August 29

Article 6 section 22 provision on question hour

No the ….. also e po e the ……i estigatio i aid of legislatio u de A ti le 6 Se tio

Distinction of the two:

Section 21 provides for inquiries in aid of the legislation. The Senate or the House of the Representatives
or any of the susceptive committees may conduct inquiries in aid of the legislation. Take note: in
accordance to its duly publish rules on procedures to this constitutional requirements the rights of
pe so also, …. I o affe ted i ui ies shall e espe ted. So e e if the po e s a e…… the e is
limitations. The distinctions between the two sections: section 21 is a more enforcing, legislative
investigation, any person may appear and the committees conduct the investigations. It can be
conducted by either house or any committee. The subject matter is always of the purpose of legislation
and appearance is mandatory. So far as question hours is concerned, only the department head may
appear, the entire body, congress conduct the investigation subject matters are matters related to the
department of the officer appearing and appearance before the congress in question hour is only
discretionary

Senate Blue Ribbon v. Majaducon.

Emphasizing on the power of congress to conduct aid on legislation. Here the court said that persons
who are subpoena invited into legislative inquiries, they cannot go to the court of justice because these
ou ts ha e o….p ohi it committee requiring that person from appearing and testifying before the
appearing as general rule, dili pwede maenjoin ang proceeding, ang imohang subpoena by that
committee or body otherwise it would be inconsistent to the doctrine of separation of powers as the
sa e is a e oa h e t to the legislati es….

Here Senator Ople found a resolution for the senate who conduct an inquiry of the allege coupdetat
attempt as well as probing fund irregularities in the armed forces of the Philippines. Particularly in the
Armed forces retirement and separation benefit system ( AFP-RSBS).

There was a specific example here, there was AFP-RSBS purchase a lot from an attorney but it was
overpriced. In deed of sale it was purchase for 10, 500/sqm but in the deed of sale file before the ROD
only show, that it was only worth 3000/sqm. So because of this atty. Flaviado was directed to testify
before the senate committee. Instead of the hearing he went to court file for a petition prohibition and
preliminary injunction to enjoin his appearance. He contends that the trial court have properly intervene
into investigations by congress pursuant to the power of judicial review. Also, he has a valid casue of
a tio …..i ou t. It ill del e da , the i estigatio ill del e to the alidity of the case pending before
the trial court patenting and titling of lot which is within the competence of judicial courts. Still, because
of that the trial court issued a TRO directing the committee to cease and desist from the proceeding
with the inquiry in so far as atty. Flaviado is concern.

Is the trial court of judge Majaducon correct or did he commit a grave discretion?

The court said yes, he committed a grave discretion. The inquiry involve here is one in aid of legislation.
Take note that there was a subpoena. Subpoena issued here by the senate for atty. Flaviado to appear
and this was pursuant to the congress power to conduct inquiries in aid of legislation as already stated.
Mandatory ang appearance otherwise it will be cited in content. The power is provided in Article 6
se tio . Ju isp ude e is epeat, settle that i se ate o …… the o g ess a e e ise…. Po e i so
fa as i estigatio s of the……offi e . So he e the ase as fo lea legislati e pu pose a d that is to
look into the misuse and mismanagement of the AFP-RSBS funds, with the intention of enacting
appropriate legislation to protect the rights and interests of the officers and members of the Armed
Forces of the Philippines. Now, according to the court, courts cannot enjoined the directive of the
senate or a resource person to attend the inquiry. WHY? Because it involves a fundamental , a power of
the congress to conduct legislative aid pursuant to its legislative powers to be assisted in formulating
laws by listening informations from the people to unsoon pag promulgate ng law or laws needed. Also, it
was found out here that when the subpoena was issue to atty. Flaviado wala pay acse pending before
court, because the case referring to was still pending in the office of the ombudsman. So naunahan,
nauna ang subpoena sa iyahang pag file ng case sa court. So that cannot be done to circumvent to
p es i e o p e e t the se ate to o du t this i ui the…… of fili g a si ila ase.

