Republic of the Philippines

SUPREME COURT
Manila

EN BANC

REGHIS M. ROMERO II, G.R. No. 174105

EDMOND Q. SESE,
LEOPOLDO T. SANCHEZ, Present:
REGHIS M. ROMERO III,
MICHAEL L. ROMERO, PUNO, C.J.,
NATHANIEL L. ROMERO, QUISUMBING,
and JEROME R. CANLAS, YNARES-SANTIAGO,
Petitioners, CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
SENATOR JINGGOY E. ESTRADA BRION, and
and SENATE COMMITTEE ON PERALTA, JJ.
LABOR, EMPLOYMENT
AND HUMAN RESOURCES Promulgated:
DEVELOPMENT,
Respondents. April 2, 2009
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

At issue once again is Section 21, Article VI of the 1987 Constitution which
provides:
 The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.

The Case

This is a petition for prohibition with application for temporary restraining

order (TRO) and preliminary injunction under Rule 65, assailing the
constitutionality of the invitations and other compulsory processes issued by the
Senate Committee on Labor, Employment, and Human Resources Development
(Committee) in connection with its investigation on the investment of Overseas
Workers Welfare Administration (OWWA) funds in the Smokey Mountain project.

The Facts

On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc.,
received from the Committee an invitation,[1] signed by the Legislative Committee
Secretary, which pertinently reads as follows:

Dear Mr. Romero:

Pursuant to P.S. Resolution No. 537, entitled: RESOLUTION DIRECTING THE

LABOR COMMITTEE TO INVESTIGATE, IN AID OF LEGISLATION, THE
LIABILITY FOR PLUNDER OF THE FORMER PRESIDENT RAMOS AND
OTHERS, FOR THE ILLEGAL INVESTMENT OF OWWA FUNDS IN THE
SMOKEY MOUNTAIN PROJECT, CAUSING A LOSS TO OWWA OF P550.86
MILLION and P.S. Resolution No. 543, entitled: RESOLUTION DIRECTING
THE COMMITTEE ON LABOR AND EMPLOYMENT, IN ITS ONGOING
INQUIRY IN AID OF LEGISLATION, ON THE ALLEGED OWWA LOSS OF
P480 MILLION TO FOCUS ON THE CULPABILITY OF THEN PRESIDENT
FIDEL RAMOS, THEN OWWA ADMINISTRATOR WILHELM SORIANO, AND
R-II BUILDERS OWNER REGHIS ROMERO II, x x x the Committee on Labor,
Employment and Human Resources Development chaired by Sen. Jinggoy
Ejercito Estrada will conduct a public hearing at 1:00 p.m. on the 23rd day of
August 2006 at the Sen. G.T. Pecson Room, 2nd floor, Senate of the Philippines,
Pasay City.
The inquiry/investigation is specifically intended to aid the Senate in the review
and possible amendments to the pertinent provisions of R.A. 8042, the Migrant
Workers Act and to craft a much needed legislation relative to the stated subject
matter and purpose of the aforementioned Resolutions.
 By virtue of the power vested in Congress by Section 21, Article VI of 1987
Constitution regarding inquiries in aid of legislation, may we have the privilege
of inviting you to the said hearing to shed light on any matter, within your
knowledge and competence, covered by the subject matter and purpose of the
inquiry. Rest assured that your rights, when properly invoked and not unfounded,
will be duly respected. (Emphasis in the original.)

In his letter-reply[2] dated August 18, 2006, petitioner Romero II requested to be

excused from appearing and testifying before the Committee at its scheduled
hearings of the subject matter and purpose of Philippine Senate (PS) Resolution
Nos. 537 and 543. He predicated his request on grounds he would later
substantially reiterate in this petition for prohibition.

On August 28, 2006, the Committee sent petitioner Romero II a letter

informing him that his request, being unmeritorious, was denied.[3] On the same
date, invitations were sent to each of the other six petitioners, then members of the
Board of Directors of R-II Builders, Inc., requesting them to attend the September
4, 2006 Committee hearing. The following day, Senator Jinggoy Estrada, as
Chairperson of the Committee, caused the service of a subpoena ad
testificandum[4] on petitioner Romero II directing him to appear and testify before
the Committee at its hearing on September 4, 2006 relative to the aforesaid Senate
resolutions. The Committer later issued separate subpoenas[5] to other petitioners,
albeit for a different hearing date.

On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No.
174105, seeking to bar the Committee from continuing with its inquiry and to
enjoin it from compelling petitioners to appear before it pursuant to the invitations
thus issued.

Failing to secure the desired TRO sought in the petition, petitioner Romero II
appeared at the September 4, 2006 Committee investigation.

Two days after, petitioner Romero II filed a Manifestation with Urgent Plea
for a TRO[6] alleging, among others, that: (1) he answered questions concerning the
investments of OWWA funds in the Smokey Mountain project and how much of
OWWAs original investment had already been paid; (2) when Senator Estrada
called on Atty. Francisco I. Chavez, as resource person, the latter spoke of the facts
and issues he raised with the Court in Chavez v. National Housing
Authority,[7] none of which were related to the subject of the inquiry; and (3) when
Senator Estrada adjourned the investigation, he asked petitioners Romero II and
Canlas to return at the resumption of the investigation.

The manifestation was followed by the filing on September 19, 2006 of

another urgent motion for a TRO in which petitioners imputed to the Committee
the intention to harass them as, except for petitioner Romero II, none of them had
even been mentioned in relation to the subject of the investigation.

Meanwhile, respondents, in compliance with our September 5, 2006

Resolution that ordered them to submit a comment on the original plea for a TRO,
interposed an opposition,[8] observing that the Senates motives in calling for an
investigation in aid of legislation were a political question. They also averred that
the pendency of Chavez is not sufficient ground to divest the respondents of their
jurisdiction to conduct an inquiry into the matters alleged in the petition.

In this petition, petitioners in gist claim that: (1) the subject matter of the
investigation is sub judice owing to the pendency of the Chavez petition; (2) since
the investigation has been intended to ascertain petitioners criminal liability for
plunder, it is not in aid of legislation; (3) the inquiry compelled them to appear and
testify in violation of their rights against self-incrimination; and (4) unless the
Court immediately issues a TRO, some or all of petitioners would be in danger of
being arrested, detained, and forced to give testimony against their will, before the
Court could resolve the issues raised in G.R. No. 164527.

In their Comment dated October 17, 2006,[9] respondents made a distinction

between the issues raised in Chavez and the subject matter of the Senate
resolutions, nixing the notion of sub judice that petitioners raised at every possible
turn. Respondents averred that the subject matter of the investigation focused on
the alleged dissipation of OWWA funds and the purpose of the probe was to aid
the Senate determine the propriety of amending Republic Act No. 8042 or The
Migrant Workers Act of 1995 and enacting laws to protect OWWA funds in the
future. They likewise raised the following main arguments: (1) the proposed
resolutions were a proper subject of legislative inquiry; and (2) petitioners right
against self-incrimination was well-protected and could be invoked when
incriminating questions were propounded.

On December 28, 2006, petitioners filed their Reply[10] reiterating the

arguments stated in their petition, first and foremost of which is: Whether or not
the subject matter of the Committees inquiry is sub judice.
The Courts Ruling

The Court resolves to dismiss the instant petition.

The Subject Matter of the Senate Inquiry Is no Longer Sub Judice

Petitioners contend that the subject matter of the legislative inquiry is sub judice in
view of the Chavez petition.

The sub judice rule restricts comments and disclosures pertaining to judicial
proceedings to avoid prejudging the issue, influencing the court, or obstructing the
administration of justice. A violation of the sub judice rule may render one liable
for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court.[11] The
rationale for the rule adverted to is set out in Nestle Philippines v. Sanchez:
[I]t is a traditional conviction of civilized society everywhere that courts and
juries, in the decision of issues of fact and law should be immune from every
extraneous influence; that facts should be decided upon evidence produced in
court; and that the determination of such facts should be uninfluenced by bias,
prejudice or sympathies.[12]

Chavez, assuming for argument that it involves issues subject of the respondent
Committees assailed investigation, is no longer sub judice or before a court or
judge for consideration.[13] For by an en banc Resolution dated July 1, 2008, the
Court, in G.R. No. 164527, denied with finality the motion of Chavez, as the
petitioner in Chavez, for reconsideration of the Decision of the Court dated August
15, 2007. In fine, it will not avail petitioners any to invoke the sub judice effect
of Chavez and resist, on that ground, the assailed congressional invitations and
subpoenas. The sub judice issue has been rendered moot and academic by the
supervening issuance of the en banc Resolution of July 1, 2008 in G.R. No.
164527. An issue or a case becomes moot and academic when it ceases to present a
justiciable controversy, so that a determination of the issue would be without
practical use and value. In such cases, there is no actual substantial relief to which
the petitioner would be entitled and which would be negated by the dismissal of
the petition.[14] Courts decline jurisdiction over such cases or dismiss them on the
ground of mootness, save in certain exceptional instances,[15] none of which,
however, obtains under the premises.
Thus, there is no more legal obstacleon the ground of sub judice, assuming it is
invocableto the continuation of the Committees investigation challenged in this
proceeding.

At any rate, even assuming hypothetically that Chavez is still pending final
adjudication by the Court, still, such circumstance would not bar the continuance
of the committee investigation. What we said in Sabio v. Gordon suggests as
much:

The same directors and officers contend that the Senate is barred from
inquiring into the same issues being litigated before the Court of Appeals and
the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation provide that the filing or pendency of any
prosecution or administrative action should not stop or abate any inquiry to carry
out a legislative purpose.[16]

A legislative investigation in aid of legislation and court proceedings has

different purposes. On one hand, courts conduct hearings or like adjudicative
procedures to settle, through the application of a law, actual controversies arising
between adverse litigants and involving demandable rights. On the other hand,
inquiries in aid of legislation are, inter alia, undertaken as tools to enable the
legislative body to gather information and, thus, legislate wisely and
effectively;[17] and to determine whether there is a need to improve existing laws or
enact new or remedial legislation,[18] albeit the inquiry need not result in any
potential legislation. On-going judicial proceedings do not preclude congressional
hearings in aid of legislation. Standard Chartered Bank (Philippine Branch) v.
Senate Committee on Banks, Financial Institutions and Currencies (Standard
Chartered Bank)provides the following reason:
[T]he mere filing of a criminal or an administrative complaint before a court
or quasi-judicial body should not automatically bar the conduct of legislative
investigation. Otherwise, it would be extremely easy to subvert any
intended inquiry by Congress through the convenient ploy of instituting a
criminal or an administrative complaint. Surely, the exercise of sovereign
legislative authority, of which the power of legislative inquiry is an essential
component, cannot be made subordinate to a criminal or administrative
investigation.

As succinctly stated in x x x Arnault v. Nazareno

[T]he power of inquirywith process to enforce itis an essential and

appropriate auxiliary to the legislative function. A legislative body cannot
 legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where
the legislative body does not itself possess the requisite informationwhich
is not infrequently truerecourse must be had to others who possess it.[19]

While Sabio and Standard Chartered Bank advert only to pending criminal
and administrative cases before lower courts as not posing a bar to the continuation
of a legislative inquiry, there is no rhyme or reason that these cases doctrinal
pronouncement and their rationale cannot be extended to appealed cases and
special civil actions awaiting final disposition before this Court.

The foregoing consideration is not all. The denial of the instant recourse is
still indicated for another compelling reason. As may be noted, PS Resolution Nos.
537 and 543 were passed in 2006 and the letter-invitations and subpoenas directing
the petitioners to appear and testify in connection with the twin resolutions were
sent out in the month of August 2006 or in the past Congress. On the postulate that
the Senate of each Congress acts separately and independently of the Senate before
and after it, the aforesaid invitations and subpoenas are considered functos
oficio and the related legislative inquiry conducted is, for all intents and purposes,
terminated. In this regard, the Court draws attention to its pronouncements
embodied in its Resolution of September 4, 2008 in G.R. No. 180643 entitled Neri
v. Senate Committee on Accountability of Public Officers and Investigations:

Certainly, x x x the Senate as an institution is continuing, as it is not

dissolved as an entity with each national election or change in the composition of
its members. However, in the conduct of its day-to-day business, the Senate of
each Congress acts separately and independently of the Senate before it. The
Rules of the Senate itself confirms this when it states:

xxxx

SEC. 123. Unfinished business at the end of the session shall be taken up
at the next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of
one (1) Congress, but may be taken by the succeeding Congress as if
present[ed] for the first time.

Undeniably from the foregoing, all pending matters and proceedings,

i.e., unpassed bills and even legislative investigations, of the Senate of a
particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to
 take up such unfinished matters, not in the same status, but as if presented for
the first time. The logic and practicality of such rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically have
a differentcomposition as that of the previous Congress) should not be bound by
the acts and deliberations of the Senate of which they had no part. x x x
(Emphasis added.)

Following the lessons of Neri, as reiterated in Garcillano v. The House of

Representatives Committees on Public Information, Public Order and Safety, et
al.,[20] it can very well be stated that the termination of the assailed investigations
has veritably mooted the instant petition. This disposition becomes all the more
impeccable, considering that the Senate of the present Congress has not, per
available records, opted to take up anew, as an unfinished matter, its inquiry into
the investment of OWWA funds in the Smokey Mountain project.

With the foregoing disquisition, the Court need not belabor the other issues
raised in this recourse. Suffice it to state that when the Committee issued
invitations and subpoenas to petitioners to appear before it in connection with its
investigation of the aforementioned investments, it did so pursuant to its authority
to conduct inquiries in aid of legislation. This is clearly provided in Art. VI, Sec.
21 of the Constitution, which was quoted at the outset. And the Court has no
authority to prohibit a Senate committee from requiring persons to appear and
testify before it in connection with an inquiry in aid of legislation in accordance
with its duly published rules of procedure.[21] Sabio emphasizesthe importance of
the duty of those subpoenaed to appear before the legislature, even if incidentally
incriminating questions are expected to be asked:
Anent the right against self-incrimination, it must be emphasized that [this
right may be] invoked by the said directors and officers of Philcomsat x x x only
when the incriminating question is being asked, since they have no way of
knowing in advance the nature or effect of the questions to be asked of
them. That this right may possibly be violated or abused is no ground for
denying respondent Senate Committees their power of inquiry. The consolation is
that when this power is abused, such issue may be presented before the courts.

xxxx

Let it be stressed at this point that so long as the constitutional rights of

witnesses x x x will be respected by respondent Senate Committees, it [is] their
duty to cooperate with them in their efforts to obtain the facts needed for
intelligent legislative action. The unremitting obligation of every citizen is to
respond to subpoenae, to respect the dignity of the Congress and its
 Committees, and to testify fully with respect to matters within the realm of
proper investigation.[22] (Emphasis supplied.)

As a matter of long and sound practice, the Court refrains from touching on the
issue of constitutionality except when it is unavoidable and is the very lis
mota[23] of the controversy. So it must be here. Indeed, the matter of the
constitutionality of the assailed Committee invitations and subpoenas issued vis--
vis the investigation conducted pursuant to PS Resolution Nos. 537 and 543 has
ceased to be a justiciable controversy, having been rendered moot and academic by
supervening events heretofore indicated. In short, there is no more investigation to
be continued by virtue of said resolutions; there is no more investigation the
constitutionality of which is subject to a challenge.

WHEREFORE, the petition is DENIED.

