Iniego, Justin Miguel L.

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Assigned Cases Consti I

DOCTRINE OF ‘INAPPROPRIATE PROVISION’ Gonzales v. Macaraig, Jr.G.R. No. 87636.

November 19, 1990MELENCIO-HERRERA, J

DOCTRINE:
When the legislature inserts inappropriate provisions in a general appropriation bill, suchprovisions
must be treated as ‘items’ for purposes of the Governor’s item veto power overgeneral appropriation
bills.

FACTS:Congress passed House Bill No. 19186 (eventually signed into law as RA 6688), or the
General Appropriations Bill for the Fiscal Year 1989. As passed, it eliminated or decreased certain
items included in the proposed budget submitted by the President. The President vetoed Sec. 55 (and
Sec 16) thereof which provides that:“No item of appropriation recommended by the President in the
Budget submitted to Congress… which has been disapproved or reduced in this Act shall be restored or
increased by the use of appropriations authorized for other purposes by augmentation.”The President’s
reason for the veto was that provision violates Section 25 (5) of Article VI of the Constitution. If
allowed, this Section would nullify not only the constitutional and statutory authority of the President
to augment any item in the general appropriations law for their respective offices from savings in other
items of their respective appropriations.Petitioners, as members and ex-officio members of the
Committee on Finance of the Senate, questions the validity of the veto on the grounds that the line-veto
power of the President in appropriations bill pertain to items not provisions; and that the line-veto
power does not authorize the President to strike out restrictions or conditions as it will be tantamount to
legislation in transgression of the doctrine of separation of powers.

ISSUE:WON the assailed provisions are within the vetoing power of the President

RULING: Yes, they are inappropriate provisions that should be treated as items for the purpose ofthe
President’s veto power.

The terms item and provision in budgetary legislation and practice are conceitedly
different. An ‘item’ of an appropriation bill obviously means an item which in itself is a specific
appropriation of money, not some general provision of law, which happens to be put into an
appropriation bill." However, we are of the opinion that Section 55 (FY ‘89) and Section 16 (FY‘90)
are not provisions in the budgetary sense of the term.

Explicit is the requirement that a provision in the Appropriations Bill should relates
pecifically to some" particular appropriation" therein. The challenged "provisions" fall short of this
requirement. Firstly, the vetoed "provisions" do not relate to any particular or distinctive appropriation.
They apply generally to all items disapproved or reduced by Congress in the Appropriations Bill.
Secondly, the disapproved or reduced items are nowhere to be found on the face of the Bill. Thirdly,
the vetoed Sections are more of an expression of Congressional policy in respect of augmentation from
savings rather than a budgetary appropriation.

When the legislature inserts inappropriate provisions in a general appropriation bill, suchprovisions
must be treated as ‘items’ for purposes of the Governor’s item veto power overgeneral appropriation
bills. Consequently, Section 55 (FY ‘89) and Section 16 (FY ‘90) althoughlabelled as "provisions," are
actually inappropriate provisions that should be treated as items forthe purpose of the President’s veto
power.

Restrictions or conditions in an Appropriations Bill must exhibit a connection with money items in a
budgetary sense in the schedule of expenditures. Again, the test is appropriateness.Conditions and
limitations properly included in an appropriation bill must exhibit such a connexity with
money items of appropriation that they logically belong in a schedule of-expenditures . . .
the ultimate test is one of appropriateness.

Tested by these criteria, Section 55 (FY ‘89) and Section 16 (FY ‘90) must also be heldto be
inappropriate "conditions." While they, particularly, Section 16 (FY ‘90), have been "artfullydrafted" to
appear as true conditions or limitations, they are actually general law measures moreappropriate for
substantive and, therefore, separate legislation.

Garcillano v. House of Representatives Committee on Public Information, G.R. No. 170338, 23

December 2008

FACTS

Petitioners in G.R. No. 179275 seek to disallow the Senate to continue with the conduct of the
questioned legislative inquiry on the issue of “Hello Garci” tapes containing the wiretapped
communication of then President Gloria Macapagal-Arroyo and COMELEC Commissioner Virgilio
Garcillano, without duly published rules of procedure, in clear derogation of the constitutional
requirement.

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of
general circulation only in 1995 and in 2006. With respect to the present Senate of the 14th Congress,
however, of which the term of half of its members commenced on June 30, 2007, no effort was
undertaken for the publication of these rules when they first opened their session. Respondents justify
their non-observance of the constitutionally mandated publication by arguing that the rules have never
been amended since 1995 and, despite that, they are published in booklet form available to anyone for
free, and accessible to the public at the Senates internet web page, invoking R.A. No. 8792.

ISSUE

Whether or not the invocation by the respondents of the provisions of R.A. No. 8792, otherwise known
as the Electronic Commerce Act of 2000, to support their claim of valid publication through the
internet is a substantial compliance of the constitutional requirement of publication.

RULING

NO.

