Prosecution’s Memorandum Affirming the Power of the Impeachment Court to Issue Subpoena Duces Tecum Et Ad Testificandum on Certain Justices and Records of the Supreme Court
Original Title
Prosecution’s Memorandum Affirming the Power of the Impeachment Court to Issue Subpoena Duces Tecum Et Ad Testificandum on Certain Justices and Records of the Supreme Court
Prosecution’s Memorandum Affirming the Power of the Impeachment Court to Issue Subpoena Duces Tecum Et Ad Testificandum on Certain Justices and Records of the Supreme Court
Prosecution’s Memorandum Affirming the Power of the Impeachment Court to Issue Subpoena Duces Tecum Et Ad Testificandum on Certain Justices and Records of the Supreme Court
: I, " , .c, '.'!' 1: 'i .' Senate '''',,\ ' : 'I .-: I;;' t (, 1 SITIING AS THE IMPEACHMENT of II", IN THE MATTER OF THE IMPEACHMENT OF RENATO C. CORONA AS CHIEF JUSTICE OF THE SUPREME COURT OF THE PHILIPPINES REPRESENTATIVES NIEL C, TUPAS, JR., JOSEPH EMILIO A. ABAYA, LORENZO R. TANADA III, REYNALDO V. UMALI, 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 below.) x-----------------------------------------------------------x MEMORANDUM '12 FEG -8 All :23 Case No. 002-2011 AFFIRMING THE POWER OF THE IMPEACHMENT COURT TO ISSUE SUBPOENA DUCES TECUM ET AD TESTIFICANDUM ON CERTAIN JUSTICES AND RECORDS OF THE SUPREME COURT COMPLAINANT HOUSE OF REPRESENTATIVES, through their PROSECUTORS, respectfully submits the instant Legal Memorandum to the Senate Impeachment Tribunal: PREFATORY 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 2 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 1 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. 3 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 4 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 5 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 Constitution. 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 confidentiality. 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 6 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 2 , 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. ARGUMENTS AND DISCUSSIONS 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 7 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 justices. 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 3 , 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 8 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 9 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 effective. 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. 10 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 absolute. 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 4 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 respected. 4 GR 169777, April 20, 2006 11 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. 12 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 recourse. 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. 13 Hence, in Guingona et al. v. Commission on Elections 5 , 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 6 : "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 5 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. 14 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 judiciary. B. There is nothing sacrosanct about the Supreme Court deliberations of cases. Simply refer to the text of the opinions in People v. et al. 8 , 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 served." 8 G.R. No. L-57804, January 23, 1984, 15 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: OF TRUTH AND TRUTH COMMISSIONS 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? 16 CONCLUSION AND PRAYER 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 proceedings. 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. By: THE HOUSE OF REPRESENTATIVES Republic of the Philippines HOUSE OF REPRESENTATIVES PROSECUTORS 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