended for making the lead in getting at the
bottom of an infamous transaction.
All the more necessary it is that we should approach the consideration of this case with circumspection, lest the
influence of strong public passions should get the batter of our judgment. It is trite to say that public sentiment fades
into insignificance before a proper observance of constitutional processes, the maintenance of the constitutional
structure, and the protection of individual rights. Only thus can a government of laws, the foundation stone of
human liberty, be strengthened and made secure for that very public.
It is with these thoughts in mind that, with sincere regret, I am constrained to dissent.
The power of the legislative bodies under the American system of government to punish for contempt was at the
beginning totally denied by some courts and students of constitutional law, on the ground that this power is judicial
in nature and belongs to the judiciary branch of the government under the constitutional scheme. The point however
is now settled in favor of the existence of the power. This rule is based on the necessity for the attainment of the ends
for which legislative body is created. Nor can the legitimacy of the purpose of the investigation which the Senate
ordered in this case be disputed. As a corollary, it was likewise legitimate and necessary for the committee to
summon the petitioner with a command to produce his books and documents, and to commit him to prison for his
refusal or failure to obey the subpoena. And, finally, there is no question that the arresting officers were fully justified
in using necessary bodily force to bring him before the bar of the Senate when he feigned illness and stalled for time
in the mistaken belief that after the closing of the then current session of Congress he could go scot-free.
At the same time, there is also universal agreement that the power is not absolute. The disagreement lies in the extent
of the power, and such disagreement is to be found even between decisions of the same court. Anderson vs.Dunn, 6
Wheat., No. 204, may be said to have taken the most liberal view of the legislature's authority and
Kilbourn vs. Thompson, 103 U.S. 168, which partly overruled and qualified the former, the strictest. By the most
liberal standard the power is restricted "by considerations as to the nature of the inquiry, occasion, or action in
connection with which the contemptuous conduct has occurred." Punishment must be resorted to for the efficient
exercise of the legislative function. Even Anderson vs. Dunn speaks of the power as "the least possible power
adequate to the end proposed."
Judged by any test, the question propounded to the witness does not, in my opinion, meet the constitutional
requirement. It is obvious, I think, that the query has nothing to do with any matter within the cognizance of the
Congress. There is, on the contrary, positive suggestion that the question has no relation to the contemplated
legislation. The statement of the committee in its report that the information sought to be obtained would clear the
names of the persons suspected of having received the money, is, on the surface, the most or only plausible reason
that can be advanced. Assuming this to be the motive behind the question, yet little reflection will show that the same
is beyond the scope of legislative authority and prerogatives. It is outside the concern of the Congress to protect the
honor of particular citizens except that of its own members' as a means of preserving respect and confidence in that
body. Moreover, the purported good intention must assume, if it is to materialize, that the persons under suspicion
are really innocent; for if they are not and the witness will tell the truth, the result will be to augment their disgrace
rather than vindicate their honor. This is all the more likely to happen because one of those persons, is judged from
the committee's findings, the most likely one, to say the least, who got the money.
If the process of deduction is pressed further, the reasonable conclusion seems to be that the object of the question is,
to mention only one, to prepare the way for a court action. The majority, decision indirectly admits or insinuates this
to be the case. It says, "It appearing that the questioned transaction was affected by the head of the Department of
Justice himself, it is not reasonable to expect the fiscal or the Court of First Instance of Manila will take the initiative
to investigate and prosecute the parties responsible for the deal until and unless the Senate shall have determined
who those parties are and shall have taken such measures as may be within its competence to take, to redress the
wrong that may have been committed against the people as a result of the transaction." So here is an admission,
implied if not express, that the Senate wants the witness to give names because the fiscal or the courts will not initiate
an action against parties who should be prosecuted. It is needless to say that the institution of a criminal or civil suit
is a matter that devolves upon other departments of the government, alien to the duties of the Congress to look after.
The Congress is at full liberty, of course, to make any investigation for the purpose of aiding the fiscal or the courts,
but this liberty does not carry with it the authority to imprison persons who refuse to testify.
In the intricacy and complexity of an investigation it is often impossible to foretell before its close what relation
certain facts may bear on the final results, and experience has shown that investigators and courts would do well to
veer on the liberal side in the resolution of doubtful questions. But the Senate is not now in the midst of an inquiry
with the situation still in a fluid or tentative state. Now the facts are no longer confused. The committee has finished
its investigation and submitted its final report and the Senate has approved a bill on the bases of the facts found. All
the pertinent facts having been gathered, as is to be inferred from that the report and the nature of the Senate's action,
every question, every fact, every bit of testimony has taken a distinct meaning susceptible of concrete and definite
evaluation; the task has been reduced to the simple process of sifting the grain from the chaffs.
In the light of the committee's report and of the bill introduced and approved in the Senate, it seems quite plain that
the express naming of the recipient or recipients of the money is entirely unessential to anything the Senate has a
right or duty to do in premises. Names may be necessary for the purpose of criminal prosecution, impeachment or
civil suit. In such proceedings, identities are essential. In some legislative investigations it is important to know the
names of public officials involved. But the particular disclosure sought of the petitioner here is immaterial to the
proposed law. It is enough for the Senate, for its own legitimate object, to learn how the Department of Justice had in
the purchase, and to have a moral conviction as to the identity of the person who benefited thereby. The need for
such legislation and translated into the bill approved by the Senate is met by an insight into a broad outline of the
deal. To paraphrase the U.S. Supreme Court in Anderson vs. Dunn, although the passage was used in another
connection, legislation is a science of experiment and the relation between the legislator and the end does not have to
be so direct as to strike the eye of the former.
One of the proposed laws have prohibits brothers and near relatives of any president of the Philippines from
intervening directly or indirectly in transactions in which the Government is a party. It is stated that this is subject to
change depending on the answer Arnault may give. This statement is wide open to challenge.
If Arnault should Antonio Quirino it must be admitted that the bill would not be altered. But let us suppose that the
witness will point to another man. Will the result be any different? Will the Senate recall the bill? I can not perceive
the slightest possibility of such eventuality. The pending bill was framed on the assumption that Antonio Quirino
was a party to the deal in question. As has been said, the committee entertains a moral conviction that this brother of
the President was the recipient of a share of the proceeds of sale. No amount of assurance by Arnault to the contrary
would be believed for truth. And, I repeat, the proposed legislation does not need for its justification legal evidence
of Antonio Quirino's intervention in the transaction.
All this in the first place. In the second place, it is not to be assumed that the present bill is aimed solely against
Antonio Quirino whose relation to the Administration is but temporary. It is more reasonable to presume that the
proposed enactment is intended for all time and for all brothers of future presidents, for in reality it is no more than
an extension or enlargement of laws already found in the statute book which guard against temptations to exploit
official positions or influence to the prejudice of public interests.
The disputed question is, in fact, not only irrelevant but moot. This is decisive of the irrelevancy of this question. As
has been noticed, the committee has submitted its final report and recommendation, and a bill has been approved by
the Senate calculated to prevent recurrence of the anomalies exposed. For the purpose for which it was instituted the
inquiry is over and the committee's mission accomplished.
It is true that the committee continues to sit during the recess of Congress, but it is obvious from all the circumstances
that the sole and real object of the extension of the committee's sittings is to receive the witness' answer in the event
he capitulates. I am unable to see any new phase of the deal which the Senate could legitimately wish to know, and
the respondents and this Court have not pointed out any. That the committee has not sat and nothing has been done
so far except to wait for Arnault's answer is a convincing manifestation of the above conclusion.
The order "to continue its investigation" contained in Senate Resolution No. 16 cannot disguise the realities revealed
by the Senate's actions already referred to and by the emphasis given to the instruction "to continue its (committee's)
examination of Jean L. Arnault regarding the name of the person to whom he gave the P440,000." The instruction 'to
continue the investigation' is not entitled to the blind presumption that it embraces matters other than the revelation
by the witness of the name of the person who got the money. Jurisdiction to deprive a citizen of liberty outside the
usual process is not acquired by innuendoes or vague assertions of the facts on which jurisdiction is made to depend.
If the judgment of the court of law of limited jurisdiction does not enjoy the presumption of legality, much less can
the presumption of regularity be invoked for a resolution of a deliberative body whose power to inflict punishment
upon private citizens is wholly derived by implication and vehemently contested by some judges. At any rate, "the
stronger presumption of innocence attends accused at the trial", "and it is incumbent" upon the respondents "to show
that the question pertains to some matter under investigation." (Sinclair vs. U. S., 73 L. ed., 693.) This rule stems from
the fact that the power is in derogation of the constitutional guarantee that no person shall be deprived of life, liberty,
or property without due process of law, which presupposes " a trial in which the rights of the parties shall be decided
by a tribunal appointed by law, which tribunal is to governed by rules of law previously established." Powers so
dangerous to the liberty of a citizen can not be allowed except where the pertinence is clear. A Judge who abuses
such power may be impeached and he acts at all times under the sense of this accountability and responsibility. His
victims may be reached by the pardoning power. But if the Congress be allowed this unbounded jurisdiction of
discretion, there is no redress, The Congress may dispoil of a citizen's life, liberty or property and there is no power
on earth to stop its hand. There is, there can be, no such unlimited power in any department of the government of the
Republic. (Loan Association vs. Topeka, 20 Wall, Nos. 662, 663; Taylor vs.Porter, 4 Hill No. N.Y. 140.)
The above rule and discussion apply with equal force to the instruction to the committee in the original resolution,
"to determine the parties responsible for the deal." It goes without saying that the congress cannot authorize a
committee to do what it itself cannot do. In other words, the` Senate could not insist on the disclosure of Arnault's
accomplice in the present state of the investigation if the Senate were conducting the inquiry itself instead of through
a committee.
Our attention is called to the fact that "in the Philippines, the legislative power is vested in the Congress of the
Philippines alone, and therefore that the Congress of the Philippines has a wider range of legislative field than the
Congress of the United States or any state legislature." From this premise the inference is drawn that " the field of
inquiry into it (Philippine Congress) may enter is also wider."
This argument overlooks the important fact that congressional or legislative committees both here and in the Unived
States, do not embark upon fishing expeditions in search of information which by chance may be useful to legislation.
Inquiries entrusted to congressional committee, whether here or in the United States, are necessarily for specific
objects within the competence of the Congress to look into. I do not believe any reason, rule or principle could be
found which would sustain the theory that just because the United States Congress or a state legislature could
legislate on, say, only ten subjects and the Philippine Congress on twenty, the latter's power to commit to prison for
contempt is proportionately as great as that of the former. In the consideration of the legality of an imprisonment for
the contempt by each House, the power is gauged not be the greater or lesser number of subject matters that fall
within its sphere of action, but by the answer to the question, has it jurisdiction over the matter under investigation?
Bearing this distinction in mind, it is apparent that the power of a legislature to punish for contempt can be no
greater nor less than that of any other. Were it possible for the Philippine Senate and the United States Senate to
undertake an investigation of exactly identical anomalies in their respective departments of justice, could it be
asserted with any support of logic that one Senate has a wider authority to imprison for contempt in such
investigation simply because it has a "wider range of legislative field?"
It is said that the Senate bill has not been acted upon by the lower house and that even if it should pass in that
chamber it would still have the President's veto to hurdle. It has been expressly stated at the oral argument, and there
is insinuation in this Court's decision, that the revelation of the name or names of the person or persons who received
the money may help in convincing the House of Representatives or the President of the wisdom of the pending
measure. Entirely apart from the discussion that the House of Representatives and the Chief Executive have their
own idea of what they need to guide them in the discharge of their respective duties, and they have the facilities of
their own for obtaining the requisite data.
There is another objection, more fundamental, to the Senate invoking the interest or convenience of the other House
or the President as ground of jurisdiction. The House of Representatives and the President are absolutely
independent of the Senate, in the conduct of legislative and administrative inquiries, and the power of each House to
imprison for contempt does not go beyond the necessity for its own self-preservation or for making its express
powers effective. Each House exercises this power to protect or accomplish its own authority and not that of the other
House or the President. Each House and the President are supposed to take care of their respective affairs. The two
Houses and the Chief Executive act separately although the concurrence of the three is required in the passage of
legislation and of both Houses in the approval of resolutions. As the U.S. Supreme Court in Kilbourn vs.Thompson,
said, "No general power of inflicting punishment by the Congress (as distinct from a House is found in the
Constitution." "An act of Congress it said which proposed to adjudge a man guilty of a crime and inflict the
punishment, will be considered by all thinking men to be unauthorized by the Constitution."
Kilbourn vs. Thompson, supra, it is said can not be relied on in this case as a precedent because, so it is also said, "the
subject of the inquiry, which related to a private real-estate pool or partnership, was not within the jurisdiction of
either House of Congress; while here it is not disputed that the subject of the inquiry, which relates to a transaction
involving a questionable expenditure by the Government of P5,000,000 of public funds, is within the Jurisdiction of
the Senate." Yet the remarks of Judge Land is which are quoted in the majority decision point out that the inquiry
"was a normal and customary part of the legislative process." Moreover, Kilbourn vs. Thompson is important, not for
the matter it treated but for the principles it enunciated.
It is also said that Kilbourn vs. Thompson did not meet with universal approval as Judge Land is' article above
mentioned shows. The jurist who delivered the opinion in that case, Mr. Justice Miller, was one of the "giants" who
have ever sat on the Supreme Federal Bench, venerated and eminent for the width and depth of his learning.
Subsequent decisions, as far as I have been able to ascertain, have not rejected or criticized but have followed it, and it
still stands as a landmark in this branch of constitutional law.
If we can lean on private opinions and magazine articles for comfort, the petitioner can cite one by a legal scholar and
author no less reknown and respected than Judge Land is. I refer to Judge Wigmore who, referring to an
investigation of the U.S. Department of Justice said in an article published in 19 (1925) Illinois Law Review, 452:
The senatorial debauch of investigations poking into political garbage cans and dragging the sewers of
political intrigue filled the winter of 1923-24 with a stench which has not yet passed away. Instead of
employing the constitutional, manly, fair procedure of impeachment, the Senate flung self-respect and
fairness to the winds. As a prosecutor, the Senate presented a spectacle which cannot even be dignified by a
comparison with the persecutive scoldings of Coke and Scroggs and Jeffreys, but fell rather in popular
estimate to the level of professional searchers of the municipal dunghills.
It is far from my thought to subscribe to this vituperation as applied to our Senate. Certainly, this august body said
not only do the right thing but is entitled to the lasting gratitude of the people for taking the courageous stand it did
in probing into an anomaly that robbed a depleted treasury of a huge amount. I have tried to make it clear that my
disagreement with the majority lies not in the propriety or constitutionality of the investigation but in the pertinence
to that investigation of a single question. The investigation, as had been said, was legal and commendable. My
objection is that the Senate having started within the bounds of its authority, has, in entire good faith, overstepped
those bounds and trespassed on a territory reserved to other branches of the government, when it imprisoned a
witness for contumacy on a point that is unimportant, useless, impertinent and irrelevant, let alone moot.
Thus understood, this humble opinion does not conflict with the views of Judge Land is and all other advocates of
wide latitude for congressional investigations. All are agreed, and the majority accept the proposition, that there is a
limit to the legislative power to punish for contempt. The limit is set in Anderson vs. Dunn which Judge Land is
approved "the least possible power adequate to the end proposed."
7. Sabio vs. Gordon (2006)
Facts:
Two decades ago, on February 28, 1986, former President Corazon C.Aquino installed her regime by issuing
Executive Order (E.O.) No. 1,[1] creating the Presidential Commission on Good Government (PCGG). She entrusted
upon this Commission the herculean task of recovering the ill-gotten wealth accumulated by the deposed President
Ferdinand E. Marcos, his family, relatives, subordinates and close associates. [2] Section 4 (b) of E.O. No. 1 provides
that: No member or staff of the Commission shall be required to testify or produce evidence in any judicial,
legislative or administrative proceeding concerning matters within its official cognizance. Apparently, the
purpose is to ensure PCGGs unhampered performance of its task.[3]
Today, the constitutionality of Section 4(b) is being questioned on the ground that it tramples upon the
Senates power to conduct legislative inquiry under Article VI, Section 21 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 facts are undisputed.
On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate
Res. No. 455),[4] directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines
Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation
(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their
operations by their respective Board of Directors.
The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the representation and entertainment expense of
the PHC skyrocketed to P4.3 million, as compared to the previous years mere P106 thousand;
WHEREAS, some board members established wholly owned PHC subsidiary called
Telecommunications Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18 months,
over P73 million had been allegedly advanced to TCI without any accountability report given to
PHC and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive
committee of Philcomsat has precipitately released P265 million and granted P125 million loan to a
relative of an executive committee member; to date there have been no payments given, subjecting
the company to an estimated interest income loss of P11.25 million in 2004;
WHEREAS, there is an urgent need to protect the interest of the Republic of the
Philippines in the PHC, PHILCOMSAT, and POTC from any anomalous transaction, and to
conserve or salvage any remaining value of the governments equity position in these corporations
from any abuses of power done by their respective board of directors;
WHEREFORE, be it resolved that the proper Senate Committee shall conduct an