SENATE v. ERMITA

Validity of EO 464. Take note: This is the executive order which provides for a blanket executive
privilege for executive officials including officers of armed forces of the Philippines. In this case the court
stated that section 1 and section 2(a) are not unconstitutional, and are valid, but the rest of the
provisions are unconstitutional. Section 1 and 2(a) they provide for question power and that is why the
court says that na OK sya kay to that end kailangan jud nimo ang consent of the president. To secure a
consent from the president before you can appear in a question hour. In fact, in a question hour it is not
mandatory for you to appear before congress but, in so far the other provisions are concern they now
touch the power of the congress to conduct inquiries in aid of legislation. It is expressly recognize under
Article 6 section 21 and has been recognize to be mandatory in nature. WHY is this power of legislative
inquiry important? The power of inquiry is essential and appropriate to legislative function and because
of this the power, the process to enforce it by way of content must be recognize by the court. The
necessity according to the court is because a legislative body cannot legislate effectively in the absence
of informations respecting the conditions which the legislation is intended to affect or change. So maaid
ang legislature through this type fo investigation in aid of legislation, if you do not appear in legislative
inquiries under Article 6 section 21, you can be cited in contempt, you can be imprison. Take note that
there are also discussion here as to the distinction between question hour and legislative inquiry. One is
compulsory under Article 6 section 21, section 22 discretionary. Now, can you be exempted from
attending an inquiry in aid of legislation as a general rule? You cannot. The exception this rule is that you
a ot i alid…e e uti e p i ilege. Take ote: e dis uss efo e that p i ilege atta hes to the
information and not to the person claiming that privilege that is the general rule. The exemption
however, privilege attaches to the person if it is invoke by the president, because the president cannot
be upheld in a hearing. Only one executive official may be exempted from an inquiry of legislation, and
that is the president. The provisions regarding the question hour the court said that those provisions are
valid.

GUDANI V SENGA

The senate invited several officers of the AFP, among those is general Gudani and Lieutenant colonel
Balutan to clarify allegation of fraud, the election fraud of 2004 election as well as matters on Hello
Garci case. Now, because of this, GMA issued EO 464, which mandates among others that AFP officials
should secure here consent before they appear in any inquiry before either house of congress. Still
without securing her consent, the two officials of the AFP appeared before the Senate, and they
testified, as a result they were relieve from their assignments for violating the articles of war as well as
the principals of chain of command. Now does the president here has the authority to issue an order to
the members of the AFP to prevent them from testifying in legislative inquiry? The court said in so far as
AFP officials, they can be enjoined by the president. This is not the basis of enjoining them, it is not
because of executive privilege but because of the power of the president as commander in chief. The
president has constitutional authority to do so by virtue of her power as commander in chief and that as
a consequence a military officer who defies such injunction is liable under military justice. Can the
president exercise her power arbitrarily? Because they appear or do not appear in an inquiry the court
here said, that that power can be abuse. But what a e do e i o de ….. that p a ti e? The p eside t
may be commanded by judicial order to compel the attendance of the military officer. Meaning pwede
magorder ang court na mastop ang president in issuing arbitrary orders na dili muappear ning official or
magappear siya. WHY this judicial orders is are enforceable against the president? Because this judicial
orders have the force of the law of the land which the president has the duty of faithfully execute. So as
the general rule here, the president cannot issued a blanket of requirement of prior consent to an
executive official summoned by the legislative department to attend congressional hearing. The
exception, is the ability of the president to prevent military officers from testifying. Not because of
executive privilege but because of her executive power as commander in chief. The power to control the
actions and speech of members of the AFP. The refusal of the president to allow the members of the
military to appear before congress is subject to judicial relief. In order to obviate of any abuses on the
power, because the president is oblige to comply with the final orders of the court. so that is still a check
and balance mechanism.

IN RE: SABIO

The power or the privilege granted to the PCGG, particulary in the Section 4(b) of EO. No.1 which
provides that No member or staff of the Commission shall be required to testify or produce evidence
in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.
This provisions is challenge by a committee of the Senate because it undermines the power of congress
to conduct legislative inquiries.

So what happened in this case ANYWAY?

There was an allegation that there was a mismanagement of the POTC, PHILCOMSAT and the PHC, these
a e go e e t….e tities. The e e e i p op ieties in their operation by their respective board of
directors. Among others, there were members here appointed by the PCGG. So here the chief chairman
of the PCGG, Sabio was invited in a senate inquiry to be a resource person. Now he decline the
invitations several times and eventually, he invoke EO No.1, Section 4(b), privilege granted to the
members or staff of the PCGG, to be exempt from any inquiry, including legislative inquiry. So this
prompted senator Gordon to issue an order requiring him to show cause why he should not be cited in
contempt and when he explain. He said that ala s a….sa Se ate a d he as a ested fo o te pt.

