A question of judicial privilege
Last week, the Senate impeachment court denied the prosecution’s request to subpoena four justices of the Supreme Court to testify and produce documents in the impeachment case against Chief Justice Renato Corona.
The prosecution sought to call these justices to question them individually on how the high court, as a collegial body, came about the decision on the PAL-FASAP case involved in Article 3 of the impeachment complaint.
Courtroom privilege
Two legal doctrines come to mind relevant to the issue tackled by the Senate impeachment court.
The first is courtroom privilege, which protects any statement made in the course of a judicial proceeding by any judge, juror, party, witness or advocate, in relation to a given case. This privilege is also generally referred to as judicial privilege. This means that parties in a case cannot be held liable for things mentioned or stated in the case, whether oral or written, so long as it is relevant, pertinent or material to the legal issue at hand.
Although primarily meant to protect lawyers from defamatory suits, judicial privilege covers justices and judges on what they say or write in the course of the legal proceedings, regardless of defamatory tenor or presence of malice.
This doctrine seeks to further develop the legal system by allowing the free discourse of thoughts and ideas. In layman’s terms, the legal principle means that a justice or judge cannot be held liable for what he says or writes in relation to a pending case.
Deliberative process privilege
The second is deliberative process privilege, which holds as confidential what a government decision maker thinks while a case is pending. It also protects from disclosure documents reflecting communications, advisory opinions, recommendations and deliberations that are part of a process by which government decisions and policies are formulated. The privilege is meant to enhance the quality of decisions, by protecting from inquiry open and frank discussion among those who make them within the government.
In Philippine jurisprudence, the deliberative process privilege has been recognized to be applicable, with qualifications, to the executive branch of government, as seen in the cases of Akbayan v. Aquino (G.R. No. 170516, July 16, 2008) and Neri v. Senate Committee (G.R. No. 180643, March 25, 2007).
Separation of powers
There is no known Supreme Court decision applying the deliberative process privilege to the judiciary, but perhaps the Senate impeachment court already did so by striking down the subpoena against SC justices.
In denying the request for subpoena, the Senate cited Section 2, Rule 10 of the Internal Rules of the Supreme Court, which proclaims that the sessions of the court are executive in character with only the members of the court in attendance. The same rule also expressly provides that the deliberations during the court’s sessions are confidential.
According to the Senate, “to issue subpoena in order to require the members of the Supreme Court to testify on their deliberations which are confidential according to its rule is to make this court omniscient over a co-equal department which will run afoul of the tripartite system of government and will dilute the well-entrenched constitutional principle of separation of powers.”
Moving forward
We note that the Senate relied solely on the principle of separation of powers to justify its decision. This is perhaps because there is no rule of evidence specifically governing the matter.
The absence of a specific rule may likely present problems in the future. For example, the Revised Penal Code makes judges criminally liable for rendering unjust judgments, or for issuing unjust interlocutory orders. Civil and administrative cases may also be filed against judges. Can the judges invoke the deliberative process privilege to protect them from being questioned in a court of law before which the cases will be filed? Certainly, the Senate decision on the matter, which is based on the principle of separation of powers, cannot be cited as a precedent in a court of law. At the very least, this will be a contentious matter in the absence of a specific rule giving them the privilege. Indeed, it would send a chilling effect should a judge or justice be allowed to be questioned on his mental process that led to his decision.
How can a judge or justice of a court of law come up with an independent decision if he knows beforehand that he would be later probed on the matter?
The Supreme Court is presently discussing the revision of the rules on evidence. Perhaps, it’s an opportune time to include a rule on deliberative process privilege.
(The author is the co-managing partner of the Accra Law Offices and is a law professor at the Ateneo Law School. He may be contacted at: [email protected])
