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EN BANC
[ G.R. No. 169777, July 14, 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, MAR ROXAS AND MANUEL B. VILLAR, JR., 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.
[G.R. No. 169659]
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.
[G.R. No. 169660]
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.
[G.R. No. 169667]
ALTERNATIVE LAW GROUPS, INC. (ALG), PETITIONER, VS. HON. EDUARDO R. ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, RESPONDENT.
[G.R. No. 169834]
PDP-LABAN, PETITIONER, VS. EXECUTIVE SECRETARY EDUARDO R. ERMITA, RESPONDENT.
[G.R. No. 171246]
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 OF THE PHILIPPINES, PETITIONERS, VS. HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, RESPONDENT.
R E S O L U T I O N
CARPIO MORALES, J.:
Pending consideration are 1) the Motion for Reconsideration dated May 18, 2006 filed by respondents, praying that the Decision promulgated on April 20, 2006 (the Decision) be set aside, and 2) the Motion for Reconsideration dated May 17, 2006 filed by petitioner PDP-Laban in so far as the Decision held that it was without the requisite standing to file the petition in G.R. No. 169834.
Petitioners Senate of the Philippines, et al., Alternative Law Groups, Inc., Francisco I. Chavez, and PDP-Laban filed their respective Comments to respondents' Motion for Reconsideration.
Respecting PDP-Laban's Motion for Reconsideration, petitioners Senate of the Philippines, et al., and petitioner Chavez endorse the same. Respondents, however, pray for its denial.
In their Motion for Reconsideration, respondents argue that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation has not been published, hence, the President may properly prohibit the appearance of executive officials before Congress.
Even assuming arguendo that the said Rules of Procedure had not been published, such does not have any bearing on the validity of any of the provisions of E.O. 464. The prohibition under Section 1 of E.O. 464 has to do with the question hour, not with inquiries in aid of legislation. As to the prohibition authorized by Section 3 in relation to Section 2(b), the basis thereof is executive privilege, not the purported failure to publish rules of procedure.
If the President would prohibit executive officials from appearing before Congress on the ground of lack of published rules of procedure, such would not be an exercise of executive privilege, but simply a claim to protection under the due process clause — a right which the President has in common with any other citizen. The claim to such protection is not based on the confidential nature of the information held by the official concerned, as in the case of executive privilege, but on the defective nature of the legislative inquiry itself. The prohibition under Section 3 in relation to Section 2(b) of E.O. 464, however, is based solely on executive privilege, not on any alleged defect in the inquiry arising from a lack of published rules of procedure.
Respondents go on to argue that the President's invocation of executive privilege is "for practical purposes," in that since the President would be in no position to raise an objection the moment a question is asked by Congress, she must be allowed to prohibit the appearance of the official concerned, at least until she is able to thoroughly discuss the matter with the said official. For, so respondents contend, "once the information has been coerced out of the official, there is no turning back, and the damage that could result might be devastating to the functioning of government."[1]
The tentative prevention of an official from appearing before Congress pending discussion of the matter on inquiry with the President cannot, however, be properly deemed an exercise of executive privilege, not even one "for practical purposes." Any such discussion is meant precisely to allow the President to determine whether the information sought falls under the privilege. Bofore such determination, the claim of privilege could only be based on mere speculation that the information sought might be confidential in nature. Certainly, Congress cannot be bound by such a tenuous invocation of the privilege.
The executive branch, nonetheless, need not be apprehensive that it might not be able to invoke executive privilege in time to prevent disclosures of legitimately confidential information. As this Court stated in the Decision, the President and the Executive Secretary must be given fair opportunity to determine whether the matter under legislative investigation calls for a claim of privilege.[2] To secure this fair opportunity, the executive branch need not resort to a precautionary claim of privilege like that proffered by respondents. The President may, instead, direct the official concerned to ask Congress for reasonable time to discuss with her the subject matter of the investigation.
Section 3 in relation to 2(b) of E.O. 464, however, is far from being a mere directive to officials summoned by Congress to ask for time to confer with the President. It is an authorization for implied claims of privilege.[3] As such, the criteria for evaluating its validity must be those for claims of executive privilege. On the basis of such criteria, the Court found the implied claim authorized under Section 3 in relation to Section 2(b) of E.O. 464 to be defective.
