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Congress ofthe Philippines ,-.
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Senate '''',,\ ' : 'I .-: I;;' t (, 1
ARLENE J. BAG-AO (other complainants
comprising at least one third (1/3) of
the total Members of the House or
Representatives as are indicated
'12 FEG -8 All :23
Case No. 002-2011
PROSECUTORS, respectfully submits the instant Legal Memorandum to the
Senate Impeachment Tribunal:
The approval of the request of the Impeachment Complainant House of
Representatives of the Honorable Impeachment Court to issue subpoena duces
tecum on Supreme Court records including certain specific minutes of its
deliberations and subpoena ad testificandum on certain Associate Justices is very
crucial to the proper "prosecution" and management of the articles of
impeachment such as Article 7 and Article 3 by the House Prosecutors, and as
importantly, the just, precise, and fitting resolution by the Impeachment Court of
this accountability trial. Denial of the Prosecutor's right to access the necessary
evidence to prove its case is seriously disadvantageous to its capacity to manage
and "prosecute" the impeachment complaint. Prohibiting access to these
evidence only makes it difficult, if not impossible, to try and impeach a Justice of
the Supreme Court on the ground of partiality or bias in rendering a decision. The
Senators-Judges and the Prosecutors will be greatly, if not decisively hampered in
prosecuting or pursuing Article VII, for example, on the grant of a temporary
restraining order on the Watch list Order of the Justice Department against
former President Gloria Macapagal Arroyo considering the necessity of
testimonial and documentary evidence' to prove partiality or bias of the
respondent in the said case and partiality as proven by his efforts to distort the
Supreme Court decision on the effectivity of the TRO.
The Prosecutors maintain that the principles of separation of powers or
even claims to confidentiality of court records
cannot diminish or curtail the
constitutional mandate of an Impeachment Court as the sole authority to try
impeachment cases. Even if, arguendo, the Impeachment Court were to decide
that heads of the three branches of government may not be summoned by the
Impeachment Court, it does not allow for the blanket denial of the Court's power
to subpoena members of the said branches, which in this case, are Associate
Justices of the Supreme Court.
In fact, the Impeachment Court has already issued subpoena on officials of
the executive branch including the BIR Commissioner and the registrars of deeds
of local government units. The Impeachment Rules also grants the Court the
power to subpoena even members of Congress including Senators to testify in
the trial. In fact, the Impeachment Court has already subpoenaed the Clerk of
Court and ordered her to produce certain records considered by the Supreme
Court as inaccessible to any person or body without the Court's permission.
Suddenly changing tact and exempting the Supreme Court from this Honorable
1 Respondent's counsel publicly announced their intention to file an opposition to the Prosecution's
subpoena of certain records and justices of the Supreme Court for violation of the doctrine of separation
of powers and confidentiality. The Prosecution has yet to receive such opposition.
Court's subpoena powers does not make the Supreme Court a co-equal body of
the Impeachment Court but a superior body which essentially subjects the
Impeachment Court to its jurisdiction.
There is no basis to the fear that the subpoena in issue will affect the
separation of powers doctrine-no power of the Supreme Court will be
diminished and the Impeachment Court will not alter or reverse standing
decisions of the Supreme Court.
While the Senate may be deemed a co-equal branch of the Judiciary, the
Senate sitting as an Impeachment Court cannot be considered a co-equal
branch of the judiciary and therefore cannot be deemed to violate the
principles of separation of powers when it issues subpoena duces tecum and ad
testificandum on other branches of government. This is because, in its sphere,
the Impeachment Court is supreme and a class of its own; in its domain the
Impeachment Court is the master. The Impeachment Court has a mandate to
perform, and that is, to determine the accountability of public officers and their
fitness to remain in office. Exempting public officers from being tried
exhaustively on otherwise relevant evidence because of privilege will not
promote and in fact will disintegrate the power of the Impeachment Court as
such. Separation of powers, including checks and balances, should not be
counterposed to the principles of accountability. The Congress, not any other
branch of government, is assigned the heavy task of impeaching and trying all
impeachable officials under the Constitution. Sitting as an Impeachment Court,
the Senate is not functioning as a legislative body and its issuance of subpoena
cannot be equated with its normal exercise of ordinary functions and duties.
The impeachment proceedings are mainly an issue of accountability rather
than an issue of separation of powers. This is precisely the reason why the
impeachment provision in the 1987 Constitution was not placed under Article V
on the Executive, Article VI on the Legislature and Article VII on the Judiciary but
rather it was placed under Article XI on Accountability of Public Officials. While
members of Congress, and other ordinary mortals for example may be charged
for crimes and other offenses in ordinary courts, the Chief Justice is immune from
suit for any alleged transgression of our laws and his oath of office. The only
accountability mechanism left is impeachment and such accountability
mechanism cannot be impaired by clipping the Impeachment Court's power to
subpoena the necessary evidence to try an impeached public official.