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice
ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]
Rollo, p. 39.
[2]
Id. at 41.
[3]
Id. at 236.
[4]
Id. at 261.
[5]
Id. at 280-293.
[6]
Id. at 264.
[7]
G.R. No. 164527, August 15, 2007, 530 SCRA 235.
[8]
Rollo, pp. 296-322.
[9]
Id. at 335.
[10]
Id. at 503.
[11]
Sec. 3. Indirect contempt to be punished after charge and hearing.After a charge in writing has been filed, and an
opportunity given to the respondent to comment thereon x x x and to be heard by himself or counsel, a person guilty
of any of the following acts may be punished for indirect contempt:
xxxx
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of
justice.
[12]
G.R. Nos. L-75209 & L-78791, September 30, 1987, 154 SCRA 542, 546; citing In Re Stolen, 216 N.W. 127.
[13]
S.H. Gifis, LAW DICTIONARY 492 (4th ed., 1996).
[14]
Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA 91, 97.
[15]
David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3,
2006, 489 SCRA 160, 214-215: Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public; andfourth, the case is capable of repetition yet evading review.
[16]
G.R. Nos. 174340, 174318 & 174177, October 17, 2006, 504 SCRA 704, 739.
[17]
Arnault v. Nazareno, 87 Phil. 29 (1950).
[18]
Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, March 25,
2008, 549 SCRA 77, 168; citing W. Keefe & M. Ogul, THE AMERICAN LEGISLATIVE PROCESS: CONGRESS
AND THE STATES 20-23 (4th ed., 1977).
[19]
G.R. No. 167173, December 27, 2007, 541 SCRA 456, 471-472.
[20]
G.R. Nos. 170338 & 179275, December 23, 2008.
[21]
The Senate Blue Ribbon Committee v. Majaducon, G.R. Nos. 136760 & 138378, July 29, 2003, 407
SCRA 356, 362-363.
[22]
Supra note 16, at 739-740; citing Cruz, CONSTITUTIONAL LAW 307 (2003).
[23]
The beginning of an action or suit.
 EN BANC

*
SENATE OF THE PHILIPPINES, G.R. No. 169777
represented by FRANKLIN M. Present:
DRILON, in his capacity as Senate
President, JUAN M. FLAVIER, in PANGANIBAN, C.J.,
his capacity as Senate President Pro PUNO,**
Tempore, FRANCIS N. QUISUMBING,
PANGILINAN, in his capacity as YNARES-SANTIAGO,
Majority Leader, AQUILINO Q. SANDOVAL-GUTIERREZ,
PIMENTEL, JR., in his capacity as CARPIO,
Minority Leader, SENATORS AUSTRIA-MARTINEZ,
RODOLFO G. BIAZON, CORONA,
COMPANERA PIA S. CARPIO MORALES,
CAYETANO, JINGGOY CALLEJO, SR.,
EJERCITO ESTRADA, LUISA LOI AZCUNA,
EJERCITO ESTRADA, JUAN TINGA,
PONCE ENRILE, RICHARD J. CHICO-NAZARIO,
GORDON, PANFILO M. LACSON, GARCIA, and
ALFREDO S. LIM, M. A. VELASCO, JR., JJ.
MADRIGAL, SERGIO OSMENA
III, RALPH G. RECTO, and MAR
ROXAS,
Petitioners,

- versus - Promulgated:

EDUARDO R. ERMITA, in his April 20, 2006

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.
x------------------------------------------x
 G.R. No. 169659
BAYAN MUNA represented by DR.
REYNALDO LESACA, JR., Rep.
SATUR OCAMPO, Rep. CRISPIN
BELTRAN, Rep. RAFAEL
MARIANO, Rep. LIZA MAZA,
Rep. TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE
represented by FERDINAND
GAITE, and COUNSELS FOR THE
DEFENSE OF LIBERTIES
(CODAL) represented by ATTY.
REMEDIOS BALBIN,
Petitioners,

- versus -

EDUARDO ERMITA, in his

capacity as Executive Secretary and
alter-ego of President Gloria
Macapagal-Arroyo,
Respondent.
x------------------------------------------x
G.R. No. 169660
FRANCISCO I. CHAVEZ,
Petitioner,
- versus -

EDUARDO R. ERMITA, in his

capacity as Executive Secretary,
AVELINO J. CRUZ, JR., in his
capacity as Secretary of Defense, and
GENEROSO S. SENGA, in his
capacity as AFP Chief of Staff,
Respondents.
x------------------------------------------x
G.R. No. 169667
ALTERNATIVE LAW GROUPS,
INC. (ALG),
Petitioner,
- versus -

HON. EDUARDO R. ERMITA, in

his capacity as Executive Secretary,
Respondent.
x-----------------------------------------x
G.R. No. 169834
PDP- LABAN,
Petitioner,

- versus -

EXECUTIVE SECRETARY
EDUARDO R. ERMITA,
Respondent.
x------------------------------------------x
G.R. No. 171246
JOSE ANSELMO I. CADIZ,
FELICIANO M.
BAUTISTA,ROMULO R. RIVERA,
JOSE AMOR AMORANDO,
ALICIA A. RISOS-VIDAL,
FILEMON C. ABELITA III,
MANUEL P. LEGASPI, J. B. JOVY
C. BERNABE, BERNARD L.
DAGCUTA, ROGELIO V.
GARCIA, and the INTEGRATED
BAR FOR THE PHILIPPINES,
Petitioners,

- versus -

HON. EXECUTIVE SECRETARY

EDUARDO R. ERMITA,
Respondent.
x-----------------------------------------------------------------------------------------x
 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

invitations[2] 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 letter[3] dated
September 27, 2005, requested for its postponement due to a pressing operational
situation that demands [his] utmost personal attention while some of the invited
AFP officers are currently attending to other urgent operational matters.

On September 28, 2005, Senate President Franklin M. Drilon received from

Executive Secretary Eduardo R. Ermita a letter[4] dated September 27, 2005
respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited in order to afford said officials ample time and opportunity to study
and prepare for the various issues so that they may better enlighten the Senate
Committee on its investigation.

Senate President Drilon, however, wrote[5] Executive Secretary Ermita that the
Senators are unable to accede to [his request] as it was sent belatedly and [a]ll
preparations and arrangements as well as notices to all resource persons were
completed [the previous] week.

Senate President Drilon likewise received on September 28, 2005 a letter[6] 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:
i. 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);
ii. 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).
iii. 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);
iv. Discussion in close-door Cabinet meetings (Chavez v.
Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);
v. 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:
i. Senior officials of executive departments who in the judgment of
the department heads are covered by the executive privilege;
ii. Generals and flag officers of the Armed Forces of the Philippines
and such other officers who in the judgment of the Chief of
Staff are covered by the executive privilege;
iii. Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the
judgment of the Chief of the PNP are covered by the executive
privilege;
 iv. Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive privilege;
and
v. Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public
officials enumerated in Section 2 (b) hereof shall secure prior consent of the
President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter[8] informing him that
officials of the Executive Department invited to appear at the meeting [regarding
the NorthRail project] will not be able to attend the same without the consent of the
President, pursuant to [E.O. 464] and that said officials have not secured the
required consent from the President. On even date which was also the scheduled
date of the hearing on the alleged wiretapping, Gen. Senga sent a letter[9] 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 letter[14] dated February 6, 2006, Senator Biazon reiterated
his invitation to Gen. Senga for him and other military officers to attend the
hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga
replied, however, by letter[15] 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 Management[18] 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. Gonzalez[20] and Department of Interior and Local Government Undersecretary
Marius P. Corpus[21] 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. Theprocedural 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. 169660[23] and G.R. No. 169777[24] filed their
memoranda on March 7, 2006, while those in G.R. No. 169667[25] and G.R. No.
169834[26] 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
manifestation[28] 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. 21[30]

Art. VI, Sec. 22[31]
Art. VI, Sec. 1[32]
Art. XI, Sec. 1[33]
 Art. III, Sec. 7[34]
Art. III, Sec. 4[35]
Art. XIII, Sec. 16 [36]
Art. II, Sec. 28[37]

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 legislation[45] 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-
[49]
petitioners COURAGE and CODAL is rendered unnecessary.
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members,[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.[67] Tribe, in fact, comments that while it is
customary to employ the phrase executive privilege, it may be more accurate to
speak of executive privileges since presidential refusals to furnish information may
be actuated by any of at least three distinct kinds of considerations, and may be
asserted, with differing degrees of success, in the context of either judicial or
legislative investigations.

One variety of the privilege, Tribe explains, is the state secrets

privilege invoked by U.S. Presidents, beginning with Washington, on the ground
that the information is of such nature that its disclosure would subvert crucial
military or diplomatic objectives. Another variety is the informers privilege, or
the privilege of the Government not to disclose the identity of persons who
furnish information of violations of law to officers charged with the enforcement
of that law. Finally, a generic privilege for internal deliberations has been said to
attach to intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. [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 diplomaticsecrets 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.[77] Almonte used the term in reference to the same
privilege subject ofNixon. 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.

 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
Constitution[86] 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
Secretary.

Validity of Sections 2 and 3

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

The enumeration also includes such other officers as may be determined by the
President. Given the title of Section 2 Nature, Scope and Coverage of Executive
Privilege , it is evident that under the rule of ejusdem generis, the determination by
the President under this provision is intended to be based on a similar finding of
coverage under executive privilege.

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

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

Upon a determination by the designated head of office or by the President that an

official is covered by the executive privilege, such official is subjected to the
requirement that he first secure the consent of the President prior to appearing
before Congress. This requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President. The proviso allowing the
President to give its consent means nothing more than that the President may
reverse a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head

of office, authorized by the President under E.O. 464, or by the President herself,
that such official is in possession of information that is covered by executive
privilege. This determination then becomes the basis for the officials not showing
up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be
present, such invocation must be construed as a declaration to Congress that the
President, or a head of office authorized by the President, has determined that the
requested information is privileged, and that the President has not reversed such
determination. Such declaration, however, even without mentioning the term
executive privilege, amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of
executive privilege. Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to
Senate President Drilon illustrates the implied nature of the claim of privilege
authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole

regarding the Northrail Project of the North Luzon Railways Corporation on 29
September 2005 at 10:00 a.m.,please be informed that officials of the Executive
Department invited to appear at the meeting will not be able to attend the same
without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled Ensuring Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For The Rights Of
Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under
 The Constitution, And For Other Purposes. Said officials have not secured the
required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which
these officials are being requested to be resource persons falls under the recognized
grounds of the privilege to justify their absence. Nor does it expressly state that in
view of the lack of consent from the President under E.O. 464, they cannot attend
the hearing.

Significant premises in this letter, however, are left unstated, deliberately or

not. The letter assumes that the invited officials are covered by E.O. 464. As
explained earlier, however, to be covered by the order means that a determination
has been made, by the designated head of office or the President, that the invited
official possesses information that is covered by executive privilege. Thus,
although it is not stated in the letter that such determination has been made, the
same must be deemed implied. Respecting the statement that the invited officials
have not secured the consent of the President, it only means that the President has
not reversed the standing prohibition against their appearance before Congress.

Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the
executive branch, either through the President or the heads of offices authorized
under E.O. 464, has made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has been no contrary
pronouncement from the President. In fine, an implied claim of privilege has been
made by the executive.

While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from Chavez v.
PEA that certain information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner

is privileged information rooted in the separation of powers. The information
does not cover Presidential conversations, correspondences, or discussions
during 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 exercisePresidential,
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. Vasquez[94] 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 Energy[99] similarly emphasizes that an agency
must provide precise and certain reasons for preserving the confidentiality of
requested information.

Black v. Sheraton Corp. of America[100] 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 inMcPhaul 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 asubpoena 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

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(ON LEAVE)
REYNATO S. PUNO LEONARDO A.
Associate Justice QUISUMBINGAssociate Justice
CONSUELO YNARES- SANTIAGO ANGELINA SANDOVAL-GUTIERREZ
Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
 CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that

the conclusions in the above Resolution were reached in consultation before the
case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

