EN BANC

[February 14, 2012.]

IN RE: PRODUCTION OF COURT RECORDS AND DOCUMENTS AND

THE ATTENDANCE OF COURT OFFICIALS AND EMPLOYEES AS
WITNESSES UNDER THE SUBPOENAS OF FEBRUARY 10, 2012 AND
THE VARIOUS LETTERS FOR THE IMPEACHMENT PROSECUTION
PANEL DATED JANUARY 19 AND 25, 2012.

NOTICE

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated FEBRUARY
14, 2012 , which reads as follows:
"In Re: Production of Court Records and Documents and the Attendance
of Court o cials and employees as witnesses under the subpoenas of
February 10, 2012 and the various letters for the Impeachment Prosecution
Panel dated January 19 and 25, 2012.

RESOLUTION

PER CURIAM : p

Before us are the letters of Hon. Joseph Emilio A. Abaya, Congressman and
Impeachment Prosecution Panel Manager, in behalf of the House Impeachment Panel,
requesting for the actions described below. These letters are:
(1) LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya,
Congressman, 1st District, Cavite; Chairman, Committee on Appropriations;
and Impeachment Prosecution Panel Manager, writing in behalf of the
House Impeachment Panel, requesting that the Public Prosecutors, as well
as the Private Prosecutors, be permitted to examine, among others, the
r o l l o o f Flight Attendants and Stewards Association of the
Philippines (FASAP) v. Philippine Airlines, Inc. (PAL), et al. , G.R.
No. 178083 ;

LETTER dated January 25, 2012 of Hon. Irvin M. Alcala for Hon. Joseph
Emilio A. Abaya, in behalf of the House Impeachment Panel, requesting for
certi ed true copies of the Agenda and Minutes of the
Deliberations of, among others, the case of FASAP v. PAL, et al. ,
G.R. No. 178083.

(2) LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya,
Congressman, 1st District, Cavite; Chairman, Committee on Appropriations;
and Impeachment Prosecution Panel Manager, writing in behalf of the
House Impeachment Panel, requesting that the Public Prosecutors, as well
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 as the Private Prosecutors, be permitted to examine, among others, the
rollo of Navarro v. Ermita, G.R. No. 180050, April 12, 2011.
(3) LETTER dated January 25, 2012 of Hon. Irvin M. Alcala for Hon. Joseph
Emilio A. Abaya, Congressman, 1st District, Cavite; Chairman, Committee
on Appropriations; and Impeachment Prosecution Panel Manager, in
behalf of the House Impeachment Panel, requesting that the Public
Prosecutors, as well as the Private Prosecutors, be permitted to examine
the rollo of the case of Ma. Merceditas N. Gutierrez v. The House
of Representatives Committee on Justice, et al. , G.R. No. 193459.
EICSTa

(4) LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya,
Congressman, 1st District, Cavite; Chairman, Committee on Appropriations;
and Impeachment Prosecution Panel Manager, writing in behalf of the
House Impeachment Panel, requesting that the Public Prosecutors, as well
as the Private Prosecutors, be permitted to examine, among others, the
rollo o f League of Cities v. COMELEC, G.R. Nos. 176951, 177499
and 178056.

In an intervening development, the Hon. Impeachment Court directed the

attendance of witnesses Clerk of Court Enriqueta E. Vidal and Deputy Clerk of Court
Felipa Anama, and the production of documents per the subpoena ad testi candum
et duces tecum dated February 9, 2012 in the case of FASAP v. PAL:
1. Records/Logbook of the Ra e Committee showing the assignment
of the FASAP case;
2. Letter of Atty. Estelito Mendoza addressed to the Clerk of Court
dated September 13, 2011 (copy furnished: The Hon. Chief Justice
Renato C. Corona), in connection with the FASAP case;
3. Letter of Atty. Estelito Mendoza addressed to the Clerk of Court
dated September 20, 2011 (copy furnished: The Hon. Chief Justice
Renato C. Corona), in connection with the FASAP case;
4. Letter of Atty. Estelito Mendoza addressed to the Clerk of Court
dated September 22, 2011 (copy furnished: The Hon. Chief Justice
Renato C. Corona), in connection with the FASAP case;
5. Letter of Atty. Estelito Mendoza addressed to the Clerk of Court
dated September 16, 2011 (copy furnished: The Hon. Chief Justice
Renato C. Corona; Hon. Arturo D. Brion, Hon. Jose P. Perez, Hon.
Lucas P. Bersamin and Hon. Jose C. Mendoza), in connection with the
FASAP case.
Another subpoena ad testi candum dated February 10, 2012 directs Clerk of
Court Vidal, in the case of former President Gloria Macapagal-Arroyo (G.R. No. 199034)
and former First Gentleman Jose Miguel Arroyo (G.R. No. 199046) to bring with her, for
submission to the Impeachment Court, the following:
1. Supreme Court received (with time and date stamp) Petition for
Special Civil Actions for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or Writ of
Preliminary Injunction led by Gloria Macapagal Arroyo (G.R. No.
199034) (GMA TRO Petition), including the Annexes thereto;
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 2. Supreme Court received (with time and date stamp) Petition for
Special Civil Actions for Certiorari and Prohibition with Prayer for the
Issuance of a TRO and/or Writ of Preliminary Injunction docketed as
G.R. No. 199046 (Mike Arroyo TRO Petition), including the Annexes
thereto;
3. Respondent Corona's travel order or leave applied for within the
month of November 2011;
4. Minutes of the Supreme Court Ra e Committee which handled the
GMA and Mike Arroyo TRO Petitions;
5. Appointment or Assignment of the Member-in-Charge of the GMA
and Mike Arroyo TRO Petitions;
6. Resolution dated November 15, 2011 in the GMA and Mike Arroyo
TRO Petitions;
7. TRO dated November 15, 2011 issued in the GMA and Mike Arroyo
TRO Petitions;
8. Logbook or receiving copy showing the time the TRO was issued to
the counsel of GMA and Mike Arroyo, as well as the date and time the
TRO was received by the Sheriff for service to the parties;
9. Special Power of Attorney dated November 15, 2011 submitted by
GMA and Mike Arroyo in favor of Atty. Ferdinand Topacio and
Anacleto M. Diaz, in compliance with the TRO dated November 15,
2011;
10. O cial Receipt No. 00300227-SC-EP dated November 15, 2011
issued by the Supreme Court for the Two Million Pesos Cash Bond of
GMA and Mike Arroyo, with the official date and time stamp; TcHDIA

11. November 15 and 16, 2011 Sheriff's Return for service of the GMA
and Mike Arroyo TRO dated November 15, 2011, upon the
Department of Justice and the Office of the Solicitor General;
12. Certi cation from the Fiscal Management and Budget O ce of the
Supreme Court dated November 15, 2011, with the date and time it
was received by the Supreme Court Clerk of Court showing it to be
November 16, 2011 at 8:55 a.m.;
13. Resolution dated November 18, 2011 issued in the GMA and Mike
Arroyo TRO Petitions;
14. Resolution dated November 22, 2011 on the GMA and Mike Arroyo
TRO Petitions;
15. Logbook showing the date and time Justice Sereno's dissent to the
November 22, 2011 Resolution was received by the Clerk of Court En
Banc;
16. Dissenting Opinions dated November 13 and 18, 2011, and
December 13, 2011 of Justice Sereno on the GMA and Mike Arroyo
TRO Petitions;
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 17. Dissenting Opinions dated November 15, 2011 and December 13,
2011 of Justice Carpio on the GMA and Mike Arroyo TRO Petitions;
18. Separate Opinion dated December 13, 2011 of Justice Velasco on
the GMA and Mike Arroyo TRO Petitions;
19. Concurring Opinion dated December 13, 2011 of Justice Abad on
the GMA and Mike Arroyo TRO Petitions;
20. O cial Appointment of Respondent Corona as Associate Justice of
the Supreme Court; and
21. Official Appointment of Respondent Corona as Chief Justice.
A Brief Statement of Relevant Background Facts and Developments
During the impeachment proceedings against Chief Justice Corona, the
Prosecution Panel manifested in a COMPLIANCE dated January 27, 2012 that it would
present about 100 witnesses and almost a thousand documents, to be secured from
both private and public o ces. The list of proposed witnesses included Justices of the
Supreme Court, and Court o cials and employees who will testify on matters, many of
which are, internal to the Court.
It was at about this time that the letters, now before us, were sent. The letters
asked for the examination of records, and the issuance of certi ed true copies of the
rollos and the Agenda and Minutes of the Deliberations , as above described, for
purposes of Articles 3 and 7 of the Impeachment Complaint. These letters speci cally
focused on the following:
a.with respect to the Flight Attendants and Stewards Association of the
Philippines v. Philippine Airlines, Inc. case 1 (presently pending on the merits), the
examination of the rollo of the case and the issuance of certi ed true copies of the
Agenda and the Minutes of the case;
b.with respect to Navarro v. Ermita 2 or the Dinagat case (still pending on the
merits), the examination of the rollo of the case;
c.with respect to Ma. Merceditas N. Gutierrez v. The House of
Representatives Committee on Justice, et al. 3 (a closed and terminated case),
the examination of the rollo of the case; and
d.with respect to League of Cities of the Philippines (LCP) v. COMELEC , 4
(a closed and terminated case) the examination of the rollo of the case.
Per its MANIFESTATION in open court in the impeachment trial of February 7 and
8, 2012, the House Impeachment Panel requested the Impeachment Court for the
issuance of subpoena duces tecum and ad testi candum for the production of records
of cases, and the attendance of Justices, o cials and employees of the Supreme
Court, to testify on these records and on the various cases mentioned above. aATHIE

Instead of issuing subpoenas as requested, the Hon. Presiding Senator-Judge

Juan Ponce Enrile, on February 8, 2012, issued an Order denying the Prosecution
Panel's request for subpoena ad testi candum to JJ. Villarama, Sereno, Reyes and
Velasco (In re: Impeachment Trial of Hon. Chief Justice Renato C. Corona, Case No.
002-2011). Thus, the attendance of Supreme Court Justices under compulsory
process now appears to be moot and academic. If they are included at all in the
discussions below, reference to them is for purposes only of a holistic presentation
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 and as basic premises that serve as the bases for the disquali cation of Court o cials
and employees, and the exclusion of privileged and con dential documents and
information.
On February 10, 2012, Atty. Vidal, Clerk of the Supreme Court, brought to our
attention the Subpoena Ad Testi candum et Duces Tecum and Subpoena Ad
Testi candum she received, commanding her to appear at 10:00 in the morning of
the 13th of February 2012 with the original and certi ed true copies of the documents
listed above, and to likewise appear in the afternoon at 2:00 of the same day and
everyday thereafter, to produce the above listed documents and to testify.
In light of the subpoenas served, the urgent need for a court ruling and based on
the Constitution, the pertinent laws and of the Court's rules and policies, we shall now
determine how the Court will comply with the subpoenas and the letters of the
Prosecution Impeachment Panel.
Prefatory Statement
The Court states at the outset that this Resolution is issued not to favor or
prejudice the Chief Justice whose impeachment gave rise to the letters and the
subpoenas under consideration, but to simply consider the requests and the
subpoenas in light of what the Constitution, the laws, and our rules and policies
mandate and allow.
From the constitutional perspective, a necessary starting vantage point in this
consideration is the principle of separation of powers through the recognition of
the independence of each branch of government and through the protection of
privileged and con dential documents and processes, as recognized by law, by the
rules and by Court policies.
The Independence of the Judiciary
The doctrine of separation of powers is an essential component of our
democratic and republican system of government. The doctrine inures not by express
provision of the Constitution, but as an underlying principle that constitutes the
bedrock of our system of checks and balances in government. 5 It divides the
government into three branches, each with well-de ned powers. In its most basic
concept, the doctrine declares that the legislature enacts the law, the executive
implements it, and the judiciary interprets it.
Each branch is considered separate, co-equal, coordinate and supreme
within its own sphere , under the legal and political reality of one overarching
Constitution that governs one government and one nation for whose bene t
all the three separate branches must act with unity. Necessarily under this legal
and political reality, the mandate for each branch is to ensure that its assigned
constitutional duties are duly performed, all for the one nation that the three branches
are sworn to serve, obey and protect, among others, by keeping the government stable
and running. The Court's mandate , in so far as these constitutional principles are
concerned, is to keep the different branches within the exercise of their respective
assigned powers and prerogatives through the Rule of Law . 6
A lesser known but no less important aspect of the principle of separation of
powers — deemed written into the rules by established practice and rendered
imperative by the departments' inter-dependence and need for cooperation among
themselves — is the principle of comity or the practice of voluntarily observing inter-
departmental courtesy in undertaking their assigned constitutional duties for the
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 harmonious working of government.
The Judiciary applies the principle of comity at the rst instance in its
interpretation and application of laws. In appreciating the areas wholly assigned to a
particular branch for its sole and supreme exercise of discretion (i.e., on political
questions where the courts can intervene only when the assigned branch acts with
grave abuse of discretion), the courts tread carefully; they exercise restraint and
intervene only when the grave abuse of discretion is clear and even then must act with
carefully calibrated steps, safely and surely made within constitutional
bounds. The two other branches, for their part, may also observe the principle of
comity by voluntarily and temporarily refraining from continuing with the acts
questioned before the courts. Where doubt exists, no hard and fast rule obtains on how
due respect should be shown to each other; largely, it is a weighing of the public
interests involved, as against guaranteed individual rights and the attendant larger
public interests, and it is the latter consideration that ultimately prevails. DSEIcT

A case in point is on the matter of impeachment whose trial has been

speci cally assigned by the Constitution to the Senate. Where doubt exists in an
impeachment case, a standard that should not be forgotten is the need to preserve the
structure of a democratic and republican government, particularly the check and
balance that should prevail.
Access to court records: general rule —
a policy of transparency
Underlying every request for information is the constitutional right to information
(a right granted to the people) that Article III, Section 7 of the Constitution provides:
Section 7. The right of the people to information on matters of public
concern shall be recognized. Access to o cial records, and to documents
and papers pertaining to o cials acts, transactions, or decisions , as
well as to government research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may be provided
by law. [emphases ours]

The right to information, by its very nature and by the Constitution's

own terms, is not absolute . On the part of private individuals, the right to privacy ,
similarly inviolable, exists. Institutions also enjoy their own right to con dentiality, that,
for governmental departments and agencies, is expressed in terms of their need to
protect the integrity of their mandated tasks under the Constitution and the laws; these
tasks, to state the obvious, are their reasons for their being.
In line with the public's constitutional right to information, the Court has adopted
a policy of transparency with respect to documents in its possession or custody,
necessary to maintain the integrity of its sworn duty to adjudicate justiciable disputes.
7 This policy, in terms of Court Rules, is embodied in Section 11, Rule 136 of the Rules
of Court, 8 which states:
Section 11. Certified copies. — The clerk shall prepare, for any person
demanding the same, a copy certi ed under the seal of the court of any paper,
record, order, judgment, or entry in his o ce , proper to be certi ed, for the
fees prescribed by these rules. [emphases ours]

Notably, the rule grants access to court records to any person, subject to
payment of fees and compliance with rules; it is not necessary that the request be
made by a party to the case. This grant, however, is not as open nor as broad as
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 its plain terms appear to project, as it is subject to the limitations the laws
and the Court's own rules provide. As heretofore stated, for the Court and the
Judiciary, a basic underlying limitation is the need to preserve and protect the integrity
of their main adjudicative function.
When Court Records are considered
Confidential
In the Judiciary, privileges against disclosure of o cial records "create a
hierarchy of rights that protect certain con dential relationships over and above the
public's evidentiary need" or "right to every man's evidence." 9 Accordingly, certain
informations contained in the records of cases before the Supreme Court are
considered con dential and are exempt from disclosure. To reiterate, the need arises
from the dictates of the integrity of the Court's decision-making function which may be
affected by the disclosure of information.
Speci cally, the Internal Rules of the Supreme Court (IRSC) prohibits the
disclosure of (1) the result of the ra e of cases , (2) the actions taken by the
C o u r t on each case included in the agenda of the Court's session, and (3) the
deliberations of the Members in court sessions on cases and matters
pending before it.
Rule 7, Section 3 of the IRSC 1 0 declares that the results of the ra e of cases
shall only be available to the parties and their counsels, unless the cases involve bar
matters, administrative cases and criminal cases involving the penalty of life
imprisonment, which are treated with strict con dentiality and where the ra e results
are not disclosed even to the parties themselves. 1 1
Rule 10, Section 2 of the IRSC provides that the actions taken in each case in
the Court's agenda , which are noted by the Chief Justice or the Division Chairman, are
also to be treated with strict con dentiality. Only after the o cial release of the
resolution embodying the Court action may that action be made available to the public.
1 2 A resolution is considered o cially released once the envelope containing its nal
copy, addressed to the parties, has been transmitted to the process server for personal
service or to the mailing section of the Judicial Records Office.
Court deliberations are traditionally recognized as privileged
communication . Section 2, Rule 10 of the IRSC provides:
Section 2. Con dentiality of court sessions. — Court sessions are
executive in character, with only the Members of the Court present. Court
deliberations are con dential and shall not be disclosed to outside
parties, except as may be provided herein or as authorized by the Court.
[emphasis ours] ACaDTH

