Page 11

1. The President is the only executive official exempted to appear in Legislative inquiries. Only
one executive official may be exempted from this power of Congress 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. (Senate v. Ermita)
2. Yes. 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. (Senate v Ermita)
3. Executive Privilege
Schwartz defines executive privilege as the power of the government to withhold information
from the public, the courts and the congress. 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. (Senate v Ermita)
4. State Secrets Privilege
Privilege invoked by US Presidents on the ground that disclosure of information would subvert
crucial military or diplomatic objectives. (Senate v Ermita)
5. Informers Privilege
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. (Senate v Ermita)
6. Generic Privilege for Internal Deliberations
It is attached to intra-governmental documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which governmental decisions and policies
are formulated. (Senate v Ermita)
7. Could the cabinet members claim executive privilege during Legislative inquiries?
Yes but only in information of a sensitive character. In Chavez v. PCGG the court that this
privilege can be exercised in matters concerning state secrets on military, diplomatic and other
national security . This also includes closed -door cabinet meetings that involves Presidential
conversations, correspondences and discussions. This also includes information on
investigations of crimes by law enforcement agencies before the prosecution of the accused.
(Chavez v. Public Estates Authority).However, they cannot claim it in matters concerning their
appointments and qualification to the office and other things which the public has the right to
know and will aid Congress to discharge its legislative functions wisely and effectively.

8. Could Congress inquire into private matters of persons called to testify? (Limitation of
Investigation)
Yes. If these affect matters on which Congress can legislate. However, investigation of purely
private matters of people cannot be made, as Congress cannot legislate on them.
9. Could it conduct an investigation to find out if someone should be prosecuted criminally? Can
it conduct investigation if someone is guilty or innocent of a crime or decide on the rights of the
parties to a controversy.
No. Congress is not a law enforcement agency or court.
10. In determining the propriety of the question propounded to a witness, the following matters
are to be considered:
10.1. The definition of the inquiry found in the authorizing resolution or statute.
10.2. The opening remarks of the committee chair
10.3. The nature of the proceedings
10.4. The question itself
10.5. The response of the committee to the pertinency objection
11. Discuss the power of Congress to hold any person in contempt for failure to attend or
answer any question during the legislative inquiries. What are the rights available to a person
appearing in legislative inquiries?
The punitive power of Congress consists of its authority to deal directly through contempt
proceedings with acts inherently obstruct or prevent the discharge of legislative duties.
However, this power is limited by the mandate of the Constitution that inquiries must respect the
right of witnesses who are appearing before it. A witness can remain silent and avoid contempt
citation if he or she:
11.1 makes a proper claim to the Constitutional protection against self-Incrimination witnesses cannot be compelled by congress to speak or give evidences that may be used
against them in a subsequent criminal case. This is the right against self-incrimination.
Moreover, this right is only operative and available only where there is a potential for
incrimination that includes: there is threat of criminal liability; such threat concerns the
witness himself; such threat is real and appreciable. A witness cannot claim this right in
refusing to answer before any question is propounded on him. He must wait until he is
asked an incriminatory question.
11.2. validly alleges an infringement of his freedom of speech, or freedom of association,
belief or religion.
11.3. validly claims questions asked are not pertinent.
12. How long may each house of Congress hold any person in contempt?
Lower House: Upon the final adjournment
Upper House: Continuous unless ordered to be released by the Senate President

13. Do local legislative bodies have the power to hold a person in contempt for failing to attend
or comply with the subpoena? Why?
None. There is no express provision either in the 1973 Constitution or in the Local Government
Code granting local legislative bodies, the power to subpoena witnesses and the power to cite
contempt. It is neither implied in the grant of legislative power or exists as 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.
14. What incidents may be subject to judicial review?
14.1. Whether of not the questions propounded to a witness is relevant to the subject
matter
of legislative investigation.
14.2. Whether the allege immateriality of the information sought by the witness is
relied upon to contest its jurisdiction.

CASES
1. ABAKADA GURO vs Purisima
1.1.
Concept and Basis of Congressional Oversight
The power of oversight embraces all activities undertaken by Congress to enhance
its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by
Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and
(d) to assess executive conformity with the congressional perception of public
interest.
1.2.

Categories of CO Functions

The acts done by Congress purportedly in the exercise of its oversight powers
may
be
divided
into three categories,
namely: scrutiny,
investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to
administrative operations. Its primary purpose is to determine economy and
efficiency of the operation of government activities. In the exercise of legislative
scrutiny, Congress may request information and report from the other branches
of government. It can give recommendations or pass resolutions for
consideration of the agency involved.
b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the

