Washing the Supreme Court’s dirty linen in public?

Last week, the prosecution started to present evidence on Article VII of the impeachment complaint. The article alleges that “Chief Justice Corona betrayed the public trust through his partiality in granting a   temporary restraining order (TRO) in favor of former President Gloria Macapagal-Arroyo and her husband, Jose Miguel Arroyo, in order to give them an opportunity to escape prosecution and frustrate the ends of justice, and in distorting the Supreme Court decision on the effectivity of the TRO in view of a clear failure to comply with the conditions of the Supreme Court’s own TRO.”

The main evidence of the prosecution was the dissenting opinion of Supreme Court Justice Maria Lourdes Sereno, which mentions alleged irregularities in the issuance of the TRO that would show the partiality of Justice Corona toward the Arroyo spouses.

Justice Secretary Leila de Lima testified on the dissenting opinion, but because of her admission that she did not have personal knowledge of those facts, Senate President Juan Ponce Enrile ruled that De Lima’s testimony was hearsay insofar as they were offered to prove the truth of the statements contained in the dissenting opinion.

The ruling led the prosecution panel, through Rep. Neri Colmenares, to request (or at least attempt to request) from the Senate impeachment court a subpoena to compel the attendance of Justice Sereno to testify as a prosecution witness.

Expectedly, the impeachment court rejected Representative Colmenares’ request (after giving him a mouthful, so to speak) basically to avoid a collision course with a co-equal branch of government.

Last Tuesday, the prosecution panel manifested that it was dropping five out of the eight charges against the Chief Justice and it would be resting its case this week. This, of course, will not prevent them from presenting rebuttal evidence, which may include the testimony of Justice Sereno.

An interesting question will arise if Justice Sereno will voluntarily appear as a prosecution witness. Can the defense panel object to her testimony on the deliberations of the Supreme Court for lack of approval from the Supreme Court? Better still, can the Supreme Court manifest its objection to any testimony of Justice Sereno on what actually transpired before the issuance of the TRO on the ground of deliberative process privilege?

In my February 9 column, I said that while there were Supreme Court decisions applying the privilege, with qualifications, to the executive branch, there were no known decisions applying it to the deliberations of a court of law.

Subsequently, the Supreme Court passed upon the issue in a February 14 resolution addressing the subpoena ad testificandum et duces tecum issued by the Senate in connection with the current impeachment proceedings against the Chief Justice.

For the first time, the Supreme Court applied the concept of deliberative process privilege in a judicial setting, which is the privilege against the disclosure of information or communication involving the process of reaching a court decision. As opined by the court, access to information regarding the process by which the court has reached a decision in any case is barred by the deliberative process privilege.

According to the Supreme Court, the deliberative process privilege may be invoked only by those who are privy to the deliberations, and only when two elements are met: the document is predecisional, and deliberative.  In the same vein, court records which are both predecisional and deliberative cannot be the subject of any inspection and cannot be disclosed even if the same records are subject of a subpoena.

More notably, the Supreme Court stated: “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.”

In short, the real holder of the judicial deliberation privilege is the Supreme Court. This is pursuant to Sec. 2, Rule 10, of the Internal Rules of the Supreme Court, which declares that court sessions are executive in nature and that deliberations are confidential, and may not be disclosed to outside parties except as provided in the rules or as authorized by the court.

The wisdom of the rule is readily apparent from the case at hand. For example, there are Supreme Court justices who disagree with the version of Justice Sereno on what actually happened before the TRO was issued.   Worse, Justice Roberto Abad accused Justice Sereno of breaching the foregoing rule on confidentiality when she narrated in her dissenting opinion her recollection of the en banc’s deliberation in executive session on the effect of the petitioners’ failure to comply with the second condition of the TRO issued by the Supreme Court. In short, what will stop these justices from rebutting the testimony of Justice Sereno in the impeachment court? Will the Supreme Court allow Justice Sereno to testify and set the stage for other justices to rebut her testimony in the impeachment court? If so, will the Supreme Court not effectively allow these justices to wash the Court’s dirty linen in public, so to speak?

Your guess may be better than mine.

(The author is the co-managing partner of Accralaw and teaches Evidence in the Ateneo Law School. He may be contacted at [email protected].)