Is section 4(b) of EO No.1 validly invoked by chairman Sabio to justify his appearance in the legislation?

The court said NO. Section 4(b) of EO. No.1 is repugnant of several provisions of the constitution and
therefore it is unconstitutional. This 4(b) exempt PCGG members and staff from the power of congress
to inquiry. This is not allowed by the constitution, there is no exemption in the constitution which grant
PCGG this power. Moreover, to uphold this provision would violate the constitutional provision that
public office is a public trust. Instead of promoting accountability it will reduced it, because the
members of the PCGG are exempt from any inquiry asking or on their accountability. So pwd sila mag do
any illegality kasi exempt from being inquired on. It places the PCGG members and staff beyond the
reach of courts, congress and other administrative bodies. It institutionalizes irresponsibility and non-
accountability.

So the court said that the provisions is unconstitutional because it is inconsistent with Article6, Section
21, Article 11, Section 1 (Principle of Accountability) and Section 28, Article 2 (right to public
information). The court also said here, that the congress in exercising the power of inquiry can exercise
contempt powers. There is a discussion here of why is it necessary. Para dili maname na baseless or
useless ang power pwd macompel sa senate or the congress to the appearance to these requested
resource speakers. There must be some means of compulsion of obtain what is needed.

STANDARD CHARTERED BANK V SENATE COMMITTEE

Involves standard chartered bank, it is allege that it violated RA 8799 because it sold unregistered
foreign securities. So there was a prehearing investigate and that matter in aid of legislation and that
hearing they invited several officers of standard charter. In responds they submitted to the committee
that there are several cases pending in court which involves the same issues that they are subjecting in
the legislative inquiry. They challenge the jurisdiction of the senate to conduct this inquiry, for this might
affect the determination of the courts in so far as the latter will discuss with the committees the
concern. So they did not attend the hearing, and filed a remove for the issuance of the TRO etc.

Can that be done by the court? Can the proceedings in the senate continue given that there is a pending
case?

The court said YES. The p o eedi g i the se ate a o ti ue e ause the p o eedi g does ot …..
upon the power of the court. The committee here has jurisdiction to conduct an inquiry over the subject
matter involve here is the very same subject matter pending in court.

WHY?

The court said that the mere filing of a criminal or administrative complaint before a court shall not
automatically barred the conduct of legislative investigation otherwise it will be easy to subvert any
intended inquiry by the congress through the convenient ploy of instituting a criminal or administrative
complaint. The sovereign legislative authority, of which the power of legislative inquiry is an essential
component, cannot be made subordinate to a criminal or administrative investigation.

NERI V SENATE COMMITTEE

There is an extensive discussion here, in so far as the executive privilege is concern.

We already know that as the GENERAL RULE: you cannot refuse subpoena of the congress if it involves a
legislative inquiry under Section 21 of article 6, but the EXCEPTION to this is a valid claim of executive
privilege.
Here the DOTC entered into a contract with the ZTE for the supply equipment and the services for the
NBN P oje t to e fi a e the People Repu li of Chi a. So, the e ill e……. ith this deal. So
committees were established in Senate to investigate the ZTE. Neri was among those invited in the
inquiry and he obeyed the subpoena, testified before the committees for 11 hrs, disclosed to the
Comelec chairman Benjamin Abalos offered him P200M in exchange for his approval of the NBN Project.
Also, he inform president Arroyo about the bribery attempt and she instructed him to accept the bribe.
Further probed on him however, several questions were asked on him which he refuses to answer
invoking executive privilege. So what are these questions: 1. Whether or not president arroyo followed
up the NBN project. 2. Whether or not she directed him to prioritize it. 3. Whether or not she directed
him to approve it. He didn’t answer explaining that he is covered by executive privilege. So in
subsequent hearing he didn’t atte d e ause it ill…. I ui ies. So it as e e tuall ited i o te pt
o de ed to a est the se ate fo his …..a t. So he e a e .the o u i atio s ei g eli ited o hi
subject or covered by the privilege 2. Did the committees committed grace discretion on issuing
contempt order against him.

