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Senate vs. Ermita (long version) G.R. No.

169777, July 14, 2006


Requisites of Judicial Review Legislative Inquiry vs. Executive Privilege Executive Privilege, defined Kinds of Executive Privilege Executive Privilege as applied to an official Constitutionality of EO 464

FACTS: This case is regarding the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group as well as the Wiretapping activity of the ISAFP, and the Fertilizer scam. The Senate Committees sent invitations to various officials of the Executive Department and AFP officials for them to appear before Senate on Sept. 29, 2005. Before said date arrived, Executive Sec. Ermita sent a letter to Senate President Drilon, requesting for a postponement of the hearing on Sept. 29 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 refused the request. On Sept. 28, 2005, the President issued EO 464, effective immediately, which, among others, mandated that 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. Pursuant to this Order, Executive Sec. Ermita communicated to the Senate that the executive and AFP officials would not be able to attend the meeting since the President has not yet given her consent. Despite the lack of consent, Col. Balutan and Brig. Gen. Gudani, among all the AFP officials invited, attended the investigation. Both faced court marshal for such attendance. Hence, these petitions. ISSUES:

Whether or not EO 464 contravenes the power of inquiry vested in Congress Whether or not EO 464 violates the right of the people to information on matters of public concern Whether or not respondents have committed grave abuse of discretion when they implemented EO 464 prior to its publication in a newspaper of general circulation

RULING: ESSENTIAL REQUISITES OF JUDICIAL REVIEW: 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 as the earliest opportunity; and 4. the issue of constitutionality must be the very lis mota of the case.

LEGAL STANDING Standing of the Senate 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 is not disputed. EO 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making. 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 EO 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. Standing of an ordinary citizen 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 Francisco v. House of Representatives, 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. Requisites for transcendental importance: 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. ACTUAL CASE/CONTROVERSY 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 EO 464 is concerned. For EO 464 does not require either a deliberative 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 EO 464. The power of inquiry The Congress power of inquiry is expressly recognized in Sec. 21, Art. VI. But as early as 1950 (the 1935 Constitution did not contain a similar provision) in Arnault v. Nazareno, the Court already recognized that the power of inquiry is inherent in the power to legislate. xxx 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...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. xxx the power of inquiry, with process to enforce it, is grounded on the necessity of the 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. The power of inquiry is subject to judicial review xxx 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 Sec. 1, Art. VIII. For one...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...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 investigations, 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.

Sec. 21, Art. 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. Sec. 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. Exemption to power of inquiry Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions falls under the rubric of executive privilege. Executive privilege, defined Schwartz 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. Kinds of executive privilege One variety of the privilege...is the state secrets privilege...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. 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.

The principle of executive privilege 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. xxx 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. Constitutionality of Sec. 1, EO 464 Section 1, in view of its specific reference to Sec. 22 of Art. VI 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 Sec. 22, Art. VI xxx 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 Sec. 22, Art. VI, 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 Sec. 2 and 3, EO 464 En passant, the Court notes that Section 2(b) of EO 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege...is properly invoked in relation to specific categories of information and not to categories of persons. The claim of executive privilege must be accompanied by specific allegation of 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. A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted xxx 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 xxx 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. A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination xxx The claim of privilege under Sec. 3, EO 464 in relation to Sec. 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 EO 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 EO 464 must be invalidated. EO 464 unlawfully delegated authority to the heads of offices in Sec. 2(b) to determine certain information as privileged 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 exception nature of the privilege. Executive privilege...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 informations (sic) 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. How executive privilege should be applied in the case of an official xxx 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, afer 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. Right to Information There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive assistance 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 governmental officials through various legal means allowed by their freedom of expression xxx The impairment of the right of the people to information as a consequence of EO 464 is,

therefore, in the sense explained above, just as direct as its violation of the legislatures power of inquiry. Implementation of EO 464 prior to its publication While EO 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 genera, Tanada 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 the 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. 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, EO 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. Senate vs. Ermita , GR 169777, April 20, 2006 caze digezt Senate vs. Ermita , GR 169777, April 20, 2006 FACTS: This is a petition for certiorari and prohibition proffer that the President has abused power by issuing E.O. 464 Ensuring Observance of the Principles 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. Petitioners pray for its declaration as null and void for being unconstitutional. 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). The Committee of the Senate issued invitations to various officials of the Executive Department for them to appear as resource speakers in a public hearing on the railway project, others on the issues of massive election fraud in the Philippine elections, wire

tapping, and the role of military in the so-called Gloriagate Scandal. Said officials were not able to attend due to lack of consent from the President as provided by E.O. 464, Section 3 which 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. ISSUE: Is Section 3 of E.O. 464, which 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, valid and constitutional? RULING: No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered by the executive privilege. The doctrine of executive privilege is 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. 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.

Neri vs. Senate long G.R. No. 180643, March 25, 2008

Legislative Inquiry in Aid of Legislation vs. Legislative Inquiry during Question Hour Elements of Presidential Communications Privilege Exception to Executive Privilege

FACTS:

This is regarding the contract entered into by DOTC with ZTE for the supply of equipment and services for the NBN Project. In connection with this NBN Project, Senate passed various Resolutions and pending bills, which it then used as basis for initiating an investigation. One of the cabinet officials invited to appear before the Senate during the investigation was Petitioner, who was Director General of NEDA at the time. During the 11-hour questioning, Petitioner invoked executive privilege and refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not she directed him to prioritize it, and (c) whether or not she directed him to approve. In view of his refusal, the Senate Blue Ribbon Committee issued a subpoena ad testificandum, to which Petitioner replied that he was willing to testify to other matters besides those three questions covered by executive privilege and that he wanted to be furnished beforehand matters to be taken up during the inquiry so that he may adequately prepare therefor. Executive Secretary Ermita also sent a letter to the Blue Ribbon, affirming that indeed those three questions mentioned were covered by executive privilege because such information if disclosed might impair diplomatic as well as economic relations with the Peoples Republic of China. As such, the Office of the President has ordered Petitioner not to answer those questions. Nevertheless, the Blue Ribbon issued a show cause Letter and a contempt Order against Petitioner. Thus, this case. ISSUE:

Are the communications elicited by the subject three (3) questions covered by executive privilege?

