Executive Order 464 – Senate of the Philippines vs. Ermita

The non-appearance of executive officials in the recent Senate inquiry resurrected the controversy surrounding Executive Order No. 464. With this, let’s revisit the ruling in Senate of the Philippines vs. Eduardo R. Ermita, G.R. No. 169777, wherein a unanimous Supreme Court (en banc) struck down Sections 2 (b) and 3 of E.O. 464 as unconstitutional, but upheld the validity of Sections 1 and 2(a).

The salient provisions of E.O. 464 are:

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.

The power of inquiry vs. the executive privilege

The power of inquiry [inquiry in aid of legislation] of Congress is expressly recognized in Section 21 of Article VI of the Constitution. An exemption to such Congressional power falls under the rubric of “executive privilege”, which is also a constitutional concept. Executive privilege, however, is recognized only in relation to certain types of information of a sensitive character. The validity of a claim thereof depends on the ground invoked to justify it and the context in which it is made. Executive officials are NOT exempt from the duty to disclose information by the mere fact of being executive officials.

Validity Section 1 (with limitation)

Section 1 of E.O. 464 specifically applies to department heads. The required prior consent under Section 1 is based 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.

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.

Unconstitutionality of Sections 2 (b) 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.

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. There is an implied claim of privilege, which implied claim is not accompanied by any specific allegation of the basis thereof.

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.

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. It does not provide for precise and certain reasons for the claim, which deprives the Congress to determine whether the withholding of information is justified under the circumstances of each case.

Validity of Section 2(a)

Section 2(a) 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.

Right to Information

Petitioners are not amiss in claiming 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. 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.

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 legislature’s power of inquiry.

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.

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.

4 Responses to “Executive Order 464 – Senate of the Philippines vs. Ermita”


  1. 1 Dean Jorge Bocobo Aug 2nd, 2006 at 9:42 am

    Fred?

    In your opinion, what activities of Congress are NOT in aid of legislation? For example, are oversight functions NOT in aid of legislation?

    The “balancing of interests” technique that is redolent in the Decision, really centers around a distinction that the Court has seen fit to make between the Congress power of inquiry in aid of legislation which is located in Article VI Section 21, and the power of inquiry in the discharge of its oversight duty, in Section 22.

    Following the Decision’s own avowed practice of construing government issuances in a manner that makes them Constitutional, I shall hope that the following quotation from Senate v. Ermita itself will apply in the coming controversies over it. Justice Carpio Morales says of the Arnault case —

    The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. 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.

    By making the distinction that attendance at inquiries in aid of legislation is mandatory while that at inquiries of overshight are discretionary, and then accepting Section 2(a) in toto as having “no infirmity,” has not the Supreme Court merely laid the basis for future exercises of gagging government officials, especially the highest level ones. For like the “chilling effect” of Proclamation 1017 on media, the pusillanimous in the government services, or those merely vulnerable to the pressures of higher authority, have already received the signal to observe omerta in all things. Mike Defensor was right, EO 464 has already “served its purpose.”

    It seems to me that the 1987 Constitution is confused about this one (or maybe I am)–because I think Sections 22 and 23 have set up a false distinction.

    http://www.google.com/search?ie=UTF-8&oe=UTF-8&q=eo+464&btnG=Google+it%21&domains=http%3A%2F%2Fphilippinecommentary.blogspot.com%2F&sitesearch=http%3A%2F%2Fphilippinecommentary.blogspot.com%2F

    (I’ve Linked your new website to Philippine Commentary)

  2. 2 Fred Aug 4th, 2006 at 2:46 am

    Dean,
    Instead of my opinion, allow me to point to certain decisions of the Supreme Court in reply to your question as to what activities of Congress are NOT in aid of legislation.

    The case that immediately comes to mind involves an inquiry by the Senate Blue Ribbon committee in 1988-89. In that case (Bengzon vs. Senate Blue Ribbon Committee), the SC said that the contemplated inquiry in not in aid of legislation.

    It is true that the power to conduct an inquiry in aid of legislation is co-extensive with the power to legislate. However, not all inquiries conducted pursuant to the oversight functions of Congress are considered in aid of legislation. This is gleaned from the disquition of Justice Puno in the 2003 case of Macalintal vs. COMELEC. See further discussion in the comment immediately below.
    I believe that the SC did not lay the basis fo future gagging. With respect to Sec. 2 (a) of E.O. 464, the SC noted that it is merely an expression of opinion on the part of the President and this opinion is not conclusive or binding on other branches of the government. If Congress wants to use Sec. 21, it must lay the basis, veer away from Bengzon, and insist in enforcing the subpoena (in my humble opinion). This is in theory, of course, and I know that actual application is an entirely different matter.

    By the way, Dean, thank you for the link. This site will host the purely legal stuff, with the lighter version still at the other site.

  1. 3 Philippine e-Legal Forum » Blog Archive » Primer on Separation of Powers, Inquiry in Aid of Legislation Pingback on Sep 18th, 2006 at 3:32 am
  2. 4 Philippine e-Legal Forum » Blog Archive » Supreme Court news: ‘Unusual, Unprecedented’ 30 Days Pingback on Oct 4th, 2006 at 8:40 am

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