facts that are readily available, congressional investigation involves a more
intense digging of facts. The power of Congress to conduct investigation is
recognized by the 1987 Constitution under section 21, Article VI
c. Legislative supervision
The third and most encompassing form by which Congress exercises its
oversight power is thru legislative supervision. Supervision connotes a
continuing and informed awareness on the part of a congressional committee
regarding executive operations in a given administrative area. While both
congressional scrutiny and investigation involve inquiry into past executive
branch
actions in
order
to
influence
future
executive
branch
performance, congressional supervision allows Congress to scrutinize the
exercise of delegated law-making authority, and permits Congress to retain part
of that delegated authority.
Congress exercises supervision over the executive agencies through its veto
power. It typically utilizes veto provisions when granting the President or an
executive agency the power to promulgate regulations with the force of law.
These provisions require the President or an agency to present the proposed
regulations to Congress, which retains a right to approve or disapprove any
regulation before it takes effect. Such legislative veto provisions usually provide
that a proposed regulation will become a law after the expiration of a certain
period of time, only if Congress does not affirmatively disapprove of the
regulation in the meantime. Less frequently, the statute provides that a proposed
regulation will become law if Congress affirmatively approves it.
Bengson vs Senate Blue Ribbon Committee
Persons charged of a crime, rights during legislative inquiries
Decision of the SC
It appeals, therefore, 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 RA 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. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the
pendency of this case. In John T. Watkins vs. United States, it was held:
The power of congress to conduct investigations in inherent in the legislative process.
That power is broad. it encompasses inquiries concerning the administration of existing laws
as well as proposed, or possibly needed statutes. It includes surveys of defects in our social,
economic, or political system for the purpose of enabling Congress to remedy them. It
comprehends probes into departments of the Federal Government to expose corruption,
inefficiency or waste. But broad basis this power of inquiry, it is not unlimited. There is
no general authority to expose the private affairs of individuals without justification in
terms of the functions of congress. This was freely conceded by Solicitor General in
his argument in this case. Nor is the Congress a law enforcement or trial agency.
20

These are functions of the executive and judicial departments of government. No

inquiry is an end in itself; it must be related to and in furtherance of a legitimate task
of Congress. Investigations conducted solely for the personal aggrandizement of the
investigators or to punish those investigated are indefensible. (emphasis supplied)
It can not be overlooked that when respondent Committee decide to conduct its investigation
of the petitioners, the complaint in Civil No. 0035 had already been filed with the
Sandiganbayan. A perusal of that complaint shows that one of its principal causes of action
against herein petitioners, as defendants therein, is the alleged sale of the 36 (or 39)
corporations belonging to Benjamin Kokoy Romualdez. Since the issues in said complaint
had long been joined by the filing of petitioners respective answers thereto, the issue
sought to be investigated by the respondent Committee is one over which jurisdiction
had been acquired by the Sandiganbayan. In short, the issue had been pre-empted by
that court. To allow the respondent Committee to conduct its own investigation of an
issue already before the Sandiganbayan would not only pose the possibility of
conflicting judgments between a legislative committee and a judicial tribunal, but if
the Committees judgment were to be reached before that of the Sandiganbayan, the
possibility of its influence being made to bear on the ultimate judgment of the
Sandiganbayan can not be discounted.
In fine, for the respondent Committee to probe and inquire into the same justiciable
controversy already before the Sandiganbayan, would be an encroachment into the
exclusive domain of judicial jurisdiction that had much earlier set in. In Baremblatt vs. United
States, it was held that:
Broad as it is, the power is not, however, without limitations. Since congress may only
investigate into those 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
mattes that are exclusively the concern of the Judiciary. Neither can it supplant the Executive
in what exclusively belongs to the Executive.
Now to another matter. It has been held that a congressional committees right to inquire is
subject to all relevant limitations placed by the Constitution on governmental action,
including the relevant limitations of the Bill of Rights.
In another case
the mere semblance of legislative purpose would not justify an inquiry in the face of the
Bill of Rights. The critical element is the existence of, and the weight to be ascribed to, the
interest of the Congress in demanding disclosures from an unwilling witness. We cannot
simply assume, however, that every congressional investigation is justified by a public need
that over-balances any private rights affected. To do so would be to abdicate the
responsibility placed by the Constitution upon the judiciary to insure that the Congress does
not unjustifiably encroach upon an individuals right to privacy nor abridge his liberty of
speech, press, religion or assembly.
One of the basic rights guaranteed by the Constitution to an individual is the right
against self-incrimination. This right construed as the right to remain completely
silent may be availed of by the accused in a criminal case; but kit may be invoked by
other witnesses only as questions are asked of them.
This distinction was enunciated by the Court in Romeo Chavez vs. The Honorable Court of
Appeals, et al. thus
Petitioner, as accused, occupies a different tier of protection from an ordinary witness.
Whereas an ordinary witness may be compelled to take the witness stand and claim the
21