inquiry in aid of legislation, on the anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation
(PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties
in the operations by their respective board of directors.
Adopted.
(Sgd) MIRIAM DEFENSOR SANTIAGO
On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate and referred to the Committee
on Accountability of Public Officers and Investigations andCommittee on Public Services. However, on March 28, 2006,
upon motion of Senator Francis N. Pangilinan, it was transferred to the Committee on Government Corporations and
Public Enterprises.[5]
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote
Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons
in the public meeting jointly conducted by the Committee on Government Corporations and Public
Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No.
455.[6]
On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment. [7] At the same time,
he invoked Section 4(b) of E.O. No. 1 earlier quoted.
On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,[8] approved by Senate President
Manuel Villar, requiring Chairman Sabio and PCGG
Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in the public hearing
scheduled on August 23, 2006 and testify on what they know relative to the matters specified in Senate Res. No.
455. Similar subpoenae were issued against the directors and officers of Philcomsat Holdings Corporation,
namely: Benito V. Araneta, Philip J. Brodett, Enrique L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr.,
Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma Kristina Allobaand Johnny Tan.[9]
Again, Chairman Sabio refused to appear. In his letter to Senator Gordon dated August 18, 2006, he
reiterated his earlier position, invoking Section 4(b) of E.O. No. 1. On the other hand, the directors and officers
of Philcomsat Holdings Corporation relied on the position paper they previously filed, which raised issues on the
propriety of legislative inquiry.
Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of Senator Gordon, sent another
notice[10] to Chairman Sabio requiring him to appear and testify on the same subject matter set on September 6,
2006. The notice was issued under the same authority of the Subpoena Ad Testificandum previously served upon (him)
last 16 August 2006.
Once more, Chairman Sabio did not comply with the notice. He sent a letter[11] dated September 4, 2006 to
Senator Gordon reiterating his reason for declining to appear in the public hearing.
This prompted Senator Gordon to issue an Order dated September 7, 2006 requiring Chairman Sabio and
Commissioners Abcede, Conti, Javier and Nario to show cause why they should not be cited in contempt of the
Senate. On September 11, 2006, they submitted to the Senate their Compliance and Explanation, [12] which partly
reads:
Doubtless, there are laudable intentions of the subject inquiry in aid of legislation. But
the rule of law requires that even the best intentions must be carried out within the parameters of
the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.
(Brillantes, Jr., et al. v. Commission on Elections, En Banc [G.R. No. 163193, June 15, 2004])
On this score, Section 4(b) of E.O. No. 1 should not be ignored as it explicitly provides:
No member or staff of the Commission shall be required to testify or

