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Mar 26

Diminished leaders

My column for today is Diminished leaders. In Inquirer Current, my entry for today is on our national characteristics.

Some good reads: Amando Doronila on how the opposition needs to adopt human rights as a campaign issue: a related opinion is that of Rasheed Abou-Alsamh (Bong Austero’s latest suggests to me that increasing petty and other criminality is another campaign issue). John Nery on understanding surveys (related news: Rep. Nograles wants surveys regulated; see the Philippine Star for more). Fr. Joaquin Bernas, SJ gives a lawyer’s views on amnesties and libel.

On a positive note: the Inquirer editorial praises Tessie Aquino-Oreta. Solita Monsod praises the Department of Agrarian Reform.

The latest self-rating survey has Philippine Commentary up in arms over the indolence of the Filipino. Placeholder presents a bar graph of public borrowings covering post-1986 administrations.

Big Mango responds to a recent column I wrote; Achieving Happiness remarks on appearing on my show.

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91 comments

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  1. justice league

    cvj,

    I’ll answer for now your last statement.

    I don’t blame anyone who didn’t get what I was thinking. My statement on the “Correspondents” was not connected to any defense on Joker and was already for general consumption and not actually addressed to you alone.

    If what Garcillano said was to be taken at face value; what would be interesting in what he said?

    What Garcillano stated was a reiteration of his view that the “Garci tape” was a forgery. I was then interested in the prescription period since no charges have yet been filed as different crimes have different prescription periods.

    Unfortunately now, I know that it is a blind end as far as that is concerned as the prescription period for filing a charge is too long for forgery or for the anti-wiretapping law for that matter.

  2. cvj

    Justice League, i see. Thanks for the clarification. My apologies then.

  3. justice league

    cvj,

    Ok. But like I said, I don’t blame you for that.

    Now, going back; should the opposition fail to present evidence convincing enough or prove its case even to the common man, what do you want the opposition Senate members to do?

    Again, the proposal of One Voice was a challenge to the admin to have the midterm elections be treated as an indirect referendum but the admin for one reason or another has not accepted that challenge.

  4. cvj

    Justice League, here’s what i would like to see happening:

    Prior to the start of the proceedings, before anything is presented to them, i would like the Senator-judges to disclose whether they are leaning to convict or acquit given their understanding of the charges and given publicly available information. They should explain what information and other considerations they took into account in forming their decision. Once this is done, they can proceed with the impeachment proper.

    Should the opposition succeed in presenting evidence convincing enough to prove its case to the common man, then i expect both the admin and opposition Senators to convict.

    Should the opposition fail to present evidence convincing enough to prove its case even to the common man, then i expect both the admin and opposition Senators to acquit.

    Those whose vote differed from their original pre-impeachment stand should explain clearly what it is in the proceedings that made them change their mind.

    In short, i expect the Senators to have strong opinions, weakly held such that the party who is faced with evidence contrary to his/her preconceived position changes his/her mind.

    Of course, i will take into account the entire context of the situation, meaning, there should be no artificial walls between the impeachment court and the outside world. I will keep the participants on a short leash as far as legal subterfuge and the use of legal technicalities is concerned.

  5. justice league

    cvj,

    I have to admit that I was quite stunned for quite a while. Someone else tried to describe you in a certain way but whether that is true or not, I guess you won’t be guilty when it comes to innocence.

    Do you have a precedent for this?

    What is the probability that this kind of procedure will be followed in the Philippines?

    Would you consider such a system if you were personally the one on the other end?

  6. cvj

    Justice League, i don’t get your first paragraph. What description are you referring to?

    I’m not aware of any precedent for what i’m proposing, and my guess is that the probability of the procedure being followed in the Philippines is, unfortunately, close to nil.

    I will definitely favorably consider such a system if i were the one being impeached as it is the most transparent, scientific (i.e. paradigm -> hypothesis -> evidence -> theory -> judgement), and least hypocritical system that i can think of. Of course, i don’t not recommend this for normal civil or criminal courtroom proceedings.

  7. justice league

    cvj,

    That was regarding the presumption of innocence. Something that you obviously didn’t want the concerned person to enjoy in an impeachment court as you wanted the Senate jurors to declare their stand on the charges already when evidence has not yet been presented or debunked before them in the impeachment court.

    Any precedent of such an impeachment court would have greatly helped in determining how such a system is to be viewed.

    But if you admit that the probability of that being used is close to nil; then we could just safely consider that proposal as a “noble aspiration”.

  8. cvj

    Justice League, the presumption of innocence is still there since, procedurally, it is the prosecution who has the burden of presenting evidence. Didn’t i agree with you above that “Should the opposition fail to present evidence convincing enough to prove its case even to the common man, then i expect both the admin and opposition Senators to acquit.” What we can do without is the illusion of neutrality or objectivity. To pretend that the Senator-judges do not have their biases one way or the other, for whatever reason, is to ignore reality. It is best to have it out in the open.