RULING: IN AID OF LEGISLATION: Scope and Limitations -The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected. The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege.

Is there recognized claim of executive privilege despite revocation of E.O. 464? At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings. ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE: 1) The protected communication must relate to a quintessential and non-delegable presidential power. 2) The communication must be authored or solicited and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in operational proximity with the President. 3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are received by a close advisor of the President. Under the operational proximity test, petitioner can be considered a close advisor, being a member of President Arroyos cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Respondent Committees failed to show a compelling or critical need: xxx presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations xxxx Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner of inquiry is conducted. EXCEPTION TO EXECUTIVE PRIVILEGE: Demonstrated, specific need for evidence in pending criminal trial (US v. Nixon) does not apply --

In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the US Court was quick to limit the scope of its decision. It stressed that it is not concerned here with the balance between the Presidents generalized interest in confidentiality xxx and congressional demands for information. Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets. Executive Privilege vis-a-vis Right of the People to Information on Matters of Public Concern The right to public information, like any other right, is subject to limitation. The provision (Section 7, Article III) itself provides the limitations, i.e. as may be provided by law. Some of these laws are Sec. 7, RA 6713, Art. 229, RPC, Sec. 3(k), RA 3019, and Sec. 24(e), Rule 130, ROC. These are in addition to what our body of jurisprudence clarifies as confidential and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind. Legislative Inquiry in Aid of Legislation vis-a-vis Right of the People to Information on Matters of Public Concern: More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the peoples right to public information. The former cannot claim that every legislative inquiry is an exercise of the peoples right to information. xxx The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases.

Neri vs Senate Committee on Accountability of Public Officers (caze digest)

Inquiry in aid of legislation Executive Privilege Legislative (Sec 21) & Oversight (Sec 22) Powers On 21 April 2007, DOTC entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of $329,481,290.00 (approximately P16 Billion Pesos). The Project was to be financed by the PRC. The Senate passed various resolutions relative to the NBN deal. On the other hand, De Venecia issued a statement that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA. Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared in one hearing wherein he was interrogated for 11 hrs and during which he admitted that Abalos of COMELEC tried to bribe him with P200M in exchange for his approval of the NBN project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking executive privilege. In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not she directed him to prioritize it, and (c) whether or not she directed him to approve. He later refused to attend the other hearings and Ermita sent a letter to the SRBC averring that the communications between GMA and Neri is privileged and that the jurisprudence laid down in Senate vs Ermita be applied. The SRBC cited Neri for contempt. ISSUE: Whether or not the three questions sought by the SRBC to be answered falls under executive privilege. HELD: The oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. The communications elicited by the three (3) questions are covered by the presidential communications privilege. 1st, the communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. 2nd, the communications are received by a close advisor of the President. Under the operational proximity test, petitioner can be considered a close advisor, being a member of President Arroyos cabinet. And 3rd, 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.

MARCOS VS. MANGLAPUS [177 SCRA 668; G.R. NO. 88211; 15 SEPT 1989] Facts: This case involves a petition of mandamus and prohibition asking the court to order the respondents Secretary of Foreign Affairs, etc. To issue a travel documents to former Pres. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines. Petitioners assert that the right of the Marcoses to return in the Philippines is guaranteed by the Bill of Rights, specifically Sections 1 and 6. They contended that Pres. Aquino is without power to impair the liberty of abode of the Marcoses because only a court may do so within the limits prescribed by law. Nor the President impair their right to travel because no law has authorized her to do so. They further assert that under international law, their right to return to the Philippines is guaranteed particularly by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which has been ratified by the Philippines. Issue: Whether or not, in the exercise of the powers granted by the constitution, the President (Aquino) may prohibit the Marcoses from returning to the Philippines. Held: "It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved in this case at bar is the right to return to one's country, a distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave the country, and the right to enter one's country as separate and distinct rights. What the Declaration speaks of is the "right to freedom of movement and residence within the borders of each state". On the other hand, the Covenant guarantees the right to liberty of

movement and freedom to choose his residence and the right to be free to leave any country, including his own. Such rights may only be restricted by laws protecting the national security, public order, public health or morals or the separate rights of others. However, right to enter one's country cannot be arbitrarily deprived. It would be therefore inappropriate to construe the limitations to the right to return to ones country in the same context as those pertaining to the liberty of abode and the right to travel. The Bill of rights treats only the liberty of abode and the right to travel, but it is a well considered view that the right to return may be considered, as a generally accepted principle of International Law and under our Constitution as part of the law of the land. The court held that President did not act arbitrarily or with grave abuse of discretion in determining that the return of the Former Pres. Marcos and his family poses a serious threat to national interest and welfare. President Aquino has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved during the past few years after the Marcos regime. The return of the Marcoses poses a serious threat and therefore prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.

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