produce evidence in any judicial legislative or administrative proceeding
concerning matters within its official cognizance.
With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on the power of
legislative inquiry, and a recognition by the State of the need to provide protection to the PCGG in
order to ensure the unhampered performance of its duties under its charter. E.O. No. 1 is a law,
Section 4(b) of which had not been amended, repealed or revised in any way.
To say the least, it would require both Houses of Congress and Presidential fiat to amend
or repeal the provision in controversy. Until then, it stands to be respected as part of the legal
system in this jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88, October 12,
1995: Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of
religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office, then law becomes meaningless. A government of laws,
not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under
this system, judges are guided by the Rule of Law, and ought to protect and enforce it without fear or favor, 4
[Act of Athens (1955)] resist encroachments by governments, political parties, or even the interference of
their own personal beliefs.)
xxxxxx
Relevantly, Chairman Sabios letter to Sen. Gordon dated August 19, 2006 pointed out that
the anomalous transactions referred to in the P.S. Resolution No. 455 are subject of pending cases
before the regular courts, the Sandiganbayan and the Supreme Court (Pending cases
include: a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. No. 89102; b. Philippine Communications
Satellite Corporation v. Manuel Nieto, et al.; c. Philippine Communications Satellite Corporation v. Manuel
D. Andal, Civil Case No. 06-095, RTC, Branch 61, Makati City; d. Philippine Communications Satellite
Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil Case No. 04-1049) for which reason
they may not be able to testify thereon under the principle of sub judice. The laudable objectives of
the PCGGs functions, recognized in several cases decided by the Supreme Court, of the PCGG will
be put to naught if its recovery efforts will be unduly impeded by a legislative investigation of
cases that are already pending before the Sandiganbayan and trial courts.
In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 [1991]) the Honorable
Supreme Court held:
[T]he issues sought to be investigated by the respondent Committee is
one over which jurisdiction had been acquired by the Sandiganbayan. In short,
the issue has been pre-empted by that court. To allow the respondent Committee
to conduct its own investigation of an issue already before
the Sandigabayan would not only pose the possibility of conflicting judgments
between a legislative committee and a judicial tribunal, but if the Committees
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.
xxxxxx
IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission

decided not to attend the Senate inquiry to testify and produce evidence thereat.
Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public
Enterprises and the Committee on Public Services issued an Order[13] directing Major General Jose Balajadia (Ret.), Senate
Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for contempt of the Senate. The
Order bears the approval of Senate President Villar and the majority of the Committees members.
On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office
at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.
Hence, Chairman Sabio filed with this Court a petition for habeas corpus against the Senate Committee on
Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard
Gordon and Joker P. Arroyo and Members. The case was docketed as G.R. No. 174340.
Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and the PCGGs nominees
to Philcomsat Holdings Corporation, Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari and
prohibition against the same respondents, and also against Senate President Manuel Villar, Senator Juan
Ponce Enrile, the Sergeant-at-Arms, and the entire Senate. The case was docketed as G.R. No. 174318.
Meanwhile, Philcomsat Holdings Corporation and its officers and directors, namely: Philip G. Brodett, Luis
K. Lokin, Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and Johnny Tan filed a
petition for certiorari and prohibition against the Senate Committees on Government Corporations and Public
Enterprises and Public Services, their Chairmen, Senators Gordon and Arroyo, and Members. The case was docketed as
G.R. No. 174177.
In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari and prohibition) Chairman Sabio,
Commissioners Abcede, Conti, Nario, and Javier; and
the PCGGs nominees Andal and Jalandoni alleged: first, respondent Senate Committees disregarded Section 4(b) of
E.O. No. 1 without any justifiable reason; second, the inquiries conducted by respondent Senate Committees are not in
aid of legislation; third, the inquiries were conducted in the absence of duly published Senate Rules of Procedure
Governing Inquiries in Aid of Legislation; and fourth, respondent Senate Committees are not vested with the power of
contempt.
In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and officers
alleged: first, respondent Senate Committees have no jurisdiction over the subject matter stated in Senate Res. No.
455; second, the same inquiry is not in accordance with the Senates Rules of Procedure Governing Inquiries in Aid of
Legislation; third, the subpoenae against the individual petitioners are void for having been issued without
authority; fourth, the conduct of legislative inquiry pursuant to Senate Res. No. 455 constitutes undue encroachment
by respondents into justiciable controversies over which several courts and tribunals have already acquired
jurisdiction; and fifth, the subpoenae violated petitioners rights to privacy and against self-incrimination.
In their Consolidated Comment, the above-named respondents countered: first, the issues raised in the petitions
involve political questions over which this Court has no jurisdiction;second, Section 4(b) has been repealed by the
Constitution; third, respondent Senate Committees are vested with contempt power; fourth, Senates Rules of
Procedure Governing Inquiries in Aid of Legislation have been duly published; fifth, respondents have not violated
any civil right of the individual petitioners, such as their (a) right to privacy; and (b)right against self-incrimination;
and sixth, the inquiry does not constitute undue encroachment into justiciable controversies.
During the oral arguments held on September 21, 2006, the parties were directed to submit simultaneously
their respective memoranda within a non-extendible period of fifteen (15) days from date. In the meantime, per
agreement of the parties, petitioner Chairman Sabio was allowed to go home. Thus, his petition for habeas corpus has
become moot. The parties also agreed that the service of the arrest warrants issued against all petitioners and the
proceedings before the respondent Senate Committees are suspended during the pendency of the instant cases. [14]
Crucial to the resolution of the present petitions is the fundamental issue of whether Section 4(b) of E.O.
No. 1 is repealed by the 1987 Constitution. On this lone issue hinges the merit of the contention of
Chairman Sabio and his Commissioners that their refusal to appear before respondent Senate Committees is
justified. With the resolution of this issue, all the other issues raised by the parties have become inconsequential.
Perched on one arm of the scale of justice is Article VI, Section 21 of the 1987 Constitution granting
respondent Senate Committees the power of legislative inquiry. It reads:
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.
On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of legislative inquiry by
exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding, thus:
No member or staff of the Commission shall be required to testify or produce evidence
in any judicial, legislative or administrative proceeding concerning matters within its official
cognizance.
To determine whether there exists a clear and unequivocal repugnancy between the two quoted provisions
that warrants a declaration that Section 4(b) has been repealed by the 1987 Constitution, a brief consideration of the
Congress power of inquiry is imperative.
The Congress power of inquiry has been recognized in foreign jurisdictions long before it reached our
shores through McGrain v. Daugherty,[15] cited in Arnault v. Nazareno.[16] In those earlier days, American courts
considered the power of inquiry as inherent in the power to legislate. The 1864 case of Briggs v. MacKellar[17] explains
the breath and basis of the power, thus:
Where no constitutional limitation or restriction exists, it is competent for either of the two
bodies composing the legislature to do, in their separate capacity, whatever may be essential to
enable them to legislate.It is well-established principle of this parliamentary law, that either house
may institute any investigation having reference to its own organization, the conduct or
qualification of its members, its proceedings, rights, or privileges or any matter affecting the
public interest upon which it may be important that it should have exact information, and in
respect to which it would be competent for it to legislate. The right to pass laws, necessarily
implies the right to obtain information upon any matter which may become the subject of a
law. It is essential to the full and intelligent exercise of the legislative function.In American
legislatures the investigation of public matters before committees, preliminary to legislation, or
with the view of advising the house appointing the committee is, as a parliamentary usage, well
established as it is in England, and the right of either house to compel witnesses to appear and
testify before its committee, and to punish for disobedience has been frequently enforced.The right
of inquiry, I think, extends to other matters, in respect to which it may be necessary, or may be
deemed advisable to apply for legislative aid.
Remarkably, in Arnault, this Court adhered to a similar theory. Citing McGrain, it recognized that the power
of inquiry is an essential and appropriate auxiliary to the legislative function, thus:
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 legislation body does not itself possess
the requisite information which is not infrequently true recourse must be had to others who
possess it.
Dispelling any doubt as to the Philippine Congress power of inquiry, provisions on such power
made their maiden appearance in Article VIII, Section 12 of the 1973 Constitution.[18] Then came the 1987
Constitution incorporating the present Article VI, Section 12. What was therefore implicit under the 1935
Constitution, as influenced by American jurisprudence, became explicit under the 1973 and 1987
Constitutions.[19]
Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also of any of
its committee. This is significant because it constitutes a direct conferral of investigatory power upon the
committees and it means that the mechanisms which the Houses can take in order to effectively perform its
investigative function are also available to the committees.[20]
It can be said that the Congress power of inquiry has gained more solid existence and expansive
construal. The Courts high regard to such power is rendered more evident in Senate v. Ermita,[21] where it categorically
ruled that the power of inquiry is broad enough to cover officials of the executive branch. Verily, the Court
reinforced the doctrine in Arnault that the operation of government, being a legitimate subject for legislation, is a
proper subject for investigation and that the power of inquiry is co-extensive with the power to legislate.
Considering these jurisprudential instructions, we find Section 4(b) directly repugnant with Article VI,
Section 21. Section 4(b) exempts the PCGG members and staff from the Congress power of inquiry. This cannot be
countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress power of
inquiry, being broad,encompasses everything that concerns the administration of existing laws as well as proposed
or possibly needed statutes.[22] It even extends to government agencies created by Congress and officers whose
positions are within the power of Congress to regulate or even abolish.[23] PCGG belongs to this class.
Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence
of any constitutional basis.
Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating
that: 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.
The provision presupposes that since an incumbent of a public office is invested with certain powers and
charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the
people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the
officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words, public
officers are but the servants of the people, and not their rulers. [24]
Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public
accountability. It places the PCGG members and staff beyond the reach of courts, Congress and other administrative
bodies. Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility
and non-accountability. In Presidential Commission on Good Government v. Pea,[25] Justice Florentino P. Feliciano
characterized as obiter the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1,
a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined:
The above underscored portions are, it is respectfully submitted, clearly obiter. It is
important to make clear that the Court is not here interpreting, much less upholding as valid
and constitutional, the literal terms of Section 4 (a), (b) of Executive Order No.1. If Section 4 (a)
were given its literal import as immunizing the PCGG or any member thereof from civil liability for
anything done or omitted in the discharge of the task contemplated by this Order, the
constitutionality of Section 4 (a) would, in my submission, be open to most serious doubt. For so
viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of members
and staff of the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution
and a privileged status not claimed by any other official of the Republic under the 1987
Constitution. x x x.
xxxxxx
It would seem constitutionally offensive to suppose that a member or staff member of the
PCGG could not be required to testify before the Sandiganbayan or that such members were
exempted from complying with orders of this Court.
Chavez v. Sandiganbayan[26] reiterates the same view. Indeed, Section 4(b) has been frowned upon by this Court even
before the filing of the present petitions.
Corollarily, Section 4(b) also runs counter to the following constitutional provisions ensuring the peoples
access to information:
Article II, Section 28
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.
Article III, Section 7
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.
These twin provisions of the Constitution seek to promote transparency in policy-making and in the
operations of the government, as well as provide the people sufficient information to enable them to exercise
effectively their constitutional rights. Armed with the right information, citizens can participate in public discussions
leading to the formulation of government policies and their effective implementation. In Valmonte v. Belmonte, Jr.
[27]
the Court explained that an informed citizenry is essential to the existence and proper functioning of any
democracy, thus:
An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. 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.
Consequently, the conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the
citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to
protect their interests. The extent of their participation will largely depend on the information gathered and made
known to them. In other words, the right to information really goes hand-in-hand with the constitutional policies of
full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in the government.[28] The cases
of Taada v. Tuvera [29]
and Legaspi v. Civil Service Commission [30]
have recognized a citizens interest and personality to
enforce a public duty and to bring an action to compel public officials and employees to perform that duty.
Section 4(b) limits or obstructs the power of Congress to secure from PCGG members and staff information
and other data in aid of its power to legislate. Again, this must not be countenanced. In Senate v. Ermita,[31] this Court
stressed:
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.
A statute may be declared unconstitutional because it is not within the legislative power to enact; or it
creates or establishes methods or forms that infringe constitutional principles; or its purpose or effect violates the
Constitution or its basic principles. [32] As shown in the above discussion, Section 4(b) is inconsistent with Article VI,
Section 21(Congress power of inquiry), Article XI, Section 1 (principle of public accountability), Article II, Section
28 (policy of full disclosure) and Article III, Section 7 (right to public information).
Significantly, Article XVIII, Section 3 of the Constitution provides:
All existing laws, decrees, executive orders, proclamations, letters of instructions, and
other executive issuances not inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.
The clear import of this provision is that all existing laws, executive orders, proclamations, letters of instructions and
other executive issuances inconsistent or repugnant to the Constitution are repealed.
Jurisprudence is replete with decisions invalidating laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances inconsistent with the Constitution. In Pelaez v. Auditor General,[33] the Court
considered repealed Section 68 of the Revised Administrative Code of 1917 authorizing the Executive to change the
seat of the government of any subdivision of local governments, upon the approval of the 1935 Constitution. Section
68 was adjudged incompatible and inconsistent with the Constitutional grant of limited executive supervision over
local governments. In Islamic Dawah Council of the Philippines, Inc., v. Office of the Executive Secretary, [34] the Court
declared Executive Order No. 46, entitled Authorizing the Office on Muslim Affairs to Undertake
Philippine Halal Certification, void for encroaching on the religious freedom of Muslims. In The Province of Batangas v.
Romulo,[35] the Court declared some provisions of the General Appropriations Acts of 1999, 2000 and 2001
unconstitutional for violating the Constitutional precept on local autonomy. And in Ople v. Torres,[36] the Court
likewise declared unconstitutional Administrative Order No. 308, entitled Adoption of a National Computerized
Identification Reference System, for being violative of the right to privacy protected by the Constitution.
These Decisions, and many others, highlight that the Constitution is the highest law of the land. It is the
basic and paramount law to which all other laws must conform and to which all persons, including the highest
officials of the land, must defer. No act shall be valid, however noble its intentions, if it conflicts with the
Constitution.[37]Consequently, this Court has no recourse but to declare Section 4(b) of E.O. No. 1 repealed by the
1987 Constitution.
Significantly, during the oral arguments on September 21, 2006, Chairman Sabio admitted that should this Court rule
that Section 4(b) is unconstitutional or that it does not apply to the Senate, he will answer the questions of the
Senators, thus:
CHIEF JUSTICE PANGANIBAN:

