Philconsa v. Enriquez The GAB of 1994 was passed and approved by both houses of Congress in 1993.

Congress then presented the bill to the President for consideration and approval. The President signed the bill into law as RA 7663. The President also delivered his veto messageand specified certain provisions of the bill he vetoed. Several petitions were filed assailing the validity of the Presidential vetoes of provisions of the GAA , as well as the imposition of conditions on certain appropriations. Specifically, petitioners contend that the imposition of the President of conditions on the appropriations for the SC, Ombudsman, CoA, and CHR violated their independence and fiscal autonomy. In the appropriations for said offices, the Congress added special provisions that allowed the augmentation from savings of any item in the appropriations for their respective offices for the payment of fringe benefits in accordance with the rates prescribed by law and as may be authorized by law. In this Veto Message, the President approved of the said conditions as the Constitution provides that no elective or appointed public officer shall receive additional, double, or indirect compensation, unless specifically authorized by law. To this, the SC ruled that the conditions were placed by Congress, not by the President. Moreover, the petitioners also assail the conditions imposed by the President on the appropriation for COA, DPWH, and NHA. For COA, the special provision provides that income of the COA not exceeding 10 million shall be constituted into a revolving fund that shall be used for maintenance, operating, and other incidental expenses, etc. The President imposed the condition that the operationalization of the special provision on revolving fund be subject to guidelines issued by the President. As for DPWH, the special provision provides that not more than 5% of the amount for infrastructure project released by the DBM shall be deducted by DPWH for administrative overhead, detailed enginee ring, construction supervision, etc. And 3% for school buildings, health centers, etc. The President provided that the implementation of the mandatory retention be subject to the necessary administrative guidelines to be formulated by the Executive pursuant to existing laws. For NHA, the President imposed that the allocations for specific projects shall be released and disbursed in accordance with the housing program of the government, subject to prior executive approva l.

The SC ruled that the conditions the President imposed did not add anything to what was already placed in the GAA. They are mere reminders that the implementation of said provisions should be done in accordance with existing laws. The petitioners also cannot complain when the President states that the guidelines shall be subject to those he will issue. The issuance of administrative guidelines on the use of public funds is simply an exercise by the President of his constitutional duty to ensure that laws are faithfully executed. Under the faithful execution clause, the President has the power to take necessary and proper steps to carry the law into execution. Webb v. de Leon In 1994, the National Bureau of Investigation filed with the DOJ a lettercomplaint charging Webb, Gatchalian, Lejano, and 6 others with the crime of rape and homicide. A panel of prosecutors was formed by the DOJ to conduct a preliminary investigation. During the preliminary investigation, the NBI presented various evidences, which included, among others, sworn statements of Jessica Alfaro, as well as the housemaids of the Webb family. Webb was also allowed to present his counter-affidavit and he mainly alleged that he was in the US during the commission of the crime, as shown by documentary evidences of purchases in the US. The DOJ panel of prosecutors eventually issued a Resolution finding probable cause to hold respondents for trial . The RTC of Paranaque eventually issued warrants of arrest against the petitioners. Petitioners contend, among others, that the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Alfaro in the Information as accused. According to Webb, it is only the Court that has the power to discharge an accused as a state witness. The SC ruled that the non-inclusion of Alfaro is anchored on RA 6891 AN ACT PROVIDING FOR A WITNESS PROTECTION, SECURITY, AND BENEFIT PROGRAM AND FOR OTHER PURPOSES. Alfaro qualified under Section 10, which provides that any person who has participated in the commission of a crime and desires to be a witness can apply, and, if qualified, as determined by RA 6891 and the DOJ, shall be admitted in the Program . Upon qualification of Alfaro to the witness protection, security, and benefit program, her non-inclusion in the criminal complaint was mandated by RA 6891. The SC ruled that Webb assumes that the decision on whom to prosecute is a judicial function. However, the prosecution of crimes appertains to the executive

department of government whose principal power and responsibility is to see to it that our laws are faithfully executed. A necessary component of the power to execute laws is the right to prosecute those who violate them. Consequently, the right to prosecute vests the prosecutor with a wide range of discretion, i.e., who and what to charge. Thus, it is constitutionally permissible for Congress to enact RA 6891 and vesting the DOJ the power to determine who can qualify as a state witness in the program. The power of the Court to discharge a state witness only comes once it acquires jurisdiction. The power to discharge is an exercise of jurisdiction, but it is not an inherent judicial function. Thus, Webb s challenge of RA 6891 cannot succeed. Marcos v. Manglapus In 1986, Marcos was deposed from Presidency via the people power revolution and was forced into exile. Aquino took over what was called a revolutionary government. However, her ascension to and consolidation of power have been challenged numerous times by several coups. She also had to contend with communist insurgency and separatist movements in Mindanao. Moreover, the accumulated foreign debt and the plunder of the nation have left the economy devastated. But Marcos, in his deathbed, wishes to return to the Philippines to die. On the other hand, Aquino, considering the dire consequences to the nation of Marcos return, stood firm on the decision to bar the return of Marcos and his family. First, the Court stated that the 1987 Constitution has fully r estored the separation of powers to the 3 branches of government. However, not only division was established, but also plenary power in each branch subject only to the limitations provided by the Constitution. In other words, a grant of power executive power means a grant of all executive power. Moreover, the Constitution does not clearly define what is meant by executive power . However, although the Constitution imposes limitations on the specific powers of the President, the fundamental law maintains in tact what is traditionally considered as within the scope of executive power . In other words, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. Executive power is more than the sum of specific powers so enumerated. Whatever power inherent in the government that is neither legislative nor judicial has to be executive. The Court also declared that the power involved in this case is the President s residual power to protect the general welfare of the people. It is a power borne by the President s duty to preserve and defend the Constitution. It may also be seen as a power implicit in the President s duty to ensure that the laws are faithfully executed.