Justice Abad discussed the rationale for the rule in his concurring opinion to the
Court Resolution in Arroyo v. De Lima 1 3 (TRO on Watch List Order case): the rules on
con dentiality will enable the Members of the Court to "freely discuss the issues
without fear of criticism for holding unpopular positions" or fear of humiliation for one's
c o m m e n t s . 1 4 The privilege against disclosure of these kinds of
information/communication is known as deliberative process privilege , involving as
it does the deliberative process of reaching a decision. "Written advice from a variety of
individuals is an important element of the government's decision-making process and
that the interchange of advice could be sti ed if courts forced the government to
disclose those recommendations;"1 5 the privilege is intended "to prevent the 'chilling' of
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 deliberative communications." 1 6
The privilege is not exclusive to the Judiciary . We have in passing
recognized the claim of this privilege by the two other branches of government in
Chavez v. Public Estates Authority 1 7 (speaking through J. Carpio) when the Court
declared that—
[t]he information . . . like internal deliberations of the Supreme
Court and other collegiate courts, or executive sessions of either house
of Congress, are recognized as con dential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange of
exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence
of decision-making of those tasked to exercise Presidential, Legislative
and Judicial power. 1 8 (emphases ours)

Justice Brion noted this fact in his Separate Concurring Opinion in Neri v. Senate
Committee on Accountability of Public Officers and Investigations: 1 9
Significantly, this type of privilege is not for the Executive to enjoy
alone. All the great branches of government are entitled to this
treatment for their own decision and policy making conversations and
correspondence. It is unthinkable that the disclosure of internal debates and
deliberations of the Supreme Court or the executive sessions of either Houses of
Congress can be compelled at will by outside parties. [emphasis ours]

Thus, a Senator may invoke legislative privilege when he or she is questioned outside
the Senate about information gathered during an executive session of the Senate's
legislative inquiry in aid of legislation. In the same manner, a justice of the court or a
judge may invoke judicial privilege in the Senate sitting as an Impeachment Court, for
proceedings in the performance of his or her own judicial functions. What applies to
magistrates applies with equal force to court o cials and employees who
are privy to these deliberations . They may likewise claim exemption when asked
about this privileged information.
While Section 2, Rule 10 of the IRSC cited above speaks only of the confidentiality
of court deliberations, it is understood that the rule extends to documents and
other communications which are part of or are related to the deliberative
process. 2 0 The deliberative process privilege protects from disclosure documents
re ecting advisory opinions, recommendations and deliberations that are component
parts of the process for formulating governmental decisions and policies. Obviously,
the privilege may also be claimed by other court o cials and employees when asked to
act on these documents and other communications.
The Code of Conduct for Court Personnel in fact provides that access shall be
denied with respect to information or records relating to drafts of decisions, rulings,
orders, or internal memoranda or internal reports. In the 2007 Resolution on Access to
Justice for the Poor Project, 2 1 the Court excluded the same information and records
from the public by classifying them as confidential:
Article 1. Definition of Terms. —
2. Con dential information generally refers to information not yet
made a matter of public record relating to pending cases , such as notes,
drafts, research papers, internal discussion, internal memoranda, records of
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 internal deliberations, and similar papers. Even after the decision, resolution,
or order is made public, such information that a justice or judge uses in
preparing a decision, resolution, or order shall remain con dential.
[emphases ours]

To qualify for protection under the deliberative process privilege, the agency
must show that the document is both (1) predecisional and (2) deliberative . 2 2
A document is "predecisional" under the deliberative process privilege if it
precedes, in temporal sequence, the decision to which it relates. 2 3 In other words,
communications are considered predecisional if they were made in the
attempt to reach a final conclusion. 2 4 HTCaAD

A material is "deliberative," on the other hand, if it re ects the give-and-take of the

consultative process. 2 5 The key question in determining whether the material is
deliberative in nature is whether disclosure of the information would discourage
candid discussion within the agency . 2 6 If the disclosure of the information would
expose the government's decision-making process in a way that discourages candid
discussion among the decision-makers (thereby undermining the courts' ability to
perform their functions), the information is deemed privileged.
Court records which are "predecisional" and "deliberative" in nature are
thus protected and cannot be the subject of a subpoena if judicial privilege is
to be preserved. The privilege in general insulates the Judiciary from an improper
intrusion into the functions of the judicial branch and shields justices, judges, and court
o cials and employees from public scrutiny or the pressure of public opinion that
would impair a judge's ability to render impartial decisions. 2 7 The deliberative process
can be impaired by undue exposure of the decision-making process to public scrutiny
before or even after the decision is made, as discussed below.
Additionally, two other grounds may be cited for denying access to court
records, as well as preventing members of the bench, from being subjected to
compulsory process: (1) the disquali cation by reason of privileged
communication and (2) the pendency of an action or matter.
The prohibition against disclosure of con dential information is required to be
observed by members of the Court under the New Code of Judicial Conduct for the
Philippine Judiciary. Section 9, Canon 4 (Propriety) states:
Section 9. Con dential information acquired by judges in their judicial
capacity shall not be used or disclosed for any other purpose related to their
judicial duties. [emphasis ours]

This rule of judicial ethics complements the rule of evidence that disqualifies
public officials from testifying on information they acquire in confidence in the course
of their duties:
Rules of Court, Rule 130, Section 24. Disquali cation by reason of
privileged communication. — The following persons cannot testify as to matters
learned in confidence in the following cases:

xxx xxx xxx

(e) A public o cer cannot be examined during his term of
o ce or afterwards , as to communications made to him in o cial
con dence, when the court nds that the public interest would suffer by
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 the disclosure. [emphasis ours]

To ensure the observance of these rules, the improper disclosure of con dential
information learned in official capacity is made criminally punishable under Article 229
of the Revised Penal Code , 2 8 Section 3 (k) of Republic Act No. 3019 , or the
Anti-Graft and Corrupt Practices Act, 2 9 and Sec. 7 of Republic Act No. 6713 , or the
Code of Conduct and Ethical Standards for Public O cials and Employees. 3 0 Under
existing laws, neither the Impeachment Court nor the Senate has the power to grant
immunity from criminal prosecution for revealing confidential information.
Under the law, therefore, the Members of the Court may not be compelled to
testify in the impeachment proceedings against the Chief Justice or other Members of
the Court about information they acquired in the performance of their o cial function
of adjudication, such as information on how deliberations were conducted or the
material inputs that the justices used in decision-making, because the end-result would
be the disclosure of con dential information that could subject them to criminal
prosecution. Such act violates judicial privilege (or the equivalent of executive privilege)
as it pertains to the exercise of the constitutional mandate of adjudication.
Jurisprudence implies that justices and judges may not be subject to any
compulsory process in relation to the performance of their adjudicatory functions. In
Senate of the Philippines v. Exec. Sec. Ermita , 3 1 the Court declared that members of
the Supreme Court are also exempt from [the Congress'] power of inquiry [in aid of
legislation]. Unlike the Presidency, judicial power is vested in a collegial body; hence,
each member thereof is exempt on the basis not only of separation of powers but also
on the fiscal autonomy and the constitutional independence of the judiciary.
This ruling was dictated in no small measure by the principle of comity mentioned
above. Inter-departmental courtesy demands that the highest levels of each
department be exempt from the compulsory processes of the other
departments on matters related to the functions and duties of their office.
With respect to Court o cials and employees, the same rules on con dentiality
that apply to justices and judges apply to them. They are barred from disclosing (1) the
result of the ra e of cases, (2) the actions taken by the Court on each case included in
the agenda of the Court's session, and (3) the deliberations of the Members in court
sessions on cases and matters pending before it. They are subject as well to the
disquali cation by reason of privileged communication and the sub judice rule. As
stated above, these rules extend to documents and other communications which
cannot be disclosed.
These privileges, incidentally, belong to the Judiciary and are for the Supreme
Court (as the representative and entity speaking for the Judiciary), and not for the
individual justice, judge, or court o cial or employees to waive. Thus, every proposed
waiver must be referred to the Supreme Court for its consideration and approval. SEAHcT

In fine, there are Philippine laws, rules and jurisprudence prohibiting the revelation
of con dential or "secret" information that causes damage to public interest even in
judicial and other proceedings such as the sui generis impeachment trial. As far as the
Court is concerned, its Members and o cials involved in all proceedings are duty-
bound to observe the privileged communication and con dentiality rules if the integrity
of the administration of justice were to be preserved — i.e., not even Members of the
Court, on their own and without the consent of the Supreme Court, can testify on
matters covered by the prohibitions and exclusions, particularly with respect to matters
pending resolution before the Supreme Court.
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 To state the rule differently, Justices of the Court cannot be compelled to testify
on matters relating to the internal deliberations and actions of the Court , in the
exercise of their adjudicatory functions and duties. This is to be differentiated from a
situation where the testimony is on a matter which is external to their adjudicatory
functions and duties.
For example, where the ground cited in an impeachment complaint is bribery, a
Justice may be called as a witness in the impeachment of another Justice, as bribery is
a matter external to or is not connected with the adjudicatory functions and duties of a
magistrate. A Justice, however, may not be called to testify on the arguments the
accused Justice presented in the internal debates as these constitute details of the
deliberative process.
Public interest, among others, demands that justices, judges and judicial
proceedings must not only be, but must appear to be impartial since an impartial
tribunal is a component of the right to due process that the Constitution guarantees
to every individual. Section 4, Canon 3 of the New Code of Judicial Conduct for the
Philippine Judiciary requires that —
Section 4. Judges shall not knowingly, while a proceeding is before or
could come before them, make any comment that might reasonably be expected
to affect the outcome of such proceeding or impair the manifest fairness of the
process. Nor shall judges make any comment in public or otherwise that might
affect the fair trial of any person or issue.

As a penultimate point, witnesses need not be summoned to testify on

matters of public record. These are the records that a government unit is required
by law to keep or which it is compelled to keep in the discharge of duties imposed by
law. A record is a public record within the purview of a statute providing that books and
records required by law to be kept by a clerk may be received in evidence in any court if
it is a record which a public o cer is required to keep and if it is lled in such a manner
that it is subject to public inspection. 3 2 Under the Rules of Court, the rule on public
records is embodied in Section 44, Rule 130 which provides:
Section 44. Entries in o cial records. — Entries in o cial records
made in the performance of his duty by a public o cer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated.

To restate the rule, entries in o cial records may be presented without the
necessity of presenting in court the o cer or person who made the entries. 3 3 Entries
in public or o cial books or records may be proved by the production of the books or
records themselves or by a copy certi ed by the legal keeper thereof. 3 4 These
records, however, may be presented and marked in evidence only where they
are not excluded by reasons of privilege and the other reasons discussed
above.
The reasons for this rule are necessity and trustworthiness.
Necessity consists in the inconvenience and di culty of requiring the o cial's
attendance as a witness to testify to the innumerable transactions in the course of his
duty. A public o cer is excused from appearing in court in order that public
business may not be interrupted, hampered or delayed. Where there is no
exception for official statements, hosts of officials would be found devoting the greater
part of their time attending as witnesses in court, delivering their deposition before an
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 officer. 3 5
Trustworthiness is a reason because of the presumption of regularity of
performance of o cial duty. The law reposes a particular con dence in public
o cers that it presumes that they will discharge their several trusts with
accuracy and delity; and therefore, whatever acts they do in the discharge
of their public duty may be given in evidence and shall be taken to be true
under such a degree of caution as the nature and circumstances of each case
may appear to require. 3 6 Thus, "[t]he trustworthiness of public documents and the
value given to the entries made therein could be grounded on: 1) the sense of o cial
duty in the preparation of the statement made, 2) the penalty which is usually a xed to
a breach of that duty, 3) the routine and disinterested origin of most such statements,
and 4) the publicity of record which makes more likely the prior exposure of such errors
as might have occurred." 3 7 CIaDTE

As a last point and mainly for purposes of stress, the privileges discussed above
that apply to justices and judges apply mutatis mutandis to court o cials and
employees with respect to their o cial functions. If the intent only is for them to
identify and certify to the existence and genuineness of documents within their custody
or control that are not otherwise con dential or privileged under the above discussed
rules, their presence before the Impeachment Court can be and should be excused
where certi ed copies of these non-privileged and non-con dential documents can be
provided.
In sum, Philippine law, rules and jurisprudence prohibit the disclosure of
con dential or privileged information under well-de ned rules. At the most basic level
and subject to the principle of comity, Members of the Court, and Court o cials and
employees may not be compelled to testify on matters that are part of the internal
deliberations and actions of the Court in the exercise of their adjudicatory functions and
duties, while testimony on matters external to their adjudicatory functions and duties
may be compelled by compulsory processes.
To summarize these rules, the following are privileged documents or
communications, and are not subject to disclosure:
(1) Court actions such as the result of the ra e of cases and the actions
taken by the Court on each case included in the agenda of the Court's session on acts
done material to pending cases, except where a party litigant requests information on
the result of the raffle of the case, pursuant to Rule 7, Section 3 of the IRSC;
(2) Court deliberations or the deliberations of the Members in court sessions
on cases and matters pending before the Court;
(3) Court records which are "predecisional" and "deliberative" in nature, in
particular, documents and other communications which are part of or related to the
deliberative process, i.e., notes, drafts, research papers, internal discussions, internal
memoranda, records of internal deliberations, and similar papers.
(4) Con dential Information secured by justices, judges, court o cials and
employees in the course of their o cial functions, mentioned in (2) and (3) above, are
privileged even after their term of office.
(5) Records of cases that are still pending for decision are privileged
materials that cannot be disclosed, except only for pleadings, orders and resolutions
that have been made available by the court to the general public.
(6) The principle of comity or inter-departmental courtesy demands that the
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 highest o cials of each department be exempt from the compulsory processes of the
other departments.
(7) These privileges belong to the Supreme Court as an institution, not to any
justice or judge in his or her individual capacity. Since the Court is higher than the
individual justices or judges, no sitting or retired justice or judge, not even the Chief
Justice, may claim exception without the consent of the Court.
WHEREFORE , on the basis of the above-cited laws, rules, jurisprudence and
principles, the Court resolves the matter of the House Impeachment Panel's letters
through as follows:
A. 1. On the letters dated January 19 and 25, 2012 sent in behalf
of the House Impeachment Panel, the Court cannot grant the
requested examination of the FASAP v. PAL 3 8 rollo as this is still a
pending case and the rollo contains privileged and con dential
materials. The Court, however, can issue certi ed true copies of the
Decisions, Orders and Resolutions it issued in the case and which
have been released to the parties, and certi ed copies of the parties'
pleadings and the letters of Atty. Estelito Mendoza.
2. On the letter of January 25, 2012, regarding the examination of the
rollo of Navarro v. Ermita 3 9 (Dinagat case), the Court — although the
Dinagat case is closed and terminated — cannot grant the requested
examination as the rollo contains privileged and con dential
information. The Court, however, can issue certi ed true copies of the
Decisions, Orders and Resolutions it issued in the case and which
have been released to the parties, and certi ed copies of the parties'
pleadings.
3. On the letter of January 25, 2012, regarding the examination of the
rollo of the case of Ma. Merceditas N. Gutierrez v. The House of
Representatives Committee on Justice, 4 0 this is a closed and
terminated case. However, the court cannot still allow examination of
the rollo as it contains materials that are still covered by privilege or
are still considered con dential. The Court, however, if requested by
the Prosecution Panel, can issue certi ed true copies of the
Decisions, Orders and Resolutions that are now matters of public
record, as well as certified copies of the parties' pleadings.
SCHTac

4. On the letter of January 19, 2012 in behalf of the Prosecution Panel in

the case of League of Cities v. COMELEC, 4 1 this is still a pending
case and the Court cannot allow the examination of the rollo. The
Court, if requested by the Prosecution Panel, can provide certified true
copies of its Decisions, Orders and Resolutions that have been
furnished the parties, and certified copies of the parties' pleadings.
B. On the subpoena duces tecum et ad testi candum in the FASAP v. PAL
case that is the subject of the subpoena, the case is still pending. Therefore, all the
requested documents cannot be produced as discussed above.
The witness can consequently provide certi ed true copies to the Impeachment
Court of the Decisions, Orders and Resolutions furnished to the parties, as well as
certified copies of the parties' pleadings and the letters of Atty. Estelito Mendoza.
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 The Court cannot as well waive the privileges attendant to the proposed
testimony of Clerk of Court Enriqueta E. Vidal and of the other Court o cials and
employees on matters covered by privilege and confidentiality.
The documents directed to be produced by the subpoena duces tecum in the
GMA and Arroyo cases (G.R. Nos. 199034 and 199046) are listed in the attached Annex
"A" hereof, and are resolved in accordance with this listing. The witness can only testify
on the documents or records allowed under this listing.
C. The Clerk of Court is hereby DIRECTED :
1. to PHOTOCOPY the non-con dential documents and records
requested in the letters of the House Impeachment Panel, if
requested by the Prosecution Panel. She shall as well provide these
certi ed copies to the Impeachment Court pursuant to the subpoena
duces tecum, but shall exclude therefrom the documents and records
considered as confidential or privileged;
2. to SERVE a copy of this Resolution immediately to the House
Impeachment Panel and to the Impeachment Court;
3. to REPORT to the Court the results of its actions, under (1) and (2)
above, as soon as they are completed and no later than the deadline
imposed by the Impeachment Court.
D.The Court's Internal Rules and Revision of Rules Committees shall
forthwith meet for the alignment of the above discussed laws, rules and policies with
the Internal Rules of the Supreme Court and the Rules of Court, and to further discuss
these rules and policies to the end that the needs of transparency can fully meet, and be
harmonized with, the requirements of confidentiality."
Given by the Supreme Court of the Philippines, this 14th day of February 2012.
JJ. Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr.,
Perez, Mendoza and Reyes, concurring; Presiding O cer Carpio and J. Sereno,
concurring under Separate Opinions; Chief Justice Corona, inhibiting; JJ. Velasco, Jr.
and Perlas-Bernabe, on official leave of absence." TIaCcD

Very truly yours,

(SGD.) ENRIQUETA E. VIDAL

Clerk of Court

ANNEX A
1. Supreme Court-received (with time and Matter of Public Record — Certified
date stamp) Petition for Special copy can be provided by the witness to
Civil Actions for Certiorari and the Impeachment Court, as directed.
Prohibition with Prayer for the
Issuance of a Temporary Restraining
Order (TRO) and/or Writ of
Preliminary Injunction filed by
Gloria Macapagal Arroyo (G.R. No.
199034) [GMA TRO Petition],
including the Annexes thereto
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 2. Supreme Court received (with time Matter of Public Record — Certified
and date stamp) Petition for Special copy can be provided by the witness to
Civil Actions for Certiorari and the Impeachment Court, as directed.
Prohibition with Prayer for the
Issuance of a Temporary Restraining
Order and/or Writ of Preliminary
Injunction docketed as (G.R. No.
199046) [Mike Arroyo TRO
Petition], including the Annexes
thereto

3. Official Leave of Respondent Not Confidential — matter of Public

Corona's travel order or leave record. The witness can provide
applied for days within the month certified copy to the Impeachment
of November 2011 Court, as directed.