Okay. Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or that it does not apply to
the Senate, will you answer the questions of the Senators?
CHAIRMAN SABIO:
Your Honor, my father was a judge, died being a judge. I was here in the Supreme Court as Chief
of Staff of Justice Feria. I would definitely honor the Supreme Court and the rule of law.
CHIEF JUSTICE PANGANIBAN:
You will answer the questions of the Senators if we say that?
CHAIRMAN SABIO:
Yes, Your Honor. That is the law already as far as I am concerned.
With his admission, Chairman Sabio is not fully convinced that he and his Commissioners are shielded from
testifying before respondent Senate Committees by Section 4(b) of E.O. No. 1. In effect, his argument that the said
provision exempts him and his co-respondent Commissioners from testifying before respondent Senate Committees
concerning Senate Res. No. 455 utterly lacks merit.
Incidentally, an argument repeated by Chairman Sabio is that respondent Senate Committees have no power to
punish him and his Commissioners for contempt of the Senate.
The argument is misleading.
Article VI, Section 21 provides:
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.
It must be stressed that the Order of Arrest for contempt of Senate Committees and the Philippine Senate
was approved by Senate President Villar and signed by fifteen (15) Senators. From this, it can be concluded that
the Order is under the authority, not only of the respondent Senate Committees, but of the entire Senate.
At any rate, Article VI, Section 21 grants the power of inquiry not only to the Senate and the House of
Representatives, but also to any of their respective committees. Clearly, there is a direct conferral of power to the
committees. Father Bernas, in his Commentary on the 1987 Constitution, correctly pointed out its significance:
It should also be noted that the Constitution explicitly recognizes the power of
investigation not just of Congress but also of any of its committees. This is significant because it
constitutes a direct conferral of investigatory power upon the committees and it means that the
means which the Houses can take in order to effectively perform its investigative function are
also available to the Committees.[38]
This is a reasonable conclusion. The conferral of the legislative power of inquiry upon any committee of Congress
must carry with it all powers necessary and proper for its effective discharge. Otherwise, Article VI, Section 21 will be
meaningless. The indispensability and usefulness of the power of contempt in a legislative inquiry is underscored in
a catena of cases, foreign and local.
In the 1821 case of Anderson v. Dunn,[39] the function of the Houses of Congress with respect to the contempt
power was likened to that of a court, thus:
But the court in its reasoning goes beyond this, and though the grounds of the decision
are not very clearly stated, we take them to be: that there is in some cases a power in each House
of Congress to punish for contempt; that this power is analogous to that exercised by courts of
justice, and that it being the well established doctrine that when it appears that a prisoner is
held under the order of a court of general jurisdiction for a contempt of its authority, no other
court will discharge the prisoner or make further inquiry into the cause of his commitment. That
this is the general ruleas regards the relation of one court to another must be conceded.
In McGrain,[40] the U.S. Supreme Court held: 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 Court, in Arnault v. Nazareno,[41] sustained the
Congress power of contempt on the basis of this observation.
In Arnault v. Balagtas,[42] the Court further explained that the contempt power of Congress is founded upon
reason and policy and that the power of inquiry will not be complete if for every contumacious act, Congress has to
resort to judicial interference, thus:
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 the 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 the affronts committed against its authority or dignity.[43]
In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete,[44] the Court
characterized contempt power as a matter of self-preservation, thus:
The exercise by the legislature of the contempt power is a matter of self-preservation as
that branch of the government vested with the legislative power, independently of the judicial
branch, asserts its authority and punishes contempts thereof. The contempt power of the legislature
is, therefore, sui generis x x x.
Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat Holdings Corporation and its directors and
officers, this Court holds that the respondent Senate Committees inquiry does not violate their right to privacy and
right against self-incrimination.
One important limitation on the Congress power of inquiry is that the rights of persons appearing in or
affected by such inquiries shall be respected. This is just another way of saying that the power of inquiry must be
subject to the limitations placed by the Constitution on government action. As held in Barenblatt v. United States,[45] the
Congress, in common with all the other branches of the Government, must exercise its powers subject to the
limitations placed by the Constitution on governmental action, more particularly in the context of this case, the
relevant limitations of the Bill of Rights.
First is the right to privacy.
Zones of privacy are recognized and protected in our laws. [46] Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to privacy is a constitutional right and the right
most valued by civilized men,[47] but also from our adherence to the Universal Declaration of Human Rights which
mandates that, no one shall be subjected to arbitrary interference with his privacy and everyone has the right to the protection
of the law against such interference or attacks.[48]
Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that
explicitly create zones of privacy. It highlights a persons right to be let alone or the right to determine what, how much, to
whom and when information about himself shall be disclosed.[49] Section 2 guarantees the right of the people to be secure
in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for
any purpose. Section 3 renders inviolable the privacy ofcommunication and
correspondence and further cautions that any evidence obtained in violation of this or the preceding section shall
be inadmissible for any purpose in any proceeding.
In evaluating a claim for violation of the right to privacy, a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable
government intrusion.[50] Applying this determination to these cases, the important inquiries are: first, did the directors
and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and second, did the
government violate such expectation?
The answers are in the negative. Petitioners were invited in the Senates public hearing to deliberate on
Senate Res. No. 455, particularly on the anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT),
and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their
respective board of directors. Obviously, the inquiry focus on petitioners acts committed in the discharge of their
duties as officers and directors of the said corporations, particularly Philcomsat Holdings
Corporation. Consequently, they have no reasonable expectation of privacy over matters involving their offices in
a corporation where the government has interest. Certainly, such matters are of public concern and over which the
people have the right to information.
This goes to show that the right to privacy is not absolute where there is an overriding compelling state
interest. In Morfe v. Mutuc,[51] the Court, in line with Whalen v. Roe,[52] employed the rational basis relationship test
when it held that there was no infringement of the individuals right to privacy as the requirement to disclosure
information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a
standard of honesty in public service, and promote morality in public administration.[53] In Valmonte v. Belmonte,[54] the
Court remarked that as public figures, the Members of the former Batasang Pambansa enjoy a more limited right to
privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into
consideration, the Court ruled that the right of the people to access information on matters of public concern prevails
over the right to privacy of financial transactions.
Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in
millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the
Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from
Chairman Sabioand his Commissioners to aid it in crafting the necessary legislation to prevent corruption and
formulate remedial measures and policy determination regarding PCGGs efficacy.There being no reasonable
expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it
follows that their right to privacy has not been violated by respondent Senate Committees.
Anent the right against self-incrimination, it must be emphasized that this right maybe invoked by the said
directors and officers of Philcomsat Holdings Corporation 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.[55] 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. At this
juncture, what is important is that respondent Senate Committees have sufficient Rules to guide them when the right
against self-incrimination is invoked. Sec. 19 reads:
Sec. 19. Privilege Against Self-Incrimination
A witness can invoke his right against self-incrimination only when a question tends to
elicit an answer that will incriminate him is propounded to him. However, he may offer to answer
any question in an executive session.
No person can refuse to testify or be placed under oath or affirmation or answer questions
before an incriminatory question is asked. His invocation of such right does not by itself excuse
him from his duty to give testimony.
In such a case, the Committee, by a majority vote of the members present there being a
quorum, shall determine whether the right has been properly invoked. If the Committee decides
otherwise, it shall resume its investigation and the question or questions previously refused to be
answered shall be repeated to the witness. If the latter continues to refuse to answer the question,
the Committee may punish him for contempt for contumacious conduct.
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 of criminal or
administrative action should not stop or abate any inquiry to carry out a legislative purpose.
Let it be stressed at this point that so long as the constitutional rights of witnesses, like Chairman Sabio and
his Commissioners, will be respected by respondent Senate Committees, it 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.
In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti,
and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGGsnominees to Philcomsat Holdings Corporation, as
well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate
Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455.
WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is DISMISSED, for being moot. The
petitions in G.R Nos. 174318 and 174177 are likewise DISMISSED.
Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. Respondent Senate Committees
power of inquiry relative to Senate Resolution 455 is upheld.PCGG Chairman Camilo L. Sabio and Commissioners
Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso Javier; and Manuel Andal and
Julio Jalandoni, PCGGs nominees to Philcomsat Holdings Corporation, as well as its directors and officers,
petitioners in G.R. No. 174177, are ordered to comply with the Subpoenae Ad Testificandum issued by respondent
Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455.
SO ORDERED.
8. Senate vs. Ermita