Particularly, the President exercises her powers as protector of the peace, which is not limited to exercising CiC powers in times of emergency. The President is also tasked w/ attending to the day-to-day problems of maintaining peace and order even where there is no foreign foe. Ultimately, the President invokes her residual unstated powers that are implicit in and correlative to the paramount duty residing in her office to safeguard and protect the general welfare. Thus, the Court rule that given the situation of the nation at that time , the President s determination that the destabilization that could arise by the return of Marcos would wipe away the gains achieved, cannot constitute GADALEJ on her part. It was in the national interest and general welfare of the Filipino people. Thus, the petition is dismissed. Laurel v. Garcia After World War II, the Philippines entered into a Reparations Agreement with Japan. Reparations valued at 550 million dollars would be payable in 20 years in accordance w/ annual schedules of procurements. The Roppongi property is one of 4 properties acquired by the Philippines for national development projects and indemnification to the Filipino people. The Roppongi property was originally intended for the chancery of the Philippine Embassy. It did become the site of the embassy, until the latter transferred to Nampeidai and, as a result, the Roponngi property has remained unoccupied and underdeveloped. In 1987, the President issued EO 296, entitling non-Filipinos to avail of reparations capital goods and services in the event of sale, lease, or disposition.In other words, the Executive branch pushed for the sale of reparation properties and started with the Roppongi property, which has actually been set for bidding twice, until the court issued a TRO. Petitioners enjoin the sale and contend that the Philippine government cannot alienate the Roponggi property, much less sell it to non-Filipinos, as it is one for public service. They argue that the property is classified as one of public dominion and, thus, no ownership by any one can attach to it not even the State. Consequently, it cannot be alienated nor be the subject of contracts. The Court declared that said property is indeed one of public dominion. Specifically, those that belong the State, without being for public use, and are intended for some public service or for the development of the national wealth. Thus, it is outside the commerce of man. Its purpose is to serve the citizens. The Court also declared that the fact that the Roponggi property has not been used for a long time does not automatically convert it to patrimonial property. The conversion only takes place when the property is withdrawn from public use via a formal declaration on the part of the government. The Court ruled that even

EO 296 does not expressly declare that the properties have lost their public character. It only makes the properties available to foreigners in case of a sale. Even assuming, arguendo, that the property is no longer of public domain, there is still no law authorizing its conveyance. Both the Administrative Code of 1917 and 1987 provide that real property of the government has to be authorized by law before such can be conveyed. The President cannot convey valuable real property solely based on her will, but must be authorized and approved by a law enacted by Congress. Whether or not the Roppongi and related properties will eventually be sold is a policy determination where both the President and Congress must concur. To put it briefly, there is a need for a law or formal declaration to withdraw the Roponggi property from public domain to make it alienable and, at the same time, there is a need for legislative authority to allow the sale of said property. Thus, the petition is granted. Djumantan v. Domingo Bernard Banez, married to Marina Cabael, went to Indonesia as a contract worker. He eventually converted to Islam and married Djumantan in accordance with Islamic Rites. Banez returned to the Philippines with Djumantan and their 2 children. Banez made it appear that the 3 are guests of Banez and that he was simply repaying the hospitality that they extended to him in Indonesia. Djumantan and her 2 children were admitted into the Philippines as temporary visitors under the Immigration Act of 1940. The immigration status of petitioner was eventually changed to that of permanent resident and was issued an alien certificate of registration. Cabael then discovered the true relationship of Banez and Djumantan and filed for concubinage with the MTC, but the case was dismissed. Leonardo Banez, the eldest son, then a letter-complaint with the Ombudsman who referred the letter to the Commission on Immigration and Deportation and deportation proceedings were instituted. Petitioner claims that her marriage to Banez was valid under the Muslim Code, which recognizes the practice of polyandry. Thus, under the Family Code, the CID has no right to order the couple to live separately and split the family up. The Court ruled that first, the privileges that Djumantan acquired upon entering the Philippines were all obtained through misrepresentation. Had Banez disclosed to immigration that he is married to Djumantan would likely lead to a different outcome as authorities would be less inclined to allow the entry of a woman who claims to be married to a Filipino who is, in turn, married to another.

