Deliberative process privilege

The second is deliberative process privilege, which holds as confidential what a government decision
maker thinks while a case is pending. It also protects from disclosure documents reflecting
communications, advisory opinions, recommendations and deliberations that are part of a process by
which government decisions and policies are formulated. The privilege is meant to enhance the quality
of decisions, by protecting from inquiry open and frank discussion among those who make them within
the government.

In Philippine jurisprudence, the deliberative process privilege has been recognized to be applicable, with
qualifications, to the executive branch of government, as seen in the cases of Akbayan v. Aquino (G.R.
No. 170516, July 16, 2008) and Neri v. Senate Committee (G.R. No. 180643, March 25, 2007).

Separation of powers

There is no known Supreme Court decision applying the deliberative process privilege to the judiciary,
but perhaps the Senate impeachment court already did so by striking down the subpoena against SC
justices.

In denying the request for subpoena, the Senate cited Section 2, Rule 10 of the Internal Rules of the
Supreme Court, which proclaims that the sessions of the court are executive in character with only the
members of the court in attendance. The same rule also expressly provides that the deliberations during
the court’s sessions are confidential.

According to the Senate, “to issue subpoena in order to require the members of the Supreme Court to
testify on their deliberations which are confidential according to its rule is to make this court omniscient
over a co-equal department which will run afoul of the tripartite system of government and will dilute
the well-entrenched constitutional principle of separation of powers.”

Moving forward

We note that the Senate relied solely on the principle of separation of powers to justify its decision. This
is perhaps because there is no rule of evidence specifically governing the matter.

The absence of a specific rule may likely present problems in the future. For example, the Revised Penal
Code makes judges criminally liable for rendering unjust judgments, or for issuing unjust interlocutory
orders. Civil and administrative cases may also be filed against judges. Can the judges invoke the
deliberative process privilege to protect them from being questioned in a court of law before which the
cases will be filed? Certainly, the Senate decision on the matter, which is based on the principle of
separation of powers, cannot be cited as a precedent in a court of law. At the very least, this will be a
contentious matter in the absence of a specific rule giving them the privilege. Indeed, it would send a
chilling effect should a judge or justice be allowed to be questioned on his mental process that led to his
decision.