4. Minutes of the Supreme Court Privileged and Confidential because

Raffle Committee which handled this is a pending case expressly
the GMA and Mike Arroyo prohibited under the IRSC. The
TRO Petition parties, however, may request for a
copy of the Minutes, with portions
relating to other cases deleted.

5. Appointment or Assignment of the Privileged and Confidential because

Member-in-Charge of the GMA this is a pending case; expressly
and Mike Arroyo TRO Petition prohibited under the IRSC. The
parties, however, may request for a
copy of this record, with portions
relating to other cases deleted.

6. Resolution dated 15 November 2011 Matter of Public Record. Certified

on the GMA and Mike Arroyo TRO copy can be provided by the witness to
Petition, as published the Impeachment Court, as directed.

7. Logbook or receiving copy showing Privileged and Confidential because

the time the TRO was issued to the this is a pending case; expressly
counsel for GMA and Mike Arroyo prohibited under the IRSC. The
as well as the date and time the TRO parties, however, may request for a
was received by the sheriff for copy of this record, with portions
service to the parties relating to other cases deleted.

8. Temporary Restraining Order dated Matter of Public Record. Certified

15 November 2011 issued in the copy can be provided by the witness to
GMA and Mike Arroyo TRO the Impeachment Court as directed.
Petition

9. Special Power of Attorney dated 15 Privileged and Confidential because

November 2011 submitted by GMA this is a pending case; expressly
and Mike Arroyo in favor of Atty. prohibited under the IRSC. Parties can
Ferdinand Topacio appointing him request for a copy.
"to produce summons or receive
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 documentary evidence" with the
official date and time stamp of the
Supreme Court
10. Official Receipt No. 00300227-SC- Part of public record and certified
EP dated 15 November 2011 issued copy can be provided to the
by the Supreme Court for the Two Impeachment Court.
Million Pesos Cash Bond of GMA
and Mike Arroyo with the official
date and time stamp

11. November 15 and 16, 2011 Sheriff's Privileged and Confidential because
Return of service of the GMA and this is a pending case; expressly
Mike Arroyo TRO dated 15 prohibited under the IRSC. Parties can
November 2011 upon the request for a copy of this record.
Department of Justice and the
Office of the Solicitor General

12. Certification from the Fiscal Privileged and Confidential because

Management and Budget Office this is a pending case; expressly
of the Supreme Court dated prohibited under the IRSC and
November 15, 2011 with the deliberative process. The requested
date and time it was received by certification refers to the time the bond
the Supreme Court Clerk of Court was received by the Court.
showing it to be November 16, 2011
at 8:55am

13. Resolution dated 18 November 2011 Matter of Public Record. Certified

issued on the GMA and Mike copy can be provided by the witness to
Arroyo TRO Petition, as published the Impeachment Court, as directed.

14. Resolution dated 22 November 2011 Matter of Public Record. Certified

on the GMA and Mike Arroyo TRO copy can be provided by the witness to
Petition the Impeachment Court, as directed.

15. Logbook showing the date and time Privileged and Confidential because
Justice Sereno's dissent to the 22 this is a pending case; expressly
November 2011 Resolution was prohibited under the IRSC.
received by the Clerk of Court En
Banc

16. Dissenting Opinion of Justice The Dissenting Opinion refers to the

Sereno in G.R. No. 199034 and personal opinion of the writer who has
199046 as published on 15 the constitutional duty to explain her
November 2011, 18 November Dissent, and is a matter of public
2011 and 13 December 2011 record after this was published. The
Court, however, as the institution
entitled to the deliberative process
privilege, cannot waive the
confidentiality of certain portions of
this Dissent for being part of the
privilege.
The Court shall allow the witness to
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 issue a certified true copy of this
Dissent, subject to its reservation.
17. Dissenting Opinion of Justice Carpio The Dissenting Opinion refers to the
dated 15 November 2011 and 13 personal opinion of the writer who has
December 2011 in G.R. No. 199034 the constitutional duty to explain his
and 199046 as published Dissent, and is a matter of public
record after this was published. The
Court, however, as the institution
entitled to the deliberative process
privilege, cannot waive the
confidentiality of certain portions of
this Dissent for being part of the
privilege.
The Court shall allow the witness to
issue a certified true copy of the
Dissent, subject to its reservation.

18. Separate Opinion of Justice Velasco The Separate Opinion refers to the
dated 13 November 2011 in G.R. personal opinion of the writer and is a
Nos. 199034 and 199046 matter of public record after this was
published. The Court, however, as the
institution entitled to the deliberative
process privilege, cannot waive the
confidentiality of certain portions of
this Separate Opinion for being part of
the privilege.
The Court shall allow the witness to
issue a certified true copy of this
Separate Opinion, subject to its
reservation.

19. Concurring Opinion of Justice Abad The Concurring Opinion refers to the
dated 13 December 2011 in G.R. personal opinion of the writer and is a
Nos. 199034 and 199046 matter of public record after this was
published. The Court, however, as the
institution entitled to the deliberative
process privilege, cannot waive the
confidentiality of certain portions of
this Concurring Opinion for being part
of the privilege.
The Court shall allows the witness to
issue a certified true copy of this
Concurring Opinion, subject to its
reservation.

20. Official Appointment of Respondent Matter of Public Record. The witness

Corona as Associate Justice of the can provide certified copy to the
Supreme Court Impeachment Court, as directed.

21. Official Appointment of Respondent Matter of Public Record. The witness

Corona as Chief Justice can provide certified copy to the
Impeachment Court, as directed.
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 To complete the records of the Impeachment Court, a certi ed copy of the Separate
Opinion of Justice Arturo D. Brion dated December 13, 2011 on the same issue in the case
can also be provided, subject to the same conditions made in item nos. 16, 17, 18 and 19.

Separate Opinions
CARPIO , J.:

I concur with the Resolution of 14 February 2012 (Resolution), subject to certain

important clarifications and reservations.
1. On Judicial Privilege
Judicial Privilege, or the right of the Judiciary to con dentiality of certain
information, is implied from Judicial Power. Similarly, Executive Privilege, or the right
of the Executive to con dentiality of certain information, is imp lied from Executive
Power. This Court has explained the rationale for Judicial Privilege, Executive Privilege,
as well as Legislative Privilege, as follows:
[I]nformation . . . like internal deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, are
recognized as confidential. This kind of information cannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by interested
parties, is essential to protect the independence of decision-making of
those tasked to exercise Presidential, Legislative and Judicial power. . . .
1 (Emphasis supplied)

However, there are clear limits to Judicial Privilege, as there are clear limits to
Executive and Legislative Privilege. One overriding limitation on Judicial Privilege is that
it can be invoked only if the information arose from the performance of official
adjudicatory functions of Members of the Judiciary . As succinctly stated in the
Resolution, Judicial Privilege refers only to "matters that are part of the internal
deliberations and actions of the Court in the exercise of the(ir) adjudicatory
functions and duties " of Justices. The Resolution further states that the matter must
refer to "the performance of the(ir) o cial functions of adjudication " of
Justices.
Thus, information relating to the commission of crimes or misconduct, or
violations of the Code of Judicial Conduct, 2 or any violation of a law or regulation for
that matter, is not con dential because the commission of crimes or misconduct
is not part of the o cial functions or duties of Justices . Moreover, information
that are outside the adjudicatory functions of Justices, such as nancial, budgetary,
personnel and similar administrative matters relating to the operations of the Judiciary,
are not con dential. The adjudicatory functions of Justices refer to their power to
decide cases in the exercise of Judicial Power, as distinguished from the power to
make decisions in the exercise of administrative functions.
Judicial Privilege is merely implied from Judicial Power. Thus, another limitation
on Judicial Privilege is the need to carefully weigh and calibrate its exercise when it
clashes with express constitutional rights and principles, such as freedom of
expression, 3 freedom of the press, 4 the right of the people to information on matters
of public concern, 5 and the State policy of full disclosure of all transactions involving
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 public interest. 6 While these express constitutional rights and principles do not negate
Judicial Privilege, the Judiciary cannot invoke Judicial Privilege to claim con dentiality
beyond what is essential and necessary to preserve the exercise of Judicial Power. aHECST

Thus, information of no, or de minimis, value to the preservation of Judicial

Power, such as the date and time of receipt by the Clerk of Court 7 of the
Dissenting Opinion of a Justice, cannot be deemed con dential. By no stretch of the
imagination can release of such information impair even slightly the exercise of Judicial
Power. Such information is obviously not part of the "internal deliberations and actions
of the Court." On the other hand, such information is an official record and falls under
the people's constitutional right to "access to o cial records, and to documents,
and papers pertaining to o cial . . . decisions." 8 This is one instance when an
express constitutional right must prevail over the invocation of Judicial Privilege.
2. On the Constitutional Duty to Explain One's Dissent
The Constitution mandates that a Justice who dissents must explain his dissent.
Thus, Section 13, Article VIII of the 1987 Constitution provides in part:
Section 13.. . . Any Member who took no part, or dissented, or abstained
from decision or resolution must state the reason therefor . . . . (Underscoring
and boldfacing supplied)

The framers of the 1987 Constitution used the word "must" to emphasize that
the duty to explain one's dissent is "mandatory ." The framers considered a violation of
this express duty a "culpable violation of the Constitution." 9
Without this constitutional command to state the reasons for his dissent, a
Justice still has a rig ht to explain his dissent under the constitutional right of a citizen
to freedom of expression. With this constitutional command, a Justice has not only a
right, but also a duty , to explain his dissent. Under a Justice's freedom of expression,
he may or may not explain his dissent. Under his constitutional duty to state the reason
for his dissent, he has no choice but to explain his dissent.
Thus, the majority can never suppress the dissent of any Justice because to
write a dissent is not only a constitutional right but also a constitutional duty. If the
majority suppress a dissent, then they commit a culpable violation of the Constitution.
This express constitutional right and duty to explain one's dissent should be given
utmost deference vis-Ã -vis Judicial Privilege which is merely implied from Judicial
Power. When a Justice explains his dissent, he may even include in his dissent
internal deliberations if such internal deliberations are material in complying
with his constitutional duty to state the reasons for his dissent . Assuming that
the dissent of a Justice breaches Judicial Privilege, any sanction for such breach can
only be made through impeachment by Congress, which has the sole power to
discipline impeachable o cers. Any other rule means that the majority can terrorize the
minority into acquiescence by threatening to sanction them for their dissents.
A Justice who dissents can explain his position only in his dissent and nowhere
else. He cannot go to media to expound on his dissent. He can articulate, and state his
reasons, only in his dissent. Thus, a Justice who dissents often strives to put into his
dissent all the arguments he could possibly marshal, hoping that his arguments could
one day in the future carry more weight with the wisdom of hindsight. Indeed, in both
American and Philippine jurisprudence, many dissents eventually emerged as the
majority rule, and some dissents were even enacted into law by the legislature. This is
another reason for giving dissents as much leeway as possible.
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 Accordingly, I concur with the Resolution of 14 February 2012 subject to the
foregoing clarifications and reservations.

SERENO , J., concurring and dissenting :

It is inevitable that every Member of this Court concurs with the general
proposition of the Resolution that judicial privilege can be invoked to: (a) deny access
to speci c portions of the Court's records to the Members of the House Prosecution
Panel and the Senate Impeachment Court, and (b) to prevent the oral disclosure of
speci c matters by the Justices or o cials of the Supreme Court before the Senate
Impeachment Court. However, judicial privilege cannot be invoked to impose a general
or absolute gag order on Members and o cials of the Judiciary. Neither can it deny the
Senate Impeachment Court and the public in general "informations on matters of public
concern," by draping a complete cloak on the Court's records. Judicial privilege is a
quali ed, not an absolute, privilege. It is but implied in the judicial power, and thus must
yield to the categorical imperatives imposed by the Constitution for public
accountability. I therefore dissent from certain statements and dispositions in the
Resolution. EHITaS

To draw in sharp lines the extent to which I disagree with some of the language
and dispositions of the Resolution, let me state my belief that some of the language in
the Resolution violate the Constitution when such language: (a) attempt to regulate or
obstruct the duty to explain the dissent of the minority in the Court; (b) prohibit the
disclosure of Gloria Arroyo's notarized Special Power of Attorney (SPA) — thus a public
document — that was submitted to the Court; and (c) prohibit the disclosure of a
matter as administrative as the time and date my Dissenting Opinion in the Arroyo TRO
cases 1 was submitted to the Clerk of Court.
Public Accountability and Qualified Judicial Privilege
The pattern for the rights and privileges of Philippine judges are generally drawn
from those granted to American judges. Judicial privilege, a child of the doctrine of
separation of powers, likewise draws its origins from the American treatment of
"privileges." Thus, in U.S. jurisprudence, judicial privilege has always been quali ed and
had been found to exclude any protection for administrative and non-adjudicatory
matters in cases where a Member of the judiciary is being investigated for criminal acts
or wrongdoing.
In Williams v. Mercer , 2 the United States Court of Appeals Eleventh Circuit had
occasion to dwell on the limits of judicial privilege claimed by the staff members of the
o ce of Alcee Hastings, a Judge of the US District Court for the Southern District of
Florida. Judge Hastings was the subject of an investigation by the Judicial Council for,
among others, conspiring to obtain a bribe in return for an o cial judicial act. Some of
Judge Hastings' staff members were subpoenaed by the Judicial Council to appear
before it and produce "appointment diaries, daily schedules or itineraries, calendars,
travel itineraries, guest and/or client sign-in sheets, telephone message books, logs and
memoranda."
In their defense, the staff members claimed judicial privilege to prevent them
from testifying before the Judicial Council against the actions of Judge Hastings.
Denying their claims of con dential information and ordering them to comply with the
subpoena of the Judicial Council, the Court of Appeals, speaking through Chief Judge
Levin H. Campbell, found that the subpoenaed documents did not come within the
purview of the generalized claim of judicial privilege:
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 V. Appellant's Claim of a Privilege Protecting
Communications Among Judge Hastings and Members of His Staff
Appellants urge this court to decline to enforce the subpoenas directed to
Williams, Ehrlich, Simons, and Miller because they have invoked a testimonial
privilege — claimed by Judge Hastings and honored by his staff — that
purportedly protects against disclosure of con dential communications
among an Article III judge and members of his staff regarding the
performance of his judicial duties . Appellants liken this privilege to the
executive privilege surrounding Presidential communications, the protection
expressly accorded Congressional activities by the Speech or Debate Clause of
the Constitution, Art. I, § 6, clause 1, and common-law privileges such as that
protecting the con dentiality of communications between attorney and client.
Enforcement of these subpoenas, it is urged, would require that Williams, Ehrlich,
Simons, and Miller reveal con dences entrusted to them by Judge Hastings and
would thereby threaten the independence and the effective functioning of the
judiciary by chilling and obstructing the full and frank exchange of ideas within
chambers necessary to a judge's performance of his official duties. aEcADH

xxx xxx xxx

Although we have found no case in which a judicial privilege

protecting the con dentiality of judicial communications has been
applied, the probable existence of such a privilege has often been
noted . In Nixon v. Sirica , 487 F.2d 700, 717 (D.C.Cir.1973), the District of
Columbia Circuit analogized President Nixon's executive privilege, "intended to
protect the effectiveness of the executive decision-making process," to that
"among judges, and between judges and their law clerks." The same court
subsequently reiterated this analogy in Senate Select Committee on Presidential
Campaign Activities v. Nixon , 498 F.2d 725, 729 (D.C.Cir.1974). Judge
MacKinnon's dissent in Nixon v. Sirica traced such authorities as existed to
support the recognition of a judicial privilege, noting, "Express authorities
sustaining this position are minimal, undoubtedly because its existence and
validity has been so universally recognized. Its source is rooted in history and
gains added force from the constitutional separation of powers of the three
departments of government." In a concurring opinion in Soucie v. David, 448 F.2d
1067, 1080 (D.C.Cir.1971), Judge Wilkey, discussing Freedom of Information Act
exemptions from disclosure of certain executive branch information, stated, "[I]t
must be understood that the privilege against disclosure of the decision-making
process is a tripartite privilege, because precisely the same privilege in conducting
certain aspects of public business exists for the legislative and judicial branches
as well as for the executive. It arises from two sources, one common law and the
other constitutional."
xxx xxx xxx

The Supreme Court's reasons for nding a quali ed privilege protecting

con dential Presidential communications in United States v. Nixon , 418 U.S. 683,
94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), support the existence of a similar judicial
privilege. The Court based the executive privilege on the importance of
confidentiality to the effective discharge of a President's powers, stating,
[T]he importance of this con dentiality is too plain to require further
discussion. Human experience teaches that those who expect
public dissemination of their remarks may well temper candor
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 with a concern for appearances and for their own interests to the
detriment of the decision making process .
xxx xxx xxx

The Court discerned the constitutional foundation for the executive

privilege — notwithstanding the lack of any express provision — in the
constitutional scheme of separation of powers and in the very nature of a
President's duties:

[T]he privilege can be said to derive from the supremacy of each

branch within its own assigned area of constitutional duties. Certain
powers and privileges ow from the nature of enumerated powers; the
protection of the con dentiality of Presidential communications has
similar constitutional underpinnings.