    I think the confusion has to do between Gloria’s responsibilities as a public official, and her rights as an individual. We have to remember that what is at stake is a person’s (in this case Gloria Arroyo’s) job, which after all, is not her birthright. If she get’s convicted, all that happens is she gets fired. She remains a free citizen of the Republic and is not deprived of liberty or any other human right. As indicated in Article XI Section 7 of the 1987 Constitution:

    Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

    That means that the evidence used to impeach and convict her is too weak to stand up in normal courtroom proceedings, then good for her. She can enjoy her retirement, but not the perks of public office. That she remains free as an individual, but subjected to penalties as a public servant is due to the fact that “Public office is a public trust.” (1987 Philippine Constitution, Article XI, Section 1)

  9. cvj

    The first sentence in the last paragraph above should read…That means that if the evidence used to impeach and convict her is too weak to stand up in normal courtroom proceedings, then good for her.

  10. justice league

    cvj,

    You have stated what they must do based on the evidence presented.

    But if you read your proposal; you are asking them to give their pre-impeachment stand and asking those who will change their original pre-impeachment stand to explain clearly what it is in the proceedings that made them change their mind. And I guess that includes those who will opt to abstain in the end.

    But what of those who don’t change their mind?

    For those who will especially assume a stand for conviction yet don’t change their stand even if evidence presented don’t bear them out; what is to be done on that issue? Isn’t that tantamount to have actually prejudged the case (something that can be said on the proposal in the first place)?

    What’s to stop such Senate members from claiming that they have not been swayed as an explanation if they are actually supposed to explain that too? Where is the presumption of innocence then?

  11. cvj

    For those who will especially assume a stand for conviction yet don’t change their stand even if evidence presented don’t bear them out; what is to be done on that issue? Isn’t that tantamount to have actually prejudged the case (something that can be said on the proposal in the first place)? – Justice League

    We will then have something similar to the second envelope scenario. The people (you and me) will see what they have done and will hold the Senators accountable.

    What’s to stop such Senate members from claiming that they have not been swayed as an explanation if they are actually supposed to explain that too?

    Only their personal sense of responsibility, justice and history towards themselves and the institution they represent.

    Where is the presumption of innocence then?

    As i said above, the presumption of innocence is built into the process i.e. the requirement for the prosecution to present evidence as well as the two-thirds vote needed to secure a conviction. It is the assumption of the jury’s impartiality that is not tenable.

  12. justice league

    cvj,

    Even if I was to “agree” that presumption of innocence is built into the process; the presumption of innocence should be incorporated into the interpretation of evidence itself.

    The Senate members have already made their stand on publicly available information. Consider that such information was indeed presented, and a rebuttal was made wherein interpretation of that evidence could still go either way; normally it would lean on the side in favor of the accused.

    But since the Senate members have already made their stand on such evidence and a rebuttal has “not totally” countered it wherein the interpretation on the evidence can still go either way; the Senate members could very well hold on to their previous stand, don’t they (at which point the evidence has drawn on the weakness of the defense)?

    The numbers to convict is beside the point based on presumption of innocence.

    And should you answer that they can hold onto their stand, then procedurally the accused is “demanded” to mount a defense not only to counter the prosecution’s evidence but also the need to crush the prosecution’s evidence so interpretation of the evidence need not be in the middle but to definitely favor the accused. If that is what is needed, then I believe that procedurally it still lacks the presumption of innocence.

  13. cvj

    “Consider that such information was indeed presented, and a rebuttal was made wherein interpretation of that evidence could still go either way; normally it would lean on the side in favor of the accused.” – Justice League

    And the extent to which it leans in favor of the accused is precisely the issue. Definitely with the presumption of innocence, the burden should be on the prosecution and any benefit of the doubt should favor the accused, but not as much as it does during a criminal trial or a civil suit, since the impeachment proceedings are neither of these. (If it was, in addition to removal from office, the convicted official would have been subject to further penalties matching the civil or criminal offense.) As i said above, it has to be that way since as the Constitution states, “Public office is a public trust“. Something in the system has to compensate for the lack of delicadeza of politicians like Gloria Arroyo.

    “…procedurally the accused is “demanded” to mount a defense not only to counter the prosecution’s evidence but also the need to crush the prosecution’s evidence so interpretation of the evidence need not be in the middle but to definitely favor the accused.” – Justice League

    Unless you recommend that the Opposition members of the Senate recuse themselves from the impeachment proceedings, that is what the defense will be faced with anyway. From the other direction, the same hurdle has to be faced by the prosecution. The presumption of neutrality (for both sides) is not realistic. Anyway, as this is a political matter, the impeachment court cannot be insulated from the larger context. That’s what the 11 Senators found out when they refused the opening of the second envelope.

    “…If that is what is needed, then I believe that procedurally it still lacks the presumption of innocence” – Justice League

    If that’s your standard, then you have to take issue with the framers of the Constitution, as to why they chose to make the Senators the judges during impeachment proceedings. As far as i know, even if it was desirable, it is physically impossible for the Senators to deposit their memories at the door before entering the Session Hall.