With the first issue, the court said with the communication elicited to Neri are covered by executive
privilege. TAKE NOTE that there is a discussion given by the Supreme Court between the 2 powers of the
congress: Question Hour and legislative inquiry. Now as to the communications, these are covered by
executive privilege.

The power of the congress to conduct inquiries in aid of the legislation is limited:

1. There should have a duly published rules.

2. The rights of the people that appear to be respected (Bill of Rights)
3. You can be exempted from appearing if there is a valid claim of executive privilege.
So what is the rational of this executive privilege? It is because of the president’s generalize interest in
confidentiality. This is to give the president and those who assist him with freedom to explore
alternatives in the process of shaping policies and making decision and to do so in a way many would be
unwilling to express except privately. So there could be matters that if it will be divulge to public it will
be scandalous.

There are two types of executive privilege based on US jurisprudence:

1. Presidential communications privilege
2. Deliberative process during legislations.
There are distinctions between the two: presidential communications applies to the decision making of
the president himself or herself. Also, it is rooted in the constitutional principle of separation of powers
and of the president unique constitutional role. The privilege applies to the document entirety. Finally/
congressional prejudicial ligation of this privilege is subject to greater scrutiny, that deliberative process
privilege. Napstrikto ang inquiry kung idisregard ni sya na privilege.
Deliberative privilege applies to the decision making of the executive officials of the president. This
rooted on common law privilege. It does not apply to document to their entirety and the ligation of this
privilege is not scrutinize as much as the presidential communication privilege.

Who are covered by presidential communication privilege? Only white house staff, in us jurisprudence
that has operational proximity to direct presidential decision. Example military or state secrets as well as
foreign donations.
Applying the US jurisprudence in Philippine setting:
The court said that the claim of executive privilege is highly recognize it is subject to an inquiry related
to a… o itted po e the o stitutio to the p eside t a o g othe s the …. Of military and foreign
evasion. So unsa ang element of executive privilege for it exist in the first place: 1. The protected
communication must be related to quintessential and non- delegable presidential power. 2.
Communication must be utter or solicited and receive by a close advisor of the president or the
president himself. The test here is that advisor must be in an operational proximity 3. The privilege here
remains a qualify privilege. It may be over publish to adequate mean that information will contain
i po ta t e ide e. The p i ilege ……. B pu li i te est.

Now does the privilege exist here?

The court said yes. First the communication to be elicited by the 3 questions are relate to a
quintessential and a non-delegable power. What is that power? Is the power to enter into an executive
agreement with other countries. Take note the deal involves a between Philippines and China. Second
the communications here are receive by a close advisor of the president Neri, he is within the
operational proximity of the president. He is considered a close advisor. And third, there is a adequate
showing of the compelling need that would justify the limitation of the privilege and the unavailability of
the information elsewhere by an appropriate investigating authority. Take note that this privilege is not
absolute. It can be override if there is evidence of possible criminal wrongdoing or showing that public
interest we necessitate the revelation of the matter.

Now it has been determine that a privilege exit. Is there a valid claim of that privilege? Lahi ang question
kung whether or not the privilege exist and lahi pud ang questions as to whether or not there was a valid
claim of executive privilege.
What are the requirements before there can be a valid claim of executive privilege?
1. There must be a formal and proper claim of privilege lodge by the head of department which
is…. atte
2. That lai ust sho a p e ise a d e tai easo …. Of the o fide tialit of the i fo atio .

Was there a valid claim of confidentiality here?

The court said yes. The formal requirement was shown by the letter of executive secretary Ermita,
stati g that his offi e is…… to i oke the do t i e of e e uti e p i ilege e ause of e tai g ou ds. So
there is formal invocation, there is a letter send to the senate.

Now with the second requirement precise and certain reason. The court said yes. This requirement is
also specific. What are the ground invoke here: the ground invoke by executive secretary Ermita was
that any information enclose by Neri might impair our diplomatic as well as economic relations with the
people republic of China. Therefor because of the confidential nature of the information, Neri cannot
provide the committee any further details of this conversation.