Generally, the right of the President to expel or deport ali ens whose presence is deemed inimical to public interest is absolute and unqualified in the same way that he has the right to prohibit and prevent their entry into the country. Aliens are not part of the nation and, thus, their admission is a matter of per mission and tolerance, which does not create an obligation on the part of the government to permit them to stay. There is also no law guaranteeing aliens married to Filipino citizens the right to be admitted, much less be given permanent residency in the Philippines. The fact of marriage does not make an alien immune from the immigration laws. Under the Immigration Act of 1940, the CID may decline admission into the country. And if admitted, the alien has no right to an indefinite stay. Among those allowe d to apply for a change of status and may be admitted as a permanent resident are the spouses of Filipino citizens. However, under the Immigration Act of 1940, an alien who enters the Philippines by means of false and misleading statements inspection is subject to deportation. The prescriptive period for arrest in the deportation proceedings is within five years after the cause for deportation arises. Unfortunately, in the instant case, the right to deport petitioner has prescribed. Petitioner was allowed entry into the Philippines in 1979 and Banez filed a complaint with the CID in 1980, but the issuance of the order of her deportation came only in 1990. Thus, the petition is granted. Chavez v. PCGG Petitioner Chavez filed a case against the PCGG seeking that a) the latter be enjoined from privately entering into and perfecting any agreement with the heirs of Marcos as regards the ill-gotten wealth and b) the latter be compelled to make public all negotiations and agreements, whether ongoing or perfected. The PCGG and the heirs of Marcos entered into a General Agreement and Supplemental in December 1993. Chavez claims that any compromise on the alleged billions of ill-gotten wealth involves an issue of paramount public interest and is, thus, s ubject to the people s constitutional right to information and the state s duty to disclose transactions involving national interest. The SC ruled that the right to public information yields to a handful of exceptions: y National security matters and intelligence information y Trade secretes and banking transactions y Criminal matters y Other confidential information (closed door Cabinet meetings, executive sessions, deliberations of the SC, etc.)

However, information as to the ill-gotten wealth of the Marcoses is a different matter. After the exile of the Marcoses, EOs were issued by President Aquino, creating the PCGG to recover the said ill-gotten wealth and requiring it to expeditiously achieve its task, taking into consideration national interest and national survival. There is no doubt that the recovery of said assets is a matter of public concern. The SC further ruled that the right to information also covers ongoing negotiations or those prior to the final agreement, as seen from the deliberations of the Constitutional Committee. Finally, the Court struck down the General Agreement and Supplement Agreement between the PCGG and the heirs of Marcos for being unconstitutional. First, it compromises both civil and criminal liability as it does not conform to the requirements of the EOs issued by Aquino. Under EO 14 -A, the PCGG may grant criminal immunity to those who provide info or testify as regards the assets sought. However, criminal immunity cannot be granted to the Marcoses who are the principal defendants in cases pending before the Sandiganbayan. The criminal immunity is applicable mainly to witnesses. Second, item 2 of the GA commits the PCGG to exempt from all forms of taxes the properties to be retained by the Marcoses. Such is clear violation of the Constitution as the power to tax and to grant tax exemptions is vested in Congress and to a certain extent, local legislative bodies. Third, in the GA, the government binds itself to cause the dismissal of all cases against the Marcoses pending before the Sandiganbayan and other courts. Such is a direct encroachment on judicial powers, especially as regards criminal jurisdiction. It is the court that decides, based on the merits, if the case will be dismissed. Fourth, the government also waives all claims and counter-claims, whether past, present, or future against the Marcoses. Such cannot be done as the Civil Code provides that an action for future fraud may not be waived. It makes the Marcoses beyond the reach of law. Fifth, President Ramos did not approve the Agreements. As stated in the Memorandum released by the President to the PCGG, the full powers of attorney did not authorize the PCGG chairman to approve the Agreements, which is reserved for Ramos as President. Thus, the petition is granted. Pontejos v. Ombudsman In 1998, Restituto Aquino filed an affidavit/complaint before the Ombudsman against officials of the Housing and Land Use Regulatory Board Pontejos, Imperial, and Atos.