  14. justice league

    cvj,

    “Definitely with the presumption of innocence, the burden should be on the prosecution and any benefit of the doubt should favor the accused, but not as much as it does during a criminal trial or a civil suit”-cvj

    You are trying to limit “any benefit of the doubt should favor the accused” with the term “not as much as it does during a criminal trial or a civil suit”. Your exception seems so broad that it can put to question whether there is actually presumption of innocence. Anyway, if you are implying that that there are certain instances wherein “benefit of the doubt” will not favor the accused; who then is to be favored in these instances of “benefit of the doubt”?

    Your second paragraph comes as if you are claiming that the accused will actually be demanded to mount a defense to crush the prosecution’s evidence and not just counter it. That seems further fortified by the statement
    “From the other direction, the same hurdle has to be faced by the prosecution.”

    Since they are facing the “same hurdle”, in other words you would want the prosecution to present evidence against the accused but at the same vein want the accused to present evidence to prove his/her innocence.

    As to your last paragraph; I don’t think the Constitution is mandating the Senate members to demand the accused to mount a defense.

  15. cvj

    “You are trying to limit “any benefit of the doubt should favor the accused” with the term “not as much as it does during a criminal trial or a civil suit”. Your exception seems so broad that it can put to question whether there is actually presumption of innocence.” – Justice League

    While it may seem that way to you, that’s is not my position. Burden of proof is always on the prosecution albeit by varying degrees.

    “Your second paragraph comes as if you are claiming that the accused will actually be demanded to mount a defense to crush the prosecution’s evidence and not just counter it.” – Justice League

    Crush vs. counter? We’re entering the realm of semantics.

    “Since they are facing the ‘same hurdle’, in other words you would want the prosecution to present evidence against the accused but at the same vein want the accused to present evidence to prove his/her innocence.” – Justice League

    ‘Same hurdle’ referred to the inherent biases, whether on the Admin or the Opposition side.

    “As to your last paragraph; I don’t think the Constitution is mandating the Senate members to demand the accused to mount a defense.” – Justice League

    Huh? Then how can the accused defend himself/herself? In any case, that’s not the point of my last paragraph.

  16. justice league

    Cvj,

    If burden of proof is always on the prosecution and there is presumption of innocence, then why does it appear that you do want the accused to prove that he/she is innocent? Why must the accused prove his/her innocence?

    Post 50- “Think of it as each side having their opposing hypotheses tested.” April 4 at 4:09 AM- cvj

    That quoted part obviously indicates that in your proposal; the accused must put forth his/her own hypothesis (which in this case is that he/she is innocent because if the prosecution can’t prove that the accused is guilty, then the accused is considered not guilty but if beyond that the accused has to prove that he/she is not guilty; then I would wonder how he/she is not actually proving that he/she is innocent) which will be tested by the prosecution and not just the prosecution putting forth its hypothesis (that the accused is guilty) which will be tested by the defense.

    If the prosecution can not prove its hypothesis as it has been tested by the defense, I wonder why you want the defense to have a hypothesis of its own to be tested by the prosecution?

    With regards to your 2nd paragraph; I can’t agree that it’s just a case of semantics. The defense can already “counter” the evidence of the prosecution by punching holes in it. By creating doubt as to the credibility of witnesses of the prosecution and veracity of their evidence.

    But there is no more complete way for the defense in “crushing” the prosecution charges and evidence than by actually proving that the accused is actually innocent of the charges which I believe is in line with your testing of hypothesis.

    With regards to your 3rd paragraph; I believe a review of the quoted parts and consequent replies are in order. The concerned posts start on post 63.

    I took your response there in the context of a reply to my quoted part wherein I was implying that the suggested process was also procedurally infirmed with regards to the presumption of innocence.

    So my understanding there was that the crushing of the prosecution’s evidence was what the defense was actually going to face which is in consonance to the “same hurdle” that the prosecution will face since Senate members are neither part of the defense nor the prosecution.

    If I misread that part of your post; then I apologize for it. Though it still does not answer your statement on the hypothesis testing.

    As to the latter part of your last paragraph; I believe a review of my post 62 downward is in order.

    In my post 62, I implied that the suggested process will still be infirmed with regards to the presumption of innocence if the accused will be demanded to crush the prosecution’s evidence.

    So I took your response in post 63 in the context of what I stated in post 62; wherein you were now implying that the framers or even the Constitution was demanding that the accused mount a defense to actually crush the prosecution evidence. So my response in post 64 is that it is not demanded by the Constitution for the Senate members to exact that from the accused.

    If I misread that too; I apologize again.

    Now as to the former part; when I stated about the Charter not demanding the accused to mount a defense, I meant that the defense will not be demanded to present “its own” evidence and witnesses if the prosecution case is weak.

    When the prosecution is in the process of presenting their evidence and witnesses, there can be a cross examination of the defense counsel wherein the counsel will among other things try to put into question the credibility and veracity of the evidence and witnesses but it is still the prosecution’s evidence and witness.

    If after the prosecution presentation, the defense believes that the prosecution has not proven its case; the defense can actually file a demurrer to evidence and if granted; the case against the accused will be dismissed with out the defense presenting their own set of evidence and witnesses because there is presumption of innocence on the part of the accused. So in essence the accused did not mount a defense.

    Which now brings us back again to your hypothesis testing.

