April 20, 2006 | G.R. No. 169777
Senate of the Philippines, petitioner
Eduardo R. Ermita, in his capacity as Executive Secretary, respondent
FACTS:
On September 28, 2005, then President Gloria Macapagal-Arroyo issued E.O. No. 464[1]. Effective on the date of its issuance, the said order aims to (a) ensure the observance of the principle of the separation of powers; (b) ensure adherence to the rule on executive privilege; and (c) respect the rights of public officials appearing in inquiries in aid of legislation.
Section 1 of the said order requires all heads of the departments of the Executive Branch to secure the consent of the President prior to appearing before either the Senate or the House of Representatives. Section 2(a) of the same order enumerates the kind of information covered by executive privilege, while Section 2(b) lists down the list of officials covered by the order. Finally, Section 3 requires all officials mentioned in Section 2(b) to secure authorization from the President prior to appearing before the Senate or the House of Representatives.
Curiously, E.O. 464 was issued at a time when both the Senate and the House of Representatives were conducting congressional inquiries, to wit: (a) the North Rail Project; (b) the "Hello Garci" wiretapping scandal; (c) Ginintuang Masaganang Ani fertilizer fund scam; and (d) the Venable contract. With the issuance of E.O. 464, the public officials invited to attend said inquiries were effectively barred from attending without consent from the President.
ISSUES:
1. Whether or not E.O. 464 contravenes the power of inquiry vested in Congress.
2. Whether or not E.O. 464 violates the right of the people to information on matters of public concern.
3. Whether or not public officials who invoked E.O. 464 as an excuse not to attend congressional hearings should be held liable for grave abuse of discretion.
HELD:
1. Yes, E.O. 464 frustrates the power of inquiry of Congress. But the assailed order is not entirely unconstitutional. In fact, Section 1 is valid on the ground that it merely stresses the voluntary nature of the "question hour" as found in Section 22, Art. VI of the 1987 Constitution, as opposed to "inquiries in aid of legislation" in Section 21, Art. VI, which are mandatory in nature.
To reiterate, while the concept of question hour and inquiries in aid of legislation are closely related, the two are not one and the same; attendance to the former is meant to be discretionary while attendance to the latter is compulsory.
Section 2(a) of E.O. 464 is likewise valid, it being merely an enumeration of information covered by executive privilege.
However, the Court ruled that Sections 2(b) and 3 of the assailed order are void.
Section 2(b) is unconstitutional because it allows the President to invoke executive privilege based on the classifications or categories of persons, when in fact such categorization should only apply to information.
The unconstitutionality of Section 3, on the other hand, is due to the fact that it merely invokes executive privilege without asserting why. Congress has the right to know why an information is subject to executive privilege, such that an "implied claim" of executive privilege not accompanied by any specific allegation of the basis thereof is insufficient.
In its ruling, the Court similarly touched on the concepts of the "power of inquiry" of Congress and what constitutes "executive privilege."
Under Article 21, Sec. VI of the 1987 Constitution, Congress is vested with the power to "conduct inquiries in aid of legislation." This power of inquiry is co-extensive with its power to legislate. As such, Congress has the authority to inquire into the operations of the executive branch, and the latter cannot put up defenses to frustrate such power unless the congressional hearings made in the exercise of such power involve infomation that fall within the rubric of "executive privilege."
According to Schwartz, executive privilege is "the power of the Government to withhold information from the public, the courts, and the Congress." It has three varieties: (a) state secrets privilege, which is invoked by US presidents on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives; (b) informer's privilege, or the privilege of the Government not to disclose the identities of persons who furnish information on violations of law to officers charged with the enforcement of that law; and (c) generic privilege, for internal deliberations or intragovernmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.
But not all information covered by executive privilege are considered privileged in all cases (see US v. Nixon re: Watergate scandal). The Court ruled that 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. Given this, the presumption inclines heavily against executive secrecy and in favor of disclosure.
2. Yes. Given that congressional hearings are generally held in public, any executive issuance that tends 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 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.
3. Laws, including presidential issuances, must be first published either in the Official Gazette or in a newspaper of general circulation prior to their implementation. In the instant case, E.O. 464 was immediately invoked even if the requirement of prior publication has not been satisfied yet.
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[1] "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"