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G.R. No. 169777 (SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, et al., petitioners v. 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, respondent.
G.R. No. 169659 (BAYAN MUNA, represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, et al. petitioners, v. EDUARDO ERMITA in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, respondent.)
G.R. No. 169690 (FRANCISCO I. CHAVEZ, petitioner, v. EDUARDO R. ERMITA, et al.)
G.R. No. 169667 (ALTERNATIVE LAW GROUPS (ALG), petitioner v. HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, respondent)
G.R. No. 169834 (PDP LABAN, petitioner v. EXECUTIVE SECRETARY EDUARDO R. ERMITA), respondent.
G.R. No. 171246 (JOSE ANSELMO I. CADIZ, et al., petitioners, v. EXECUTIVE SECRETARY EDUARDO R. ERMITA, respondent)
Promulgated:
������������������������������������������������������������������ July 14, 2006
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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 (EO 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] cralaw 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] cralaw and reiterated by statute. [3] cralaw 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] cralaw 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 EO 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. -
(b) Who are covered. - The following are covered by this executive order:
i. Senior officials of executive department 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.
��������� 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.
��������� 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 EO 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 EO 464 was invoked by several members of the executive department as basis for their non-appearance before various committees of the Senate. [5] cralaw 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] cralaw 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] cralaw , sufficiently particular without having to compel disclosure of the information which the privilege is meant to protect. [8] cralaw
��������� The actual invocation of executive privilege by the officials concerned herein, using Section 3 of EO 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 EO 464 in order to command executive officials to secure presidential consent before appearing before Congress. The mere invalidation of provisions of EO 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 EO 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 EO 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 EO 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 EO 464 are void as applied only, definitely not on their face.
��������������������������������������������������������� DANTE O. TINGA
����������������������������������������������� Associate Justice
Endnotes:
[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."
[4]Section 17, Article VII also mandates that the President "ensure that the laws be faithfully executed."
[8] cralaw Decision, p. 44, citing U.S. v. Reynolds, 345 U.S. 1. (1953).
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