G.R. No.

89914 November 20, 1991

JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE MANTECON, VICENTE

MILLS JR., LEONARDO GAMBOA, KURT BACHMANN JR., JOSE V.E.
JIMENEZ, ERNESTO CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE
CASTILLO, and CYNTHIA SABIDO LIMJAP, petitioners,
vs.
THE SENATE BLUE RIBBON COMMITTEE AND ITS MEMBERS, represented
by and through the CHAIRMAN, HON. WIGBERTO TAADA, respondents,
JOSE S. SANDEJAS, intervenor.

Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for petitioners.

Balgos & Perez for intervening petitioner.

Eddie Tamondong and Antonio T. Tagaro for respondents.

PADILLA, J.:p

This is a petition for prohibition with prayer for the issuance of a temporary
restraining order and/or injuective relief, to enjoin the respondent Senate Blue
Ribbon committee from requiring the petitioners to testify and produce evidence
at its inquiry into the alleged sale of the equity of Benjamin "Kokoy" Romualdez
to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations.

On 30 July 1987, the Republic of the Philippines, represented by the Presidential

Commission on Good Government (PCGG), assisted by the Solicitor General, filed
with the Sandiganbayan Civil Case No. 0035 (PCGG Case No. 35) entitled
"Republic of the Philippines vs. Benjamin "Kokoy" Romualdez, et al.", for
reconveyance, reversion, accounting, restitution and damages.

The complaint was amended several times by impleading new defendants and/or
amplifying the allegations therein. Under the Second Amended Complaint, 1 the
herein petitioners were impleaded as party defendants.

The complaint insofar as pertinent to herein petitioners, as defendants, alleges

among others that:

14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez

Romualdez, acting by themselves and/or in unlawful concert with
Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking
undue advantage of their relationship, influence and connection
with the latter Defendant spouses, engaged in devices, schemes
and strategems to unjuestly enrigh themselves at the expense of
Plaintiff and the Filipino people, among others:
 (a) Obatained, with the active collaboration of
Defendants Sene J. Gabaldon, Mario D. Camacho,
Mamerto Nepomuceno, Carlos J. Valdez, Cesar C.
Zalamea and Francisco Tantuico, Atty. Jose Bengzon, Jr.
and his law partners, namely: Edilberto S. Narciso, Jr.,
Jose Vicente E. Jimenez, Amando V. Faustino, Jr., and
Leonardo C. Cruz; Jose S. Sandejas and his fellow
senior managers of FMMC/PNI Holdings groups of
companies such as Leonardo Gamboa, Vicente T. Mills,
Jr., Jose M. Mantecon, Abelardo S. Termulo, Rex C.
Drilon II and Kurt Bachmann, Jr., control of some of the
biggest business enterprises in the Philippines, such as
the Manila Corporation (MERALCO), Benguet
Consolidated and the Philippine Commercial
International Bank (PCI Bank) by employing devious
financial schemes and techniques calculated to require
the massive infusion and hemorrhage of government
funds with minimum or negligible "cashout" from
Defendant Benjamin Romualdez...

xxx xxx xxx

(m) manipulated, with the support, assistance and

collaboration of Philgurantee officials led by chairman
Cesar E.A. Virata and the Senior managers of
FMMC/PNI Holdings, Inc. led by Jose S. Sandejas, Jr.,
Jose M. Mantecom and Kurt S. Bachmann, Jr., among
others, the formation of Erectors Holdings, Inc. without
infusing additional capital solely for the purpose of
Erectors Incorporated with Philguarantee in the
amount of P527,387,440.71 with insufficient
securities/collaterals just to enable Erectors Inc, to
appear viable and to borrow more capitals, so much so
that its obligation with Philgurantee has reached a total
of more than P2 Billion as of June 30, 1987.

(n) at the onset of the present Administration and/or

within the week following the February 1986 People's
Revolution, in conspiracy with, supoort, assistance and
collaboration of the abovenamed lawyers of the
Bengzon Law Offices, or specifically Defendants Jose
F.S. Bengzon, Jr., V.E. Jimenez, Amando V. Faustino, Jr.,
and Edilberto S. Narciso, Jr., manipulated, shcemed,
and/or executed a series of devices intended to
conceal and place, and/or for the purpose of
concealing and placing, beyond the inquiry and
jurisdiction of the Presidential Commission on Good
Government (PCGG) herein Defendant's individual and
collective funds, properties, and assets subject of
and/or suited int he instant Complaint.

(o) manuevered, with the technical know-how and

legalitic talents of the FMMC senior manager and some
of the Bengzon law partners, such as Attys. Jose F.S.
Bengzon, Jr., Edilberto S. Narciso, Jr., Amando V.
Faustino, Jose Vicente E. Jimenez and Leonardo C. Cruz,
the purported sale of defendant Benjamin Romualdez's
interests in the (i) Professional Managers, (ii) A & E
International Corporation (A & E), (iii) First Manila
Managerment Corporation (FMMC), (iv) Philippine
World Travel Inc. (PWTI) and its subsidiaries consisting
of 36 corporations in all, to PNI Holdings, Inc. (wjose
purported incorporations are all members of Atty. Jose
F.S. Bengzon's law firm) for only P5 million on March 3,
1986 or three days after the creation of the
Presidential Commission on Good Government on
February 28, 1986, for the sole purpose of deceiving
and preempting the Government, particularly the
PCGG, and making it appear that defendant Benjamin
Romualdez had already divested himself of his
ownership of the same when in truth and in fact, his
interests are well intact and being protected by Atty.
Jose F.S. Bengzon, Jr. and some of his law partners,
together with the FMMC senior managers who still
control and run the affiars of said corporations, and in
order to entice the PCGG to approve the said fictitious
sale, the above-named defendants offered P20 million
as "donation" to the Government;

(p) misused, with the connivance, support and

technical assitance of the Bengzon law firm
represented by Atty. Jose F.S. Bengzon, Jr. as legal
counsel, together with defendants Cesar Zalamea,
Antonio Ozaeta, Mario D. Camacho amd Senen J.
Gabaldon as members of the Board of Directors of the
Philippine Commercial International bank (PCIB), the
Meralco Pension Fund (Fund, for short) in the amount of
P25 million by cuasing it to be invested in the PCIB and
through the Bank's TSG, assigned to PCI Development
and PCI Equity at 50% each, the Fund's (a) 8,028.011
common shares in the Bank and (b) "Deposit in
Subscription" in the amount of P4,929.972.50 but of
the agreed consideration of P28 million for the said
assignment, PCI Development and PCI Equity were able
 to pay only P5,500.00 downpayment and the first
amortization of P3,937,500.00 thus prompting the Fund
to rescind its assignment, and the consequent
reversion of the assigned brought the total
shareholding of the Fund to 11,470,555 voting shares
or 36.8% of the voting stock of the PCIB, and this
development (which the defendants themselves
orchestrated or allowed to happen) was used by them
as an excuse for the unlawful dismantling or
cancellation of the Fund's 10 million shares for
allegedly exceeding the 30-percent ceiling prescribed
by Section 12-B of the General Banking Act, although
they know for a fact that what the law declares as
unlawful and void ab initio are the subscriptions in
excess of the 30% ceiling "to the extent of the excess
over any of the ceilings prescribed ..." and not the
whole or entire stockholding which they allowed to stay
for six years (from June 30, 1980 to March 24, 1986);

(q) cleverly hid behind the veil of corporate entity,

through the use of the names and managerial
expertise of the FMMC senior manager and lawyers
identified as Jose B. Sandejas, Leonardo Gamboa,
Vicente T. Mills, Abelardo S, Termulo, Edilberto S.
Narciso, Jr., Jose M. Mantecon, Rex C. Drilon II, Kurt
Bachmann, Jr. together with the legal talents of
corporate lawyers, such as Attys. Jose F.S. Bengzon, Jr.,
Jose V.E. Jimenez, Amando V. Faustino, Jr., and
Leonardo C. Cruz, the ill-gotten wealth of Benjamin T.
Romualdez including, among others, the 6,229,177
shares in PCIB registered in the names of Trans Middle
East Phils. Equities, Inc. and Edilberto S. Narciso, Jr.
which they refused to surrender to PCGG despite their
disclosure as they tried and continue to exert efforts in
getting hold of the same as well as the shares in
Benguet registered in the names of Palm Avenue
Holdings and Palm Avenue Realty Development Corp.
purportedly to be applied as payment for the claim of
P70 million of a "merger company of the First Manila
Managerment Corp. group" supposedly owned by them
although the truth is that all the said firms are still
beneficially owned by defendants Benjamin
Romualdez.

xxx xxx xxx

On 28 September 1988, petitioner (as defendants) filed their respective
answers. 2 Meanwhile, from 2 to 6 August 1988, conflicting reports on the
disposition by the PCGG of the "Romualdez corporations" were carried in various
metropolitan newspapers. Thus, one newspaper reported that the Romuladez
firms had not been sequestered because of the opposition of certain PCGG
officials who "had worked prviously as lawyers of the Marcos crony firms."
Another daily reported otherwise, while others declared that on 3 March 1986, or
shortly after the EDSA February 1986 revolution, the Romualdez companies"
were sold for P5 million, without PCGG approval, to a holding company controlled
by Romualdez, and that Ricardo Lopa, the President's brother-in-law, had
effectively taken over the firms, even pending negotiations for the purchase of
the corporations, for the same price of P5 million which was reportedly way
below the fair value of their assets. 3

On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile
delivered a speech "on a matter of personal privilege" before the Senate on the
alleged "take-over personal privilege" before the Senate on the alleged "take-
over of SOLOIL Incorporated, the flaship of the First Manila Management of
Companies (FMMC) by Ricardo Lopa" and called upon "the Senate to look into the
possible violation of the law in the case, particularly with regard to Republic Act
No. 3019, the Anti-Graft and Corrupt Practices Act." 4

On motion of Senator Orlando Mercado, the matter was referred by the Senate to
the Committee on Accountability of Public Officers (Blue Ribbon
Committee). 5 Thereafter, the Senate Blue Ribbon Committee started its
investigation on the matter. Petitioners and Ricardo Lopa were subpoenaed by
the Committee to appear before it and testify on "what they know" regarding the
"sale of thirty-six (36) corporations belonging to Benjamin "Kokoy" Romualdez."

At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on the
ground that his testimony may "unduly prejudice" the defendants in Civil Case
No. 0035 before the Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr. likewise
refused to testify involing his constitutional right to due process, and averring
that the publicity generated by respondents Committee's inquiry could adversely
affect his rights as well as those of the other petitioners who are his co-
defendants in Civil Case No. 0035 before the Sandiganbayan.

The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and
directed the petitioners to file their memorandum on the constitutional issues
raised, after which, it issued a resolution 6 dated 5 June 1989 rejecting the
petitioner's plea to be excused from testifying, and the Committee voted to
pursue and continue its investigation of the matter. Senator Neptali Gonzales
dissented. 7

Claiming that the Senate Blue Ribbon Committee is poised to subpoena them
and required their attendance and testimony in proceedings before the
Committee, in excess of its jurisdiction and legislative purpose, in clear and
blatant disregard of their constitutional rights, and to their grave and irreparable
damager, prejudice and injury, and that there is no appeal nor any other plain,
speedy and adequate remedy in the ordinary course of law, the petitioners filed
the present petition for prohibition with a prayer for temporary restraning order
and/or injunctive relief.

Meanwhile, one of the defendants in Civil Case No. 0035 before the
Sandiganbayan, Jose S. Sandejas, filed with the Court of motion for
intervention, 8 which the Court granted in the resolution 9 of 21 December 1989,
and required the respondent Senate Blue Ribbon Committee to comment on the
petition in intervention. In compliance, therewith, respondent Senate Blue Ribbon
Committee filed its comment 10 thereon.

Before discussing the issues raised by petitioner and intervenor, we will first
tackle the jurisdictional question raised by the respondent Committee.

In its comment, respondent Committee claims that this court cannot properly
inquire into the motives of the lawmakers in conducting legislative
investigations, much less cna it enjoin the Congress or any its regular and special
commitees like what petitioners seek from making inquiries in aid of
legislation, under the doctrine of separation of powers, which obtaines in our
present system of government.

The contention is untenable. In Angara vs. Electoral Commission, 11 the Court

held:

The separation of powers is a fundamental principle in our system

of government. It obtains not hrough express provision but by
actual division in our Constitution. Each department of the
government has exclusive cognizance of matters wihtin its
jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the
government...

xxx xxx xxx

But in the main, the Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the legislative
and the judicial departments of the government. The ovelapping
and interlacing of funcstions and duties between the several
deaprtments, however, sometimes makes it hard to say just where
the political excitement, the great landmarks of the Constitution are
apt to be forgotten or marred, if not entirely obliterated, in cases of
 conflict, the judicial departments is the only constitutional organ
which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or
constituent units thereof.

xxx xxx xxx

The Constitution is a definition of the powers of government. Who is

to determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries; it does not assert any superiority
over the other departments; it does not inr eality nullify or
invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by tyhe Constitution to determine
conflicting claims of authority under the Constitution and to
established for the parties in an actual controversy the rights which
that instrument secures and guarantess to them. This is in thruth all
that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. Even
the, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by
the parties, and limited further to the constitutional question raised
or the very lis mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in
this manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More thatn that, courts accord
the presumption of constitutionality to legislative enactments, not
only because the legislature is presumed to abide by the
Constitution but also becuase the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice
of the people as expressed through their representatives in the
executive and legislative departments of the government.

The "allocation of constituional boundaries" is a task that this Court must

perfomr under the Constitution. Moreowever, as held in a recent case, 12 "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does
away with kthe applicability of the principle in appropriate cases." 13

The Court is thus of the considered view that it has jurisdiction over the present
controversy for the purpose of determining the scope and extent of the power of
the Senate Blue Ribbon Committee to conduct inquiries into private affirs in
purported aid of legislation.
Coming to the specific issues raised in this case, petitioners contend that (1) the
Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e., it
is not done in aid of legislation; (2) the sale or disposition of hte Romualdez
corporations is a "purely private transaction" which is beyond the power of the
Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their
right to due process.

The 1987 Constition expressly recognizes the power of both houses of Congress
to conduct inquiries in aid of legislation. 14 Thus, Section 21, Article VI thereof
provides:

The Senate or the House of Representatives or any of its respective

committee may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. 15

The power of both houses of Congress to conduct inquiries in aid of legislation is

not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-
quoted provision of the Constitution. Thus, as provided therein, the investigation
must be "in aid of legislation in accordance with its duly published rules of
procedure" and that "the rights of persons appearing in or affected by such
inquiries shall be respected." It follows then that the rights of persons under the
Bill of Rights must be respected, including the right to due process and the right
not to be compelled to testify against one's self.

The power to conduct formal inquiries or investigations in specifically provided

for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation. Such inquiries may refer to the implementation or re-examination of
any law or in connection with any proposed legislation or the formulation of
future legislation. They may also extend to any and all matters vested by the
Constitution in Congress and/or in the Seante alone.

As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, to be within
the jurisdiction of the legislative body making it, must be material or necessary
to the exervise of a power in it vested by the Constitution, such as to legislate or
to expel a member.

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any
committee or committees any speech or resolution filed by any Senator which in
tis judgment requires an appropriate inquiry in aid of legislation. In order
therefore to ascertain the character or nature of an inquiry, resort must be had to
the speech or resolution under which such an inquiry is proposed to be made.

A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a
statement which was published in various newspapers on 2 September 1988
accusing Mr. Ricardo "Baby" Lopa of "having taken over the FMMC Group of
Companies." As a consequence thereof, Mr. Lopa wrote a letter to Senator Enrile
on 4 September 1988 categorically denying that he had "taken over " the FMMC
Group of Companies; that former PCGG Chairman Ramon Diaz himself
categorically stated in a telecast interview by Mr. Luis Beltran on Channel 7 on 31
August 1988 that there has been no takeover by him (Lopa); and that theses
repeated allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as
they are malicious.

The Lopa reply prompted Senator Enrile, during the session of the Senate on 13
September 1988, to avail of the privilege hour, 17 so that he could repond to the
said Lopa letter, and also to vindicate his reputation as a Member of the Senate
of the Philippines, considering the claim of Mr. Lopa that his (Enrile's) charges
that he (Lopa) had taken over the FMMC Group of Companies are "baseless" and
"malicious." Thus, in his speech, 18 Senator Enrile said, among others, as
follows:

Mr. President, I rise this afternnon on a matter of personal privilege;

the privilege being that I received, Mr. President, a letter dated
September 4, 1988, signed by Mr. ricardo A. Lopa, a.k.a. or Baby
Lopa, wherein he denied categorically that he has taken over the
First Manila Management Group of Companies which includes
SOLOIL Incorporated.

xxx xxxx xxx

In answer to Mr. Lopa, I will quote pertinent portions from an Official

Memorandum to the Presidential Commission of Good Government
written and signed by former Governor, now Congressman Jose
Ramirez, in his capacity as head of the PCGG Task Force for Region
VIII. In his memorandum dated July 3, 1986, then Governor Ramirez
stated that when he and the members of his task force sought to
serve a sequestration order on the management of SOLOIL in
Tanauan, Leyte, management officials assured him that relatives of
the President of the Philippines were personally discussing and
representing SOLOIL so that the order of sequestration would be
lifted and that the new owner was Mr. Ricardo A. Lopa.

