Deliberative Process Privilege in Corona's Impeachment

JURIST Columnist Edsel Tupaz of Tupaz & Associates, and Guest Columnist Ira Paulo Pozon of the Office of the Vice President of the Philippines, argue that the deliberative process privilege has been misapplied by Philippine courts to encompass officials beyond the executive branch and should not be applied in the ongoing impeachment trial of Chief Justice Renato Corona...
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The impeachment trial of Philippine Chief Justice Renato Corona continues to push the boundaries of Philippine constitutional thought, bringing with it a whole array of comparative analysis and tension between Philippine constitutional doctrine and US federal constitutional practices.

The prosecution contemplated the issuance of a subpoena to Associate Justice Lourdes Sereno, an appointee of President Benigno Aquino III, to take the witness stand to testify on alleged distortions and judicial misconduct surrounding the issuance of the temporary restraining order (TRO) which would have effectively allowed former president Gloria Macapagal-Arroyo to seek medical treatment abroad.

Having sufficient foresight, the Supreme Court recognized the possibility of having judges, justices and other court employees testifying in the impeachment. The Court then issued the purported "Valentine Resolution" [PDF] effectively barring judges, justices, court officials and employees from testifying in the impeachment court on "deliberative matters." This bar on testimony impliedly brought about the deliberative process privilege as a means of restricting and withholding information that formed the process of judicial decisions.

The deliberative process privilege is mainly a US doctrine. Throughout the history of Philippine jurisprudence, it has appeared only once, in AKBAYAN v. Aquino.

In AKBAYAN, numerous groups sued various individuals in their official capacities in order to obtain the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers and counter proposals submitted by each side during the negotiation process. The JPEPA was thought to be a pioneering bilateral free trade agreement entered into by the Philippines with another country.

In its ruling, the Supreme Court junked the petition, stating that the information sought to be released was covered under a number of privileges, including the deliberative process privilege. However, the Court presented the deliberative process privilege strikingly in academic fashion, and in most of the discussion it likened the privilege to the diplomatic negotiations privilege.

There is no doubt that Philippine courts do recognize that the deliberative process privilege is rooted from US case law, state and federal alike. This fact was recognized by former chief justice Reynato Puno in his dissenting opinion in AKBAYAN where he stated, "In our jurisdiction, the Court has had no occasion to recognize and rule on the applicability of the deliberative process privilege. In the recent case Neri v. Senate Committees, the Court recognized the claim of the presidential communications privilege, which is closely associated with the deliberative process privilege."

The privilege, as defined in the US Court of Appeals for the District of Columbia decision In re Sealed Case, justifies the government's withholding of documents and other information that would disclose "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."

The same case held that the scope of the privilege is limited only to the executive. Here the Court stated, "Both [the presidential communications privilege and the deliberative process privilege] are executive privileges designed to protect executive branch decision-making." US case law is clear in that the deliberative process privilege applies mainly to decision and policy making in the executive branch.

In Kaiser Aluminum Chemical Corporation v. United States, Kaiser sought to acquire documents from the General Services Administration due to an action for breach of the most favored purchaser clause in a contract for the sale of war aluminum plants to Kaiser. The Court of Claims held that the production of advisory opinion on intra-office policy in relation to the sale of aluminum plants to him and to another entity was contrary to public interest; thus, the US must be allowed to claim the executive privilege of nondisclosure. The court was emphatic in that a disclosure of the contents of documents of this nature would tend to discourage the staffs of government agencies preparing such papers from giving complete and candid advice and would thereby impede effective administration of the functions of such agencies.

Other US cases discuss the very purposes of the privilege, such as to protect candid discussions within an agency as in NLRB v. Sears, Roebuck & Co.; to prevent public confusion from premature disclosure of agency opinions before the agency has established a final policy as in Tax Analysts v. IRS; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action, when these were not in fact the ultimate reasons for the agency's action, as in Coastal States Gas Corporation v. Department of Energy. In particular, the DC Circuit in Coastal States Gas held that "[t]he material must be pre-decisional and deliberative. To be pre-decisional, a document must be generated before the adoption of an agency policy. To be deliberative, it must reflect the give-and-take of the consultative process." In Northrop Corporation v. McDonnel Douglas Corporation, it was held that in applying the deliberative process privilege

There must also be a formal assertion of the privilege by the head of the department in control of the information based on his actual personal consideration of the matter and an explanation as to why the information sought falls within the scope of the privilege. Once again, in the In Re Sealed Case it was stated that "[o]nce the agency has shown that the material is both pre-decisional and deliberative, the material enjoys a qualified privilege that may be overcome by a sufficient showing of need.
Given all these, it is clear that the deliberative process privilege is a privilege that is for the executive and only for the executive to claim. From the very purpose of the privilege to its application, jurisprudence is clear that this privilege, and for that matter, the presidential communications privilege, cannot apply to the impeachment of the Philippine Chief Justice. Even if it can somehow be made to apply, still the privilege, now framed as a "judicial privilege," is not without exceptions, judicial misconduct among them. The Philippine Supreme Court's Valentine Resolution, speaking through the majority, may thus have misapplied all prior precedent. While it remains to be seen how far or to how great an extent the majority of the Court will keep pushing the doctrine into one that could be claimed by judges and court personnel, from a chief justice down to a court security guard and process server, it is clear to us, even as the main case over the TRO is still pending, that the majority opinion is in a continuing state of error.

Edsel Tupaz is currently a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.

Ira Paulo Pozon is Head of the Vice Presidential Special Concerns Unit of the Vice President of the Philippines. He also serves as Legal Counsel and International Relations Officer to the Vice President. He is a graduate of De La Salle University and Far Eastern University. His interests lie in foreign policy, international relations, and comparative public law. He currently teaches at the College of Law of the University of the City of Manila.

Suggested citation: Edsel Tupaz & Ira Paulo Pozon, Deliberative Process Privilege in Corona's Impeachment, JURIST - Sidebar, Feb. 29, 2012, http://jurist.org/sidebar/2012/02/tupaz-pozon-privilege.php.



This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at professionalcommentary@jurist.org

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