In fine, no argument in respondents' Motion for Reconsideration merits a reversal or modification of the Decision.
As for its Motion for Reconsideration, petitioner PDP-Laban avers that there is no fundamental difference between it and petitioner Bayan Muna to justify their unequal treatment since both of them have members in Congress. It claims, moreover, that all its members are taxpayers and Filipino citizens whose right to information was, as held in the Decision, violated by E.O. 464.
There are, however, fundamental distinctions between PDP-Laban and Bayan Muna which call for this Court's contrasting rulings with regard to their standing.
While both parties have members in Congress, PDP-Laban, unlike Bayan Muna, is not represented therein as a party-list organization. The PDP-Laban members in Congress were elected to represent, not their party, but their constituents, i.e., their legislative district in the case of representatives, or the nation at large in the case of senators. The Bayan Muna members in Congress, on the other hand, were elected precisely to represent their party.[4] In fact, in light of the party-list system, the representatives from Bayan Muna may be said to have been elected only indirectly, since it was Bayan Muna itself, as a party, which was voted for in the last elections where it received enough votes to entitle it to three seats in the House of Representatives.[5] This, again, contrasts with the situation of the PDP-Laban members in Congress who were all elected in their individual capacities.
Indeed, the rights of the Bayan Muna representatives are so intertwined with their party's right to representation in Congress that, in the event they change their party affiliation during their term of office, they would have to forfeit their seat[6] — a rule which clearly does not apply to the PDP-Laban members in Congress.
Bayan Muna is thus entitled to participate in the legislative process in a way that cannot be said of PDP-Laban.
With regard to PDP-Laban's assertion that it consists of taxpayers and Filipino citizens, suffice it to state that its Petition did not assert this as a ground for its standing to sue. It merely alleged that E.O. 464 hampers its legislative agenda and that the issues involved are of transcendental importance,[7] which points were already addressed in the Decision.
If PDP-Laban intended to sue as an organization of citizens in pursuit of the right to information of such citizens, it did not so state in its petition. As such, the Court could not be satisfied that its participation in the controversy would ensure "concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."[8]
A final point. Petitioners Senate of the Philippines, et al., by Manifestation dated April 25, 2006, called this Court's attention to the inadvertent omission, in the title of the petition in G.R. No. 169777, of the name of Senator Manuel B. Villar, Jr. The Manifestation reiterated an earlier Manifestation dated October 24, 2005 requesting that Senator Villar's name be included in the title of said petition. Finding the Manifestations well-taken, the title of G.R. No. 169777 is hereby amended to reflect the name of Senator Villar as one of the petitioners.
WHEREFORE, the MOTION FOR RECONSIDERATION of Respondents dated May 18, 2006 and the MOTION FOR RECONSIDERATION of Petitioner PDP-Laban dated May 17, 2006 are DENIED WITH FINALITY for lack of merit. The title of G.R. No. 169777 is amended to include the name Senator Manuel B. Villar, Jr. as one of the petitioners.
SO ORDERED.
Panganiban, C.J., Quisumbing, Ynares-Santiago, SandovalGutierrez, Austria-Martinez, Corona, Callejo, Sr., Azcuna, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.
Tinga, J., please see separate opinion.
Puno, J., no part. On leave when case was decided on the merits.
Carpio, J., on official leave.
[1] Rollo, p. 549.
[2] Decision, p. 47.
[3] Vide Decision, p. 39.
[4] Section 10 of The Party-List System Act (R.A. 7941) states: "Every voter shall be entitled to two (2) votes. The first is a vote for candidate for member of the House of Representatives in his legislative district, and the second, a vote for the party, organization, or coalition he wants represented in the House of Representatives x x x (Italics supplied)
[5] Section 11 (b) of R.A. 7941 states: "The parties , organizations, and coalitions receiving at least two percent (2%) of the total votes case for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats." (Italics supplied)
[6] Section 13 of R.A. 7941 states: "Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeith is seat: Provided, That if he changes his political party or sectoral affiliation within six (6) months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization."
[7] Rollo, pp. 4-5.
[8] Kilosbayan v. Morato, 316 Phil. 652, 696 (1995).
TINGA, J.:
While I concur generally in the result begot by the adjudication of these cases, there are nuances to my views that are not sufficiently addressed by the majority. I thus write separately to elaborate on them.