I will quote the pertinent portions in the Ramire's memorandum.

The first paragraph of the memorandum reads as follows and I

quote, Mr. President:

"Our sequestration work of SOLOIL in Tanauan, Leyte

was not heeded by management because they said
another representation was being made to this
Commission for the ventual lifting of our
sequestrationorder. They even assured us that Mr.
Ricardo Lopa and Peping Cojunangco were personally
 discussing and representing SOLOIL, so the order of
sequestration will finally be lifted. While we attempted
to carry on our order, management refused to
cooperate and vehemently turned down our request to
make available to us the records of the company. In
fact it was obviously clear that they will meet us with
forcethe moment we insist on doing normally our
assigned task. In view of the impending threat, and to
avoid any untoward incident we decided to temporarily
suspend our work until there is a more categorical
stand of this Commission in view of the seemingly
influential represetation being made by SOLOIL for us
not to continue our work."

Another pertinent portion of the same memorandum is paragraph

five, which reads as follows, and I quote Mr. President:

"The President, Mr. Gamboa, this is, I understand, the

President of SOLOIL, and the Plant Superintendent, Mr.
Jimenez including their chief counsel, Atty. Mandong
Mendiola are now saying that there have been
divestment, and that the new owner is now Mr. Ricardo
Lopa who according to them, is the brother-in-law of
the President. They even went further by telling us that
even Peping Cojuangco who we know is the brother of
her excellency is also interested in the ownership and
management of SOLOIL. When he demanded for
supporting papers which will indicate aforesaid
divestment, Messrs. Gamboa, Jimenez and Mendiola
refused vehemently to submit these papers to us,
instead they said it will be submitted directly to this
Commission. To our mind their continuous dropping of
names is not good for this Commission and even to the
President if our dersire is to achieve respectability and
stability of the government."

The contents of the memorandum of then Governor and now

Congressman Jose Ramirez were personally confirmed by him in a
news interview last September 7, 1988.

xxx xxxx xxx

Also relevant to this case, Mr. President, is a letter of Mr. Ricardo

Lopa himself in August 11, 1988 issue of the
newspaper Malaya headlined "On Alleged Takeover of Romualdez
Firms."
 Mr. Lopa states in the last paragraph of the published letter and I
quote him:

12. As of this writing, the sales agreement is under

review by the PCGG solely to determine the
appropriate price. The sale of these companies and our
prior rigtht to requires them have never been at issue.

Perhaps I could not make it any clearer to Mr. Lopa that I was not
really making baseless and malicious statements.

Senator Enrile concluded his privilege speech in the following tenor:

Mr. President, it may be worthwhile for the Senate to look into the
possible violation of the law in the case particularly with regard to
Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act,
Section 5 of which reads as follows and I quote:

Sec. 5. Prohibition on certain relatives. It shall be

unlawful for the spouse or for nay relative, by
consanguinity or affinity, within the third civil degree,
of the President of the Philippines, the Vice-President of
the Philippines, the President of the Senate, or the
Speaker of the House of Representatives, to intervene
directly or indirectly, in any business, transaction,
contract or application with the Government: Provided,
that this section shall not apply to any person who
prior to the assumption of office of any of the above
officials to whom he is related, has been already
dealing with the Government along the same line of
business, nor to any transaction, contract or
application filed by him for approval of which is not
discretionary on the part of the officials concerned but
depends upon compliance with requisites provided by
law, nor to any act lawfully performed in an official
capacity or in the exercise of a profession.

Mr. President, I have done duty to this Senate and to myself. I leave
it to this august Body to make its own conclusion.

Verily, the speech of Senator Enrile contained no suggestion of contemplated

legislation; he merely called upon the Senate to look into a possible violation of
Sec. 5 of RA No. 3019, otherwise known as "The Anti-Graft and Corrupt Practices
Act." I other words, the purpose of the inquiry to be conducted by respondent
Blue Ribbon commitee was to find out whether or not the relatives of President
Aquino, particularly Mr. ricardo Lopa, had violated the law in connection with the
alleged sale of the 36 or 39 corporations belonging to Benjamin "Kokoy"
Romualdez to the Lopaa Group. There appears to be, therefore, no intended
legislation involved.

The Court is also not impressed with the respondent Committee's argument that
the questioned inquiry is to be conducted pursuant to Senate Resolution No. 212.
The said resolution was introduced by Senator Jose D. Lina in view of the
representaions made by leaders of school youth, community groups and youth of
non-governmental organizations to the Senate Committee on Youth and Sports
Development, to look into the charges against the PCGG filed by three (3)
stockholders of Oriental petroleum, i.e., that it has adopted a "get-rich-quick
scheme" for its nominee-directors in a sequestered oil exploration firm.The
pertinent portion of Senate Resolution No. 212 reads as follows:

xxx xxx xxx

WHEREAS, recent developments have shown that no less than the

Solicitor-General has stated that the PCGG Chairman and at least
three Commissioners should resign and that the agency should rid
itself of "ineptness, incompetence and corruption" and that the
Sandiganbayan has reportedly ordered the PCGG to answer charges
filed by three stockholders of Oriental Petroleum that it has adopted
a "get-rich-quick scheme" for its nominee-directors in a sequestered
oil exploration firm;

WHEREAS, leaders of school youth, community groups and youth of

non-governmental organization had made representations to the
Senate Committee on Youth and Sports Development to look into
the charges against the PCGG since said agency is a symbol of the
changes expected by the people when the EDSA revolution took
place and that the ill-gotten wealth to be recovered will fund priority
projects which will benefit our people such as CARP, free education
in the elementary and secondary levels reforestration, and
employment generation for rural and urban workers;

WHEREAS, the government and the present leadeship must

demonstrate in their public and private lives integrity, honor and
efficient management of government services lest our youth
become disillusioned and lose hope and return to an Idelogy and
form of government which is repugnant to true freedom, democratic
participation and human rights: Now, therefore, be it.

Resolved by the Senate, That the activities of the Presidential

Commission on Good Government be investigated by the
appropriate Committee in connection with the implementation of
Section 26, Article XVIII of the Constitution. 19
Thus, the inquiry under Senate Resolution No. 212 is to look into the charges
against the PCGG filed by the three (3) stockholders of Oriental Petroleum in
connection with the implementation of Section 26, Article XVIII of the
Constitution.

It cannot, therefore, be said that the contemplated inquiry on the subject of the
privilege speech of Senator Juan Ponce Enrile, i.e., the alleged sale of the 36 (or
39) corporations belonging to Benjamin "Kokoy" Romualdez to the Lopa Group is
to be conducted pursuant to Senate Resolution No. 212 because, firstly, Senator
Enrile did not indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the
herein petitioners are connected with the government but are private citizens.

It appeals, therefore, that the contemplated inquiry by respondent Committee is

not really "in aid of legislation" becuase 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 ralatives 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, 20 it was held 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 asis this power of inquiry, it is not
unlimited. There is no general authority to expose the private
affairs ofindividuals 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. 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 soly 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 petitioner's respective answers thereto, the issue sought to be investigated by
the respondent Commitee 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 betweena legislative commitee and a judicial tribunal, but
if the Committee's 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 rspondent 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, 21 it was held that:

Broad as it is, the power is not, howevern, 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 suplant the Executive in what exclusively
belongs to the Executive. ...

Now to another matter. It has been held that "a congressional committee's 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'." 22

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
exeistence 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 encroah upon an
individual's right to privacy nor abridge his liberty of speech, press,
religion or assembly. 23

One of the basic rights guaranteed by the Constitution to an individual is the

right against self-incrimination. 24 Thir right constured 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. 25 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 privilege as each question
requiring an incriminating answer is hot at him, an accused may
altother 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, 26 the Court
reiterated the doctrine in Cabal vs. Kapuanan (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 characeter of the suit involved but the nature of the
proceedings that controls. The privilege has consistenly 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
evidenc before it, it is only becuase 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 circumtance 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 respondet 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.

SO ORDERED.
 STANDARD CHARTERED BANK G.R. No. 167173
(Philippine Branch), PAUL SIMON
MORRIS, SUNDARA RAMESH,
OWEN BELMAN, SANJAY Present:
AGGARWAL, RAJAMANI PUNO, C.J.,
CHANDRASHEKAR, MARIVEL QUISUMBING,
GONZALES, MA. ELLEN YNARES-SANTIAGO,
VICTOR, CHONA G. REYES, SANDOVAL-GUTIERREZ,
ZENAIDA IGLESIAS, RAMONA CARPIO,
BERNAD, MICHAELANGELO AUSTRIA-MARTINEZ,
AGUILAR, and FERNAND CORONA,
TANSINGCO, CARPIO MORALES,
Petitioners, AZCUNA,
TINGA,
- versus - CHICO-NAZARIO,
VELASCO, JR.,
SENATE COMMITTEE ON BANKS, NACHURA,
FINANCIAL INSTITUTIONS AND REYES, and
CURRENCIES, as represented by LEONARDO-DE CASTRO, JJ.
its Chairperson, HON. EDGARDO
J. ANGARA, Promulgated:
Respondent.
December 27, 2007
x-----------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Before us is a Petition for Prohibition (With Prayer for Issuance of Temporary

Restraining Order and/or Injunction) dated and filed on March 11, 2005 by
petitioners against respondent Senate Committee on Banks, Financial Institutions
and Currencies, as represented by its Chairperson Edgardo J. Angara
(respondent).

Petitioner Standard Chartered Bank (SCB)-Philippines is an institution

incorporated in England with limited liability and is licensed to engage in
banking, trust, and other related operations in the Philippines. Petitioners Paul
Simon Morris, Sundara Ramesh, Owen Belman, Sanjay Aggarwal, Rajamani
Chandrashekar, Marivel Gonzales, Ma. Ellen Victor, Chona G. Reyes, Zenaida
Iglesias, Ramona Bernad, Michaelangelo Aguilar, and Fernand Tansingco are the
Chief Executive Officer, Chief Operations Officer, Country Head of Consumer
Banking, General Manager for Credit Card and Personal Loans, Chief Financial
Officer, Legal and Compliance Officer, former Trust and Investment Services
Head, Country Tax Officer, Head of Corporate Affairs, Head of Banking Services,
Head of Client Relationships, and the Head of Global Markets of SCB-Philippines,
respectively. Respondent, on the other hand, is one of the permanent
committees of the Senate of the Philippines.

The petition seeks the issuance of a temporary restraining order (TRO) to enjoin
respondent from (1) proceeding with its inquiry pursuant to Philippine Senate
(P.S.) Resolution No. 166; (2) compelling petitioners who are officers of petitioner
SCB-Philippines to attend and testify before any further hearing to be conducted
by respondent, particularly that set on March 15, 2005; and (3) enforcing any
hold-departure order (HDO) and/or putting the petitioners on the Watch List. It
also prays that judgment be rendered (1) annulling the subpoenae ad
testificandum and duces tecum issued to petitioners, and (2) prohibiting the
respondent from compelling petitioners to appear and testify in the inquiry being
conducted pursuant to P.S. Resolution No. 166.

The facts are as follows:

On February 1, 2005, Senator Juan Ponce Enrile, Vice Chairperson of respondent,

delivered a privilege speech entitled Arrogance of Wealth[1] before the Senate
based on a letter from Atty. Mark R. Bocobo denouncing SCB-Philippines for
selling unregistered foreign securities in violation of the Securities Regulation
Code (R.A. No. 8799) and urging the Senate to immediately conduct an inquiry,
in aid of legislation, to prevent the occurrence of a similar fraudulent activity in
the future. Upon motion of Senator Francis Pangilinan, the speech was referred to
respondent. Prior to the privilege speech, Senator Enrile had introduced P.S.
Resolution No. 166,[2] to wit:

RESOLUTION

DIRECTING THE COMMITTEE ON BANKS, FINANCIAL

INSTITUTIONS AND CURRENCIES, TO CONDUCT AN INQUIRY,
IN AID OF LEGISLATION, INTO THE ILLEGAL SALE OF
UNREGISTERED AND HIGH-RISK SECURITIES BY STANDARD
CHARTERED BANK, WHICH RESULTED IN BILLIONS OF PESOS
OF LOSSES TO THE INVESTING PUBLIC

WHEREAS, Republic Act No. 7721, otherwise known as the "Law

Liberalizing the Entry and Scope of Operations of Foreign Banks in
the Philippines, was approved on May 18, 1994 to promote greater
participation of foreign banks in the Philippine Banking Industry that
will stimulate economic growth and serve as a channel for the flow
of funds into the economy;

WHEREAS, to promote greater competition in the Philippine Banking

Industry, foreign banks were accorded the same privileges, allowed
to perform the same functions and subjected to the same
limitations under relevant banking laws imposed upon domestic
banks;

WHEREAS, Standard Chartered Bank was among the foreign banks

granted the privilege to do business in our country under Republic
Act No. 7721;

WHEREAS, there are complaints against Standard Chartered Bank

whose actions have reportedly defrauded hundreds of Filipino
investors of billions of pesos through the sale of unregistered
securities in the form of high-risk mutual funds falsely advertised
and marketed as safe investment havens;

WHEREAS, there are reports that Standard Chartered Bank clearly

knew that its actions were violative of Philippine banking and
securities laws but cleverly disguised its illegal acts through the use
of pro-forma agreements containing waivers of liability in favor of
the bank;

WHEREAS, there are reports that in the early stages of conducting

these questionable activities, the Bangko Sentral ng Pilipinas
warned and eventually fined Standard Chartered Bank a
measly P30,000 for violating Philippine banking laws;

WHEREAS, the particular operations of Standard Chartered Bank

may constitute "conducting business in an unsafe and unsound
manner,punishable under Section 37 of Republic Act No. 7653 and
should have drawn the higher penalty of revocation of its quasi-
banking license;

WHEREAS, Republic Act No. 8791 or the "General Banking Act of

2000" deems a particular act or omission as conducting business in
an unsafe and unsound manner as follows:

"Section 56.2 The act or omission has resulted or may

result in material loss or damage or abnormal risk to
the institution's depositors, creditors, investors,
stockholders or to the Bangko Sentral or to the public
in general."
 WHEREAS, the sale of unregistered securities is also a clear
violation of Republic Act No. 8799 or "The Securities Regulation
Code of 2000" which states:

"Section 8.1 Securities shall not be sold or offered for

sale or distribution within the Philippines, without a
registration statement duly filed with and approved by
the Commission. Prior to such sale, information on the
securities, in such form and with such substance as the
Commission may prescribe, shall be made available to
each prospective purchaser."

WHEREAS, the Securities and Exchange Commission (SEC)

reportedly issued a Cease-and-Desist Order (CDO) against Standard
Chartered Bank for the sale of these unregistered securities but the
case was reportedly settled administratively and dismissed after
Standard Chartered Bank paid a fine of P7 Million;

WHEREAS, the SEC reportedly made an official finding that Standard

Chartered Bank actively engaged in promoting and marketing the
so-called "Global Third Party Mutual Funds to the investing public
and even set revenue quotas for the sale of these funds;

WHEREAS, existing laws including the Securities Regulation Code

seem to be inadequate in preventing the sale of unregistered
securities and in effectively enforcing the registration rules intended
to protect the investing public from fraudulent practices;

WHEREAS, the regulatory intervention by the SEC and BSP likewise

appears inadequate in preventing the conduct of proscribed
activities in a manner that would protect the investing public;

WHEREAS, there is a need for remedial legislation to address the

situation, having in mind the imposition of proportionate penalties
to offending entities and their directors, officers and representatives
among other additional regulatory measures;

Now, therefore, BE IT RESOLVED, AS IT IS HEREBY RESOLVED,

to direct the Committee on Banks, Currencies, and Financial
Institutions, to conduct an inquiry, in aid of legislation, into the
reported sale of unregistered and high-risk securities by Standard
Chartered Bank which resulted in billions of losses to the investing
public.

Acting on the referral, respondent, through its Chairperson, Senator

Edgardo J. Angara, set the initial hearing on February 28, 2005 to investigate, in
aid of legislation, the subject matter of the speech and resolution filed by
Senator Enrile.
Respondent invited petitioners, among others, to attend the hearing, requesting
them to submit their written position paper. Petitioners, through counsel,
submitted to respondent a letter[3] dated February 24, 2005 presenting their
position, particularly stressing that there were cases pending in court allegedly
involving the same issues subject of the legislative inquiry, thereby posing a
challenge to the jurisdiction of respondent to continue with the inquiry.

On February 28, 2005, respondent commenced the investigation. Senator Enrile

inquired who among those invited as resource persons were present and who
were absent. Thereafter, Senator Enrile moved that subpoenae be issued to
those who did not attend the hearing and that the Senate request the
Department of Justice, through the Bureau of Immigration and Deportation, to
issue an HDO against them and/or include them in the Bureaus Watch
List. Senator Juan Flavier seconded the motion and the motion was approved.

Respondent then proceeded with the investigation proper. Towards the end of the
hearing, petitioners, through counsel, made an Opening Statement [4] that
brought to the attention of respondent the lack of proper authorization from
affected clients for the bank to make disclosures of their accounts and the lack of
copies of the accusing documents mentioned in Senator Enrile's privilege
speech, and reiterated that there were pending court cases regarding the alleged
sale in the Philippines by SCB-Philippines of unregistered foreign securities.

