Executive Order 464 Case

Title: Senate of the Philippines vs. Eduardo R.
Ermita (Executive Secretary of

GMA)
Executive Order 464 Case
Facts:
On September 21 to 23, 2005, the Committee of the Senate as a whole issued
invitations to various officials of the Executive Department and the AFP for
them to appear on September 29, 2005 as resource speakers on several hearings,
including:
a. Alleged overpricing of the North Rail Project,
b. Massive electoral fraud in the May 2005 elections
Wiretapping and Gloriagate scandal
However, Senate Pres. Franklin Drilon received letters from AFP Chief of Staff
General Generoso S. Senga, President of the North Luzon Railways Corporation
Jose L. Cortes, Jr. and Executive Secretary Eduardo R. Ermita requesting for
postponement of the hearings since requested officials would not be able to
attend. Drilon then replied that the hearings would go on as arrangements were
already made.
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,” which, pursuant to Section 6 thereof, took effect immediately.
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. 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 includes:
i. Conversations and correspondence between the
President and the public official covered by this
executive order
ii. Military, diplomatic and other national security
matters
iii. Information between inter-government agencies
prior to the conclusion of treaties and executive
agreements
iv. Discussion in close-door Cabinet meetings
v. Matters affecting national security and public
order
(b) Who are covered. –
i. Senior officials of executive departments who in the
judgment of the department heads are covered by the
executive privilege;
ii. Generals and flag officers of the Armed Forces of the
Philippines and such other officers who in the judgment
of the Chief of Staff are covered by the executive
privilege;
iii. Philippine National Police (PNP) officers with rank of
chief superintendent or higher and such other officers
who in the judgment of the Chief of the PNP are covered
by the executive privilege;
iv. Senior national security officials who in the judgment
of the National Security Adviser are covered by the
executive privilege; and
v. Such other officers as may be determined by the
President.
SECTION 3. Appearance of Other Public Officials Before Congress. –

All public officials enumerated in Section 2 (b) hereof shall secure
prior consent of the President prior to appearing before either
House of Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on executive privilege
and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring
supplied)
On the same date, Executive Secretary Ermita and Gen. Senga sent notices that
due to EO 464, invited officials were not authorized to attend the congressional
hearings as none were able to secure the consent of the president. Only Col.
Balutan and Brig. Gen. Gudani among all the AFP officials invited attended, and
for defying President Arroyo’s order, they were relieved from their military
posts and were made to face court martial proceedings.
Various petitions (Petitioners: Bayan Muna; Ocampo et al; COURAGE; CODAL;

Chavez; ALG; Senate of the Phils; PDP Laban; Cadiz & IBP) were then filed
challenging the constitutionality of EO 464 and requesting 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.
Issues:
1. Whether E.O. 464 is valid and constitutional
2. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
3. Whether E.O. 464 violates the right of the people to information on
matters of public concern; and
4. Whether respondents have committed grave abuse of discretion when they
implemented E.O. 464 prior to its publication in a newspaper of general
circulation.
Decision: The petitions are PARTLY GRANTED.

1. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), are
declared VOID.
2. Sections 1 and 2(a) are, however, VALID.
Resolution of Issues:
1. Whether EO 464 is valid and constitutional

Section 2 (b) and Section 3 are void because:
-it states that executive privilege actually covers persons. Executive
privilege, as discussed above, is properly invoked in relation to specific
categories of information and not to categories of persons.
-Because the provisions of E.O. 464, implies claims of privilege without any
specific basis to government officials, it allows 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
-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 Court finds it essential to limit to the President the power to invoke the
privilege. The President may not authorize her subordinates to exercise such
power.
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b)
is 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.
Section 1 and 2 (a) are valid because:
Determining the validity of Section 1 requires an examination of the meaning of

Section 22 of Article VI. Section 22 which provides for the question hour
must be interpreted vis-à-vis Section 21 which provides for the power of either
House of Congress to “conduct inquiries in aid of legislation.
A distinction was made between inquiries in aid of legislation and the question
hour. While attendance was meant to be discretionary in the question hour, it
was compulsory in inquiries in aid of legislation.
***The Congress has the right to obtain information from any source – even from
officials of departments and agencies in the executive branch.
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.
Thus:
Congress 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.
2. Congress’ 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.
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.
Thus Congress may exert its power of inquiry, requiring attendance only with
hearings in aid of legislation, distinguishing it from the question hour.
3. Right to Information
As investigations in aid of legislation are generally conducted in public, any
executive issuance that would 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 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 legislature’s power of inquiry.
4. 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. 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.

Executive Order 464 Case

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Title: Senate of the Philippines vs. Eduardo R.

Ermita (Executive Secretary of

SECTION 1. Appearance by Heads of Departments Before Congress. – In

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

SECTION 3. Appearance of Other Public Officials Before Congress. –

Various petitions (Petitioners: Bayan Muna; Ocampo et al; COURAGE; CODAL;

Decision: The petitions are PARTLY GRANTED.

1. Whether EO 464 is valid and constitutional

Section 1 and 2 (a) are valid because:

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

The requirement then to secure presidential consent under Section 1, limited as

2. Congress’ Power of Inquiry

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

SECTION 21. The Senate or the House of Representatives or any of its

The impairment of the right of the people to information as a consequence of

4. Implementation of E.O. 464 prior to its publication

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