Legislative Department


Safeguards that proscribe the legislative power of inquiry.


The power of Congressional inquiry is not absolute.


Section 21, Article VI establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s 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, or course, remediable before the courts, upon the proper suit filed by the person affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, 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. (Senate, et al. vs. Ermita, et al., G.R. No. 167777, April 20, 2006).


Concept of executive privilege.


Executive privilege is “the power of the Government to withhold information from the public, the courts, and the Congress.” It is the right of the President and high-level executive branch offices to withhold information from Congress, the courts and ultimately the public. (Senate, et al. vs. Ermita, et al., G.R. No. 167777, April 20, 2006).


Types or kinds of executive privilege.


Executive privilege is not a clear or unitary concept. It has encompassed claims of varying kinds.


            One variety of the privilege, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer’s 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 intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated. (Senate, et al. vs. Ermita, et al., G.R. No. 167777, April 20, 2006).


Basis for the three kinds of executive privilege.


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 the 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. (In re Sealed, 121 F. ed. 729, 326 U.S. App. D.C. 276; Senate, et al. vs. Ermita, et al., G.R. No. 167777, April 20, 2006).


Appearance during the question hour not mandatory.


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. 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.


Basis of the power of Congress to compel the appearance of executive officials or the lack of it.


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 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, otherwise, it would not be able to perform intelligently its power of legislation. (Senate, et al. vs. Ermita, et al.)


Meaning of the requirement of prior consent of the President or the head of office allowing an official to appear before the Congress.


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 “covered by the executive privilege,” such official is subject to the requirement that he first secure the consent of the President prior to appearing before the Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. The provision 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 the 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 official’s 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. (Senate, et al. vs. Ermita, et al.).


Invocation of executive privilege to be accompanied by reasons.


The invocation of executive privilege must be accompanied by specific reasons.


            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.


No need to specify the exact reason.


Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination.


No claim of executive privilege by mere silence.


Such presumptive authorization is contrary to the exceptional nature of the privilege. Executive privilege is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique rule and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus, premised on the fact that certain information must, as a matter of necessity, be kept confidential in the 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. (Senate, et al. vs. Ermita, et al., G.R. No. 167777, April 20, 2006).


Only the President can claim privilege.


In view of the highly exceptional nature of the privilege, it is 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 the 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 where the authorization is not explicit but mere silence. Section 3, in relation to Section 2(b), is invalid on this score. (Senate, et al. vs. Ermita, et al., G.R. No. 167777, April 20, 2006).