Executive Order No. 464 (E.O. 464) does not conform to the usual mode of executive orders, defined in the Administrative Code as "[a]cts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers."[1] On its face, it reads instead as a series of instructions by the President to the members of the executive branch.
Without doubt, the President is vested with executive control of all executive departments, bureaus and offices. Such power is granted by the Constitution[2] and reiterated by statute.[3] A necessary implement of executive control is the ability of the President to prescribe instructions to members of the executive department on any matter related to the exercise of their respective functions. Executive control is not absolute, and its exercise may not contravene the laws of the land,[4] yet it must be recognized as a constitutional prerogative of the President which is entitled to respect from the other co-equal branches of government.
This point is relevant, for Sections 2(b) and 3 of E.O. 464, on their face, align with the presidential power of executive control.
The provisions bear replication:
The provision is styled as an instruction by the President to the officials covered under Section 2(b) that they secure the consent of the President before appearing before either chamber of Congress. No other persons, certainly none outside the executive branch, are brought into the purview and command of Section 3. Neither is the provision worded in such a manner as intending to bind anybody outside of the executive branch to its expressed prohibition. Section 3 is not even stated in declarative fashion such as: "No public official enumerated under Section 2(b) may appear before Congress without securing the prior consent of the President." Such phrasing would have left room for interpretation that the President was imposing such rule on Congress. Instead, Section 3 ordains that "[a]ll public officials enumerated in Section 2(b) hereof shall secure prior consent of the President. . ."
The difference should not be appreciated as merely semantic. Since executive control guarantees the President the right to issue instructions to members of the executive branch, any such set of instructions, however worded or issued, should be recognized as falling within the ambit of the President's constitutional prerogative. The existence of the power of executive control would not shelter such instructions or issuances from judicial review, as in this case. Yet it would at least be a proper measure of balance come the time of adjudication, especially if there is a competing constitutional value against which executive control should be weighed.
Thus, it is a reasonable position to take that Section 3, on its face, is valid as it embodies the exercise of executive control without expressly binding those outside of the executive department to its restrictions.
It would be difficult to effectuate Section 3 on its face as representing a broad claim of implied claim of executive privilege. I agree that the concept of implied claim of executive privilege is legally untenable. Yet the requirement of consent prescribed under Section 3 does not ipso facto provoke the claim of executive privilege. It is the actual refusal of the President to extend consent to the appearance that triggers the claim of executive privilege. While Section 3 does recognize the possibility or the scenario of the President withholding consent, I submit that the authority of the President to withhold such consent is drawn not from Section 3 or any other provision of E.O. 464, but from the general principle of executive control. Even without E.O. 464, the President, by virtue of executive control, can very well order a member of the executive department not to appear before Congress, or any other body for that matter. Still, this exercise of executive control would not necessarily shield the official concerned if he/she refuses to appear before Congress or any other body from judicial review over such action. Nonetheless, the proper legal predicates to the impasse, which include the concept of executive control, should be spelled out.
The Decision did suggest that the actual invocation of Section 3 by several officials, as basis for their refusal to appear before Congress, represents an implied claim of executive privilege. I think that such refusal actually embodies an express claim of executive privilege, as it derives from the withholding of consent by the President. Still, the character of the claim has no effect on the capacity of the courts initially to review the claim of privilege and ultimately to reject the same.
Even as the claim of executive privilege is express, it is nonetheless a general claim bereft of any specifics. Which leads to my other main point. Even though I posit that Sections 2(b) and 3 of E.O. 464 are valid on their face, the fact remains that their actual application, as invoked by various members of the executive department, engendered consequences that could not be sanctioned by the Constitution .