The February 28, 2005 hearing was adjourned without the setting of the next
hearing date. However, petitioners were later served by respondent
with subpoenae ad testificandum and duces tecum to compel them to attend
and testify at the hearing set on March 15, 2005. Hence, this petition.

The grounds relied upon by petitioners are as follows:

I.

THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED

WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN CONDUCTING AN INVESTIGATION, PURPORTEDLY IN
 AID OF LEGISLATION, BUT IN REALITY PROBING INTO THE ISSUE OF
WHETHER THE STANDARD CHARTERED BANK HAD SOLD
UNREGISTERED FOREIGN SECURITIES IN THE PHILIPPINES. SAID
ISSUE HAS LONG BEEN THE SUBJECT OF CRIMINAL AND CIVIL
ACTIONS NOW PENDING BEFORE THE COURT OF
APPEALS, REGIONAL TRIAL COURT OF PASIG CITY, METROPOLITAN T
RIAL COURT OFMAKATI CITY AND THE PROSECUTOR'S OFFICE
OF MAKATI CITY.

II.

THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF JURISDICTION BY CONDUCTING AN
INVESTIGATION, PURPORTEDLY IN AID OF LEGISLATION, BUT IN
REALITY IN AID OF COLLECTION BY A HANDFUL OF TWO (2) CLIENTS
OF STANDARD CHARTERED BANK OF LOSSES WHICH WERE FOR
THEIR ACCOUNT AND RISK. AT ANY RATE, SUCH COLLECTION IS
WITHIN THE PROVINCE OF THE COURT RATHER THAN OF THE
LEGISLATURE.

III.

THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED

WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN COMPELLING PETITIONERS, SOME OF WHOM ARE
RESPONDENTS IN THE PENDING CRIMINAL AND CIVIL ACTIONS
BROUGHT BY SAID CLIENTS, IN VIOLATION OF PETITIONERS RIGHT
AGAINST SELF-INCRIMINATION AND RIGHT TO PURSUE AND DEFEND
THEIR CAUSE IN COURT RATHER THAN ENGAGE IN TRIAL BY
PUBLICITY A CLEAR VIOLATION OF DUE PROCESS, RIGHT TO
PRIVACY AND TO TRAVEL.

IV.

THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF JURISDICTION BY DISREGARDING ITS OWN
RULES.[5]

Petitioners argue that respondent has no jurisdiction to conduct the inquiry

because its subject matter is the very same subject matter of the following
cases, to wit:

(a) CA-G.R. SP No. 85078, entitled Manuel V. Baviera vs. Hon.

Esperanza P. Rosario, et al., pending before the 9th Division of the
Court of Appeals. In the petition, Mr. Baviera seeks to annul and set
aside the dismissal by the Department of Justice of his complaint
against Standard Chartered Bank and its officers accusing them
of SELLING UNREGISTERED FOREIGN SECURITIES IN
VIOLATION OF P.D. NO. 1869 (SYNDICATED ESTAFA) AND
ARTICLE 315 OF THE REVISED PENAL CODE.
 (b) CA-G.R. SP No. 86200, entitled Manuel V. Baviera vs. Hon. Rafael
Buenaventura, et al., pending before the 15th Division of the Court
of Appeals. In the petition, Mr. Baviera seeks to annul and set aside
the termination for lack of probable cause by the Anti-Money
Laundering Council (AMLC) of the investigation of Standard
Chartered Bank for money laundering activities BY SELLING
UNREGISTERED FOREIGN SECURITIES.

(c) CA-G.R. SP No. 87328, entitled Manuel V. Baviera vs. Hon.

Esperanza Paglinawan Rozario, et al., pending before the
16th Division of the Court of Appeals. The petition seeks to annul
and set aside the dismissal by the Department of Justice of Mr.
Baviera's complaint accusing SCB and its officers of violation of the
Securities Regulation Code by SELLING UNREGISTERED FOREIGN
SECURITIES.

(d) Civil Case No. 70173, entitled Mr. Noel G. Sanchez, et al. vs.
Standard Chartered Bank, pending before Branch 155 of
the Regional TrialCourt of Pasig City. Plaintiff seeks damages and
recovery of their investment accusing the bank of SELLING
UNREGISTERED FOREIGN SECURITIES.

(e) Criminal Case No. 332034, entitled People of the Philippines vs.
Manuel V. Baviera, pending before Branch 64 of
the Metropolitan TrialCourt of Makati City. Petitioner Morris is the
private complainant in this information for extortion or blackmail
against Mr. Baviera for demanding the payment of US$2 Million with
the threat to EXPOSE THE BANK'S LARGE SCALE SCAM
CONSISTING [OF] ILLEGAL SELLING OF UNREGISTERED
FOREIGN SECURITIES BY THE BANK, before various government
offices, such as the Department of Justice, the BIR, Bangko Sentral
ng Pilipinas, Regional Trial Courts, and both houses of Congress.

(f) Criminal Case No. 331395, entitled People of the Philippines vs.
Manuel V. Baviera, pending before Branch 64 of
the Metropolitan TrialCourt of Makati City. Petitioners Victor and
Chona Reyes are the private complainants in this information for
perjury committed by Mr. Baviera in securing a hold departure order
against the petitioners herein from the Department of Justice for
their alleged involvement in syndicated estafa and swindling BY
SELLING UNREGISTERED FOREIGN SECURITIES.

(g) I.S. No. 2004-B-2279-80, entitled Aurelio Litonjua III and Aurelio
Litonjua, Jr. vs. Antonette de los Reyes, et al., pending before the
Office of the Prosecutor, Makati City. This is a criminal complaint
accusing SCB and its officers of estafa for SELLING
UNREGISTERED FOREIGN SECURITIES.[6]

Citing Bengzon, Jr. v. Senate Blue Ribbon Committee, [7] the petitioners
claim that since the issue of whether or not SCB-Philippines illegally sold
unregistered foreign securities is already preempted by the courts that took
cognizance of the foregoing cases, the respondent, by this investigation, would
encroach upon the judicial powers vested solely in these courts.

The argument is misplaced. Bengzon does not apply squarely to petitioners case.

It is true that in Bengzon, the Court declared that the issue to be investigated
was one over which jurisdiction had already been acquired by the
Sandiganbayan, and to allow the [Senate Blue Ribbon] Committee to investigate
the matter would create the possibility of conflicting judgments; and that the
inquiry into the same justiciable controversy would be an encroachment on the
exclusive domain of judicial jurisdiction that had set in much earlier.

To the extent that, in the case at bench, there are a number of cases already
pending in various courts and administrative bodies involving the petitioners,
relative to the alleged sale of unregistered foreign securities, there is a
resemblance between this case and Bengzon. However, the similarity ends there.

Central to the Courts ruling in Bengzon -- that the Senate Blue Ribbon Committee
was without any constitutional mooring to conduct the legislative investigation --
was the Courts determination that the intended inquiry was not in aid of
legislation. The Court found that the speech of Senator Enrile, which sought
such investigation contained no suggestion of any contemplated legislation; it
merely called upon the Senate to look into possible violations of Section 5,
Republic Act No. 3019. Thus, the Court held that the requested probe failed to
comply with a fundamental requirement of Section 21, Article VI of
the Constitution, which states:

The Senate or the House of Representatives or any of

its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
Accordingly, we stopped the Senate Blue Ribbon Committee from proceeding
with the legislative investigation in that case.

Unfortunately for the petitioners, this distinguishing factual milieu

in Bengzon does not obtain in the instant case. P.S. Resolution No. 166 is explicit
on the subject and nature of the inquiry to be (and already being) conducted by
the respondent Committee, as found in the last three Whereas clauses
thereof, viz.:

WHEREAS, existing laws including the Securities Regulation

Code seem to be inadequate in preventing the sale of
unregistered securities and in effectively enforcing the registration
rules intended to protect the investing public from fraudulent
practices;

WHEREAS, the regulatory intervention by the SEC and BSP

likewise appears inadequate in preventing the conduct of
proscribed activities in a manner that would protect the investing
public;

WHEREAS, there is a need for remedial legislation to address

the situation, having in mind the imposition of proportionate
penalties to offending entities and their directors, officers and
representatives among other additional regulatory measures;
(emphasis supplied)

The unmistakable objective of the investigation, as set forth in the said

resolution, exposes the error in petitioners allegation that the inquiry, as initiated
in a privilege speech by the very same Senator Enrile, was simply to denounce
the illegal practice committed by a foreign bank in selling unregistered foreign
securities x x x. This fallacy is made more glaring when we consider that, at the
conclusion of his privilege speech, Senator Enrile urged the Senate to
immediately conduct an inquiry, in aid of legislation, so as to prevent
the occurrence of a similar fraudulent activity in the future.

Indeed, the mere filing of a criminal or an administrative complaint before

a court or a quasi-judicial body should not automatically bar the conduct of
legislative investigation. Otherwise, it would be extremely easy to subvert any
intended inquiry by Congress through the convenient ploy of instituting a
criminal or an administrative complaint. Surely, the exercise of sovereign
legislative authority, of which the power of legislative inquiry is an essential
component, cannot be made subordinate to a criminal or an administrative
investigation.

As succinctly stated in the landmark case Arnault v. Nazareno[8]

[T]he 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 possess it.

Neither can the petitioners claim that they were singled out by the
respondent Committee. The Court notes that among those invited as resource
persons were officials of the Securities and Exchange Commission (SEC) and the
Bangko Sentral ng Pilipinas (BSP). These officials were subjected to the same
critical scrutiny by the respondent relative to their separate findings on the
illegal sale of unregistered foreign securities by SCB-Philippines. It is obvious that
the objective of the investigation was the quest for remedies, in terms of
legislation, to prevent the recurrence of the allegedly fraudulent activity.

Still, petitioners insist that the inquiry conducted by respondent was, in

fact, in aid of collection. They claim that Atty. Bocobo and Manuel Baviera, the
latter a party to the pending court cases cited by petitioners, were only seeking a
friendly forum so that they could recover their investments from SCB-Philippines;
and that the respondent has allowed itself to be used as the conveniently
available vehicle to effect this purpose.

However, as correctly pointed out by respondent in its Comment on the

petition, Atty. Bocobo did not file a complaint before the Senate for the purpose
of recovering his investment. On the contrary, and as confirmed during the initial
hearing on February 28, 2005, his letter-complaint humbly requested the Senate
to conduct an inquiry into the purportedly illegal activities of SCB-Philippines,
with the end view of preventing the future occurrence of any similar fraudulent
activity by the banks in general. [9] Baviera, on the other hand, was not a
complainant but merely a witness in the investigation, invited to testify on the
alleged illegal sale of unregistered foreign securities by SCB-Philippines, being
one of the supposed victims thereof.

The Court further notes that when it denied petitioners prayer for the
issuance of a TRO to restrain the hearing set on March 15, 2005,[10] respondent
proceeded with the investigation. On the said date, outraged by petitioners
imputation that it was conducting the investigation in aid of collection,
respondent held petitioners, together with their counsel, Atty. Reynaldo
Geronimo, in contempt and ordered their detention for six hours.

Petitioners filed a Motion for Partial Reconsideration of this Courts

Resolution dated March 14, 2005 only with respect to the denial of the prayer for
the issuance of a TRO and/or writ of preliminary injunction, alleging that their
being held in contempt was without legal basis, as the phrase in aid of collection
partakes of an absolutely privileged allegation in the petition.

We do not agree. The Court has already expounded on the essence of the
contempt power of Congress and its committees in this wise

The principle that Congress or any of its bodies has the power
to punish recalcitrant witnesses is founded upon reason and
policy. Said power must be considered implied or incidental to the
exercise of legislative power. How could a legislative body obtain
the knowledge and information on which to base intended
legislation if it cannot require and compel the disclosure of such
knowledge and information, if it is impotent to punish a defiance of
its power and authority? When the framers of the Constitution
adopted the principle of separation of powers, making each branch
supreme within the realm of its respective authority, it must have
intended each departments authority to be full and complete,
independently of each others authority or power. And how could the
authority and power become complete if for every act of refusal,
every act of defiance, every act of contumacy against it, the
legislative body must resort to the judicial department for the
appropriate remedy, because it is impotent by itself to punish or
 deal therewith, with affronts committed against its authority or
dignity.[11]

The exercise by Congress or by any of its committees of the power to

punish contempt is based on the principle of self-preservation. As the branch of
the government vested with the legislative power, independently of the judicial
branch, it can assert its authority and punish contumacious acts against it. Such
power is sui generis, as it attaches not to the discharge of legislative
functions per se, but to the sovereign character of the legislature as one of the
three independent and coordinate branches of government. [12]

In this case, petitioners imputation that the investigation was in aid of

collection is a direct challenge against the authority of the Senate Committee, as
it ascribes ill motive to the latter. In this light, we find the contempt citation
against the petitioners reasonable and justified.

Furthermore, it is axiomatic that the power of legislative investigation

includes the power to compel the attendance of witnesses. Corollary to the
power to compel the attendance of witnesses is the power to ensure that said
witnesses would be available to testify in the legislative investigation. In the case
at bench, considering that most of the officers of SCB-Philippines are not Filipino
nationals who may easily evade the compulsive character of respondents
summons by leaving the country, it was reasonable for the respondent to request
the assistance of the Bureau of Immigration and Deportation to prevent said
witnesses from evading the inquiry and defeating its purpose. In any event, no
HDO was issued by a court. The BID instead included them only in the Watch List,
which had the effect of merely delaying petitioners intended travel abroad for
five (5) days, provided no HDO is issued against them. [13]

With respect to the right of privacy which petitioners claim respondent has
violated, suffice it to state that privacy is not an absolute right. While it is true
that Section 21, Article VI of the Constitution, guarantees respect for the rights of
persons affected by the legislative investigation, not every invocation of the right
to privacy should be allowed to thwart a legitimate congressional inquiry.In Sabio
v. Gordon,[14] we have held that the right of the people to access information on
matters of public concern generally prevails over the right to privacy of ordinary
financial transactions. In that case, we declared that the right to privacy is not
absolute where there is an overriding compelling state interest. Employing
the rational basis relationship test, as laid down in Morfe v. Mutuc,[15] there is no
infringement of the individuals right to privacy as the requirement to disclosure
information is for a valid purpose, in this case, to ensure that the government
agencies involved in regulating banking transactions adequately protect the
public who invest in foreign securities. Suffice it to state that this purpose
constitutes a reason compelling enough to proceed with the assailed legislative
investigation.[16]

As regards the issue of self-incrimination, the petitioners, officers of SCB-

Philippines, are not being indicted as accused in a criminal proceeding. They
were summoned by respondent merely as resource persons, or as witnesses, in a
legislative inquiry. As distinguished by this Court

[An] 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 privilege as each question
requiring an incriminating answer is shot at him, an accused may
altogether refuse to take the witness stand and refuse to answer
any and all questions.[17]

Concededly, this right of the accused against self-incrimination is extended

to respondents in administrative investigations that partake of the nature of or
are analogous to criminal proceedings. 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. [18]

However, in this case, petitioners neither stand as accused in a criminal

case nor will they be subjected by the respondent to any penalty by reason of
their testimonies. Hence, they cannot altogether decline appearing before
respondent, although they may invoke the privilege when a question calling for
an incriminating answer is propounded. [19]

Petitioners argument, that the investigation before respondent may result

in a recommendation for their prosecution by the appropriate government
agencies, such as the Department of Justice or the Office of the Ombudsman,
does not persuade.

As held in Sinclair v. United States[20] --

It may be conceded that Congress is without authority to compel

disclosures for the purpose of aiding the prosecution of pending
suits; but the authority of that body, directly or through its
Committees, to require pertinent disclosures in aid of its own
constitutional power is not abridged because the information sought
to be elicited may also be of use in such suits. x x x It is plain that
investigation of the matters involved in suits brought or to be
commenced under the Senate resolution directing the institution of
suits for the cancellation of the leases might directly aid in respect
of legislative action.

The prosecution of offenders by the prosecutorial agencies and the trial before
the courts is for the punishment of persons who transgress the law. The intent of
legislative inquiries, on the other hand, is to arrive at a policy determination,
which may or may not be enacted into law.

Except only when it exercises the power to punish for contempt, the respondent,
as with the other Committees of the Senate or of the House of Representatives,
cannot penalize violators even if there is overwhelming evidence of criminal
culpability. Other than proposing or initiating amendatory or remedial legislation,
respondent can only recommend measures to address or remedy whatever
irregularities may be unearthed during the investigation, although it may include
in its Report a recommendation for the criminal indictment of persons who may
appear liable. At best, the recommendation, along with the evidence, contained
in such a Report would be persuasive, but it is still up to the prosecutorial
agencies and the courts to determine the liabilities of the offender.
 Finally, petitioners sought anew, in their Manifestation and
Motion[21] dated June 21, 2006, the issuance by this Court of a TRO and/or writ of
preliminary injunction to prevent respondent from submitting its Committee
Report No. 75 to the Senate in plenary for approval. However, 16 days prior to
the filing of the Manifestation and Motion, or on June 5, 2006, respondent had
already submitted the report to the Senate in plenary. While there is no showing
that the said report has been approved by the Senate, the subject of the
Manifestation and Motion has inescapably become moot and academic.