    Anyway, since your proposed process is so radical already and as you admit has close to nil of being followed , why don’t you just suggest that the accused in an impeachment be actually demanded to prove his/her innocence to continue in office? At least then we can just consider your proposal as a “noble aspiration”.

    But if you’ll insist that your proposed procedure still incorporates the “presumption of innocence”, I or someone other than I will obviously put that to a debate.

  17. cvj

    Justice League, in hypothesis testing, there is also burden of proof. When i said think of it as each side having their opposing hypotheses tested, it was with respect to probable cause. Presumption of innocence becomes the null hypothesis, i.e. that which remains valid unless proven otherwise. In our case, the null hypothesis is ‘there is no relation between the Hello Garci tapes and Arroyo cheating in the elections’.

    Of course, it may happen that going into the impeachment, an Opposition dominated Senate will mean that the degree of belief that probable cause reflects guilt will be much closer to 80%, while in an Administration-dominated Senate, the degree of belief may be closer to 20%. That’s inherent in the process, as i said above, there is no blank slate and it’s useless to pretend otherwise. Anyway, regardless of prior beliefs, the Senators are still constrained to go through the process, which favors the presumption of innocence because (1)it is still the prosecution that needs to present evidence (e.g. the contents of the seven boxes) and (2) a vote to acquit has more weight than a vote to convict.

    As for the issue of counter vs. crush, ‘punching holes’ in the prosecution is not enough because Public Office is a public trust. The standard of evidence is lower in an impeachment because the worst that can happen upon conviction is dismissal. The guilty party is still a free citizen. Precisely because public office is a public trust, to regain legitimacy, it is not sufficient for Mrs. Arroyo to say that the Opposition did not prove their case. She must provide a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust.

  18. justice league

    cvj,

    I think we can cut and go to your last paragraph.

    I believe that paragraph embodies your goal and defines your entire proposed procedure.

    Based on your last paragraph; you want PGMA to “provide a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust” and you will not be satisfied with her acquittal if just the Opposition will not prove its case. (Aren’t you in effect placing a burden of proof on the accused?)

    In essence your proposed procedure is geared towards the accused having to prove his/her innocence. How can there be presumption of innocence if the accused has to prove it?

    I can understand your wanting PGMA to prove her innocence (though I may or may not agree) in an impeachment proceeding but again; if you’ll insist that your proposal still incorporates the presumption of innocence, you are going to face a debate on that.

  19. mlq3

    justice league, with regards impeachment, you may find this article interesting:

    http://www.jewishworldreview.com/cols/sowell100998.asp

    As does this Q&A with a law professor:

    http://www.washingtonpost.com/wp-srv/politics/talk/zforum/gerhardt091698.htm

    With this statement, “I think that impeachment proceedings are not governed by traditional notions of due process. That is not to say that concerns about fairness fail to come into play. It means that the members of Congress try to be fair because they know that any appearance of unfairness is likely to hurt them either politically or in the history books. Of course, we’re just talking about basic fairness, nothing more sophisticated than that.”

    There’s also:

    http://jurist.law.pitt.edu/impeach.htm

  20. justice league

    Manolo,

    Thank you very much for those links and articles. I managed to scan the first 2 but the 3rd is so taxing that I’ll leave it for another day.

    However, we must remember that most of us here don’t really know well the American Charter or laws (except of course our peers from the States) so I can’t really say if those articles are applicable here.

    Michael Gerhardt says that there are no rules of evidence in their impeachment proceedings.

    But in our Rules of Court in rule 128 (General Provisions), it states:

    Sec. 2.Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (Of course I can’t say if a law or rule has been created to apply to Impeachment)

    I don’t remember if I have pressed for the kind of weight and sufficiency of evidence in impeachment whether substantial, preponderence, or beyond reasonable doubt.

    The discussion between cvj and I have lately boiled down to “presumption of innocence” in his proposed impeachment proceeding.

    I maintain that I believe that it is lacking that part.

    Again I can’t say much about the laws in the U.S. so I don’t know what Thomas Sowell is saying about his view on the presumption of innocence in impeachment proceedings.

    However based on our rules of evidence, rule 131- Burden of proof and presumption (again such would really depend if a special case has been created for impeachment) states that:
    Sec. 3.Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

    (A)That a person is innocent of crime or wrong;

    (L)That a person acting in a public office was regularly appointed or elected to it; (I have a terrible feeling that pointing this one out will one day bite me back in the but t.

    -including:
    (E)That evidence willfully suppressed would be adverse if produced; (please consider that as a gift and payback for your links)

    Again I can’t say much about Gerhardt’s statement on due process.

    As I’ve implied before; I can understand (though I reserve whether I myself hold the same idea or not some other time) if cvj or even anyone else would want that PGMA prove her “innocence” in an impeachment proceeding thereby placing the burden of proof on her.

    But I certainly feel that if a proposed procedure does not incorporate the “presumtion of innocence” I feel it is not right that such procedure be paraded as incorporating such.

    Again thanks.

