By NEPOMUCENO MALALUAN
www.pcij.org

THIS NO one questions: The Senate or the House of Representatives or any of their respective committees may conduct inquiries in aid of legislation. They may also request the heads of departments to appear before them and be heard on any matter pertaining to their departments.

The prerogative to request the heads of departments to appear in order to elicit information, sometimes referred to as the "question hour," constitutes the oversight function of Congress in respect to the executive. In keeping with the system of separation of powers, Congress may only "request" and appearance is discretionary on the part of department heads. In contrast, when the inquiry is "in aid of legislation," appearance is compulsory, with an attendant power to punish for contempt. To be "in aid of legislation," the inquiry must be material or necessary to the exercise of a power vested by the Constitution in Congress, such as to legislate, or to expel a member. To compel an answer, the question need not of itself be material to a proposed legislation, but only that it be material or pertinent to the subject of the inquiry.

While extensive, inquiry in aid of legislation is not absolute or unlimited. The rights of persons appearing in or affected by such inquiries, such as the rights to due process and to not be compelled to testify against one’s self, must be respected.

When former National Economic and Development Authority (NEDA) secretary general Romulo Neri testified at the Senate hearing on the $329 million national broadband network (NBN) government contract with ZTE Corp. of China, he invoked executive privilege in declining to answer some of the questions asked of him by the legislators. His act raised questions not only inside the Senate and among the increasingly frustrated public, but also within the legal community.

Yet Neri’s Senate testimony was not the first time that what appeared to be another species of limitation to Congressional power of inquiry gained prominence. In September 2005, the Committee of the Senate as a whole had issued invitations to various executive officials to appear as resource speakers in an inquiry on alleged overpricing and unlawful provisions of a government contract covering the North Luzon Railways (North Rail) project. The Senate Committee on National Defense and Security also issued invitations to various Armed Forces officials in relation to its inquiry into the military’s alleged role in election fraud, and in the wiretapping of the president’s telephone conversations.

On September 28, 2005, then Senate President Franklin Drilon received a letter from Executive Secretary Eduardo Ermita informing him that the invited executive officials could not attend the hearings without the President’s consent, pursuant to Executive Order 464, which was issued by the President on that same day. A similar communication was sent by the Chief of Staff of the Armed Forces to the chairman of the Committee on National Defense and Security. Two officers of the Armed Forces who attended the scheduled hearings without the president’s approval were later relieved from their military posts and made to face court martial proceedings.

Section 1 of Executive Order 464 requires all heads of departments of the Executive to secure the president’s consent prior to appearing before Congress in accordance with Article VI, Section 22 of the Constitution. Section 2 (a) gave an enumeration of classes of information between the president and public officers covered by executive privilege, and section 2 (b) gave an enumeration of public officers covered by the EO. Section 3 provided that the public officers enumerated under Section 2 (b), in addition to heads of departments as stated in Section 1, shall likewise secure prior consent of the president before appearing in Congress to ensure, among others, adherence to the rule on executive privilege.

The Senate and other parties raised the matter with the Supreme Court in the case of Senate vs. Ermita (G.R. No. 169777, 20 April 2006). In its decision, the Supreme Court held that Section 1 must be construed as limited in its application to appearances of department heads in the question hour where attendance is meant to be discretionary by Article VI, Section 22 of the Constitution. It cannot be applied to appearances of department heads in inquiries in aid of legislation under Article VI, Section 21 of the Constitution where appearance is mandatory, exempting only a valid claim of executive privilege.

Sections 3 and 2 (b) were declared invalid for allowing an implied claim of privilege. The Court said that an implied claim of privilege is invalid per se since it leaves Congress in the dark on how the requested information could be classified as privileged. The effect of this is to severely frustrate the power of inquiry of Congress. Section 2 (a) was not invalidated as it merely provides guidelines, binding only on executive officials and not conclusive on the other branches of government, on what is covered by executive privilege.

From the court ruling we can distill the parameters of a claim of executive privilege as an exception to the breadth of the Congressional power of inquiry:

• Executive privilege is recognized only in relation to certain types of information of a sensitive character. The Supreme Court cited various sources that point to the different types of information that may be recognized as privileged. These may include state secrets regarding military, diplomatic, and other national security matters, as well as presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.

• That a type of information is recognized as privileged does not mean that it would be considered privileged in all instances. In determining the validity of a claim of privilege, it is not enough to determine whether the information falls in any of the recognized privileges, it must also be asked whether the privilege should be honored in a given procedural setting. Thus, a claim thereof may be valid or not depending on the ground invoked and the context in which it is made.

• Executive privilege may be invoked in relation to specific categories of information, but not to categories of persons.

• A claim of privilege, being a claim of exception, the grounds therefore must be clearly asserted and not merely implied. Congress, however, must not require the executive to state the reasons for the claim with such particularity as to in fact disclose the information.

• In light of the highly exceptional nature of the privilege, the power to invoke the privilege is limited to the president, but may authorize the executive secretary to invoke the privilege on his or her behalf provided that the executive secretary states that it is "By order of the president."

• When an executive official being summoned by Congress on a matter that, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the president or the executive secretary of the possible need for invoking the privilege.

• The extraordinary character of exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. – (To be continued)