It is a given that E.O. 464 was invoked by several members of the executive department as basis for their non-appearance before various committees of the Senate.[5] While these officials may have invoked a broad but express claim of executive privilege, yet it is evident, as stated in the Decision, that such claims were not accompanied by any specific allegation of the basis of such claim.[6] Congress is entitled to know of the particular basis of the claim of executive privilege. Moreover, to prevent abuse of the right to executive privilege, the Court properly mandated that the claim of executive privilege must be formally invoked, in a manner that clearly states the grounds for such privilege,[7] sufficiently particular without having to compel disclosure of the information which the privilege is meant to protect.[8]
The actual invocation of executive privilege by the officials concerned herein, using Section 3 of E.O. 464 as basis, hardly conforms to any acceptable and proper claim of the privilege. The application of Section 3 precludes Congress or the courts from any meaningful evaluation of the invoked claim of executive privilege, since no basis for such claim is supplied other than the rank or position held by the officials compelled to testify. Given that the claim of executive privilege had actually been invoked using Section 3, and that the Senate itself resultantly sought judicial relief before this Court, the controversy was rightly ripe for adjudication, and the ultimate denouement reached by the Court was correct then and remains so, but only on a result-oriented basis and not on a strictly constitutional foundation.
I offer a final nuance. Following the principle of executive control, the President need not have issued E.O. 464 in order to command executive officials to secure presidential consent before appearing before Congress. The mere invalidation of provisions of E.O. 464 alone did not sufficiently strike, as it could not have sufficiently struck, at the heart of the problem. However, the Decision stands as a vital precedent which hopefully would resolve future controversies of similar nature. For in invalidating portions of E.O. 464, the Court at the same time laid down the standards for compelling members of the executive branch to appear, before Congress, as well as the standards for the proper invocation of the claim of executive privilege. These standards were formulated with due recognition accorded to the constitutional functions and prerogatives of both the executive and legislative branches of government.
These standards, which should be now respected as doctrine, could have very well been imposed by the Court without having to invalidate Sections 2(b) and 3 of E.O. 464, since said provisions, as written, do not purport to bind any person outside the executive branch. Ultimately though, the invalidation of said provisions of E.O. 464, unneeded as it is, serves the expedience of emphasis, if anything else, making it clear that any valid claim of executive privilege binding on the legislature or on the courts must be invoked in a particular manner and on specified grounds.
I say again my view is that Sections 2(b) and 3 of E.O. 464 are void as applied only, definitely not on their face.
[1] See Section 2, Chapter 2, Title 1, Book III, Administrative Code of 1987.
[2] Section 17, Article VII, 1987 Constitution: "The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed."
[3] See Section 1, Chapter 1, Title I, Book III, Administrative Code of 1987.
[4] Section 17, Article VII also mandates that the President "ensure that the laws be faithfully executed."
[5] Decision, pp. 8-9.
[6] Id. at 41.
[7] Id. at 44, citing Mc Phaul v. U.S., 364 U.S. 372 (1960).
[8] Decision, p. 44, citing U.S. v. Reynolds, 345 U.S. 1 (1953).
Petitioners Senate of the Philippines, et al., Alternative Law Groups, Inc., Francisco I. Chavez, and PDP-Laban filed their respective Comments to respondents' Motion for Reconsideration.
Respecting PDP-Laban's Motion for Reconsideration, petitioners Senate of the Philippines, et al., and petitioner Chavez endorse the same. Respondents, however, pray for its denial.
In their Motion for Reconsideration, respondents argue that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation has not been published, hence, the President may properly prohibit the appearance of executive officials before Congress.
Even assuming arguendo that the said Rules of Procedure had not been published, such does not have any bearing on the validity of any of the provisions of E.O. 464. The prohibition under Section 1 of E.O. 464 has to do with the question hour, not with inquiries in aid of legislation. As to the prohibition authorized by Section 3 in relation to Section 2(b), the basis thereof is executive privilege, not the purported failure to publish rules of procedure.
If the President would prohibit executive officials from appearing before Congress on the ground of lack of published rules of procedure, such would not be an exercise of executive privilege, but simply a claim to protection under the due process clause — a right which the President has in common with any other citizen. The claim to such protection is not based on the confidential nature of the information held by the official concerned, as in the case of executive privilege, but on the defective nature of the legislative inquiry itself. The prohibition under Section 3 in relation to Section 2(b) of E.O. 464, however, is based solely on executive privilege, not on any alleged defect in the inquiry arising from a lack of published rules of procedure.