  21. cvj

    Justice League, i understand why you like to turn this into a debate on whether my proposal incorporates or discards the presumption of innocence. However, the paragraph in my comment that you refer to does not have anything to do with the presumption of innocence (or its absence). Rather, as explicitly stated, it specifically refers to the standards of evidence to be used. To illustrate the situation i have in mind:

    1. At the start of the trial, Gloria Arroyo is presumed innocent. (We both agree on this.)

    2. When the trial commences, the prosecution will declare their intention to present the Garci tapes as evidence.

    3. The defense will then attempt to have the tapes suppressed as ‘inadmissible’.

    In any other (non-impeachment) trial, the defense team may very well entitled to do this. However, in an impeachment proceeding, such a maneuver should not be allowed because it contravenes the spirit behind public office being a public trust. Simply saying “i’m sorry” or ignoring the existence of the tapes is not enough.

    The above is similar to the situation of federal judge Alcee L. Hastings as recounted by Thomas Sowell in the first link above. (Manolo, thanks for the links as well!)

  22. justice league

    Cvj,

    I’m disagreeing again.

    But nevertheless I’m considering your situation in my response right now.

    So I’ll agree for now that 1), 2), and 3) happened and that the impeachment court “overruled” the defense in maneuver 3 and eventually allowed the “Garci tapes” to be presented as evidence.

    Now, is it or is it not the burden of the prosecution to prove that the contents of the “Garci tape” actually prove that (I’m now returning to your post on April 10, 8:01 AM) PGMA acted in ways that betrayed the public trust?

    If you will say that it is indeed the burden of the PROSECUTION to prove that the contents of the “Garci tape” prove that PGMA acted in ways that betrayed the public trust; then why did you imply that it will not be enough that PGMA will say that the Opposition did not prove their case? (Why are you so adamant on how PGMA defends herself? It’s her or her counsel’s choice and they do so on their own credit or peril.)

    For in essence for an acquittal on that charge; you are implying that it will also not be enough that the prosecution fail to prove their case but also that PGMA “must provide a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust”. So again you want the accused to prove her innocence even with your “standard of evidence”.

    Again if the prosecution fails to prove the guilt of the accused EVEN with your “standard of evidence” and the contents of the “Garci tape”; why must the accused prove him/herself innocent?

    I fail to see the relevance of the situation of federal judge Alcee L. Hastings in your post. The aforementioned issue was the “preponderance of evidence” against Hastings in his impeachment.

    You yourself however admitted that your concern in your 2 posts was the “standard of evidence” and not the “weight and sufficiency of evidence”.

    Again I maintain that your proposed procedure does not incorporate the “presumption of innocence” but like what I’ve implied before; if you don’t want the accused in an impeachment to enjoy that presumption, that I can understand.

    Manolo,

    Somehow I find the appearance and functionality of your temporary blog the past few days more appealing and useful. It numbered the posts.

  23. cvj

    Justice League, apologies for the delay, couldn’t access comments…

    “Now, is it or is it not the burden of the prosecution to prove that the contents of the “Garci tape” actually prove that (I’m now returning to your post on April 10, 8:01 AM) PGMA acted in ways that betrayed the public trust?” – Justice League

    Yes, and the quantum of proof required should be substantial evidence, i.e. “that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.” [Rules on Evidence, Rule 133, Section 5]

    “…then why did you imply that it will not be enough that PGMA will say that the Opposition did not prove their case?” – Justice League

    The manner in which GMA defends herself is relevant. If she does this suppressing information such as the Garci tape, then her assertion that the Opposition did not prove their case will mean nothing.

    “For in essence for an acquittal on that charge; you are implying that it will also not be enough that the prosecution fail to prove their case but also that PGMA ‘must provide a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust’.” – Justice League

    This follows from my previous statement. She must confront the evidence head on and come up with a suitable explanation.

    “I fail to see the relevance of the situation of federal judge Alcee L. Hastings in your post.” – Justice League

    Hastings was convicted in impeachment court, and acquitted in a regular court of law. This is because of varying standards of evidence and this is what may happen in the case of GMA as i explained in the situation described above (April 10th, 2007 at 11:39 pm).

  24. justice league

    Cvj,

    That’s OK. I noticed that wordpress bogs down frequently too.

    If you are referring to administrative cases; the weight and sufficiency needed to decide against the concerned party is only substantial evidence.

    As to your 3rd paragraph, I already relented in your scenario with regards to “standard of evidence” and added the event that the Garci tape was eventually allowed to be presented.

    If the prosecution STILL CAN’T prove their case even with your “standard of evidence” and the contents of the Garci tape (which I relented to be presented); you would HOWEVER still want PGMA to provide a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust.

    Your 4th paragraph just reiterates that stand wherein you state:
    “This follows from my previous statement. She must confront the evidence head on and come up with a suitable explanation.”-cvj

    I previously stated the following on April 9, 7:39 pm:
    “I can’t agree that it’s just a case of semantics. The defense can already “counter” the evidence of the prosecution by punching holes in it. By creating doubt as to the CREDIBILITY of witnesses of the prosecution and VERACITY of their evidence.”

    Clearly, evidence has been presented and the defense then attempts to cast doubts on that evidence that have been presented.