If so, the same must be true of the judiciary. The Court, indeed, likened "
[t]he expectation of a President to the con dentiality of his conversations and
correspondence" to "the claim of con dentiality of judicial deliberations." United
States v. Nixon , 418 U.S. at 708, 94 S.Ct. at 3107. Judges, like Presidents,
depend upon open and candid discourse with their colleagues and staff
to promote the effective discharge of their duties . The judiciary, no less
than the executive, is supreme within its own area of constitutionally assigned
duties. Con dentiality helps protect judges' independent reasoning from
improper outside in uences. It also safeguards legitimate privacy
interests of both judges and litigants . acADIT

We conclude, therefore, that there exists a privilege (albeit a

quali ed one, infra ) protecting con dential communications among
judges and their staffs in the performance of their judicial duties . But we
do not think that this quali ed privilege su ces to justify either Williams'
noncompliance with the Committee's subpoena duces tecum, or Simon's and
Miller's refusals to answer the questions directed to them by the Committee.
A party raising a claim of judicial privilege has the burden of
demonstrating that the matters under inquiry fall within the con nes of the
privilege. The judicial privilege is grounded in the need for con dentiality
in the effective discharge of the federal judge's duties. In the main, the
privilege can extend only to communications among judges and others
relating to o cial judicial business such as, for example, the framing
and researching of opinions, orders, and rulings . Accordingly, Williams had
the burden of showing that the Committee's subpoena duces tecum called for the
production of documents that would reveal communications concerning o cial
judicial business. We conclude that she has failed to meet that burden.
The Committee's subpoena duces tecum served upon Williams directs her
to produce only the following documents:
1. Appointment diaries, daily schedules or itineraries, calendars, travel
itineraries;

2. Guest and/or client sign-in sheets;

3. Telephone message books, logs and memoranda. . . .
From this description alone, we cannot determine that the above
documents would come within a judicial privilege . Most such documents
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 would not ordinarily be expected to reveal the substance of communications
among Judge Hastings, his colleagues, and his staff concerning Judge Hastings'
o cial duties. That Judge Hastings met or spoke with a particular visitor at a
particular time, without more, would not involve the substance of the
communications between them Cf. In re Grand Jury Proceedings, 689 F.2d 1351,
1352 (11th Cir. 1982) (attorney-client privilege ordinarily applies only to content of
communications, not to dates, places, or times of meetings).
Moreover, even if the subpoenaed materials were to include some
substantive matters that fell within the privilege, we conclude, for
reasons stated subsequently in our discussion relating to Simons and
Miller, that the privilege would not support Williams' refusal to comply.
The seriousness of the Committee's investigation, and the apparent
relevance of the subpoenaed documents to that investigation, would
justify enforcement of the subpoena in these circumstances regardless
of the assertion of privilege, the privilege being quali ed, not absolute .
We accordingly reject Williams' assertion of privilege to justify non-compliance
with the Committee's subpoena duces tecum. AHDacC

xxx xxx xxx

Turning next to the testimony of Simons and Miller before the Committee,
our review of the transcripts leaves little doubt that the boundaries of the judicial
privilege do encompass the subject matter of the Committee's inquiries to them.
They invoked the privilege in response to questions probing the core of the
con dentiality interest at stake: communications among Judge Hastings and his
staff concerning matters pending before Judge Hastings. That the privilege
applies, however, does not end the matter. The judicial privilege is only
qualified, not absolute; it can be overcome in an appropriate case .
xxx xxx xxx
The impediment that an absolute, unquali ed privilege would place in the
way of the primary constitutional duty of the Judicial Branch to do justice in
criminal prosecutions would plainly con ict with the function of the courts under
Art. III. In designing the structure of our Government and dividing and allocating
the sovereign power among three co-equal branches, the Framers of the
Constitution sought to provide a comprehensive system, but the separate powers
were not intended to operate with absolute independence.
While the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence,
autonomy but reciprocity.
To read the Art. II powers of the President as providing an
absolute privilege as against a subpoena essential to enforcement of
criminal statutes on no more than a generalized claim of the public
interest in con dentiality of nonmilitary and non diplomatic
discussions would upset the constitutional balance of "a workable
government" and gravely impair the role of the courts under Art. III .
The judicial privilege, arising from similar constitutional
underpinnings, shares similar limitations and restrictions . Like any
testimonial privilege, the judicial privilege must be harmonized with the principle
that "'the public . . . has a right to every man's evidence.'" This principle is no less
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 applicable to proceedings under the Act than to criminal proceedings.

Once the party asserting the privilege has met the burden of showing that
the matters under inquiry implicate communications among a judge and his staff
concerning performance of judicial business — as Simons and Miller have shown
here — those matters are presumptively privileged and need not be disclosed
unless the investigating party can demonstrate that its need for the materials is
su ciently great to overcome the privilege. To meet this burden, the
investigating party can attempt to show the importance of the inquiry
for which the privileged information is sought; the relevance of that
information to its inquiry; and the di culty of obtaining the desired
information through alternative means . The court then must weigh the
investigating party's demonstrated need for the information against the degree of
intrusion upon the con dentiality of privileged communications necessary to
satisfy that need. We hold that the judicial privilege asserted by Simons
and Miller on Judge Hastings' behalf is overridden, under the
circumstances present here, by the Committee's need for Simons' and
Miller's testimony to further its investigation . ScAHTI

There can be no question that the Committee's investigation is a matter of

surpassing importance . While criminal remedies may no longer be in issue, a
proceeding which could result in recommending the exoneration of a
sitting Article III judge, or in certifying to the House of Representatives
that consideration of impeachment may be warranted, obviously
implicates concerns of fairness and thoroughness of a high order . And
the charges being investigated — particularly the allegation of bribery — are grave.
As we said in our previous opinion arising out of the Hastings investigation.
Moreover, the question under investigation — whether an Article III
judge should be recommended for impeachment by the Congress,
otherwise disciplined, or granted a clean bill of health — is a matter of
great societal importance. Given the character of an investigating
committee and what is at stake — the public con dence in the judiciary,
the independence and reputation of the accused judge — paragraph (c)
(5) must in our view be read, with very few strings, as conferring
authority to look into whatever is material to a determination of the
truth or falsity of the charges . (Emphasis supplied; citations omitted.)

Even Kevin C. Milne, 3 whose work is relied upon by the majority in the Per Curiam
Resolution, stated that judicial privilege is not absolute . He traced the evolution of
judicial privilege in the United States and concluded that the concept was a
development of their country's judicial experience throughout the years. The American
delegates to the Constitutional Convention of 1787 sought to break from the British
tradition and install a balanced government where the judiciary was independent. 4
According to Milne, there was a strong sense to insulate the federal judiciary from the
in uence of the other branches of government, considering that the previous models of
government made the salaries of judges and their removal from o ce subject to the
legislature's capriciousness. Past experiences taught them that legislatures may seek
to investigate and punish judges for unpopular decisions and therefore, impede the
judicial decision-making process. 5 Yet, the acknowledgment of the privilege in favor of
federal judges never extended to completely exclude legislative or executive inquiry into
its affairs. 6 Thus, the rule on judicial privilege only came as an implied adjunct
of judicial power to provide partial protection from legislative interference,
but still allowed congressional questioning as regards matters other than
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 judicial proceedings . 7
Milne discussed in length the legal bases for the quali cations to judicial
privilege, citing Williams v. Mercer, 8 Gravel v. United States, 9 and Nixon v. United States
1 0 to wit: ASTcEa

The rationale supporting the legitimacy of privileges for government

communications provided the basis for a recent Eleventh Circuit decision,
Williams v. Mercer , which explicitly acknowledged the existence of a
quali ed privilege that protects the con dentiality of communications
between a federal judge and his staff. In Williams, two federal district court
judges of the Eleventh Circuit instituted disciplinary proceedings against federal
district court Judge Alcee L. Hastings under the Judicial Councils Reform and
Disability Act of 1980. The two judges alleged that Hastings had engaged in
conduct that was inconsistent with his position as a federal judge and that had
diminished the integrity of the federal judiciary. As part of the proceedings
against Judge Hastings, an investigating committee of the Eleventh Circuit issued
subpoenas to Judge Hastings' present and former legal assistants, summoning
the legal assistants to appear before the investigating committee. The purpose of
the legal assistants' appearance was to disclose the substance of con dential
legal communications that had transpired between the judge and the legal
assistants. Judge Hastings' staff claimed a privilege to the substance of the
communications and led suit in the United States District Court for the District of
Florida to enjoin enforcement of the subpoenas that the investigating committee
had issued. The United States District Court for the District of Florida dismissed
the action for lack of subject matter jurisdiction, and Hastings and his staff
appealed from the dismissal to the United States Court of Appeals for the
Eleventh Circuit.

In response to the contention of Judge Hastings and his staff that

enforcement of the subpoenas would impair the effective functioning of the
judiciary, the Eleventh Circuit concluded that a quali ed privilege protected the
subject matter of the communications between Judge Hastings and his staff. The
Williams court explained that absent an overriding need for con dential
information which passes between a judge and his clerks, communications
regarding a judge's performance of his o cial duties ordinarily should remain
undisclosed to protect the integrity of the judicial decision-making process. The
Williams court reasoned that the conversation between a federal judge and his
staff are part of a judge's core function. The Williams court justi ed its
recognition of a privilege for communications between a judge and his staff by
explaining that the privilege prevented unnecessary intrusion into the substance
of judicial communications that would disrupt a judge's ability to operate
effectively.
Although the Eleventh Circuit in Williams concluded that a quali ed
privilege exists that protects communications between a federal judge and his
legal assistants, the Eleventh Circuit found that the information regarding
Judge Hastings' alleged judicial misconduct warranted a limited
intrusion into the con dentiality of the communications. The Williams
court explained that the investigating committee's grant of authority to
aid in preserving the integrity of the federal judiciary justi ed an
intrusion into the substance of the communications. Furthermore, the
Williams court noted that the con dential nature of the committee's
proceedings mitigated the severity of the intrusion into Hastings'
expectation of con dentiality and probably would not inhibit the free
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 exchange of ideas between judges and clerks to the extent that Judge
Hastings claimed . The Eleventh Circuit, therefore, upheld the investigating
committee's issuance of the subpoenas and issued an order to compel the staff
members to appear at the committee's proceedings and to disclose the
information. aIEDAC

The Eleventh Circuit's reasoning behind establishing a quali ed

judicial privilege protecting the con dentiality of communications
between a judge and his staff members nds support among Supreme
Court decisions clarifying the scope of the legislative and the executive
privileges . In Gravel v. United States , for example, the Supreme Court expounded
upon the purpose of the privilege applicable to the communications between
legislators and their aides. In Gravel, a federal grand jury investigating possible
criminal conduct regarding the release and publication of the Pentagon Papers
issued a subpoena to an aide of United States Senator Mike Gravel, directing the
aide to appear before the grand jury and to explain the aide's involvement in the
publication of the documents. Senator Gravel sought to quash the subpoena on
the ground that the Speech and Debate Clause of the United States Constitution
prohibited the questioning of an aide who assisted a Senator in performing
legislative functions. The United States District Court for the District of
Massachusetts denied the motion to quash and the United States Court of
Appeals for the First Circuit modified the decision of the district court.
In addressing Senator Gravel's challenge to the enforceability of the
subpoena, the Supreme Court in Gravel explained that the purpose of the
legislative privilege embodied in the Speech and Debate Clause is to permit the
legislature to perform its duties free from the threats of or intimidation by the
executive branch. The Gravel Court stated that because of the legislative privilege,
the executive branch could not question a member of Congress about any act
that is an integral part of the deliberative and communicative process through
which members of Congress formulate and enact legislation. The Court noted,
moreover, that the executive branch could not interfere with the legislative process
by requesting congressional aides to account for the aides' acts performed in
assisting members of Congress, because congressional aides often perform acts
vital to the functioning of the legislative process. Although the Court in Gravel
stated that the legislative privilege extended to congressmen and their aides, the
Court indicated that the legislative privilege did not protect areas of
legislative activity that were not crucial to the deliberative and
communicative processes of formulating and enacting legislation .
Consequently, the Court in Gravel found that the grand jury properly could
question Senator Gravel's aide about any activity performed on Senator Gravel's
behalf that did not impugn a genuine legislative act.
T h e Williams decision, acknowledging a quali ed privilege for
communications between a judge and his staff, also nds support in the
Supreme Court's decision in Nixon v. United States , in which the Court held that a
quali ed privilege existed for communications between the President and his
aides. In Nixon, a federal grand jury issued a third party subpoena duces tecum
directing President Richard Nixon to produce certain tape recordings of
conversations with presidential aides who were under indictment for charges of
conspiracy to obstruct justice. The President moved to quash the subpoena duces
tecum. The President claimed that the executive privilege protected all
communications between the President and his aides, including the tapes that the
district court had ordered the President to produce.
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 Despite the President's claim that an absolute privilege existed for all
communications with his aides, the Supreme Court in Nixon rejected a
finding of an absolute privilege for all presidential communications . The
Nixon Court recognized that indiscriminate intrusion into, and the resulting public
disclosure of, the substance of the President's conversations with his advisors
would impair the President's ability to solicit candid and honest assessments
from his aides. T h e Nixon Court found, however, that an absolute
privilege would con ict with the intent of the Framers to form a
balanced government and would burden unduly the administration of
justice .

T h e Nixon Court thus determined that absent the need to protect

diplomatic or military secrets the President's "generalized interest" in
the con dentiality of his discussions warranted only a quali ed
privilege that could be overcome upon a showing of substantial need
for the information as evidence in a pending criminal trial . HAIDcE

Although Gravel and Nixon support the Williams court's recognition of a

quali ed judicial privilege protecting the decision-making process of the judiciary,
some commentators have advocated greater disclosure of the judicial
decision-making process . One commentator has noted that judicial
decisions often have signi cant social consequences that affect
substantive legal rights . Within the last twenty years, for example, courts have
had to resolve controversial and politically charged issues regarding capital
punishment, abortion, and school desegregation. Because of the signi cant
political effects of judicial decisions, commentators object to the circumstance
that published opinions represent the full extent to which judges must reveal the
in uences that shape their decisions. Opponents of judicial con dentiality,
arguing that the secrecy surrounding the judicial decision making
process is undemocratic, demand that judges provide the public with
greater access to the process through which judges formulate judicial
decisions . 1 1 (Emphasis supplied, citations and footnotes omitted.)

He then ends his work by clarifying that judicial privilege will yield to greater and
significant public interests, to wit:
The privilege for judicial communications, however, is not
absolute and must yield if signi cant interests outweigh a judge's
interest in con dentiality. For example, the demonstrated need for
evidence in a criminal prosecution or in an investigation of judicial
misconduct warrants an intrusion into con dential judicial
communications . In considering whether to compel disclosure of judicial
communications, courts should realize, however, that indiscriminate or
unnecessary intrusions into the con dentiality of judicial communications may
infringe upon a judge's independence and would inhibit the exchange of ideas
between judges and persons who assist them in their o cial duties. 1 2
(Emphasis supplied.)