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 Macapagal-
Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents.
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." 1
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 co-equal 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 invitations2 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 Wire-Tapping 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 Wire-Tapping 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 letter3 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
letter4 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, wrote5 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 letter6 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,"7 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 letter8 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 letter9 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.10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464. 11
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.12 (ALG), alleging that as a coalition of 17 legal resource
non-governmental 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. 464,13 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 letter14 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 letter15 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.16
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,17 and those from the Department of Budget and Management18 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,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local Government
Undersecretary Marius P. Corpus21 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. 22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in G.R.
No. 16966725 and G.R. No. 16983426 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 27 was granted,
subsequently filed a manifestation28 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. 29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum 38 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.39
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."40
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. 41
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 42 and Valmonte v. Philippine
Charity Sweepstakes Office,43 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.
464.44
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 legislation45 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.46 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. 47
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.48
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.49
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, 50 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 51 and to the maintenance of the
balance of power among the three branches of the government through the principle of checks and balances. 52
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,53 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.54 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 PDP-Laban 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.55 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.56 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.57 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, 58 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.59 . . . (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.60 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,61 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,62 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.63 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."64 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."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying
kinds.67Tribe, 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. 68
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"69 (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.70 (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.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 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. 73 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.74 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.75 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. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. 77Almonte
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.78 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,79 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."80 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,81 the Court ruled that the right to information does not extend to
matters recognized as "privileged information under the separation of powers,"82 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. 83 (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.84 (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,85 corresponding to what is known in Britain as the question period. There was a
specific provision for a question hour in the 1973 Constitution86 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.87
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. 88 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. 89 (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.90
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 S ecretary.
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 closed-door 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.91 (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.92 (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.93 These, in substance, were the same criteria in assessing the claim of privilege asserted against the
Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the Senate in Senate Select
Committee on Presidential Campaign Activities v. Nixon.95
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.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
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.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and certain
reasons for preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 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. 101 (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:102
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. 103 A useful analogy in
determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v.
U.S.104 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,105 or in those instances where exemption
from disclosure is necessary to the discharge of highly important executive responsibilities. 106 The doctrine of
executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to
disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public
interest in enforcing that obligation in a particular case.
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:
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. 107(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. 108 (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)109
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.
CONCHITA CARPIO MORALES
Associate Justice
9. Neri vs Senate Committee March 25 2008
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show
cause Letter[1] dated November 22, 2007 and contempt Order[2] dated January 30, 2008concurrently issued
by respondent Senate Committees on Accountability of Public Officers and Investigations, Trade and Commerce,
[3]
[4]
and National Defense and Security[5] 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 Peoples 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
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,[6] (b) whether or not she directed him
to prioritize it,[7] and (c)whether or not she directed him to approve.[8]
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 petitioners 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 Peoples 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 petitioners 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 petitioners 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 Committees 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 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. [9] 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 countrys 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[10] and United
States v. Reynolds.[11] Lastly, he argues that he is precluded from disclosing communications made
to him in official confidence under Section 7[12] of Republic Act No. 6713,
otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 24[13] (e) of Rule
130 of the Rules of Court.
Respondent Committees assert the contrary. They argue that (1) petitioners 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 petitioners 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 Peoples 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 Courts 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.
[14]
At the same time, respondent Committees were directed to submit several pertinent documents. [15]
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 latters Minutes of all meetings and the Minute Book because it has never been the historical and
traditional legislative practice to keep them. [16] 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 bodys 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 OSGs 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[17] 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[18] becomes imperative. Senate draws in bold
strokes the distinction between the legislative and oversightpowers 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, 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.[19] 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 Courts
pronouncement in Senate v. Ermita[20] 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
ismandatory 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 Courts
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. [21] 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.[22] 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[23] and the Federal
Advisory Committee Act,[24] 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 Ermitas Letter
dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez,
[25]
and Chavez v. PEA.[26] There was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita,[27] 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.[28] In United States v. Nixon,[29] the U.S. Court recognized a great public interest in preserving the
confidentiality of conversations that take place in the Presidents performance of his official duties. It thus
considered presidential communications as presumptively privileged. Apparently, the presumption is founded on
the Presidents 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,[30] 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 decision-making 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 Presidents
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 [31]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. [32]
The situation in Judicial Watch, Inc. v. Department of Justice [33] tested the In Re: Sealed Case principles. There, while the
presidential decision involved is the exercise of the Presidents 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
functionally those officials were performing a task directly related to the Presidents 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 Cases 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,
[34]
identity of government informers in some circumstances, ,[35] and information related to pending investigations.
[36]
An area where the privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export Corp.
[37]
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[38], 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,[39] 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,[40]appointing,[41] pardoning,[42] and diplomatic[43] 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.[44]
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 decision-making process and, that the information sought
to be disclosed might impair our diplomatic as well as economic relations with the Peoples 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. [45] 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 Arroyos 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,[46] 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.
[47]
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[48] that demonstrated, specific need for evidence in pending criminal trial outweighs the Presidents
generalized interest in confidentiality. However, the present cases 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 Presidents 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,[49] it was held that since an impeachment proceeding had
been initiated by a House Committee, the Senate Select Committees 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 petitioners claim of executive privilege violates
the constitutional provisions on the right of the people to information on matters of public concern. [50] 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, [51] Article 229[52]of the Revised Penal Code, Section 3 (k)[53] of R.A. No.
3019, and Section 24(e)[54] of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence
classifies as confidential[55] 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 peoples right to public information. The former cannot claim that
every legislative inquiry is an exercise of the peoples 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.[56] A formal and proper claim of executive privilege requires a precise
and certain reason for preserving their confidentiality.[57]
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.
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.[58] 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 Peoples 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, [59] 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.[60]
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. Bautistas 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 petitioners 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 delibera tion. [61] 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 so-called
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 its 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 Id
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 representing because the alternative will be a disaster
for all of us, Mr. Chairman. So having said that, Id 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 its 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 [62]
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 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 14 th 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 ofdiscretion for
being arbitrary and for denying petitioner due process of law. The same
quality afflicted their conduct when they (a) disregarded petitioners motion for reconsideration alleging that he had
filed the present petition before this Court and (b) ignored petitioners 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.[63] 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.,[64] 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., [65] 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 interestappeals 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.
[66]
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 enactsthe 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 Courts 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.
TERESITA J. LEONARDO DE CASTRO
Associate Justice
10. Neri vs. Senate September 2008 (MR)

