Justice Abad concurring opinion: confidentiality of judicial deliberations

G.R. No. 199034  --           Ma. Gloria Macapagal-Arroyo, Petitioner, versus Honorable Leila M. De Lima, in her capacity as the Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration, Respondents.
G.R. No. 199046  --           Jose Miguel T. Arroyo, Petitioner, versus Sec. Leila M. De Lima, in her capacity as Secretary, Department of Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration, Respondents.
                                                Promulgated:                                                      December 13, 2011
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          Having read the separate dissenting opinions, especially that of Justice Maria Lourdes P.A. Sereno, I am compelled to dwell on two points.
          One.  It is not true that the Court or the Chief Justice has declined to promulgate Justice Sereno’s dissenting opinion, following the vote taken in the case on November 29, 2011.  She agreed to submit her dissent not later than December 1.  But she did not.  Neither did she ask the Chief Justice and the other members of the Court for additional time to submit her dissenting opinion.  Consequently, the Court promulgated its November 29 Resolution in the case without Justice Sereno’s promised dissenting opinion.  The Court did not deny her the right to have her opinion promulgated together with the main Resolution.  She broke agreement by not submitting it on the date set for it.
          Subsequently, Justice Sereno wanted her belated dissenting opinion promulgated on December 2, 2011.  But, since her demand for late and separate promulgation departs from established procedure, the author of the main Resolution asked that such opinion be calendared for En Banc consideration.  She, however, sees this as a suppression of her right to submit a dissenting opinion.  Ultimately, the En Banc decided to break precedents and allow the late promulgation of her dissent together with the concurring opinions of the rest of the members of the Court, like this one, to fairly present a fair picture of the problem that Justice Sereno has created by her failure to abide by simple agreement and the rules.
          Two.  Section 2, Rule 10, of The Internal Rules of the Supreme Court provides for confidentiality of its deliberations.
            Sec. 2.  Confidentiality of court sessions.  – Court sessions are executive in character, with only the Members of the Court present.  Court deliberations are confidential and shall not be disclosed to outside parties, except as may be provided herein or as authorized by the Court.
            The Chief Justice or the Division Chairperson shall record the action taken in each case for transmittal to the Clerk of Court or Division Clerk of Court after each session.  The notes of the Chief Justice and the Division Chairperson, which the Clerk of Court and the Division Clerks of Court must treat with strict confidentiality, shall be the bases of the minutes of the sessions.         
          Justice Sereno has breached this rule, narrating in her dissenting opinion her recollection of the En Banc’s deliberation in executive session on the effect of the petitioners’ failure to comply with the second condition of the temporary restraining order (TRO) that the Court issued in the case. 
          The En Banc had resolved on November 15, 2011 to:
            c)         ISSUE A TEMPORARY RESTRAINING ORDER in the consolidated petitions, enjoining the respondents from enforcing or implementing DOJ Department Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011, subject to the following conditions:
            x x x x
            (ii)        The petitioners shall appoint a legal representative common to both of them who will receive subpoena, orders and other legal processes on their behalf during their absence.  The petitioners shall submit the name of the legal representative, also within five (5) days from notice hereof;
            x x x x
When on November 18, 2011 the En Banc took up petitioners’ supposed compliance with the second condition, it found, by a vote of 7-6, that such condition had not been sufficiently complied with.  After further deliberation, the En Banc took a vote on the effect of such insufficient compliance on the TRO that it issued.  It voted 7-6 that such insufficient compliance did not result in the suspension of the TRO.  Since these votes did not result in any positive action that would affect the TRO, the same were not embodied in the resolution of that date. 
          On further consideration at the request of Justices Carpio and Sereno during its En Banc session on November 22, 2011, the Court voted to take note of the November 18 voting and clarify that the TRO was not suspended even with the finding that there was no full compliance as of November 15 with the conditions of the TRO.  The pertinent part of the Court’s resolution reads:
            x x x  On November 18, 2011, the Court by a vote of 7-6, found there was no sufficient compliance with the second condition of the Temporary Restraining Order issued on November 15, 2011.  However, by a vote of 7-6, the Court ruled that the TRO was not suspended pending compliance with the second condition.  Thus, the Court resolved to CLARIFY that the TRO was not suspended even with the finding that there was no full compliance with the conditions of the TRO.”
            x x x x
          Relying on their personal recollection of the En Banc discussions on the effects of petitioners’ failure to fully comply with the second condition of the TRO, Justices Carpio and Sereno claim that the Justices voted 7-6 on a proposition I submitted that there was no need to state that the TRO had been suspended since that was the effect of the non-compliance with its conditions. 
          I may have suggested the point sometime during the debate but I recall withdrawing it when I realized that the TRO did not subject its issuance and effectivity to petitioners’ prior or immediate compliance with such conditions.  Indeed, the collective recollection of the majority of the Justices who did not join Justices Carpio and Sereno’s dissents is that the vote was taken to conclude categorically that the non-compliance did not suspend the force and effect of the TRO. 
          When the proceedings in any collegial meeting is intended to be preserved and cited as a memorial of what had taken place in such a meeting, the proceedings are recorded.  This is true of Congress of the Philippines and of the Constitutional Convention.  But when what is important in a collegial meeting are the actions or the resolutions that the body passed by votes, only such actions or resolutions constitute a faithful recording of the body’s will.  This is true of the sessions of the Supreme Court, past or present. 
          The main purpose of En Banc or Division sessions is to deliberate on and decide the disputes between contending parties in the cases before it.  And its decisions are, by Constitutional mandate, written by a member upon authority of the Court.  The Court’s deliberations are not evidence of what it voted on.  That vote is restricted within the confines of the written order, resolution, or decision that it issues.      
          The Court’s deliberations are confidential simply because the Court realizes that only by making it so can the Justices freely discuss the issues before it.  Broadcasting such discussions to the public would have a chilling effect on those who take part in it.  One would be careful not to take unpopular positions or make comments that border on the ridiculous, which often is a way of seeing the issues in a different perspective.  Personally, I often take temporary positions on issues, weighing each one as the discussion goes.  I could take the role of a devil’s advocate before settling on the opposite view.  The danger, as what has happened here, is that Justice Carpio and Sereno may have taken something I said out of context or before I made up my mind when the voting took place. 
          If our deliberations cannot remain confidential, we might as well close down business.
                                                          ROBERTO A. ABAD
                                                    Associate Justice