Respondents go on to argue that the President's invocation of executive privilege is "for practical purposes," in that since the President would be in no position to raise an objection the moment a question is asked by Congress, she must be allowed to prohibit the appearance of the official concerned, at least until she is able to thoroughly discuss the matter with the said official. For, so respondents contend, "once the information has been coerced out of the official, there is no turning back, and the damage that could result might be devastating to the functioning of government."[1]
The tentative prevention of an official from appearing before Congress pending discussion of the matter on inquiry with the President cannot, however, be properly deemed an exercise of executive privilege, not even one "for practical purposes." Any such discussion is meant precisely to allow the President to determine whether the information sought falls under the privilege. Bofore such determination, the claim of privilege could only be based on mere speculation that the information sought might be confidential in nature. Certainly, Congress cannot be bound by such a tenuous invocation of the privilege.
The executive branch, nonetheless, need not be apprehensive that it might not be able to invoke executive privilege in time to prevent disclosures of legitimately confidential information. As this Court stated in the Decision, the President and the Executive Secretary must be given fair opportunity to determine whether the matter under legislative investigation calls for a claim of privilege.[2] To secure this fair opportunity, the executive branch need not resort to a precautionary claim of privilege like that proffered by respondents. The President may, instead, direct the official concerned to ask Congress for reasonable time to discuss with her the subject matter of the investigation.
Section 3 in relation to 2(b) of E.O. 464, however, is far from being a mere directive to officials summoned by Congress to ask for time to confer with the President. It is an authorization for implied claims of privilege.[3] As such, the criteria for evaluating its validity must be those for claims of executive privilege. On the basis of such criteria, the Court found the implied claim authorized under Section 3 in relation to Section 2(b) of E.O. 464 to be defective.
In fine, no argument in respondents' Motion for Reconsideration merits a reversal or modification of the Decision.
As for its Motion for Reconsideration, petitioner PDP-Laban avers that there is no fundamental difference between it and petitioner Bayan Muna to justify their unequal treatment since both of them have members in Congress. It claims, moreover, that all its members are taxpayers and Filipino citizens whose right to information was, as held in the Decision, violated by E.O. 464.
There are, however, fundamental distinctions between PDP-Laban and Bayan Muna which call for this Court's contrasting rulings with regard to their standing.
While both parties have members in Congress, PDP-Laban, unlike Bayan Muna, is not represented therein as a party-list organization. The PDP-Laban members in Congress were elected to represent, not their party, but their constituents, i.e., their legislative district in the case of representatives, or the nation at large in the case of senators. The Bayan Muna members in Congress, on the other hand, were elected precisely to represent their party.[4] In fact, in light of the party-list system, the representatives from Bayan Muna may be said to have been elected only indirectly, since it was Bayan Muna itself, as a party, which was voted for in the last elections where it received enough votes to entitle it to three seats in the House of Representatives.[5] This, again, contrasts with the situation of the PDP-Laban members in Congress who were all elected in their individual capacities.
Indeed, the rights of the Bayan Muna representatives are so intertwined with their party's right to representation in Congress that, in the event they change their party affiliation during their term of office, they would have to forfeit their seat[6] — a rule which clearly does not apply to the PDP-Laban members in Congress.
Bayan Muna is thus entitled to participate in the legislative process in a way that cannot be said of PDP-Laban.
With regard to PDP-Laban's assertion that it consists of taxpayers and Filipino citizens, suffice it to state that its Petition did not assert this as a ground for its standing to sue. It merely alleged that E.O. 464 hampers its legislative agenda and that the issues involved are of transcendental importance,[7] which points were already addressed in the Decision.
If PDP-Laban intended to sue as an organization of citizens in pursuit of the right to information of such citizens, it did not so state in its petition. As such, the Court could not be satisfied that its participation in the controversy would ensure "concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."[8]
A final point. Petitioners Senate of the Philippines, et al., by Manifestation dated April 25, 2006, called this Court's attention to the inadvertent omission, in the title of the petition in G.R. No. 169777, of the name of Senator Manuel B. Villar, Jr. The Manifestation reiterated an earlier Manifestation dated October 24, 2005 requesting that Senator Villar's name be included in the title of said petition. Finding the Manifestations well-taken, the title of G.R. No. 169777 is hereby amended to reflect the name of Senator Villar as one of the petitioners.
WHEREFORE, the MOTION FOR RECONSIDERATION of Respondents dated May 18, 2006 and the MOTION FOR RECONSIDERATION of Petitioner PDP-Laban dated May 17, 2006 are DENIED WITH FINALITY for lack of merit. The title of G.R. No. 169777 is amended to include the name Senator Manuel B. Villar, Jr. as one of the petitioners.