Aquino accused Pontejos and Atos of conspirin g to exact money from him in exchange for a favorable decision in a case against Roderick Ngo. Pontejos was allegedly Aquino s counsel at the same time that the former was the hearing officer of the case. Atos, on the other hand, received 10k from Aquino. Atos issued affidavits that stated that she encashed the check allegedly to accommodate her boss, Pontejos. She also stated that she attended at least 4 meetings with Pontejos and Aquino during which the former offered legal services to Aquino. The Office of the Ombudsman found probable cause against Pontejo for the crimes of estafa, direct bribery, and illegal practice of profession. However, then Ombudsman Desierto issued a Resolution extending immunity to Atos on the condition that she would appear and testify against Pontejos in accordance with the affidavits she submitted. Pontejos now alleges, among others, that the Ombudsman committed GADALEJ when it granted an immunity to Atos to become a state witness. The SC ruled that the decision on whether or not to prosecute and whom to indict is executive in character. The prosecutorial powers include the discretion of granting immunity to an accused in exchange for testimony against another. Jurisprudence has held this to be a deliberative renunciation of the right of the State to prosecute those who appear guilt. The justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who will probably elude the law. Moreover, it is constitutionally permissible for Congress to vest the prosecutor with the power to determine who can qualify as a witness and be granted immunity from prosecution. The DOJ, COMELEC, and PCGG, among others, are allowed to grant immunity from prosecution. Under Section 17 of the Ombudsman Act of 1989, the Office of the Ombudsman was also vested with the power to grant immunity from prosecution. As regards the courts, the SC declared that the trial court is given the power to discharge an accused only when it has acquired jurisdiction over the case. But the power to choose who to discharge as a state witness is an executive function. It is not a judicial prerogative. In the instant case, the Office of the Ombudsman did not commit GADALEJ as it considered Atos position, record, and involvement in the case prior to the discharge. The Resolution issued noted that Atos testimony was extremely necessary to prove the offenses charged against Pontejos. Thus, the petition is denied. Review Center v. Ermita In June 2006, the Nursing Board Examinations were conducted. Licensure applicants wrote the Professional Regulation Commission that handwritten

copies of two sets of examinations were circulated during the examination period among reviewees at the RA GAPUZ REVIEW CENTER and INRESS REVIEW CENTER. The PRC later admitted the leakage and traced it to two Board of Nursing members. Consequently, PGMA replaced all the members of the PRC s Board of Nursing. She also ordered the examinees to retake the exam. Then she issued EO 566, authorizing the CHED to supervise the establishment and operation of all review centers and similar entities in the Philippines. CHED then released Memorandum Order 49, the IRR. The IRR provides that a) only CHED recognized and accredited HEIs may be authorized to establish and operate review centers and b) review centers shall be given 1 year to tie-up/be integrated with existing HEIs in order to continue their operation. The Review Center Association of the Philippines then asked the CHED to amend, if not withdraw, the IRR, praying that independent review centers be excluded from the coverage of CHED and arguing that giving permits to operate a review center to Higher Education Institutions will abolish independent review centers. On the other hand, respondents argue that to grant the request of petitioners would be to thwart the intention of EO 596. Moreover, that PGMA was simply exercising her executive power to ensure that the laws are faithfully executed and residual powers under the Administrative Code of 1987. First, the SC ruled that EO 566 expanded the coverage of RA 7722, CHED s enabling act. Under the RA, it is provided that the coverage of the CHED would be both public and private institutions of higher education as well as d egreegranting programs in all post-secondary educational institutions. On the other hand, EO 566 directed the CHED to regulate review centers and other similar entities. EO 566 defines review centers as a program or course of study that is intended to refresh and enhance the knowledge or competencies and kills of reviewees in preparation for the licensure examinations. A review center is not an instutiton of higher learning as contemplated in the RA. Second, there is a usurpation of legislative power. Under the Administrative Code of 1987, it is provided under Section 20 that the President shall exercise residual powers and functions vested in the President, which are provided for under the law, but are not specifically enumerated in this Code. Thus, the exercise of the President s residual powers under the Code has to provided for by law. But there is no law granting the PGMA the power to amend the functions of the CHED. In other words, PGMA may not amend RA 7722 through an EO w/out a prior legislation granting her such power.

Jurisprudence states that executive power is generally defined as the power to enforce and administer laws. It is the power of carrying the laws into practical operation and enforcing their due observance. Thus, the President is granted administrative power over offices under his control to enable him to discharge his duties effectively. Administrative power is concerned with applying policies and enforcing orders as determined by proper governmental organs. Also, administrative power allows the President to issue administrative orders, rules, and regulations. However, AOs are ordinances issued by the President must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out legislative policy. IRRs or AOs are not a substitute for the general policy making that Congress enacts. The authority to prescribe rules is not an independent source of power. In the instant case, the CHED may only exercise its rule-making power within the confines of its jurisdiction as provided for under RA 7722, i.e., institutions of higher education and those that offer degree-granting programs and not review centers. Thus, the petition is granted. Banda v. Ermita The NATIONAL PRINTING OFFICE was formed in 1987 via EO 285 issued by President Aquino. The NPO was the product of the merger of the GOVERNMENT PRINTING OFFICE and printing units of the PHILIPPINE INFORMATION AGENC Y. In 2004, PGMA issued EO 378, amending sections of EO 285. The amendments provide that the NPO shall no longer enjoy exclusive jurisdiction over the printing services requirements of the government. It shall have to compete with the private sector, except in the printing of election paraphernalia. Moreover, the appropriation for the NPO shall be limited to its income without additional financial support from the government . Petitioners contend that PGMA cannot amend EO 285, a legislative act during the time of President Aquino, by simply issuing another EO. The SC first ruled that it is well-settled in Philippine jurisprudence that the President has the power to reorganize offices and agencies in the Executive Department or the internal organization of the Office of the President Proper. Such is in line with a) the President s constitutionally granted power of control over Executive offices and b) by virtue of previous delegation of legislative power. The Administrative Code of 1987 gives the President the continuing authority to reorganize and redefine the functions of the Office of the President in order to achieve simplicity, economy, and efficiency. Reorganization, consequently,

