by JJ Domingo
What transpired in yesterday’s hearing of the impeachment complaint against Chief Justice Renato Corona highlights the danger of judicial privilege, which the Supreme Court invoked in issuing a gag order on its members and employees last Valentine’s Day.
While not totally striking out Justice Secretary Leila de Lima’s testimony on the alleged irregularities in the Corona-led Supreme Court’s issuance of the controversial temporary restraining order (TRO) involving Rep. Gloria Macapagal-Arroyo’s attempt to leave the country last November, which were revealed by Associate Justice Ma. Lourdes Sereno in her separate opinion; Senate President Juan Ponce Enrile dismissed the Secretary’s comments as hearsay. For this reason, he admonished his colleagues not to regard the Secretary’s testimony regarding Justice Sereno’s revelations, although he allowed the said testimony to remain on record.
The Senate President’s admonition may have represented what I think is the prevailing mood of the senator-judges, which is, well, to disregard hearsay testimonies despite the fact that, as the Senate President acknowledged, hearsays are actually admissible as evidence in impeachment proceedings. The ballistic Senator Miriam Defensor-Santiago, a recently-elected judge of the International Criminal Court, for instance, even went as far as to suggest that Secretary de Lima’s testimony be disregarded entirely. The more sober Senator Panfilo Lacson, on the other hand, suggested that the prosecutors move to subpoena a court stenographer who may have been present in the justice’s deliberations and could therefore verify Justice Sereno’s disclosures.
But, as congressman-prosecutor Raul Daza correctly pointed out, court employees are actually covered by the Supreme Court’s Valentine’s Day gag order. There is no way, therefore, for the Senate to determine the Chief Justice’s guilt regarding Article Seven of the Impeachment Complaint, which alleges that the Chief Justice betrayed public trust by being partial to Arroyo in granting the TRO and by distorting the Supreme Court’s decision “on the effectivity of the TRO in view of a clear failure to comply with the conditions of the SC’s own TRO.
This is the latest hurdle, laid down by the Supreme Court itself, against the Senate Impeachment Court. Perhaps most observers would agree that the Supreme Court’s gag order was more political than judicial: It was meant to insulate itself from legitimate congressional inquiries in general and impeachments in particular. Indeed, its use of the doctrine of judicial privilege appears to have been drawn straight out of Arroyo’s playbook.
Judicial privilege protects the Judiciary from interference by the other two branches of government in its execution of its duties. This protects internal court deliberations as privileged communication, and therefore not subject to scrutiny, since confidentiality in decision-making preserves the “integrity of the administration of justice.” The idea, in my understanding, is to protect judges from legal liability on what they say or write when deciding a case, thereby encouraging uninhibited discourse and exchange of ideas among the judges. This is similar to executive privilege, which protects state secrets and encourages open and frank discussions among the President and his agents when they formulate policy. Arroyo cleverly invoked executive privilege in order to dodge congressional inquiries regarding the corruption scandals that plagued her presidency.
But judicial and executive privileges are not codified in the Constitution or in any other laws. They are merely jurisprudential that are just assumed to be part of the residual powers of the said two branches. Therefore, as Justice Sereno stated in her dissenting opinion against the Valentine’s Day resolution, judicial privilege, while needed by the Judiciary to function well, should weigh less compared to the value of accountability of public officials, which is enshrined in the Constitution. Judicial privilege, according to Justice Sereno, is “a qualified, not an absolute, privilege.”
“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 [sic] on matters of public concern,’ by draping a complete cloak on the Court’s records,” writes Justice Sereno.
Indeed, if the current Supreme Court’s strict interpretation of judicial privilege is to be followed, then there’s no way for the Congress to impeach a member of the Judiciary on the basis of behaviors during deliberations of a pending case that constitute betrayal of public trust. In short, the Legislative’s impeachment power is enfeebled. This, in effect, distorts genuine checks and balance system among the three branches of government.
As an institution known for its history of asserting its independence, I’m sure the Senate would not want its impeachment powers, its genuine constitutional check against the other branches of government, to be rendered inutile. What, then, should be its recourse? Coming from a purely political, as opposed to legal, perspective, I think there are three:
Firstly, the Senate can consider Secretary de Lima’s hearsay testimony. Sure, doing so may probably be anathema from the perspective of legal due process; but the senator-judges must think beyond their Lawyer’s Umwelt. The sui generis Impeachment Court is not just a judicial body but a policy-making body as well. Its function is not only to determine the guilt or innocence of the impeached, but also to determine whether his continued stay in office is beneficial for the country or not. Doing the latter, like any other policy-making action, is more political than judicial; therefore, it should not be boxed by technical legalese. After all, considering a hearsay testimony is not really against impeachment due process.
Secondly, the Senate can reverse its earlier ruling not to serve subpoena on members of the Supreme Court. As I understand it, the said ruling was given by the Senate on its own volition in order to respect a co-equal branch. But based on the Supreme Court temporary restraining order (TRO) against the Senate’s subpoena on the Chief Justices dollar accounts and the Valentine’s Day gag order, it seems that the Supreme Court is not inclined to return the courtesy. Of course, this option could provoke a constitutional crisis, since the gag order would prevent the justices from honoring the Senate subpoena, which in turn could force the Senate to cite the justices in contempt. But the Supreme Court is bound to lose in the event of such a crisis.
Thirdly, the Senate can send written interrogatory questions to Justice Sereno, and consider her answers as evidence. Senator Antonio Trillanes IV has already moved for the Senate to do this, and the senator-judges will take his motion up in a caucus on Monday. If Senator Trillanes’s motion is carried, the Senate would be able to take up the issues in Article Seven without relying on hearsay testimony, and without reversing its earlier ruling not to compel Supreme Court members to testify. Still, however, this may clash with the Supreme Court’s gag order and could also again pit the Senate against the High Court.
I cannot say if these three options are legally sound. Moreover, these could be very difficult for the Senate to undertake. But politically-speaking, the Senate as an institution– and all the country’s political institution, including the Supreme Court in general–has more to lose if it doesn’t do any of this.
The strict interpretation of judicial privilege is another symptom of judicial supremacism that has characterized Philippine politics since the enshrinement by the framers of the 1987 Constitution of an encompassing judicial review power and the subsequent judicialization of political issues which the public, cynical of politicians and in awe of men in robes, has long encouraged.
Thanks to Arroyo’s corruption of the Supreme Court, it has become clear that this judicial supremacism is a glaring political illness, from which the Philippines–if it wants to complete its transition to a modern, viable democracy– must begin curing itself from. Unfortunately, doing so is not only difficult; it could be very costly as well.
Photo from the Philippine Senate website. Some rights reserved.