SO ORDERED.
Panganiban, C.J., Quisumbing, Ynares-Santiago, SandovalGutierrez, Austria-Martinez, Corona, Callejo, Sr., Azcuna, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.
Tinga, J., please see separate opinion.
Puno, J., no part. On leave when case was decided on the merits.
Carpio, J., on official leave.
[1] Rollo, p. 549.
[2] Decision, p. 47.
[3] Vide Decision, p. 39.
[4] Section 10 of The Party-List System Act (R.A. 7941) states: "Every voter shall be entitled to two (2) votes. The first is a vote for candidate for member of the House of Representatives in his legislative district, and the second, a vote for the party, organization, or coalition he wants represented in the House of Representatives x x x (Italics supplied)
[5] Section 11 (b) of R.A. 7941 states: "The parties , organizations, and coalitions receiving at least two percent (2%) of the total votes case for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats." (Italics supplied)
[6] Section 13 of R.A. 7941 states: "Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeith is seat: Provided, That if he changes his political party or sectoral affiliation within six (6) months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization."
[7] Rollo, pp. 4-5.
[8] Kilosbayan v. Morato, 316 Phil. 652, 696 (1995).
SEPARATE OPINION
TINGA, J.:
While I concur generally in the result begot by the adjudication of these cases, there are nuances to my views that are not sufficiently addressed by the majority. I thus write separately to elaborate on them.
Executive Order No. 464 (E.O. 464) does not conform to the usual mode of executive orders, defined in the Administrative Code as "[a]cts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers."[1] On its face, it reads instead as a series of instructions by the President to the members of the executive branch.
Without doubt, the President is vested with executive control of all executive departments, bureaus and offices. Such power is granted by the Constitution[2] and reiterated by statute.[3] A necessary implement of executive control is the ability of the President to prescribe instructions to members of the executive department on any matter related to the exercise of their respective functions. Executive control is not absolute, and its exercise may not contravene the laws of the land,[4] yet it must be recognized as a constitutional prerogative of the President which is entitled to respect from the other co-equal branches of government.
This point is relevant, for Sections 2(b) and 3 of E.O. 464, on their face, align with the presidential power of executive control.
The provisions bear replication:
SEC. 2. Nature, Scope and Coverage of Executive Privilege. —By itself, Section 2(b) is a mere enumeration of the officials covered under the Executive Order and would be thus innocuous unless tied to the other provisions. Section 3 however bears closer scrutiny.
(b) Who are covered. — The following are covered by this executive order: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.
- Senior officials of executive department 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.
The provision is styled as an instruction by the President to the officials covered under Section 2(b) that they secure the consent of the President before appearing before either chamber of Congress. No other persons, certainly none outside the executive branch, are brought into the purview and command of Section 3. Neither is the provision worded in such a manner as intending to bind anybody outside of the executive branch to its expressed prohibition. Section 3 is not even stated in declarative fashion such as: "No public official enumerated under Section 2(b) may appear before Congress without securing the prior consent of the President." Such phrasing would have left room for interpretation that the President was imposing such rule on Congress. Instead, Section 3 ordains that "[a]ll public officials enumerated in Section 2(b) hereof shall secure prior consent of the President. . ."
The difference should not be appreciated as merely semantic. Since executive control guarantees the President the right to issue instructions to members of the executive branch, any such set of instructions, however worded or issued, should be recognized as falling within the ambit of the President's constitutional prerogative. The existence of the power of executive control would not shelter such instructions or issuances from judicial review, as in this case. Yet it would at least be a proper measure of balance come the time of adjudication, especially if there is a competing constitutional value against which executive control should be weighed.
Thus, it is a reasonable position to take that Section 3, on its face, is valid as it embodies the exercise of executive control without expressly binding those outside of the executive department to its restrictions.