    (In an effort to accommodate you from the beginning of your proposal; I have never ever implied that the defense will obstruct the presentation of ANY prosecution evidence even if it be the Garci tapes as I had an inkling you’d go there.

    Remember my post on April 7, 1:39 am
    “The Senate members have already made their stand on publicly available information. Consider THAT SUCH INFORMATION WAS INDEED PRESENTED, and a rebuttal was made wherein interpretation of that evidence could still go either way; normally it would lean on the side in favor of the accused”.

    I never tied the hands of the prosecution as to what evidence is or is not admissible and just go to what they can or cannot still prove with the evidence presented just so we can evaluate your proposed process for what it is.

    It was you who pointed out that the defense will try to suppress the Garci tape but I even relented that the Garci tape be presented just so we can move on in evaluating your process.)

    But you didn’t agree to that “counter” of presented evidence and you stated:
    “As for the issue of counter vs. crush, ‘punching holes’ in the prosecution is not enough because Public Office is a public trust.”-cvj

    No matter your standard of evidence, no matter what “weight and sufficiency of evidence” (Beyond reasonable doubt, preponderance of evidence, or substantial evidence) is required to convict; if the prosecution still can’t pin down PGMA, you want PGMA to prove herself innocent.

    Again and again, how then can there be presumption of innocence in your proposed procedure when you want the accused to prove him/herself innocent EVEN if the prosecution cannot prove his/her guilt with all the evidence presented?

    The fact that Hastings was convicted in an impeachment court and acquitted in a regular court of law has no bearing on your varying “standard of evidence” because his conviction in one and acquittal on another was based on the “weight and sufficiency” of evidence needed for conviction and not on your varying “standard of evidence”.

    I think your “standard of evidence” is more equated to what evidence is admissible or not in court as based on your post on April 10, 11:39 PM wherein you were elucidating that a defense maneuver of having the Garci tape declared inadmissible is not to be allowed in an impeachment proceeding and so the Garci tape should thus be presented before the court.

    Such is quite different from “weight and sufficiency of evidence”.

  25. cvj

    “As to your 3rd paragraph, I already relented in your scenario with regards to “standard of evidence” and added the event that the Garci tape was eventually allowed to be presented.” – Justice League

    Regarding your above statement (as well as your subsequent parenthetical remarks), we know very well that it does not matter whether you relent and admit the tapes as evidence for the sake of discussion. What matters is what the defense will or will not do in real life and it is against the very real possibility that they use obstruction as a tactic that i address my 3rd paragraph that you have referred to.

    “you would HOWEVER still want PGMA to provide a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust.” – Justice League

    Remember that at this point in our hypothetical situation, the tape has already been presented as evidence. Gloria’s explanation is needed to serve as a rebuttal. If she remains silent or fails to give a satisfactory explanation, then the tapes are proof of her guilt.

    “I can’t agree that it’s just a case of semantics. The defense can already “counter” the evidence of the prosecution by punching holes in it. By creating doubt as to the CREDIBILITY of witnesses of the prosecution and VERACITY of their evidence.” – Justice League

    It is not enough to punch holes because, given the standard of evidence that will (or should) be used (i.e. substantial evidence), it is not enough to create reasonable doubt. This is not a criminal case which requires proof beyond reasonable doubt.

    “Again and again, how then can there be presumption of innocence in your proposed procedure when you want the accused to prove him/herself innocent EVEN if the prosecution cannot prove his/her guilt with all the evidence presented?” – Justice League

    I don’t remember asserting what you’ve just attributed to me above. Again, as i stated above (April 4th, 2007 at 11:23 pm and repeated at April 6th, 2007 at 2:09 pm), should the opposition fail to present evidence convincing enough to prove its case even to the common man, then i expect both the admin and opposition Senators to acquit.

    “The fact that Hastings was convicted in an impeachment court and acquitted in a regular court of law has no bearing on your varying “standard of evidence” because his conviction in one and acquittal on another was based on the “weight and sufficiency” of evidence needed for conviction and not on your varying “standard of evidence”.” – Justice League

    For a given piece of evidence, standard of evidence has a bearing on weight and sufficiency of evidence so how could it not have a bearing?

  26. justice league

    cvj,

    With regards to your first paragraph; I could very well state that what matters is the kind of procedure the impeachment court will actually use.

    So what again is the probability of the impeachment court using your proposed procedure wherein the Senate member jurors have to claim first what their leanings are based on publicly available information?

    As to your 2nd paragraph; I believe it again shows your mindset.

    As to publicly available information, there is one side that show that what has been heard is the real thing. But yet there is another side that tells that what has been heard is not “real”.

    In the impeachment court, the veracity of the Garci tape (since I have relented that it will be presented)shall be put to a test. The defense will attempt to portray the contents of the Garci tape as a forgery, fake, etc….

    Hence the Garci tape must stand on its own and that it so reveals the guilt of the accused. But you obviously don’t care if it proves so or not.

    You would hold that the tapes prove her guilt if she remains silent or fails to give a satisfactory explanation EVEN IF THE TAPES SHOULD ACTUALLY FAIL TO PROVE HER GUILT!

