Senate v. Executive Secretary Digest

Senate of the Phils. v Executive Secretary

G.R. No. 169777  April 20, 2006

Facts:

1.       Assailed in this petition was the constitutionality of Executive Order 464 issued by the President. Petitioners contend that the President abused its power and prayed that said law be declared null and void. EO 464 requires that heads of departments obtain the consent of the President before they can validly appear before investigations including the one conducted in the Senate. It also grants executive privilege on all classified or confidential information between the President and the public officers covered by the EO.

2.       The Senate conducted an investigation and issued invitations to various officials of the Executive department as resource speakers in a public hearing on the North Rail project. Said public hearing was sparked by a privilege speech of Sen.  Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the said project. The Senate Committee on National Defense and Security likewise issued invitations to officials of the AFP.

3.       Executive Ermita sent a letter to the Senate requesting postponement of the hearing. On the same day (Sept 28, 2005) the President issued EO 464.  Despite this development, the investigation pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending. Both were subsequently relieved for defying the President’s order.

4.      Hence, three petitions (Bayan Muna, Sen. Chavez, Alt.. Law Group), for certiorari and prohibition and TRO, were filed before the Supreme Court challenging the constitutionality of E.O. 464.

ISSUE 1: Whether or not E.O. 464 contravenes the power of inquiry vested in Congress

YES. EO 464 bars the appearance of executive officials before the Congress, hence it deprives it of the information in possession of these officials.

1.       The Congress power of inquiry is expressly recognized in Sec. 21 Article VI of the Constitution. This power is incidental to the legislative function. 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 conditions which the legislation is intended to affect or change; and when it does not possess the required information, recourse must be had on others who possess it. This power is broad enough to cover officials of the executive branch. The operation of the government is a proper subject for investigation, as held in Arnault case.

2.     Although the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which fall under the rubric of ‘executive privilege’.  It is defined by Schwartz as “the power of the government to withhold information from the public, the courts and the Congress.” (e.g. state secret privilege, informer’s privilege, generic privilege)

3.     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. 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.

4.     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. 

5.       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.

Sec. 21 (Inquiry in Aid of Legislation) vs Sec. 22 (Question Hour)

6.       A distinction was 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. These are two distinct functions of the legislature. Sec. 21 and 22 while closely related does not pertain to the same power of the Congress. One specifically relates to the power to conduct inquiries in aid of legislation with the aim of eliciting information that may be used in 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. Hence, the oversight function of Congress may only be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.

7.       When Congress exercises its power of inquiry, the only way for the department heads to exempt themselves therefrom is by a valid claim of privilege, and not by the mere fact that they are department heads. Only one executive official may be exempted from this power – the president on whom the executive power is vested, hence beyond the reach of the Congress except by the power of impeachment. Members of SC are likewise exempt from this power of inquiry. This is on the basis of separation of powers and fiscal autonomy, as well as the constitutional independence of the judiciary.

On the constitutionality of EO 464

8.       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. 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.

9.     Section 3 and Section 2(b) of E.O. 464 must be invalidated. 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. 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.

10.  The impairment of the right of the people to information as a consequence of E.O. 464 is, just as direct as its violation of the legislature’s power of inquiry.

11.   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.