involves the reduction of personnel, consolidation of offices, and abol ition of offices by reason of economy. Next, NPO, as an agency that is part of the Office of the Press Secretary is part of the Office of the President. In the case at bar, there was neither an abolition of the NPO nor a removal of any of its functions. I t simply has to compete with the private sector as a result of the EO. Moreover, under Section 20 of the Administrative Code states the residual powers.It is provided that the President shall exercise such other powers and functions vested in the President that are provided for under the laws, but are not specifically enumerated in the Code. In other words, the power of the President to reorganize the Executive Branch includes powers and functions that may be provided for under other laws, even general appropriation laws. The SC has held in previous cases that the President s authority to effect organizational changes may be traced from GAAs. In the present GAA of 2003, Section 77 and 78 provides for the authority of the President to effect a wide variety of organization changes in any office/agency under the Executive Department. Even the appropriation of agencies that fall under reorganization may be realigned under the GAA. Ultimately, the issuance of EO 378 was an exercise of delegated legislative power granted by the Administrative Code of 1987. The EO purports to institute necessary reforms in government in order to achieve simplicity, economy, and efficiency. But this continuing authority to reorganize only applies to the Office of the President and the departments under the Executive branch. Last but not least, jurisprudence has been consistent in ruling that reorganizations are valid so long as they are done in good faith. If the reorganization were done in good faith, the abolition of positions, which results in loss of security of tenure of affected government employees would be valid. Thus, the petition is dismissed. Biraogo v. Truth Commission While campaigning for President for the May 2010 elections, then Senator Noynoy Aquino declared his slogan of kung walang corrupt, walang mahirap. After winning presidency, Aquino wanted to transform his slogan into reality and created a special body to investigate reported cases of graft and corruption allegedly committed during the Arroyo administration. Aquino issued EO 1, creating the Philippine Truth Commission of 2010. The PTC is an ad hoc body formed under the Office of the President. It s primary task is to investigate reports of graft and corruption committed during the previous administration and thereafter submit its finding and recommendations to the

President, Congress, and the Ombudsman. As an ad hoc body, the PTC constitutes a public office. Petitioners contend, among others that the PTC usurps the power of Congress to create a public office and appropriate funds for its operation. Moreover, that the continuing authority of the President to reorganize his office does not include the power to create an entirely new public office. First, the SC ruled that under the Revised Administrative Code reorganization is limited only to the reduction of personnel or con solidation/abolition of offices. It points to situations where a body/office is already existent but a modification has to be effected. The creation of an office is not mentioned in the RAC. Thus, to say that the PTC is borne out of a restructuring of the Office of the President is misplaced. Likewise, the creation of the PTC is not justified by he President s power of control. Control is the power to modify or annul what a subordinate had done and to substitute in its place the judgment of the superior. The power of control is different from the power to create public offices. However, the power to create a PTC finds justification under Section 17, Article 7 of the Constitution, which provides that the President shall ensure that the laws are faithfully executed. The allocation of powers as a result of the separation of powers is a grant of all powers inherent in each department. Thus, the President s power to conduct investigations to aid him in ensuring the faithful execution of laws is inherent in his powers as Chief Executive. As jurisprudence holds, that said power is not explicitly mentioned in the Constitution does not mean that President is bereft of such authority. One of the recognized powers of the President granted pursuant to the faithful execution clause is the power to create ad hoc committees. It flows from the need to ascertain facts and determine if laws have been executed faithfully. The purpose is to allow an inquiry into matters that the President is entitled to know so that he ca be properly advised and guided in the performance of his duties. Moreover, the PTC does not usurp the power of the Ombudsman or DOJ, but even complements it. The PTC is confined to fact-finding or investigation, which is different from adjudication. Adjudication involves resolving or ruling on issues in accordance with the law, while the purpose of investigation is to discover information. Unfortunately, the PTC must be struck down as it violates the equal protection clause. It means that all persons/things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. The PTC was mandated to investigate only on the previous Arroyo administration and this intent to single out is patent and manifest.