    As to your 4th paragraph; should the opposition fail to present evidence convincing enough to prove its case even to the common man, then you expect both the admin and opposition Senators to acquit.

    But should the opposition fail to present evidence convincing enough to prove its case even to the common man; it appears that you still want PGMA to provide a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust. May I right about that?

    As to your 3rd and 5th paragraph; I think its about time you reveal your source material for this “standard of evidence” so we can read it for ourselves. I’m having a difficult time with your example and interpretation. Maybe the source material can help clarify.

  27. justice league

    Oooopppps.

    I meant “Am I right about that?” instead of “May I right about that?”.

    Also cvj,

    Since you are also adept in showing legal sources as indicated in your quote on the rules of evidence; I hope your “standard of evidence” will come from a legal source too.

  28. cvj

    “So what again is the probability of the impeachment court using your proposed procedure wherein the Senate member jurors have to claim first what their leanings are based on publicly available information?” – Justice League

    Same answer as the one i gave nine days ago (at April 6th, 2007 at 12:14 pm).

    “Hence the Garci tape must stand on its own and that it so reveals the guilt of the accused. But you obviously don’t care if it proves so or not.

    You would hold that the tapes prove her guilt if she remains silent or fails to give a satisfactory explanation EVEN IF THE TAPES SHOULD ACTUALLY FAIL TO PROVE HER GUILT!” – Justice League

    You’re the one who is rephrasing my arguments into a strawman version, so i wonder why there is a need to shout.

    “But should the opposition fail to present evidence convincing enough to prove its case even to the common man; it appears that you still want PGMA to provide a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust. Am I right about that?”?” – Justice League

    Not really because i am working from the premise that the Garci tapes are considered convincing evidence.

    “Since you are also adept in showing legal sources as indicated in your quote on the rules of evidence; I hope your “standard of evidence” will come from a legal source too.” – Justice League

    My source is Section 5 of the provision itself which, in its entirety reads: “In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion

    The Senate during impeachment is such a quasi-judicial body.

  29. justice league

    Cvj,

    Since your proposal has that probability; then why pick on whatever issue and whether I relent or not just so we can get the discussion going?

    If I claim and persists that your proposed process will not be followed, then we can end the discussion now as you can’t convince us that your process will be followed.

    BTW, if you read my posts again, I followed your situation and 1,2,3 did occur and I added that the court eventually allowed the Garci tape to be presented.

    So let’s go back to your concerned paragraph which states:
    “The manner in which GMA defends herself is relevant. If she does this suppressing information such as the Garci tape, then her assertion that the Opposition did not prove their case will mean nothing.” –cvj

    Even if the defense tried to suppress the Garci tape and such was eventually presented, the Garci tape must eventually stand on its own and prove what it needs to prove.

    During the impeachment of then Pres. Estrada, the defense prevented the opening of the so called 2nd envelope. The 2nd envelope then was largely perceived to have incriminating evidence. But now that the contents are known, there are quite a number of people who will argue that the contents don’t prove him guilty. Why the defense did what it did; I won’t give a guess.

    But should the contents of that 2nd envelope have been presented before the impeachment court; the contents must still prove the President’s guilt whether the defense tried to suppress it or not. (“evidence willfully suppressed would be adverse if produced” is still a disputable presumption).

    As to your 3rd paragraph; if the tapes are so convincing, then why does it matter if PGMA explain or not?

    As to your 2nd to the last paragraph; it appears that you are referring to “weight and sufficiency of evidence” when you use “standard of evidence”. Now that we are on the same wavelength there, then your “standard of evidence” or what is more known as “weight and sufficiency of evidence” did have a bearing on Judge Hastings’ case.

    The Impeachment court will deliver a verdict accordingly on the concerned party as to whether the evidence has been satisfied depending on your “standard of evidence” or “weight and sufficiency of evidence” (which I will accede now as “substantial evidence”) and that verdict will be delivered regardless whether PGMA explains or not about the Garci tape and/or whether she claims or not that the Opposition did not prove their case.

    But based on your April 10, 8:01 am post; what is the relevance now of whether PGMA explains or not about the Garci tape when the impeachment court will deliver a verdict based on your “standard of evidence” regardless of whether she explains or not and/or whether she claims or not that the Opposition did not prove their case?

    Now as to your presumption that there is shouting in my post; it is quite apparent that I am not as well versed as others here in using wordpress techniques as I can’t italicize, bold, or even quote. I have to use other means to emphasize what I feel needed to be emphasized. If it appears such then I’m sorry.

    But as to your allegation that I am rephrasing your arguments into a strawman version; truth to tell, I don’t really know if I am. But I am not about to let that go unchallenged. If you feel you can prove it, then do so.

  30. mlq3

    justice league, this brings up the departure point between our impeachment traditions and those of the americans. the americans view themslves as a jury, and so they see themselves as senator-jurors here, with no jury tradition, our senators view themselves as judges, so they’re senator-judges.

    the best demonstration was precisely the 2nd envelope: obsessing over their role as judges, a majority of the senators insisted on playing things by the book; but a close minority remembered the fundamental nature of impeachment as a political and not judicial trial -they voted to open, which is what the public was clamoring for. when the public did not get what it expected, a revolt was the result.