In similar vein, the matter of impeachment of the highest judicial o cer of the
land, like the possible impeachment of Judge Hastings in Williams v. Mercer who was
then under criminal investigation, is of such paramount societal importance that
overrides the generalized claim of judicial privilege being asserted by the majority.
Contrary to the assertion made in the Per Curiam Resolution, the principle of comity in
fact behooves this Court to extend respect to the Senate acting as an Impeachment
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 Court and give it wide latitude in favor of its function of exacting accountability as
required by the Constitution.
The Resolution noted that a Justice of the Supreme Court may testify on bribery
committed by an accused fellow Justice — participation in bribery being external to the
adjudicative function — as an exception to the prohibition against Justices providing
their testimony before the Impeachment Court. Note however, that while Judge
Hastings in the above case was being investigated for possible bribery, what were
being subpoenaed were documents and testimony from his staff not on the act of
bribery itself, but logbooks, diaries, telephone message books, logs and
memoranda — documents that appear to be records of details of Judge Hastings'
daily contacts. These were held by the United States Court of Appeals to be not
covered by judicial privilege. Similarly, where an article for impeachment is sought to be
proven through logbook entries and time stamps, no judicial privilege can be invoked,
as these do not interfere with the mental deliberative process in adjudication.
Unaccountability, especially of impeachable o cers enjoying xed tenures, is
unacceptable and intolerable in our system of democratic government. If there is
anything that the Filipino people sought to achieve in enacting the 1987 Constitution, it
was to ensure that governmental power will never again be centralized in one person
and that an effective system of checks-and-balances is established. Proper
constitutional safeguards were put in place to ensure that the people will have some
control and protection against public abuse for those who betray the public trust. 1 3 EITcaH

One of these accountability measures is the process of impeachment. 1 4

Impeachment is the process by which 31 speci ed public o cers, who otherwise enjoy
a xed term or tenure, can be removed from o ce for culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust. 1 5 Shall the public's demand for accountability undertaken by the
Impeachment Court through the issuance of subpoena be severely emasculated by the
general claim of keeping internal deliberations of the Court and other documents
con dential? I disagree with this idea because unlike judicial privilege that is quali ed,
the legal mandate to make public o cers accountable to the people is absolute and
unconditional. One needs to just look at the primacy afforded to such concept in our
constitutional framework. The only constitutionally acceptable approach that this Court
can adopt with respect to the subpoena, is to justify, through speci c and
responsive reasons , its denial of access to every item of information that the Per
Curiam Resolution has decided to withhold.
Although the operational necessity of keeping internal deliberations of the Court
in con dence is, by and large, traditionally recognized, the privilege cannot be cavalierly
invoked to defeat the accountability measure of the impeachment process. The grant
of judicial privilege, much like other exclusionary privileged communications under the
rules of evidence, 1 6 is premised on an accepted need to protect a trust relationship, in
this case between justices performing their adjudicatory function during deliberations
in executive sessions.
For communication and correspondences to be considered privileged, there
must be an advantage derived from the protection that outweighs, in the hierarchy of
governmental and societal values, the detrimental effect of the privilege on the search
for truth. 1 7 In short, once higher societal values, such as the public's right to
information, and the constitutional directive to extract accountability from public
o cers, are found to supersede the advantages of protecting con dential information,
quali ed judicial privilege must necessarily succumb. In this case, the compulsory
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 processes of the Impeachment Court, for some of the information being withheld by
the Per Curiam Resolution, have passed those standards and the Court can no longer
hide behind the cover of judicial privilege. The injury to society would indeed be greater
if the Court upholds unconditionally the judicial privilege against all inquiries on its
adjudicatory processes and denies outright the powers of the Impeachment Court to
determine the truth and the public's demand for accountability of impeachable judicial
officers.
In fact, this Court categorically recognized the limitations of privileged
communications enjoyed by government o cials and denied the privilege when it
comes to the investigation of criminal actions or wrongdoing. Non-disclosure by public
o cers based on privileged communications can never be justi ed as a means of
covering mistakes, avoiding embarrassment or for political, personal or pecuniary
reasons. 1 8 HEITAD

I n Neri v. Senate Committee on Accountability of Public O cers and

Investigations, 1 9 the Court discussed in great detail the nuances of the claim of
executive privilege invoked by petitioner Romulo I. Neri, the then Director of the National
Economic and Development Authority, against the orders of the Senate Committee on
Accountability of Public O cers and Investigations. The Committee was then
investigating the NBN-ZTE contract entered into by the government. Although there
were several separate opinions on the extent of executive privilege, there was no
dispute 2 0 that "executive privilege does not guard against a possible disclosure of a
crime or wrongdoing." 2 1 In his Dissenting and Concurring Opinion, Justice Carpio
explained that executive privilege can only be invoked pursuant to o cial powers and
functions and may not extend to hide a crime:
Executive privilege must be exercised by the President in pursuance of
official powers and functions. Executive privilege cannot be invoked to hide
a crime because the President is neither empowered nor tasked to
conceal a crime . On the contrary, the President has the constitutional duty to
enforce criminal laws and cause the prosecution of crimes.

Executive privilege cannot also be used to hide private matters, like private
nancial transactions of the President. Private matters are those not undertaken
pursuant to the lawful powers and o cial functions of the Executive. However,
like all citizens, the President has a constitutional right to privacy. In conducting
inquiries, the Legislature must respect the right to privacy of citizens, including the
President's.

Executive privilege is rooted in the separation of powers. Executive

privilege is an implied constitutional power because it is necessary and proper to
carry out the express constitutional powers and functions of the Executive free
from the encroachment of the other co-equal and co-ordinate branches of
government. Executive privilege springs from the supremacy of each branch
within its own assigned area of constitutional powers and functions. 2 2
(Emphasis supplied.)

Neither the doctrine of separation of powers nor the need for con dentiality of
internal deliberations will support an unconditional and all-encompassing grant of
immunity to Members of this Court against the Impeachment Processes of the Senate,
under all circumstances. It is not because the Court should view judicial privilege as an
unessential facet of judicial functioning, but that greater value should be placed on the
duty of the Impeachment Court to effectively try and decide cases of impeachment. 2 3
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 Requested and Subpoenaed Court Records
The question arises whether the court documents listed in the letters-request
and the subpoena fall outside the protection of the rule of qualified judicial privilege. ETaHCD

The letters dated 19 and 25 January 2012 of Cong. Joseph Emilio A. Abaya, as
House Prosecution Panel Manager, requested for the examination of the rollos and
certi ed true copies of the pleadings and other related documents thereof, including
the Agenda and the Minutes of the Deliberations, in connection with the following
cases: (1) League of Cities v. COMELEC, G.R. Nos. 176951, 177499 and 178056; (2)
Flight Attendants and Stewards Association of the Philippines (FASAP) v. Philippine
Airlines, Inc., et al., G.R. No. 178083; (3) Navarro v. Ermita, G.R. No. 180050, 12 April
2011; and (4) Ma. Merceditas N. Gutierrez v. The House of Representatives Committee
on Justice, et al., G.R. No. 193459, 15 February 2011.
Meanwhile, in the Subpoena ad testi candum et duces tecum a n d Subpoena
duces tecum both dated 09 February 2012 issued by the Senate Impeachment Court,
Attys. Enriqueta Vidal and Felipa Anama, as the En Banc Clerk of Court and Deputy Clerk
of Court, respectively, were directed to appear before the Impeachment Court and bring
original and/or certi ed true copies of documents pertaining to these two cases: Flight
Attendants and Stewards Association of the Philippines (FASAP) v. Philippine Airlines,
Inc., et al., G.R. No. 178083 and Gloria Macapagal-Arroyo v. Hon. Leila De Lima, G.R.
Nos. 199034 and 199046.
Considering that the letters-request of the Impeachment Prosecution Panel and
the subpoena issued by the Impeachment Court are limited to only court documents
and records, our discussion on these matters will be con ned to whether the requested
documents are covered by judicial privilege or are subject to public scrutiny. Since the
Impeachment Court has denied the request of the House Prosecution Panel for the
appearance of some of the Justices of this Court to testify before it, 2 4 it is
unnecessary for us to discuss this matter in the meantime. Any disposition in relation
to this matter in the Per Curiam Resolution is simply obiter and will not bind its
Members when the issue becomes ripe in the future. 2 5
As a preliminary matter, all o cial records, including court records, are without
doubt subject to the constitutional right to information of the people:
The right of the people to information on matters of public concern shall
be recognized. Access to o cial records, and to documents, and papers
pertaining to o cial acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law. 2 6

No less than this Court expressed the presumption in favor of public disclosure
of information generated or held by the Court:
1. The Supreme Court shall provide maximum responsible disclosure
of timely, accurate and relevant information to the public without betraying those
aspects of the decision-making process which require utmost confidentiality.
2. There shall be a presumption in favor of public disclosure of
information generated or held by the Supreme Court. The presumption shall be
subject to exceptions to be determined by the Task Force. 2 7
cTDECH

Thus, the general rule covering court documents and records is disclosure, while
con dentiality is the exception. As an exception, con dentiality must be strictly
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 construed.
John Louis Kellog, another authority cited in the Per Curiam Resolution, 2 8
describes an instructive two-step guideline for determining whether court documents
are to be covered under the judicial privilege covering the adjudicatory process of
courts:
Application of the privilege involves a two-step analysis: (1) to determine
whether the documents in question are in fact deliberative and (2) to perform a
balancing of party's interests. The courts held that because the privilege was
quali ed, a balancing test weighing the need for con dentiality against the
opposing party's evidentiary need for disclosure was appropriate. Courts noted
that an in camera inspection of the materials could aid in applying the balancing
test, although the requesting party's need must be demonstrable. Courts also
recognized the options of partial disclosure or protected disclosure as possible
compromises to the conflicting concerns.

Following Kellog's two step-analysis in this instant case where court personnel
are being asked by the Impeachment Court to disclose information regarding the
records of this Court, the correct interpretation would be to allow disclosure in all court
records, except those documents that are directly and intimately connected to the
adjudicatory functions of the Justices. Administrative, operational and other non-
adjudicatory matters being requested by the House Impeachment Panel and required
by the Impeachment Court must be subsumed under the general rule of open and
transparent government that gives full force and protection to the right of information.
The balance of interest must tilt in favor of the Impeachment Court in its mandate to
hold a Member of the Supreme Court accountable under the present impeachment
proceedings. The public's right to information and the Court's own presumption in favor
of open and transparent disclosure further persuade us to conclude that judicial
privilege must succumb in this instance.
Thus, I concur with the majority that all documents which are directly and
intimately connected to the adjudicatory function performed by Justices, such as
drafts, research materials, internal memorandum, minutes, 2 9 agenda, 3 0 recommended
actions, and other similar documents that are "predecisional" and "deliberative", fall
within the rule on quali ed judicial privilege and cannot be disclosed or be the subject
of compulsory processes of the Impeachment Court. However, those court
documents which pertain to administrative and non-adjudicatory matters
should be made available for public scrutiny, especially when its production
is being compelled by the Impeachment Court .
With respect to the request for examination of the rollos 3 1 of the above-
mentioned cases, I also believe that documents, which are public in nature, should be
covered by the general rule of public disclosure and subject to examination by the
House Prosecution Panel as well as the compulsory processes of the Impeachment
Court. These include petitions, motions and other pleadings led by the parties (with all
annexes) as well as promulgated decisions, orders, resolutions and notices of the
Court, which are matters of public record.
In Cuenco v. Cuenco, 3 2 the Court had already ruled that pleadings of the parties
form part of o cial records that are open to the public for examination and scrutiny.
Further, we stated that: cAaTED

[P]leadings are presumed to contain allegations and assertions lawful and

legal in nature, appropriate to the disposition of issues ventilated before the
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 courts for the proper administration of justice and, therefore, of general public
concern. Moreover, pleadings are presumed to contain allegations substantially
true because they can be supported by evidence presented in good faith, the
contents of which would be under the scrutiny of courts and, therefore, subject to
be purged of all improprieties and illegal statements contained therein.

In Hilado v. Reyes, 3 3 the Court exhaustively discussed the matter in this wise:
On the merits of the petition for mandamus, Section 7 of Article III of the
Constitution provides:
SECTION 7. The right of the people to information on matters
of public concern shall be recognized. Access to o cial records , and to
documents, and papers pertaining to o cial acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations
as may be provided by law . (Emphasis and underscoring supplied)
The above-quoted constitutional provision guarantees a general right — the
right to information on matters of "public concern" and, as an accessory thereto,
the right of access to "o cial records" and the like. The right to information
on "matters of public concern or of public interest" is both the purpose
and the limit of the constitutional right of access to public documents .
Insofar as the right to information relates to judicial records, an
understanding of the term "judicial record" or "court record" is in order.
The term "judicial record" or "court record" does not only refer to the orders,
judgment or verdict of the courts. It comprises the o cial collection of all
papers, exhibits and pleadings led by the parties, all processes issued
and returns made thereon, appearances, and word-for-word testimony
which took place during the trial and which are in the possession,
custody, or control of the judiciary or of the courts for purposes of
rendering court decisions . It has also been described to include any paper,
letter, map, book, other document, tape, photograph, film, audio or video recording,
court reporter's notes, transcript, data compilation, or other materials, whether in
physical or electronic form, made or received pursuant to law or in connection
with the transaction of any o cial business by the court, and includes all
evidence it has received in a case.

In determining whether a particular information is of public concern, there

is no right test. In the nal analysis, it is for the courts to determine on a case to
case basis whether the matter at issue is of interest or importance as it relates to
or affect the public.

It bears emphasis that the interest of the public hinges on its right to
transparency in the administration of justice, to the end that it will
serve to enhance the basic fairness of the judicial proceedings,
safeguard the integrity of the fact- nding process, and foster an
informed public discussion of governmental affairs . Thus in Barretto v.
Philippine Publishing Co., this Court held: HDIATS

. . . The foundation of the right of the public to know what is going

on in the courts is not the fact that the public, or a portion of it, is curious,
or that what is going on in the court is news, or would be interesting, or
would furnish topics of conversation; but is simply that it has a right to
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 know whether a public o cer is properly performing his duty. In other
words, the right of the public to be informed of the proceedings in court is
not founded in the desire or necessity of people to know about the doing of
others, but in the necessity of knowing whether its servant, the
judge, is properly performing his duty . . . .
The case in Cowley vs. Pulsifer (137 Mass. 392) is so pertinent to
the questions presented for our decision in the case at bar that we cannot
refrain from quoting extensively therefrom. . . .
. . . "The general advantage to the country in having these
proceedings made public more than counterbalances the inconveniences
to the private persons whose conduct may be the subject of such
proceedings.". . .

"The chief advantage to the country to which we can discern, and

that which we understand to be intended by the foregoing passage, is the
security which publicity gives for the proper administration of justice. . . . It
is desirable that the trial of causes should take place under the public eye,
not because the controversies of one citizen with another are of public
concern, but because it is of the highest moment that those who
administer justice should act under the sense of public
responsibility, and that every citizen should be able to satisfy
himself with his own eyes as to the mode in which a public duty
is performed ."
From this quotation it is obvious that it was not the idea of the
supreme court of Massachusetts to lay down the proposition that simply
because a pleading happened to be led in a public o ce it becomes
public property that any individual, whether interested or not, had the right
to publish its contents, or that any newspaper was privileged to scatter the
allegations contained therein to the four corners of the country. The right
of the public to know the contents of the paper is the basis of the privilege,
which is, as we have said, the right to determine by its own senses
that its servant, the judge, is performing his duties according to
law . . . .
Decisions and opinions of a court are of course matters of public concern
or interest for these are the authorized expositions and interpretations of the laws,
binding upon all citizens, of which every citizen is charged with knowledge.
Justice thus requires that all should have free access to the opinions of
judges and justices, and it would be against sound public policy to
prevent, suppress or keep the earliest knowledge of these from the
public . Thus, in Lantaco Sr. et al. v. Judge Llamas, this Court found a judge to
have committed grave abuse of discretion in refusing to furnish Lantaco et al., a
copy of his decision in a criminal case of which they were even the therein private
complainants, the decision being "already part of the public record which the
citizen has a right to scrutinize." EAIaHD

Unlike court orders and decisions, however, pleadings and other

documents led by parties to a case need not be matters of public concern or
interest. For they are led for the purpose of establishing the basis upon which
the court may issue an order or a judgment affecting their rights and interests.