*
Henceforth, in consolidated petitions which assail the validity or constitutionality of an issuance of a government
official or agency, the petitioner which is the most directly affected by the issuance shall be first in the order of
enumeration of the titles of the petitions irrespective of their docket numbers or dates of filing.
**
On Leave.
[1]
HAMILTON, THE FEDERALIST No. 70.
[2]
Annexes J-2 to J-7, rollo (G.R. No. 169777), pp. 72-77.
[3]
Annex G, id. at 58.
[4]
Annex B, id. at 52.
[5]
Annex C, id. at 53.
[6]
Annex D, id. at 54-55.
[7]
Annex A, id. at 48-51.
[8]
Annex F, id. at 57.
[9]
Annex H, id. at 59.
[10]
Rollo (G.R. No. 169777), p. 379.
[11]
Ibid.
[12]
The petitioner names the following organizations as members: Albert Schweitzer Association, Philippines, Inc.
(ASAP), Alternative Law Research and Development Center, Inc. (ALTERLAW), Ateneo Human Rights
Center (AHRC), Balay Alternative Legal Advocates for Development in Mindanaw, Inc (BALAOD
Mindanaw), Childrens Legal Bureau (CLB), Inc., Environment Legal Assistance Center (ELAC), Free
Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc. (FREELAVA),
Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN), Legal Rights and
Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-LSK/FOEI-Phils.),
Paglilingkod Batas Pangkapatiran Foundation (PBPF), Participatory Research Organization of Communities
and Education Towards Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc., Pilipina Legal
Resources Center (PLRC), Sentro ng Alternatibong Lingap Panligal (SALIGAN), Tanggapang Panligal ng
Katutubong Pilipino (PANLIPI), Tanggol Kalikasan (TK), Womens Legal Bureau (WLB), and Womens Legal
Education, Advocacy and Defense Foundation, Inc. (WomenLEAD).
[13]
Rollo (G.R. No. 169667), p. 22.
[14]
Annex H, id. at 460-461.
[15]
Annex H-1, id. at 462.
[16]
Rollo (G.R. No. 169777), pp. 383-384.
[17]
Annex K, rollo (G.R. No. 169777), p. 466.
[18]
Annex J, id. at 465.
[19]
Annex M, id. at 468.
[20]
Annex N, id. at 469.
[21]
Annex O, id. at 470.
[22]
Court En Banc Resolution dated February 21, 2006, rollo (G.R. No. 169659), pp. 370-372.
[23]
Rollo (G.R. No. 169660), pp. 339-370.
[24]
Rollo (G.R. No. 169777), pp. 373-439.
[25]
Rollo (G.R. No. 169667), pp. 388-426.
[26]
Rollo (G.R. No. 169834), pp. 211-240.
[27]
Rollo (G.R. No. 169659), pp. 419-421.
[28]
id. at 469-471.
[29]
Court En Banc Resolution dated March 21, 2006, rollo (G.R. No. 169659), pp. 570-572.
[30]
Sec. 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.
[31]
Sec. 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.
[32]
Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum.
[33]
Sec. 1. 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.
[34]
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 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.
[35]
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.
[36]
Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of
social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the
establishment of adequate consultation mechanisms.
[37]
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.
[38]
Rollo (G.R. No. 169777), pp. 524-569.
[39]
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.
[40]
Citing Lujan v. Defenders of Wildlife, 504 US 555, 119 L. Ed.2d 351 (1992), rollo (G.R. No. 169777), p. 116.
[41]
Citing Lim v. Hon. Exec. Sec., 430 Phil. 555 (2002), rollo (G.R. No. 169777), p. 116.
[42]
G.R. No. 67752, April 10, 1989, 171 SCRA 657.
[43]
G.R. No. 78716, September 22, 1987 (res).
[44]
Rollo (G.R. No. 169777), p. 117.
[45]
Id. at 279.
[46]
Ibid.
[47]
Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632.
[48]
Section 2 of The Party-List System Act (Republic Act 7941) reads:
SEC. 2. Declaration of Policy. The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State
shall develop and guarantee a full, free and open party system in order to attain the broadest possible
representation of party, sectoral or group interests in the House of Representatives by enhancing their chances
to compete for and win seats in the legislature, and shall provide the simplest scheme possible.
[49]
Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744 , 761 (1998).
[50]
IBP Board of Governors Resolution No. XVII-2005-18, rollo (G.R. No 171246), p. 28.
[51]
Rollo (G.R. No. 169667), p. 3.
[52]
Rollo (G.R. No. 169660), p. 5.
[53]
Supra note 39 at 136.
[54]
Francisco, Jr. v. House of Representatives, supra note 39 at 139.
[55]
Lozada v. Commission on Elections, 205 Phil. 283, 287 (1983).
[56]
Rollo (G.R. No. 169659), p. 79.
[57]
Rollo (G.R. No. 169659), pp. 80-81.
[58]
87 Phil. 29 (1950).
[59]
Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927).
[60]
Id. at 46.
[61]
G.R. 89914, Nov. 20, 1991, 203 SCRA 767.
[62]
WHEREAS, pursuant to the rule on executive privilege, the President and those who assist her must be free to
explore the alternatives in the process of shaping policies and making decisions since this is fundamental to the
operation of the government and is rooted in the separation of powers under the Constitution;
xxxx
WHEREAS, recent events, particularly with respect to the invitation of a member of the Cabinet by the
Senate as well as various heads of offices, civilian and military, have highlighted the need to ensure the
observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for
the rights of persons appearing in such inquiries in aid of legislation and due regard to constitutional mandate; x
xx
[63]
II Record, CONSTITUTIONAL COMMISSION 150-151 (July 23, 1986).
[64]
B. SCHWARTZ, EXECUTIVE PRIVILEGE AND CONGRESSIONAL INVESTIGATORY POWER 47 Cal.
L. Rev. 3.
[65]
M. ROZELL, Executive Privilege and the Modern Presidents: In Nixons Shadow (83 Minn. L. Rev. 1069).
[66]
P. SHANE & H. BRUFF, SEPARATION OF POWERS: LAW CASES AND MATERIALS 292 (1996).
[67]
Id. at 293.
[68]
I L.TRIBE, AMERICAN CONSTITUTIONAL LAW 770-1 (3rd ed., 2000).
[69]
121 F.3d 729, 326 U.S. App. D.C. 276.
[70]
BLACKS LAW DICTIONARY 569-570 (6th ed., 1991) citing 5 U.S.C.A. Sec. 552(b)(1); Black v. Sheraton
Corp. of America, D.C.D.C., 371 F.Supp. 97, 100.
[71]
I L.TRIBE, supra note 68 at 771.
[72]
418 U.S. 683 (1974)
[73]
In re Sealed Case 121 F.3d 729, 326 U.S.App.D.C. 276 (1997) states: It appears that the courts have been drawn
into executive-congressional privilege disputes over access to information on only three recent occasions. These
were: Unites States v. AT&T, 551 F.2d 384 (D.C. Cir.1976), appeal after remand, 567 F.2d 121
(D.C.Cir.1977); Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Committee), 498
F.2d 725 (D.C. Cir. 1974); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983); Vide R.
IRAOLA, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal
Criminal Investigations and Prosecutions (87 Iowa L. Rev. 1559): The Supreme Court has yet to rule on a
dispute over information requested by Congress where executive privilege has been asserted; in the past twenty-
five years, there have been only three reported cases dealing with this issue.
[74]
J. CHAPER & R. FALLON, JR., CONSTITUTIONAL LAW: CASES COMMENTS QUESTIONS
197 (9th ed., 2001).
[75]
Senate Select Committee on Presidential Campaign Activities v. Nixon 498 F.2d 725, 162 U.S.App.D.C.183
(May 23, 1974).
[76]
N. REDLICH & B. SCHWARTZ, CONSTITUTIONAL LAW 333 (3rd ed. ,1996) states in Note 24: Now that
the Supreme Court decision has specifically recognized a privilege of confidentiality of Presidential
communications, the Select Committee decision appears even stronger. If the need of the Watergate Committee
for evidence was not enough before the Supreme Court recognized executive privilege, the same would surely
have been true after the recognition. And, if the demand of the Watergate Committee, engaged in a specific
investigation of such importance, was not enough to outweigh the nondisclosure claim, it is hard to see what
Congressional demand will fare better when met by an assertion of privilege.
[77]
314 Phil. 150 (1995).
[78]
Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166 (1995) states: To put this case in perspective it should be
stated at the outset that it does not concern a demand by a citizen for information under the freedom of
information guarantee of the Constitution.
[79]
360 Phil. 133 (1998).
[80]
Chavez v. PCGG, 360 Phil. 133, 160 (1998).
[81]
433 Phil. 506 (2002).
[82]
Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).
[83]
II RECORD, CONSTITUTIONAL COMMISSION 199 (July 24, 1986).
[84]
II RECORD, CONSTITUTIONAL COMMISSION 900-1 (October 12, 1986).
[85]
H. MENDOZA & A. LIM, THE NEW CONSTITUTION 177 (1974).
[86]
CONSTITUTION (1973), Art. VIII, Sec. 12(1).
[87]
R. MARTIN, THE NEW CONSTITUTION OF THE PHILIPPINES 394 (1973).
[88]
II RECORD, CONSTITUTIONAL COMMISSION 133 (July 23, 1986).
[89]
SCHWARTZ, supra at 11-12.
[90]
Supra.
[91]
Supra note 82 at 189.
[92]
345 U.S. 1 , 73 S. Ct. 528, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953).
[93]
Vide TRIBE, supra note 68.
[94]
Supra note 78.
[95]
Supra note 75.
[96]
403 F.Supp. 1000, 20 Fed,R.Serv.2d 1382 (1975).
[97]
43 F.R.D. 181 (1967).
[98]
Ibid., citation omitted.
[99]
520 F.Supp.414, 32 Fed.R.Serv.2d 913 (1981).
[100]
371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974).
[101]
Ibid., citations omitted.
[102]
364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960).
[103]
U.S. v. Reynolds, supra note 85.
[104]
341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
[105]
In re Sealed Case, supra note 69.
[106]
BLACKS LAW DICTIONARY, supra note 70 at 569.
[107]
G.R. No. 74930, February 13, 1989, 170 SCRA 256.
[108]
G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453.
[109]
HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN
CONSTITUTIONAL CONTROLS (1981) 13.
 EN BANC

MA. MERCEDITAS N. G.R. No. 193459

GUTIERREZ
Petitioner,
Present:

- versus - CORONA, C.J.,

CARPIO,
CARPIO MORALES,
THE HOUSE OF VELASCO, JR.,*
REPRESENTATIVES NACHURA,
COMMITTEE ON JUSTICE, LEONARDO-DE CASTRO,
RISA HONTIVEROS- BRION,
BARAQUEL, DANILO D. PERALTA,
LIM, FELIPE PESTAO, BERSAMIN,
EVELYN PESTAO, RENATO DEL CASTILLO,
M. REYES, JR., SECRETARY ABAD,
GENERAL OF BAGONG VILLARAMA, JR.,
ALYANSANG MAKABAYAN PEREZ,
(BAYAN); MOTHER MARY MENDOZA, and
JOHN MANANZAN, CO- SERENO, JJ.
CHAIRPERSON OF
PAGBABAGO; DANILO
RAMOS, SECRETARY-
GENERAL OF KILUSANG
MAGBUBUKID NG
PILIPINAS (KMP); ATTY.
EDRE OLALIA, ACTING
SECRETARY GENERAL OF
THE NATIONAL UNION OF
PEOPLES LAWYERS (NUPL);
FERDINAND R. GAITE,
CHAIRPERSON,
CONFEDERATION FOR
UNITY, RECOGNITION AND Promulgated:
ADVANCEMENT OF
 GOVERNMENT February 15, 2011

EMPLOYEES (COURAGE);
and JAMES TERRY RIDON
OF THE LEAGUE OF
FILIPINO STUDENTS (LFS),
Respondents.

FELICIANO BELMONTE,
JR.,
Respondent-Intervenor.

x-------------------------------------------------------------------------------- x

DECISION

CARPIO MORALES, J.:

The Ombudsman, Ma. Merceditas Gutierrez (petitioner), challenges via petition for
certiorari and prohibition the Resolutions of September 1 and 7, 2010 of the House
of Representatives Committee on Justice (public respondent).

Before the 15th Congress opened its first session on July 26, 2010 (the fourth
Monday of July, in accordance with Section 15, Article VI of the Constitution) or
on July 22, 2010, private respondents Risa Hontiveros-Baraquel, Danilo Lim, and
spouses Felipe and Evelyn Pestao (Baraquel group) filed an impeachment
complaint[1] against petitioner, upon the endorsement of Party-List Representatives
Arlene Bag-ao and Walden Bello.[2]

A day after the opening of the 15th Congress or on July 27, 2010, Atty. Marilyn
Barua-Yap, Secretary General of the House of Representatives, transmitted the
impeachment complaint to House Speaker Feliciano Belmonte, Jr.[3] who, by
Memorandum of August 2, 2010, directed the Committee on Rules to include it in
the Order of Business.[4]
On August 3, 2010, private respondents Renato Reyes, Jr., Mother Mary John
Mananzan, Danilo Ramos, Edre Olalia, Ferdinand Gaite and James Terry Ridon
(Reyes group) filed another impeachment complaint[5] against petitioner with a
resolution of endorsement by Party-List Representatives Neri Javier Colmenares,
Teodoro Casio, Rafael Mariano, Luzviminda Ilagan, Antonio Tinio and
Emerenciana de Jesus.[6] On even date, the House of
Representatives provisionally adopted the Rules of Procedure in Impeachment
Proceedings of the 14th Congress. By letter still of even date,[7] the Secretary
General transmitted the Reyes groups complaint to Speaker Belmonte who, by
Memorandum of August 9, 2010,[8] also directed the Committee on Rules to
include it in the Order of Business.

On August 10, 2010, House Majority Leader Neptali Gonzales II, as chairperson of
the Committee on Rules,[9] instructed Atty. Artemio Adasa, Jr., Deputy Secretary
General for Operations, through Atty. Cesar Pareja, Executive Director of the
Plenary Affairs Department, to include the two complaints in the Order of
Business,[10] which was complied with by their inclusion in the Order of Business
for the following day, August 11, 2010.

On August 11, 2010 at 4:47 p.m., during its plenary session, the House of
Representatives simultaneously referred both complaints to public respondent.[11]

After hearing, public respondent, by Resolution of September 1, 2010, found both

complaints sufficient in form, which complaints it considered to have been referred
to it at exactly the same time.

Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th

Congress was published on September 2, 2010.

On September 6, 2010, petitioner tried to file a motion to reconsider the September

1, 2010 Resolution of public respondent. Public respondent refused to accept the
motion, however, for prematurity; instead, it advised petitioner to await the notice
for her to file an answer to the complaints, drawing petitioner to furnish copies of
her motion to each of the 55 members of public respondent.
After hearing, public respondent, by Resolution of September 7, 2010, found the
two complaints, which both allege culpable violation of the Constitution and
betrayal of public trust,[12] sufficient in substance. The determination of the
sufficiency of substance of the complaints by public respondent, which assumed
hypothetically the truth of their allegations, hinged on the issue of whether valid
judgment to impeach could be rendered thereon. Petitioner was served also on
September 7, 2010 a notice directing her to file an answer to the complaints within
10 days.[13]

Six days following her receipt of the notice to file answer or on September 13,
2010, petitioner filed with this Court the present petition with application for
injunctive reliefs. The following day or on September 14, 2010, the Court En
Banc RESOLVED to direct the issuance of a status quo ante order[14] and to
require respondents to comment on the petition in 10 days. The Court
subsequently, by Resolution of September 21, 2010, directed the Office of the
Solicitor General (OSG) to file in 10 days its Comment on the petition

The Baraquel group which filed the first complaint, the Reyes group which filed
the second complaint, and public respondent (through the OSG and private
counsel) filed their respective Comments on September 27, 29 and 30, 2010.

Speaker Belmonte filed a Motion for Leave to Intervene dated October 4, 2010
which the Court granted by Resolution of October 5, 2010.

Under an Advisory[15] issued by the Court, oral arguments were conducted on

October 5 and 12, 2010, followed by petitioners filing of a Consolidated Reply of
October 15, 2010 and the filing by the parties of Memoranda within the given 15-
day period.

The petition is harangued by procedural objections which the Court shall first
resolve.

Respondents raise the impropriety of the remedies of certiorari and

prohibition. They argue that public respondent was not exercising any judicial,
quasi-judicial or ministerial function in taking cognizance of the two impeachment
complaints as it was exercising a political act that is discretionary in nature,[16] and
that its function is inquisitorial that is akin to a preliminary investigation.[17]

These same arguments were raised in Francisco, Jr. v. House of

Representatives.[18] The argument that impeachment proceedings are beyond the
reach of judicial review was debunked in this wise:

The major difference between the judicial power of the Philippine

Supreme Court and that of the U.S. Supreme Court is that while the power of
judicial review is only impliedlygranted to the U.S. Supreme Court and is
discretionary in nature, that granted to the Philippine Supreme Court and lower
courts, as expressly provided for in the Constitution, is not just a power but
also a duty, and it was given an expanded definition to include the power to
correct any grave abuse of discretion on the part of any government branch or
instrumentality.

There are also glaring distinctions between the U.S. Constitution and
the Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives without
limitation, our Constitution, though vesting in the House of Representatives the
exclusive power to initiate impeachment cases, provides for several limitations
to the exercise of such power as embodied in Section 3(2), (3), (4) and (5),
Article XI thereof. These limitations include the manner of filing, required vote
to impeach, and the one year bar on the impeachment of one and the same
official.

Respondents are also of the view that judicial review of impeachments

undermines their finality and may also lead to conflicts between Congress and
the judiciary. Thus, they call upon this Court to exercise judicial statesmanship
on the principle that "whenever possible, the Court should defer to the
judgment of the people expressed legislatively, recognizing full well the perils
of judicial willfulness and pride."

But did not the people also express their will when they instituted the
above-mentioned safeguards in the Constitution? This shows that the
Constitution did not intend to leave the matter of impeachment to the sole
discretion of Congress. Instead, it provided for certain well-defined limits, or
in the language of Baker v. Carr, "judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power
of judicial review.

xxxx
 There is indeed a plethora of cases in which this Court exercised the
power of judicial review over congressional action. Thus, in Santiago v.
Guingona, Jr., this Court ruled that it is well within the power and jurisdiction
of the Court to inquire whether the Senate or its officials committed a violation
of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Taada v. Angara, in seeking to nullify an act of
the Philippine Senate on the ground that it contravened the Constitution, it held
that the petition raises a justiciable controversy and that when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute. In Bondoc v. Pineda, this Court declared null and void a resolution of
the House of Representatives withdrawing the nomination, and rescinding the
election, of a congressman as a member of the House Electoral Tribunal for
being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra, it held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional representation of the
political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson, it held that the act of the House
of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. InTaada v. Cuenco, it held that
although under the Constitution, the legislative power is vested exclusively in
Congress, this does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress. In Angara v. Electoral Commission, it
ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential
before such member-elect may discharge the duties and enjoy the privileges of
a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset the
system of checks and balances.Verily, the Constitution is to be interpreted as a
whole and "one section is not to be allowed to defeat another." Both are
integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the
powers assigned to it by the Constitution.[19] (citations omitted; italics in the
original; underscoring supplied)

Francisco characterizes the power of judicial review as a duty which, as

the expanded certiorari jurisdiction[20] of this Court reflects, includes the power 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.[21]
 In the present case, petitioner invokes the Courts expanded certiorari
jurisdiction, using the special civil actions of certiorari and prohibition as
procedural vehicles. The Court finds it well-within its power to determine whether
public respondent committed a violation of the Constitution or gravely abused its
discretion in the exercise of its functions and prerogatives that could translate as
lack or excess of jurisdiction, which would require corrective measures from the
Court.

Indubitably, the Court is not asserting its ascendancy over the Legislature in
this instance, but simply upholding the supremacy of the Constitution as the
repository of the sovereign will.[22]

Respondents do not seriously contest all the essential requisites for the
exercise of judicial review, as they only assert that the petition is premature and not
yet ripe for adjudication since petitioner has at her disposal a plain, speedy and
adequate remedy in the course of the proceedings before public respondent. Public
respondent argues that when petitioner filed the present petition[23] on September
13, 2010, it had not gone beyond the determination of the sufficiency of form and
substance of the two complaints.

An aspect of the case-or-controversy requirement is the requisite

of ripeness.[24] The question of ripeness is especially relevant in light of the direct,
adverse effect on an individual by the challenged conduct.[25] In the present
petition, there is no doubt that questions on, inter alia, the validity of the
simultaneous referral of the two complaints and on the need to publish as a mode
of promulgating the Rules of Procedure in Impeachment Proceedings of the House
(Impeachment Rules) present constitutional vagaries which call for immediate
interpretation.