The Arroyo administration is simply a member of a class, i.e., a class of past administrations. It is not a class of its own. Thus, not to include past administrations similarly situated constitutes arbitrary classification that the equal protection clause cannot sanction. Thus, the petition is granted. US v. Nixon In 1974, the District Court of Columbia returned an indictment charging 7 individuals with various offenses, including conspiracy to defraud the US and to obstruct justice. President Nixon was name an unindicted conspirator. A subpoena was issued, requiring the production of certain tapes, memoranda, papers, etc. relating to identified meetings between the President and others. The President publicly released edited transcripts of 43 conversations; portions of 20 conversations subject to the subpoena. Then, the President moved to quash the subpoena, which was accompanied by a claim of executive privilege. This was denied by the district court. Nixon contends that the subpoena should be quashed because it demands confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce. But he does not place his claim of privilege on the ground they are military or diplomatic secrets. The President urges two grounds. The first ground is the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties and decisionmaking. The privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. The second ground asserted rests on the doctrine of separation of powers. It is argued that the independence of the Executive Branch within its own sphere insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications. The US SC began by stating that the nature of the proceeding for which the evidence is sought is a criminal prosecution. It was a judicial proceeding in a federal court alleging violation of federal laws and is brought in the name of the US. The US SC then ruled that neither the doctrine of separation of powers nor the need for confidentiality of high-level communications can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. When the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, The US SC found it difficult to accept Nixon s argument.

To argue that an absolute, unqualified privilege or, in other words, a generalized claim of the public interest in confidentiality of non -military and non-diplomatic discussions, should stand in the way of the duty of the Judiciary to do justice in criminal prosecutions would conflict with the function of the courts, as the separation of powers were not intended to operate with absolute independence. However, the Court recognized the existence of a presumptive privilege for Presidential communications. The expectation of a President to the confidentiality of his conversations and correspondence must be respected. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately. But this presumptive privilege must be considered in light of the commitment to the rule of law. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. No case of the Courthas extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution is there any explicit reference to a presumptive privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based. Thus, the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities must be weighed against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed, and entitled to great respect. However, the SC refused to believe that advisers will temper the candor of their remarks during decision-making processes because of the possibility that such conversations will be called for in the context of a criminal prosecution. On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and impair the basic function of the court. Ultimately, a President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts, a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

Thus, when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. Almonte v. Vasquez Petitioner Almonte was then Commissioner of the ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU (EIIB), while Perez was the Chief of the Budget and Fiscal Management Division. The function of the EIIB is to gather and evaluate intelligence reports regarding illegal activities affection national economy. The Ombudsman received an anonymous letter alleging that funds representing savings from unfilled positions in the EIIB had been illegally disbursed. The letter states that during the implementation of EO 127, 190 personnel were dismissed. Before the EO, the EIIB had monthly savings of 500k from unfilled plantilla positions plus the implementation of RA 6683, a total amount of 1.4 million was saved. However i t was disbursed. The EIIB has a syndicate headed by the Chief of Budget Division who is manipulating funds and also the brain of ghost agents . The Commissioner has the biggest share. Almonte and Perez denied that savings were garnered as a result of the separation of personnel. However, the Graft Investigation Officer Sano found the comments unsatisfactory and issued subpoenas to Almonte and Perez. He also issued subpoena duces tecum to Chief of the EIIB s Accounting Division and ordered him to bring all documents relating to Personal Services Funds for the 1988 and all evidences for the whole plantilla of EIIB for 1988. The Ombudsman granted Almonte and Perez motion to quash their subpoenas, but maintained those for of the EIIB Accounting Division. Petitioners contend that to produce documents relating to personal services and salary vouchers of EIIB employees will lead to the knowledge of its operations, movements, tactics, which would destroy the EIIB. The SC ruled that a governmental privilege against disclosure is recognized w/ respect to state secrets bearing on military, diplomatic, and similar matters. Moreover, in the case of US v. Nixon, there is a recognized right of the President to the confidentiality of his conversations and correspondence. Aside from this, there is the privilege to withhold the identity of persons who furnish information of violation of laws. But where the claim of confidentiality does not rest on the need to protect military, diplomatic, or other national security secrets, but on a general public interest in the confidentiality of his conversations , courts have declined to find

in the Constitution an absolute privilege of the President against a subpoena, especially when it is essential to the enforcement of criminal laws. In the instant case, there is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the personnel of the EIIB. There is also no law that considers personnel records as classified information. Moreover, if, as the petitioners claim, the subpoenaed records have been examined by COA, there is no reason why they cannot be shown to another agency of government the Office of the Ombudsman. The need for documents by the Ombudsman, which was constitutionally mandated to look into any complaint concerning public office, outweighs the claim of confidentially of the petitioners. Assuming, arguendo, that the documents are presumptively privileged, it would still not move for their nonproduction, but only justifying that the inspection be in camera, with the public excluded.Thus, a reconciliation is made between the demands of national security and the requirement of accountability of public officers.The Court even stated that some matters of national security have been inquired into in appropriate in camera proceedings by the courts. Thus, the petition is dismissed. Senate v. Ermita The SC ruled that the phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. It is of American origin.Executive privilege is generally defined as the power of the Government to withhold information from the public, the courts, and the Congress. EP has encompassed claims of varying kinds. There are at least 3 distinct kinds of considerations, namely: y State secrets privilege o On the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. y Informer s privilege o The privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. y Generic privilege for internal deliberations o Intragovernmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated. However, just because a type of information is recognized as privileged does notnecessarily mean that it would be considered privileged in all instances. In determining the validity of a claim of privilege, the questions that must be asked are: y Whether or not the requested information falls within one of the

traditional privileges Whether or not that privilege should be honored in a given procedural setting