WHEREFORE, the Petition for Prohibition is DENIED for lack of merit. The
Manifestation and Motion dated June 21, 2006 is, likewise, DENIED for being
moot and academic.

SO ORDERED.
G.R. No. L-3820 July 18, 1950

JEAN L. ARNAULT, petitioner,

vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and EUSTAQUIO
BALAGTAS, Director of Prisons, respondents.

J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.

Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong, Lorenzo
Taada, and Vicente J. Francisco for respondents.

OZAETA, J.:

This is an original petition for habeas corpus to relieve the petitioner from his
confinement in the New Bilibid Prison to which he has been committed by virtue
of a resolution adopted by the Senate on May 15, 1950, which reads as follows:

Whereas, Jean L. Arnault refused to reveal the name of the person to

whom he gave the P440,000, as well as answer other pertinent questions
related to the said amount; Now, therefore, be it.

Resolved, that for his refusal to reveal the name of the person to whom he
gave the P440,000 Jean L. Arnault be committed to the custody of the
Sergeant-at-Arms and imprisoned in the New Bilibid Prison, Muntinlupa,
Rizal, until discharged by further order of the Senate or by the special
committee created by Senate Resolution No. 8, such discharge to be
 ordered when he shall have purged the contempt by revealing to the
Senate or to the said special committee the name of the person to whom
he gave the P440,000, as well as answer other pertinent questions in
connection therewith.

The facts that gave rise to the adoption of said resolution, insofar as pertinent
here, may be briefly stated as follows:

In the latter part of October, 1949, the Philippine Government, through the Rural
Progress Administration, bought two estates known as Buenavista and
Tambobong for the sums of P4,500,000 and P500,000, respectively. Of the first
sum, P1,000,000 was paid to Ernest H. Burt, a nonresident American, thru his
attorney-in-fact in the Philippines, the Associated Estates, Inc., represented by
Jean L. Arnault, for alleged interest of the said Burt in the Buenavista Estate. The
second sum of P500,000 was all paid to the same Ernest H. Burt through his
other attorney-in-fact, the North Manila Development Co., Inc., also represented
by Jean L. Arnault, for the alleged interest of the said Burt in the Tambobong
Estate.

The original owner of the Buenavista Estate was the San Juan de Dios Hospital.
The Philippine Government held a 25-year lease contract on said estate, with an
option to purchase it for P3,000,000 within the same period of 25 years counted
from January 1, 1939. The occupation Republic of the Philippines purported to
exercise that option by tendering to the owner the sum of P3,000,000 and, upon
its rejection, by depositing it in court on June 21, 1944, together with the accrued
rentals amounting to P3224,000. Since 1939 the Government has remained in
possession of the estate.

On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for
P5,000,000 to Ernest H. Burt, who made a down payment of P10,000 only and
agreed to pay P5000,000 within one year and the remainder in annual
installments of P500,000 each, with the stipulation that failure on his part to
make any of said payments would cause the forfeiture of his down payment of
P10,000 and would entitle the Hospital to rescind to sale to him. Aside from the
down payment of P10,000, Burt has made no other payment on account of the
purchase price of said estate.

The original owner of the Tambobong Estate was the Philippine Trust Company.
On May 14, 1946, the Philippine Trust Company sold estate for the sum of
P1,200,000 to Ernest H. Burt, who paid P10,000 down and promise to pay
P90,000 within nine months and the balance of P1,100,000 in ten successive
installments of P110,000 each. The nine-month period within which to pay the
first installment of P90,000 expired on February 14, 1947, without Burt's having
paid the said or any other amount then or afterwards. On September 4, 1947,
the Philippine Trust Company sold, conveyed, and delivered the Tambobong
Estate to the Rural Progress Administration by an absolute deed of sale in
consideration of the sum of P750,000. On February 5, 1948, the Rural Progress
Administration made, under article 1504 of the Civil Code, a notarial demand
upon Burt for the resolution and cancellation of his contract of purchase with the
Philippine Trust Company due to his failure to pay the installment of P90,000
within the period of nine months. Subsequently the Court of First Instance of
Rizal ordered the cancellation of Burt's certificate of title and the issuance of a
new one in the name of the Rural Progress Administration, from which order he
appealed to the Supreme Court. 1

It was in the face of the antecedents sketched in the last three preceding
paragraphs that the Philippine Government, through the Secretary of Justice as
Chairman of the Board of Directors of the Rural Progress Administration and as
Chairman of the Board of Directors of the Philippine National Bank, from which
the money was borrowed, accomplished the purchase of the two estates in the
latter part of October, 1949, as stated at the outset.

On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as
follows:

RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE

BUENAVISTA AND THE TAMBOBONG ESTATES DEAL.

WHEREAS, it is reported that the Philippine government, through the Rural

Progress Administration, has bought the Buenavista and the Tambobong
Estates for the aggregate sum of five million pesos;

WHEREAS, it is reported that under the decision of the Supreme Court

dated October 31, 1949, the Buenavista Estate could have been bought
for three million pesos by virtue of a contract entered into between the
San Juan de Dios Hospital and Philippine Government in 1939;

WHEREAS, it is even alleged that the Philippine Government did not have
to purchase the Buenavista Estate because the occupation government
had made tender of payment in the amount of three million pesos,
Japanese currency, which fact is believed sufficient to vest title of
Ownership in the Republic of the Philippines pursuant to decisions of the
Supreme Court sustaining the validity of payments made in Japanese
military notes during the occupation;

WHEREAS, it is reported that the Philippine Government did not have to

pay a single centavo for the Tambobong Estate as it was already
practically owned by virtue of a deed of sale from the Philippine Trust
Company dated September 3, 194, for seven hundred and fifty thousand
pesos, and by virtue of the recission of the contract through which Ernest
H. Burt had an interest in the estate; Now, therefore, be it.

RESOLVED, That a Special Committee, be, as it hereby is, created,

composed of five members to be appointed by the President of the Senate
 to investigate the Buenavista and Tambobong Estate deals. It shall be the
duty of the said Committee to determine whether the said purchase was
honest, valid, and proper and whether the price involved in the deal was
fair and just, the parties responsible therefor, and any other facts the
Committee may deem proper in the premises. Said Committee shall have
the power to conduct public hearings; issue subpoena or subpoena duces
tecum to compel the attendance of witnesses or the production of
documents before it; and may require any official or employee of any
bureau, office, branch, subdivision, agency, or instrumentality of the
Government to assist or otherwise cooperate with the Special Committee
in the performance of its functions and duties. Said Committee shall
submit its report of findings and recommendations within two weeks from
the adoption of this Resolution.

The special committee created by the above resolution called and examined
various witnesses, among the most important of whom was the herein petitioner,
Jean L. Arnault. An intriguing question which the committee sought to resolve
was that involved in the apparent unnecessariness and irregularity of the
Government's paying to Burt the total sum of P1,500,000 for his alleged interest
of only P20,000 in the two estates, which he seemed to have forfeited anyway
long before October, 1949. The committee sought to determine who were
responsible for and who benefited from the transaction at the expense of the
Government.

Arnault testified that two checks payable to Burt aggregating P1,500,000 were
delivered to him on the afternoon of October 29, 1949; that on the same date he
opened a new account in the name of Ernest H. Burt with the Philippine National
Bank in which he deposited the two checks aggregating P1,500,000; and that on
the same occasion he draw on said account two checks; one for P500,000, which
he transferred to the account of the Associated Agencies, Inc., with the Philippine
National Bank, and another for P440,000 payable to cash, which he himself
cashed. It was the desire of the committee to determine the ultimate recipient of
this sum of P440,000 that gave rise to the present case.

At first the petitioner claimed before the Committee:

Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving
the disposition of funds, I take the position that the transactions were
legal, that no laws were being violated, and that all requisites had been
complied with. Here also I acted in a purely functional capacity of
representative. I beg to be excused from making answer which might later
be used against me. I have been assured that it is my constitutional right
to refuse to incriminate myself, and I am certain that the Honorable
Members of this Committee, who, I understand, are lawyers, will see the
justness of my position.
At as subsequent session of the committee (March 16) Senator De Vera, a
member of the committee, interrogated him as follows:

Senator DE VERA. Now these transactions, according to your own

typewritten statement, were legal?

Mr. ARNAULT. I believe so.

Senator DE VERA. And the disposition of that fund involved, according to

your own statement, did not violate any law?

Mr. ARNAULT. I believe so.

xxx xxx xxx

Senator DE VERA. So that if the funds were disposed of in such a manner

that no laws were violated, how is it that when you were asked by the
Committee to tell what steps you took to have this money delivered to
Burt, you refused to answer the questions, saying that it would incriminate
you?

Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his

dealings with other people.

xxx xxx xxx

Senator DE VERA. Are you afraid to state how the money was disposed of
because you would be incriminated, or you would be incriminating
somebody?

Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose of

the money that has been paid to me as a result of a legal transaction
without having to account for any use of it.

But when in the same session the chairman of the committee, Senator
Sumulong, interrogated the petitioner, the latter testified as follows:

The CHAIRMAN. The other check of P440,000 which you also made on
October 29, 1949, is payable to cash; and upon cashing this P440,000 on
October 29, 1949, what did you do with that amount?

Mr. ARNAULT. I turned it over to a certain person.

The CHAIRMAN. The whole amount of P440,000?

Mr. ARNAULT. Yes.

The CHAIRMAN. Who was that certain person to whom you delivered these
P440,000 which you cashed on October 29, 1949?

Mr. ARNAULT. I don't remember the name; he was a representative of Burt.

The CHAIRMAN. That representative of Burt to whom you delivered the

P440,000 was a Filipino?

Mr. ARNAULT. I don't know.

The CHAIRMAN. You do not remember the name of that representative of

Burt to whom you delivered this big amount of P440,000?

Mr. ARNAULT. I am not sure; I do not remember the name.

The CHAIRMAN. That certain person who represented Burt to whom you
delivered the big amount on October 29, 1949, gave you a receipt for the
amount?

Mr. ARNAULT. No.

The CHAIRMAN. Neither did you ask a receipt?

Mr. ARNAULT. I didn't ask.

The CHAIRMAN. And why did you give that certain person, representative
of Burt, this big amount of P440,000 which forms part of the P1- million
paid to Burt?

Mr. ARNAULT. Because I have instructions to that effect.

The CHAIRMAN. Who gave you the instruction?

Mr. ARNAULT. Burt.

The CHAIRMAN. Where is the instruction; was that in writing?

Mr. ARNAULT. No.

The CHAIRMAN. By cable?

Mr. ARNAULT. No.

The CHAIRMAN. In what form did you receive that instruction?

Mr. ARNAULT. Verbal instruction.

The CHAIRMAN. When did you receive this verbal instruction from Burt to
deliver these P440,000 to a certain person whose name you do not like to
reveal?

Mr. ARNAULT. I have instruction to comply with the request of the person.

The CHAIRMAN. Now, you said that instruction given to you by Burt was
verbal?

Mr. ARNAULT. Yes.

The CHAIRMAN. When was that instruction given to you by Burt?

Mr. ARNAULT. Long time ago.

The CHAIRMAN. In what year did Burt give you that verbal instruction;
when Burt was still here in the Philippines?

Mr. ARNAULT. Yes.

The CHAIRMAN. But at that time Burt already knew that he would receive
the money?

Mr. ARNAULT. No.

The CHAIRMAN. In what year was that when Burt while he was here in the
Philippines gave you the verbal instruction?

Mr. ARNAULT. In 1946.

The CHAIRMAN. And what has that certain person done for Burt to merit
receiving these P440,000?

Mr. ARNAULT. I absolutely do not know.

The CHAIRMAN. You do not know?

Mr. ARNAULT. I do not know.

The CHAIRMAN. Burt did not tell you when he gave you the verbal
instruction why that certain person should receive these P440,000?

Mr. ARNAULT. He did not tell me.

The CHAIRMAN. And Burt also authorized you to give this big amount to
that certain person without receipt?
Mr. ARNAULT. He told me that a certain person would represent him and
where could I meet him.

The CHAIRMAN. Did Burt know already that certain person as early as
1946?

Mr. ARNAULT. I presume much before that.

The CHAIRMAN. Did that certain person have any intervention in the
prosecution of the two cases involving the Buenavista and Tambobong
estates?

Mr. ARNAULT. Not that I know of.

The CHAIRMAN. Is that certain person related to any high government

official?

Mr. ARNAULT. No, I do not know.

The CHAIRMAN. Why can you not tell us the name of that certain person?

Mr. ARNAULT. Because I am not sure of his name; I cannot remember the
name.

The CHAIRMAN. When gave that certain person that P440,000 on October
29, 1949, you knew already that person?

Mr. ARNAULT. Yes, I have seen him several times.

The CHAIRMAN. And the name of that certain person is a Filipino name?

Mr. ARNAULT. I would say Spanish name.

The CHAIRMAN. And how about his Christian name; is it also a Spanish
name?

Mr. ARNAULT. I am not sure; I think the initial is J.

The CHAIRMAN. Did he have a middle name?

Mr. ARNAULT. I never knew it.

The CHAIRMAN. And how about his family name which according to your
recollection is Spanish; can you remember the first letter with which that
family name begins?

Mr. ARNAULT. S, D or F.
The CHAIRMAN. And what was the last letter of the family name?

Mr. ARNAULT. I do not know.

The CHAIRMAN. Have you seen that person again after you have delivered
this P440,000?

Mr. ARNAULT. Yes.

The CHAIRMAN. Several times?

Mr. ARNAULT. Two or three times.

The CHAIRMAN. Here in Manila?

Mr. ARNAULT. Yes.

The CHAIRMAN. And in spite of the fact that you met that person two or
three times, you never were able to find out what was his name?

Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my
name; of course, we have not done business. Lots of people in Manila
know me, but they don't know my name, and I don't know them. They
sa{ I am "chiflado" because I don't know their names.

The CHAIRMAN. That certain person is a male or female?

Mr. ARNAULT. He is a male.

The CHAIRMAN. You are sure that he is a male at least?

Mr. ARNAULT. Let us say 38 or 40 years, more or less.

The CHAIRMAN. Can you give us, more or less, a description of that certain
person? What is his complexion: light, dark or light brown?

Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili),

but smaller. He walks very straight, with military bearing.

The CHAIRMAN. Do you know the residence of that certain person to whom
you gave the P440,000?

Mr. ARNAULT. No.

The CHAIRMAN. During these frequent times that you met that certain
person, you never came to know his residence?

Mr. ARNAULT. No, because he was coming to the office.

 The CHAIRMAN. How tall is that certain person?

Mr. ARNAULT. Between 5-2 and 5-6.

On May 15, 1950, the petitioner was haled before the bar of the Senate, which
approved and read to him the following resolution:

Be it resolved by the Senate of the Philippines in Session assembled:

That Jean L. Arnault, now at the bar of the Senate, be arraigned for
contempt consisting of contumacious acts committed by him during the
investigation conducted by the Special Committee created by Senate
Resolution No. 8 to probe the Tambobong and Buenavista estates deal of
October 21, 1949, and that the President of the Senate propounded to him
the following interrogatories:

1. What excuse have you for persistently refusing to reveal the name of
the person to whom you gave the P440,000 on October 29, 1949, a person
whose name it is impossible for you not to remember not only because of
the big amount of money you gave to him without receipt, but also by
your own statements you knew him as early as 1946 when General Ernest
H. Burt was still in the Philippines, you made two other deliveries of money
to him without receipt, and the last time you saw him was in December
1949?

Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written

answer alleging that the questions were incriminatory in nature and begging
leave to be allowed to stand on his constitutional right not to be compelled to be
a witness against himself. Not satisfied with that written answer Senator
Sumulong, over the objection of counsel for the petitioner, propounded to the
latter the following question:

Sen. SUMULONG. During the investigation, when the Committee asked you
for the name of that person to whom you gave the P440,000, you said that
you can [could] not remember his name. That was the reason then for
refusing to reveal the name of the person. Now, in the answer that you
have just cited, you are refusing to reveal the name of that person to
whom you gave the P440,000 on the ground that your answer will be self-
incriminating. Now, do I understand from you that you are abandoning
your former claim that you cannot remember the name of that person,
and that your reason now for your refusal to reveal the name of that
person is that your answer might be self-incriminating? In other words, the
question is this: What is your real reason for refusing to reveal the name of
that person to whom you gave the P440,000: that you do not remember
his name or that your answer would be self-incriminating?

xxx xxx xxx

Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure
that the accused should not be required to testify unless he so desires.

The PRESIDENT. It is the duty of the respondent to answer the question.

The question is very clear. It does not incriminate him.

xxx xxx xxx

Mr. ARNAULT. I stand by every statement that I have made before the
Senate Committee on the first, second, and third hearings to which I was
made in my letter to this Senate of May 2, 1950, in which I gave all the
reasons that were in my powers to give, as requested. I cannot change
anything in those statements that I made because they represent the best
that I can do , to the best of my ability.

The PRESIDENT. You are not answering the question. The answer has
nothing to do with the question.

Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the reason
that you gave during the investigation for not revealing the name of the
person to whom you gave the P440,000 is not the same reason that you
are now alleging because during the investigation you told us: "I do not
remember his name." But, now, you are now saying: "My answer might
incriminate me." What is your real position?