The unusual act of simultaneously referring to public respondent two

impeachment complaints presents a novel situation to invoke judicial
power. Petitioner cannot thus be considered to have acted prematurely when she
took the cue from the constitutional limitation that only one impeachment
proceeding should be initiated against an impeachable officer within a period of
one year.
And so the Court proceeds to resolve the substantive issue ─ whether public
respondent committed grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing its two assailed Resolutions. Petitioner basically anchors her
claim on alleged violation of the due process clause (Art. III, Sec. 1) and of the
one-year bar provision (Art. XI, Sec 3, par. 5) of the Constitution.

Due process of law

Petitioner alleges that public respondents chairperson, Representative Niel

Tupas, Jr. (Rep. Tupas), is the subject of an investigation she is conducting, while
his father, former Iloilo Governor Niel Tupas, Sr., had been charged by her with
violation of the Anti-Graft and Corrupt Practices Act before the
Sandiganbayan. To petitioner, the actions taken by her office against Rep. Tupas
and his father influenced the proceedings taken by public respondent in such a way
that bias and vindictiveness played a big part in arriving at the finding of
sufficiency of form and substance of the complaints against her.

The Court finds petitioners allegations of bias and vindictiveness bereft of

merit, there being hardly any indication thereof. Mere suspicion of partiality does
not suffice.[26]

The act of the head of a collegial body cannot be considered as that of the
entire body itself. So GMCR, Inc. v. Bell Telecommunications Phils.[27] teaches:
First. We hereby declare that the NTC is a collegial body requiring a
majority vote out of the three members of the commission in order to validly
decide a case or any incident therein. Corollarily, the vote alone of the
chairman of the commission, as in this case, the vote of Commissioner
Kintanar, absent the required concurring vote coming from the rest of the
membership of the commission to at least arrive at a majority decision, is not
sufficient to legally render an NTC order, resolution or decision.

Simply put, Commissioner Kintanar is not the National

Telecommunications Commission. He alone does not speak and in behalf of
the NTC. The NTC acts through a three-man body x x x. [28]
 In the present case, Rep. Tupas, public respondent informs, did not, in fact,
vote and merely presided over the proceedings when it decided on the sufficiency
of form and substance of the complaints.[29]

Even petitioners counsel conceded during the oral arguments that there are
no grounds to compel the inhibition of Rep. Tupas.
JUSTICE CUEVAS:
Well, the Committee is headed by a gentleman who
happened to be a respondent in the charges that the Ombudsman
filed. In addition to that[,] his father was likewise a respondent in
another case. How can he be expected to act with impartiality, in
fairness and in accordance with law under that matter, he is only human
we grant him that benefit.

JUSTICE MORALES:
Is he a one-man committee?
JUSTICE CUEVAS:
He is not a one-man committee, Your Honor, but he decides.

JUSTICE MORALES:
Do we presume good faith or we presume bad faith?

JUSTICE CUEVAS:
We presume that he is acting in good faith, Your Honor, but
then (interrupted)

JUSTICE MORALES:
So, that he was found liable for violation of the Anti Graft
and Corrupt Practices Act, does that mean that your client will be
deprived of due process of law?

JUSTICE CUEVAS:
No, what we are stating, Your Honor, is that expectation of a
client goes with the Ombudsman, which goes with the element of due
process is the lack of impartiality that may be expected of him.

JUSTICE MORALES:
But as you admitted the Committee is not a one-man
committee?

JUSTICE CUEVAS:
That is correct, Your Honor.

JUSTICE MORALES:
So, why do you say then that there is a lack of impartiality?
JUSTICE CUEVAS:
Because if anything before anything goes (sic) he is the
presiding officer of the committee as in this case there were objections
relative to the existence of the implementing rules not heard, there was
objection made by Congressman Golez to the effect that this may give
rise to a constitutional crisis.

JUSTICE MORALES:
That called for a voluntary inhibition. Is there any law or rule
you can cite which makes it mandatory for the chair of the
committee to inhibit given that he had previously been found liable
for violation of a law[?]

JUSTICE CUEVAS:
There is nothing, Your Honor. In our jurisprudence which
deals with the situation whereby with that background as the material
or pertinent antecedent that there could be no violation of the right of
the petitioner to due process. What is the effect of notice, hearing if the
judgment cannot come from an impartial adjudicator.[30] (emphasis and
underscoring supplied)

Petitioner contends that the indecent and precipitate haste of public

respondent in finding the two complaints sufficient in form and substance is a clear
indication of bias, she pointing out that it only took public respondent five minutes
to arrive thereat.

An abbreviated pace in the conduct of proceedings is not per se an indication

of bias, however. So Santos-Concio v. Department of Justice[31] holds:
Speed in the conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an injudicious performance of
functions. For ones prompt dispatch may be anothers undue haste. The
orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to each
case.

The presumption of regularity includes the public officers official

actuations in all phases of work. Consistent with such presumption, it was
incumbent upon petitioners to present contradictory evidence other than a
mere tallying of days or numerical calculation. This, petitioners failed to
discharge. The swift completion of the Investigating Panels initial task
cannot be relegated as shoddy or shady without discounting the
 presumably regular performance of not just one but five state
prosecutors.[32] (italics in the original; emphasis and underscoring supplied)

Petitioner goes on to contend that her participation in the determination of

sufficiency of form and substance was indispensable. As mandated by the
Impeachment Rules, however, and as, in fact, conceded by petitioners counsel, the
participation of the impeachable officer starts with the filing of an answer.

JUSTICE MORALES:
Is it not that the Committee should first determine
that there is sufficiency in form and substance before she is
asked to file her answer (interrupted)
JUSTICE CUEVAS:
That is correct, Your Honor.

JUSTICE MORALES:
During which she can raise any defenses she can
assail the regularity of the proceedings and related
irregularities?

JUSTICE CUEVAS:
Yes. We are in total conformity and in full accord
with that statement, Your Honor, because it is only after a
determination that the complaint is sufficient in form and
substance that a complaint may be filed, Your Honor, without
that but it may be asked, how is not your action premature,
Your Honor, our answer is- no, because of the other violations
involved and that is (interrupted).[33] (emphasis and
underscoring supplied)

Rule III(A) of the Impeachment Rules of the 15th Congress reflects the
impeachment procedure at the Committee-level, particularly Section 5[34] which
denotes that petitioners initial participation in the impeachment proceedings the
opportunity to file an Answer starts after the Committee on Justice finds the
complaint sufficient in form and substance. That the Committee refused to accept
petitioners motion for reconsideration from its finding of sufficiency of form of the
impeachment complaints is apposite, conformably with the Impeachment Rules.
 Petitioner further claims that public respondent failed to ascertain the
sufficiency of form and substance of the complaints on the basis of the standards
set by the Constitution and its own Impeachment Rules.[35]

The claim fails.

The determination of sufficiency of form and substance of an impeachment

complaint is an exponent of the express constitutional grant of rule-making powers
of the House of Representatives which committed such determinative function to
public respondent. In the discharge of that power and in the exercise of its
discretion, the House has formulated determinable standards as to the form and
substance of an impeachment complaint. Prudential considerations behoove the
Court to respect the compliance by the House of its duty to effectively carry out the
constitutional purpose, absent any contravention of the minimum constitutional
guidelines.

Contrary to petitioners position that the Impeachment Rules do not provide

for comprehensible standards in determining the sufficiency of form and substance,
the Impeachment Rules are clear in echoing the constitutional requirements and
providing that there must be a verified complaint or resolution,[36] and that the
substance requirement is met if there is a recital of facts constituting the offense
charged and determinative of the jurisdiction of the committee.[37]

Notatu dignum is the fact that it is only in the Impeachment Rules where a
determination of sufficiency of form and substance of an impeachment complaint
is made necessary.This requirement is not explicitly found in the organic law, as
Section 3(2), Article XI of the Constitution basically merely requires a
hearing.[38] In the discharge of its constitutional duty, the House deemed that a
finding of sufficiency of form and substance in an impeachment complaint is
vital to effectively carry out the impeachment process, hence,
such additional requirement in the Impeachment Rules.

Petitioner urges the Court to look into the narration of facts constitutive of the
offenses vis--vis her submissions disclaiming the allegations in the complaints.
This the Court cannot do.

Francisco instructs that this issue would require the Court to make a determination
of what constitutes an impeachable offense. Such a determination is a purely
political question which the Constitution has left to the sound discretion of the
legislature. Such an intent is clear from the deliberations of the Constitutional
Commission. x x x x Clearly, the issue calls upon this court to decide a non-
justiciable political question which is beyond the scope of its judicial
power[.][39] Worse, petitioner urges the Court to make a preliminary assessment of
certain grounds raised, upon a hypothetical admission of the facts alleged in the
complaints, which involve matters of defense.
In another vein, petitioner, pursuing her claim of denial of due process, questions
the lack of or, more accurately, delay in the publication of the Impeachment Rules.
To recall, days after the 15th Congress opened on July 26, 2010 or on August 3,
2010, public respondent provisionally adopted the Impeachment Rules of the 14th
Congress and thereafter published on September 2, 2010 its Impeachment Rules,
admittedly substantially identical with that of the 14th Congress, in two newspapers
of general circulation.[40]

Citing Taada v. Tuvera,[41] petitioner contends that she was deprived of due
process since the Impeachment Rules was published only on September 2, 2010 a
day after public respondent ruled on the sufficiency of form of the complaints. She
likewise tacks her contention on Section 3(8), Article XI of the Constitution which
directs that Congress shallpromulgate its rules on impeachment to effectively
carry out the purpose of this section.

Public respondent counters that promulgation in this case refers to the

publication of rules in any medium of information, not necessarily in the Official
Gazette or newspaper of general circulation.[42]

Differentiating Neri v. Senate Committee on Accountability of Public

Officers and Investigations[43] which held that the Constitution categorically
requires publication of the rules of procedure in legislative inquiries, public
respondent explains that the Impeachment Rules is intended to merely enable
Congress to effectively carry out the purpose of Section 3(8), Art. XI of
Constitution.
 Blacks Law Dictionary broadly defines promulgate as

To publish; to announce officially; to make public as important or

obligatory. The formal act of announcing a statute or rule of court. An
administrative order that is given to cause an agency law or regulation to
become known or obligatory.[44] (emphasis supplied)

While promulgation would seem synonymous to publication, there is a statutory

difference in their usage.
The Constitution notably uses the word promulgate 12 times. [45] A number
of those instances involves the promulgation of various rules, reports and issuances
emanating from Congress, this Court, the Office of the Ombudsman as well as
other constitutional offices.

To appreciate the statutory difference in the usage of the terms promulgate

and publish, the case of the Judiciary is in point. In promulgating rules concerning
the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the Court has invariably required the publication of these
rules for their effectivity. As far as promulgation of judgments is concerned,
however, promulgation means the delivery of the decision to the clerk of court for
filing and publication.[46]

Section 4, Article VII of the Constitution contains a similar provision

directing Congress to promulgate its rules for the canvassing of the certificates in
the presidential and vice presidential elections. Notably, when Congress approved
its canvassing rules for the May 14, 2010 national elections on May 25, 2010, [47] it
did not require the publication thereof for its effectivity. Rather, Congress made
the canvassing rules effective upon its adoption.

In the case of administrative agencies, promulgation and publication

likewise take on different meanings as they are part of a multi-stage procedure in
quasi-legislation. As detailed in one case,[48] the publication of implementing rules
occurs after their promulgation or adoption.
 Promulgation must thus be used in the context in which it is generally
understoodthat is, to make known. Generalia verba sunt generaliter
inteligencia. What is generally spoken shall be generally understood. Between the
restricted sense and the general meaning of a word, the general must prevail unless
it was clearly intended that the restricted sense was to be used.[49]

Since the Constitutional Commission did not restrict promulgation to

publication, the former should be understood to have been used in its general
sense. It is within the discretion of Congress to determine on how to promulgate its
Impeachment Rules, in much the same way that the Judiciary is permitted to
determine that to promulgate a decision means to deliver the decision to the clerk
of court for filing and publication.

It is not for this Court to tell a co-equal branch of government how to

promulgate when the Constitution itself has not prescribed a specific method of
promulgation. The Court is in no position to dictate a mode of promulgation
beyond the dictates of the Constitution.

Publication in the Official Gazette or a newspaper of general circulation is

but one avenue for Congress to make known its rules. Jurisprudence emphatically
teaches that

x x x in the absence of constitutional or statutory guidelines or specific

rules, this Court is devoid of any basis upon which to determine the legality of
the acts of the Senate relative thereto. On grounds of respect for the basic
concept of separation of powers, courts may not intervene in
the internal affairs of the legislature; it is not within the province of courts to
direct Congress how to do its work. In the words of Justice Florentino P.
Feliciano, this Court is of the opinion that where no specific, operable norms
and standards are shown to exist, then the legislature must be given a real
and effective opportunity to fashion and promulgate as well as to
implement them, before the courts may intervene.[50] (italics in the original;
emphasis and underscoring supplied; citations omitted)

Had the Constitution intended to have the Impeachment Rules published, it

could have stated so as categorically as it did in the case of the rules of
procedure in legislative inquiries, per Neri. Other than promulgate, there is no
other single formal term in the English language to appropriately refer to an
issuance without need of it being published.

IN FINE, petitioner cannot take refuge in Neri since inquiries in aid of

legislation under Section 21, Article VI of the Constitution is the sole instance in
the Constitution where there is a categorical directive to duly publish a set of
rules of procedure. Significantly notable in Neri is that with respect to the issue of
publication, the Court anchored its ruling on the 1987 Constitutions directive,
without any reliance on or reference to the 1986 case of Taada v.
Tuvera.[51] Taada naturally could neither have interpreted a forthcoming 1987
Constitution nor had kept a tight rein on the Constitutions intentions as expressed
through the allowance of either a categorical term or a general sense of making
known the issuances.

From the deliberations of the Constitutional Commission, then

Commissioner, now retired Associate Justice Florenz Regalado intended Section
3(8), Article XI to be the vehicle for the House to fill the gaps in the impeachment
process.
MR. REGALADO. Mr. Presiding Officer, I have decided to put in an
additional section because, for instance, under Section 3 (2), there is mention
of indorsing a verified complaint for impeachment by any citizen alleging
ultimate facts constituting a ground or grounds for impeachment. In other
words, it is just like a provision in the rules of court. Instead, I propose that this
procedural requirement, like indorsement of a complaint by a citizen to avoid
harassment or crank complaints, could very well be taken up in a new section 4
which shall read as follows: THE CONGRESS SHALL PROMULGATE ITS
RULES ON IMPEACHMENT TO EFFECTIVELY CARRY OUT THE
PURPOSES THEREOF. I think all these other proceduralrequirements could
be taken care of by the Rules of Congress.[52] (emphasis and underscoring
supplied)

The discussion clearly rejects the notion that the impeachment provisions are
not self-executing. Section 3(8) does not, in any circumstance, operate to suspend
the entire impeachment mechanism which the Constitutional Commission took
pains in designing even its details.

As against constitutions of the past, modern constitutions have been

generally drafted upon a different principle and have often become in effect
 extensive codes of laws intended to operate directly upon the people in a manner
similar to that of statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a legislative body.Hence,
unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law. This
can be cataclysmic. That is why the prevailing view is, as it has always been, that

. . . in case of doubt, the Constitution should be considered self-

executing rather than non-self-executing . . . . Unless the contrary
is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing
statute.[53] (emphasis and underscoring supplied)

Even assuming arguendo that publication is required, lack of it does not

nullify the proceedings taken prior to the effectivity of the Impeachment Rules
which faithfully comply with the relevant self-executing provisions of the
Constitution. Otherwise, in cases where impeachment complaints are filed at the
start of each Congress, the mandated periods under Section 3, Article XI of the
Constitution would already run or even lapse while awaiting the expiration of the
15-day period of publication prior to the effectivity of the Impeachment Rules. In
effect, the House would already violate the Constitution for its inaction on the
impeachment complaints pending the completion of the publication requirement.