The court concluded because of those foregoing the senate gravely abuses discretion, they issued a
contempt order against Neri, because there exist an executive privilege and was validly invoke.
GARCILLANO V HOUSE OF REPRESENTATIVES

The inquiry in aid of legislation but it was conducted without duly publish rules of procedure.

So the court in this case nullify the proceedings of entirety because the inquiries should be with the duly
publish rules of procedure. So, null and void. Why is publication necessary? It is because there has to be
observance with due process, kung wala ka na inform sa procedure it violate due process.

PHILCOMSAT V SENATE

The senate committee issued a report where is found that there is a gross mismanagement of the
PHILCOMSAT, PHC and POTC. It is argued that report as well as the proceedings conducted by the senate
committee were null and void.

The court said that the report as well as the proceedings before the senate are valid. The legislative
power of inquiry upon any committee of congress must carry with any power necessary proper
discharge. The senate committees did not act with abuse of discretion when they submitted the
resolutions as well as the report involving the inquiry. There was nothing violated here.

What else is the power of congress?

Aside from legislative power, they also acts as the board of canvasses for the presidential and vice
presidential elections under article 7 section 4($), any elections for presidents and vice presidents duly
certified by the board of canvasses of each province or city shall be transmitted to congress, directed to
the president of the senate. Upon receipt of the certificate of canvass of the president of the senate
shall update… da s afte the da of ele tio s ope all certificates of president of the senate and house
of the ep ese tati es e joi i pu li sessio . Upo the dete i atio of….. la a ass the otes.

BRILLANTES V COMELEC

There Is a law RA 8436 authorizing the congress to used ANTS, it is a 1997 law. So in order to implement
this law the comelec try to automate the election but failed so many times. So in 2002, adopted a
resolution to modernize the program for 2004 elections. This resolution involves 3 phases: 1st: for the
computerized registration of the voters. 2nd computerized coting and counting of votes. 3rd electronic
transmission of results. Now in the 2004 elections of automation did not push through because of the
contract negotiation with the suppliers of the machines, the negotiations where discontinue, even due
that setback. The Comelec still implement the 3rd phase of the resolution which is the electronic
transmission of the results. So, pursuant to this the comelec the issued resolution 6712 which provides
for the general instructions for the electronic transmissions on consolidation of the results in the 2004
elections. It was challenge that this resolution 6712 violates section 4 article 7 of the constitution.

The court said that it does. The comelec commit grave abuse of discretion when they issued resolution
6712. WHY? The resolution usurps, unofficial tabulation of election results based on a copy of election
returns, the sole and exclusive authority of congress of canvass the votes for the election of president
and vice president, under article 7 section 4.

This procedure infringes the party of congress considering that section 4 of this resolution allows by use
of 3rd copy of this election of president and vice president as basis for encoding and transmission of
advance result and in the process it canvasses the vote of the president and vice president ahead of the
canvassing of the same mode by congress.

The contention that the tabulation to be done by the Comelec would be unofficial.

The court said that it is even worst. If the comelec is prohibited from conducting an official canvass of
the votes of the president and vice president with more reason it is prohibited for making an unofficial
canvass of the votes.

What else does the congress do aside from legislating?

It can also call for a special election for the president and vice president under article 7 section 10, that
is if the vacancy to the offices of the president and vice president occurs. Congress shall for being in
accordance with its rules, without need for a call within a 7 days enact a law calling for special election
to elect a president and vice president. In fact the bill is certified to be urgent.

It can also invoke or suspend of the privilege of habeas corpus or the declaration of martial law under
article 7 section 18, provides for the calling out powers of the president as well as his power to declare
Martial law, to suspend privilege of habeas corpus. It provides the president shall be the commander in
chief of all AFP and ….. a all su h AFP to p e e t o supp ess la less iole e. I ase of i asio
he e pu li safet e ui es it the p eside t a ……. Suspe d the it of ha eas o pus o pla e the
Philippines or any part of it under martial law.

The congress has a safeguard voting jointly , meaning the HR and the senate, by a vote of at least
majority of all its members in regular or special session may revoke such proclamation or suspension
which shall not be set aside by the president.

The congress also has the power to approve presidential amnesties under article 7 section 19,
p eside ts has the po e to g a t a est ith the … of the ajo it of the congress.