It would be difficult to effectuate Section 3 on its face as representing a broad claim of implied claim of executive privilege. I agree that the concept of implied claim of executive privilege is legally untenable. Yet the requirement of consent prescribed under Section 3 does not ipso facto provoke the claim of executive privilege. It is the actual refusal of the President to extend consent to the appearance that triggers the claim of executive privilege. While Section 3 does recognize the possibility or the scenario of the President withholding consent, I submit that the authority of the President to withhold such consent is drawn not from Section 3 or any other provision of E.O. 464, but from the general principle of executive control. Even without E.O. 464, the President, by virtue of executive control, can very well order a member of the executive department not to appear before Congress, or any other body for that matter. Still, this exercise of executive control would not necessarily shield the official concerned if he/she refuses to appear before Congress or any other body from judicial review over such action. Nonetheless, the proper legal predicates to the impasse, which include the concept of executive control, should be spelled out.
The Decision did suggest that the actual invocation of Section 3 by several officials, as basis for their refusal to appear before Congress, represents an implied claim of executive privilege. I think that such refusal actually embodies an express claim of executive privilege, as it derives from the withholding of consent by the President. Still, the character of the claim has no effect on the capacity of the courts initially to review the claim of privilege and ultimately to reject the same.
Even as the claim of executive privilege is express, it is nonetheless a general claim bereft of any specifics. Which leads to my other main point. Even though I posit that Sections 2(b) and 3 of E.O. 464 are valid on their face, the fact remains that their actual application, as invoked by various members of the executive department, engendered consequences that could not be sanctioned by the Constitution .
It is a given that E.O. 464 was invoked by several members of the executive department as basis for their non-appearance before various committees of the Senate.[5] While these officials may have invoked a broad but express claim of executive privilege, yet it is evident, as stated in the Decision, that such claims were not accompanied by any specific allegation of the basis of such claim.[6] Congress is entitled to know of the particular basis of the claim of executive privilege. Moreover, to prevent abuse of the right to executive privilege, the Court properly mandated that the claim of executive privilege must be formally invoked, in a manner that clearly states the grounds for such privilege,[7] sufficiently particular without having to compel disclosure of the information which the privilege is meant to protect.[8]
The actual invocation of executive privilege by the officials concerned herein, using Section 3 of E.O. 464 as basis, hardly conforms to any acceptable and proper claim of the privilege. The application of Section 3 precludes Congress or the courts from any meaningful evaluation of the invoked claim of executive privilege, since no basis for such claim is supplied other than the rank or position held by the officials compelled to testify. Given that the claim of executive privilege had actually been invoked using Section 3, and that the Senate itself resultantly sought judicial relief before this Court, the controversy was rightly ripe for adjudication, and the ultimate denouement reached by the Court was correct then and remains so, but only on a result-oriented basis and not on a strictly constitutional foundation.
I offer a final nuance. Following the principle of executive control, the President need not have issued E.O. 464 in order to command executive officials to secure presidential consent before appearing before Congress. The mere invalidation of provisions of E.O. 464 alone did not sufficiently strike, as it could not have sufficiently struck, at the heart of the problem. However, the Decision stands as a vital precedent which hopefully would resolve future controversies of similar nature. For in invalidating portions of E.O. 464, the Court at the same time laid down the standards for compelling members of the executive branch to appear, before Congress, as well as the standards for the proper invocation of the claim of executive privilege. These standards were formulated with due recognition accorded to the constitutional functions and prerogatives of both the executive and legislative branches of government.
These standards, which should be now respected as doctrine, could have very well been imposed by the Court without having to invalidate Sections 2(b) and 3 of E.O. 464, since said provisions, as written, do not purport to bind any person outside the executive branch. Ultimately though, the invalidation of said provisions of E.O. 464, unneeded as it is, serves the expedience of emphasis, if anything else, making it clear that any valid claim of executive privilege binding on the legislature or on the courts must be invoked in a particular manner and on specified grounds.
I say again my view is that Sections 2(b) and 3 of E.O. 464 are void as applied only, definitely not on their face.
[1] See Section 2, Chapter 2, Title 1, Book III, Administrative Code of 1987.
[2] Section 17, Article VII, 1987 Constitution: "The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed."
[3] See Section 1, Chapter 1, Title I, Book III, Administrative Code of 1987.
[4] Section 17, Article VII also mandates that the President "ensure that the laws be faithfully executed."
[5] Decision, pp. 8-9.
[6] Id. at 41.
[7] Id. at 44, citing Mc Phaul v. U.S., 364 U.S. 372 (1960).
[8] Decision, p. 44, citing U.S. v. Reynolds, 345 U.S. 1 (1953).