Given that the Constitution itself states that any promulgation of the rules on
impeachment is aimed at effectively carry[ing] out the purpose of impeachment
proceedings, the Court finds no grave abuse of discretion when the House deemed
it proper to provisionally adopt the Rules on Impeachment of the 14th Congress, to
meet the exigency in such situation of early filing and in keeping with the effective
implementation of the purpose of the impeachment provisions. In other words, the
provisional adoption of the previous Congress Impeachment Rules is within the
power of the House to promulgate its rules on impeachment to effectively carry out
the avowed purpose.
 Moreover, the rules on impeachment, as contemplated by the framers of the
Constitution, merely aid or supplement the procedural aspects of
impeachment. Being procedural in nature, they may be given retroactive
application to pending actions. It is axiomatic that the retroactive application of
procedural laws does not violate any right of a person who may feel that he is
adversely affected, nor is it constitutionally objectionable. The reason for this is
that, as a general rule, no vested right may attach to, nor arise from, procedural
laws.[54] In the present case, petitioner fails to allege any impairment of vested
rights.

It bears stressing that, unlike the process of inquiry in aid of

legislation where the rights of witnesses are involved, impeachment is primarily
for the protection of the people as a body politic, and not for the punishment of the
offender.[55]
Even Neri concedes that the unpublished rules of legislative inquiries were
not considered null and void in its entirety. Rather,

x x x [o]nly 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.[56] (emphasis and
underscoring supplied)

Petitioner in fact does not deny that she was fully apprised of the proper
procedure. She even availed of and invoked certain provisions[57] of the
Impeachment Rules when she, on September 7, 2010, filed the motion for
reconsideration and later filed the present petition. The Court thus finds no
violation of the due process clause.

The one-year bar rule

Article XI, Section 3, paragraph (5) of the Constitution reads: No
impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

Petitioner reckons the start of the one-year bar from the filing of the first
impeachment complaint against her on July 22, 2010 or four days before the
opening on July 26, 2010 of the 15th Congress. She posits that within one year from
July 22, 2010, no second impeachment complaint may be accepted and referred to
public respondent.

On the other hand, public respondent, respondent Reyes group and respondent-
intervenor submit that the initiation starts with the filing of the impeachment
complaint and ends with the referral to the Committee, following Francisco, but
venture to alternatively proffer that the initiation ends somewhere between the
conclusion of the Committee Report and the transmittal of the Articles of
Impeachment to the Senate. Respondent Baraquel group, meanwhile, essentially
maintains that under either the prevailing doctrine or the parties interpretation, its
impeachment complaint could withstand constitutional scrutiny.

Contrary to petitioners asseveration, Francisco[58] states that the term initiate

means to file the complaint and take initial action on it.[59] The initiation starts with
the filing of the complaint which must be accompanied with an action to set the
complaint moving. It refers to the filing of the impeachment complaint coupled
with Congress taking initial action of said complaint. The initial action taken by
the House on the complaint is the referral of the complaint to the Committee on
Justice.

Petitioner misreads the remark of Commissioner Joaquin Bernas, S.J. that no

second verified impeachment may be accepted and referred to the Committee on
Justice for action[60] which contemplates a situation where a first impeachment
complaint had already been referred. Bernas and Regalado, who both acted
as amici curiae in Francisco, affirmed that the act of initiating includes the act of
taking initial action on the complaint.

From the records of the Constitutional Commission, to the amicus curiae briefs of
two former Constitutional Commissioners, it is without a doubt that the term "to
 initiate" refers to the filing of the impeachment complaint coupled with Congress'
taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or
endorsement of the impeachment complaint to the House Committee on
Justice or, by the filing by at least one-third[61] of the members of the House of
Representatives with the Secretary General of the House, the meaning of Section
3 (5) of Article XI becomes clear. Once an impeachment complaint has been
initiated, another impeachment complaint may not be filed against the same
official within a one year period.[62] (emphasis and underscoring supplied)

The Court, in Francisco, thus found that the assailed provisions of the 12th
Congress Rules of Procedure in Impeachment Proceedings ─ Sections 16 [63] and
17[64] of Rule V thereof ─ clearly contravene Section 3(5) of Article XI since they
g[a]ve the term initiate a meaning different from filing and referral.[65]

Petitioner highlights certain portions of Francisco which delve on the relevant

records of the Constitutional Commission, particularly Commissioner Maambongs
statements[66]that the initiation starts with the filing of the complaint.

Petitioner fails to consider the verb starts as the operative word. Commissioner
Maambong was all too keen to stress that the filing of the complaint
indeed starts the initiation and that the Houses action on the committee
report/resolution is not part of that initiation phase.

Commissioner Maambong saw the need to be very technical about this, [67] for
certain exchanges in the Constitutional Commission deliberations loosely used the
term, as shown in the following exchanges.

MR. DAVIDE. That is for conviction, but not for initiation. Initiation of
impeachment proceedings still requires a vote of one-fifth of the membership of
the House under the 1935 Constitution.

MR. MONSOD. A two-thirds vote of the membership of the House is required to

initiate proceedings.
 MR. DAVIDE. No. for initiation of impeachment proceedings, only one-fifth vote
of the membership of the House is required; for conviction, a two-thirds vote of
the membership is required.

xxxx
MR. DAVIDE. However, if we allow one-fifth of the membership of the
legislature to overturn a report of the committee, we have here Section 3 (4) which
reads:

No impeachment proceedings shall be initiated against the same official more

than once within a period of one year.

So, necessarily, under this particular subsection, we will, in effect, disallow one-
fifth of the members of the National Assembly to revive an impeachment move by
an individual or an ordinary Member.

MR. ROMULO. Yes. May I say that Section 3 (4) is there to look towards the
possibility of a very liberal impeachment proceeding. Second, we were ourselves
struggling with that problem where we are faced with just a verified complaint
rather than the signatures of one-fifth, or whatever it is we decide, of the Members
of the House. So whether to put a period for the Committee to report, whether we
should not allow the Committee to overrule a mere verified complaint, are some of
the questions we would like to be discussed.

MR. DAVIDE. We can probably overrule a rejection by the Committee by

providing that it can be overturned by, say, one-half or a majority, or one-fifth of
the members of the legislature, and that such overturning will not amount to
a refiling which is prohibited under Section 3 (4).
Another point, Madam President. x x x[68] (emphasis and underscoring supplied)

An apparent effort to clarify the term initiate was made by Commissioner Teodulo
Natividad:
MR. NATIVIDAD. How many votes are needed to initiate?

MR. BENGZON. One-third.

MR. NATIVIDAD. To initiate is different from to impeach; to impeach is

different from to convict. To impeach means to file the case before the Senate.

MR. REGALADO. When we speak of initiative, we refer here to the Articles

of Impeachment.

MR. NATIVIDAD. So, that is the impeachment itself, because when we

impeach, we are charging him with the Articles of Impeachment. That is my
understanding.[69] (emphasis and underscoring supplied)
Capping these above-quoted discussions was the explanation of Commissioner
Maambong delivered on at least two occasions:

[I]
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration
of the approval of the amendment submitted by Commissioner Regalado, but I will
just make of record my thinking that we do not really initiate the filing of the
Articles of Impeachment on the floor. The procedure, as I have pointed out earlier,
was that the initiation starts with the filing of the complaint. And what is actually
done on the floor is that the committee resolution containing the Articles of
Impeachment is the one approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style,
it appears that the initiation starts on the floor. If we only have time, I could cite
examples in the case of the impeachment proceedings of President Richard Nixon
wherein the Committee on the Judiciary submitted the recommendation, the
resolution, and the Articles of Impeachment to the body, and it was the body who
approved the resolution. It is not the body which initiates it. It only approves or
disapproves the resolution. So, on that score, probably the Committee on Style
could help in rearranging the words because we have to be very technical about
this. I have been bringing with me The Rules of the House of Representatives of
the U.S. Congress. The Senate Rules are with me. The proceedings on the case of
Richard Nixon are with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on record.

Thank you, Mr. Presiding Officer.[70] (italics in the original; emphasis and
underscoring supplied)

[II]
MR. MAAMBONG. I would just like to move for a reconsideration of the
approval of Section 3 (3). My reconsideration will not at all affect the substance,
but it is only with keeping with the exact formulation of the Rules of the House of
Representatives of the United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of its provision,

that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read:
to initiate impeachment proceedings and the comma (,) and insert on line 19 after
the word resolution the phrase WITH THE ARTICLES, and then capitalize the
letter i in impeachment and replace the word by with OF, so that the whole section
will now read: A vote of at least one-third of all the Members of the House shall be
necessary either to affirm a resolution WITH THE ARTICLES of impeachment
OF the committee or to override its contrary resolution. The vote of each Member
shall be recorded.
 I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of
the verified complaint and every resolution to impeach always carries with it the
Articles of Impeachment. As a matter of fact, the words Articles of Impeachment
are mentioned on line 25 in the case of the direct filing of a verified complaint of
one-third of all the Members of the House. I will mention again, Madam President,
that my amendment will not vary the substance in any way. It is only in keeping
with the uniform procedure of the House of Representatives of the United States
Congress.

Thank you, Madam President.[71] (emphasis and underscoring supplied)

To the next logical question of what ends or completes the initiation,

Commissioners Bernas and Regalado lucidly explained that the filing of the
complaint must be accompanied by the referral to the Committee on Justice, which
is the action that sets the complaint moving. Francisco cannot be any clearer in
pointing out the material dates.

Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice, the
initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes
clear. Once an impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a one year
period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint was filed by former
President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven
associate justices of this Court, onJune 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second impeachment complaint
filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella
against the Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings against the same
impeachable officer within a one-year period.[72] (emphasis, italics and
underscoring supplied)

These clear pronouncements notwithstanding, petitioner posits that the date of

referral was considered irrelevant in Francisco. She submits that referral could not
be the reckoning point of initiation because something prior to that had already
been done,[73] apparently citing Bernas discussion.
The Court cannot countenance any attempt at obscurantism.

What the cited discussion was rejecting was the view that the Houses action on the
committee report initiates the impeachment proceedings. It did not state that to
determine the initiating step, absolutely nothing prior to it must be done. Following
petitioners line of reasoning, the verification of the complaint or the endorsement
by a member of the House steps done prior to the filing would already initiate the
impeachment proceedings.
Contrary to petitioners emphasis on impeachment complaint, what the Constitution
mentions is impeachment proceedings. Her reliance on the singular tense of the
word complaint[74] to denote the limit prescribed by the Constitution goes
against the basic rule of statutory construction that a word covers its enlarged
and plural sense.[75]

The Court, of course, does not downplay the importance of an impeachment

complaint, for it is the matchstick that kindles the candle of impeachment
proceedings. The filing of an impeachment complaint is like the lighting of a
matchstick. Lighting the matchstick alone, however, cannot light up the candle,
unless the lighted matchstick reaches or torches the candle wick. Referring the
complaint to the proper committee ignites the impeachment proceeding. With
a simultaneous referral of multiple complaints filed, more than one lighted
matchsticks light the candle at the same time. What is important is that there
should only be ONE CANDLE that is kindled in a year, such that once the
candle starts burning, subsequent matchsticks can no longer rekindle the
candle.

A restrictive interpretation renders the impeachment mechanism both illusive and

illusory.

For one, it puts premium on senseless haste. Petitioners stance suggests that
whoever files the first impeachment complaint exclusively gets the attention of
Congress which sets in motion an exceptional once-a-year mechanism wherein
government resources are devoted. A prospective complainant, regardless of ill
motives or best intentions, can wittingly or unwittingly desecrate the entire process
by the expediency of submitting a haphazard complaint out of sheer hope to be the
first in line. It also puts to naught the effort of other prospective complainants who,
after diligently gathering evidence first to buttress the case, would be barred days
or even hours later from filing an impeachment complaint.

Placing an exceedingly narrow gateway to the avenue of impeachment proceedings

turns its laudable purpose into a laughable matter. One needs only to be an early
bird even without seriously intending to catch the worm, when the process is
precisely intended to effectively weed out worms in high offices which could
otherwise be ably caught by other prompt birds within the ultra-limited season.

Moreover, the first-to-file scheme places undue strain on the part of the actual
complainants, injured party or principal witnesses who, by mere happenstance of
an almost always unforeseeable filing of a first impeachment complaint, would be
brushed aside and restricted from directly participating in the impeachment
process.

Further, prospective complainants, along with their counsel and members of the
House of Representatives who sign, endorse and file subsequent impeachment
complaints against the same impeachable officer run the risk of violating the
Constitution since they would have already initiated a second impeachment
proceeding within the same year. Virtually anybody can initiate a second or third
impeachment proceeding by the mere filing of endorsed impeachment
complaints. Without any public notice that could charge them with knowledge,
even members of the House of Representatives could not readily ascertain whether
no other impeachment complaint has been filed at the time of committing their
endorsement.

The question as to who should administer or pronounce that an impeachment

proceeding has been initiated rests also on the body that administers the
proceedings prior to the impeachment trial. As gathered from Commissioner
Bernas disquisition[76] in Francisco, a proceeding which takes place not in the
Senate but in the House[77] precedes the bringing of an impeachment case to the
Senate. In fact, petitioner concedes that the initiation of impeachment proceedings
is within the sole and absolute control of the House of
Representatives.[78] Conscious of the legal import of each step, the House, in taking
charge of its own proceedings, must deliberately decide to initiate an impeachment
proceeding, subject to the time frame and other limitations imposed by the
Constitution. This chamber of Congress alone, not its officers or members or any
private individual, should own up to its processes.

The Constitution did not place the power of the final say on the lips of the House
Secretary General who would otherwise be calling the shots in forwarding or
freezing any impeachment complaint. Referral of the complaint to the proper
committee is not done by the House Speaker alone either, which explains why
there is a need to include it in the Order of Business of the House. It is the House
of Representatives, in public plenary session, which has the power to set its own
chamber into special operation by referring the complaint or to otherwise guard
against the initiation of a second impeachment proceeding by rejecting a patently
unconstitutional complaint.

Under the Rules of the House, a motion to refer is not among those motions that
shall be decided without debate, but any debate thereon is only made subject to the
five-minute rule.[79] Moreover, it is common parliamentary practice that a motion
to refer a matter or question to a committee may be debated upon, not as to the
merits thereof, but only as to the propriety of the referral.[80] With respect to
complaints for impeachment, the House has the discretion not to refer a subsequent
impeachment complaint to the Committee on Justice where official records and
further debate show that an impeachment complaint filed against the same
impeachable officer has already been referred to the said committee and the one
year period has not yet expired, lest it becomes instrumental in perpetrating a
constitutionally prohibited second impeachment proceeding. Far from being
mechanical, before the referral stage, a period of deliberation is afforded the
House, as the Constitution, in fact, grants a maximum of three session days within
which to make the proper referral.