For example, in the case of US v. Nixon, the claim of privilege was based on the President s general interest in the confidentiality of his conversations and correspondence. The US SC rejected the President s claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. In our jurisdiction, the doctrine of executive privilege has been recognized in several cases. y State secrets regarding military, diplomatic, and other national security matters y Information on investigation of crimes by law enforcement agencies before the prosecution of the accused y Conversations, correspondences, and discussions in closed-door Cabinet meetings The meaning and scope of executive privilege, both in the United States and in our jurisdiction provides thatit is recognized only in relation to certain types of information of a sensitive character. Moreover, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. In the instant case, Section 3 of EO 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before Congress. The enumeration is broad. It covers all senior officials who, in the judgment of the heads of offices designated in the same section, are covered by the executive privilege. In other words, EO states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege is properly invoked in relation to specific categories of information and not to categories of persons. Moreover, the reference of the EO to officials being "covered by the executive privilege" may be read as an abbreviated way of saying that the person is in possession of information which is privileged, in the judgment of the head of office concerned. Upon a determination by the designated head of office or by the President that an official is "covered by the executive privilege," such official is subjected to the requirement that he first secure the consent of the President prior to appearing before Congress. In other words, unless he is permitted by the President.

As a result, whenever an official invokes EO 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President or a head of office has determined that the requested information is privileged. And that the President has not reversed such determination. However, such declaration, even without mentioning the term "executive privilege," amounts to an implied claim that the information is being withheld on the basis of executive privilege. To put it briefly, there is an implied claim of privilege. While the validity of claims of privilege must be assessed on a case to case basis, the implied claim of privilege is a defect that renders the EO invalid per se. The claim is not accompanied by any specific allegation, for example, on whether or not the information demanded involves military or diplomatic secrets, closeddoor Cabinet meetings, etc. Congress is left to speculate as to which among them is being referred to by the executive. It does not suffice to merely declare that the President or an authorized head of office has determined that such a matter falls under EP and that the President has not overturned that determination. Based on jurisprudence, a claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. It is not to be lightly invoked. There must be a formal claim of privilege. Absent a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges or whether, given the circumstances in which it is made, it should be respected. A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Last but not least, the Court found it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President," which means that he personally consulted with her. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Neri v. Senate In 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhing Xiong Telecommunications Equipment for the supply of equipment and services for the National Broadband Network Project in the amount of approximately P16 Billion Pesos. The Project was to be financed by

China. In connection with this NBN Project, the Senate issued Resolutions for legislative inquiries in aid of legislation. The investigation was also claimed to be relevant to the consideration of 3 pending Senate bills. Senate Committees initiated the investigation by sending invitations to personalities and cabinet officials involved in the NBN Project. Neri was among those invited. On 26 September 2007, Neri testified before respondent Committees for 11 hours. He disclosed that then COMELEC Chairman Benjamin Abalos offered him 200 million in exchange for his approval of the NBN Project. He further narrated that he informed GMA about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, Neri refused to answer, invoking executive privilege . In particular, he refused to answer the questions on: y Whether or not President Arroyo followed up the NBN Project y Whether or not she directed him to prioritize it y Whether or not she directed him to approve Respondent Committees issued a Subpoena ad testificandum to petitioner, requiring him to appear and testify on 20 November 2007. Executive Secretary Ermita then requested respondent Committees to dispense with Neri s testimony on the ground of executive privilege. Ermita said that based on the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials, which are considered executive privilege Moreover, the context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People s Republic of China. Thus, Neri did not appear before the Senate in November. Eventually, Neri was cited in contempt and his arrest was ordered, as well as his detention until such time that he would give his testimony. Neri s motion for reconsideration was also denied. Thus, he filed a petition with the SC. The Court granted the petition. First, the power of Congress to conduct inquiries in aid of legislation is broad, but it has limitations. One of which is when there is a valid claim of executive privilege. Second, the Court reviewed the concept of EP. The Case of US v. Nixon established the concept of presidential communications privilege. It recognized a great public interest in preserving the confidentiality of conversation that take place in the President s performance of his official duties. Presidential communications are presumptively privileged. It is founded on the President s generalized interest in confidentiality. In In re: Sealed Case, the US courts ruled that there are 2 kinds of executive privilege:

Presidential communications privilege o Communications or documents that reflect presidential decisionmaking and deliberations. o Decision-making of the President o Rooted in the separation of powers o Applies to documents in their entirety o Covers pre-deliberative, final, and post-decisional materials Deliberative process privilege o Advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated. o Decision-making of executive officials o Rooted in common law privilege

