PRIMER ON SEPARATION OF POWERS, INQUIRY IN AID OF

LEGISLATION

What is the concept of separation of powers?

There are three branches of the government — legislative, executive and judicial. Each
department of the government has exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that
the three powers are to be kept separate and distinct that the Constitution intended them
to be absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure coordination in the
workings of the various departments of the government.

What is “congressional oversight”?

Broadly defined, the power of oversight embraces all activities undertaken by Congress to
enhance its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress:
(a) to monitor bureaucratic compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (e) to assess executive
conformity with the congressional perception of public interest. The power of oversight
has been held to be intrinsic in the grant of legislative power itself and integral to the
checks and balances inherent in a democratic system of government.

What are the categories of congressional oversight functions?

The acts done by Congress purportedly in the exercise of its oversight powers may be
divided into three categories, namely: (1) supervision, which connotes a continuing and
informed awareness on the part of a congressional committee regarding executive
operations in a given administrative area; (2) scrutiny, primarily intended to determine
economy and efficiency of the operation of government activities, exercised through
budget hearings, the “question hour” and the power of confirmation; and (2)
investigation, which is also known as the “inquiry in aid of legislation“.

What is the basis the power of “inquiry in aid of legislation”?

The Congressional power of inquiry is expressly recognized in Section 21 of Article VI of

the Constitution:
 SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by such
inquiries shall be respected.

Even without this express Constitutional provision, the power of inquiry is inherent in the
power to legislate. The power of inquiry, with process to enforce it, is grounded on the
necessity of information in the legislative process. If the information possessed by
executive officials on the operation of their offices is necessary for wise legislation on that
subject, by parity of reasoning, Congress has the right to that information and the power
to compel the disclosure thereof.

Why is inquiry in aid of legislation important under the separation of powers?

Under the separation of powers, Congress has the right to obtain information from any
source – even from officials of departments and agencies in the executive branch. It is
this very separation that makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the elected representatives of
the people are adequately to be carried out.

Is the Supreme Court covered by the Congressional power of inquiry?

No. Members of the Supreme Court are exempt from this power of inquiry on the basis
not only of separation of powers but also on the fiscal autonomy and the constitutional
independence of the judiciary.

Is the power of inquiry subject to judicial review?

Yes. It may be subjected to judicial review pursuant to the Supreme Court’s certiorari
powers under Section 1, Article VIII of the Constitution. Since the right of Congress to
conduct an inquiry in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power.

Is the President covered by the power of inquiry?

No. The President, on whom executive power is vested, is beyond the reach of Congress,
except through the power of impeachment. It is based on the President’s position as the
highest official of the executive branch, and the due respect accorded to a co-equal
branch of government which is sanctioned by a long-standing custom.

Does the power to inquire extend to officials in the executive branch?

Yes. The power of inquiry is broad enough to cover officials of the executive branch. The
power of inquiry is co-extensive with the power to legislate. The matters which may be a
proper subject of legislation and those which may be a proper subject of investigation are
one. It follows that the operation of government, being a legitimate subject for legislation,
is a proper subject for investigation. Since Congress has authority to inquire into the
operations of the executive branch, it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most familiar with and informed
on executive operations.

Are there limitations to this power? If yes, what are these limitations?

Yes. As now contained in the 1987 Constitution (Section 21, Article VI), the power of
Congress to investigate is circumscribed by three limitations, namely: (a) it must be in aid
of its legislative functions, (b) it must be conducted in accordance with duly published
rules of procedure, and (c) the persons appearing therein are afforded their constitutional
rights, including the right to be represented by counsel and the right against self-
incrimination.

In addition, even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of executive
privilege.

What is executive privilege?

Executive privilege is not a clear or unitary concept, although it has been defined as “the
power of the Government to withhold information from the public, the courts, and the
Congress”​ or “the right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately the public.”​

Does executive privilege refer to persons?

No. Executive privilege is properly invoked in relation to specific categories of information

and not to categories of persons. Executive privilege, whether asserted against Congress,
the courts, or the public, is recognized only in relation to certain types of information of a
sensitive character.

What matters are covered by “executive privilege”?

The matters covered under “executive privilege” include: (1) Information between inter-
government agencies prior to the conclusion of treaties and executive agreements; (2)
Presidential conversations, correspondences, and discussions in closed-door Cabinet
meetings; and (3) Matters affecting national security and public order.