G.R. No. 180643 September 4, 2008
RESOLUTION
LEONARDO-DE CASTRO, J.:
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.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even
acrimoniously, debated dispute between the Courts co-equal branches of government. In this task, this Court should
neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of
them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the claim
of executive privilege by the President, on the one hand, and the respondent Senate Committees assertion of their
power to conduct legislative inquiries, on the other. The particular facts and circumstances of the present case,
stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of settled
constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the
petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on Accountability
of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and Security (collectively the
"respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, 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.7 The letter of Executive Secretary Ermita pertinently stated:
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 Peoples 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 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. He also manifested his
willingness to appear and testify should there be new matters to be taken up. He just requested that he be furnished
"in advance as to what else" he "needs to clarify."
Respondent Committees found petitioners 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; In Re: P.S. Res.
Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing
petitioner 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.
On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that he had not shown
"any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters,
but respondent Committees did not respond to his request for advance notice of questions. He also mentioned the
petition for certiorari he previously filed with this Court on December 7, 2007. According to him, this should restrain
respondent Committees from enforcing the order dated January 30, 2008 which declared him in contempt and
directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary
Injunction) on February 1, 2008. In the Courts Resolution dated February 4, 2008, the parties were required to
observe the status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications elicited by
the three (3) questions were covered by executive privilege; and second, respondent Committees committed grave
abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject communications
as falling under the presidential communications privilege because (a) they related to a quintessential and non-
delegable power of the President, (b) they were received by a close advisor of the President, and (c) respondent
Committees failed to adequately show a compelling need that would justify the limitation of the privilege and the
unavailability of the information elsewhere by an appropriate investigating authority. As to the second ground, we
found that respondent Committees committed grave abuse of discretion in issuing the contempt order because (a)
there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the questions relevant
to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the
contempt order, (d) they violated Section 21, Article VI of the Constitution because their inquiry was not in
accordance with the "duly published rules of procedure," and (e) they issued the contempt order arbitrarily and
precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following
grounds:
I
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT THAT THE
ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO PRESUMPTION
THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO FACTUAL OR LEGAL
BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3)
QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS
CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED,
THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS
PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY
THE DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD
SERIOUSLY IMPAIR THE RESPONDENTS PERFORMANCE OF THEIR PRIMARY FUNCTION TO
ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE
CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY
OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID NOT COMMIT
GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER,
CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE
V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR
INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21
OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED,
AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSGS
INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO
COMMENT.
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR
PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this
Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project
or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege
to the facts of the case. He further submits the following contentions: first, the assailed Decision did not reverse the
presumption against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to
overcome the presumption of executive privilege because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they admitted that they could dispense with petitioners
testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to
the privilege for State, military and diplomatic secrets, not to the necessarily broad and all-encompassing presidential
communications privilege; fourth, there is no right to pry into the Presidents thought processes or exploratory
exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and duty to
annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish
its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the
requirement for a witness to be furnished advance copy of questions comports with due process and the
constitutional mandate that the rights of witnesses be respected; and ninth, neither petitioner nor respondent has the
final say on the matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the
Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence,
there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the
Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held
in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the three (3)
questions are covered by executive privilege, because all the elements of the presidential communications privilege
are present; (4) the subpoena ad testificandum issued by respondent Committees to petitioner is fatally defective under
existing law and jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6)
respondent Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting the Office of the
Solicitor Generals Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation
of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:
(1) whether or not there is a recognized presumptive presidential communications privilege in our legal
system;
(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3)
questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications elicited by the three (3)
questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt
order.
We shall discuss these issues seriatim.
I
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Courts declaration that presidential communications are
presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily against
executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred in relying on
the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in the
earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications privilege is fundamental to the
operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate v.
Ermita,13 the case relied upon by respondent Committees, reiterated this concept. There, the Court enumerated the
cases in which the claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential
Commission on Good Government (PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are
certain types of information which the government may withhold from the public, 16" that there is a "governmental
privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national
security matters";17 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."18
Respondent Committees observation that this Courts Decision reversed the "presumption that inclines heavily
against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision. The
Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific portion
thereof should be isolated and resorted to, but the decision must be considered in its entirety. 19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita, which
declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of the
decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in the United States and in
this jurisprudence, 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. (Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being
claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the
Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec. 2(b) of
E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official, such that the presumption in this situation
inclines heavily against executive secrecy and in favor of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
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 information
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.
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President
to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
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.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in Senate
v. Ermita,21 to wit:
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.
Schwart 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." x x
x 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, he 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 italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication," which
was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the Motion
for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive authorization" of an
executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive
secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-
contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive Department
and the Legislative Department to explain why there should be no implied authorization or presumptive
authorization to invoke executive privilege by the Presidents subordinate officials, as follows:
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 he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of
governments which is sanctioned by a long-standing custom. (Underscoring supplied)
Thus, 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. In fact, Senate v. Ermita reiterates jurisprudence citing "the
considerations justifying a presumptive privilege for Presidential communications." 23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are not covered by
executive privilege because the elements of the presidential communications privilegeare not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential power."
First, 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.26 Now, the fact that the President has to secure the
prior concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision before
contracting or guaranteeing foreign loans, does not diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government
by no means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power
assigned to it by the sovereign people. There is the corollary doctrine of checks and balances, which has been
carefully calibrated by the Constitution to temper the official acts of each of these three branches. Thus, by analogy,
the fact that certain legislative acts require action from the President for their validity does not render such acts less
legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates
that every bill passed by Congress shall, before it becomes a law, be presented to the President who shall approve or
veto the same. The fact that the approval or vetoing of the bill is lodged with the President does not render the power
to pass law executive in nature. This is because the power to pass law is generally a quintessential and non-delegable
power of the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure
foreign loans does not become less executive in nature because of conditions laid down in the Constitution. The final
decision in the exercise of the said executive power is still lodged in the Office of the President.
B. 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.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational
proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential communications
privilege to communications between those who are operationally proximate to the President but who may have
"no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case27precisely to limit
the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a limitless
extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White House
staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity" to direct
presidential decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the
privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that
is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential
communications privilege should be construed as narrowly as is consistent with ensuring that the
confidentiality of the Presidents decision-making process is adequately protected. 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. Only communications at that level are close
enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his
advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that matters in
determining whether "[t]he Presidents confidentiality interests" is implicated).(Emphasis supplied)
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 of the Cabinet, thus, properly
within the term "advisor" of the President; in fact, her alter ego and a member of her official family. Nevertheless, in
circumstances in which the official involved is far too remote, this Court also mentioned in the Decision
the organizational test laid down in Judicial Watch, Inc. v. Department of Justice.28 This goes to show that the
operational proximity test used in the Decision is not considered conclusive in every case. In determining which test
to use, the main consideration is to limit the availability of executive privilege only to officials who stand proximate
to the President, not only by reason of their function, but also by reason of their positions in the Executives
organizational structure. Thus, respondent Committees fear that the scope of the privilege would be unnecessarily
expanded with the use of the operational proximity test is unfounded.
C. The Presidents claim of executive privilege is not merely based on a generalized interest; and in balancing
respondent Committees and the Presidents clashing interests, the Court did not disregard the 1987 Constitutional
provisions on government transparency, accountability and disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the Presidents invocation, through the
Executive Secretary, of executive privilege because (a) between respondent Committees specific and demonstrated
need and the Presidents generalized interest in confidentiality, there is a need to strike the balance in favor of the
former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution
on government transparency, accountability and disclosure of information, specifically, Article III, Section 7; 29 Article
II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII,
Sections 9,35 21,36 and 22.37
It must be stressed that the Presidents 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. Thus, the Letter stated:
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. (emphasis supplied)
Even in Senate v. Ermita, it was held that 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 for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the Presidents communication with her advisor. The
NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds
between officials of the Philippines and China. Whatever the President says about the agreement - particularly while
official negotiations are ongoing - are matters which China will surely view with particular interest. There is danger
in such kind of exposure. It could adversely affect our diplomatic as well as economic relations with the Peoples
Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations as stated
in United States v. Curtiss-Wright Export Corp., 38 thus:
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.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a
negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas
G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations. In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court in Chavez v. PCGG held that "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." Even earlier, the same privilege was upheld
in Peoples Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the
privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives
on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the
petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional
provisions of freedom of speech or of the press nor of the freedom of access to information." The
Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision which
are inherent in executive action. Another essential characteristic of diplomacy is its confidential
nature. Although much has been said about "open" and "secret" diplomacy, with disparagement of
the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice.
In the words of Mr. Stimson:
"A complicated negotiation cannot be carried through without many, many private
talks and discussion, man to man; many tentative suggestions and proposals. Delegates
from other countries come and tell you in confidence of their troubles at home and of
their differences with other countries and with other delegates; they tell you of what
they would do under certain circumstances and would not do under other
circumstances If these reports should become public who would ever
trust American Delegations in another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284)
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all
subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As
expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in
the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson
in starting his efforts for the conclusion of the World War declared that we must have "open
covenants, openly arrived at." He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed
speech by one of the parties or a frank declaration of the concession which are exacted or
offered on both sides would quickly lead to a widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully published, there is ample
opportunity for discussion before it is approved . (The New American Government and Its Works,
James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the
President is the sole organ of the nation in its negotiations with foreign countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold problems,
the President alone has the power to speak or listen as a representative of the nation.
He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field
of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall
said in his great arguments of March 7, 1800, in the House of Representatives, "The President is the
sole organ of the nation in its external relations, and its sole representative with foreign
nations." Annals, 6th Cong., col. 613 (Emphasis supplied; underscoring in the original)
Considering that the information sought through the three (3) questions subject of this Petition involves the
Presidents dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress
may peremptorily inquire into not only official, documented acts of the President but even her confidential and
informal discussions with her close advisors on the pretext that said questions serve some vague legislative need.
Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to
unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can effectively
discharge constitutional functions in the face of intense and unchecked legislative incursion into the core of the
Presidents decision-making process, which inevitably would involve her conversations with a member of her
Cabinet.
With respect to respondent Committees invocation of constitutional prescriptions regarding the right of the people
to information and public accountability and transparency, the Court finds nothing in these arguments to support
respondent Committees case.
There is no debate as to the importance of the constitutional right of the people to information and the constitutional
policies on public accountability and transparency. These are the twin postulates vital to the effective functioning of a
democratic government. The citizenry can become prey to the whims and caprices of those to whom the power has
been delegated if they are denied access to information. And the policies on public accountability and democratic
government would certainly be mere empty words if access to such information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, 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.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law is
unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to
information, thus:
Article III, Sec. 7. 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 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.
Article II, Sec. 28. 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. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws prescribing the
exact limitations within which the right may be exercised or the correlative state duty may be obliged. Nonetheless, it
enumerated the recognized restrictions to such rights, among them: (1) national security matters, (2) trade secrets and
banking transactions, (3) criminal matters, and (4) other confidential information. National security matters include
state secrets regarding military and diplomatic matters, as well as information on inter-government exchanges prior
to the conclusion of treaties and executive agreements. It was further held that even where there is no need to
protect such state secrets, they must be "examined in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the peoples right to public information. This is the reason why we stressed in the
assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "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" and "neither does the right to information grant a citizen the power to
exact testimony from government officials." As pointed out, these rights belong to Congress, not to the individual
citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and petitioner Neri
and that there was no prior request for information on the part of any individual citizen. This Court will not be
swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate legislative
inquiry and the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from
inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by executive
privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the
purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees inquiry
into the NBN Project. To reiterate, this Court recognizes respondent Committees power to investigate the NBN
Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed
privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose of