Mr. ARNAULT. I have just stated that I stand by my statements that I made
at the first, second, and third hearings. I said that I wanted to be excused
from answering the question. I beg to be excused from making any answer
that might be incriminating in nature. However, in this answer, if the detail
of not remembering the name of the person has not been included, it is an
oversight.

Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do
you remember or not the name of the person to whom you gave the
P440,000?

Mr. ARNAULT. I do not remember .

Sen. SUMULONG. Now, if you do not remember the name of that person,
how can you say that your answer might be incriminating? If you do not
remember his name, you cannot answer the question; so how could your
answer be self-incriminating? What do you say to that?

Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see
how to answer those questions. That is why I asked for a lawyer, so he can
help me. I have no means of knowing what the situation is about. I have
been in jail 13 days without communication with the outside. How could I
 answer the question? I have no knowledge of legal procedure or rule, of
which I am completely ignorant.

xxx xxx xxx

Sen. SUMULONG. Mr. President, I ask that the question be answered.

The PRESIDENT. The witness is ordered to answer the question. It is very

clear. It does not incriminate the witness.

xxx xxx xxx

Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg

to be excused from making further answer, please.

Sen. SUMULONG. In that mimeographed letter that you sent addressed to

the President of the Senate, dated May 2, 1950, you stated there that you
cannot reveal the name of the person to whom you gave the P440,000
because if he is a public official you might render yourself liable for
prosecution for bribery, and that if he is a private individual you might
render yourself liable for prosecution for slander. Why did you make those
statements when you cannot even tell us whether that person to whom
you gave the P440,000 is a public official or a private individual ? We are
giving you this chance to convince the Senate that all these allegations of
yours that your answers might incriminate you are given by you honestly
or you are just trying to make a pretext for not revealing the information
desired by the Senate.

The PRESIDENT. You are ordered to answer the question.

Mr. ARNAULT. I do not even understand the question. (The question is

restated and explained.)

Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and
signed it. That is all I can say how I stand about this letter. I have no
knowledge myself enough to write such a letter, so I had to secure the
help of a lawyer to help me in my period of distress.

In that same session of the Senate before which the petitioner was called to
show cause why he should not be adjudged guilty of contempt of the Senate,
Senator Sumulong propounded to the petitioner questions tending to elicit
information from him as to the identity of the person to whom he delivered the
P440,000; but the petitioner refused to reveal it by saying that he did not
remember. The President of the Senate then propounded to him various
questions concerning his past activities dating as far back as when witness was
seven years of age and ending as recently as the post liberation period, all of
which questions the witness answered satisfactorily. In view thereof, the
President of the Senate also made an attempt to illicit the desired information
from the witness, as follows:

The PRESIDENT. Now I am convinced that you have a good memory.

Answer: Did you deliver the P440,000 as a gift, or of any consideration?

Mr. ARNAULT. I have said that I had instructions to deliver it to that person,
that is all.

The PRESIDENT. Was it the first time you saw that person?

Mr. ARNAULT. I saw him various times, I have already said.

The PRESIDENT. In spite of that, you do not have the least remembrance of
the name of that person?

Mr. ARNAULT. I cannot remember.

The PRESIDENT. How is it that you do not remember events that happened
a short time ago and, on the other hand, you remember events that
occurred during your childhood?

Mr. ARNAULT. I cannot explain.

The Senate then deliberated and adopted the resolution of May 15 hereinabove
quoted whereby the petitioner was committed to the custody of the Sergeant-at-
Arms and imprisoned until "he shall have purged the contempt by revealing to
the Senate or to the aforesaid Special Committee the name of the person to
whom he gave the P440,000, as well as answer other pertinent questions in
connection therewith."

The Senate also adopted on the same date another resolution (No. 16) , to wit:

That the Special Committee created by Senate Resolution No. 8 be

empowered and directed to continue its investigation of the Tambobong
and Buenavista Estates deal of October 21, 1949, more particularly to
continue the examination of Jean L. Arnault regarding the name of the
person to whom he gave the P440,000 and other matters related
therewith.

The first session of the Second Congress was adjourned at midnight on May 18,
1950.

The case was argued twice before us. We have given its earnest and prolonged
consideration because it is the first of its kind to arise since the Constitution of
the Republic of the Philippines was adopted. For the first time this Court is called
upon to define the power of either House of Congress to punish a person not a
member for contempt; and we are fully conscious that our pronouncements here
will set an important precedent for the future guidance of all concerned.

Before discussing the specific issues raised by the parties, we deem it necessary
to lay down the general principles of law which form the background of those
issues.

Patterned after the American system, our Constitution vests the powers of the
Government in three independent but coordinate Departments Legislative,
Executive, and Judicial. The legislative power is vested in the Congress, which
consists of the Senate and the House of Representatives. (Section 1, Article VI.)
Each house may determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds of all its Members,
expel a Member. (Section 10, Article VI.) The judicial power is vested in the
Supreme Court and in such inferior courts as may be established by law. (Section
1, Article VIII.) Like the Constitution of the United States, ours does not contain
an express provision empowering either of the two Houses of Congress to punish
nonmembers for contempt. It may also be noted that whereas in the United
States the legislative power is shared by and between the Congress of the United
States, on the one hand, and the respective legislatures of the different States,
on the other the powers not delegated to the United States by the Constitution
nor prohibited by it to States being reserved to the States, respectively, or to the
people in the Philippines, the legislative power is vested in the Congress of the
Philippines alone. It may therefore be said that the Congress of the Philippines
has a wider range of legislative field than the Congress of the United States or
any State Legislature. Our form of Government being patterned after the
American system the framers of our Constitution having drawn largely from
American institutions and practices we can, in this case, properly draw also
from American precedents in interpreting analogous provisions of our
Constitution, as we have done in other cases in the past. 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 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 effect 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. Experience has shown that mere
requests for such information are often unavailing, and also that information
which is volunteered is not always accurate or complete; so some means of
compulsion is essential to obtain what is needed. (McGrain vs. Daugherty, 273
U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the Constitution expressly
gives to Congress the power to punish its Members for disorderly behavior, does
not by necessary implication exclude the power to punish for contempt any other
person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed., 242.) But no person can
be punished for contumacy as a witness before either House, unless his
testimony is required in a matter into which that House has jurisdiction to
inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.).

Since, as we have noted, the Congress of the Philippines has a wider range of
legislative field than either the Congress of the United States or a State
Legislature, we think it is correct to say that the field of inquiry into which it may
enter is also wider. It would be difficult to define any limits by which the subject
matter of its inquiry can be bounded. It is not necessary to do so in this case.
Suffice it to say that it must be coextensive with the range of the legislative
power.

In the present case the jurisdiction of the Senate, thru the Special Committee
created by it, to investigate the Buenavista and Tambobong Estates deal is not
challenged by the petitioner; and we entertain no doubt as to the Senate's
authority to do so and as to the validity of Resolution No. 8 hereinabove quoted.
The transaction involved a questionable and allegedly unnecessary and irregular
expenditure of no less than P5,000,000 of public funds, of which Congress is the
constitutional guardian. It also involved government agencies created by
Congress to regulate or even abolish. As a result of the yet uncompleted
investigation, the investigating committee has recommended and the Senate
approved three bills (1) prohibiting the Secretary of Justice or any other
department head from discharging functions and exercising powers other than
those attached to his own office, without ]previous congressional authorization;
(2) prohibiting brothers and near relatives of any President of the Philippines
from intervening directly or indirectly and in whatever capacity in transactions in
which the Government is a party, more particularly where the decision lies in the
hands of executive or administrative officers who are appointees of the
President; and (3) providing that purchases of the Rural Progress Administration
of big landed estates at a price of P100,000 or more, shall not become effective
without previous congressional confirmation.2

We shall now consider and pass upon each of the questions raised by the
petitioner in support of his contention that his commitment is unlawful.

First He contends that the Senate has no power to punish him for contempt for
refusing to reveal the name of the person to whom he gave the P440,000,
because such information is immaterial to, and will not serve, any intended or
purported legislation and his refusal to answer the question has not
embarrassed, obstructed, or impeded the legislative process. It is argued that
since the investigating committee has already rendered its report and has made
all its recommendations as to what legislative measures should be taken
pursuant to its findings, there is no necessity to force the petitioner to give the
information desired other than that mentioned in its report, to wit: "In justice to
Judge Quirino and to Secretary Nepomuceno, this atmosphere of suspicion that
now pervades the public mind must be dissipated, and it can only be done if
appropriate steps are taken by the Senate to compel Arnault to stop pretending
that he cannot remember the name of the person to whom he gave the
P440,000 and answer the questions which will definitely establish the identity of
that person . . ." Senator Sumulong, Chairman of the Committee, who appeared
and argued the case for the respondents, denied that that was the only purpose
of the Senate in seeking the information from the witness. He said that the
investigation had not been completed, because, due to the contumacy of the
witness, his committee had not yet determined the parties responsible for the
anomalous transaction as required by Resolution No. 8; that, by Resolution No.
16, his committee was empowered and directed to continue its investigation,
more particularly to continue its examination of the witness regarding the name
of the person to whom he gave the P440,000 and other matters related
therewith; that the bills recommended by his committee had not been approved
by the House and might not be approved pending the completion of the
investigation; and that those bills were not necessarily all the measures that
Congress might deem it necessary to pass after the investigation is finished.

Once an inquiry is admitted or established to be within the jurisdiction of a

legislative body to make, we think the investigating committee has the power to
require a witness to answer any question pertinent to that inquiry, subject of
course to his constitutional right against self-incrimination. The inquiry, to be
within the jurisdiction of the legislative body to make, must be material or
necessary to the exercise of a power in it vested by the Constitution, such as to
legislate, or to expel a Member; and every question which the investigator is
empowered to coerce a witness to answer must be material or pertinent to the
subject of the inquiry or investigation. So a witness may not be coerced to
answer a question that obviously has no relation to the subject of the inquiry. But
from this it does not follow that every question that may be propounded to a
witness must be material to any proposed or possible legislation. In other words,
the materiality of the question must be determined by its direct relation to any
proposed or possible legislation. The reason is, that the necessity or lack of
necessity for legislative action and the form and character of the action itself are
determined by the sum total of the information to be gathered as a result of the
investigation, and not by a fraction of such information elicited from a single
question.

In this connection, it is suggested by counsel for the respondents that the power
of the Court is limited to determining whether the legislative body has
jurisdiction to institute the inquiry or investigation; that once that jurisdiction is
conceded, this Court cannot control the exercise of that jurisdiction; and it is
insinuated, that the ruling of the Senate on the materiality of the question
propounded to the witness is not subject to review by this Court under the
principle of the separation of powers. We have to qualify this proposition. As was
said by the Court of Appeals of New York: "We are bound to presume that the
action of the legislative body was with a legitimate object if it is capable of being
so construed, and we have no right to assume that the contrary was intended."
(People ex rel. McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2 N.E., 615,
quoted with approval by the Supreme Court of the United States in the said case
of McGrain vs. Daugherty, it is necessary deduction from the decision in Re
Chapman, 41 L. ed., 1154, that where the questions are not pertinent to the
matter under inquiry a witness rightfully may refuse to answer. So we are of the
opinion that where the alleged immateriality of the information sought by the
legislative body from a witness is relied upon to contest its jurisdiction, the court
is in duty bound to pass upon the contention. The fact that the legislative body
has jurisdiction or the power to make the inquiry would not preclude judicial
intervention to correct a clear abuse of discretion in the exercise of that power.

Applying the criterion laid down in the last two preceding paragraphs to the
resolution of the issue under consideration, we find that the question for the
refusal to answer which the petitioner was held in contempt by the Senate is
pertinent to the matter under inquiry. In fact, this is not and cannot be disputed.
Senate Resolution No. 8, the validity of which is not challenged by the petitioner,
requires the Special Committee, among other things, to determine the parties
responsible for the Buenavista and Tambobong estates deal, and it is obvious
that the name of the person to whom the witness gave the P440,000 involved in
said deal is pertinent to that determination it is in fact the very thing sought to
be determined. The contention is not that the question is impertinent to the
subject of the inquiry but that it has no relation or materiality to any proposed
legislation. We have already indicated that it is not necessary for the legislative
body to show that every question propounded to a witness is material to any
proposed or possible legislation; what is required is that is that it be pertinent to
the matter under inquiry.

It is said that the Senate has already approved the three bills recommended by
the Committee as a result of the uncompleted investigation and that there is no
need for it to know the name of the person to whom the witness gave the
P440,000. But aside from the fact that those bills have not yet been approved by
the lower house and by the President and that they may be withdrawn or
modified if after the inquiry is completed they should be found unnecessary or
inadequate, there is nothing to prevent the Congress from approving other
measures it may deem necessary after completing the investigation. We are not
called upon, nor is it within our province, to determine or imagine what those
measures may be. And our inability to do so is no reason for overruling the
question propounded by the Senate to the witness.

The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here. The
inquiry there in question was conducted under a resolution of the Senate and
related to charges, published in the press, that senators were yielding to corrupt
influences in considering a tariff bill then before the Senate and were speculating
in stocks the value of which would be affected by pending amendments to the
bill. Chapman, a member of a firm of stock brokers dealing in the stock of the
American Sugar Refining Company, appeared before the committee in response
to a subpoena and asked, among others, the following questions:
 Had the firm, during the month of March, 1894, bought or sold any stock
or securities, known as sugar stocks, for or in the interest, directly or
indirectly, of any United Senate senator?

Was the said firm at that time carrying any sugar stock for the benefit of,
or in the interest, directly or indirectly, of any United Senate senator?

He refused to answer the questions and was prosecuted under an Act of

Congress for contempt of the Senate. Upon being convicted and sent to jail he
petitioned the Supreme Court of the United States for a writ of habeas corpus.
One of the questions decided by the Supreme Court of the United States in that
case was whether the committee had the right to compel the witness to answer
said questions, and the Court held that the committee did have such right,
saying:

The questions were undoubtedly pertinent to the subject-matter of the

inquiry. The resolution directed the committee to inquire whether any
senator has been, or is, speculating in what are known as sugar stocks
during the consideration of the tariff bill now before the Senate." What the
Senate might or might not do upon the facts when ascertained, we cannot
say, nor are we called upon to inquire whether such ventures might be
defensible, as contended in argument, but is plain that negative answers
would have cleared that body of what the Senate regarded as offensive
imputations, while affirmative answers might have led to further action on
the part of the Senate within its constitutional powers. (Emphasis
supplied.)

It may be contended that the determination of the parties responsible for the
deal is incumbent upon the judicial rather than upon the legislative branch. But
we think there is no basis in fact or in law for such assumption. The petitioner
has not challenged the validity of Senate Resolution No. 8, and that resolution
expressly requires the committee to determine the parties responsible for the
deal. We are bound to presume that the Senate has acted in the due
performance of its constitutional function in instituting the inquiry, if the act is
capable of being so construed. On the other hand, there is no suggestion that the
judiciary has instituted an inquiry to determine the parties responsible for the
deal. Under the circumstances of the case, it appearing that the questioned
transaction was affected by the head of the Department of Justice himself, it is
not reasonable to expect that the Fiscal or the Court of First Instance of Manila
will take the initiative to investigate and prosecute the parties responsible for the
deal until and unless the Senate shall determined those parties are and shall
taken such measures as may be within its competence to take the redress the
wrong that may have been committed against the people as a result of the
transaction. As we have said, the transaction involved no less than P5,000,000 of
public funds. That certainly is a matter of a public concern which it is the duty of
the constitutional guardian of the treasury to investigate.
If the subject of investigation before the committee is within the range of
legitimate legislative inquiry and the proposed testimony of the witness called
relates to that subject, obedience, to its process may be enforced by the
committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40
Ann. Cas. [1916 B.], 1115.)

The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by
the petitioner, is not applicable here. In that case the inquiry instituted by the
House of Representatives of the United States related to a private real-estate
pool or partnership in the District of Columbia. Jay Cook and Company had had
an interest in the pool but become bankrupts, and their estate was in course of
administration in a federal bankruptcy court in Pennsylvania. The United States
was one of their creditors. The trustee in the bankruptcy proceeding had effected
a settlement of the bankrupts' interest in the pool, and of course his action was
subject to examination and approval or disapproval by the bankruptcy court.
Some of the creditors, including the United States, were dissatisfied with the
settlement. The resolution of the House directed the Committee "to inquire into
the nature and history of said real-estate pool and the character of said
settlement, with the amount of property involve, in which Jay Cooke and Co. were
interested, and the amount paid or to be paid in said settlement, with power to
send for persons and papers, and report to this House." The Supreme Court of
the United States, speaking thru Mr. Justice Miller, pointed out that the resolution
contained no suggestion of contemplated legislation; that the matter was one in
respect of which no valid legislation could be had; that the bankrupts' estate and
the trustee's settlement were still pending in the bankruptcy court; and that the
United States and other creditors were free to press their claims in that
proceeding. And on these grounds the court held that in undertaking the
investigation "the House of Representatives not only exceeded the limit of its
own authority, but assumed a power which could only be properly exercised by
another branch of the government, because the power was in its nature clearly
judicial." The principles announced and applied in that case are: that neither
House of Congress possesses a "general power of making inquiry into the private
affairs of the citizen"; that the power actually possessed is limited to inquires
relating to matters of which the particular House has jurisdiction, and in respect
of which it rightfully may take other action; that if the inquiry relates to a matter
wherein relief or redress could be had only by judicial proceeding, it is not within
the range of this power , but must be left to the court, conformably to the
constitutional separation of government powers.