How is this invoked?

When an official is being summoned by Congress on a matter which, 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.
This is necessary in order to provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls for a claim of executive privilege.
If, after the lapse of that reasonable time, neither the President nor the Executive
Secretary invokes the privilege, Congress is no longer bound to respect the failure of the
official to appear before Congress and may then opt to avail of the necessary legal means
to compel his appearance.

Is an implied claim of executive privilege valid?

No. A claim of privilege, being a claim of exemption from an obligation to disclose

information, must be clearly asserted. An implied claim of privilege is invalid per se. The
validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefore, and the particular circumstances surrounding it.

What is the Question Hour?

In the context of a parliamentary system of government, the question hour is a period of

confrontation initiated by Parliament to hold the Prime Minister and the other ministers
accountable for their acts and the operation of the government, corresponding to what is
known in Britain as the question period. The framers of the 1987 Constitution removed the
mandatory nature of such appearance during the question hour in the present
Constitution so as to conform more fully to a system of separation of powers. This is
provided in Article VI, Section 22 of the Constitution:

SECTION 22. The heads of departments may upon their own initiative, with the
consent of the President, or upon the request of either House, as the rules of each
House shall provide, appear before and be heard by such House on any matter
pertaining to their departments. Written questions shall be submitted to the President
of the Senate or the Speaker of the House of Representatives at least three days
before their scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the security of the State or
the public interest so requires and the President so states in writing, the appearance
shall be conducted in executive session.
Is the power of inquiry in aid of legislation the same as the “Question Hour”?

No. Section 21 (inquiry in aid of legislation) and Section 22 (question hour) of Article VI of
the Constitution are closely related and complementary to each other, but they do not
pertain to the same power of Congress. One specifically relates to the power to conduct
inquiries in aid of legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour, the objective
of which is to obtain information in pursuit of the oversight function of Congress. While
attendance was meant to be discretionary in the question hour, it was compulsory in
inquiries in aid of legislation.

If a person is cited in contempt and imprisoned in relation to the Congressional

exercise of inquiry in aid of legislation, how long will the imprisonment last?

This is tackled by the Supreme Court in Arnault vs. Nazareno, where the petitioner argued
that the Senate lacks authority to commit him for contempt for a term beyond its period of
legislative session. According to the Supreme Court:

That investigation has not been completed because of the refusal of the petitioner as
a witness to answer certain questions pertinent to the subject of the inquiry. The
Senate has empowered the committee to continue the investigation during the recess.
By refusing to answer the questions, the witness has obstructed the performance by
the Senate of its legislative function, and the Senate has the power to remove the
obstruction by compelling the witness to answer the questions thru restraint of his
liberty until he shall have answered them. That power subsists as long as the Senate,
which is a continuing body, persists in performing the particular legislative function
involved. To hold that it may punish the witness for contempt only during the session
in which investigation was begun, would be to recognize the right of the Senate to
perform its function but at the same time to deny to it an essential and appropriate
means for its performance. Aside from this, if we should hold that the power to punish
for contempt terminates upon the adjournment of the session, the Senate would have
to resume the investigation at the next and succeeding sessions and repeat the
contempt proceedings against the witness until the investigation is completed-an
absurd, unnecessary, and vexatious procedure, which should be avoided.

As against the foregoing conclusion it is argued for the petitioner that the power may
be abusively and oppressively exerted by the Senate which might keep the witness in
prison for life. But we must assume that the Senate will not be disposed to exert the
power beyond its proper bounds. And if, contrary to this assumption, proper
 limitations are disregarded, the portals of this Court are always open to those whose
rights might thus be transgressed.

Sources: Senate of the Philippines vs. Eduardo R. Ermita, G.R. No. 169777, 20 April 2006;
Angara vs. Electoral Commission, G.R. No. L-45081, 15 July 1936; Arnault vs. Nazareno,
G.R. No. L-3820, 18 July 1950; Bengzon vs. Senate Blue Ribbon Committee, G.R. No.
89914, 20 November 1991; Concurring and dissenting opinion of Justice Puno in
Macalintal vs. COMELEC, G.R. No. 157013. July 10, 2003.