respondent Committees questions can be sufficiently supported by the expedient of mentioning statutes and/or
pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court
in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing of
compelling need for disclosure of the information covered by executive privilege.
In the Decision, the majority held that "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." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three
(3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the three (3)
pending Senate Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is
necessary to resolve the competing interests in a manner that would preserve the essential functions of each branch.
There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In giving
more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield to the
demonstrated, specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated,
through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows:
"... this presumptive privilege must be considered in light of our historic commitment to the rule of law. This
is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that
guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have
elected to employ an adversary system of criminal justice in which the parties contest all issues before a
court of law. The need to develop all relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a
partial or speculative presentation of the facts. The very integrity of the judicial system and public
confidence in the system depend on full disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process
be available for the production of evidence needed either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The
Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted
with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.'
Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due
process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it
is essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of Presidential
communications in performance of the President's responsibilities against the inroads of such a privilege
on the fair administration of criminal justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due process of law and gravely impair the basic function of the
courts. A President's acknowledged need for confidentiality in the communications of his office
is general in nature, whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal case in the
administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated.
The President's broad interest in confidentiality of communication will not be vitiated by disclosure of a
limited number of conversations preliminarily shown to have some bearing on the pending criminal
cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a
criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice. The
generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial. (emphasis supplied)
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.
Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a legislative inquiry in
aid of legislation in this wise:
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)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively
critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies. Also,
the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which
unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and the
Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This is
conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in
favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as
well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign
Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there
is a presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v.
Nixon and recognized a presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees to
overturn the presumption by demonstrating their specific need for the information to be elicited by the answers to
the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply
a generalized assertion that the information is pertinent to the exercise of the power to legislate and a broad and non-
specific reference to pending Senate bills. It is not clear what matters relating to these bills could not be determined
without the said information sought by the three (3) questions. As correctly pointed out by the Honorable Justice
Dante O. Tinga in his Separate Concurring Opinion:
If respondents are operating under the premise that the president and/or her executive officials have
committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation,
the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding
with such legislation. They could easily presume the worst of the president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come up
with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument
before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with
legislations even without petitioner answering the three (3) questions. In other words, the information being elicited
is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function of the Senate.
For instance, question Number 1 whether the President followed up the NBN project. According to
the other counsel this question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to
indorse a Bill to include Executive Agreements had been used as a device to the circumventing the
Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this problem in its
factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal
involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the
lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without
this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to the Procurement
Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million
bribe, so if he was offered a P200 Million bribe it is possible that other government officials who
had something to do with the approval of the contract would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and approve the project after
being told about the alleged bribe. How critical is that to the lawmaking function of the Senate?
And the question is may they craft a Bill a remedial law without forcing petitioner Neri to answer
this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that
a proposed Bill should have some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or how
the withholding of the information sought will hinder the accomplishment of their legislative purpose is very evident
in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge this burden,
the presumption in favor of confidentiality of presidential communication stands. The implication of the said
presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will significantly
impair the Presidents performance of her function. Needless to state this is assumed, by virtue of the presumption.
Anent respondent Committees bewailing that they would have to "speculate" regarding the questions covered by the
privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee on
Presidential Campaign Activities v. Nixon43 held that 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 a precise reconstruction of past events. It added that, normally,
Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the
respondent Committees self-defeating proposition that without the answers to the three (3) questions objected to as
privileged, the distinguished members of the respondent Committees cannot intelligently craft 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 the purpose of the inquiry is
legislative in nature. This is because curbing graft and corruption is merely an oversight function of Congress. 44 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.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability of the principle in appropriate
cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really in aid of
legislation because 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 relatives of the President or Mr. Ricardo Lopa had violated Section
5 of R.A. 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."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the
President.48 While it may be a worthy endeavor to investigate the potential culpability of high government officials,
including the President, in a given government transaction, it is simply not a task for the Senate to perform. The role
of the Legislature is to make laws, not to determine anyones guilt of a crime or wrongdoing. Our Constitution has
not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature
adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth," which
in respondent Committees view appears to be equated with the search for persons responsible for "anomalies" in
government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon our
prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the
investigation of the role played by each official, the determination of who should be haled to court for prosecution
and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of
criminal guilt, are not functions of the Senate. 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. 49In this regard, the
pronouncement in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into the
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 matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed against
President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it is the
Ombudsman who has the duty "to investigate any act or omission of any public official, employee, office or
agency when such act or omission appears to be illegal, unjust, improper, or inefficient."51 The Office of the
Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily determine whether or
not the allegations of anomaly are true and who are liable therefor. The same holds true for our courts upon which
the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure in the
Office of the Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights of
all persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their investigation,
they have the constitutional duty to refer the matter to the appropriate agency or branch of government. Thus, the
Legislatures need for information in an investigation of graft and corruption cannot be deemed compelling enough
to pierce the confidentiality of information validly covered by executive privilege. As discussed above, the
Legislature can still legislate on graft and corruption even without the information covered by the three (3) questions
subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioners claim of executive privilege on the ground
that there is no privilege when the information sought might involve a crime or illegal activity, despite the absence
of an administrative or judicial determination to that effect. Significantly, however, in Nixon v. Sirica,52 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.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does not apply
to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at present. The
Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however, complaints
relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office
of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the bodies
equipped and mandated by the Constitution and our laws to determine whether or not the allegations of anomaly in
the NBN Project are true and, if so, who should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to
arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial proceedings
which do not affect substantive rights need not be observed by the Committee." Court rules which prohibit leading,
hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do not apply to a
legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the right to be
presumed innocent until proven guilty in proper proceedings by a competent court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order
because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down
in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they did not violate
the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their
issuance of the contempt order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no
reason to discuss it once again.
Respondent Committees second argument rests on the view that the ruling in Senate v. Ermita, requiring invitations
or subpoenas to 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" is not provided for by the
Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses.
Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse) have
been raised many times.53 Constant exposure to congressional subpoena takes its toll on the ability of the Executive to
function effectively. The requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly
limit Congress power. The legislative inquiry must be confined to permissible areas and thus, prevent the "roving
commissions" referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional right to
due process. They should be adequately informed what matters are to be covered by the inquiry. It will also allow
them to prepare the pertinent information and documents. To our mind, these requirements concede too little
political costs or burdens on the part of Congress when viewed vis--vis the immensity of its power of inquiry. The
logic of these requirements is well articulated in the study conducted by William P. Marshall, 55 to wit:
A second concern that might be addressed is that the current system allows committees to continually
investigate the Executive without constraint. One process solution addressing this concern is to require
each investigation be tied to a clearly stated purpose. At present, the charters of some congressional
committees are so broad that virtually any matter involving the Executive can be construed to fall within
their province. Accordingly, investigations can proceed without articulation of specific need or purpose. A
requirement for a more precise charge in order to begin an inquiry should immediately work to limit the
initial scope of the investigation and should also serve to contain the investigation once it is
instituted. Additionally, to the extent clear statements of rules cause legislatures to pause and seriously
consider the constitutional implications of proposed courses of action in other areas, they would serve
that goal in the context of congressional investigations as well.
The key to this reform is in its details. A system that allows a standing committee to simply articulate its
reasons to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the
system must be designed in a manner that imposes actual burdens on the committee to articulate its need
for investigation and allows for meaningful debate about the merits of proceeding with the
investigation.(Emphasis supplied)
Clearly, petitioners request to be furnished an advance copy of questions is a reasonable demand that should have
been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any pending
Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely
commanded him to "testify on what he knows relative to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of
Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain from
reviewing the internal processes of Congress, as a co-equal branch of government, however, when a constitutional
requirement exists, the Court has the duty to look into Congress compliance therewith. We cannot turn a blind eye
to possible violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De
Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into
allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of
showing that there was a violation of a constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution empowers each House to
determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be attained."
In the present case, the Courts exercise of its power of judicial review is warranted because there appears to be a
clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any witness before it
who disobey 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." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during
the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could
hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers and
Investigations which has a membership of seventeen (17) Senators and respondent Committee on National Defense and
Security which has a membership of eighteen (18) Senators. With respect to respondent Committee on Trade and
Commerce which has a membership of nine (9) Senators, only three (3) members were present.57These facts prompted
us to quote in the Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby
the former raised the issue of lack of the required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan stated
that any defect in the committee voting had been cured because two-thirds of the Senators effectively signed for the
Senate in plenary session.58
Obviously 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.
Section 21, Article VI of the Constitution 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 person appearing in
or affected by such inquiries shall be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness settled expectation. If the limitations
are not observed, the witness settled expectation is shattered. Here, how could there be a majority vote when the
members in attendance are not enough to arrive at such majority? Petitioner has the right to expect that he can be
cited in contempt only through a majority vote in a proceeding in which the matter has been fully deliberated upon.
There is a greater measure of protection for the witness when the concerns and objections of the members are fully
articulated in such proceeding. We do not believe that respondent Committees have the discretion to set aside their
rules anytime they wish. This is especially true here where what is involved is the contempt power. It must be
stressed that the Rules are not promulgated for their benefit. More than anybody else, it is the witness who has the
highest stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees fourth argument. Respondent
Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and in
2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules, unless
the same is repealed or amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no
debate that 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 of the Congress before it. The Rules of the Senate itself
confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
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 for the first time. (emphasis supplied)
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 a 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. If
the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next
Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its
business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin
their term of office, the President may endorse the Rules to the appropriate committee for amendment or
revision.
The Rules may also be amended by means of a motion which should be presented at least one day before its
consideration, and the vote of the majority of the Senators present in the session shall be required for its
approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are
amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election
and the possibility of the amendment or revision of the Rules at the start of eachsession in which the newly elected
Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of
their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of
general circulation."59 The latter does not explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed
that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may
easily adopt different rules for its legislative inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with
the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its
legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be
effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted
pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be
considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as
expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered
valid and effective.
Respondent Committees last argument is that their issuance of the contempt order is not precipitate or arbitrary.
Taking into account the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent
Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly
manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he
be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. He
did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent Committees
to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive official under
the direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed
by his superior? Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007
hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on Executive
Secretary Ermitas claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the arrest of
petitioner. They could have informed petitioner of their ruling and given him time to decide whether to accede or file
a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal
branch of government. He is an alter ego of the President. The same haste and impatience marked the issuance of the
contempt order, despite the absence of the majority of the members of the respondent Committees, and their
subsequent disregard of petitioners motion for reconsideration alleging the pendency of his petition
for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political branches
of government. In a free and democratic society, the interests of these branches inevitably clash, but each must treat
the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it is
imperative for the continued health of our democratic institutions that we preserve the constitutionally mandated
checks and balances among the different branches of government.
In the present case, it is respondent Committees contention that their determination on the validity of executive
privilege should be binding on the Executive and the Courts. It is their assertion that theirinternal procedures and
deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between
co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court to
wonder: In respondent Committees paradigm of checks and balances, what are the checks to the Legislatures all-
encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees well-intentioned efforts to ferret out corruption, even in
the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it
by the Constitution and granted instead to the other branches of government.
There is no question that any story of government malfeasance deserves an inquiry into its veracity. As respondent
Committees contend, this is founded on the constitutional command of transparency and public accountability. The
recent clamor for a "search for truth" by the general public, the religious community and the academe is an indication
of a concerned citizenry, a nation that demands an accounting of an entrusted power. However, the best venue for
this noble undertaking is not in the political branches of government. The customary partisanship and the absence of
generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets
the test of the constitutional guarantee of due process of law. We believe the people deserve a more exacting "search
for truth" than the process here in question, if that is its objective.
WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is hereby DENIED.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario,
Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.