That case differs from the present case in two important respects: (1) There the
court found that the subject of the inquiry, which related to a private real-estate
pool or partnership, was not within the jurisdiction of either House of Congress;
while here if it is not disputed that the subject of the inquiry, which relates to a
transaction involving a questionable expenditure by the Government of
P5,000,000 of public funds, is within the jurisdiction of the Senate, (2) There the
claim of the Government as a creditor of Jay Cooke and Company, which had had
an interest in the pool, was pending adjudication by the court; while here the
interposition of the judicial power on the subject of the inquiry cannot be
expected, as we have pointed out above, until after the Senate shall have
determined who the parties responsible are and shall have taken such measures
as may be within its competence to take to redress the wrong that may have
been committed against the people as a result of the transaction.

It is interesting to note that the decision in the case of Killbourn vs. Thompson
has evoked strong criticisms from legal scholars. (See Potts, Power of Legislative
Bodies to Punish for Contempt [1926], 74 U. Pa. L. Rev., 692-699; James L. Land
is, Constitutional Limitations on the Congressional Power of Investigation [1926],
40 Harvard L. Rev., 153, 154, 214-220.) We quoted the following from Professor
Land is' criticism: "Mr. Justice Miller saw the case purely as an attempt by the
House to secure to the Government certain priority rights as creditor of the
bankrupt concern. To him it assumed the character of a lawsuit between the
Government and Jay Cooke and Co., with the Government, acting through the
House, attempting to override the orderliness of established procedure and
thereby prefer a creditors' bill not before the courts but before Congress. That
bankruptcy proceedings had already been instituted against Jay Cooke and Co.,
in a federal court gave added impetus to such a conception. The House was
seeking to oust a court of prior acquired jurisdiction by an extraordinary and
unwarranted assumption of "judicial power"! The broader aspect of the
investigation had not been disclosed to the Court. That Jay Cooke and Co.'s
indebtedness and the particular funds in question were only part of the great
administrative problem connected with the use and disposition of public monies,
that the particular failure was of consequence mainly in relation to the security
demanded for all government deposits, that the facts connected with one such
default revealed the possibility of other and greater maladministration, such
considerations had not been put before the Court. Nor had it been acquainted
with the every-day nature of the particular investigation and the powers there
exerted by the House, powers whose exercise was customary and familiar in
legislative practice. Instead of assuming the character of an extraordinary
judicial proceeding, the inquiry, place in its proper background, should have been
regarded as a normal and customary part of the legislative process. Detailed
definiteness of legislative purpose was thus made the demand of the court in
Killbourn vs. Thompson. But investigators cannot foretell the results that may be
achieved. The power of Congress to exercise control over a real-estate pool is not
a matter for abstract speculation but one to be determined only after an
exhaustive examination of the problem. Relationship, and not their possibilities,
determine the extent of congressional power. Constitutionality depends upon
such disclosures. Their presence, whether determinative of legislative or judicial
power, cannot be relegated to guesswork. Neither Congress nor the Court can
predict, prior to the event, the result of the investigation."

The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S.,
521; 61. ed., 881. The question there was whether the House of Representatives
exceeded its power in punishing, as for contempt of its authority, the District
Attorney of the Southern District of New York, who had written, published, and
sent to the chairman of one of its committees an ill-tempered and irritating letter
respecting the action and purposes of the committee in interfering with the
investigation by the grand jury of alleged illegal activities of a member of the
House of Representatives. Power to make inquires and obtain evidence by
compulsory process was not involved. The court recognized distinctly that the
House of Representatives had implied power to punish a person not a member
for contempt, but held that its action in this instance was without constitutional
justification. The decision was put on the ground that the letter, while offensive
and vexatious, was not calculated or likely to affect the House in any of its
proceedings or in the exercise of any of its functions. This brief statement of the
facts and the issues decided in that case is sufficient to show the inapplicability
thereof to the present case. There the contempt involved consisted in the district
attorney's writing to the chairman of the committee an offensive and vexatious
letter, while here the contempt involved consists in the refusal of the witness to
answer questions pertinent to the subject of an inquiry which the Senate has the
power and jurisdiction to make . But in that case, it was recognized that the
House of Representatives has implied power to punish a person not a member of
contempt. In that respect the case is applicable here in favor of the Senate's
(and not of the Petitioner's ) contention.

Second. It is next contended for the petitioner that the Senate lacks authority to
commit him for contempt for a term beyond its period of legislative session,
which ended on May 18, 1950. This contention is based on the opinion of Mr.
Justice Malcolm, concurred in by Justices Street and Villa-Real, in the case
of Lopez vs. De los Reyes (1930), 55 Phil., 170. In that case it appears that on
October 23, 1929, Candido Lopez assaulted a member of the House of
Representatives while the latter was going to the hall of the House of
Representatives to attend the session which was then about to begin, as a result
of which assault said representative was unable to attend the sessions on that
day and those of the two days next following by reason of the threats which
Candido Lopez made against him. By the resolution of the House adopted
November 6, 1929, Lopez was declared guilty of contempt of the House of
Representatives and ordered punished by confinement in Bilibid Prison for a
period of twenty-four hours. That resolution was not complied with because the
session of the House of Representatives adjourned at midnight on November 8,
1929, and was reiterated at the next session on September 16, 1930. Lopez was
subsequently arrested, whereupon he applied for the writ of habeas corpus in the
Court of First Instance of Manila, which denied the application. Upon appeal to
the Supreme Court, six justices voted to grant the writ: Justice Malcolm, Street,
and Villa-real, on the ground that the term of imprisonment meted out to the
petitioner could not legally be extended beyond the session of the body in which
the contempt occurred; and Justices Johns, Villamor, and Ostrand, on the ground
that the Philippine Legislature had no power to punish for contempt because it
was a creature merely of an Act of the Congress of the United States and not of a
Constitution adopted by the people. Chief Justice Avancea, Justice Johnson, and
Justice Romualdez wrote separate opinions, concurring with Justice Malcolm,
Street, and Villa-Real, that the Legislature had inherent power to punish for
contempt but dissenting from the opinion that the order of commitment could
only be executed during the particular session in which the act of contempt was
committed.

Thus, on the question under consideration, the Court was equally divided and no
decisive pronouncement was made. The opinion of Mr. Justice Malcolm is based
mainly on the following passage in the case of Anderson vs. Dunn, supra:

And although the legislative power continues perpetual, the legislative

body ceases to exist on the moment of its adjournment or periodical
dissolution. It follows that imprisonment must terminate with that
adjournment.

as well as on the following quotation from Marshall vs. Gordon, supra:

And the essential nature of the power also makes clear the cogency and
application of the two limitations which were expressly pointed out in
Anderson vs. Dunn, supra, that is, that the power even when applied to
subjects which justified its exercise is limited to imprisonment and such
imprisonment may not be extended beyond the session of the body in
which the contempt occurred.

Interpreting the above quotations, Chief Justice Avancea held:

From this doctrine it follows, in my judgement, that the imposition of the

penalty is limited to the existence of the legislative body, which ceases to
function upon its final periodical dissolution. The doctrine refers to its
existence and not to any particular session thereof. This must be so,
inasmuch as the basis of the power to impose such penalty is the right
which the Legislature has to self-preservation, and which right is
enforceable during the existence of the legislative body. Many causes
might be conceived to constitute contempt to the Legislature, which would
continue to be a menace to its preservation during the existence of the
legislative body against which contempt was committed.

If the basis of the power of the legislature to punish for contempt exists
while the legislative body exercising it is in session, then that power and
the exercise thereof must perforce continue until the final adjournment
and the election of its successor.

Mr. Justice Johnson's more elaborate opinion, supported by quotations from

Cooley's Constitutional Limitations and from Jefferson's Manual, is to the same
effect. Mr. Justice Romualdez said: "In my opinion, where as in the case before
us, the members composing the legislative body against which the contempt was
committed have not yet completed their three-year term, the House may take
action against the petitioner herein."
We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon
relied upon by Justice Malcolm are obiter dicta. Anderson vs. Dunn was an action
of trespass against the Sergeant-at-Arms of the House of Representatives of the
United States for assault and battery and false imprisonment. The plaintiff had
been arrested for contempt of the House, brought before the bar of the House,
and reprimanded by the Speaker, and then discharged from custody. The
question as to the duration of the penalty was not involved in that case. The
question there was "whether the House of Representatives can take cognizance
of contempt committed against themselves, under any circumstances." The
court there held that the House of Representatives had the power to punish for
contempt, and affirmed the judgment of the lower court in favor of the
defendant. In Marshall vs. Gordon, the question presented was whether the
House had the power under the Constitution to deal with the conduct of the
district attorney in writing a vexatious letter as a contempt of its authority, and
to inflict punishment upon the writer for such contempt as a matter of legislative
power. The court held that the House had no such power because the writing of
the letter did not obstruct the performance of legislative duty and did not
endanger the preservation of the power of the House to carry out its legislative
authority. Upon that ground alone, and not because the House had adjourned,
the court ordered the discharge of the petitioner from custody.

The case where the question was squarely decided is

McGrain vs. Daugherty, supra. There it appears that the Senate had adopted a
resolution authorizing and directing a select committee of five senators to
investigate various charges of misfeasance and nonfeasance in the Department
of Justice after Attorney General Harry M. Daugherty became its supervising
head. In the course of the investigation the committee caused to be served on
Mally S. Daugherty, brother of Harry M. Daugherty and president of the Midland
National Bank of Washington Court House, Ohio, a subpoena commanding him to
appear before it for the purpose of giving testimony relating to the subject under
consideration. The witness failed to appear without offering any excuse for his
failure. The committee reported the matter to the Senate and the latter adopted
a resolution, "That the President of the Senate pro tempore issue his warrant
commanding the Sergeant-at-Arms or his deputy to take into custody the body of
the said M.S. Daugherty wherever found, and to bring the said M.S. Daugherty
before the bar of the Senate, then and there to answer such questions pertinent
to the matter under inquiry as the Senate may order the President of the Senate
pro tempore to propound; and to keep the said M.S. Daugherty in custody to
await the further order of the Senate." Upon being arrested, the witness
petitioned the federal court in Cincinnati for a writ of habeas corpus. The federal
court granted the writ and discharged the witness on the ground that the Senate,
in directing the investigation and in ordering the arrest, exceeded its power
under the Constitution. Upon appeal to the Supreme Court of the United States,
one of the contentions of the witness was that the case ha become moot
because the investigation was ordered and the committee was appointed during
the Sixty-eighth Congress, which expired on March 4, 1926. In overruling the
contention, the court said:
. . . The resolution ordering the investigation in terms limited the
committee's authority to the period of the Sixty-eighth Congress; but this
apparently was changed by a later and amendatory resolution authorizing
the committee to sit at such times and places as it might deem advisable
or necessary. It is said in Jefferson's Manual: "Neither House can continue
any portion of itself in any parliamentary function beyond the end of the
session without the consent of the other two branches. When done, it is by
a bill constituting them commissioners for the particular purpose." But the
context shows that the reference is to the two houses of Parliament when
adjourned by prorogation or dissolution by the King. The rule may be the
same with the House of Representatives whose members are all elected
for the period of a single Congress: but it cannot well be the same with the
Senate, which is a continuing body whose members are elected for a term
of six years and so divided into classes that the seats of one third only
become vacant at the end of each Congress, two thirds always continuing
into the next Congress, save as vacancies may occur through death or
resignation.

Mr. Hinds in his collection of precedents, says: "The Senate, as a

continuing body, may continue its committees through the recess
following the expiration of a Congress;" and, after quoting the above
statement from Jefferson's Manual, he says: "The Senate, however being a
continuing body, gives authority to its committees during the recess after
the expiration of a Congress." So far as we are advised the select
committee having this investigation in charge has neither made a final
report nor been discharged; nor has been continued by an affirmative
order. Apparently its activities have been suspended pending the decision
of this case. But, be this as it may, it is certain that the committee may be
continued or revived now by motion to that effect, and if, continued or
revived, will have all its original powers. This being so, and the Senate
being a continuing body, the case cannot be said to have become moot in
the ordinary sense. The situation is measurably like that in Southern P.
Terminal Co. vs. Interstate Commerce Commission, 219 U. S., 498, 514-
516; 55 L. ed., 310, 315, 316; 31 Sup. Ct. Rep., 279, where it was held that
a suit to enjoin the enforcement of an order of the Interstate Commerce
Commission did not become moot through the expiration of the order
where it was capable of repetition by the Commission and was a matter of
public interest. Our judgment may yet be carried into effect and the
investigation proceeded with from the point at which it apparently was
interrupted by reason of the habeas corpus proceedings. In these
circumstances we think a judgment should be rendered as was done in the
case cited.

What has been said requires that the final order in the District Court
discharging the witness from custody be reversed.
Like the Senate of the United States , the Senate of the Philippines is a
continuing body whose members are elected for a term of six years and so
divided that the seats of only one-third become vacant every two years, two-
thirds always continuing into the next Congress save as vacancies may occur
thru death or resignation. Members of the House of Representatives are all
elected for a term of four years; so that the term of every Congress is four years.
The Second Congress of the Philippines was constituted on December 30, 1949,
and will expire on December 30, 1953. The resolution of the Senate committing
the Petitioner was adopted during the first session of the Second Congress, which
began on the fourth Monday of January and ended in May 18, 1950.

Had said resolution of commitment been adopted by the House of

Representatives, we think it could be enforced until the final adjournment of the
last session of the Second Congress in 1953. We find no sound reason to limit the
power of the legislative body to punish for contempt to the end of every session
and not to the end of the last session terminating the existence of that body. The
very reason for the exercise of the power to punish for contempt is to enable the
legislative body to perform its constitutional function without impediment or
obstruction. Legislative functions may be and in practice are performed during
recess by duly constituted committees charged with the duty of performing
investigations or conducting hearing relative to any proposed legislation. To deny
to such committees the power of inquiry with process to enforce it would be to
defeat the very purpose for which that the power is recognized in the legislative
body as an essential and appropriate auxiliary to is legislative function. It is but
logical to say that the power of self-preservation is coexistent with the life to be
preserved.

But the resolution of commitment here in question was adopted by the Senate,
which is a continuing body and which does not cease exist upon the periodical
dissolution of the Congress or of the House of Representatives. There is no limit
as to time to the Senate's power to punish for contempt in cases where that
power may constitutionally be exerted as in the present case.

Mere reflection upon the situation at hand convinces us of the soundness of this
proposition. The Senate has ordered an investigation of the Buenavista and
Tambobong estates deal, which we have found it is within its competence to
make. That investigation has not been completed because of the refusal of the
petitioner as a witness to answer certain questions pertinent to the subject of the
inquiry. The Senate has empowered the committee to continue the investigation
during the recess. By refusing to answer the questions, the witness has
obstructed the performance by the Senate of its legislative function, and the
Senate has the power to remove the obstruction by compelling the witness to
answer the questions thru restraint of his liberty until he shall have answered
them. That power subsists as long as the Senate, which is a continuing body,
persists in performing the particular legislative function involved. To hold that it
may punish the witness for contempt only during the session in which
investigation was begun, would be to recognize the right of the Senate to
perform its function but at the same time to deny to it an essential and
appropriate means for its performance. Aside from this, if we should hold that
the power to punish for contempt terminates upon the adjournment of the
session, the Senate would have to resume the investigation at the next and
succeeding sessions and repeat the contempt proceedings against the witness
until the investigation is completed-an absurd, unnecessary, and vexatious
procedure, which should be avoided.

As against the foregoing conclusion it is argued for the petitioner that the power
may be abusively and oppressively exerted by the Senate which might keep the
witness in prison for life. But we must assume that the Senate will not be
disposed to exert the power beyond its proper bounds. And if, contrary to this
assumption, proper limitations are disregarded, the portals of this Court are
always open to those whose rights might thus be transgressed.

Third. Lastly, the petitioner invokes the privilege against self-incrimination. He

contends that he would incriminate himself if he should reveal the name of the
person to whom he gave the P440,000 if that person be a public official be
(witness) might be accused of bribery, and if that person be a private individual
the latter might accuse him of oral defamation.

The ground upon which the witness' claim is based is too shaky, in firm, and
slippery to afford him safety. At first he told the Committee that the transactions
were legal, that no laws were violated, and that all requisites had been replied
with; but at the time he begged to be excused from making answers "which
might later be used against me." A little later he explained that although the
transactions were legal he refused to answer questions concerning them
"because it violates the right of a citizen to privacy in his dealings with other
people . . . I simply stand on my privilege to dispose of the money that has been
paid to me as a result of a legal transaction without having to account for the use
of it." But after being apparently convinced by the Committee that his position
was untenable, the witness testified that, without securing any receipt, he turned
over the P440,000 to a certain person, a representative of Burt, in compliance
with Burt's verbal instruction made in 1946; that as far as he know, that certain
person had nothing to do with the negotiations for the settlement of the
Buenavista and Tambobong cases; that he had seen that person several times
before he gave him the P440,000 on October 29, 1949, and that since then he
had seen him again two or three times, the last time being in December, 1949, in
Manila; that the person was a male, 39 to 40 years of age, between 5 feet, 2
inches and 5 feet, 6 inches in height. Butt the witness would not reveal the name
of that person on these pretexts: " I don't remember the name; he was a
representative of Burt." "I am not sure; I don't remember the name."