As to generalized claims to confidentiality, such claim cannot also be allowed
to impair the Impeachment Court's power to subpoena Supreme Court
deliberations. The supposed possible restriction of frank and open discussion
among justices in deliberating a case as a result of disclosure, even if true, cannot
defeat the constitutional power of the Impeachment Court to ferret out the truth
and objectively decide an impeachment case. In fact, there is no genuine nexus
between disclosure and frank discussion considering that members of Congress
have given their frank opinions on bills, committee reports and congressional
investigations despite the public nature of their proceedings. If disclosure will
make weaklings of our Supreme Court justices, such is not the fault of the
demand for disclosure but rather the fault of the justices who are required to
express their views whether their deliberations are public or not. It cannot be
argued that Justices may self-regulate honest expression of opinions out of
supposed fear that a possible future impeachment proceedings may possibly
subpoena minutes of their deliberation.
Additionally: The rule of confidentiality in relation to the co-equal status of
the Branches of Government is not and has never been absolute, and was not
instituted solely for the sake of promulgating such a rule. This is a rule which is
supposedly premised to allow for alleged frank and unfettered exchange of
opinions. But even if true, this purpose does not include discussions of fraudulent
transactions or discussions that subvert the essence of jUstice, impartiality and
independence. Certainly, where the exchange of opinions delve on the unethical,
illegal or criminal, the rule of confidentiality and co-equality will not shield it from
examination and accountability. This is the raison d'etre for the institution of the
Impeachment Court; this is the whole rationale for making magistrates
accountable to the people. Public officers cannot hide under the cloak of secrecy
to further their misdeeds.
Generalized claims to confidentiality, even if based on "internal rules" of the
Supreme Court, cannot trump the power of the Impeachment Court to issue
subpoena as said power is based, not on an "internal rule", but on the
The defense in fact has included in their list of witnesses to be subpoenaed
a number of Associate Justices of the Supreme Court as well as their records
(Defense Compliance dated 30 January 2012). This means that even
respondent himself does not believe that the exercise of subpoena powers bv
this Honorable Court violates the separation of powers doctrine or claims to
In fact, the Chief Justice or any respondent for that matter, must not be
denied his right to access any evidence that he deems necessary for his defense
for to do so violates his constitutional right "to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf". No one can deny respondent that right on
the ground of separation of powers or confidentiality as this would certainly deny
him his due process rights to put up a reasonable defense to prove his innocence.
The mandate of the Impeachment Court to ferret the truth in an
impeachment trial is of supreme public interest. Whatever public interest that
may be supposedly hurt, if ever, by disc/osing court deliberations cannot trump
the public interest served by an impeachment trial which allows both parties the
necessary means to present their case.
It would be impossible for the Impeachment Court to objectively decide
either to convict or acquit respondent Chief Justice on the basis of incomplete
and disjointed evidence resulting from the failure to subpoena important
testimonies and records that would provide the Impeachment Court sufficient
basis to render a decision. Clipping the Impeachment Court's subpoena power
clearly impairs its function as such.
In the case of Senate vs. Ermita
, respondent Chief Justice voted in favor of
Executive Order 464 which was intended to withhold information from and derail
the Congressional investigation on, among others, the "Hello Garci" issue. The
Prosecution prays of this Impeachment Court not to allow Respondent to restrict
access by the Impeachment Court of the necessary information and evidence
needed in the search for truth, on the basis of generalized claim to confidentiality
and separation of powers.
I. Exercise of the subpoena power of the Impeachment Court does not
violate the doctrine of separation of powers
When a Chief Justice is impeached by the House of Representatives, the Senate
sits as an Impeachment Court pursuant to its exclusive Constitutional mandate
under Sec. 3, Art XI of the Constitution to hear and decide the impeachment case:
"(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the Senators
shall be on oath or affirmation. When the President of the
Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate."
(Emphasis supplied).
