In Re Production of Court Records and Documents and The Attendance of Court Officials and Employees As Witnesses Under The Subpoenas

February 2012 - Philippine Supreme Court Resolutions
Supreme Court Resolutions
Philippine Supreme Court Jurisprudence > Year 2012 > February 2012 Resolutions > [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. :
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.
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 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.
RESOLUTION
PER CURIAM:
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, 1 st 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 of 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 certified 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.
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.
Private Prosecutors, be permitted to examine, among others, the rollo of 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 testificandum et duces tecum dated February 9, 2012 in the case
of FASAP v. PAL:
1. Records/Logbook of the Raffle 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;
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 testificandum 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 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) 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 Raffle 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. Official 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;
11. November 15 and 16, 2011 Sheriffs 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. Certification from the Fiscal Management and Budget 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 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;
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. Official 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 offices. The list of proposed witnesses
included Justices of the Supreme Court, and Court officials 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 certified 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 specifically 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 certified 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
testificandum for the production of records of cases, and the attendance of Justices, officials and
employees of the Supreme Court, to testify on these records and on the various cases mentioned above.
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
testificandum 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 and as basic premises
that serve as the bases for the disqualification of Court officials and employees, and the exclusion of
privileged and confidential documents and information.
On February 10, 2012, Atty. Vidal, Clerk of the Supreme Court, brought to our attention the Subpoena
Ad Testificandum et Duces Tecum and Subpoena Ad Testificandum she received, commanding her
to appear at 10:00 in the morning of the 13th of February 2012 with the original and certified 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 confidential 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-defined 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 benefit 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
harmonious working of government.
The Judiciary applies the principle of comity at the first 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.
A case in point is on the matter of impeachment whose trial has been specifically 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 official records, and to documents and papers pertaining to officials 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 confidentiality, 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
certified under the seal of the court of any paper, record, order, judgment, or entry in his office,
proper to be certified, 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 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 official records "create a hierarchy of rights that protect
certain confidential 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 confidential 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.
Specifically, the Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of (1) the result of
the raffle 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.
Rule 7, Section 3 of the IRSC[10] declares that the results of the raffle 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 confidentiality and where the
raffle results are not disclosed even to the parties themselves.[11]
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
confidentiality. Only after the official release of the resolution embodying the Court action may that action
be made available to the public.[12] A resolution is considered officially released once the envelope
containing its final 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. Confidentiality of court sessions. - Court sessions are executive in character, with only the
Members of the Court present. Court deliberations are confidential and shall not be disclosed to
outside parties, except as may be provided herein or as authorized by the Court. [emphasis ours]
Justice Abad discussed the rationale for the rule in his concurring opinion to the Court Resolution
in Arroyo v. De Lima[13] (TRO on Watch List Order case): the rules on confidentiality 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.[14] 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 stifled
if courts forced the government to disclose those recommendations;"[15] the privilege is intended "to
prevent the 'chilling' of deliberative communications."[16]
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[17] (speaking
through J. Carpio) when the Court declared that -
[t]he information x x x 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.[18] (emphases ours)
Justice Brion noted this fact in his Separate Concurring Opinion in Neri v. Senate Committee on
Accountability of Public Officers and Investigations:[19]
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 officials 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.[20] The deliberative process privilege protects from disclosure
documents reflecting 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 officials 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,[21] the Court excluded the same
information and records from the public by classifying them as confidential:
Article 1. Definition of Terms.
2. Confidential 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 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 confidential. [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.[22]
A document is "predecisional" under the deliberative process privilege if it precedes, in temporal

sequence, the decision to which it relates.[23] In other words, communications are considered
predecisional if they were made in the attempt to reach a final conclusion.[24]
A material is "deliberative," on the other hand, if it reflects the give-and-take of the consultative
process.[25] 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.[26] 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 officials and employees from public scrutiny or the pressure of public opinion
that would impair a judge's ability to render impartial decisions.[27] 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 disqualification by reason
of privileged communication and (2) the pendency of an action or matter.
The prohibition against disclosure of confidential 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. Confidential 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. Disqualification by reason of privileged communication. - The
following persons cannot testify as to matters learned in confidence in the following cases:
xxxx
(e) A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure, [emphasis ours]
To ensure the observance of these rules, the improper disclosure of confidential information learned in
official capacity is made criminally punishable under Article 229 of the Revised Penal Code,[28] Section
3 (k) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act,[29] and Sec. 7 of Republic
Act No. 6713, or the Code of Conduct and Ethical Standards for Public Official and Employees.[30] 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 official 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 confidential 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,[31] 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 officials and employees, the same rules on confidentiality that apply to justices and
judges apply to them. They are barred from disclosing (1) the result of the raffle 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
disqualification 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
official or employees to waive. Thus, every proposed waiver must be referred to the Supreme Court for its
consideration and approval.
In fine, there are Philippine laws, rules and jurisprudence prohibiting the revelation of confidential 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 officials involved in
all proceedings are duty-bound to observe the privileged communication and confidentiality 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.
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 officer is required to keep and if it is filled in such a manner that it is
subject to public inspection.[32] Under the Rules of Court, the rule on public records is embodied in Section
44, Rule 130 which provides:
Section 44. Entries in official records. - Entries in official records made in the performance of his duty by a
public officer 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 official records may be presented without the necessity of presenting in
court the officer or person who made the entries.[33] Entries in public or official books or records may be
proved by the production of the books or records themselves or by a copy certified by the legal keeper
thereof.[34] 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 difficulty of requiring the official's attendance as a witness to
testify to the innumerable transactions in the course of his duty. A public officer 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
officer.[35]
Trustworthiness is a reason because of the presumption of regularity of performance of official duty. The
law reposes a particular confidence in public officers that it presumes that they will discharge
their several trusts with accuracy and fidelity; 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.[36] Thus,
"[t]he trustworthiness of public documents and the value given to the entries made therein could be
grounded on: 1) the sense of official duty in the preparation of the statement made, 2) the penalty which
is usually affixed 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."[37]
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 officials and employees with respect to their official 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 confidential or privileged under the above discussed rules,
their presence before the Impeachment Court can be and should be excused where certified copies of
these non-privileged and non-confidential documents can be provided.
In sum, Philippine law, rules and jurisprudence prohibit the disclosure of confidential or privileged
information under well-defined rules. At the most basic level and subject to the principle of comity,
Members of the Court, and Court officials 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 raffle 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) Confidential Information secured by justices, judges, court officials and employees in the course of
their official 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 highest officials 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[38] rollo as this is still a
pending case and the rollo contains privileged and confidential materials. The Court, however, can
issue certified true copies of the Decisions, Orders and Resolutions it issued in the case and which
have been released to the parties, and certified 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[39] (Dinagat case), the Court — although the Dinagat case is closed and terminated — cannot
grant the requested examination as the rollo contains privileged and confidential information. The
Court, however, can issue certified true copies of the Decisions, Orders and Resolutions it issued in
the case and which have been released to the parties, and certified 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, [40] 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 confidential. The Court, however, if
requested by the Prosecution Panel, can issue certified true copies of the Decisions, Orders and
Resolutions that are now matters of public record, as well as certified copies of the parties'
pleadings./td>
4. On the letter of January 19, 2012 in behalf of the Prosecution Panel in the case of League of Cities
v. COMELEC,[41] 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 testificandum 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 certified 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.
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 officials 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.
The Clerk of Court is hereby DIRECTED:
1. to PHOTOCOPY the non-confidential documents and records requested in the letters of the
House Impeachment Panel, if requested by the Prosecution Panel. She shall as well provide
these certified 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 Officer Carpio and J. Sereno, concurring under Separate
Opinions; Chief Justice Corona, inhibiting; JJ. Velasco, Jr. and Perlas-Bernabe, on official leave of
absence."
Very truly yours,
(Sgd.) ENRIQUETA E. VIDAL

Clerk of Court
Endnotes:
G.R. No. 178083, July 22, 2008, 559 SCRA 252. In its Decision, the Court declared illegal the
[1]
retrenchment of more than 1,000 flight attendants and cabin crew personnel of the flag 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 (affirmed 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
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.
G.R. No. 193459, February 15, 2011. In a petition for certiorari and prohibition, then Ombudsman
[3]
Gutierrez challenged the constitutionality of the September 1 and 7, 2010 Resolutions of The House of
Representatives Committee on Justice finding the two successively filed impeachment complaints against
her sufficient in form and substance. In its Decision (affirmed 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 filing 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
first 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, clarified that since it voted on the
second motion for reconsideration and that it allowed the filing 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 final Resolution, dated April 12, 2011, affirmed the ruling in the February 15, 2011
Resolution.
[5] See Angara v. Electoral Commission, 63 Phil. 139, 156-157 (1936).
Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643,
[6]
March 25, 2008, 549 SCRA 77.
[7] CONSTITUTION, Article VIII, Section 1.
Section 5(5) of the Constitution directly grants the Court the power to promulgate rules concerning
[8]
proceedings in court. These rules have the same force and effect as legislated laws.
John Louis Kellogg. What's Good for the Goose... Differential Treatment of the Deliberative Process
[9]
and Self-Critical Analysis Privileges, 52 Journal of Urban and Contemporary Law 255 (1997), citing US v.
Bryan, 339 US 323, 331 (1950).
IRSC, Rule 7 - Raffle of Cases, Section 3. Raffle Committee Secretariat. - The Clerk of Court shall
[10]
serve as the Secretary of the Raffle Committee. He or she shall be assisted by a court attorney, duly
designated by the Chief Justice from either the Office of the Chief Justice or the Office of the Clerk of
Court, who shall be responsible for (a) recording the raffle proceedings and (b) submitting the minutes
thereon to the Chief Justice. The Clerk of Court shall make the result of the raffle available to the
parties and their counsels or to their duly authorized representatives, except the raffle 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 Office of the Chief Justice, except when taken out for delivery to any of the following: (1) the
Judicial Records Office for attachment of a pleading, communication, document or other papers filed; (2)
the Office of the Clerk of Court or the Office 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 Office of the Member-in-Charge or the Office of the ponente or writer of the decision or
resolution; (4) any Office or official charged with the study of the case. All personnel charged with the
safekeeping and distribution of rollos shall be bound by strict confidentiality 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. Confidentiality 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 raffling of
cases are bound by strict confidentiality 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 official written request from the Chief Judicial
Staff Head or the Chief of Office of the requesting Office. The rollo room personnel may release
a rollo only to an authorized personnel named in the official 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
Section 5. Confidentiality of minutes prior to release. - The Offices of the Clerk of Court and of the
Division Clerks of Court are bound by strict confidentiality 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 officially released once the envelope containing a final 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 Office. Only after its official 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.
John Louis Kellogg, supra note 9, citing Kaiser Aluminum & Chemical Corporation v. US, 157 F. Supp.
[15]
at 943.
Gerald Watlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege. 65 Indiana
[16]
Law Journal 845, 850.
[17] 433 Phil. 506 (2002).
[18] Id. at 534.
Supra note 6, at 399. This is a case in point as it involved the confidentiality of communications
[19]
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.
Access to Justice for the Poor Project - Information Education, Communication Guidelines for
[21]
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.
Kevin C. Milne. The Doctrine of Judicial Privilege: The Historical and Constitutional Basis Supporting
[27]
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 officer. - Any public officer who shall reveal any secret known to
him by reason of his official 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 disqualification and a fine 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, temporary special
disqualification and a fine not exceeding P500 pesos shall be imposed.
[29] This provision of law states:
SEC. 3. Corrupt practices of public officers. - 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:
xxxx
(k) Divulging valuable information of a confidential character, acquired by his office or by him on account
of his official 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 officials and
employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official and employee and are hereby declared to be unlawful:
xxxx
(c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or
divulge, confidential or classified information officially 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.
Tecson v. Commission on Elections, G.R. Nos. 161434, 161634, and 161824, March 3, 2004, 424
[37]
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.
ANNEX "A"
1. Supreme Court-received (with time and date Matter of Public Record - Certified copy can be
stamp) Petition for Special Civil Actions for provided by the witness to the Impeachment
Certiorari and Prohibition with Prayer for the Court, as directed.
Issuance of a Temporary Restraining Order
(FRO) 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 Matter of Public Record- Certified copy can be
stamp) Petition for Special Civil Actions for provided by the witness to the Impeachment
Certiorari and Prohibition with Prayer for the Court, as directed
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 Not Confidential - matter of Public record. The
order or leave applied for days within the month witness can provide certified copy to the
of November 2011 Impeachment Court, as directed
4. Minutes of the Supreme Court Raffle Committee Privileged and Confidential because this is a
which handled the GMA and Mike Arroyo TRO pending case expressly prohibited under the
Petition IRSC. The parties, however, may request for a
copy of the Minutes, with portions relating to
other cases deleted.
5. Appointment or Assignment of the Member-in- Privileged and Confidential because this is a

Charge of the GMA and Mike Arroyo TRO pending case; expressly prohibited under the
Petition 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 on the Matter of Public Record. Certified copy can be
GMA and Mike Arroyo TRO Petition, as provided by the witness to the Impeachment
published Court, as directed.
7. Logbook or receiving copy showing the time the Privileged and Confidential because this is a
TRO was issued to the counsel for GMA and pending case; expressly prohibited under the
Mike Arroyo as well as the date and time the IRSC. The parties, however, may request for a
TRO was received by the sheriff for service to copy of this record, with portions relating to other
the parties cases deleted.
8. Temporary Restraining Order dated 15 Matter of Public Record. Certified copy can be
November 2011 issued in the GMA and Mike provided by the witness to the impeachment
Arroyo TRO Petition Court, as directed.
9. Special Power of Attorney dated 15 November Privileged and Confidential because this is a
2011 submitted by GMA and Mike Arroyo in pending case; expressly prohibited under the
favor of Atty. Ferdinand Topacio appointing him IRSC. Parties can request for a copy.
"to produce summons or receive evidence" with
the official date and time stamp of the Supreme
Court
10. Official Receipt No. 00300227-SC-EP dated 15 Part of public record and certified copy can be
November 2011 issued by the Supreme Court provided to the Impeachment 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 Sheriffs Return of Privileged and Confidential because this is a
service of the GMA and Mike Arroyo TRO dated pending case; expressly prohibited under the
15 November 2011 upon the Department of IRSC. Parties can request for a copy of this
Justice and the Office of the Solicitor General record.
12. Certification from the Fiscal Management and Privileged and Confidential because this is a
Budget Office of the Supreme Court dated pending case; expressly prohibited under the
November 15, 2011 with the date and time it IRSC and deliberative process. The requested
was received by the Supreme Court Clerk of certification refers to the time the bond was
Court showing it to be November 16, 2011 at received by the Court.
8:55am
13. Resolution dated 18 November 2011 issued on Matter of Public Record. Certified copy can be
the GMA and Mike Arroyo TRO Petition, as provided by the witness to the Impeachment
published Court, as directed.
14. Resolution dated 22 November 2011 on the Matter of Public Record. Certified copy can be
GMA and Mike Arroyo TRO Petition provided by the witness to the Impeachment
Court, as directed.
15. Logbook showing the date and time Justice Privileged and Confidential because this is a
Sereno's dissent to the 22 November 2011 pending case; expressly prohibited under the
Resolution was received by the Clerk of Court IRSC.
En Banc
16. Dissenting Opinion of Justice Sereno in G.R. No. The Dissenting Opinion refers to the personal
199034 and 199046 as published on 15 opinion of the writer who has the constitutional
November 2011, 18 November 2011 and 13 duty to explain his Dissent, and is a matter of
December 2011 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.
17. Dissenting Opinion of Justice Carpio dated 15 The Dissenting Opinion refers to the personal
November 2011 and 13 December 2011 in G.R. opinion of the writer who has the constitutional
No. 199034 and 199046 as published duty to explain her Dissent, and is a matter of
public record after this was published. The
Court, however, as the institution entitled to the
confidentiality of certain portions of this Dissent
for being part of the privilege.

certified true copy of this Dissent, subject to its
reservation.
18. Separate Opinion of Justice Velasco dated 13 The Separate Opinion refers to the personal
November 2011 in G.R. No. 199034 and 199046 opinion of the writer and is a matter of public
record after this was published. The Court,
however, as the institution entitled to the
confidentiality of certain portions of this Separate
Opinion for being part of the privilege.
certified true copy of this Separate Opinion,
subject to its reservation
19. Concurring Opinion of Justice Abad dated 13
December 2011 in G.R. No. 199034 and 199046 The Concurring Opinion refers to the personal
opinion of the writer and is a matter of public
record after this was published. The Court,
however, as the institution entitled to 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 Corona as Matter of Public Record. The witness can
Associate Justice of the Supreme Court provide certified copy to the Impeachment Court,
as directed.
21. Official Appointment of Respondent Corona as Matter of Public Record. The witness can
Chief Justice provide certified copy to the Impeachment Court,
as directed.
To complete the records of the Impeachment Court, a certified 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.
EN BANC
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 of the
Promulgated:
FEBRUARY 14,
2012
SEPARATE OPINION
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 confidentiality of certain information, is implied from
Judicial Power. Similarly, Executive Privilege, or the right of the Executive to confidentiality of certain
information, is implied from Executive Power. This Court has explained the rationale for Judicial
Privilege, Executive Privilege, as well as Legislative Privilege, as follows:
[I]nformation x x x 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. x x x[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) official 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 confidential because the
commission of crimes or misconduct is not part of the official functions or duties of Justices.
Moreover, information that are outside the adjudicatory functions of Justices, such as financial, budgetary,
personnel and similar administrative matters relating to the operations of the Judiciary, are not
confidential. 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 public interest.[6] While these express constitutional rights and principles do not negate Judicial
Privilege, the Judiciary cannot invoke Judicial Privilege to claim confidentiality beyond what is essential
and necessary to preserve the exercise of Judicial Power.
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 beseemed
confidential. 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 official records, and to documents, and papers pertaining to
official x x x 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. x x x Any Member who took no part, or dissented, or abstained from decision or
resolution must state the reason therefor. xxx (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 right 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-a-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 officers. 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.
Accordingly, I concur with the Resolution of 14 February 2012 subject to the foregoing clarifications and
reservations.
Endnotes:
[1] Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).
[2] New Code of Judicial Conduct for the Philippine Judiciary.
[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).
EN BANC
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
Promulgated:
FEBRUARY 14,
2012
CONCURRING AND DISSENTING OPINION
SERENO, J.:
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 specific 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 specific matters by the Justices or officials 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 officials 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 qualified, 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.
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 qualified 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 office 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 official 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 confidential 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:
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 confidential 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 confidentiality of
communications between attorney and client. Enforcement of these subpoenas, it is urged, would require
that Williams, Ehrlich, Simons, and Miller reveal confidences 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.
xxx xxx xxx
Although we have found no case in which a judicial privilege protecting the confidentiality 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.CCir.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 finding a qualified privilege protecting confidential 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 confidentiality is too plain to require further discussion. Human experience
teaches that those who expect public dissemination of their remarks may well temper candor 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 flow from the nature of enumerated powers; the
protection of the confidentiality 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 confidentiality of his conversations and correspondence" to "the claim of confidentiality 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. Confidentiality helps protect judges' independent reasoning from
improper outside influences. It also safeguards legitimate privacy interests of both judges and
litigants.
We conclude, therefore, that there exists a privilege (albeit a qualified one, infra) protecting
confidential communications among judges and their staffs in the performance of their judicial
duties. But we do not think that this qualified privilege suffices 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 confines of the privilege. The judicial privilege is grounded in the need for
confidentiality 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 official 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 official 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 would not ordinarily be expected to reveal the substance of
communications among Judge Hastings, his colleagues, and his staff concerning Judge Hastings' official
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 qualified, not
absolute. We accordingly reject Williams' assertion of privilege to justify non-compliance with the
Committee's subpoena duces tecum.
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
confidentiality 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, unqualified privilege would place in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict 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 confidentiality 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 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 sufficiently 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 difficulty 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 confidentiality 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.
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 confidence 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 influence of the other branches of
government, considering that the previous models of government made the salaries of judges and their
removal from office 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 judicial proceedings.[7]
Milne discussed in length the legal bases for the qualifications to judicial privilege, citing Williams v.
Mercer,[8] Gravel v. United States,[9] and Nixon v. United States[10] to wit:
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 qualified privilege that protects the confidentiality 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 confidential 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 filed 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 qualified privilege
protected the subject matter of the communications between Judge Hastings and his staff.
The Williams court explained that absent an overriding need for confidential information which passes
between a judge and his clerks, communications regarding a judge's performance of his official 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 justified 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 qualified 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 confidentiality 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 justified an
intrusion into the substance of the communications. Furthermore, the Williams court noted that
the confidential nature of the committee's proceedings mitigated the severity of the intrusion into
Hastings' expectation of confidentiality and probably would not inhibit the free 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.
The Eleventh Circuit's reasoning behind establishing a qualified judicial privilege protecting the
confidentiality of communications between a judge and his staff members finds 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.
The Williams decision, acknowledging a qualified privilege for communications between a judge and his
staff, also finds support in the Supreme Court's decision in Nixon v. United States, in which the Court held
that a qualified 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.
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. The Nixon Court found,
however, that an absolute privilege would conflict with the intent of the Framers to form a
balanced government and would burden unduly the administration of justice.
The Nixon Court thus determined that absent the need to protect diplomatic or military secrets the
President's "generalized interest" in the confidentiality of his discussions warranted only a
qualified privilege that could be overcome upon a showing of substantial need for the information
as evidence in a pending criminal trial.
Although Gravel and Nixon support the Williams court's recognition of a qualified 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 significant 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 significant political
effects of judicial decisions, commentators object to the circumstance that published opinions represent
the full extent to which judges must reveal the influences that shape their decisions. Opponents of
judicial confidentiality, 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.[11] (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 significant
interests outweigh a judge's interest in confidentiality. For example, the demonstrated need for
evidence in a criminal prosecution or in an investigation of judicial misconduct warrants an
intrusion into confidential judicial communications. In considering whether to compel disclosure of
judicial communications, courts should realize, however, that indiscriminate or unnecessary intrusions into
the confidentiality 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 official duties. [12] (Emphasis
supplied.)
In similar vein, the matter of impeachment of the highest judicial officer 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 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 officers enjoying fixed 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.[13]
One of these accountability measures is the process of impeachment. [14] Impeachment is the process by
which 31 specified public officers, who otherwise enjoy a fixed term or tenure, can be removed from office
for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust.[15] Shall the public's demand for accountability undertaken by the Impeachment
Court through the issuance of subpoenae be severely emasculated by the general claim of keeping
internal deliberations of the Court and other documents confidential? I disagree with this idea because
unlike judicial privilege that is qualified, the legal mandate to make public officers 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 specific 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 confidence 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,[16] 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.[17] In short, once higher societal values, such as
the public's right to information, and the constitutional directive to extract accountability from public
officers, are found to supersede the advantages of protecting confidential information, qualified judicial
privilege must necessarily succumb. In this case, the compulsory 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 officials and denied the privilege when it comes to the investigation of criminal actions or
wrongdoing. Non-disclosure by public officers based on privileged communications can never be justified
as a means of covering mistakes, avoiding embarrassment or for political, personal or pecuniary
reasons.[18]
In Neri v. Senate Committee on Accountability of Public Officers and Investigations,[19] 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 Officers 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[20] that "executive privilege
does not guard against a possible disclosure of a crime or wrongdoing."[21] In his Dissenting and
Concurring Opinion, Justice Carpio explained that executive privilege can only be invoked pursuant to
official 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 financial transactions of the
President. Private matters are those not undertaken pursuant to the lawful powers and official 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 coequal 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.[22] (Emphasis supplied.)
Neither the doctrine of separation of powers nor the need for confidentiality 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. [23]
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.
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 certified 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 testificandum et duces tecum and 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 certified 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 confined 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,[24] 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. [25]
As a preliminary matter, all official 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 official
records, and to documents, and papers pertaining to official 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.[26]
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. [27]
Thus, the general rule covering court documents and records is disclosure, while confidentiality is the
exception. As an exception, confidentiality must be strictly construed.
John Louis Kellog, another authority cited in the Per Curiam Resolution,[28] 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 qualified, a balancing test weighing the need for confidentiality 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,[29] agenda,[30] recommended actions, and other similar documents that are "predecisional" and
"deliberative", fall within the rule on qualified 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[31] 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 filed 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,[32] the Court had already ruled that pleadings of the parties form part of official
records that are open to the public for examination and scrutiny. Further, we stated that:
[P]leadings are presumed to contain allegations and assertions lawful and legal in nature, appropriate to
the disposition of issues ventilated before the 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,[33] 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 official records, and to documents, and papers pertaining to official 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 "official 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 official collection of all papers, exhibits and pleadings filed 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 official 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 final
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-finding process, and foster an informed public
discussion of governmental affairs. Thus in Barretto v. Philippine Publishing Co., this Court held:
xxx 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 know whether a public officer 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 property performing his duty. xxx
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. xxx
xxx "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."xxx
"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. xxx 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 filed in a public office 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.xxx
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."
Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case
need not be matters of public concern or interest. For they are filed 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.
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 official 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.xxx
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.xxx 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 specific purpose, the
order for unrestricted access and reproduction should not have been made.
In fine, 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 efficiency, whether a party benefiting from [the]
confidentiality order is [a] public entity or official, 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.[34] Documents acknowledged before a notary public are considered
under the evidentiary rules as public documents.[35] It strains reason why a Special Power of Attorney
made a public document by law suddenly becomes a confidential 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
certified 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 confidential information. The raffling of the
case is undoubtedly part of the adjudicatory process because it identifies which among the fifteen 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. [36] Nonetheless, the Internal Rules of the Supreme Court
itself has opened the results of the raffle 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.[37] 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 raffle in the cases identified, since it pertains to matters of qualified 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 raffle, 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.
First, the disclosure of confidential information by a public officer is made criminally punishable only if it
is unauthorized. The Anti-Graft and Corrupt Practices Act,[38] which was erroneously quoted in the Per
Curiam Resolution,[39] punishes the release of confidential information to unauthorized persons. All the
three penal laws relied upon by the majority only point to a public officer who voluntarily reveals
information received in the performance of their functions and acquired in confidence. This does not cover
an instance when the public officer 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 first be
resolved on whether the matter sought to be elicited from the public officer is indeed confidential
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 confidential information. The matter
of the availability of the justifying circumstance of "obedience to a lawful order" to escape criminal liability
under the Revised Penal Code[40] 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 inefficient for the majority to claim that every waiver of judicial
privilege must be subject to the Supreme Court's consideration and approval: [41]
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?[42] I think the above language in the Resolution dangerously preempts the Impeachment Court in a
way that constitutes unconstitutional interference.
Not only has the majority overly extended the limits of qualified judicial privilege - which does not find any
express basis under the Constitution unlike executive privilege - but it likewise seeks to expand its
influence in a manner similar to the President's by arrogating unto itself the decision on when such
privilege can be exercised or waived.[43]
Third, although the qualified 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.[44] 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 filing of petitions,
and the like, are outside the scope of qualified 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
filed 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
Sheriffs Return of Service of the TRO; and, the certification from the Fiscal Management and Budget
Office 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 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-a-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 stifle 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, finds
resonance in our constitutional history. On 17 January 1935, the judiciary committee of the 1934
Constitutional Convention introduced the following provision on the judiciary:[45]
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.
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.[46]
According to Aruego:[47]
The first 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."
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 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 farther 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 certification 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.
We are all aware, Mr. Presiding Officer, 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 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 Officer, to change the word "shall" to MUST with the
following clarification: 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 ruffling 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 final point, Mr. Presiding Officer. Could a justice just say on the bottom of the
decision, "I take no part," then sign it?
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 Officer.[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."[49] 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 first 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 confidential in nature and these
should not be divulged on a whim. However, the privilege on confidentiality must be balanced with the
constitutional duty to inform the public of the 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 fulfillment 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:
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 confidence in the legitimacy of the judicial process. Oral dissents can become a crucial tool in the
ongoing dialogue between constitutional law and constitutional culture.[50]
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: first, 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 first 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
confidence is the character and independence of the judges.[51] (Emphasis supplied.)
In numerous instances, the Justices of this Court have narrated court deliberations without fear of
censorship or retribution.
People v. Caruncho[52] 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
specific 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. 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.
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.[53]
In Misolas v. Panga,[54] 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[55] necessitated a discussion of the court deliberations, because what was a core issue was whether
the 22 November 2011 Resolution accurately reflected the discussions of the Court en banc during the 18
November 2011 Session.
Indeed, in a variety of other contentious cases of significant 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.[56]
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
confidentiality of certain portions of this [Dissent, Concurring, Separate Opinion] for being part of the
privilege.
The Court shall allow the witness to issue a certified true copy of this [Dissent, Concurring, Separate]
Opinion, subject to this reservation.[57]
This pronouncement gives the impression that the confidentiality 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 confidentiality 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 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.
Furthermore, the censorship sought to be imposed on Justices in the writing of their respective opinions
finds 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 confidentiality rule finds 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 confidentiality 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 final 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 efficient 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 been Public record
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 of Public record as case has been closed and
Representatives[60] terminated.
4. On the rollo of League of Cities v. COMELEC[61] Public record - considered closed and
terminated.
B. Subpoena ad testificandum et duces tecum dated 09 February 2012 of the Senate Impeachment
Court
1. Rollo of the FASAP case (G.R. No. 178083)

Privileged and confidential (but results of the
a. Records/Logbook of the Raffle Committee showing the
raffle are available to the parties and their
assignment of the FASAP case
counsel)
b. Four letters of Atty. Estelito Mendoza dated 13 Public Record
September Public record 2011, 16 September 2011, 20
September 2011, 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 available to
of the GMA and Mike Arroyo TRO Petition 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 Sheriffs 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 Public record
12. Certification from the Fiscal Management and Budget Public record
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 Public record
13. Resolution dated 18 November 2011 issued on the Public record
GMA and Mike Arroyo TRO Petition, as published Public
record
14. Resolution dated 22 Public record November 2011 on Public record
the GMA and Mike Arroyo TRO Petition
15. Logbook showing the Public record date and time of
Justice Sereno's dissent to the 22 November 2011
Resolution was received by the Clerk of Court En Banc
16. Dissenting Opinions of Public record Justice Sereno in Public record
G.R. Nos. 199034 and 199046 as published on 15
November 2011, 18 November 2011 and 13 December
2011
17. Dissenting Opinions of Public record Justice Carpio Public record
dated 15 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 Public record Justice Abad Public record
dated 13 December 2011 in G.R. Nos. 199034 and
199046
20. Official Appointment Public record of Respondent Public record
Corona as Associate Justice of the Supreme Court
21. Official Appointment Public record of Respondent Public record
Corona as Chief Justice
22. Separate Opinion of Public record Justice Abad dated Public record
13 December 2011
I vote that the Clerk of Court, or any other duly authorized representative, be DIRECTED to provide the
certified 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
qualified judicial privilege. The requesting parties shall PAY the costs of the reproduction of these
documents.
Endnotes:
G.R. No. 199034 (Gloria Macapagal-Arroyo v. Hon. Leila M. De Lima, in her capacity as Secretary of
[1]
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).
Kevin C. Milne, THE DOCTRINE OF JUDICIAL PRIVILEGE: THE HISTORICAL AND