We are satisfied that those answers of the witness to the important question,
what is the name of that person to whom you gave the P440,000? were
obviously false. His insistent claim before the bar of the Senate that if he should
reveal the name he would incriminate himself, necessarily implied that he knew
the name. Moreover, it is unbelievable that he gave the P440,000 to a person to
him unknown.

"Testimony which is obviously false or evasive is equivalent to a refusal to testify

and is punishable as contempt, assuming that a refusal to testify would be so
punishable." (12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In the case of
Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was called to testify before
a grand jury engaged in investigating a charge of gambling against six other
men. After stating that he was sitting at a table with said men when they were
arrested, he refused to answer two questions, claiming so to do might tend to
incriminate him: (1) "Was there a game of cards being played on this particular
evening at the table at which you are sitting?" (2) "Was there a game of cards
being played at another table at this time?" The foreman of the grand jury
reported the matter to the judge, who ruled "that each and all of said questions
are proper and that the answers thereto would not tend to incriminate the
witness." Mason was again called and refused to answer the first question
propounded to him, but, half yielding to frustration, he said in response to the
second question: "I don't know." In affirming the conviction for contempt, the
Supreme Court of the United States among other things said:

In the present case, the witness certainly were not relieved from
answering merely because they declared that so to do might incriminate
them. The wisdom of the rule in this regard is well illustrated by the
enforced answer, "I don't know ," given by Mason to the second question,
after he had refused to reply under a claim of constitutional privilege.

Since according to the witness himself the transaction was legal, and that he
gave the P440,000 to a representative of Burt in compliance with the latter's
verbal instruction, we find no basis upon which to sustain his claim that to reveal
the name of that person might incriminate him. There is no conflict of authorities
on the applicable rule, to wit:

Generally, the question whether testimony is privileged is for the

determination of the Court. At least, it is not enough for the witness to say
that the answer will incriminate him. as he is not the sole judge of his
liability. The danger of self-incrimination must appear reasonable and real
to the court, from all the circumstances, and from the whole case, as well
as from his general conception of the relations of the witness. Upon the
facts thus developed, it is the province of the court to determine whether
a direct answer to a question may criminate or not. . . . The fact that the
testimony of a witness may tend to show that he has violated the law is
not sufficient to entitle him to claim the protection of the constitutional
provision against self-incrimination, unless he is at the same time liable to
prosecution and punishment for such violation. The witness cannot assert
his privilege by reason of some fanciful excuse, for protection against an
imaginary danger, or to secure immunity to a third person. ( 3
Wharton's Criminal Evidence, 11th ed., secs. 1135,1136.)
 It is the province of the trial judge to determine from all the facts and
circumstances of the case whether the witness is justified in refusing to
answer. (People vs. Gonzo, 23 N.E. [2d], 210 [Ill. App., 1939].) A witness is
not relieved from answering merely on his own declaration that an answer
might incriminate him, but rather it is for the trial judge to decide that
question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.)

As against witness's inconsistent and unjustified claim to a constitutional right, is

his clear duty as a citizen to give frank, sincere, and truthful testimony before a
competent authority. The state has the right to exact fulfillment of a citizen's
obligation, consistent of course with his right under the Constitution. The witness
in this case has been vociferous and militant in claiming constitutional rights and
privileges but patently recreant to his duties and obligations to the Government
which protects those rights under the law. When a specific right and a specific
obligation conflict with each other, and one is doubtful or uncertain while the
other is clear and imperative, the former must give way to the latter. The right to
life is one of the most sacred that the citizen may claim, and yet the state may
deprive him of it if he violates his corresponding obligation to respect the life of
others. As Mr. Justice Johnson said in Anderson vs. Dunn: "The wretch beneath
the gallows may repine at the fate which awaits him, and yet it is not certain that
the laws under which he suffers were made for the security." Paraphrasing and
applying that pronouncement here, the petitioner may not relish the restraint of
his liberty pending the fulfillment by him of his duty, but it is no less certain that
the laws under which his liberty is restrained were made for his welfare.

From all the foregoing, it follows that the petition must be denied, and it is so
ordered, with costs.

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in

his capacity as Senate President, JUAN M. FLAVIER, in his capacity as
Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity
as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as
Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S.
CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO
ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M.
LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH
G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-
ego of President Gloria Macapagal-Arroyo, and anyone acting in his
stead and in behalf of the President of the Philippines, Respondents.

x-------------------------x

G.R. No. 169659 April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA
MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE
represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF
LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego
of President Gloria Macapagal-Arroyo, Respondent.

x-------------------------x

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J.
CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S.
SENGA, in his capacity as AFP Chief of Staff, Respondents.

x-------------------------x

G.R. No. 169667 April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary, Respondent.

x-------------------------x

G.R. No. 169834 April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

x-------------------------x

G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA,

JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III,
MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE
PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
 DECISION

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state.

Even in the early history of republican thought, however, it has been recognized
that the head of government may keep certain information confidential in pursuit
of the public interest. Explaining the reason for vesting executive power in only
one magistrate, a distinguished delegate to the U.S. Constitutional Convention
said: "Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings
of any greater number; and in proportion as the number is increased, these
qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the
President has abused such power by issuing Executive Order No. 464 (E.O. 464)
last September 28, 2005. They thus pray for its declaration as null and void for
being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come from a co-equal branch of government,
which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is duty-
bound to declare it so. For the Constitution, being the highest expression of the
sovereign will of the Filipino people, must prevail over any issuance of the
government that contravenes its mandates.

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).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued

invitations to various officials of the Executive Department for them to appear on
September 29, 2005 as resource speakers in a public hearing on the railway
project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project). The public
hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged overpricing and other unlawful provisions of
the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon;
Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of
Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V.
Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander
F. Balutan, for them to attend as resource persons in a public hearing scheduled
on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino
Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking
Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the
Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E.
Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping
Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on
August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No.
285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the
Committee on National Defense and Security to Conduct an Inquiry, in Aid of
Legislation, and in the National Interest, on the Role of the Military in the So-
called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator
Biazon Resolution Directing the Committee on National Defense and Security to
Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of
the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the
AFP Chief of Staff, General Generoso S. Senga who, by letter 3 dated September
27, 2005, requested for its postponement "due to a pressing operational
situation that demands [his utmost personal attention" while "some of the
invited AFP officers are currently attending to other urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from

Executive Secretary Eduardo R. Ermita a letter 4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited" 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 President Drilon, however, wrote 5 Executive Secretary Ermita that the
Senators "are unable to accede to [his request]" as it "was sent belatedly" and
"[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week."

Senate President Drilon likewise received on September 28, 2005 a letter 6 from
the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.

On September 28, 2005, the President issued E.O. 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,"7 which, pursuant to Section 6 thereof, took effect immediately. The
salient provisions of the Order are as follows:

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:

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);

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).

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);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);

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:

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.

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. (Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter 8 informing him "that
officials of the Executive Department invited to appear at the meeting [regarding
the NorthRail project] will not be able to attend the same without the consent of
the President, pursuant to [E.O. 464]" and that "said officials have not secured
the required consent from the President." On even date which was also the
scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a
letter9 to Senator Biazon, Chairperson of the Committee on National Defense and
Security, informing him "that per instruction of [President Arroyo], thru the
Secretary of National Defense, no officer of the [AFP] is authorized to appear
before any Senate or Congressional hearings without seeking a written approval
from the President" and "that no approval has been granted by the President to
any AFP officer to appear before the public hearing of the Senate Committee on
National Defense and Security scheduled [on] 28 September 2005."

Despite the communications received from Executive Secretary Ermita and Gen.
Senga, the investigation scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all
the AFP officials invited 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.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive

Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the
invitations sent to the following government officials: Light Railway Transit
Authority Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State
Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez,
Department of Transportation and Communication (DOTC) Undersecretary
Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National
Railways General Manager Jose Serase II, Monetary Board Member Juanita
Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal
regrets likewise citing E.O. 464.11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and
169667, for certiorari and prohibition, were filed before this Court challenging the
constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives

Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador
and Teodoro Casino, Courage, an organization of government employees, and
Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to
the promotion of justice, democracy and peace, all claiming to have standing to
file the suit because of the transcendental importance of the issues they posed,
pray, in their petition that E.O. 464 be declared null and void for being
unconstitutional; that respondent Executive Secretary Ermita, in his capacity as
Executive Secretary and alter-ego of President Arroyo, be prohibited from
imposing, and threatening to impose sanctions on officials who appear before
Congress due to congressional summons. Additionally, petitioners claim that E.O.
464 infringes on their rights and impedes them from fulfilling their respective
obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a
political party entitled to participate in governance; Satur Ocampo, et al. allege
that E.O. 464 infringes on their rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the
implementation of laws; Courage alleges that the tenure of its members in public
office is predicated on, and threatened by, their submission to the requirements
of E.O. 464 should they be summoned by Congress; and CODAL alleges that its
members have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the imposition of
E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional
rights as a citizen, taxpayer and law practitioner, are affected by the
enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and
void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG), alleging that
as a coalition of 17 legal resource non-governmental organizations engaged in
developmental lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens of the Philippines
and a part of the general public, it has legal standing to institute the petition to
enforce its constitutional right to information on matters of public concern, a
right which was denied to the public by E.O. 464, 13 prays, that said order be
declared null and void for being unconstitutional and that respondent Executive
Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a
vital interest in the resolution of the issue of the validity of E.O. 464 for it stands
to suffer imminent and material injury, as it has already sustained the same with
its continued enforcement since it directly interferes with and impedes the valid
exercise of the Senates powers and functions and conceals information of great
public interest and concern, filed its petition for certiorari and prohibition,
docketed as G.R. No. 169777 and prays that E.O. 464 be declared
unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly
elected into the Philippine Senate and House of Representatives, filed a similar
petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that
it is affected by the challenged E.O. 464 because it hampers its legislative
agenda to be implemented through its members in Congress, particularly in the
conduct of inquiries in aid of legislation and transcendental issues need to be
resolved to avert a constitutional crisis between the executive and legislative
branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his

invitation to Gen. Senga for him and other military officers to attend the hearing
on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied,
however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order
No. 464, th[e] Headquarters requested for a clearance from the President to
allow [them] to appear before the public hearing" and that "they will attend once
[their] request is approved by the President." As none of those invited appeared,
the hearing on February 10, 2006 was cancelled. 16

In another investigation conducted jointly by the Senate Committee on

Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang Masaganang
Ani program of the Department of Agriculture (DA), several Cabinet officials were
invited to the hearings scheduled on October 5 and 26, November 24 and
December 12, 2005 but most of them failed to attend, DA Undersecretary
Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and
Pesticide Authority Executive Director Norlito R. Gicana, 17 and those from the
Department of Budget and Management 18 having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye, 19 DOJ Secretary Raul
M. Gonzalez20 and Department of Interior and Local Government Undersecretary
Marius P. Corpus21 communicated their inability to attend due to lack of
appropriate clearance from the President pursuant to E.O. 464. During the
February 13, 2005 budget hearing, however, Secretary Bunye was allowed to
attend by Executive Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the
Board of Governors of the Integrated Bar of the Philippines, as taxpayers, and
the Integrated Bar of the Philippines as the official organization of all Philippine
lawyers, all invoking their constitutional right to be informed on matters of public
interest, filed their petition for certiorari and prohibition, docketed as G.R. No.
171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining
respondents from implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were ventilated: (1) whether respondents committed
grave abuse of discretion in implementing E.O. 464 prior to its publication in the
Official Gazette or in a newspaper of general circulation; and (2) whether E.O.
464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III,
Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec.
1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case
or controversy that calls for judicial review was not taken up; instead, the parties
were instructed to discuss it in their respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit
their respective memoranda, paying particular attention to the following
propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming
that it is not, it is unconstitutional as applied in four instances, namely: (a) the so
called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity
of the ISAFP; and (d) the investigation on the Venable contract. 22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on
March 7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed
theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not
file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension
to file memorandum27 was granted, subsequently filed a manifestation 28 dated
March 14, 2006 that it would no longer file its memorandum in the interest of
having the issues resolved soonest, prompting this Court to issue a Resolution
reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

36
Art. XIII, Sec. 16

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions
for lack of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on

matters of public concern; and

3. Whether respondents have committed grave abuse of discretion when

they implemented E.O. 464 prior to its publication in a newspaper of
general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464,

ascertainment of whether the requisites for a valid exercise of the Courts power
of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review
is subject to limitations, to wit: (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 at the earliest opportunity; and (4)
the issue of constitutionality must be the very lis mota of the case. 39

Except with respect to the requisites of standing and existence of an actual case
or controversy where the disagreement between the parties lies, discussion of
the rest of the requisites shall be omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R.
Nos. 169659, 169660 and 169667 make it clear that they, adverting to the non-
appearance of several officials of the executive department in the investigations
called by the different committees of the Senate, were brought to vindicate the
constitutional duty of the Senate or its different committees to conduct inquiry in
aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power,
and privilege of the House of Representatives which had been effectively
impaired by E.O. 464, there being no mention of any investigation called by the
House of Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.

As for Bayan Munas alleged interest as a party-list representing the marginalized

and underrepresented, and that of the other petitioner groups and individuals
who profess to have standing as advocates and defenders of the Constitution,
respondents contend that such interest falls short of that required to confer
standing on them as parties "injured-in-fact." 40

Respecting petitioner Chavez, respondents contend that Chavez may not claim
an interest as a taxpayer for the implementation of E.O. 464 does not involve the
exercise of taxing or spending power.41

With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464, the
Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.

Invoking this Courts ruling in National Economic Protectionism Association v.

Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office, 43 respondents
assert that to be considered a proper party, one must have a personal and
substantial interest in the case, such that he has sustained or will sustain direct
injury due to the enforcement of E.O. 464.44

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 legislation45 is not disputed. E.O. 464, however, allegedly stifles the
ability of the members of Congress to access information that is crucial to law-
making.46 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 E.O. 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. 47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro
Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis),
Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to
question the constitutionality of E.O. 464, the absence of any claim that an
investigation called by the House of Representatives or any of its committees
was aborted due to the implementation of E.O. 464 notwithstanding, it being
sufficient that a claim is made that E.O. 464 infringes on their constitutional
rights and duties as members of Congress to conduct investigation in aid of
legislation and conduct oversight functions in the implementation of laws.

The national political party, Bayan Muna, likewise meets the standing
requirement as it obtained three seats in the House of Representatives in the
2004 elections and is, therefore, entitled to participate in the legislative process
consonant with the declared policy underlying the party list system of affording
citizens belonging to marginalized and underrepresented sectors, organizations
and parties who lack well-defined political constituencies to contribute to the
formulation and enactment of legislation that will benefit the nation. 48

As Bayan Muna and Representatives Ocampo et al. have the standing to file their
petitions, passing on the standing of their co-petitioners Courage and Codal is
rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an

organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members, 50 invoke their
constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights 51 and to the maintenance of the
balance of power among the three branches of the government through the
principle of checks and balances. 52

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 Franciso v. House of
Representatives,53 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.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in

view of the transcendental issues raised in its petition which this Court needs to
resolve in order to avert a constitutional crisis. For it to be accorded standing on
the ground of transcendental importance, however, it must 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.54 The first and last determinants not being
present as no public funds or assets are involved and petitioners in G.R. Nos.
169777 and 169659 have direct and specific interests in the resolution of the
controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its
allegation that E.O. 464 hampers its legislative agenda is vague and uncertain,
and at best is only a "generalized interest" which it shares with the rest of the
political parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form
traditionally capable of judicial resolution. 55 In fine, PDP-Labans alleged interest
as a political party does not suffice to clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance of E.O.
464, particularly those on the NorthRail project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no

showing that President Arroyo has actually withheld her consent or prohibited the
appearance of the invited officials. 56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the
President, not that the President prohibited their attendance. 57 Specifically with
regard to the AFP officers who did not attend the hearing on September 28,
2005, respondents claim that the instruction not to attend without the
Presidents consent was based on its role as Commander-in-Chief of the Armed
Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded

apprehension that the President will abuse its power of preventing the
appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.

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 E.O. 464 is
concerned. For E.O. 464 does not require either a deliberate 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 E.O.
464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before
Congress, deprives Congress of the information in the possession of these
officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI

of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected. (Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973

Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein the Batasang Pambansa and its
committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault
v. Nazareno,58 a case decided in 1950 under that Constitution, the Court already
recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of

the Buenavista and Tambobong Estates by the Rural Progress Administration.
Arnault, who was considered a leading witness in the controversy, was called to
testify thereon by the Senate. On account of his refusal to answer the questions
of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senates power to punish Arnault for
contempt, this Court held:

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. Experience
has shown that mere requests for such information are often unavailing, and also
that information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed. 59 . . . (Emphasis
and underscoring supplied)

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, the Court
therein ruled, is co-extensive with the power to legislate. 60 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.

Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of inquiry.
Besides being related to the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, "also involved government agencies
created by Congress and officers whose positions it is within the power of
Congress to regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar with and informed on
executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is

grounded on the necessity of 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.

As evidenced by the American experience during the so-called "McCarthy era,"

however, 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
Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 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 as occurred
in Bengzon 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 invitations, 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.

Section 21, Article 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. Section 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.

These abuses are, of course, remediable before the courts, upon the proper suit
filed by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances, none appearing to obtain
at present, wherein a clear pattern of abuse of the legislative power of inquiry
might be established, resulting in palpable violations of the rights guaranteed to
members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to
forestall these abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of
"executive privilege." Since this term figures prominently in the challenged order,
it being mentioned in its provisions, its preambular clauses, 62 and in its very title,
a discussion of executive privilege is crucial for determining the constitutionality
of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the 1986 Constitution. 63 Being of American
origin, it is best understood in light of how it has been defined and used in the
legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to

withhold information from the public, the courts, and the Congress." 64 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."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has

encompassed claims of varying kinds.67 Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege," it may be more accurate
to speak of executive privileges "since presidential refusals to furnish information
may be actuated by any of at least three distinct kinds of considerations, and
may be asserted, with differing degrees of success, in the context of either
judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked
by U.S. Presidents, beginning with Washington, 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. 68

Tribes comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they felt
was crucial to fulfillment of the unique role and responsibilities of the executive
branch of our government. Courts ruled early that the executive had a right to
withhold documents that might reveal military or state secrets. The courts have
also granted the executive a right to withhold the identity of government
informers in some circumstances and a qualified right to withhold information
related to pending investigations. x x x" 69 (Emphasis and underscoring supplied)

The entry in Blacks Law Dictionary on "executive privilege" is similarly

instructive regarding the scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers,

exempts the executive from disclosure requirements applicable to the ordinary
citizen or organization where such exemption is necessary to the discharge of
highly important executive responsibilities involved in maintaining governmental
operations, and extends not only to military and diplomatic secrets but also to
documents integral to an appropriate exercise of the executive domestic
decisional and policy making functions, that is, those documents reflecting the
frank expression necessary in intra-governmental advisory and deliberative
communications.70 (Emphasis and underscoring supplied)

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.71

The leading case on executive privilege in the United States is U.S. v.

Nixon, 72 decided in 1974. In issue in that case was the validity of President
Nixons claim of executive privilege against a subpoena issued by a district court
requiring the production of certain tapes and documents relating to the
Watergate investigations. The claim of privilege was based on the Presidents
general interest in the confidentiality of his conversations and correspondence.
The U.S. Court held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based to the extent
that it relates to the effective discharge of a Presidents powers. The Court,
nonetheless, rejected the Presidents claim of privilege, ruling that the privilege
must be balanced against the public interest in the fair administration of criminal
justice. Notably, the Court was careful to clarify that it was not there addressing
the issue of claims of privilege in a civil litigation or against congressional
demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress
are rare.73 Despite frequent assertion of the privilege to deny information to
Congress, beginning with President Washingtons refusal to turn over treaty
negotiation records to the House of Representatives, the U.S. Supreme Court has
never adjudicated the issue.74 However, the U.S. Court of Appeals for the District
of Columbia Circuit, in a case decided earlier in the same year as Nixon,
recognized the Presidents privilege over his conversations against a
congressional subpoena.75 Anticipating the balancing approach adopted by the
U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest
protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the
Court declined to enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this

Court in Almonte v. Vasquez.77Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon decision
which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so
in a way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution x x x "
(Emphasis and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against

the therein petitioners. It did not involve, as expressly stated in the decision, the
right of the people to information.78 Nonetheless, the Court recognized that there
are certain types of information which the government may withhold from the
public, thus acknowledging, in substance if not in name, that executive privilege
may be claimed against citizens demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common
law holding that there is a "governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and other national security
matters."80 The same case held that closed-door Cabinet meetings are also a
recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority, 81 the Court ruled that the right to
information does not extend to matters recognized as "privileged information
under the separation of powers,"82 by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet
meetings. It also held that information on military and diplomatic secrets and
those affecting national security, and information on investigations of crimes by
law enforcement agencies before the prosecution of the accused were exempted
from the right to information.

From the above discussion on the meaning and scope of executive privilege, both
in the United States and in this jurisdiction, a clear principle emerges. 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.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them
to secure the consent of the President prior to appearing before Congress. There
are significant differences between the two provisions, however, which constrain
this Court to discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3,

require a prior determination by any official whether they are covered by E.O.
464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on the department
heads possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no
reference to executive privilege at all. Rather, the required prior consent under
Section 1 is grounded 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.

Determining the validity of Section 1 thus requires an examination of the

meaning of Section 22 of Article VI. Section 22 which provides for the question
hour must be interpreted vis--vis Section 21 which provides for the power of
either House of Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional Commission shows,
the framers were aware that these two provisions involved distinct functions of
Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the

Question Hour] yesterday, I noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of Representatives or before the
Senate. I have a particular problem in this regard, Madam President, because in
our experience in the Regular Batasang Pambansa as the Gentleman himself
has experienced in the interim Batasang Pambansa one of the most competent
inputs that we can put in our committee deliberations, either in aid of legislation
or in congressional investigations, is the testimonies of Cabinet ministers. We
usually invite them, but if they do not come and it is a congressional
investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he

said that the fact that the Cabinet ministers may refuse to come to the House of
Representatives or the Senate [when requested under Section 22] does not
mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed
and their presence can be had under Section 21. Does the gentleman confirm
this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only
to what was originally the 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.83 (Emphasis and underscoring supplied)

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. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads discretionary in the
question hour.

So clearly was this distinction conveyed to the members of the Commission that
the Committee on Style, precisely in recognition of this distinction, later moved
the provision on question hour from its original position as Section 20 in the
original draft down to Section 31, far from the provision on inquiries in aid of
legislation. This gave rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on

Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I
request the chairperson of the Legislative Department, Commissioner Davide, to
give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|

avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the
Question Hour. I propose that instead of putting it as Section 31, it should follow
Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced

this but we reasoned that in Section 21, which is Legislative Inquiry, it is actually
a power of Congress in terms of its own lawmaking; whereas, a Question Hour is
not actually a power in terms of its own lawmaking power because in Legislative
Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I
hope Commissioner Davide will consider this.

MR. DAVIDE. 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.

MR. MAAMBONG. After conferring with the committee, we find merit in the
suggestion of Commissioner Davide. In other words, we are accepting that and
so this Section 31 would now become Section 22. Would it be, Commissioner
Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners

Davide and Maambong proceeded from the same assumption that these
provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question
hour. Commissioner Davides only concern was that the two provisions on these
distinct powers be placed closely together, they being complementary to each
other. Neither Commissioner considered them as identical functions of Congress.

The foregoing opinion was not the two Commissioners alone. From the above-
quoted exchange, Commissioner Maambongs committee the Committee on
Style shared the view that the two provisions reflected distinct functions of
Congress. Commissioner Davide, on the other hand, was speaking in his capacity
as Chairman of the Committee on the Legislative Department. His views may
thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has

a definite meaning. It is a period of confrontation initiated by Parliament to hold
the Prime Minister and the other ministers accountable for their acts and the
operation of the government,85 corresponding to what is known in Britain as the
question period. There was a specific provision for a question hour in the 1973
Constitution86 which made the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system established by that
Constitution, where the ministers are also members of the legislature and are
directly accountable to it.

An essential feature of the parliamentary system of government is the

immediate accountability of the Prime Minister and the Cabinet to the National
Assembly. They shall be responsible to the National Assembly for the program of
government and shall determine the guidelines of national policy. Unlike in the
presidential system where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain
in office only as long as they enjoy the confidence of the National Assembly. The
moment this confidence is lost the Prime Minister and the Cabinet may be
changed.87

The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to
conform more fully to a system of separation of powers. 88 To that extent, the
question hour, as it is presently understood in this jurisdiction, departs from the
question period of the parliamentary system. That department heads may not be
required to appear in a question hour does not, however, mean that the
legislature is rendered powerless to elicit information from them in all
circumstances. In fact, in light of the absence of a mandatory question period,
the need to enforce Congress right to executive information in the performance
of its legislative function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress has the right to obtain information from any
source even from officials of departments and agencies in the executive
branch. In the United States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that makes the
congressional right to obtain information from the executive so essential, if the
functions of the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport between the
legislative and executive branches in this country, comparable to those which
exist under a parliamentary system, and the nonexistence in the Congress of an
institution such as the British question period have perforce made reliance by the
Congress upon its right to obtain information from the executive essential, if it is
intelligently to perform its legislative tasks. Unless the Congress possesses the
right to obtain executive information, its power of oversight of administration in a
system such as ours becomes a power devoid of most of its practical content,
since it depends for its effectiveness solely upon information parceled out ex
gratia by the executive.89 (Emphasis and underscoring supplied)

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.

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. 90

In fine, 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.

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 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. This point is not in dispute, as even counsel for the Senate, Sen.
Joker Arroyo, admitted it during the oral argument upon interpellation of the
Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the

Constitution, the Court now proceeds to pass on the constitutionality of Section 1
of E.O. 464.

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.

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.

Validity of Sections 2 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. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated in the same
section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and
the National Security Adviser), are "covered by the executive privilege."

The enumeration also includes such other officers as may be determined by the
President. Given the title of Section 2 "Nature, Scope and Coverage of
Executive Privilege" , it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on a
similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers persons. Such is a misuse of the doctrine.
Executive privilege, as discussed above, is properly invoked in relation to specific
categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and
coverage of executive privilege, the reference to persons being "covered by the
executive privilege" may be read as an abbreviated way of saying that the
person is in possession of information which is, in the judgment of the head of
office concerned, privileged as defined in Section 2(a). The Court shall thus
proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that

an official is "covered by the executive privilege," such official is subjected to the
requirement that he first secure the consent of the President prior to appearing
before Congress. This requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President. The proviso allowing
the President to give its consent means nothing more than that the President
may reverse a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head

of office, authorized by the President under E.O. 464, or by the President herself,
that such official is in possession of information that is covered by executive
privilege. This determination then becomes the basis for the officials not
showing up in the legislative investigation.

In view thereof, 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. Such declaration, however, even without mentioning the
term "executive privilege," amounts to an implied claim that the information is
being withheld by the executive branch, by authority of the President, on the
basis of executive privilege. Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita
to Senate President Drilon illustrates the implied nature of the claim of privilege
authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole

regarding the Northrail Project of the North Luzon Railways Corporation on 29
September 2005 at 10:00 a.m., please be informed that officials of the Executive
Department invited to appear at the meeting will not be able to attend the same
without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "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". Said officials have not secured the
required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on
which these officials are being requested to be resource persons falls under the
recognized grounds of the privilege to justify their absence. Nor does it expressly
state that in view of the lack of consent from the President under E.O. 464, they
cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not.
The letter assumes that the invited officials are covered by E.O. 464. As
explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the President,
that the invited official possesses information that is covered by executive
privilege. Thus, although it is not stated in the letter that such determination has
been made, the same must be deemed implied. Respecting the statement that
the invited officials have not secured the consent of the President, it only means
that the President has not reversed the standing prohibition against their
appearance before Congress.

Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the
executive branch, either through the President or the heads of offices authorized
under E.O. 464, has made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has been no contrary
pronouncement from the President. In fine, an implied claim of privilege has
been made by the executive.

While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from Chavez
v. PEA that certain information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is

privileged information rooted in the separation of powers. The information does
not cover Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal-deliberations of the Supreme
Court and other collegiate courts, or executive sessions of either house of
Congress, are recognized as confidential. This kind of information cannot be
pried open by a co-equal branch of government. A frank exchange of exploratory
ideas and assessments, free from the glare of publicity and pressure by
interested parties, is essential to protect the independence of decision-making of
those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring supplied)
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.

While the validity of claims of privilege must be assessed on a case to case

basis, examining the ground invoked therefor and the particular circumstances
surrounding it, there is, in an implied claim of privilege, a defect that renders it
invalid per se. By its very nature, and as demonstrated by the letter of
respondent Executive Secretary quoted above, the implied claim authorized by
Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis
thereof (e.g., whether the information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the
types of information that are covered by the privilege under the challenged
order, Congress is left to speculate as to which among them is being referred to
by the executive. The enumeration is not even intended to be comprehensive,
but a mere statement of what is included in the phrase "confidential or classified
information between the President and the public officers covered by this
executive order."

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. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to be lightly invoked.
There must be a formal claim of privilege, lodged by the head of the department
which has control over the matter, after actual personal consideration by that
officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure
of the very thing the privilege is designed to protect. 92 (Underscoring supplied)

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.93 These, in substance, were the same criteria in assessing the claim of
privilege asserted against the Ombudsman in Almonte v. Vasquez 94 and, more in
point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting

from disclosure impossible, thereby preventing the Court from balancing such
harm against plaintiffs needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this
balancing operation. In stating its objection to claimants interrogatories,
government asserts, and nothing more, that the disclosures sought by claimant
would inhibit the free expression of opinion that non-disclosure is designed to
protect. The government has not shown nor even alleged that those who
evaluated claimants product were involved in internal policymaking, generally,
or in this particular instance. Privilege cannot be set up by an unsupported claim.
The facts upon which the privilege is based must be established. To find these
interrogatories objectionable, this Court would have to assume that the
evaluation and classification of claimants products was a matter of internal
policy formulation, an assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency
must provide precise and certain reasons for preserving the confidentiality of
requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation

and description of the documents within its scope as well as precise and certain
reasons for preserving their confidentiality. Without this specificity, it is
impossible for a court to analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands, the Court has little more
than its sua sponte speculation with which to weigh the applicability of the claim.
An improperly asserted claim of privilege is no claim of privilege. Therefore,
despite the fact that a claim was made by the proper executive as Reynolds
requires, the Court can not recognize the claim in the instant case because it is
legally insufficient to allow the Court to make a just and reasonable
determination as to its applicability. To recognize such a broad claim in which the
Defendant has given no precise or compelling reasons to shield these documents
from outside scrutiny, would make a farce of the whole procedure. 101 (Emphasis
and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less
than a claim of privilege clearly stating the grounds therefor. Apropos is the
following ruling in McPhaul v. U.S:102

We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct.
724, is highly relevant to these questions. For it is as true here as it was there,
that if (petitioner) had legitimate reasons for failing to produce the records of
the association, a decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he) state (his) reasons
for noncompliance upon the return of the writ. Such a statement would have
given the Subcommittee an opportunity to avoid the blocking of its inquiry by
taking other appropriate steps to obtain the records. To deny the Committee the
opportunity to consider the objection or remedy is in itself a contempt of its
authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce
papers before a congressional committee[, and] cannot be condoned." (Emphasis
and underscoring supplied; citations omitted)

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. 103 A useful analogy in
determining the requisite degree of particularity would be the privilege against
self-incrimination. Thus, Hoffman v. U.S.104 declares:

The witness is not exonerated from answering merely because he declares that
in so doing he would incriminate himself his say-so does not of itself establish
the hazard of incrimination. It is for the court to say whether his silence is
justified, and to require him to answer if it clearly appears to the court that he is
mistaken. However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection
which the privilege is designed to guarantee. To sustain the privilege, it need
only be evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure could
result." x x x (Emphasis and underscoring supplied)

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.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it 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.

Petitioners, however, assert as another ground for invalidating the challenged

order the alleged unlawful delegation of authority to the heads of offices in
Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of
the United States where, so it claims, only the President can assert executive
privilege to withhold information from Congress.

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 exceptional nature

of the privilege. Executive privilege, as already discussed, 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, 105 or in those
instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege
is thus premised on the fact that certain informations 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. There is even less reason to uphold such
authorization in the instant case where the authorization is not explicit but by
mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that 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,
after 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.

The Court notes that one of the expressed purposes for requiring officials to
secure the consent of the President under Section 3 of E.O. 464 is to ensure
"respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an echo
from Article VI Section 21 of the Constitution mandating that "[t]he rights of
persons appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an

authorization for implied claims of executive privilege, for which reason it must
be invalidated. That such authorization is partly motivated by the need to ensure
respect for such officials does not change the infirm nature of the authorization
itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of
executive officials in the hearings conducted by it, and not with the demands of
citizens for information pursuant to their right to information on matters of public
concern. Petitioners are not amiss in claiming, however, 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. 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 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. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to
the peoples will. Yet, this open dialogue can be effective only to the extent that
the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access
to information relating thereto can such bear fruit. 107(Emphasis and underscoring
supplied)

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 legislatures power of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 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 general,
Taada 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 such 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.108 (Emphasis and underscoring supplied)

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, E.O. 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.

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. For

[w]hat republican theory did accomplishwas to reverse the old presumption in

favor of secrecy, based on the divine right of kings and nobles, and replace it
with a presumption in favor of publicity, based on the doctrine of popular
sovereignty. (Underscoring supplied)109

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.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of

Executive Order No. 464 (series of 2005), "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,"
are declared VOID. Sections 1 and 2(a) are, however, VALID.

SO ORDERED.