The Sealed Case also ruled that the presidential communications privilege is confined only to the White House Staff that has operational proximity to direct presidential decision-making. Aside from that, the traditional matters covered by executive privilege are: y Military or state secrets y Identity of government informers y Information related to pending investigations Foreign relations Moreover, jurisprudence has developed 3 elements of presidential communications privilege: y The protected communication must relate to a quintessential and nondelegable presidential power y The communication must be authored, solicited, or received by a close advisor of the President or the President himself, i.e., in operational proximity with the President. y The presidential communications privilege may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority In the instant case, the SC ruled that the communications elicited by the 3 questions are covered by the presidential communications privilege. First, the communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an executive agreement with other countries, as economic and diplomatic relations with China are involved. Second, the communications are received by a close advisor of the President. Under the operational proximity test, Neri can be considered a close advisor, being a member of President Arroyo s cabinet. Third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the i nformation elsewhere by an appropriate investigating authority. There is no explanation from the

Senate Committees to show compelling or critical need for the answers to the 3 questions in the enactment of a law. Moreover, the information here is elicited in a legislative inquiry and not in a criminal proceeding, which is a stark contrast with the Nixon case. And as ruled in Senate v. Ermita, the claim of EP depends not only on the ground invoked, but also the procedural setting in which the claim is made. Akbayan v. Aquino In 2005, Congressmen Tanada III and Aguja filed House Resolution 551, calling for an inquiry into the bilateral trade agreements then being negotiatioed by the Philippine government, particularly the JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP AGREEMENT. The House Committee on Globalization invited Undersecretary Aquino for inquiry and asked him to furnish the Committee with a copy of latest draft of the JPEPA. Aquino was the Chairman of the PHILIPPINE COORDINATING COMMITTEE that was tasked to study the feasibility of the JPEPA. Aquino did not heed the request, but instead said that a copy will be provided once the negotiations are completed. The House Committee was about to issue a subpoena, but House Speaker de Venecia asked that it be held in abeyance until the President gives her consent to the disclosure of the documents. The JPEPA was signed by PGMA in September 2006. It has since then been endorsed to the Senate for concurrence. The JPEPA covers a broad range of topics, such as trade in goods, rules of origin, customs procedures, etc. Since then, the final text of the JPEPA has been made accessible to the public. However, respondents contend that the initial drafts thereof were kept from public view during the time when the JPEPA was still being negotiated. In other words, petitioners seek to obtain even the offers submitted by both countries during the negotiation process. First, the Court ruled that JPEPA is a matter of public conc ern, even the offers submitted during the negotiations toward its execution. But at the same time, it is established in our jurisprudence that there are certain types of information that are considered privileged diplomatic/foreign relation matters, for one. The SC ruled that while the final text of the JPEPEA may not be kept confidential, as there should be opportunity for discussion before a treaty is approved, the offers exchanged during the negotiations continued even after the JPEPA is published. Disclosing said offers could impair the ability of the Philippines to deal with foreign governments in future negotiations. And for obvious reasons, publicity tends to freeze negotiating positions and inhibits the give -and-take essential to successful negotiation. The SC has also ruled before that info on inter -government exchanges prior to

the conclusion of a treaty may be withheld from public for the sake of national interest. The secrecy of negotiations with foreign countries is not violative of Constitutional provisions on freedom to information. An essential characteristic of diplomacy is its confidential nature because of how delegates from various countries engage in private discussions that they would not do so under other circumstances. Thus, not just diplomatic matters in general, but diplomatic negotiations as well were recognized by the SC as privileged communication. The diplomatic negotiations privilege was likened to the deliberative process privilege and presidential communications privilege. Said privileges rested not on the need to protect national security per se, but on the obvious reason that officials will not communicate candidly among themselves if each remark is a potential item of front page news. The diplomatic negotiations privilege is meant to encourage a frank exchange of exploratory ideas between the negotiating parties. It seeks to protect the independence in decision-making of the President, as the sole representative of the nation in external relations. In other words, the privilege accorded is because the information is part of a process of deliberation that must be presumed confidential in light of public interest. The Court also clarified that the privilege applies to the negotiation process as a whole and not simply to certain stages. The SC then ruled that that there was no sufficient public interest to overcome the claim of privilege. Moreover, as the full text of the JPEPA has been published, ample opportunity for discussion presents itself before the treaty can be ratified. Furthermore, the treaty-making power is exclusive to the President. He alone has the power to enter into treaties/international agreements and negotiate with other states in the process. The power is subject only to the concurrence of at least 2/3 of Senators. Congress may or may not validity to the treaty in its final form, but it cannot intrude in the field of negotiation. Last but not least, the SC ruled that the failure of the respondents to claim EP during the House Committee hearings and, thus, brought it up only during the petition does not constitute a waiver of EP. Back then, the House Committee simply requested for documents and to that, respondents simply replied that the negotiations were still ongoing. Mere requests do not call for a strict assertion of EP.