In thus determining which part or all of the records of a case may be

accessed to, the purpose for which the parties filed them is to be considered.
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 xxx xxx xxx

If the information sought then is not a matter of public concern or interest,

denial of access thereto does not violate a citizen's constitutional right to
information.
Once a particular information has been determined to be of public
concern, the accessory right of access to o cial records, including
judicial records, are open to the public .
The accessory right to access public records may, however, be restricted on
a showing of good cause. How "good cause" can be determined, the Supreme
Judicial Court of Massachusetts in Republican Company v. Appeals Court
teaches:
The public's right of access to judicial records, including transcripts,
evidence, memoranda, and court orders, maybe restricted, but only on a
showing of "good cause." "To determine whether good cause is shown, a
judge must balance the rights of the parties based on the
particular facts of each case ." In so doing, the judge "must take into
account all relevant factors, 'including, but not limited to, the nature of the
parties and the controversy, the type of information and the privacy
interests involved, the extent of community interest, and the reason for the
request.'"
And even then, the right is subject to inherent supervisory and protective
powers of every court over its own records and files.
The Supreme Court of Canada, expounding on the right of the court to
exercise supervisory powers over materials surrendered into its care, held:
It follows that the court, as the custodian of the exhibits, is bound to
inquire into the use that is to be made of them and, in my view, is fully
entitled to regulate that use by securing appropriate undertakings
and assurances if those be advisable to protect competing
interests . . . .
In exercising its supervisory powers over materials
surrendered into its care, the court may regulate the use made of
it . In an application of this nature, the court must protect the respondent
and accommodate public interest in access. . . . In an application of this
nature the court must protect the respondent and accommodate the public
interest in access. This can only be done in terms of the actual
purpose, and in the face of obvious prejudice and the absence of
a speci c purpose, the order for unrestricted access and
reproduction should not have been made . EcTCAD

In ne, access to court records may be permitted at the discretion and

subject to the supervisory and protective powers of the court, after considering the
actual use or purpose for which the request for access is based and the
obvious prejudice to any of the parties. In the exercise of such discretion, the
following issues may be relevant: "whether parties have interest in privacy,
whether information is being sought for legitimate purpose or for improper
purpose, whether there is threat of particularly serious embarrassment to party,
whether information is important to public health and safety, whether sharing of
information among litigants would promote fairness and e ciency, whether a
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 party bene ting from [the] con dentiality order is [a] public entity or o cial, and
whether [the] case involves issues important to the public." (Emphasis supplied.)

One of the strangest disposition in the Resolution is the majority's denial of

access to the SPA dated 15 November 2001 submitted by petitioners Gloria
Macapagal-Arroyo and Jose Miguel Arroyo in G.R. Nos. 199034 and 199046 in favor of
Atty. Ferdinand Topacio. That denial of access is incongruent with the fact that the SPA
is already a public record, with its notarization by an accredited notary public in
accordance with the Rules on Notarial Practice. 3 4 Documents acknowledged before a
notary public are considered under the evidentiary rules as public documents. 3 5 It
strains reason why a Special Power of Attorney made a public document by law
suddenly becomes a con dential record covered under judicial privilege by the mere
fact of its having been filed with the Court.
Considering that their purpose is in pursuit of the legitimate end of ferreting out
the truth in the impeachment proceedings, the House Prosecution Panel and the
Impeachment Court are entitled to certi ed true copies of the court records of the
identified cases, subject to reasonable regulation and costs for photocopying.
I am also compelled to dwell on the availability of the results of the raffle of
these selected cases since it occupies a special place in judicial processes with
respect to con dential information. The ra ing of the case is undoubtedly part of the
adjudicatory process because it identi es which among the fteen justices of the Court
will be the Member-in-Charge responsible for studying the case and circulating a draft
of a decision for the consideration of the Court. 3 6 Nonetheless, the Internal Rules of
the Supreme Court itself has opened the results of the ra e to the parties in
the case and their respective counsel , except in cases of (a) bar matters; (b)
administrative cases; and (c) criminal cases where the penalty imposed by the lower
court is life imprisonment. 3 7 Hence, I concur with the majority's denial of the request of
the House Prosecution Panel and the compulsory process of the Impeachment Court
to obtain the results of the ra e in the cases identi ed, since it pertains to matters of
quali ed judicial privilege. This does not however prevent them from requiring the
parties to these cases as well as their counsel from divulging the results of the ra e,
which information the latter are entitled to extract from the Clerk of Court.
Having explained my partial concurrence with the majority on the court records, I
must then explain my points of divergence on the matter of court records that are being
withheld by the Resolution. cTCaEA

First, the disclosure of con dential information by a public o cer is made

criminally punishable only if it is unauthorized . The Anti-Graft and Corrupt Practices
Act, 3 8 which was erroneously quoted in the Per Curiam Resolution, 3 9 punishes the
release of con dential information to unauthorized persons . All the three penal laws
relied upon by the majority only point to a public o cer who voluntarily reveals
information received in the performance of their functions and acquired in con dence.
This does not cover an instance when the public o cer is mandatorily made to
disclose by a compulsory process of a superior authority , such as the Impeachment
Court. In addition, a threshold issue must always rst be resolved on whether the
matter sought to be elicited from the public o cer is indeed con dential information
subject to the qualified protection of judicial privilege.
Contrary to what is being implied in the Resolution, it does not appear that the
Impeachment Court is granting any immunity from criminal prosecution to anyone to
reveal con dential information. The matter of the availability of the justifying
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 circumstance of "obedience to a lawful order" to escape criminal liability under the
Revised Penal Code 4 0 was a mere discussion and was broached as a possible defense
in a criminal suit against a public officer lawfully compelled to reveal information.
Second, it is incongruous and operationally ine cient for the majority to claim
that every waiver of judicial privilege must be subject to the Supreme Court's
consideration and approval: 4 1
These privileges belong to the Supreme Court as an institution, not to any
justice or judge in his or her individual capacity. Since the Court is higher than the
individual justices or judges, no sitting or retired justice or judge, or even the Chief
Justice, may claim exception without the consent of the Court.

This point (albeit incidental to the discussion of the majority) is rife with
dictatorial dangers that are incompatible with our democratic system. Particularly in
this case, the subject of the impeachment proceeding is the head of the collegial body
that will decide whether or not to waive judicial privilege in favor of court personnel who
are called to testify before the Impeachment Court. Also, will retired justices or judges
be now required to seek dispensation and approval from the Supreme Court if required
to testify by the Impeachment Court even on matters of administration and non-
adjudicatory operations of the Court? 4 2 I think the above language in the Resolution
dangerously preempts the Impeachment Court in a way that constitutes
unconstitutional interference. acITSD

Not only has the majority overly extended the limits of quali ed judicial privilege
— which does not nd any express basis under the Constitution unlike executive
privilege — but it likewise seeks to expand its in uence in a manner similar to the
President's by arrogating unto itself the decision on when such privilege can be
exercised or waived. 4 3
Third, although the quali ed judicial privilege extends to court personnel, other
than judges and justices, the Per Curiam Resolution should not be construed to mean
that it extends to all other aspects of their official responsibilities. 4 4 Similar to the case
of Judge Hastings in Williams v. Mercer, court personnel are only granted limited
judicial privilege in cases where the documents, communications or correspondences
sought to be divulged are intimately and directly related to the adjudicatory function of
the judge or justice that they serve. Administrative and other non-adjudicatory
information, such as those contained in logbooks, appointment diaries, daily schedules,
itineraries, calendar of activities, travel itineraries, guest sign-in sheets and telephone
message books, logs and memoranda, date and time of ling of petitions, and the like,
are outside the scope of quali ed judicial privilege and thus, within the proper
scope of inquiry by the Impeachment Court. Hence, the Subpoena dated 09 February
2012 of the Impeachment Court in relation to the case of Macapagal-Arroyo v. De Lima,
in G.R. No. 199034 and 199046, pertaining to the date and time the petition of Gloria
Macapagal-Arroyo and the SPA in favor of Atty. Topacio was led and received by the
Court; the Chief Justice's travel orders or leave applications; the logbook and the
receiving copy showing the time the Temporary Restraining Order (TRO) was received
by the parties; the logbook showing the date and time the dissents to the 22 November
2011 Resolution were received; the Sheriff's Return of Service of the TRO; and, the
certi cation from the Fiscal Management and Budget O ce regarding the time the
cash bond in relation to the TRO was received, should be respected and must be
obeyed. These documents are administrative matters that have no relation or are
merely incidental to the adjudicatory function of the Court, and must be subject to the
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 Court's general policy of full disclosure.
The Constitutional Duty of a Justice of the Supreme Court to Explain a
Dissent
I wish to raise issue with the operation of judicial privilege vis-Ã -vis the
constitutional duties of Members of this Court, especially by those in the minority, to
explain their votes. Judicial privilege cannot be invoked to sti e or obstruct the
constitutional right and duty of justices to defend their votes in a separate opinion.
The high responsibility imposed on justices, especially for dissenting ones, to
explain their votes, nds resonance in our constitutional history. On 17 January 1935,
the judiciary committee of the 1934 Constitutional Convention introduced the following
provision on the judiciary: 4 5
The conclusions of the Supreme Court shall be reached in consultation
before the case is assigned for writing the opinion. The decision shall be in
writing, and signed by the justices concurring therein. Every point fairly arising
upon the briefs shall be considered and decided, and the facts and the law upon
which the decision or judgment is based shall be clearly stated. Any justice
dissenting therefrom shall give the reasons of such dissent in writing over his
signature. aSTECA

It was later revised to read:

The conclusions of the Supreme Court in any case submitted to it for
decision shall be reached in consultation before the case is assigned to a Justice
for the writing of the opinion of the Court. Any Justice dissenting from a decision
shall state the reasons for his dissent.
No decision shall be rendered by any court of record without expressing
therein clearly and distinctly the facts and the law on which it is based. 4 6

According to Aruego: 4 7
The rst part of the provisions was intended to oblige all the Justices of
the Supreme Court to study every case before that body. At the time of the
drafting of the Constitution, there was the general belief that a majority of the
decisions of the Supreme Court were decisions of only one Justice, the penning
Justice. Under the Constitution, so the Convention intended, the Justices should
study the case. They should then come into consultation with respect to the
conclusions. With the conclusions already arrived at, the case would then be
assigned to a Justice for the writing of the opinion of the Court. Thus the decision
in any case would be really the decision of the Supreme Court, not a one-man
decision. The part of the provision requiring a dissenting Justice to state the
reasons for his dissent was intended to insure a study of the case; for it was
observed in many cases that the mere words, "I dissent," without giving the
reasons, was in the words of Delegate Francisco, "only intended to make the
parties of the public believe that the case has been studied and discussed
thoroughly by the Court when in fact and in truth it is just the contrary. Moreover,
there have been cases in this jurisdiction where a well-reasoned dissenting
opinion has been adopted as the decision of the majority in a subsequent case."
ITDSAE

Thus, Article VIII, Sec. 11, of the 1935 Constitution, reads:

The conclusions of the Supreme Court in any case submitted to it for
decision shall be reached in consultation before the case is assigned to a Justice
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 for the writing of the opinion of the Court. Any Justice dissenting from a decision
shall state the reasons for his dissent.

It was maintained in the 1973 Constitution through Article X, Sec. 8:

The conclusions of the Supreme Court in any case submitted to it for
decision en banc or in division shall be reached in consultation before the case is
assigned to a Member for the writing of the opinion of the Court. Any Member
dissenting from a decision shall state the reasons for his dissent. The same
requirements shall be observed by all inferior collegiate courts.

It is therefore evident that the purpose of this mandate is consistent with the
constitutional duty to be transparent and to be accountable to the people. It was
obviously intended as an assurance to the public that the Justices exercised the utmost
care and diligence in reaching their decisions, which should be founded on facts, laws
and reason.
This principle was not only reiterated in the 1987 Constitution, but was further
reinforced when the phrase "shall state the reasons for his dissent" was replaced by
"must state the reason therefore."
Article VIII, Sec. 13 of the 1987 Constitution now reads:
The conclusions of the Supreme Court in any case submitted to it for
decision en banc or in division shall be reached in consultation before the case is
assigned to a Member for the writing of the opinion of the Court. A certi cation to
this effect signed by the Chief Justice shall be issued and a copy thereof attached
to the record of the case and served upon the parties. Any Member who took
no part, or dissented, or abstained from a decision or resolution must
state the reason therefor. The same requirements shall be observed by all
lower collegiate courts.

In introducing this amendment, we refer to the Records of the 1987

Constitutional Commission:
MR. MAAMBONG: Thank you, Mr. Presiding Officer.
I will proceed to the last sentence which reads:

Any Member dissenting or abstaining from a decision shall state the

reason for his dissent or abstention. EDHCSI

We are all aware, Mr. Presiding O cer, that there are so many decisions of
the Supreme Court mentioned in the Philippine Reports and the Supreme Court
Reports, Annotated, wherein a member merely mentions, "I concur" and sign or "I
abstain" and sign or "I dissent" and sign.
Before I propose any amendment, I would like to know from the Committee
if this last sentence means that a member of the court who dissents or abstains
should state, as a matter of a mandatory requirement, the reason for his dissent
or abstention, or, could a member who dissents or abstains just do the usual thing
and place there, "I dissent" or "I abstain," then sign?
MR. REGALADO: We will make it mandatory. May I explain? The line
here says: "Any Member dissenting or abstaining from a decision shall
state the reason for his dissent or abstention." This is to eliminate the
practice of just saying "no part," and then, he places therein his initials
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 or comment "I dissent." The Gentleman wants it to be more or less mandatory
because of the phrase "shall state the reason for his dissent or abstention."

MR. MAAMBONG: I just would like to know the intention, Mr. Presiding
Officer.
MR. REGALADO: If the Gentleman wants it to be a little stronger
and in a more mandatory manner, I think the Committee will have no
objection to changing the word "shall" to MUST.
MR. MAAMBONG: Then, I so move, Mr. Presiding O cer, to change the
word "shall" to MUST with the following clari cation: If it is already
acceptable to the Committee that when a member who dissents or
abstains will not indicate his reasons, would that be a nonfeasance in
the performance of official duty ?
MR. REGALADO: That would be a culpable violation, unless he
explains why he was not able to indicate his reasons. In the rules on
impeachment, it is not only a violation of the Constitution but a
culpable violation thereof. So, if despite this directive which is about
the strongest we can use without ru ing the sensibilities of the
members of the Supreme Court — the word "must" is already an
indication of the mandatory nature of that requirement — and they have
no reason whatsoever for not complying therewith then it is not only a
violation, but a culpable violation, without prejudice to such action as
may be taken against him by his own peers in the Supreme Court .
MR. MAAMBONG: Just one nal point, Mr. Presiding O cer. Could a
justice just say on the bottom of the decision, "I take no part," then sign it?
cHCIEA

MR. REGALADO: He has to say, for instance, "I take no part because I am
disqualifying myself for the following reasons," and some of them are the
reasons for disqualification from participation.
MR. MAAMBONG: Thank you.

MR. REGALADO: But if he just says, "no part," considering the mandatory
nature, that would already be a violation.

MR. MAAMBONG: Thank you, Mr. Presiding O cer. 48 (Emphasis

supplied.)

The mandatory observance of this rule was of such nature that "[a]ny willful
failure to comply with these provisions was intended to constitute a culpable violation
of the Constitution, one of the grounds for impeaching Justices of the Supreme Court."
4 9 From the quoted portion of the Records of the Constitutional Commission, this
remains true to date.
In an unprecedented move, the majority now seeks to propose a system by
which the Justices' opinions and decisions shall rst undergo a determination by the
majority whether their contents contain privileged communication before they are
published. Without a doubt, this is a form of censure and a curtailment of the Justices'
constitutional duty to explain their reason for their opinions.
I agree with the general and limited view that court deliberations are con dential
in nature and these should not be divulged on a whim. However, the privilege on
con dentiality must be balanced with the constitutional duty to inform the public of the
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 basis for the Court's decisions, especially when the subject matter is of national
interest. This is an exacting demand and a necessary attribute of our judicial system.
Again, the public interest of seeing the ful llment by a justice of his or her constitutional
duty to freely express his or her vote on a particular case is superior to the generalized
claim of judicial privilege.
The advantages of giving free rein to members of the Court to express their
ideas and votes in cases pending before it adheres to the adjudicatory function of
dispensing justice, not by personal whim or caprice, but by rational thought based on
the Constitution, statutes, jurisprudence and legal precedents. The value of a dissent is
rooted in the democratic set-up of the Supreme Court, where the vote of a majority of
fifteen justices, shall prevail: cADaIH

I argue that oral dissents, like the orality of spoken word poetry or the
rhetoric of feminism, have a distinctive potential to root disagreement about the
meaning and interpretation of constitutional law in a more democratically
accountable soil. Ultimately, they may spark a deliberative process that enhances
public con dence in the legitimacy of the judicial process. Oral dissents can
become a crucial tool in the ongoing dialogue between constitutional law and
constitutional culture. 5 0

Separate opinions, whether concurring or dissenting, in fact support judicial

privilege insofar as it reveals the deliberative nature of the Court's adjudicatory
function. It gives the people, who are excluded from its internal deliberations, the
impression and guarantee that decisions are based on rational debates among those
privileged enough to hold these exalted and highest of public offices.
To other past and present Justices, most famously Chief Justice Harlan
Stone and Justice William Brennan, dissent is a healthy, and even necessary,
practice that improves the way in which law is made. We get better law, ceteris
paribus, with dissent than without. Their counter position rests in part on two
ideas: rst, dissents communicate legal theories to other Justices, lawyers,
political actors, state courts, and future Justices, and have sometimes later won
the day as a result of this; and, second, dissents are essential to reveal the
deliberative nature of the Court, which in turn enhances its institutional
authority and legitimacy within American governance . Justice Brennan
describes the rst idea as Justices 'contributing to the marketplace of competing
ideas' in an attempt to get at the truth or best answer. Chief Justice Charles Evans
Hughes captured this latter point when he observed that dissent, when a matter of
conviction, is needed "because what must ultimately sustain the court in
public con dence is the character and independence of the judges . 5 1
(Emphasis supplied.)