Hence, when the Senate acts as an Impeachment Court, it is not acting as a co-
equal branch of the Supreme Court bound to accord the Supreme Court absolute
deference; instead, it is performing a Constitutional check upon the Supreme
'GR 169777, April 20, 2006
Court. Impeachment, after all, is the only accountability mechanism under the
Constitution on impeachable officials immune from prosecution, and therefore,
accountability. The reason for this basic check and balance is to prevent the
abuse of the security of tenure granted by the Constitution to public officers who
are required to be independent by nature of their office such as Supreme Court
More importantly, our Constitution does not merely treat impeachment as a
method of checks and balances by one power over another, but as an instrument
of enforcing or securing public accountability. As noted by Justice Adolf Azcuna in
his concurring opinion in Ernesto B. Francisco, Jr. vs. House of Representatives
our Constitution does not only consider impeachment as a check upon the
Supreme Court but as an instrument of enforcing or securing public
accountability. Thus, our Constitution places the provision on impeachment, not
in Articles VI, VII and VIII on governmental powers, but in Article XI on
Accountability of Public Officers. This placement is clearly intentional and meant
to signal the importance of the accountability of public officers and the
importance of impeachment in exacting accountability.
In order for the Impeachment Court, to fulfill its Constitutional mandate as part
of the Constitutional accountability mechanism and to hold the Supreme Court
justices accountable to the people, it must insist upon its power to subpoena
documents and witnesses even from the Supreme Court. For any court that does
not insist upon its subpoena power only renders itself inutile. Section 1, Rule 21
of the Rules of Court provides that a subpoena is a process directed to a person
requiring him to attend and to testify at the hearing or the trial of an action.
Without this compulsory process, no witness can be compelled to attend nor can
records be produced. Without a subpoena, the prosecution is denied the
opportunity to prove the articles of impeachment while the defense can hide
witnesses and documents that prove wrongdoing thereby evading accountability
and justice.
, G.R. No. 160261, November 10, 2003
It should be noted that the Rules of Procedure on Impeachment Trials
promulgated by the Senate of the Fifteenth (15th) Congress expressly confers
upon the Senate the power to issue subpoenas ad testificandum and duces tecum
to compel the attendance of witnesses and the production of relevant
documents. Par. V of the Rules provides:
"V. The Senate shall have to compel the attendance of
witnesses, to enforce obedience to its orders, mandates, writs, and
judgments, to preserve order, and to punish in a summary way
contempts of, and disobedience to, its authority, orders, mandates,
writs, or judgments, and to make all lawful orders, rules, and
regulations which it may deem essential or conducive to the ends of
justice. And the Sergeant- at- Arms of the Senate, under the
direction of the President of the Senate, may employ such aid and
assistance as may be necessary to enforce, execute and carry into
effect the lawful orders, mandates, and writs of the Senate."
In U.S. v. Nixon, for instance, the United States Supreme Court brushed aside and
in the end totally rejected the claim of Presidential co-equality to prevent the
prosecutors and the grand jury from perusing and deliberating on presidential
communications, now known as the Water-Gate scandal, precisely because truth
and accountability must prevail, and considerations of frankness and openness in
any decision-making process are absolutely irrelevant when the decision-making
process is itself the means to commit an injustice, a wrongdoing or a crime. There
are no sacrosanct walls when public officers breach their oaths of office.
The Impeachment Court's own Rules on Impeachment does not limit its power to
issue subpoena. Certainly, there is no prohibition to subpoena records of the
Supreme Court. This is rightly so because the Constitution grants to the Senate
plenary power to hear and decide the impeachment case when it gave it sole
authority to conduct the impeachment trial. The plenary power of the Senate
over the impeachment trial means that it has absolute control over the
proceedings and its power cannot be unduly limited.
If the Senate, sitting as an Impeachment Court, has previously subpoenaed the
Statement of Assets and Liabilities and Net Worth (SALN) of Chief Justice Corona,
which the Supreme Court had in fact unilaterally declared as confidential despite
the clear mandate of the Constitution requiring them to disclose the same, why
should we allow the limitation of such previously exercised subpoena power?
Why adopt a different rule now at this crucial juncture?
Due to the nature of the charges against the Chief Justice, there is a specific need
for evidence in the impeachment trial, i.e. identified SC records that are relevant
to the issues subject of the impeachment to prove the wrongdoing of the Chief
Justice. How can the prosecution, for example, prove that the Chief Justice was
partial and biased when he engineered the issuance of the Temporary
Restraining Order (TRO) to give former Pres. Gloria Macapagal-Arroyo (GMA) the
chance to escape criminal prosecution and accountability, if the records that
prove the same are in the possession of the Supreme Court and cannot be
accessed by the prosecution and the Impeachment Court? For example, while
the SC on November 18, 2011 voted 7-6 that Gloria Macapagal-Arroyo failed to
comply with an essential condition for the issuance of the TRO against the
Department of Justice (DOJ) watch list order thereby rendering said TRO not
effective, the Chief Justice ordered the promulgation of a Resolution that was
contrary to that Decision. He in fact ordered that a Resolution be released
claiming that the Supreme Court found that there was sufficient compliance by
Gloria Macapagal-Arroyo of the conditions of the TRO and that the same was
Clipping the Impeachment Court's power to issue a subpoena will be a violation
of, not only its own Rules but also its Constitutional mandate to act as an
Impeachment Court and essentially render it subject to the jurisdiction of the
Supreme Court.