As mentioned, one limitation imposed on the House in initiating an impeachment

proceeding deals with deadlines. The Constitution states that [a] verified complaint
for impeachment may be filed by any Member of the House of Representatives or
by any citizen upon a resolution or endorsement by any Member thereof, which
shall be included in the Order of Business within ten session days, and referred to
the proper Committee within three session days thereafter.
 In the present case, petitioner failed to establish grave abuse of discretion on
the allegedly belated referral of the first impeachment complaint filed by the
Baraquel group.For while the said complaint was filed on July 22, 2010, there was
yet then no session in Congress. It was only four days later or on July 26, 2010 that
the 15th Congress opened from which date the 10-day session period started to
run. When, by Memorandum of August 2, 2010, Speaker Belmonte directed the
Committee on Rules to include the complaint in its Order of Business, it was well
within the said 10-day session period.[81]

There is no evident point in rushing at closing the door the moment an

impeachment complaint is filed. Depriving the people (recall that impeachment is
primarily for the protection of the people as a body politic) of reasonable access to
the limited political vent simply prolongs the agony and frustrates the collective
rage of an entire citizenry whose trust has been betrayed by an impeachable
officer. It shortchanges the promise of reasonable opportunity to remove an
impeachable officer through the mechanism enshrined in the Constitution.
But neither does the Court find merit in respondents alternative contention that the
initiation of the impeachment proceedings, which sets into motion the one-year
bar, should include or await, at the earliest, the Committee on Justice report. To
public respondent, the reckoning point of initiation should refer to the disposition
of the complaint by the vote of at least one-third (1/3) of all the members of the
House.[82] To the Reyes group, initiation means the act of transmitting the Articles
of Impeachment to the Senate.[83] To respondent-intervenor, it should last until the
Committee on Justices recommendation to the House plenary.[84]

The Court, in Francisco, rejected a parallel thesis in which a related proposition

was inputed in the therein assailed provisions of the Impeachment Rules of the
12th Congress.The present case involving an impeachment proceeding against the
Ombudsman offers no cogent reason for the Court to deviate from what was settled
in Francisco that dealt with the impeachment proceeding against the then Chief
Justice. To change the reckoning point of initiation on no other basis but to
accommodate the socio-political considerations of respondents does not sit well in
a court of law.
 x x x We ought to be guided by the doctrine of stare decisis et non quieta
movere. This doctrine, which is really "adherence to precedents," mandates that
once a case has been decided one way, then another case involving exactly the
same point at issue should be decided in the same manner. This doctrine is one of
policy grounded on the necessity for securing certainty and stability of judicial
decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The
Nature of the Judicial Process:

It will not do to decide the same question one way between one set
of litigants and the opposite way between another. "If a group of
cases involves the same point, the parties expect the same
decision. It would be a gross injustice to decide alternate cases on
opposite principles. If a case was decided against me yesterday
when I was a defendant, I shall look for the same judgment today if
I am plaintiff. To decide differently would raise a feeling of
resentment and wrong in my breast; it would be an infringement,
material and moral, of my rights." Adherence to precedent must
then be the rule rather than the exception if litigants are to have
faith in the even-handed administration of justice in the courts.[85]

As pointed out in Francisco, the impeachment proceeding is not initiated when the
House deliberates on the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the House is already a
further step in the proceeding, not its initiation or beginning. Rather, the
proceeding is initiated or begins, when a verified complaint is filed and referred to
the Committee on Justice for action. This is the initiating step which triggers the
series of steps that follow.[86]

Allowing an expansive construction of the term initiate beyond the act of referral
allows the unmitigated influx of successive complaints, each having their own
respective 60-session-day period of disposition from referral. Worse, the
Committee shall conduct overlapping hearings until and unless the disposition of
one of the complaints ends with the affirmance of a resolution for impeachment or
the overriding[87] of a contrary resolution (as espoused by public respondent), or the
House transmits the Articles of Impeachment (as advocated by the Reyes
group),[88] or the Committee on Justice concludes its first report to the House
plenary regardless of the recommendation (as posited by respondent-
intervenor). Each of these scenarios runs roughshod the very purpose behind the
constitutionally imposed one-year bar. Opening the floodgates too loosely would
disrupt the series of steps operating in unison under one proceeding.

The Court does not lose sight of the salutary reason of confining only one
impeachment proceeding in a year. Petitioner concededly cites Justice Adolfo
Azcunas separate opinion that concurred with the Francisco ruling.[89] Justice
Azcuna stated that the purpose of the one-year bar is two-fold: to prevent undue
or too frequent harassment; and 2) to allow the legislature to do its principal task
[of] legislation, with main reference to the records of the Constitutional
Commission, that reads:

MR. ROMULO. Yes, the intention here really is to limit. This is not only to
protect public officials who, in this case, are of the highest category from
harassment but also to allow the legislative body to do its work which is
lawmaking. Impeachment proceedings take a lot of time. And if we allow
multiple impeachment charges on the same individual to take place, the
legislature will do nothing else but that.[90] (underscoring supplied)

It becomes clear that the consideration behind the intended limitation refers to the
element of time, and not the number of complaints. The impeachable officer
should defend himself in only one impeachment proceeding, so that he will not be
precluded from performing his official functions and duties. Similarly, Congress
should run only one impeachment proceeding so as not to leave it with little time to
attend to its main work of law-making. The doctrine laid down in Francisco that
initiation means filing andreferral remains congruent to the rationale of the
constitutional provision.

Petitioner complains that an impeachable officer may be subjected to harassment

by the filing of multiple impeachment complaints during the intervening period of
a maximum of 13 session days between the date of the filing of the first
impeachment complaint to the date of referral.

As pointed out during the oral arguments[91] by the counsel for respondent-
intervenor, the framework of privilege and layers of protection for an impeachable
officer abound.The requirements or restrictions of a one-year bar, a single
proceeding, verification of complaint, endorsement by a House member, and a
finding of sufficiency of form and substance all these must be met before bothering
a respondent to answer already weigh heavily in favor of an impeachable officer.

Aside from the probability of an early referral and the improbability of inclusion in
the agenda of a complaint filed on the 11th hour (owing to pre-agenda standard
operating procedure), the number of complaints may still be filtered or reduced to
nil after the Committee decides once and for all on the sufficiency of form and
substance. Besides, if only to douse petitioners fear, a complaint will not last the
primary stage if it does not have the stated preliminary requisites.

To petitioner, disturbance of her performance of official duties and the deleterious

effects of bad publicity are enough oppression.

Petitioners claim is based on the premise that the exertion of time, energy and other
resources runs directly proportional to the number of complaints filed. This is non
sequitur.What the Constitution assures an impeachable officer is not freedom from
arduous effort to defend oneself, which depends on the qualitative assessment of
the charges and evidence and not on the quantitative aspect of complaints or
offenses. In considering the side of the impeachable officers, the Constitution does
not promise an absolutely smooth ride for them, especially if the charges entail
genuine and grave issues. The framers of the Constitution did not concern
themselves with the media tolerance level or internal disposition of an impeachable
officer when they deliberated on the impairment of performance of official
functions. The measure of protection afforded by the Constitution is that if the
impeachable officer is made to undergo such ride, he or she should be made to
traverse it just once. Similarly, if Congress is called upon to operate itself as a
vehicle, it should do so just once. There is no repeat ride for one full year. This is
the whole import of the constitutional safeguard of one-year bar rule.

Applicability of the Rules

on Criminal Procedure

On another plane, petitioner posits that public respondent gravely abused its
discretion when it disregarded its own Impeachment Rules, the same rules she
earlier chastised.

In the exercise of the power to promulgate rules to effectively carry out the
provisions of Section 3, Article XI of the Constitution, the House promulgated the
Impeachment Rules, Section 16 of which provides that the Rules
of Criminal Procedure under the Rules of Court shall, as far as practicable, apply
to impeachment proceedings before the House.

Finding that the Constitution, by express grant, permits the application of

additional adjective rules that Congress may consider in effectively carrying out its
mandate, petitioner either asserts or rejects two procedural devices.

First is on the one offense, one complaint rule. By way of reference to Section 16
of the Impeachment Rules, petitioner invokes the application of Section 13, Rule
110 of the Rules on Criminal Procedure which states that [a] complaint or
information must charge only one offense, except when the law prescribes a single
punishment for various offenses. To petitioner, the two impeachment complaints
are insufficient in form and substance since each charges her with both culpable
violation of the Constitution and betrayal of public trust. She concludes that public
respondent gravely abused its discretion when it disregarded its own rules.

Petitioner adds that heaping two or more charges in one complaint will confuse her
in preparing her defense; expose her to the grave dangers of the highly political
nature of the impeachment process; constitute a whimsical disregard of certain
rules; impair her performance of official functions as well as that of the House; and
prevent public respondent from completing its report within the deadline.

Public respondent counters that there is no requirement in the Constitution that an

impeachment complaint must charge only one offense, and the nature of
impeachable offenses precludes the application of the above-said Rule on Criminal
Procedure since the broad terms cannot be defined with the same precision
required in defining crimes. It adds that the determination of the grounds for
impeachment is an exercise of political judgment, which issue respondent-
intervenor also considers as non-justiciable, and to which the Baraquel group adds
that impeachment is a political process and not a criminal prosecution, during
which criminal prosecution stage the complaint or information referred thereto and
cited by petitioner, unlike an impeachment complaint, must already be in the name
of the People of the Philippines.

The Baraquel group deems that there are provisions[92] outside the Rules on
Criminal Procedure that are more relevant to the issue. Both the Baraquel and
Reyes groups point out that even if Sec. 13 of Rule 110 is made to apply,
petitioners case falls under the exception since impeachment prescribes a single
punishment removal from office and disqualification to hold any public office even
for various offenses. Both groups also observe that petitioner concededly and
admittedly was not keen on pursuing this issue during the oral arguments.

Petitioners claim deserves scant consideration.

Without going into the effectiveness of the suppletory application of the Rules on
Criminal Procedure in carrying out the relevant constitutional provisions, which
prerogative the Constitution vests on Congress, and without delving into
the practicability of the application of the one offense per complaint rule, the initial
determination of which must be made by the House[93] which has yet to pass upon
the question, the Court finds that petitioners invocation of that particular rule of
Criminal Procedure does not lie. Suffice it to state that the Constitution allows the
indictment for multiple impeachment offenses, with each charge representing an
article of impeachment, assembled in one set known as the Articles of
Impeachment.[94] It, therefore, follows that an impeachment complaint need not
allege only one impeachable offense.

The second procedural matter deals with the rule on consolidation. In

rejecting a consolidation, petitioner maintains that the Constitution allows only one
impeachment complaint against her within one year.

Records show that public respondent disavowed any immediate need to

consolidate. Its chairperson Rep. Tupas stated that [c]onsolidation depends on the
Committee whether to consolidate[; c]onsolidation may come today or may come
later on after determination of the sufficiency in form and substance, and that for
purposes of consolidation, the Committee will decide when is the time to
consolidate[, a]nd if, indeed, we need to consolidate.[95] Petitioners petition, in fact,
initially describes the consolidation as merely contemplated.[96]

Since public respondent, whether motu proprio or upon motion, did not yet
order a consolidation, the Court will not venture to make a determination on this
matter, as it would be premature, conjectural or anticipatory.[97]

Even if the Court assumes petitioners change of stance that the two impeachment
complaints were deemed consolidated,[98] her claim that consolidation is a legal
anomaly fails.Petitioners theory obviously springs from her
proceeding = complaint equation which the Court already brushed aside.

WHEREFORE, the petition is DISMISSED. The assailed Resolutions of

September 1, 2010 and September 7, 2010 of public respondent, the House of
Representatives Committee on Justice, are NOT
UNCONSTITUTIONAL. The Status Quo Ante Order issued by the Court on
September 14, 2010 is LIFTED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

I join the dissent of Mr. Justice brion

RENATO C. CORONA
 Chief Justice

See concurring opinion (No Part)

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

See separate opinion I join the dissent of Justice Brion

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice

See: dissent I join the dissent of J. Brion

ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

I certify that Mr. Justice Bersamin (see separate concurring and dissenting
sent in his vote joining the dissenting opinion)
opinion of Mr. J. Brion MARIANO C. DEL CASTILLO
LUCAS P. BERSAMIN Associate Justice
Associate Justice

See concurring opinion MARTIN S. VILLARAMA, JR.

ROBERTO A. ABAD Associate Justice
Associate Justice
See separate concurring and dissenting
opinion
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice

See concurring opinion

 MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

*
No part.
[1]
Rollo, pp. 93-111.
[2]
Id. at 91-92.
[3]
Id. at 561.
[4]
Id. at 562.
[5]
Id. at 136-169.
[6]
Id. at 133-135.
[7]
Id. at 563.
[8]
Id. at 564.
[9]
RULES OF THE HOUSE OF REPRESENTATIVES, Rule IX, Sec. 27, par. (ss).
[10]
Rollo, p. 565.
[11]
Journal of the House of Representatives (15th Congress), Journal No. 9, August 11, 2010 (rollo, p. 576).
[12]
As gathered from the pleadings, the two impeachment complaints are summarized as follows:
FIRST COMPLAINT SECOND COMPLAINT
A. Betrayal of Public Trust:
1. The dismal and unconscionable low 1. gross inexcusable delay in investigating and
conviction rate of the Ombudsman from 2008 failure in prosecuting those involved in the
onwards anomalous Fertilizer Fund Scam despite the COA
& Senate findings and the complaints filed against
them.
2. The failure to take prompt and immediate 2. she did not prosecute Gen. Eliseo de la Paz for
action against PGMA and FG with regard to the violating BSP rules[12] that prohibit the taking out
NBN-ZTE Broadband project of the country of currency in excess of US$10,000
without declaring the same to the Phil. Customs,
despite his admission under oath before the Senate
Blue Ribbon Committee
3. The delay in conducting and concluding an 3. gross inexcusable delay or inaction by acting in
investigation on the death of Ensign Andrew deliberate disregard of the Courts findings and
Pestao aboard a Philippine Navy vessel directive in Information Technology Foundation of
the Philippines v. Comelec
4. The decision upholding the legality of the
arrest and detention of Rep. Hontiveros -
Baraquel by the PNP in March 2006.
5. The failure to conduct an investigation
regarding the P1M dinner at Le Cirque
Restaurant in New York

B. Culpable Violation of the Constitution:

6. The repeated delays and failure to take action 4. through her repeated failure and inexcusable
on cases impressed with public interest delay in acting upon matters, she violated Sec. 12
and Sec. 13, pars. 1-3 of Art. XI and Sec. 16 of
Art. III of the Constitution which mandates prompt
action and speedy disposition of cases
7. The refusal to grant ready access to public
records like SALNW