Pardons exempts you from the punishment but you are still guilty.(common infructions, granted to
individuals, private acts of the president)

Cle e edu tio o …..of pe alt ; hi h is the postpo e e t of the e e utio of ou pe alt

Amnesty it was given to a class of person for political offenses plus concurrence of congress

Congress has also the power to confirm appointments, section 9 and 16 of article 7, if there is a vacancy
in the office of the president, he shall nominate a vice president from among the members of the senate
and the HR who shall assume office upon confirmation by the majority of the all the members of the HR
and senate.

Section 16 the president shall nominate and commission on appointments, appoint the following: heads
of the executive departments, ambassadors, other public ministers or consuls or officers of the AFP of
rank of colonel and of captain and also other officers who appointments are vested in the constitution.
List cannot be expanded

Congress, through the senate also have the power to concur in treaties, it is provided in article 7 section
21 and also article 18 section 25. The General Rule is stated section 21, law treaty or international
agreement shall be valid and effective unless concur at least 2/3 of all the members of the senate and
ase o / o the full u de the….

Section 25 on the other hand, is more specific it provide for the allowance of the foreign military bases,
groups of facilities in the Philippines. If it is done by a way of a treaty during concur in by the senate and
e ui e o g ess atif ajo it of ote ast the people i …. pu pose. Fi all if it is also
recognize as a treaty by other contracting state.

BAYAN V ZAMORA

This involve VFA. So in March 14, 1947, the Philippines and the US entered in a military base agreement
to strengthened the defense of security and relationship, we also entered into a mutual defense treaty
which is still valid in august 13, 1951. The agreement under the treaty is to respond to any external
armed attacked on our territory and US territory etc. Now the military base agreement on the other
hand has a deadline, which expire in 1991. So there were talks as to the extension of the military base
agreement thus, VFA was form. VFA was approve by Ramos and the next president Estrada ratified it.
This was transmitted to the senate for concurrence and it was concurred to by the senate by vote of 2/3
of the senator. Now, it is argued in many reasons that the VFA is unconstitutional.

Is it unconstitutional?

The court said it is not.

The VFA is a mere agreement which defines a treatment of US troops and personal visiting of the
Philippines. The constitutional provision that applies to the VFA is Article 7 section 21(treaties) and
article 18 section 25 (specific to foreign military bases).

The commonality between these two provisions is that it requires concurrence from the senate to be
valid and effective. But there is a distinctions between the two, section 21, article 7, defines or gives the
general rule but section 25, article 18, more specific it is a special provision which involves the presence
of foreign military bases or troops or facilities in the Philippines and can only be done by virtue of a
treaty duly concurred in by the senate,

What are the requirements under section 25 article 18?

1. Agreement must be under a treaty

2. Duly concur in by the senate, required by congress ratify by majority votes cast by people in any
…..
3. It must be also recognize as a treaty by other contracting state

Here the court said that all the requirements are present. Therefore the VFA is valid and not
unconstitutional. It was validly concur in to by the senate which was 16 out of 24. Moreover, take note
that the process to ratification is distinct of the process of concurrence. Ratification is done by the
president it is an executive act. Concurrence on the other hand is a legislative act it is done by the
congress. So here this agreement was ratify by the president and concur into by the senate.

What is the effect therefore?

It now becomes obligatory incumbent under the principles of international law to be bound in the terms
of …. Was this e og ize the US? Yes.
SUPLICO V NEDA

The court said the case in this matter has become moot. Also, in requires the SC to determine facts it
a ot do so e ause it….dis iss the petitio .

The power of the president to enter into an agreement with other sovereign.

NICOLAS V ROMULO

Involves a member of the US armed forces who was charge of raping a woman, sometimes in 2005.
Pending trial , detention was request by the US to transfer in the US invoking the visitation forces
agreement. Eventually the trial court found him guilty and he was detain in the Makati jail but because
of this agreement his detention was transfer to a facility under the control of the US.

The question is the validity of his detention.

The provisions of the VFA is controlling so far as the member of US AF is concern.

In so far as his detention prior to the conviction is concern pwd sya matransfer sa US because it was
allowed under the VFA but when he was convicted and detention was order by the court in a Philippine
dete tio e te the US a ot e uest fo a t a sfe . So u de the Ro ulo…. The e uest of the US
to transfer Smith contradicts the provisions of VFA which has been to be valid and controlling between
the US and the Philippines