Even if we presume that the Impeachment Court is a "co-equal" branch
of the Supreme Court, subpoena of SC justices and records cannot be
disallowed for violating the separation of powers doctrine,
The 1987 Constitution separates governmental power among the
legislative, executive and judicial branches to avert tyranny by "safeguard(ding)
against the encroachment or aggrandizement of one branch at the expense of
the other." However, the principle of separation of powers recognized that a
"hermetic sealing off of the three branches of Government from one another
would preclude the establishment of a Nation capable of governing itself
effectively"; hence, the separation of powers between the branches is not
Our Constitution contemplates that practice will integrate the dispersed
powers into a workable government. It enjoins upon its branches separateness
but interdependence, and autonomy but reciprOCity. Well said, the boundaries
established by the Constitution delineating the powers of the three branches
must be fashioned "according to common sense and the, , . necessities of
governmental co-ordination," This constitutional design requires an internal
balancing mechanism by which government powers cannot be abused.
In the case of Senate vs. Ermita
which questioned the constitutionality of
EO 464, the Supreme Court upheld the doctrine of executive privilege but found
the Presidential issuance partly infirm, specifically Sections 2 (b) and 3 which
required government officials below the heads of executive departments to
secure consent from the President before appearing in congressional hearings
and investigations. The Court acknowledged that Congress has the right to
obtain information from the executive branch whenever it is sought in aid of
legislation. Thus, if the executive branch withholds such information because it is
privileged, it must so assert it and state the reason therefor and why it must be
4 GR 169777, April 20, 2006
II. The general claim to confidentiality cannot trump the power of this
Honorable Court to subpoena court records and Justices of the
Supreme Court.
The claim that frank exchange of ideas among justices will be constricted
or restrained out of fear that their deliberations will possibly be subpoenaed by
an Impeachment Court, should one be constituted in the future, is without basis.
The Senators and Congressmen publicly deliberate their opinion and vote on a
congressional investigation, a bill or a committee report, and they cannot be said
to have restricted their frank opinions on a matter. The fact that this
impeachment trial is public does not in any way mean that the senators will be
restrained in expressing their views and their votes.
The need to find the truth in these impeachment proceedings is of public
interest, on the other hand, there is no clear and convincing public interest that
may be claimed by refusing to disclose evidence that may be presented in the
Impeachment Court.
In any case, the issue has been rendered moot because the justices of the
Supreme Court, both those who have voted for or against the TRO on the watch
list order for example have already publicly discussed their decisions,
deliberations and the basis of their votes.
Further, the defense has listed in its Compliance the list of witnesses they
will summon which included Justice Arturo Brion, Justice Roberto Abad and
Justice Presbitero Velasco as well as court records. This means that the
Respondent also believes that this Impeachment Court has the power to
subpoena witnesses and records.
In fact, if the Respondent Chief Justice were to require court records and
testimonies of justices to prove his innocence, the prosecution will not interject
objections precisely because his due process rights allows him to use the
necessary tools to defend himself and we should never deprive him of that
The claim to generalized confidentiality will fail the function impairment test,
which means that ability of the investigating body will be seriously affected by
unfounded claims to confidentiality. This Honorable Court will find it difficult to
explain its decision, whether to acquit or to convict Respondent Corona, if only
half of the evidence was allowed to be presented before it.
III. Confidentiality cannot override the right of the Impeachment Court
and the people to information and the truth
A. The right of the people to information on matters of public
concern under Sec. 7, Art. III, Constitution, is self-executory and is not subject to
limitations except those provided by law. This reading of Sec. 7 is based on:
(a) the text of the provision, which states: "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."
(b) the text of a related provision, i.e., Art. II, Sec. 28, Constitution, "Subject
to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest."
There is no statute that exempts deliberations of the Supreme Court
from public scrutiny.
Hence, in Guingona et al. v. Commission on Elections
, the Supreme Court
itself declared: "It is not enough, however, that the information petitioners seek
in a writ of mandamus is a matter of public concern. For mandamus to lie in a
given case, the information must not be among the species exempted by law
from the operation of the constitutional guarantee. In this case, respondent
Comelec failed to cite any provision of law exempting the information sought
by petitioners from the coverage of the government's constitutional duty to
disclose fully information of public concern." Internal rules on confidentiality
cannot defeat the power of an Impeachment Court.