[13]
Rollo, p. 261.
[14]
Id. at 262-263. Justices Carpio, Carpio Morales, and Sereno dissented; Justices Nachura, Leonardo-De Castro,
Brion, and Mendoza were on official business.
[15]
Id. at 623-625.
[16]
Reyes Groups Memorandum, pp. 5-8 (rollo, pp. 1064-1067).
[17]
The Committees Memorandum, pp. 22-25 (id. at 915-918).
[18]
460 Phil. 830 (2003).
[19]
Id. at 889-892.
[20]
Id. at 883, which reads: To ensure the potency of the power of judicial review to curb grave abuse of discretion
by any branch or instrumentalities of government, the afore-quoted Section 1, Article VIII of the Constitution
engraves, for the first time into its history, into block letter law the so-called expanded certiorari jurisdiction of
this Court[.]
[21]
CONSTITUTION, Art. VIII, Sec. 1.
[22]
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
[23]
The Committees Memorandum, p. 28 (rollo, p. 921).
[24]
Lozano v. Nograles, G.R. No. 187883, June 16, 2009, 589 SCRA 356, 358.
[25]
Guingona Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).
[26]
Casimiro v. Tandog, 498 Phil. 660, 667 (2005).
[27]
G.R. No. 126496, April 30, 1997, 271 SCRA 790.
[28]
Id. at 804.
[29]
The Committees Memorandum, p. 36 (rollo, p. 929).
[30]
Transcript of Stenographic Notes (TSN), Oral Arguments, October 5, 2010, pp. 47-50.
[31]
G. R. No. 175057, January 29, 2008, 543 SCRA 70.
[32]
Id. at 89-90.
[33]
TSN, Oral Arguments, October 5, 2010, pp. 54-55.
[34]
Section 5. Notice to Respondents and Time to Plead. If the committee finds the complaint sufficient in form
and substance, it shall immediately furnish the respondent(s) with a copy of the resolution and/or verified
complaint, as the case may be, with written notice that he/she shall answer the complaint within ten (10) days from
receipt of notice thereof and serve a copy of the answer to the complainant(s). No motion to dismiss shall be
allowed within the period to answer the complaint.
The answer, which shall be under oath, may include affirmative defenses. If the respondent fails or refuses to file an
answer within the reglementary period, he/she is deemed to have interposed a general denial to the complaint.
Within three (3) days from receipt of the answer, the complainant may file a reply, serving a copy thereof to the
respondent who may file a rejoinder within three (3) days from receipt of the reply, serving a copy thereof to the
complainant. If the complainant fails to file a reply, all the material allegations in the answer are deemed
controverted. Together with their pleadings, the parties shall file their affidavits or counter-affidavits, as the case
may be, with their documentary evidence. Such affidavits or counter-affidavits shall be subscribed before the
Chairperson of the Committee on Justice or the Secretary General. Notwithstanding all the foregoing, failure
presenting evidence in support of his/her defenses.
When there are more than one respondent, each shall be furnished with copy of the verified complaint from a
Member of the House or a copy of the verified complaint from a private citizen together with the resolution of
endorsement by a Member of the House of Representatives and a written notice to answer and in that case,
reference to respondent in these Rules shall be understood as respondents. (underscoring supplied)
[35]
Petitioners Memorandum, pp. 66-73 (rollo, pp. 829-836).
[36]
Vide CONSTITUTION, Art. XI, Sec. 3 (2).
[37]
Vide RULES OF PROCEDURE IN IMPEACHMENT PROCEEDINGS, Rule III, Sec. 4.
[38]
A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any
citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of
Business within ten session days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House
within sixty session days from such referral, together with the corresponding resolution. The resolution shall
be calendared for consideration by the House within ten session days from receipt thereof. (emphasis and
underscoring supplied)
[39]
Francisco, Jr. v. House of Representatives, supra at 913.
[40]
Philippine Daily Inquirer and Philippine Star.
[41]
230 Phil. 528 (1986).
[42]
The Committees Memorandum, p. 58 (rollo, p. 951).
[43]
G.R. No. 180643, March 25, 2008, 549 SCRA 77; and September 4, 2008, 564 SCRA 152, 230, where the Court
resolved: 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. (emphasis in the original; underscoring
supplied).
[44]
BLACKS LAW DICTIONARY (6th ed.), p. 1214.
[45]
The words promulgate and promulgated appear in the following sections: a) Preamble; b) Section 2 of Article V;
c) Section 4 of Article VII (twice); d) Section 18 of Article VII; e) Section 5 of Article VIII; f) Section 6 of
Article IX-A; g) Section 3 of Article IX-C; h) Section 2 of Article IX-D; i) Section 3 (8) of Article XI; j) Section
13 (8) of Article XI; and k) Section 8 of Article XIV.
[46]
Heritage Park Management Corp. v. CIAC, G.R. No. 148133, October 8, 2008, 568 SCRA 108, 120,
citing Neria v. Commissioner on Immigration, 23 SCRA 806, 812.
[47]
<http://www.congress.gov.ph/download/elections2010/acr.signed.05262010.pdf> [Last visited November 22,
2010].
[48]
National Association of Electricity Consumers for Reform v. Energy Regulatory Commission, G.R. No.
163935, February 2, 2006, 481 SCRA 480, 522.
[49]
Marcos v. Chief of Staff, AFP, 89 Phil. 239 (1951).
[50]
Sen. Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 300 (1998).
[51]
Supra note 41.
[52]
II RECORD OF THE CONSTITUTIONAL COMMISSION, p. 372 (July 28, 1986).
[53]
Manila Prince Hotel v. GSIS, 335 Phil. 82, 102 (1997).
[54]
Cheng v. Sy, G.R. No. 174238, July 7, 2009, 592 SCRA 155, 164-165.
[55]
DE LEON AND DE LEON, JR., THE LAW ON PUBLIC OFFICERS AND ELECTION LAW (2003 ed.), p.
467, citing SINCO, Philippine Political Law, 11th ed. (1962), p. 374.
[56]
Neri v. Senate Committee on Accountability of Public Officers and Investigations, supra at 231.
[57]
1) Rule III, Section 4 thereof, on the finding of insufficiency in form, where petitioner prayed that the complaint
be returned to the Secretary General within three session days with a written explanation of the insufficiency, who
shall, in turn, return the same to the complainants together with the written explanation within three session days
from receipt of the committee resolution.
 2) Rule VII, Sec. 16 thereof, on the applicability of the rules of criminal procedure, where petitioner invokes the
rule against duplicity of offense under Section 13, Rule 110 of the Rules of Court.
[58]
460 Phil. 830 (2003).
[59]
Id. at 927.
[60]
Francisco, supra at 932.
[61]
In case of a direct filing by at least one-third (1/3) of all the members of the House of Representatives under
paragraph (4), Section 3, Article XI of the Constitution, there occurs an abbreviated mode of initiation wherein the
filing of the complaint and the taking of initial action are merged into a single act.
[62]
Francisco, supra at 932-933.
[63]
Section 16. Impeachment Proceedings Deemed Initiated. ─ In cases where a Member of the House files a
verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the
House through a resolution of endorsement against an impeachable officer, impeachment proceedings against
such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and or
resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to
overturn or affirm the finding of the said Committee that the verified complaint and or resolution, as the case may
be, is not sufficient in substance.
In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at
least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time
of the filing of such verified complaint or resolution of impeachment with the Secretary General. (emphasis,
underscoring and italics supplied)
[64]
Section 17. Bar Against Initiation of Impeachment Proceedings. −Within a period of one (1) year from the
date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment
proceedings, as such, can be initiated against the same official. (emphasis, underscoring and italics supplied)
[65]
Francisco, supra at 933.
[66]
Petitioners Memorandum, pp. 30-36 (rollo, pp. 793-799).
[67]
II RECORD OF THE CONSTITUTIONAL COMMISSION, p. 376 (July 28, 1986).
[68]
Id. at 279-280.
[69]
Id. at 374-375.
[70]
Id. at 375-376.
[71]
Id. at 416.
[72]
Francisco, supra at 940.
[73]
Francisco, supra at 931.
[74]
Section 3. x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any
citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of
Business within ten session days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
xxxx
[75]
Vide Gatchalian, etc. v. COMELEC, 146 Phil. 435, 442-443 (1970).
[76]
x x x An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first
provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in
that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do
it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at
a conclusion. x x x (Francisco, supra at 930-931).
[77]
Francisco, supra at 931.
[78]
Petitioners Memorandum, p. 55 (rollo, p. 818).
[79]
RULES OF THE HOUSE OF REPRESENTATIVES, Rule XIII, Sec. 96.
[80]
<http://www.rulesonline.com/rror-05.htm> (visited: November 12, 2010), which further explains:
The Object of the motion to refer to a standing or special committee is usually to enable a question to be more
carefully investigated and put into better shape for the assembly to consider, than can be done in the assembly
itself. Where an assembly is large and has a very large amount of business it is safer to have every main question
go to a committee before final action on it is taken. (underscoring supplied).
[81]
Vide RULES OF PROCEDURE IN IMPEACHMENT PROCEEDINGS, Rule II, Sec. 2. Note also that Section 3
(2), Article XI of the Constitution did not use the terms calendar days or working days.
[82]
Respondent Committees Memorandum, p. 78 (rollo, p. 971).
[83]
Respondent Reyes groups Memorandum, p. 26 (id. at 1085).
[84]
Respondent-Intervenors Memorandum, p. 22 (id. at 1131).
[85]
Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010.
[86]
Francisco, supra at 931.
[87]
It was made of record that whenever the body will override the resolution of impeachment of the Committee, it is
understood that the body itself will prepare the Articles of Impeachment. [II RECORD OF THE
CONSTITUTIONAL COMMISSION, p. 416 (July 29, 1986)].
[88]
To respondents Committee and Reyes Group, any House action of dismissal of the complaint would not set in the
one-year bar rule.
[89]
Petitioners Memorandum, p. 38 (rollo, p. 801), citing the Separate Opinion of Justice Adolf Azcuna
in Francisco.
[90]
II RECORD OF THE CONSTITUTIONAL COMMISSION, p. 282 (July 26, 1986).
[91]
TSN, October 12, 2010, p. 212.
[92]
Citing RULES OF COURT, Rule 2, Sec. 5 & Rule 140, Sec. 1.
[93]
Or by the Committee if the question is first raised therein.
[94]
This is not to say, however, that it must always contain two or more charges. In Santillon v. Miranda, et al, [121
Phil. 1351, 1355 (1965)], it was held that the plural can be understood to include the singular.
[95]
Petitioner cites that the Committee stated that although two complaints were filed against petitioner, the two were
in effect merged in one proceeding by their referral on the same day to the Committee. (TSN, Committee Hearing,
September 1, 2010; rollo, p. 528-529).
[96]
Id. at 48.
[97]
Vide San Luis v. Rojas, G.R. No. 159127, March 3, 2008, 547 SCRA 345, 367.
[98]
The Committees Comment, p. 29 (rollo, p. 430).
 Republic of the Philippines
Supreme Court
Manila
---

EN BANC

ROMULO L. NERI, G.R. No. 180643

Petitioner,

Present:

PUNO, C.J.,
- versus -
QUISUMBING,

YNARES-SANTIAGO,

CARPIO,
SENATE COMMITTEE ON AUSTRIA-MARTINEZ,
ACCOUNTABILITY OF
PUBLIC OFFICERS AND CORONA,
INVESTIGATIONS, SENATE
CARPIO MORALES,
COMMITTEE ON TRADE
AND COMMERCE, AND AZCUNA,
SENATE COMMITTEE ON
NATIONAL DEFENSE AND TINGA,
SECURITY, CHICO-NAZARIO,
Respondents.
VELASCO, JR.,

NACHURA,

REYES,

LEONARDO-DE CASTRO, and

BRION, JJ.
 Promulgated:

September 4, 2008

x---------------------------------------------------------------------------------------------------------------x

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 ofChina. 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:

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.
Vasquez[9] 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.

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 inSenate v. Ermita[11] 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 claimthereof 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 againstexecutive
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. Ermita[22] 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 privilege are 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 intoexecutive 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 Case[27] precisely 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 24[30] and 28;[31] Article XI, Section 1;[32] Article
XVI, Section 10;[33] Article VII, Section 20;[34] andArticle 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 norof 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 trustAmerican 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.

[41]
Nixon 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 Arnaultinvolves 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 generalizedassertion 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. Nixon[43] 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.[49] In this regard, the pronouncement in Barenblatt
v. United States[50] 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 Venecia[56] 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.[57] These 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 each session 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 their internal 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.
 TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

CONSUELO YNARES-SANTIAGO

LEONARDO A. QUISUMBING Associate Justice

Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

 RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice
Associate Justice

ADOLFO S. AZCUNA
DANTE O. TINGA
Associate Justice
Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA RUBEN T. REYES

Associate Justice Associate Justice

ARTURO D. BRION
 Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice
[1]
Chaired by Hon. Senator Alan Peter S. Cayetano.
[2]
Chaired by Hon. Senator Manuel A. Roxas II.
[3]
Chaired by Hon. Senator Rodolfo G. Biazon.
[4]
Transcript of the September 26, 2007 Hearing of the respondent Committees, pp. 91-92.
[5]
Id., pp. 114-115.
[6]
Id., pp. 276-277.
[7]
See Letter dated November 15, 2007.
[8]
See Letter dated January 30, 2008.
[9]
G.R. No. 95367, May 23, 1995, 244 SCRA 286.
[10]
433 Phil. 506 (2002)
[11]
G.R. No. 169777, April 20, 2006, 488 SCRA 1.
[12]
Supra., note 9.
[13]
Supra., note 11.
[14]
G.R. No. 130716, December 9, 1998, 299 SCRA 744.
[15]
Supra., note 10.
[16]
Almonte v. Vasquez, supra., note 9.
[17]
Chavez v. PCGG, supra., note 14.
[18]
Senate v. Ermita, supra., note 11.
[19]
Telefunken Semiconductors Employees Union -FFW v. Court of Appeals, G.R. Nos. 143013-
14, December 18, 2000, 348 SCRA 565,587; Valderama v. NLRC, G.R. No. 98239, April 25,1996,
256 SCRA 466, 472 citingPolicarpio v. P.V.B. and Associated Ins. & Surety Co., Inc., 106 Phil. 125,
131 (1959).
[20]
Supra, note 11 at pp. 68-69
[21]
Id., at pp. 45-46
[22]
Id., at p. 58
[23]
Id., at p. 50
[24]
Webster Encyclopedic Unabridged Dictionary, Gramercy Books 1994, p. 1181.
[25]
Business Dictionary, http://www.businessdictionary.com/definition/non-delegable-duty.html
[26]
Usaffe Veterans Association, Inc. v. Treasurer of the Philippines, et al. (105 Phil. 1030, 1038); See
also Commissioner of Internal Revenue v. John Gotamco & Sons, Inc. G.R. No. L-31092, February
27, 1987,148 SCRA 36, 39.
[27]
No. 96-3124, June 17, 1997, 121 F.3d 729,326 U.S. App. D.C. 276.
[28]
365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid. Serv.141.
[29]
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.
[30]
Article II, Sec. 24. The State recognizes the vital role of communication and information in nation-
building.
[31]
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.
[32]
Article XI, Sec. 1. 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.
[33]
Article XVI, Sec. 10. The State shall provide the policy environment for the full development of
Filipino capability and the emergence of communications structures suitable to the needs and
aspirations of the nation and the balanced flow of information into, out of, and across the country, in
accordance with a policy that respects the freedom of speech and of the press.
[34]
Article VII, Sec. 20. The President may contract or guarantee foreign loans on behalf of the Republic
of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations
as may be provided by law. The Monetary Board shall, within thirty days from the end of every
quarter of the calendar year, submit to Congress a complete report of its decisions on applications for
loans to be contracted or guaranteed by the Government or government-controlled corporations which
would have the effect of increasing the foreign debt, and containing other matters as may be provided
by law.
[35]
Article XII, Sec. 9. The Congress may establish an independent economic and planning agency
headed by the President, which shall, after consultations with the appropriate public agencies, various
private sectors, and local government units, recommend to Congress, and implement continuing
integrated and coordinated programs and policies for national development. Until the Congress
provides otherwise, the National Economic and Development Authority shall function as the
independent planning agency of the government.
[36]
Article XII, Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of
the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall
be made available to the public.
[37]
Article XII, Sec. 22. Acts which circumvent or negate any of the provisions of this Article shall be
considered inimical to the national interest and subject to criminal and civil sanctions, as may be
provided by law.
[38]
14 F. Supp. 230, 299 U.S. 304 (1936).
[39]
G.R. No. 170516, promulgated July 16, 2008.

[40]
Supra note 14.
[41]
Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).

[42]
TSN, Oral Argument, March 4, 2008, pp. 417 - 422.
[43]
Supra, note 41 at pp. 725, 731-32.
[44]
Senate Select Committee on Presidential Campaign Activities v. Nixon held that Congress asserted
power to investigate and inform was, standing alone, insufficient to overcome a claim of privilege
and so refused to enforce the congressional subpoena. Id.
[45]
G.R. No. 89914, November 20, 1991, 203 SCRA 767.
[46]
Id., at p. 776.
[47]
Id., at p. 783.
[48]
The dialogue between petitioner and Senator Lacson is a good illustration, thus:

SEN. LACSON. Did you report the attempted bribe offer to the President?

MR. NERI. I mentioned it to the President, Your Honor.

SEN. LACSON: What did she tell you?

MR. NERI. She told me, Dont accept it.

SEN. LACSON. And then, thats it?

MR. NERI. Yeah, because we had other things to discuss during that time.

SEN. LACSON. And then after the President told you, Do not accept it, what did she

do? How did you report it to the President? In the same

context that it was offered to you?

MR. NERI. I remember it was over the phone, Your Honor.

SEN. LACSON. Hindi nga. Papaano ninyo ni-report, Inoperan (offer) ako ng bribe

na P200 million ni Chairman Abalos or what? How did you

report it to her?

MR.NERI. Well, I said, Chairman Abalos offered me 200 million for this.

SEN. LACSON. Okay. That clear?

MR. NERI. Im sorry.

SEN. LACSON. That clear?

MR. NERI. I think so, Your Honor.

SEN. LACSON. And after she told you. Do not accept it, what did she do?

MR. NERI. I dont know anymore, Your Honor, but I understand PAGC investigated it

orI was not privy to any action of PAGC.

SEN. LACSON. You are not privy to any recommendation submitted by PAGC?

MR. NERI. No, Your Honor.

SEN. LACSON. How did she react, was she shocked also like you or was it just casually

responded to as, Dont accept.

MR. NERI. It was over the phone, Your Honor, so I cannot see her facial expression.

SEN. LACSON. Did it have something to do with your change of heart so to speak your

attitude towards the NBN project as proposed by ZTE?

MR. NERI. Can you clarify, Your Honor, I dont understand the change of heart.