In numerous instances, the Justices of this Court have narrated court

deliberations without fear of censorship or retribution.
People v. Caruncho 5 2 caught the attention of the public when, on live television,
Mayor Emiliano R. Caruncho, Jr. and his companions manhandled reporter Salvador F.
Reyes. While the discussion of the case was very short, court deliberations and
processes were tackled lengthily. The ponencia of Justice Abad Santos related the
process of assignment of the decision to the Justices prior to and during the writing of
the decision. In particular, Justice Abad Santos recalled particular conversations
between speci c justices as to the assignment of landmark cases and the complaint of
Justice Melencio-Herrera regarding the length of time it took to dispose of the case.
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 Then Chief Justice Fernando also wrote a separate concurring opinion, discussing the
manner of assignment of the case and the voting thereon. Justice Melencio-Herrera
likewise wrote a separate opinion detailing at length the manner of voting of the
justices on the case on different agenda dates, and the court's, and the Chief Justice's,
actions thereafter. AHcCDI

In his concurring opinion, Justice Gutierrez remarked that the opening up of

the deliberations of the Supreme Court to the public (as when the voting was
recited in detail) may be helpful to the general public and do away with
unfounded speculations as to how decisions are reached . 5 3
In Misolas v. Panga, 5 4 Justice Sarmiento also revealed how the case "journeyed
from ponente to ponente and opinion to opinion, which, rather than expedited its
resolution, [had] delayed it — at the expense of the accused-petitioner."
It is in this light that the separate concurring and dissenting Opinions
promulgated in Arroyo v. De Lima 5 5 necessitated a discussion of the court
deliberations, because what was a core issue was whether the 22 November 2011
Resolution accurately re ected the discussions of the Court en banc during the 18
November 2011 Session.
Indeed, in a variety of other contentious cases of signi cant importance, the
events and discussions in the internal deliberations of the Court, including the voting,
have been the subject of separate opinions of both the majority and the minority. 5 6
In the Per Curiam Resolution, the majority, however, insisted that the internal
deliberations included in the Separate Opinions of Justices Antonio T. Carpio,
Presbitero J. Velasco, Jr., Arturo D. Brion, Roberto A. Abad, and Maria Lourdes P. A.
Sereno in Arroyo v. De Lima, are still well within the purview of the Court's claim of
judicial privilege, despite its promulgation and publication:
The [Dissenting, Concurring or Separate] Opinion refers to the personal
opinion of the writer [who has the constitutional duty to explain his/her Dissent],
and is a matter of public record after this was published. The Court, however, as
the institution entitled to the deliberative process privilege, cannot waive the
con dentiality of certain portions of this [Dissent, Concurring, Separate Opinion]
for being part of the privilege.
The Court shall allow the witness to issue a certi ed true copy of this
[Dissent, Concurring, Separate] Opinion, subject to this reservation. 5 7

This pronouncement gives the impression that the con dentiality rule even
extends to promulgated written opinions by the Members of this Court containing its
internal deliberations. This is unmitigated overexpansion of the rule of judicial privilege
that does not appear to be aimed at protecting judicial independence and even veers
dangerously close to censorship and curtailment of the constitutional duty of the
minority. What is more absurd is that these Opinions are already within the realm of
public knowledge having been promulgated and even posted in the Court's website.
Any attempt by the majority to censure or regulate the use of these promulgated
Opinions by the Impeachment Court amounts to unchartered extension of the
judiciary's limited con dentiality rule. Whatever is contained in these Opinions are
decidedly public records, which the House Prosecution Panel can rely on to support its
cause. Nevertheless, the prerogative lies with the Impeachment Court on how to
appreciate their contents. For the Court to clip this right vested on the Impeachment
Court by reserving for itself the power to identify which parts of a promulgated Opinion
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 the Senator-Judges can consider and which to turn a blind eye to is already tantamount
to undue interference with the Senate's sole duty to try and decide impeachment cases,
and contravenes the doctrine of separation of powers. cCESaH

Furthermore, the censorship sought to be imposed on Justices in the writing of

their respective opinions nds no place in the present Resolution, which primarily
addresses the request by subpoena and by letter, for access to court documents and
information. The Court's response to the subpoena duces tecum issued by the Senate
Impeachment Court should not be used as an excuse to obstruct or regulate the
constitutional duty of the Justices to explain their vote nor for the majority to hold the
dissenters liable for expressing strong views on the deliberative processes the Court
has undertaken in specific cases.
What the majority fails to appreciate is that while the con dentiality rule nds its
bases in statutes and in the internal rules of this court, the duty to explain one's vote is a
constitutional conferment. It is therefore supreme irony for the majority, to state on the
one hand that "the rules on con dentiality will enable the Members of the Court to
'freely discuss the issues without fear of criticism for holding unpopular positions' or
fear of humiliation for one's comments,'" and on the other hand, to promote exactly
such evils with the proposed prior censorship or threats of liability for opinions
rendered by the dissenters.
A nal note . The internal workings of this Court require us, to some extent, to
shield and protect it from the glare of political pressures. However, when the process
of impeachment as a lamp of transparency and accountability is lit, this Court must
demonstrate that it is not just quenching the light when it invokes judicial
independence. It must show that it is ready to balance the demand of the people for
accountability with the need to preserve the e cient operations of the Supreme Court.
It must carefully observe the legitimate bounds for judicial privilege to apply.
WHEREFORE , I vote to PARTIALLY GRANT the Letter Requests of the House
Impeachment Prosecution Panel and to DIRECT the responsible court personnel to
partially comply with the Subpoena Duces Tecum issued by the Impeachment Court,
more specifically:
A. Letters dated 19 and 25 January 2012 of Cong. Joseph Emilio A.
Abaya of the House Prosecution Panel:
1. On the FASAP v. PAL 58 rollo
a. Information Sheet Confidential and privileged
b. List of Legal Fees Confidential and privileged
c. Pleadings with annexes Public record
d. Decisions, Orders and Resolutions which have Public record
been released to the parties
e. Internal Resolutions Confidential and privileged
2. On the rollo of Navarro v. Ermita 59 Public record as case has been closed and
terminated.
3. On the rollo of Ma. Merciditas N. Gutierrez. House Public record as case has been closed and
of Representatives 60 terminated.
4. On the rollo of League of Cities v. COMELEC 61 Public record — considered closed and
terminated.

B. Subpoena ad testi candum et duces tecum dated 09 February 2012 of

the Senate Impeachment Court
1. Rollo of the FASAP case (G.R. No. 178083)
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 a. Records/Logbook of the Raffle Committee Privileged and confidential (but results
showing the assignment of the FASAP case of the raffle are available to the parties
and their counsel)
b. Four letters of Atty. Estelito Mendoza dated 13 Public record
September 2011, 16 September 2011, 20
September2011, 22 September 2011.

C. Subpoena duces tecum dated 09 February 2012 of the Senate

Impeachment Court in Arroyo v. De Lima, G.R. Nos. 199034 and 199046.
1. Supreme Court received (with time and date stamp) Public record
Petition for Special Civil Actions for Certiorari and
Prohibition with Prayer for the Issuance of a
Temporary Restraining Order (TRO) and/or Writ of
Preliminary Injunction filed by Gloria Macapagal
Arroyo (G.R. No. 199034) [GMA TRO Petition],
including the Annexes thereto.
2. Supreme Court received (with time and date stamp) Public record
Petition for Special Civil Actions for Certiorari and
Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of
Preliminary Injunction docketed as (G.R. No. 199046)
[Mike Arroyo TRO Petition], including the Annexes
thereto
3. Official Leave of Respondent Corona's travel order or Public record
leave applied for days within the month of November
2011
4. Minutes of the Supreme Court Raffle Committee which Confidential and privileged
handled the GMA and Mike Arroyo TRO Petition
5. Appointment or Assignment of the Member-in-Charge Confidential and privileged, but
of the GMA and Mike Arroyo TRO Petition available to parties and their
counsel
6. Resolution dated 15 November 2011 on the GMA and Public record
Mike Arroyo TRO Petition as published
7. Logbook or receiving copy showing the time the TRO Public record
was issued to the counsel for GMA and Mike Arroyo as
well as the date and time the TRO was received by the
sheriff for service to the parties
8. Temporary restraining Order dated 15 November 2011 Public record
issued in the GMA and Mike Arroyo TRO Petition
9. Special Power of Attorney dated 15 November 2011 Public record
submitted by GMA and Mike Arroyo in favor of Atty.
Ferdinand Topacio appointing him "to produce
summons or receive documentary evidence" with the
official date and time stamp of the Supreme Court
10. Official Receipt No. 00300227-SC-EP dated 15 Public record
November 2011 issued by the Supreme Court for the
Two Million Pesos Cash Bond of GMA and Mike
Arroyo with the official date and time stamp
11. November 15 and 16, 2011 Sheriff's Return of service Public record
of the GMA and Mike Arroyo TRO dated 15 November
2011 upon the Department of Justice and the Office of
the Solicitor General
12. Certification from the Fiscal Management and Budget Public record
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 Office of the Supreme Court dated November 15, 2011
with the date and time it was received by the Supreme
Court Clerk of Court showing it to be November 16,
2011 at 8:55 am
13. Resolution dated 18 November 2011 issued on the Public record
GMA and Mike Arroyo TRO Petition, as published
14. Resolution dated 22 November 2011 on the GMA and Public record
Mike Arroyo TRO Petition
15. Logbook showing the date and time of Justice Public record
Sereno's dissent to the 22 November 2011 Resolution
was received by the Clerk of Court En Banc
16. Dissenting Opinions of Justice Sereno in G.R. Nos. Public record
199034 and 199046 as published on 15 November
2011, 18 November 2011 and 13 December 2011
17. Dissenting Opinions of Justice Carpio dated 15 Public record
November 2011 and 13 December 2011 in G.R. Nos.
199034 and 199046 as published
18. Separate Opinion of Justice Velasco dated 13 Public record
December 2011 in G.R. Nos. 199034 and 199046
19. Concurring Opinion of Justice Abad dated 13 Public record
December 2011 in G.R. Nos. 199034 and 199046
20. Official Appointment of Respondent Corona as Public record
Associate Justice of the Supreme Court
21. Official Appointment of Respondent Corona as Chief Public record
Justice
22. Separate Opinion of Justice Abad dated 13 December Public record
2011

I vote that the Clerk of Court, or any other duly authorized representative, be
DIRECTED to provide the certi ed true copies of the court documents to the House
Impeachment Panel and the Senate Impeachment Court, as permitted, during regular
office hours and to appear before the Senate Impeachment Court on administrative and
non-adjudicatory matters that do not fall under the rule on quali ed judicial privilege.
The requesting parties shall PAY the costs of the reproduction of these documents. aTAEHc

Footnotes
1.G.R. No. 178083, July 22, 2008, 559 SCRA 252. In its Decision, the Court declared illegal the
retrenchment of more than 1,000 ight attendants and cabin crew personnel of the ag
carrier. The ruling was reiterated in the Resolutions dated October 2, 2009 and
September 7, 2011.
However, on October 4, 2011, the Court recalled the September 7, 2011 Resolution when
questions were raised as to the authority of the Second Division to issue the September
7, 2011 Resolution.
2.G.R. No. 180050, February 10, 2010, 612 SCRA 131. In its Decision (a rmed in a Resolution
dated May 12, 2010), the Court held that Republic Act No. (RA) 9355, the law creating
Dinagat Province, was unconstitutional for failing to comply with the territorial and
population requirements under Section 261 of the Local Government Code (LGC). The
Court stressed that Dinagat Islands had a population of 120,813 which was below the
LGC minimum population requirement of 250,000 inhabitants. Neither did Dinagat
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 Islands, with an approximate land area of 802.12 square kilometers as stated in RA
9355, meet the LGC minimum land area requirement of 2,000 square kilometers.
However, in its Resolution dated April 12, 2011, the Court reversed its earlier ruling and
upheld RA 9355. The Court ruled that consistent with the declared policy to provide local
government units genuine and meaningful local autonomy, contiguity, and minimum
land area requirements for prospective local government units, R.A. No. 9355 should be
liberally construed in order to achieve the desired results. The strict interpretation
adopted by the February 10, 2010 decision could be counter-productive, if not outright
absurd, awkward, and impractical, it added.
3.G.R. No. 193459, February 15, 2011. In a petition for certiorari and prohibition, then
Ombudsman Gutierrez challenged the constitutionality of the September 1 and 7, 2010
Resolutions of The House of Representatives Committee on Justice nding the two
successively led impeachment complaints against her su cient in form and
substance. In its Decision (a rmed in a Resolution dated March 8, 2011), the Court
dismissed the petition and held that the September 1 and 7, 2010 Resolutions were not
unconstitutional. In this case, the Court held that the term "initiate" refers to the ling of
the impeachment complaint coupled with Congress' taking initial action of said
complaint, thus the simultaneous referral of the two complaints did not violate the one
year-bar rule in the Constitution. The Court also found that there was no violation of the
petitioner's right to due process since it is in no position to dictate a mode of
promulgation beyond the dictates of the Constitution — which did not explicitly require
that the Impeachment Rules be published.

4.G.R. No. 176951, November 18, 2008, 571 SCRA 263. The Court, by a 6-5 vote, granted the
petitions and struck down the Cityhood Laws (creating 16 new cities) as
unconstitutional for violating Sections 10 and 6, Article X, and the equal protection
clause. On March 31, 2009, the Court, by a 7-5 vote, denied the rst motion for
reconsideration.

On April 28, 2009, the Court, by a 6-6 vote, denied a second motion for reconsideration
for being a prohibited pleading. However, the Court, in its June 2, 2009 Resolution,
clari ed that since it voted on the second motion for reconsideration and that it allowed
the ling of the same, the second motion for reconsideration was no longer a prohibited
pleading. It noted that it was for lack of the required number of votes to overturn the
November 18, 2009 Decision and the March 31, 2009 Resolution that it denied the
second motion for reconsideration in its April 28, 2009 Resolution.

On December 21, 2009, acting anew on the second motion for reconsideration, the Court,
by a vote of 6-4, declared the Cityhood Laws as constitutional.
On August 24, 2010, the Court, this time by a vote of 7-6, reinstated the November 18,
2008 Decision. In a Resolution dated February 15, 2011, the Court, by a vote of 7-6,
granted the motion for reconsideration of its August 24, 2010 Resolution, reversed and
set aside its August 24, 2010 Resolution, and declared constitutional the Cityhood Laws.
The latest and nal Resolution, dated April 12, 2011, a rmed the ruling in the February
15, 2011 Resolution.
5.See Angara v. Electoral Commission, 63 Phil. 139, 156-157 (1936).

6.Neri v. Senate Committee on Accountability of Public O cers and Investigations, G.R. No.
180643, March 25, 2008, 549 SCRA 77.
7.CONSTITUTION, Article VIII, Section 1.
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 8.Section 5 (5) of the Constitution directly grants the Court the power to promulgate rules
concerning proceedings in court. These rules have the same force and effect as
legislated laws.
9.John Louis Kellogg. What's Good for the Goose . . . Differential Treatment of the Deliberative
Process and Self-Critical Analysis Privileges, 52 Journal of Urban and Contemporary
Law 255 (1997), citing US v. Bryan, 339 US 323, 331 (1950).
10.IRSC, Rule 7 — Raffle of Cases, Section 3. Raffle Committee Secretariat. — The Clerk of Court
shall serve as the Secretary of the Ra e Committee. He or she shall be assisted by a
court attorney, duly designated by the Chief Justice from either the O ce of the Chief
Justice or the O ce of the Clerk of Court, who shall be responsible for (a) recording the
ra e proceedings and (b) submitting the minutes thereon to the Chief Justice. The
Clerk of Court shall make the result of the ra e available to the parties and
their counsels or to their duly authorized representatives, except the ra e of
(a) bar matters; (b) administrative cases; and (c) criminal cases where the
penalty imposed by the lower court is life imprisonment, and which shall be
treated with strict confidentiality. [emphases ours]
11.See also IRSC, Rule 9, Sections 2 and 4 which declare:

RULE 9
FOLDER OF PLEADINGS, COMMUNICATIONS,
DOCUMENTS AND OTHER PAPERS IN A CASE
Section 2. Repository of rollos. — All rollos of cases submitted for decision shall be kept
in the Rollo Room in the O ce of the Chief Justice, except when taken out for delivery to
any of the following: (1) the Judicial Records O ce for attachment of a pleading,
communication, document or other papers led; (2) the O ce of the Clerk of Court or the
O ce of the Division Clerk of Court, for the preparation of the Agenda and of the
Minutes of a Court session, as well for the attachment of the decisions or resolutions to
the rollo; (3) the O ce of the Member-in-Charge or the O ce of the ponente or writer of
the decision or resolution; (4) any O ce or o cial charged with the study of the case.
All personnel charged with the safekeeping and distribution of rollos shall be
bound by strict con dentiality on the identity of the Member-in-Charge or the
ponente, as well as on the integrity of the rollos, under pain of administrative sanction
and criminal prosecution for any breach thereof.