And in Province of Cotabato v. GRP Peace Panel on Ancestral Domains
: "In
the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people
in democratic decision-making by giving them a better perspective of the vital
issues confronting the nation so that they may be able to criticize and participate
in the affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of ideas among
a well-informed public that a government remains responsive to the changes
desired by the people."
The intent of the constitutional right to information, as pOinted out by
Constitutional Commissioner Wilfrido V. Villacorta, is "to adequately inform the
public so that nothing vital in state affairs is kept from them.,,7
It would be inconsistent for us to elevate the Supreme Court to a
pedestal different from the platforms on which accountable government
agencies have been asked to divulge information of public concern.
In U.S. v. Nixon, the U.S. Supreme Court emphasized that its ruling
addressed "only the conflict between the President's assertion of a generalized
G.R. No. 191846, May 6, 2010
6 G.R. No. 183591, October 14, 2008
7 Akbayan et al. v. Aquino et aI., G.R. No. 170516, July 16, 200S.
privilege of confidentiality and the constitutional need for relevant evidence in
criminal trials" and that the case was not concerned with the balance "between
the President's generalized interest in confidentiality . . . and congressional
demands for information."
Thus, while the Nixon Court recognized the Presidential communications
privilege based on the independence of the executive branch, it also considered
the effect of the privilege on the effective discharge of the functions of the
B. There is nothing sacrosanct about the Supreme Court
deliberations of cases. Simply refer to the text of the opinions in People v. et
, where they liberally quoted letters and relevant portions of their
deliberations. And nothing happened. The Supreme Court did not crumble. If at
all, the references to the otherwise "confidential" deliberations strengthened
the Supreme Court. In fact, one of the Justices in the Caruncho Jr. case said
there is nothing so earth-shaking about opening the deliberations of the
Supreme Court to public scrutiny:
"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
G.R. No. L-57804, January 23, 1984,
C. The confidentiality/privilege argument is contrary to the right to
know the truth. The existence of this right is beyond cavil. The Chief Justice
himself said in his Separate Opinion in Biraogo v. The Philippine Truth
Commission of 2010, G.R. No. 192935, December 7, 2010:
The fundamental base upon which a truth commission
is created is the right to the truth. While the right to the truth
is yet to be established as a right under customary law or as a
general principle of international law, it has nevertheless
emerged as a "legal concept at the national, regional and
international levels, and relates to the obligation of the state
to provide information to victims or to their families or even
society as a whole about the circumstances surrounding
serious violations of human rights." (emphasis added)
D. Publicizing the proceedings of the Supreme Court in the very
limited context of this trial before this Impeachment Court will not hurt
whatever al/eged public interest there may be in keeping absolutely secret the
deliberations of the Supreme Court. That the publication of such deliberations
would make weaklings of the Supreme Court, would preclude them from
deciding independently and impartially, perhaps fairly and justly, and would
render their decisions subject to popular pressure, renders so obvious that
confidentiality or secrecy as means towards this public interest is in fact the very
reason that subverts the public interest that it seeks to accomplish. How could an
all boys' club discussion bring independence and impartiality when the very
secluded nature of such discussion leads to partiality, dependence and
patronage, if not corruption, because kept from the prying eyes of the public, and
indeed, this Impeachment Court?
If we render inutile the powers of the Impeachment Court or allow the
Respondent to hinder the subpoena of the necessary evidence for the
prosecution on the ground that it violates the separation of powers and the rule
on confidentiality, then, it will be very difficult if not impossible for the people to
convict a sitting justice for partiality and bias in favor of a party litigant. This
absurd result could not have been intended by the Constitution.
Impunity is when one commits crime and gets away with it. It has reigned
during the time of Pres. Gloria Arroyo through various tools that aims to preempt
serious investigations and avoid accountability.
We humbly ask this Honorable Court not to allow impunity disguised as
generalized claims to confidentiality to prevail over this impeachment
WHEREFORE, Complainant House of Representatives through its
prosecutors, respectfully pray that this Honorable Impeachment Court allow the
subpoena of certain justices of the Supreme Court and its records, including
relevant minutes of Supreme Court deliberations requested by the Prosecutors
and immediately grant the subpoena duces tecum ad testificandum of the same.
Other forms of relief, just and equitable, are likewise prayed for.
Respectfully submitted.
Pasay City, February 8, 2012.
Republic of the Philippines
Copy Furnished (By Personal Service):
Justice Serafin R. Cuevas (Ret.) et al.
Counsel for Respondent Chief Justice Renato Corona
Suite 1902 Security Bank Centre
6776 Ayala Avenue
Makati City, Philippines 1226