SEN. LACSON. Because, on March 26 and even on November 21, as early as November

21, 2006 during the NEDA Board Cabinet Meeting, you were in

agreement with the President that it should be pay as you use

and not take or pay. There should be no government subsidy

and it should be BOT or BOO or any similar scheme and you

were in agreement, you were not arguing. The President was

 not arguing with you, you were not arguing with the President,

so you were in agreement and all of a sudden nauwi tayo doon

sa lahat ng --- and proposal all in violation of the Presidents

Guidelines and in violation of what you thought of the project?

MR. NERI. Well, we defer to the implementing agencys choice as to how to implement

the project.

[49]
Watkins v. United States, 354 U.S. 178 (1957).
[50]
360 U.A. 109, 3 L Ed. 2d 1115, 69 S CT 1081 (1959).
[51]
Article XI, Section 13, par.1 of the Constitution.
[52]
487 F. 2d 700.
[53]
Professor Christopher Schroeder (then with the Clinton Justice Department), for example, labeled
some of Congresss investigations as no more than vendetta oversight or oversight that seems
primarily interested in bringing someone down, usually someone close to the President or perhaps
the President himself. Theodore Olson (the former Solicitor General in the Bush Justice
Department), in turn, has argued that oversight has been used improperly by Congress to influence
decision making of executive branch officials in a way that undercuts the Presidents power to assure
that laws are faithfully executed. (Marshall, The Limits on Congress Authority to Investigate the
President, Marshall-Illinois.Doc, November 24, 2004.)

[54]
103 U.S. 168 (1880).
[55]
Kenan Professor of Law, University of North Carolina.
[56]
G.R. No. 127255, August 14, 1997, 277 SCRA 268.
[57]
Transcript of the January 30, 2008 proceedings pp. 5-7.
[58]
TSN, March 4, 2008, at pp. 529-530.
[59]
Section 24, Rules of Procedure Governing Inquiries in Aid of Legislation.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 72492 November 5, 1987

NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., PATERIO TORRES and ARTURO

UMBAC, petitioners,
vs.
SANGGUNIANG PANLUNGSOD OF DUMAGUETE, THE AD HOC COMMITTEE OF THE
SANGGUNIANG PANLUNGSOD OF DUMAGUETE and ANTONIO S. RAMAS
UYPITCHING, respondents.

CORTES, J.:

An attempt by the respondent Ad Hoc Committee of the respondent Sangguniang Panlungsod of

Dumaguete to punish non-members for legislative contempt was halted by this special civil action of
certiorari and Prohibition with Preliminary Injunction and/or Restraining Order questioning the very
existence of the power in that local legislative body or in any of its committees. On November 7,
1985, this Court issued a Temporary Restraining Order:

. . . enjoining respondents, their agents, representatives, and police and other peace
officers acting in their behalf, to refrain from compelling the attendance and testimony
of Petitioners Paterio Torres and Arturo Umbac at any and all future investigations to
be conducted by aforesaid respondents, and from issuing any contempt order if one
has not been issued yet or from executing any such contempt order if one has
already been issued.

Assailed is the validity of a subpoena dated October 25, 1985 (Annex "A", Petition) sent by the
respondent Committee to the petitioners Paterio Torres and Arturo Umbac, Chairman of the Board of
Directors and the General Manager, respectively, of petitioner Negros Oriental II Electric
Cooperative NORECO II), requiring their attendance and testimony at the Committee's investigation
on October 29, 1985. Similarly under fire is the Order issued by the same Committee on the latter
date, (Annex "D", Petition) directing said petitioners to show cause why they should not be punished
for legislative contempt due to their failure to appear at said investigation.

The investigation to be conducted by respondent Committee was "in connection with pending
legislation related to the operations of public utilities" (Id.) in the City of Dumaguete where petitioner
NORECO II, an electric cooperative, had its principal place of business. Specifically, the inquiry was
to focus on the alleged installation and use by the petitioner NORECO II of inefficient power lines in
that city (Comment, Rollo, p. 50). Respondent Antonio S. Ramas Uypitching, as Chairman of the
Committee on Public Utilities and Franchises and Co-Chairman of the respondent Ad Hoc
Committee, signed both the subpoena and the Order complained of. Petitioners moved to quash the
subpoena on the following grounds:

a. The power to investigate, and to order the improvement of, alleged inefficient
power lines to conform to standards is lodged exclusively with the National
Electrification Administration; and
 b. Neither the Charter of the City of Dumaguete nor the Local Government Code
grants (the Sangguniang Panlungsod) any specific power to investigate alleged
inefficient power lines of NORECO II. (Annex "C", Petition)

The motion to quash was denied in the assailed Order of October 29, 1985 directing the petitioners
Torres and Umbac to show cause why they should not be punished for contempt. Hence this Petition
for certiorari andProhibition with Preliminary Injunction and/or Restraining Order.

Petitioners contend that the respondent Sangguniang Panlungsod of Dumaguete is bereft of the
power to compel the attendance and testimony of witnesses, nor the power to order the arrest of
witnesses who fail to obey itssubpoena. It is further argued that assuming the power to compel the
attendance and testimony of witnesses to be lodged in said body, it cannot be exercised in the
investigation of matters affecting the terms and conditions of the franchise granted to NORECO II
which are beyond the jurisdiction of the Sangguniang Panlungsod (Rollo pp. 7-8).

Respondents, for their part, claim that inherent in the legislative functions performed by the
respondentSangguniang Panlungsod is the power to conduct investigations in aid of legislation and
with it, the power to punish for contempt in inquiries on matters within its jurisdiction (Rollo, p. 46). It
is also the position of the respondents that the contempt power, if not expressly granted, is
necessarily implied from the powers granted the Sangguniang Panlungsod (Rollo, pp. 48-49).
Furthermore, the respondents assert that an inquiry into the installation or use of inefficient power
lines and its effect on the power consumption cost on the part of Dumaguete residents is well-within
the jurisdiction of the Sangguniang Panlungsod and its committees.

1. A line should be drawn between the powers of Congress as the repository of the legislative
power under the Constitution, and those that may be exercised by the legislative bodies of local
government unit, e.g. theSangguniang Panlungsod of Dumaguete which, as mere creatures of law,
possess delegated legislative power.While the Constitution does not expressly vest Congress with
the power to punish non-members for legislative contempt, the power has nevertheless been
invoked by the legislative body as a means of preserving its authority and dignity (Arnault v.
Nazareno, 87 Phil. 29 [1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that courts
wield an inherent power to "enforce their authority, preserve their integrity, maintain their dignity, and
ensure the effectiveness of the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716,
723 [1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases). The exercise by Congress of this
awesome power was questioned for the first time in the leading case of Arnault v. Nazareno, (87
Phil. 29 [1950]) where this Court held that the legislative body indeed possessed the contempt
power.

That case arose from the legislative inquiry into the acquisition by the Philippine Government of the
Buenavista and Tambobong estates sometime in 1949. Among the witnesses called and examined
by the special committee created by a Senate resolution was Jean L. Arnault, a lawyer who
delivered a portion of the purchase price to a representative of the vendor. During the Senate,
investigation, Amault refused to reveal the Identity of said representative, at the same time invoking
his constitutional right against self-incrimination. The Senate adopted a resolution committing Arnault
to the custody of the Sergeant at Arms and imprisoned "until he shall have purged the contempt by
revealing to the Senate . . . the name of the person to whom he gave the P440,000, as wen as
answer other pertinent questions in connection therewith." (Arnault v. Nazareno, 87 Phil. 29, 43
[1950]). Arnault petitioned for a writ of Habeas Corpus.

In upholding the power of Congress to punish Arnault for contumacy the Court began with a
discussion of the distribution of the three powers of government under the 1935 Constitution.
Cognizant of the fact that the Philippines system of government under the 1935 Constitution was
patterned after the American system, the Court proceeded to resolve the issue presented, partly by
drawing from American precedents, and partly by acknowledging thebroader legislative power of the
Philippine Congress as compared to the U.S. Federal Congress which shares legislative power with
the legislatures of the different states of the American union (Id., pp. 44-45). The Court held:

xxx xxx xxx

... (T)he power of inquiry-with process to enforce it-is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change; and where the legislative body does not
itself possess the requisite information — which is not infrequently true — recourse
must be had to others who possess it. 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
ALR 1) The fact that the Constitution expressly gives to Congress the power to
punish its Members for disorderly behaviour, does not by necessary implication
exclude the power to punish for contempt by any 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.)

The Court proceeded to delve deeper into the essence of the contempt power of the Philippine
Congress in a subsequent decision (Arnault v. Balagtas, 97 Phil. 358 [1955]) arising from the same
factual antecedents:

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 real of its respective authority, it must have intended each
department's authority to be full and complete, independently of the other's 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. . . (Arnault v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370
[1955]).

The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then
an unexplored area of jurisprudence, and succeeded in supplying the raison d' etre of this power of
Congress even in the absence of express constitutional grant. Whether or not the reasons for
upholding the existence of said power in Congress may be applied mutatis mutandis to a questioned
exercise of the power of contempt by the respondent committee of a city council is the threshold
issue in the present controversy.
3. 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, and local legislative bodies cannot correctly claim to possess it for the same
reasons that the national legislature does. The power attaches not to the discharge of legislative
functions per se but to the character of the legislature as one of the three independent and
coordinate branches of government. The same thing cannot be said of local legislative bodies which
are creations of law.

4. To begin with, there is no express provision either in the 1973 Constitution or in the Local
Government Code (Batas Pambansa Blg. 337) granting local legislative bodies, the power to
subpoena witnesses and the power to punish non-members for contempt. Absent a constitutional or
legal provision for the exercise of these powers, the only possible justification for the issuance of a
subpoena and for the punishment of non-members for contumacious behaviour would be for said
power to be deemed implied in the statutory grant of delegated legislative power. But, the contempt
power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of
legislative power. Neither can they exist as mere incidents of the performance of legislative
functions. To allow local legislative bodies or administrative agencies to exercise these powers
without express statutory basis would run afoul of the doctrine of separation of powers.

Thus, the contempt power, as well as the subpoena power, which the framers of the fundamental
law did not expressly provide for but which the then Congress has asserted essentially for self-
preservation as one of three co-equal branches of the government cannot be deemed implied in the
delegation of certain legislative functions to local legislative bodies. These cannot be presumed to
exist in favor of the latter and must be considered as an exception to Sec. 4 of B.P. 337 which
provides for liberal rules of interpretation in favor of local autonomy. Since the existence of the
contempt power in conjunction with the subpoena power in any government body inevitably poses a
potential derogation of individual rights, i.e. compulsion of testimony and punishment for refusal to
testify, the law cannot be liberally construed to have impliedly granted such powers to local
legislative bodies. It cannot be lightly presumed that the sovereign people, the ultimate source of all
government powers, have reposed these powers in all government agencies. The intention of the
sovereign people, through their representatives in the legislature, to share these unique and
awesome powers with the local legislative bodies must therefore clearly appear in pertinent
legislation.

There being no provision in the Local Government Code explicitly granting local legislative bodies,
the power to issue compulsory process and the power to punish for contempt, the Sanggunian
Panlungsod of Dumaguete is devoid of power to punish the petitioners Torres and Umbac for
contempt. The Ad-Hoc Committee of said legislative body has even less basis to claim that it can
exercise these powers.

5. Even assuming that the respondent Sangguniang Panlungsod and the respondent Ad-Hoc
Committee had the power to issue the subpoena and the order complained of, such issuances would
still be void for being ultra vires.The contempt power (and the subpoena power) if actually
possessed, may only be exercised where the subject matter of the investigation is within the
jurisdiction of the legislative body (Arnault v. Nazareno, supra, citing Kilbourn v. Thompson). As
admitted by the respondents in their Comment, the investigation to be conducted by the Ad-Hoc
Committee was to look into the use by NORECO II of inefficient power lines "of pre-war vintage"
which the latter had acquired from the Visayan Electric Com. company, and "to hear the side of the
petitioners" (Comment, Rollo, p. 50). It comes evident that the inquiry would touch upon the
efficiency of the electric service of NORECO II and, necessarily, its compliance with the franchise.
Such inquiry is beyond the jurisdiction of the respondent Sangguniang Panlungsod and the
respondent committee.
There is no doubt that a city government has the power to enact ordinances regulating the
installation and maintenance of electric power lines or wires within its territorial jurisdiction. The
power subsists notwithstanding the creation of the National Electrification Administration (NEA), to
which body the franchise powers of local government units were transferred by Presidential Decree
No. 269. Section 42 of the Decree states:

SEC. 42. Repeal of Franchise Powers of Municipal City and Provincial Governments.
— The powers of municipal, city and provincial governments to grant franchises, as
provided for in Title 34 of the Philippines Statutes or in any special law, are hereby
repealed; Provided, That this section shall not impair or invalidate any franchise
heretofore lawfully granted by such a government or repeal any other subsisting
power of such governments to require that electric facilities and related properties be
so located, constructed and operated and maintained as to be safe to the public and
not to unduly interfere with the primary use of streets, roads, alleys and other public
ways, buildings and grounds over, upon or under which they may be built. (This
Section was not among those amended by Pres. Dec. Nos. 1370 [May 2, 1978] and
1645 [October 8, 1979]).

This particular power of the city government is included in the enumeration of powers and duties of a
Sangguniang Panlungsod in Section 177 of the Local Government Code (Batas Pambansa Blg. 337,
February 10, 1983), to wit:

SEC. 177. Powers and Duties. — The Sangguniang Panlungsod shall:

xxx xxx xxx

(j) . . . regulate the digging and excavation for the laying of gas, water, power, and
other pipelines, the building and repair of tunnels, sewers and drains, and all
structures thereunder; the placing, stringing, attaching, installing, repair and
construction of all gas mains, electric, telegraph and telephone wires,conduits meters
and other apparatus, and the correction, condemnation of the same when dangerous
or defective;

xxx xxx xxx

The Sangguniang Panlungsod of Dumaguete may, therefore, enact ordinances to regulate the
installation and maintenance of electric power lines, e.g. prohibit the use of inefficient power lines, in
order to protect the city residents from the hazards these may pose. In aid of this ordinance making
power, said body or any of its committees may conduct investigations similar to, but not the same
as, the legislative investigations conducted by the national legislature. As already discussed, the
difference lies in the lack of subpoena power and of the power to punish for contempt on the part of
the local legislative bodies. They may only invite resource persons who are willing to supply
information which may be relevant to the proposed ordinance. The type of investigation which may
be conducted by the Sangguniang PanLungsod does not include within its ambit an inquiry into any
suspected violation by an electric cooperative of the conditions of its electric franchise.

The power to inquire into the efficiency of the service supplied by electric cooperatives is within the
franchising powers of the NEA under Sec. 43 of Pres. Dec. No. 269, i.e.:

(2) to repeal and cancel any franchise if the NEA finds that the holder thereof is not
then furnishing, and is unable to or unailling within reasonable time to furnish
adequate and dependable service on an area coverage within such area;
 xxx xxx xxx

In the exercise of this power, the NEA may conduct hearings and investigations, issle subpoenas
and invoke the aid of the courts in case of disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D.
269). Clearly, then, the Sangguniang Panlungsod of Dumaguete cannot look into an suspected
failure of NORECO II to comply with the standards of electric service prescribed by law and in its
franchise. The proper recourse is to file a complaint with the NEA against NORECO II if there be
sufficient basis therefor.

WHEREFORE, the subpoena dated October 25, 1985 requiring the attendance and testimony of the
petitioners at an investigation by the respondent Ad-Hoc Committee, and the Order issued by the
latter on October 29, 1985 directing herein petitioners to show cause why they should not be
punished for legislative contempt for their disobedience of said subpoena, is declared null and void
for being ultra vires. The respondent Sangguniang Panlungsod and the respondent Ad-Hoc
Committee are without power to punish non- members for contempt. The Temporary Restraining
Order issued by this Court on November 7, 1985 enjoining said respondents, their agents and
representatives, and the police and other peace officers from enforcing the aforesaid Order of the
respondent committee is made permanent. Petition is GRANTED. No costs.

SO ORDERED

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco,
Padilla, Bidin and Sarmiento, JJ., concur.