PALOMERA, JOSHUA CARL L.

CONSTI2 - 1D

CH 9. RIGHT TO INFORMATION

(4) SENATE V. ERMITA

FACTS:

The Senate Committees sent invitations to various officials of the Executive Department and
AFP officials for them to appear before Senate on Sept. 29, 2005. However, Executive Sec.
Ermita sent a letter to Senate President Drilon, requesting for a postponement of the hearing on
Sept. 29 in order to “afford said officials ample time and opportunity to study and prepare for the
various issues so that they may better enlighten the Senate Committee on its investigation.”
Senate refused the request.

On Sept. 28, 2005, the President issued EO 464, effective immediately. Section 1 of the said
order requires all heads of the departments of the Executive Branch to secure the
consent of the President prior to appearing before either the Senate or the House of
Representatives. Section 2(a) of the same order enumerates the kind of information
covered by executive privilege, while Section 2(b) lists down the list of officials covered by
the order. Finally, Section 3 requires all officials mentioned in Section 2(b) to secure
authorization from the President prior to appearing before the Senate or the House of
Representatives.

Pursuant to this Order, Executive Sec. Ermita communicated to the Senate that the executive
and AFP officials would not be able to attend the meeting since the President has not yet given
her consent. Despite the lack of consent, Col. Balutan and Brig. Gen. Gudani, among all the
AFP officials invited, attended the investigation. Thus, both faced court marshal for such
attendance.

ISSUES:

1. Whether or not E.O. 464 violates the right of the people to information on matters
of public concern;
2. Whether ot not respondents have committed grave abuse of discretion when they
implemented E.O. 464 prior to its publication in a newspaper of general
circulation; and

HELD:

1. Yes. Given that congressional hearings are generally held in public, any executive
issuance that tends to unduly limit disclosures of information in such
investigations necessarily deprives the people of information which, being
presumed to be in aid of legislation, is presumed to be a matter of public concern.
 The citizens are thereby denied access to information which they can use in formulating
their opinions on the matter before Congress -- opinions which they can then
communicate to their representatives and other government officials through the various
legal means allowed by their freedom of expression.

2. Yes. Laws, including presidential issuances, must be first published either in the
Official Gazette or in a newspaper of general circulation prior to their
implementation.

In the instant case, E.O. 464 was immediately invoked even if the requirement of prior
publication has not been satisfied yet. Although E.O. 464 applies only to officials of
the executive branch, it does not follow that the same is exempt from the need for
publication. It has a direct effect on the right of the people to information on
matters of public concern. Due process requires that the people should have been
apprised of its issuance before it was implemented.