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1. Tanada vs.

The HRET recited the facts as follows:

WHEREFORE, the petition is DISMISSED.

The HRET promulgated the assailed Resolution on 25 September 2014.

The dispositive portion of the HRET's Resolution reads:

Wigberto filed the present Petition for Certiorari on 18 March 2015.

Wigberto enumerated the following grounds warranting allowance of his petition:

The petition has no merit. We affirm the Resolutions of the HRET.

In G.R. Nos. 207199-200, this Court narrated the following events:

The HRET's Exercise of its Jurisdiction

Section 5. Applicability of Rule 23. - x x x

midday of June 30, 2013.

G.R. No. 106971 October 20, 1992

CAMPOS, JR., J.:

7. Sabio vs. Gordon (2006)

The facts are undisputed.

WHEREFORE, be it resolved that the proper Senate Committee shall conduct an

(Sgd) MIRIAM DEFENSOR SANTIAGO

No member or staff of the Commission shall be required to testify or

IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission

To the extent that investigations in aid of legislation are generally conducted in

CHIEF JUSTICE PANGANIBAN:

CHIEF JUSTICE PANGANIBAN:

You will answer the questions of the Senators if we say that?

Yes, Your Honor. That is the law already as far as I am concerned.

Article VI, Section 21 provides:

First is the right to privacy.

Sec. 19. Privilege Against Self-Incrimination

8. Senate vs. Ermita

LEONARDO-DE CASTRO, J.:

National Economic and Development Authority (NEDA).

The facts, as culled from the pleadings, are as follows:

was to be financed by the Peoples Republic of China.

was out of town during the other dates.

to prioritize it,[7] and (c)whether or not she directed him to approve.[8]

testify on November 20, 2007.

a) Whether the President followed up the (NBN) project?

The Senate expects your explanation on or before 2 December 2007.

the implementation of the said contempt Order.

Petitioner contends that respondent Committees show cause Letter and

Sec. 1, Art. XI (Public office is a public trust)

respondent Committees joint public hearings.

Memorandum, founded on the following arguments:

As the foregoing facts unfold, related events transpired.

invited to legislative inquiries in aid of legislation.

We grant the petition.

and 22, respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of

inquiry, their objectives are different.

pronouncement in Senate v. Ermita[20] is clear:

In fine, the oversight function of Congress may be facilitated by compulsory process

settled in Senate v. Ermita, when it held:

Hence, this decision.

executive privilege despite the revocation of E.O. 464?

A- There is a Recognized Claim

communications covered by executive privilege.

considered presidential communications as presumptively privileged. Apparently, the presumption is founded on

unwilling to express except privately.

governmental decisions and policies are formulated.

to decision-making of the President while, the deliberative process privilege, to decision-making

4,341 withheld documents.

concept of presidential communications privilege is fully discussed.

of presidential communications privilege, to wit:

The U.S. Court held: