In re Production of Court Records and Documents and the Attendance of Court Officials & Employees

EN BANC

[February 14, 2012.]

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

NOTICE

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated FEBRUARY 14, 2012, which reads as follows:

"In Re: Production of Court Records and Documents and the Attendance of Court 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 CURIAMp:

Before us are the letters of Hon. Joseph Emilio A. Abaya, Congressman and Impeachment Prosecution Panel Manager, in behalf of the House Impeachment Panel, requesting for the actions described below. These letters are:

(1) LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya, Congressman, 1st District, Cavite; Chairman, Committee on Appropriations; and Impeachment Prosecution Panel Manager, writing in behalf of the House Impeachment Panel, requesting that the Public Prosecutors, as well as the Private Prosecutors, be permitted to examine, among others, the 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.

(2) LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya, Congressman, 1st District, Cavite; Chairman, Committee on Appropriations; and Impeachment Prosecution Panel Manager, writing in behalf of the House Impeachment Panel, requesting that the Public Prosecutors, as well as the Private Prosecutors, be permitted to examine, among others, the rollo of Navarro v. Ermita, G.R. No. 180050, April 12, 2011.

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

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

3.  Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated September 20, 2011 (copy furnished: The Hon. Chief Justice Renato C. Corona), in connection with the FASAP case;

4.  Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated September 22, 2011 (copy furnished: The Hon. Chief Justice Renato C. Corona), in connection with the FASAP case;

5.  Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated September 16, 2011 (copy furnished: The Hon. Chief Justice Renato C. Corona; Hon. Arturo D. Brion, Hon. Jose P. Perez, Hon. Lucas P. Bersamin and Hon. Jose C. Mendoza), in connection with the FASAP case.

Another subpoena ad 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; TcHDIA

11.  November 15 and 16, 2011 Sheriff's Return for service of the GMA and Mike Arroyo TRO dated November 15, 2011, upon the Department of Justice and the Office of the Solicitor General;

12.  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. aATHIE

Instead of issuing subpoenas as requested, the Hon. Presiding Senator-Judge Juan Ponce Enrile, on February 8, 2012, issued an Order denying the Prosecution Panel's request for subpoena ad 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. DSEIcT

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 —

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

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] ACaDTH

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 . . . 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 HTCaAD

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:

xxx xxx xxx

(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 Officials 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. SEAHcT

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 CIaDTE

As a last point and mainly for purposes of stress, the privileges discussed above that apply to justices and judges apply mutatis mutandis to court 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. SCHTac

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.

C.  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." TIaCcD

Very truly yours,

(SGD.) ENRIQUETA E. VIDALClerk of Court

ANNEX A

1.	Supreme Court-received (with time andCertiorari and	Matter of Public Record — Certified
2.	Supreme Court received (with timeCertiorari and	Matter of Public Record — Certified
3.	Official Leave of Respondent	Not Confidential — matter of Public
4.	Minutes of the Supreme Court	Privileged and Confidential because
5.	Appointment or Assignment of the	Privileged and Confidential because
6.	Resolution dated 15 November 2011	Matter of Public Record. Certified
7.	Logbook or receiving copy showing	Privileged and Confidential because
8.	Temporary Restraining Order dated	Matter of Public Record. Certified
9.	Special Power of Attorney dated 15	Privileged and Confidential because
10.	Official Receipt No. 00300227-SC-	Part of public record and certified
11.	November 15 and 16, 2011 Sheriff's	Privileged and Confidential because
12.	Certification from the Fiscal	Privileged and Confidential because
13.	Resolution dated 18 November 2011	Matter of Public Record. Certified
14.	Resolution dated 22 November 2011	Matter of Public Record. Certified
15.	Logbook showing the date and time	Privileged and Confidential because
16.	Dissenting Opinion of Justice	The Dissenting Opinion refers to the
17.	Dissenting Opinion of Justice Carpio	The Dissenting Opinion refers to the
18.	Separate Opinion of Justice Velasco	The Separate Opinion refers to the
19.	Concurring Opinion of Justice Abad	The Concurring Opinion refers to the
20.	Official Appointment of Respondent	Matter of Public Record. The witness
21.	Official Appointment of Respondent	Matter of Public Record. The witness

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.

Separate Opinions

CARPIO, J.:

I concur with the Resolution of 14 February 2012 (Resolution), subject to certain important clarifications and reservations.

1.  On Judicial Privilege

Judicial Privilege, or the right of the Judiciary to 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 . . . like internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. . . . 1 (Emphasis supplied)

However, there are clear limits to Judicial Privilege, as there are clear limits to Executive and Legislative Privilege. One overriding limitation on Judicial Privilege is that it can be invoked only if the information arose from the performance of official adjudicatory functions of Members of the Judiciary. As succinctly stated in the Resolution, Judicial Privilege refers only to "matters that are part of the internal deliberations and actions of the Court in the exercise of the(ir) adjudicatory functions and duties" of Justices. The Resolution further states that the matter must refer to "the performance of the(ir) 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. aHECST

Thus, information of no, or de minimis, value to the preservation of Judicial Power, such as the date and time of receipt by the Clerk of Court 7 of the Dissenting Opinion of a Justice, cannot be deemed 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 . . . decisions." 8 This is one instance when an express constitutional right must prevail over the invocation of Judicial Privilege.

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

The Constitution mandates that a Justice who dissents must explain his dissent. Thus, Section 13, Article VIII of the 1987 Constitution provides in part:

Section 13.. . . Any Member who took no part, or dissented, or abstained from decision or resolution must state the reason therefor. . . . (Underscoring and boldfacing supplied)

The framers of the 1987 Constitution used the word "must" to emphasize that the duty to explain one's dissent is "mandatory." The framers considered a violation of this express duty a "culpable violation of the Constitution." 9

Without this constitutional command to state the reasons for his dissent, a Justice still has a 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-à-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.

SERENO, J., concurring and dissenting:

It is inevitable that every Member of this Court concurs with the general proposition of the Resolution that judicial privilege can be invoked to: (a) deny access to 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. EHITaS

To draw in sharp lines the extent to which I disagree with some of the language and dispositions of the Resolution, let me state my belief that some of the language in the Resolution violate the Constitution when such language: (a) attempt to regulate or obstruct the duty to explain the dissent of the minority in the Court; (b) prohibit the disclosure of Gloria Arroyo's notarized Special Power of Attorney (SPA) — thus a public document — that was submitted to the Court; and (c) prohibit the disclosure of a matter as administrative as the time and date my Dissenting Opinion in the Arroyo TRO cases 1 was submitted to the Clerk of Court.

Public Accountability and Qualified Judicial Privilege

The pattern for the rights and privileges of Philippine judges are generally drawn from those granted to American judges. Judicial privilege, a child of the doctrine of separation of powers, likewise draws its origins from the American treatment of "privileges." Thus, in U.S. jurisprudence, judicial privilege has always been 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. aEcADH

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.C.Cir.1974). Judge MacKinnon's dissent in Nixon v. Sirica traced such authorities as existed to support the recognition of a judicial privilege, noting, "Express authorities sustaining this position are minimal, undoubtedly because its existence and validity has been so universally recognized. Its source is rooted in history and gains added force from the constitutional separation of powers of the three departments of government." In a concurring opinion in Soucie v. David, 448 F.2d 1067, 1080 (D.C.Cir.1971), Judge Wilkey, discussing Freedom of Information Act exemptions from disclosure of certain executive branch information, stated, "[I]t must be understood that the privilege against disclosure of the decision-making process is a tripartite privilege, because precisely the same privilege in conducting certain aspects of public business exists for the legislative and judicial branches as well as for the executive. It arises from two sources, one common law and the other constitutional."

xxx xxx xxx

The Supreme Court's reasons for 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. acADIT

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. AHDacC

xxx xxx xxx

Turning next to the testimony of Simons and Miller before the Committee, our review of the transcripts leaves little doubt that the boundaries of the judicial privilege do encompass the subject matter of the Committee's inquiries to them. They invoked the privilege in response to questions probing the core of the 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. ScAHTI

There can be no question that the Committee's investigation is a matter of surpassing importance. While criminal remedies may no longer be in issue, a proceeding which could result in recommending the exoneration of a sitting Article III judge, or in certifying to the House of Representatives that consideration of impeachment may be warranted, obviously implicates concerns of fairness and thoroughness of a high order. And the charges being investigated — particularly the allegation of bribery — are grave. As we said in our previous opinion arising out of the Hastings investigation.

Moreover, the question under investigation — whether an Article III judge should be recommended for impeachment by the Congress, otherwise disciplined, or granted a clean bill of health — is a matter of great societal importance. Given the character of an investigating committee and what is at stake — the public 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: ASTcEa

The rationale supporting the legitimacy of privileges for government communications provided the basis for a recent Eleventh Circuit decision, Williams v. Mercer, which explicitly acknowledged the existence of a 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. aIEDAC

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. HAIDcE

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 EITcaH

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 subpoena 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 HEITAD

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 co-equal and co-ordinate branches of government. Executive privilege springs from the supremacy of each branch within its own assigned area of constitutional powers and functions. 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. ETaHCD

The letters dated 19 and 25 January 2012 of Cong. Joseph Emilio A. Abaya, as House Prosecution Panel Manager, requested for the examination of the rollos and 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. 27cTDECH

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: cAaTED

[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: HDIATS

. . . The foundation of the right of the public to know what is going on in the courts is not the fact that the public, or a portion of it, is curious, or that what is going on in the court is news, or would be interesting, or would furnish topics of conversation; but is simply that it has a right to 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 properly performing his duty. . . .

The case in Cowley vs. Pulsifer (137 Mass. 392) is so pertinent to the questions presented for our decision in the case at bar that we cannot refrain from quoting extensively therefrom. . . .

. . . "The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.". . .

"The chief advantage to the country to which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice. . . . It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed."

From this quotation it is obvious that it was not the idea of the supreme court of Massachusetts to lay down the proposition that simply because a pleading happened to be 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. . . .

Decisions and opinions of a court are of course matters of public concern or interest for these are the authorized expositions and interpretations of the laws, binding upon all citizens, of which every citizen is charged with knowledge. Justice thus requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public. Thus, in Lantaco Sr. et al. v. Judge Llamas, this Court found a judge to have committed grave abuse of discretion in refusing to furnish Lantaco et al., a copy of his decision in a criminal case of which they were even the therein private complainants, the decision being "already part of the public record which the citizen has a right to scrutinize." EAIaHD

Unlike court orders and decisions, however, pleadings and other documents 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. . . .

In exercising its supervisory powers over materials surrendered into its care, the court may regulate the use made of it. In an application of this nature, the court must protect the respondent and accommodate public interest in access. . . . In an application of this nature the court must protect the respondent and accommodate the public interest in access. This can only be done in terms of the actual purpose, and in the face of obvious prejudice and the absence of a specific purpose, the order for unrestricted access and reproduction should not have been made. EcTCAD

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. cTCaEA

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. acITSD

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 Sheriff's 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-à-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. aSTECA

It was later revised to read:

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

No decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based. 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." ITDSAE

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

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

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

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

It is therefore evident that the purpose of this mandate is consistent with the constitutional duty to be transparent and to be accountable to the people. It was obviously intended as an assurance to the public that the Justices exercised the utmost care and diligence in reaching their decisions, which should be founded on facts, laws and reason.

This principle was not only reiterated in the 1987 Constitution, but was further reinforced when the phrase "shall state the reasons for his dissent" was replaced by "must state the reason therefore."

Article VIII, Sec. 13 of the 1987 Constitution now reads:

The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A 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. EDHCSI

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? cHCIEA

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

MR. MAAMBONG: Thank you.

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

MR. MAAMBONG: Thank you, Mr. Presiding 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: cADaIH

I argue that oral dissents, like the orality of spoken word poetry or the rhetoric of feminism, have a distinctive potential to root disagreement about the meaning and interpretation of constitutional law in a more democratically accountable soil. Ultimately, they may spark a deliberative process that enhances public 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. AHcCDI

In his concurring opinion, Justice Gutierrez remarked that the opening up of the deliberations of the Supreme Court to the public (as when the voting was recited in detail) may be helpful to the general public and do away with unfounded speculations as to how decisions are reached. 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 55necessitated 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. cCESaH

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 released to the parties	Public record
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 Representatives 60	Public record as case has been closed and 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)
	a.	Records/Logbook of the Raffle Committee showing the assignment of the FASAP case	Privileged and confidential (but results of the raffle are available to the parties and their counsel)
	b.	Four letters of Atty. Estelito Mendoza dated 13 September 2011, 16 September 2011, 20 September2011, 22 September 2011.	Public record

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) 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.		Public record
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 Temporary Restraining Order and/or Writ of Preliminary Injunction docketed as (G.R. No. 199046) [Mike Arroyo TRO Petition], including the Annexes thereto		Public record
3.	Official Leave of Respondent Corona's travel order or leave applied for days within the month of November 2011		Public record
4.	Minutes of the Supreme Court Raffle Committee which handled the GMA and Mike Arroyo TRO Petition		Confidential and privileged
5.	Appointment or Assignment of the Member-in-Charge of the GMA and Mike Arroyo TRO Petition		Confidential and privileged, but available to parties and their counsel
6.	Resolution dated 15 November 2011 on the GMA and Mike Arroyo TRO Petition as published		Public record
7.	Logbook or receiving copy showing the time the TRO 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		Public record
8.	Temporary restraining Order dated 15 November 2011 issued in the GMA and Mike Arroyo TRO Petition		Public record
9.	Special Power of Attorney dated 15 November 2011 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		Public record
10.	Official Receipt No. 00300227-SC-EP dated 15 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		Public record
11.	November 15 and 16, 2011 Sheriff's Return of service 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 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 GMA and Mike Arroyo TRO Petition, as published		Public record
14.	Resolution dated 22 November 2011 on the GMA and Mike Arroyo TRO Petition		Public record
15.	Logbook showing the date and time of Justice Sereno's dissent to the 22 November 2011 Resolution was received by the Clerk of Court En Banc		Public record
16.	Dissenting Opinions of Justice Sereno in G.R. Nos. 199034 and 199046 as published on 15 November 2011, 18 November 2011 and 13 December 2011		Public record
17.	Dissenting Opinions of Justice Carpio dated 15 November 2011 and 13 December 2011 in G.R. Nos. 199034 and 199046 as published		Public record
18.	Separate Opinion of Justice Velasco dated 13 December 2011 in G.R. Nos. 199034 and 199046		Public record
19.	Concurring Opinion of Justice Abad dated 13 December 2011 in G.R. Nos. 199034 and 199046		Public record
20.	Official Appointment of Respondent Corona as Associate Justice of the Supreme Court		Public record
21.	Official Appointment of Respondent Corona as Chief Justice		Public record
22.	Separate Opinion of Justice Abad dated 13 December 2011		Public record

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. aTAEHc

 

Footnotes

1.G.R. No. 178083, July 22, 2008, 559 SCRA 252. In its Decision, the Court declared illegal the retrenchment of more than 1,000 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.

3.G.R. No. 193459, February 15, 2011. In a petition for certiorari and prohibition, then Ombudsman Gutierrez challenged the constitutionality of the September 1 and 7, 2010 Resolutions of The House of Representatives Committee on Justice 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).

6.Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, March 25, 2008, 549 SCRA 77.

7.CONSTITUTION,Article VIII, Section 1.

8.Section 5 (5) of the Constitution directly grants the Court the power to promulgate rules concerning proceedings in court. These rules have the same force and effect as legislated laws.

9.John Louis Kellogg. What's Good for the Goose . . . Differential Treatment of the Deliberative Process and Self-Critical Analysis Privileges, 52 Journal of Urban and Contemporary Law 255 (1997), citing US v. Bryan, 339 US 323, 331 (1950).

10.IRSC, Rule 7 — Raffle of Cases, Section 3. Raffle Committee Secretariat. — The Clerk of Court shall serve as the Secretary of the 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,

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.

15.John Louis Kellogg, supra note 9, citing Kaiser Aluminum & Chemical Corporation v. US, 157 F. Supp. at 943.

16.Gerald Watlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege. 65 Indiana Law Journal 845, 850.

17.433 Phil. 506 (2002).

18.Id. at 534.

19.Supra note 6, at 399. This is a case in point as it involved the confidentiality of communications between a former President and one of her Cabinet members.

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

Generally, the privilege extends to written and oral communications comprised of opinions, recommendations or advice offered in the court of the executive's decision-making processes.

21.Access to Justice for the Poor Project — Information Education, Communication Guidelines for Municipal Court Information Officers, A.M. No. 05-2-01-SC, March 13, 2007.

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

23.Ibid.

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

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

26.Ibid.

27.Kevin C. Milne. The Doctrine of Judicial Privilege: The Historical and Constitutional Basis Supporting a Privilege for the Federal Judiciary, 44 WASH & LEE L. REV. 213 (1987).

28.This provision of law states:

ART. 229. Revelation of secrets by an 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:

xxx xxx xxx

(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:

xxx xxx xxx

(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.

37.Tecson v. Commission on Elections, G.R. Nos. 161434, 161634, and 161824, March 3, 2004, 424 SCRA 277, 336.

38.G.R. No. 178083.

39.G.R. No. 180050.

40.G.R. No. 193459.

41.G.R. Nos. 176951, 177499 and 178056. 

CARPIO, J., concurring:

1.Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).

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

3.Section 4, Article III, 1987 Constitution.

4.Id.

5.Section 7, Article III, 1987 Constitution.

6.Section 28, Article II, 1987 Constitution.

7.In Item 15 of Annex "A" to the Resolution of 14 February 2012, the majority considers the date and time of receipt by the Clerk of Court of Justice Maria Lourdes P. A. Sereno's Dissenting Opinion as confidential information.

8.Section 7, Article III, 1987 Constitution.

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

SERENO, J., concurring and dissenting:

1.G.R. No. 199034 (Gloria Macapagal-Arroyo v. Hon. Leila M. De Lima, in her capacity as Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration) and G.R. No. 199046 (Jose·Miguel T. Arroyo vs. Hon. Leila M. De Lima, in her capacity as Secretary, Department of Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of Immigration).

2.783 F.2d 1488 (20 February 1986).

3.Kevin C. Milne, THE DOCTRINE OF JUDICIAL PRIVILEGE: THE HISTORICAL AND CONSTITUTIONAL BASIS SUPPORTING A PRIVILEGE FOR THE FEDERAL JUDICIARY, 44 Wash & Lee L. Rev. 213 (1987).

4."The accounts of delegates who participated in the Constitutional Convention of 1787 reveal that the doctrine of judicial privilege 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)

5.Milne cited Trevett v. Weeden, (R. Pound, The Spirit of the Common Law 61-62 [1921]) where the Rhode Island General Assembly summoned judges to appear before the Assembly to explain the judges' basis for holding that the statute abrogating the right to jury trial was in violation of the State Constitution. (Milne, id., pp. 216-217)

6.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.

9.408 U.S. 606 (1972).

10.418 U.S. 683 (1974).

11.Id. at 224-229.

12.Id. at 234-235.

13."Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives." (CONSTITUTION,Art. XI, Sec. 1)

14.Significantly, the constitutional provisions dealing with impeachment process are found in the article dealing with the accountability of public officers. (CONSTITUTION,Art. XI, Secs. 2 and 3)

15.CONSTITUTION,Art. XI, Sec. 2.

16.The disqualification of testimonial evidence based on privileged communications include the following: marital communications privilege, attorney-client, doctor-patient and priest-penitent. (Rules of Court, Rule 130, Sec. 24)

17."The most influential rationale for the law of privilege is the utilitarian justification advocated by Dean 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])

18.US Attorney-General William Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A. J.941 (1958), http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/abaj44&div=245&id=&page= (Last accessed on 15 February 2012).

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

20."That executive privilege cannot be invoked to conceal a crime is well-settled. All Justices of this Court agree on that basic postulate. The privilege covers only the 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).

21."Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this." (Neri v. Senate Committee on Accountability of Public 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].

24.TJ Burgonio, Senate: No Subpoena for 4 Supreme Court Justices, 09 February 2012, http://newsinfo.inquirer.net/142241/senate-no-subpoena-for-4-supreme-court-justices (Last accessed 15 February 2012).

25."The principle of comity or inter-departmental courtesy demands that the highest officials of each department be exempt from compulsory processes of the other departments." (Per Curiam Resolution dated February 2012, p. 24)

26.CONSTITUTION,Art. III, Sec. 7.

27.SC Administrative Circular No. 2-02 effective 25 January 2002.

28.Per Curiam Resolution dated 14 February 2012, p. 11, footnote 9.

29."The 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." (Internal Rules of the Supreme Court [IRSC], Rule 11, Sec. 5)

30."The Clerk of Court and the Division Clerks of Court shall ensure that all pleadings, communications, documents, and other papers duly 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.

36."Every initiatory pleading already identified by a G.R. or a UDK number shall be raffled among the 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)

37."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." (IRSC, Rule 7, Sec. 3)

38."Divulging valuable information of a confidential character, acquired by his office or by him on account 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, pp. 18-19, footnote 29.

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

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)

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

43."The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session." (CONSTITUTION,Art. VI, Sec. 22; Neri v. Senate Committee on Accountability of Public Officers and Investigations,supra.)

44."As a last point and mainly for purposes of stress, the privileges discussed above that apply to justices and judges apply mutatis mutandis to court 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 509 (1949).

46.Id. at 510.

47.Id.

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

49.Aruego supra note 45 at 511.

50.Lani Guinier, Foreword: Demosprudence through Dissent, 122 Harv. L. Rev. 4, 14 (2008)

51.M. Todd Anderson, From Seriatim to Consensus and Back Again: A Theory of Dissent, 2007 Sup. Ct. Rev. 283 (2007)

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

53.The concluding paragraphs of J. Gutierrez's opinion reads as follows:

"I do not know if there was an intent in the recital of the voting of the Justices in Justice Melencio-Herrera's opinion to suggest a liberalization of the rule that all our deliberations must be in strict 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.

56.In Re: Benigno Aquino, Jr., et al., v. Enrile, G.R. No. L-35546, 17 September 1974, 59 SCRA 183; Chavez v. Gonzalez, G.R. No. 168338, 15 February 2008, 545 SCRA 441.

57.Per Curiam Resolution dated 14 February 2012, Annex "A", Nos. 16-19.

58.G.R. No. 178083.

59.G.R. No. 180050.

60.G.R. No. 193459.

61.G.R. Nos. 176951, 177499 and 178056.