Section 4. Con dentiality of identity of Member-in-Charge or ponente and of Court

actions. — Personnel assigned to the Rollo Room and all other Court personnel
handling documents relating to the ra ing of cases are bound by strict
con dentiality on the identity of the Member-in-Charge or ponente and on the
actions taken on the case .

Rollo Room personnel may release a rollo only upon an o cial written request from the
Chief Judicial Staff Head or the Chief of O ce of the requesting O ce. The rollo room
personnel may release a rollo only to an authorized personnel named in the o cial
written request. All personnel handling the rollos are bound by the same strict
confidentiality rules. [emphases ours]
12.IRSC, Rule 11, Section 5, which states:
RULE 11
AGENDA AND MINUTES OF COURT SESSIONS

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 Section 5. Con dentiality of minutes prior to release. — The O ces of the Clerk of
Court and of the Division Clerks of Court are bound by strict con dentiality
on the action or actions taken by the Court prior to the approval of the draft
of the minutes of the court session release of the resolutions embodying the
Court action or actions.

A resolution is considered o cially released once the envelope containing a nal copy
of it addressed to the parties has been transmitted to the process server for personal
service or to the mailing section of the Judicial Records O ce. Only after its o cial
release may a resolution be made available to the public. [emphases ours]
13.G.R. Nos. 199034 & 199046, December 13, 2011.
14.Id.; see J. Abad Concurring Opinion.
15.John Louis Kellogg, supra note 9, citing Kaiser Aluminum & Chemical Corporation v. US, 157
F. Supp. at 943.
16.Gerald Watlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege. 65
Indiana Law Journal 845, 850.

17.433 Phil. 506 (2002).

18.Id. at 534.
19.S u pra note 6, at 399. This is a case in point as it involved the con dentiality of
communications between a former President and one of her Cabinet members.

20.Gerald Watlaufer, supra note 16, at 851, which states:

Generally, the privilege extends to written and oral communications comprised of
opinions, recommendations or advice offered in the court of the executive's decision-
making processes.
21.Access to Justice for the Poor Project — Information Education, Communication Guidelines
for Municipal Court Information Officers, A.M. No. 05-2-01-SC, March 13, 2007.
22.Electronic Frontier Foundation v. US Department of Justice, 2011 WL 596637.

23.Ibid.
24.See NLRB v. Sears, Roebuck & Co., 421 US 151.
25.Electronic Frontier Foundation v. US Department of Justice, supra note 22.
26.Ibid.
27.Kevin C. Milne. The Doctrine of Judicial Privilege: The Historical and Constitutional Basis
Supporting a Privilege for the Federal Judiciary, 44 WASH & LEE L. REV. 213 (1987).
28.This provision of law states:
ART. 229. Revelation of secrets by an o cer. — Any public o cer who shall reveal any
secret known to him by reason of his o cial capacity, or shall wrongfully deliver papers
or copies of papers of which he may have charge and which should not be published,
shall suffer penalties of prision correccional in its medium and maximum periods,
perpetual special disquali cation and a ne not exceeding 2,000 pesos if the revelation
of such secrets or the delivery of such papers shall have caused serious damage to the
public interest; otherwise, the penalties of prision correccional in its minimum period,
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 temporary special disquali cation and a ne not exceeding P500 pesos shall be
imposed.
29.This provision of law states:
SEC. 3. Corrupt practices of public o cers. — In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(k) Divulging valuable information of a con dential character, acquired by his o ce or
by him on account of his o cial position to authorized persons, or releasing such
information in advance of its authorized release date.
30.This provision states:
SEC. 7. Prohibited Acts and Transactions. — In addition to acts and omissions of public
o cials and employees now prescribed in the Constitution and existing laws, the
following shall constitute prohibited acts and transactions of any public o cial
and employee and are hereby declared to be unlawful:
xxx xxx xxx
(c) Disclosure and/or misuse of con dential information. — Public o cials and
employees shall not use or divulge, con dential or classi ed information o cially
known to them by reason of their office and not made available to the public, either:
(1) To further their private interests, or give undue advantage to anyone; or
(2) To prejudice the public interest. [emphasis ours]
31.522 Phil. 1, 49 (2006).

32.Black's Law Dictionary (5th ed.), p. 1107.

33.Oscar M. Herrera. Remedial Law (19th ed.), p. 740.
34.Vicente J. Francisco. Evidence, Volume II (1997 ed.), p. 620.
35.Ibid.
36.Id.
37.Tecson v. Commission on Elections, G.R. Nos. 161434, 161634, and 161824, March 3, 2004,
424 SCRA 277, 336.
38.G.R. No. 178083.
39.G.R. No. 180050.
40.G.R. No. 193459.
41.G.R. Nos. 176951, 177499 and 178056.

CARPIO, J., concurring:

1.Chavez v. Public Estates Authority , 433 Phil. 506, 534 (2002).
2.New Code of Judicial Conduct for the Philippine Judiciary.

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 3.Section 4, Article III, 1987 Constitution.
4.Id.
5.Section 7, Article III, 1987 Constitution.
6.Section 28, Article II, 1987 Constitution.
7.In Item 15 of Annex "A" to the Resolution of 14 February 2012, the majority considers the date
and time of receipt by the Clerk of Court of Justice Maria Lourdes P. A. Sereno's
Dissenting Opinion as confidential information.
8.Section 7, Article III, 1987 Constitution.

9.Records of the Constitutional Commission, Vol. I, p. 501 (14 July 1986).

SERENO, J., concurring and dissenting:
1.G.R. No. 199034 (Gloria Macapagal-Arroyo v. Hon. Leila M. De Lima, in her capacity as
Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as
Commissioner of the Bureau of Immigration) and G.R. No. 199046 (Jose·Miguel T.
Arroyo vs. Hon. Leila M. De Lima, in her capacity as Secretary, Department of Justice,
Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and
Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of Immigration).
2.783 F.2d 1488 (20 February 1986).

3.Kevin C. Milne, THE DOCTRINE OF JUDICIAL PRIVILEGE: THE HISTORICAL AND

CONSTITUTIONAL BASIS SUPPORTING A PRIVILEGE FOR THE FEDERAL JUDICIARY, 44
Wash & Lee L. Rev. 213 (1987).

4."The accounts of delegates who participated in the Constitutional Convention of 1787 reveal
that the doctrine of judicial privilege nd legitimacy in the delegates' struggle to de ne
the judiciary's role within the new system of government. The delegates recognized the
need for a balanced government that could unite the burgeoning nation economically
and politically. The Framers had learned, however, that a balanced government could not
exist with a weak judiciary that could not act freely and without an apprehension of the
political consequences of its act." (Milne, id., pp. 214-215)

5.Milne cited Trevett v. Weeden , (R. Pound, The Spirit of the Common Law 61-62 [1921]) where
the Rhode Island General Assembly summoned judges to appear before the Assembly to
explain the judges' basis for holding that the statute abrogating the right to jury trial was
in violation of the State Constitution. (Milne, id., pp. 216-217)
6.I n The Statement of the Judges, 14 F.R.D. 335 [N.D. Cal. 1953]) a House subcommittee
investigating the Department of Justice subpoenaed Judge Louis E. Goodman to testify
regarding judicial proceedings that transpired in the Northern District of California.
Judge Goodman delivered a letter written by him and six other judges that defended his
refusal to testify before the subcommittee asserting that it would contravene the
doctrine of separation of powers and would amount to an unlawful interference by the
legislature in the function of the judiciary. (Milne, id., pp. 220-221)
7.Id.
8.Supra note 2.
9.408 U.S. 606 (1972).
10.418 U.S. 683 (1974).
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 11.Id. at 224-229.
12.Id. at 234-235.

13."Public o ce is a public trust. Public o cers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
e ciency, act with patriotism and justice, and lead modest lives." (CONSTITUTION, Art.
XI, Sec. 1)
14.Signi cantly, the constitutional provisions dealing with impeachment process are found in
the article dealing with the accountability of public o cers. (CONSTITUTION, Art. XI,
Secs. 2 and 3)
15.CONSTITUTION, Art. XI, Sec. 2.
16.The disquali cation of testimonial evidence based on privileged communications include
the following: marital communications privilege, attorney-client, doctor-patient and
priest-penitent. (Rules of Court, Rule 130, Sec. 24)

17."The most in uential rationale for the law of privilege is the utilitarian justi cation
advocated by Dean John H. Wigmore. He believed that a given communication should
be privileged only if the bene t derived from the protection outweighed the detrimental
effect of the privilege on the search for truth." (Robert S. Catz and Jill J. Lange, Judicial
Privilege, 22 Ga. L. Rev. 89, 96 [1987], citing Wigmore, EVIDENCE IN TRIALS AT
COMMON LAW, §2290, at 72 [J. McNaughton rev. ed. 1961])
18.US Attorney-General William Rogers, Constitutional Law: The Papers of the Executive
Branch, 44 A.B.A. J.941 (1958), http://heinonline.org/HOL/LandingPage?
collection=journals&handle=hein.journals/abaj44&div=245&id=&page= (Last accessed
on 15 February 2012).

19.G.R. No. 180643, 25 March 2008, 549 SCRA 77.

20."That executive privilege cannot be invoked to conceal a crime is well-settled. All Justices of
this Court agree on that basic postulate. The privilege covers only the o cial acts of the
President. It is not within the sworn duty of the President to hide or conceal a crime.
Hence, the privilege is unavailing to cover up an offense." (Separate Opinion of Justice
Ruben T. Reyes, Neri v. Senate Committee on Accountability of Public O cers and
Investigations, G.R. No. 180643, 04 September 2008, 564 SCRA 152, 308).
21."Respondent Committees argue that a claim of executive privilege does not guard against a
possible disclosure of a crime or wrongdoing. We see no dispute on this." ( Neri v. Senate
Committee on Accountability of Public O cers and Investigations, G.R. No. 180643, 25
March 2008, 549 SCRA 77, 123).
22.Id., pp. 278-279.
23.CONSTITUTION, Art. XI, Sec. 3 [6].
24.TJ Burgonio, Senate: No Subpoena for 4 Supreme Court Justices, 09 February 2012,
http://newsinfo.inquirer.net/142241/senate-no-subpoena-for-4-supreme-court-justices
(Last accessed 15 February 2012).
25."The principle of comity or inter-departmental courtesy demands that the highest o cials of
each department be exempt from compulsory processes of the other departments." ( Per
Curiam Resolution dated February 2012, p. 24)
26.CONSTITUTION, Art. III, Sec. 7.
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 27.SC Administrative Circular No. 2-02 effective 25 January 2002.
28.Per Curiam Resolution dated 14 February 2012, p. 11, footnote 9.
29."The O ces of the Clerk of Court and of the Division Clerks of Court are bound by strict
con dentiality on the action or actions taken by the Court prior to the approval of the
draft of the minutes of the court session release of the resolutions embodying the Court
action or actions."
"A resolution is considered o cially released once the envelope containing a nal copy
of it addressed to the parties has been transmitted to the process server for personal
service or to the mailing section of the Judicial Records O ce. Only after its o cial
release may a resolution be made available to the public." (Internal Rules of the Supreme
Court [IRSC], Rule 11, Sec. 5)
30."The Clerk of Court and the Division Clerks of Court shall ensure that all pleadings,
communications, documents, and other papers duly led in a case shall be reported in
the Agenda for consideration by the Court en banc or the Division. The Agenda items for
each case shall adequately apprise the Court of relevant matters for its consideration."
(IRSC, Rule 11, Sec. 1)
31."All original pleadings and other documents led under the same docket number shall be
encased in a folder or rollo with a Court en banc-approved, color-coded cartolina cover
indicating the G.R. or UDK number, the title of the case, the date of ling, the date of
submission for decision, and the nature of the case. The pages of the pleadings and
other documents shall be consecutively numbered and attached to the rollo preferably
by stitching or any method that ensures the integrity of the contents of the rollo." (IRSC,
Rule 6, Sec. 9)
32.G.R. No. L-29560, 31 March 1976, 162 Phil. 299.
33.G.R. No. 163155, July 21, 2006, 496 SCRA 282.
34.A.M. No. 02-8-13-SC (2004), as amended.
35.RULES OF COURT, Rule 132, Sec. 19.
36."Every initiatory pleading already identi ed by a G.R. or a UDK number shall be ra ed
among the Members of the Court. The Member-in-Charge to whom a case is ra ed,
whether such case is to be taken up by the Court en banc or by a Division, shall oversee
its progress and disposition unless for valid reason, such as inhibition, the case has to
be re-raffled, unloaded or assigned to another Member." (IRSC, Rule 7, Sec. 1)
37."The Clerk of Court shall make the result of the ra e available to the parties and their
counsels or to their duly authorized representatives, except the ra e of (a) bar matters;
(b) administrative cases; and (c) criminal cases where the penalty imposed by the lower
court is life imprisonment, and which shall be treated with strict con dentiality." (IRSC,
Rule 7, Sec. 3)
38."Divulging valuable information of a con dential character, acquired by his o ce or by him
on account of his o cial position to unauthorized persons , or releasing such
information in advance of its authorized release date." (Republic Act No. 3019, Sec. 3 [k])
39.Per Curiam Resolution dated 14 February 2012, pp. 18-19, footnote 29.

40."Any person who acts in obedience to an order issued by a superior for some lawful
purpose." (REVISED PENAL CODE, Art. 11 [6]).

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 41."These privileges, incidentally, belong to the Judiciary and are for the Supreme Court (as the
representative and entity speaking for the Judiciary), and not for the individual justice,
judge, or court o cial or employees to waive. Thus, every proposed waiver must be
referred to the Supreme Court for its consideration and approval." (Per Curiam Resolution
dated 07 February 2012, p. 20)

42.In the Compliance dated 27 January 2012, the House Prosecution Panel submitted to the
Impeachment Court a list of its intended witnesses, which included incumbent and
retired justices of the Supreme Court and Court of Appeals.

43."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." (CONSTITUTION, Art. VI, Sec. 22; Neri v. Senate Committee on Accountability of
Public Officers and Investigations, supra.)
44."As a last point and mainly for purposes of stress, the privileges discussed above that apply
to justices and judges apply mutatis mutandis to court o cials and employees with
respect to their official functions." (Per Curiam Resolution dated 14 February 2012, p. 23)
45.Jose M. Aruego, I FRAMING OF THE PHILIPPINE CONSTITUTION 509 (1949).
46.Id. at 510.
47.Id.

48.Records of the Constitutional Commission No. 29, 14 July 1986.

49.Aruego supra note 45 at 511.
50.Lani Guinier, Foreword: Demosprudence through Dissent, 122 Harv. L. Rev. 4, 14 (2008)
51.M. Todd Anderson, From Seriatim to Consensus and Back Again: A Theory of Dissent, 2007
Sup. Ct. Rev. 283 (2007)

52.G.R. No. L-57804, 23 January 1984, 212 Phil. 16.

53.The concluding paragraphs of J. Gutierrez's opinion reads as follows:
"I do not know if there was an intent in the recital of the voting of the Justices in Justice
Melencio-Herrera's opinion to suggest a liberalization of the rule that all our deliberations
must be in strict con dence. In the Court of Appeals, we normally asked the Division
Clerk of Court to sit with us and a stenographer to take notes whenever we were
discussing a case. The ra e of cases is public and the assignments of cases to
Divisions and Justices is not confidential.
The more complex nature of our cases, the fact that the passing of the buck stops with
this Court, and the resolution of the majority of cases through minute resolutions
warrants a greater amount of con dentiality in our deliberations. However, I have an
open mind on the matter. If the Supreme Court considers opening our deliberations to
the general public or at least decides to have a stenographer taking verbatim notes of
every matter discussed during our sessions, I will have no objections. In that way,
litigants and the general public would have a way of knowing when the need
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 arises on how we arrive at our decisions especially where petitions are denied
on minute resolutions. Unfounded and unfortunate speculations about the
decision making process would disappear and the interests of justice would
thereby be served ." (Emphasis supplied.)
54.G.R. No. 83341, 30 January 1990, 260 Phil. 702.
55.G.R. Nos. 199034 & 199046, 13 December 2011.
56.In Re: Benigno Aquino, Jr., et al., v. Enrile, G.R. No. L-35546, 17 September 1974, 59 SCRA
183; Chavez v. Gonzalez, G.R. No. 168338, 15 February 2008, 545 SCRA 441.

57.Per Curiam Resolution dated 14 February 2012, Annex "A", Nos. 16-19.
58.G.R. No. 178083.
59.G.R. No. 180050.
60.G.R. No. 193459.
61.G.R. Nos. 176951, 177499 and 178056.

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