Prosecution to invite Sereno

Even if dissenting Associate Justice Ma. Lourdes Sereno volunteers herself as a witness in the impeachment trial of Chief Justice Renato Corona, she would still have to deal with the issue of whether she can testify on matters covered by confidentiality and judicial privilege, and has to get the consent of the Supreme Court.

These are the limitations facing the prosecution in its plan to get Sereno to testify that Corona had been allegedly partial to former President Gloria Macapagal-Arroyo in the Supreme Court decision to grant Arroyo’s petition for a temporary lifting of a travel ban against her last November, defense lawyers said on Friday.

The prosecution panel will ask the impeachment court next week to issue an “invitation” to Sereno to appear at the Senate on Wednesday, Feb. 29.

The invitation is being sought as an alternative to the compulsory process of a subpoena, which the high court has ruled out in a Feb. 14 resolution and which the Senate impeachment court itself has rejected out of respect for the separation of powers of the three major branches.

“In its per curiam resolution, the Supreme Court had been very clear about judicial privilege. Matters that are tackled in deliberations can’t be discussed. That’s Rule 10 of the internal rules of the Supreme Court. Those are confidential,” lawyer Tranquil Salvador III told a press briefing.

Another defense lawyer, Rico Paolo Quicho, said that deliberations of the Chief Justice and associate justices of the high court are “executive in character” and the matters tackled there are “confidential.”

“That’s why if Associate Justice Sereno testifies, this will be questioned because of the confidentiality of deliberations,” he said.

On top of this, Sereno will have to get the consent of the high court to appear in the impeachment court, he said.

‘Request for invitation’

Sereno’s presence has become critical for the prosecution after Senate President Juan Ponce Enrile ruled as hearsay Justice Secretary Leila de Lima’s testimony on the alleged “irregularities” cited by Sereno in her dissenting opinion on the Nov. 15, 2011, temporary restraining order (TRO) issued by the high court against a travel ban on Arroyo issued by De Lima.

The “request for invitation” pleading, drafted by prosecutor Neri Colmenares, was distributed to reporters on Friday. Colmenares, the Bayan party-list representative, is the lead prosecutor for Article 7 of the impeachment complaint accusing the Chief Justice of betrayal of public trust for allegedly granting the TRO and lifting the watch-list order preventing Arroyo and her husband, Jose Miguel Arroyo, from leaving the country.

The prosecution said Sereno could reveal relevant but non-confidential details about the en banc deliberations on the issuance of the TRO.

Since she is not being subpoenaed but merely invited, Sereno could opt to decline in giving information that she deemed confidential under the high court’s rules, Colmenares said.

Interrogatory instead?

But if Sereno decides not to attend the trial, she could opt to answer an interrogatory, which Sen. Antonio Trillanes IV has proposed in a motion, prosecution spokespersons Representatives Romero Quimbo and Juan Edgardo Angara said on Friday.

An interrogatory is an alternative mode of gathering evidence in which a written list of questions is sent by a court to a witness. The Senate will take up Trillanes’ motion for an interrogatory in caucus on Monday.

Salvador pointed out that Sereno could indeed appear in court to affirm the contents of her dissenting opinion, but hers was just one of the dissenting opinions on the TRO.

And even a written interrogatory is limited by judicial privilege, Salvador said.

The law says that questions in an interrogatory can cover any relevant matter for as long as it is not privileged, he said.

He pointed out that interrogatories are used to “impeach’’ a witness, or if the witness is sick, infirm, in prison, or dead, or is more than 100 kilometers away from the courtroom.

Enrile on Friday said the Supreme Court justices could very well refuse an interrogatory because of the confidentiality of their deliberations.

The Senate President said he was surprised that Trillanes made a motion for an interrogatory last Thursday, as only the defense or the prosecution is allowed to make such a motion.

“Senator Trillanes is not a lawyer, and he made the motion. I don’t understand the request of Senator Trillanes, that’s why I have to study it,” he said.

Congress will protect Sereno

Quimbo on Friday said Sereno should not fear being sanctioned by the high court if she volunteers to appear in the impeachment court, assuring her that Congress would take action against the Supreme Court if she is punished.

Quimbo said that the House would question any sanction to be made by the high court on its members since only Congress has the power to discipline impeachable officers.

“She (Sereno) can be held in contempt, she can be punished but we don’t believe it [the Supreme Court] can,” said Quimbo, noting that one of its charges against Corona was his usurpation of Congress’ powers when he initiated the high court’s own probe of Associate Justice Mariano del Castillo who was eventually cleared of charges of plagiarism.

“We believe the Supreme Court has no legal authoriy to  discipline  its own members. They can discipline members of the Court of Appeals all the way down to the metropolitan trial court but not members of the Supreme Court,” Quimbo said.

Defense witnesses

Corona’s defense lawyers said they are now “rethinking” their earlier request for the Senate to subpoena some of the high court justices to the trial because of the Supreme Court’s Feb. 14 resolution barring such appearances by the justices and the impeachment court’s decision against issuing such subpoenas.

Quicho said the justices could be replaced with witnesses “who have personal knowledge,” possibly including Corona himself.

“He’s not on our list, but he’s on trial here. Discussions are ongoing whether he needs to appear. He has said that he’s ready to face all the charges. But we’re not categorically saying when or if there is a need for us to bring him,” he said.

Besides, the prosecution has not presented clear and solid evidence that would need Corona’s testimony, he said.

Public record but…

Supreme Court spokesperson Jose Midas Marquez said the high tribunal would just wait for the senators’ request for Sereno to answer an interrogatory.

“If that’s what they are going to do, let’s wait for that request. Let’s wait for what Justice Sereno will do. We don’t know yet what the questions will be about,” he told reporters.

Marquez recalled that the Supreme Court en banc resolution of Feb. 14, among other things, regulated the appearance of members and employees of the judiciary before the impeachment court and forbade testimony about pending cases, confidential records and deliberations.

“The dissenting opinions form part of the public record, but beyond these, the other records [pertaining to it] are confidential,” he said.

Marquez said justices, judges and court employees would have to seek permission from the Supreme Court before they can testify in any hearing, in accordance with the en banc resolution. With a report from Jerome Aning