But the SC said that EO 464 is constitutional as far as it bans executive officials from appearing during Congress’ question hour without prior permission from the President.

With the ruling arrived at in Baguio City during its traditional summer sessions, the SC – in a decision written by Justice Conchita Carpio Morales – granted partially the pleas raised in six petitions challenging the constitutionality of EO 464 issued by President Arroyo on Sept. 28, 2005.

As news of the decision reached Malacañang, Presidential Spokesman Ignacio Bunye said President Arroyo and the rest of the Executive department officials will respect the decision and abide by it.

Chief Justice Artemio V. Panganiban and Justices Leonardo A. Quisumbing, Consuelo Ynares Santiago, Angelina Sandoval Gutierrez, Antonio T. Carpio, Ma. Alicia Austria Martinez, Renato C. Corona, Romeo J. Callejo Sr., Adolfo S. Azcuna, Dante O. Tinga, Minita V. Chico Nazario, Cancio C. Garcia, and Presbitero J. Velasco Jr. concurred in the decision.

Senior Justice Reynato S. Puno is on leave.

In its decision, the SC made a distinction between congressional investigations in aid of legislation and investigations during the question hour.

It said that congressional investigations in aid of legislation "should be untrammeled because it is co-extensive with the power Congress to legislate," while investigation during the question hour "do not relate to specific legislations but are directed merely to congressional oversight over the implementation of laws."

"Congress undoubtedly has a right to information from the Executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefore and why it must be respect," the SC said.

"The infirm provisions of EO 464, however, allow the Executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated," it said.

"Wherefore, the petitions are partly granted. Sections 2(b) and 3 of EO 464 (series of 2005), ‘Ensuring observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in legislative inquiries in aid of legislation under the Constitution, and for other purposes,’ are declared void. Sections 1 and 2(a) are, however, valid," the SC ruled.

Under the rules, both the petitioners in six cases and the executive branch of government through the Office of the Solicitor General (OSG) have 15 days to file a motion for reconsideration

Section 1 of EO 464 required all heads of departments in the Executive branch to secure the consent of the President before appearing in an inquiry conducted by either House of Congress, pursuant to Art. VI, sec. 22 of the Constitution.

On the other hand, sec. 2(a) enumerates the types of information covered by the order.

The Court invalidated Sections 2(b) and 3 EO 464, thus resolving the major issues raised in six petitions filed against the order.

On September 28 last year, the President issued the questioned executive order banning the appearance of heads of departments and other officers of the executive branch in congressional inquiries without the prior consent of the President.

Under sec. 2(b), officials within the coverage of EO 464 are: senior officials of executive departments; generals, flag officers, and other officers of the Armed Forces; Philippine National Police officials with the rank of chief superintendent or higher and other PNP officials; senior national security officials who in the judgment of the department head, Chief of Staff, PNP Chief, and National Security Adviser, respectively, are covered by executive privilege, as well as such other officers as may be determined by the President to be likewise covered.

Sec. 3 states that all such officials should first secure the "prior consent" of the President before appearing in a congressional inquiry.

"The infirm provisions of EO 464 . . . allow the Executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated," the Court said.

The SC held that only the President can invoke executive privilege. She may also authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the act is "By order of the President," which means that he personally consulted with the President, it added.

It also held that the claim of privilege under sec. 3 of EO 464 in relation to sec. 2(b) is invalid per se for being so broad as to allow even "implied claims" of privilege by lesser officials.

The proviso requiring the President to give her prior consent, the Court explained, means only that the she may reverse the prohibition which already exists by virtue of EO 464.

This may allow the President to authorize claims of executive privilege by mere silence, the Court said. "It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes EO 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," the Court said.

It emphasized that a claim of privilege, being a claim of exemption from an obligation to disclose information, must therefore be clearly asserted.

"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," the SC said.

The SC reminded Congress that although the power of legislative inquiry may be broad, it is not unlimited. It explained that in order to avoid conflicts, Congress should indicate in its invitation the possible needed statute which prompted the need for the inquiry, in addition to stating the subject of the inquiry and questions relative to and in furtherance thereof.

It explained that there are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern.

However, to the extent that investigations in aid of legislation are generally conducted in public, any issuance to unduly limit disclosures in such investigations necessarily deprives the people of information which are presumably a matter of public concern. In that sense, EO 464 directly impairs the right of the people to information on matters of public concern.

Palace hopes Congress won’t harass officials in its investigations

By FERDIE J. MAGLALANG

Malacañang yesterday said it respects the Supreme Court ruling declaring as invalid some provisions of controversial Executive Order (EO) 464 that barred Cabinet officials and senior military and police officers from testifying before congressional inquiries without the President’s express approval.

"We respect and accept the Supreme Court’s ruling. We hope, however, that it will not be taken by certain members of Congress as a license to use their power to conduct inquiries as an avenue to harass public officials," Press Secretary Ignacio Bunye said in a press statement.

Mrs. Arroyo had issued EO 464 to shield her Cabinet officials from what she said were harassment and embarrasment during Senate investigations that were more in aid of destabilization than legislation.

The President had issued EO 464 soon after National Security Adviser Norberto Gonzales was cited in contempt by the Senate for refusing to answer the senators’ questions about his involvement in the controversial -million lobby contract with Venable LLP law firm.

This resulted in the protracted rift between Malacañang and the Senate, with some senators joining the call for the President’s immediate ouster from office.

The issuance of EO 464 had also drawn wide criticisms among Senate leaders for purportedly preventing them from ferreting out the truth behind the alleged excesses of the Arroyo administration.

According to senators, EO 464 practically clipped Congress’ powers to exercise their check-and-balance or oversight functions over the performance of the Executive branch of the government.

Solicitor General Antonio Nachura, former presidential chief legal counsel, is reportedly bent on seeking a motion for reconsideration before the Supreme Court.

The presidential spokesman said that whatever the Supreme Court may finally decide on the questioned constitutionality and legality of EO 464, the President is hopeful that Congress will no longer sit down on other urgent measures.

"We hope, further, that Congress time is put to better use to finally approving the budget and working on other urgent legislations that have long been on the table like the anti-terror and the ethanol bills," he said.

When Congress resumes its session on May 15, it is expected to keep its hands full with the penultimate stages of deliberation on the administration-proposed 2006 R1.053-trillion national budget that has been delayed for the past four months.