[3]
CONSTITUTIONAL BASIS SUPPORTING A PRIVILEGE FOR THE FEDERAL JUDICIARY, 44 Wash &
Lee L. Rev. 213 (1987).
"The accounts of delegates who participated in the Constitutional Convention of 1787 reveal that the
[4]
doctrine of judicial privilege find legitimacy in the delegates' struggle to define 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)
Milne cited Trevett v. Weeden, (R. Pound, The Spirit of the Common Law 61-62[1921]) where the
[5]
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]In 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] 40S U.S. 606 (1972).
[10] 418 U.S. 683 (1974).
[11] Id. at 224-229.
[12] Id. at 234-235.
"Public office is a public trust. Public officers and employees must at all times be accountable to the
[13]
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives." (CONSTITUTION, Art. XI, Sec. 1)
Significantly, the constitutional provisions dealing with impeachment process are found in the article
[14]
dealing with the accountability of public officers. (CONSTITUTION, Art. XI, Sec. 2 and 3)
[15] CONSTITUTION, Art. XI, Sec. 2.
The disqualification of testimonial evidence based on privileged communications include the following:
[16]
marital communications privilege, attorney-client, doctor-patient and priest-penitent. (Rules of Court, Rule
130, Sec. 24)
“The most influential rationale for the law of privilege is the utilitarian justification advocated by Dean
[17]
John H. Wigmore. He believed that a given communication should be privileged only if the benefit 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])
US Attorney-General William Rogers, Constitutional Law: The Papers of the Executive Branch, 44
[18]
A.B.A. J.1941(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.
"That executive privilege cannot be invoked to conceal a crime is well-settled. All Justices of this Court
[20]
agree on that basic postulate. The privilege covers only the official 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 Officers and Investigations, G. R. No. 180643, 04 September 2008, 564 SCRA 152, 308)
"Respondent Committees argue that a claim of executive privilege does not guard against a possible
[21]
disclosure of a crime or wrongdoing. We see no dispute on this." (Neri v. Senate Committee on

Accountability of Public Officers 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].
TJ Burgonio, Senate: No Subpoena for 4 Supreme Court Justices, 09 February 2012,

[24]
http://newsinfo.inquirer.net/142241/senate-no-subpoena-for-4-supreme-court-justices (Last accessed 15

February 2012)
"The principle of comity or inter-departmental courtesy demands that the highest officials of each
[25]
department be exempt from compulsory processes of the other departments." (Per Curiam Resolution
dated February 2012, p. 24)
[26] CONSTITUTION, Art. III, Sec. 7.
[27] SC Administrative Circular No. 2-02 effective 25 January 2002.
[28] Per Curiam Resolution dated 14 February 2012, p. 11, footnote 9.
"The Offices of the Clerk of Court and of the Division Clerks of Court are bound by strict confidentiality
[29]
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 officially released once the envelope containing a final 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 Office. Only after its official release may a resolution be made available to the public."
(Internal Rules of the Supreme Court [IRSC], Rule 11, Sec. 5)
"The Clerk of Court and the Division Clerks of Court shall ensure that all pleadings, communications,
[30]
documents, and other papers duly filed 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 filed 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 filing, 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.
"Every initiatory pleading already identified by a G.R. or a UDK number shall be raffled among the
[36]
Members of the Court. The Member-in-Charge to whom a case is raffled, 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)
"The Clerk of Court shall make the result of the raffle available to the parties and their counsels or to
[37]
their duly authorized representatives, except the raffle 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." (IRSC, Rule 7, Sec. 3)
"Divulging valuable information of a confidential character, acquired by his office or by him on account
[38]
of his official 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, p. 18-19, footnote 29.
"Any person who acts in obedience to an order issued by a superior for some lawful purpose."
[40]
(REVISED PENAL CODE, Art. 11 [6]).
[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
official 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)
In the Compliance dated 27 January 2012, the House Prosecution Panel submitted to the
[42]
Impeachment Court a list of its intended witnesses, which included incumbent and retired justices of the
Supreme Court and Court of Appeals.
"The heads of departments may upon their own initiative, with the consent of the President, or upon
[43]
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.)
"As a last point and mainly for purposes of stress, the privileges discussed above that apply to justices
[44]
and judges apply mutatis mutandis to court officials 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 589 (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)
M. Todd Anderson, From Seriatim to Consensus and Back Again: A Theory of Dissent, 2007 Sup. Ct.
[51]
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
confidence. 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 raffle 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 confidentiality
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 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.
In Re: Benigno Aquino, Jr., et al., v. Enrile, G. R. No. L-35546, 17 September 1974, 59 SCRA
[56]
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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February 2012 - Philippine Supreme Court Resolutions

Supreme Court Resolutions

[February 14, 2012]

IN RE: PRODUCTION OF COURT RECORDS AND DOCUMENTS AND THE ATTENDANCE OF

21. Official Appointment of Respondent Corona as Chief Justice.

A Brief Statement of Relevant Background Facts and Developments

c. with respect to Ma. Merceditas N. Gutierrez v. The House of Representatives Committee on

The Independence of the Judiciary

Access to court records: general rule —

When Court Records are considered

Article 1. Definition of Terms.

A document is "predecisional" under the deliberative process privilege if it precedes, in temporal

The prohibition against disclosure of confidential information is required to be observed by members of

The reasons for this rule are necessity and trustworthiness.

The Clerk of Court is hereby DIRECTED:

Very truly yours,

(Sgd.) ENRIQUETA E. VIDAL

[5] See Angara v. Electoral Commission, 63 Phil. 139, 156-157 (1936).

March 25, 2008, 549 SCRA 77.

[7] CONSTITUTION, Article VIII, Section 1.

[11] See also IRSC, Rule 9, Sections 2 and 4 which declare:

Section 4. Confidentiality of identity of Member-in-Charge or ponente and of Court actions. - Personnel

[12] IRSC, Rule 11, Section 5, which states:

[13] G.R. Nos. 199034 & 199046, December 13, 2011.

[14] Id.; see J. Abad Concurring Opinion.

Law Journal 845, 850.

[17] 433 Phil. 506 (2002).

[18] Id. at 534.

between a former President and one of her Cabinet members.

[22] Electronic Frontier Foundation v. US Department of Justice, 2011 WL 596637.

[24] See NLRB v. Sears, Roebuck & Co., 421 US 151.

[25] Electronic Frontier Foundation v. US Department of Justice, supra note 22.

[28] This provision of law states:

[29] This provision of law states:

[30] This provision states:

(1) To further their private interests, or give undue advantage to anyone; or

[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.

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.

5. Appointment or Assignment of the Member-in- Privileged and Confidential because this is a

The Court shall allow the witness to issue a

The Court shall allow the witness to issue a

The Court shall allows the witness to issue a

2. On the Constitutional Duty to Explain One's Dissent

[2] New Code of Judicial Conduct for the Philippine Judiciary.

[3] Section 4, Article III, 1987 Constitution.

[5] Section 7, Article III, 1987 Constitution.

[8] Section 7, Article III, 1987 Constitution

CONCURRING AND DISSENTING OPINION

V. Appellant's Claim of a Privilege Protecting Communications Among Judge Hastings and

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

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

3. Telephone message books, logs and memoranda….

xxx xxx xxx

xxx xxx xxx