Section 21, Article VI of the 1987 Constitution explicitly provides that [t]he 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 requisite of publication of the rules is
intended to satisfy the basic requirements of due process.

R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent
of a written document only for evidentiary purposes. In other words, the law merely recognizes the
admissibility in evidence (for their being the original) of electronic data messages and/or electronic
documents. It does not make the internet a medium for publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The
conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the
publication of the rules, because it can do so only in accordance with its duly published rules of
procedure
Senate v. Ermita G.R. No. 169777* April 20, 2006

FACTS:
This case is about the railway project of the North Luzon Railways Corporation with the China
National Machinery and Equipment Group as well as the Wiretapping activity of the ISAFP, and the
Fertilizer scam.

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. Before said date arrived, 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, which, among others, mandated
that “all heads of departments of the Executive Branch of the government shall secure the consent of
the President prior to appearing before either House of Congress.” 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. Both
faced court marshal for such attendance.

ISSUE:
Whether E.O. 464 contravenes the power of inquiry vested in Congress.

RULING:

The petitions are partly granted. Sections 2(b) and 3 of E.O. 464 are declared void. Section 1(a) are
however valid.

To determine the constitutionality of E.O. 464, the Supreme Court discussed the two different functions
of the Legislature: The power to conduct inquiries in aid of legislation and the power to conduct
inquiry during question hour.

Question Hour:

The power to conduct inquiry during question hours is recognized in Article 6, Section 22 of the 1987
Constitution, which reads:

“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.”

The objective of conducting a question hour is to obtain information in pursuit of Congress’ oversight
function. When Congress merely seeks to be informed on how department heads are implementing the
statutes which it had issued, the department heads’ appearance is merely requested.

The Supreme Court construed Section 1 of E.O. 464 as those in relation to the appearance of
department heads during question hour as it explicitly referred to Section 22, Article 6 of the 1987
Constitution.
In aid of Legislation:
The Legislature’s power to conduct inquiry in aid of legislation is expressly recognized in Article 6,
section21 of the 1987 Constitution, which reads:

“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.”

The power of inquiry in aid of legislation is inherent in the power to legislate. A legislative body
cannot legislate wisely or effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change. And where the legislative body does not itself possess the
requisite information, recourse must be had to others who do possess it.

But 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”. This is the power of the
government to withhold information from the public, the courts, and the Congress. This is recognized
only to certain types of information of a sensitive character. When Congress exercise its power of
inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that they are department heads. Only one official may
be exempted from this power — the President.
Section 2 & 3 of E.O. 464 requires that all the public officials enumerated in Section 2(b) should secure
the consent of the President prior to appearing before either house of Congress. The enumeration is
broad. In view thereof, whenever an official invokes E.O.464 to justify the failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is privileged.

The letter sent by the Executive Secretary to Senator Drilon does not explicitly invoke executive
privilege or that the matter on which these officials are being requested to be resource persons falls
under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in
view of the lack of consent from the President under E.O. 464, they cannot attend the hearing. The
letter assumes that the invited official possesses information that is covered by the executive privilege.
Certainly, Congress has the right to know why the executive considers the requested information
privileged. It does not suffice to merely declare that the President, or an authorized head of office, has
determined that it is so.

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is
not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it
merely invokes E.O. 464, coupled with an announcement that the President has not given her consent.

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 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.
Neri v. Senate G.R. No. 180643 September 4, 2008

FACTS:
The Senate issued various Senate Resolutions directing SBRC, among others, to conduct an
investigation regarding the NBN-ZTE deal. Neri, the head of NEDA, was then invited to testify before
the Senate Blue Ribbon. He disclosed that the COMELEC Chairman Abalos offered him P200M in
exchange for his approval of the NBN Project, that he informed PGMA about the bribery and that she
instructed him not to accept the bribe. However, when probed further on what they discussed about the
NBN Project, he refused to answer, invoking “executive privilege”. In particular, he refused to answer
the questions on (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not
she directed him to prioritize it, and (c) whether or not she directed him to approve. As a result, the
Senate cited him for contempt.

ISSUE:
Whether or not the communications elicited by the 3 questions covered by executive privilege.

RULING:

Yes, The SC recognized the executive privilege which is the Presidential communications privilege. It
pertains to “communications, documents or other materials that reflect presidential decision-making
and deliberations and that the President believes should remain confidential.” Presidential
communications privilege applies to decision-making of the President. It is rooted in the constitutional
principle of separation of power and the President’s unique constitutional role.
The claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a
power textually committed by the Constitution to the President, such as the area of military and foreign
relations. The information relating to these powers may enjoy greater confidentiality than others.

Elements of presidential communications privilege:

1) The protected communication must relate to a “quintessential and non-delegable presidential
power.” - i.e. the power to enter into an executive agreement with other countries. This authority of the
President to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.
2) The communication must be authored or “solicited and received” by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in “operational
proximity” with the President.
3) The presidential communications privilege remains a qualified privilege that 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. - there
is no adequate showing of a compelling need that would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an appropriate investigating authority.