22

23

24

25

privilege as each question requiring an incriminating answer is hot at him, an accused may
altogether refuse to take the witness stand and refuse to answer any all questions.
Moreover, this right of the accused is extended to respondents in administrative
investigations but only if they partake of the nature of a criminal proceeding or analogous to
a criminal proceeding. In Galman vs. Pamaran, the Court reiterated the doctrine in Cabal
vs. Kapunan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against
self-incrimination not only in criminal proceedings but also in all other types of suit
It was held that:
We did not therein state that since he is not an accused and the case is not a criminal case,
Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right
against self-incrimination only when a question which tends to elicit an answer that will
incriminate him is propounded to him. Clearly then, it is not the character of the suit involved
but the nature of the proceedings that controls. The privilege has consistently been held to
extend to all proceedings sanctioned by law and to all cases in which punishment is sought
to be visited upon a witness, whether a party or not.
We do not here modify these doctrines. If we presently rule that petitioners may not be
compelled by the respondent Committee to appear, testify and produce evidence before it, it
is only because we hold that the questioned inquiry is not in aid of legislation and, if pursued,
would be violative of the principle of separation of powers between the legislative and the
judicial departments of government, ordained by the Constitution.
WHEREFORE, the petition is GRANTED. The Court holds that, under the facts, including the
circumstance that petitioners are presently impleaded as defendants in a case before the
Sandiganbayan, which involves issues intimately related to the subject of contemplated
inquiry before the respondent Committee, the respondent Senate Blue Ribbon Committee is
hereby enjoined from compelling the petitioners and intervenor to testify before it and
produce evidence at the said inquiry.
26

Senate v Ermita
495 SCRA 170 Political Law Constitutional Law Legislative Branch Question Hour
Constitutionality of E.O. 464
Facts
In 2005, scandals involving anomalous transactions about the North Rail Project as well as the Garci
tapes surfaced. This prompted the Senate to conduct a public hearing to investigate the said
anomalies particularly the alleged overpricing in the NRP. The investigating Senate committee
issued invitations to certain department heads and military officials to speak before the committee as
resource persons. Ermita submitted that he and some of the department heads cannot attend the
said hearing due to pressing matters that need immediate attention. AFP Chief of Staff Senga
likewise sent a similar letter. Drilon, the senate president, excepted the said requests for they were
sent belatedly and arrangements were already made and scheduled. Subsequently, GMA issued EO
464 which took effect immediately.
EO 464 basically prohibited Department heads, Senior officials of executive departments who in the
judgment of the department heads are covered by the executive privilege; 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; 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; Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive privilege; and Such other officers as may be

determined by the President, from appearing in such hearings conducted by Congress without first
securing the presidents approval.
The department heads and the military officers who were invited by the Senate committee then
invoked EO 464 to except themselves. Despite EO 464, the scheduled hearing proceeded with only
2 military personnel 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. EO 464s
constitutionality was assailed for it is alleged that it infringes on the rights and duties of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of
laws.
ISSUE: Whether or not EO 464 is constitutional.
HELD: The SC ruled that EO 464 is constitutional in part. To determine the validity of the provisions
of EO 464, the SC sought to distinguish Section 21 from Section 22 of Art 6 of the 1987 Constitution.
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution.
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.
Section 22 on the other hand provides for the Question Hour. 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. Section 22 refers only to 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. 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. 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. 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 longstanding custom. 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.
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.
NOTES: The SC ruled that Section 1 and Section 2a are valid. The rest invalid.
On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive
Order No. 464 and Memorandum Circular No. 108. She advised executive officials and employees
to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the
case of Senate v. Ermita when they are invited to legislative inquiries in aid of legislation.

EXECUTIVE ORDER NO. 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
WHEREAS, the Constitution guarantees the separate of powers of the Executive, Legislative
and Judicial branches of the government:
WHEREAS, Article VI, Section 22 of the Constitution provides that heads of departments may,
with the prior consent of the President, appear before and be heard by either House of
Congress on any matter pertaining to their departments and, when the security of the State or
the public interest so requires and the President so states in writing, such appearance shall be
conducted in executive session;
WHEREAS, pursuant to the rule of executive privilege, the President and those who assist her
must be free to explore 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;
WHEREAS, Article VI, Section 21 of the Constitution mandates that the rights of persons
appearing in or affected by inquiries in aid of legislation by the Senate or House of
Representatives shall be respected;
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;
WHEREAS, there is a need to prevent such inquires in aid of legislation from being used for
partisan political purposes, disrupting diplomatic relations with foreign government, and
weakening the stability of the State, thereby impeding the efforts of the government to generate
and attract foreign investments;
WHEREAS, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public
Officials and Employees provides that public official 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;
WHEREAS, Article 229 of the Revised Penal Code prohibits any public officer from revealing
any secret known to him by reason of his official capacity or wrongfully delivering papers or
copies thereof which he may have charge and which should not be published;
WHEREAS, the 1987 Constitution and the Administrative Code of 1987 provide that the
President shall have control of all government departments, bureaus and offices and shall
ensure that all the laws be faithfully executed.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by the powers vested in me by law, do hereby order:
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).DECLARED AS VALID by SC
(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.(Declared

VOID by SC)

SECTION 4. Repealing Clause. - All executive issuances, orders, rules and regulations or parts
thereof inconsistent with the provision of this Executive Order are hereby repealed or modified
accordingly.
SECTION 5. Separability Clause. - If any section or provision of this executive order shall be
declared unconstitutional or invalid, the other sections or provision not affected thereby shall
remain in full force and effect.
SECTION 6. Effectivity. - This Executive Order shall take effect immediately.

DONE in the City of Manila, this 26th day of September in the Year of our Lord, Two Thousand
and Five.
(Sgd. ) GLORIA MACAPAGAL-ARROYO
By the President:
(Sgd.) EDUARDO R. ERMITA
Executive Secretary