  31. justice league

    Manolo,

    Well I really can’t say much about how Senate members in America perform their role in an impeachment court.

    But I feel that you are strengthening the view that what is applicable on impeachment in America (their view of due process in an impeachment, rules on evidence, etc…)is certainly not applicable here.

    (Though I really don’t know much about a jury system and most of what I know is from what I see in the movies or TV, I understand that a jury has to be “unanimous” in their verdict or something which is still somehow different in an impeachment whether here or in America wherein the verdict need not be unanimous)

    In cvj’s and my discussion; I have already accepted the scenario that the defense will try to suppress the Garci tape but the impeachment court nevertheless allows it anyway.

    The Garci tape evidence must now stand on its own.

    If the 2nd envelope was opened; the contents too must stand on its own.

    BTW, I have already accepted cvj’s idea that the “weight and sufficiency” needed in an impeachment court is only “subtantial evidence”.

    If we are going to the american example of Judge Hastings; what will be needed is “preponderance of evidence” which is actually a rung higher in requirement rather than just “substantial evidence”.

    Anyway, it was really comforting to find someone else besides cvj and I in the dead threads.

    I couldn’t help but think that cvj and I were already alone.

    TY.

  32. mlq3

    justice league, my own view is that we’re abandoning a fundamental assumption of impeachment, which is that it follows a common law framework, because we have a different way of approaching the law. so we’ve borrowed a political mechanism we’re in a sense, unequipped to handle. if we had a jury system in this country no one would have a problem understanding that an impeachment is essentially trial by ones peers, with a lower bar for conviction than the regular courts.

    as for the garci tapes, my own view, again, is that the cover-up after the tapes were exposed, is the much more proveable crime. the tapes are just the motive, not the means and later methods that are impeachable.

  33. justice league

    Manolo,

    I don’t know if all the countries that have attempted/employed (actually used as against those who have not used them but nevertheless have it in their Constitution) impeachment to remove officials have a jury in their judicial system.

    There have been other countries that have actually used or tried to use impeachment to remove their officials like Brazil but currently their judicial system is unknown to me.

    But there is something I don’t understand regarding your phrase “with a lower bar for conviction than the regular courts”.

    Does this mean you still want a lower requirement than “substantial evidence”?

    About the Garci tape “cover-up”; you mean something similar to Watergate? Ok I can understand that.

  34. cvj

    “If I claim and persists that your proposed process will not be followed, then we can end the discussion now as you can’t convince us that your process will be followed” – Justice League

    If i considered the above a basis for ending the discussion, then i would not have brought it up in the first place.

    “The Impeachment court will deliver a verdict accordingly on the concerned party as to whether the evidence has been satisfied depending on your “standard of evidence” or “weight and sufficiency of evidence” (which I will accede now as “substantial evidence”) and that verdict will be delivered regardless whether PGMA explains or not about the Garci tape and/or whether she claims or not that the Opposition did not prove their case.

    But based on your April 10, 8:01 am post; what is the relevance now of whether PGMA explains or not about the Garci tape when the impeachment court will deliver a verdict based on your “standard of evidence” regardless of whether she explains or not and/or whether she claims or not that the Opposition did not prove their case?”- Justice League

    The relevance is the need to know the truth to satisfy the requirement for public accountability. To continue with the parallels to Watergate, it is in the public interest to answer the question – What did Gloria Arroyo know, and when did she know it?

  35. mlq3

    justice league, i do think it requires a lower standard than one would expect and demand from a normal court. the purpose of impeachment is to determine fitness for office, it’s a fundamentally political weighing of the accusations: conceivably a president might never be actually be found guilty of crimes but he might be found to be unfit to hold office anyway.

    and yes, the watergate case is what i have always had in mind.

  36. justice league

    Cvj,

    I hardly understand the 1st paragraph along the context of my quoted statement.

    Alright I will accept your “need”. But can you compel the accused in an impeachment court?

    And should the accused testify and deny the specifics of the allegations; can the accused be compelled to state more?

    If the defense tries to portray/prove that the tape is a forgery; the accused could very well reiterate the same.

    I have been trying to read Manolo’s 3rd link. Since ex-Pres. Estrada never got to testify on his own behalf before the Impeachment court; I’m forced to look elsewhere as to what kind of answers would have been demanded from him or if he actually would have been compelled to testify and I’ve read the one on Pres. Johnson.

    In the impeachment of Pres. Andrew Johnson; the President sent his plea and answer to the articles of impeachment which was just basically a denial of the allegations and charges.

    The impeachment of Pres. Johnson was chronicled lengthily but there seems to be NOT a single mention of him taking the witness stand nor testifying for his own behalf.

    And even without this seeming testimony; the Senate impeachment court reached their verdict.

  37. justice league

    Manolo,

    I guess the ball is on your court to define for us how low that standard should be.

    I don’t necessarily agree with your idea of the purpose of impeachment but I guess you also have to give us a criteria of “fitness and unfitness” to hold office.

  38. cvj

    “Alright I will accept your ‘need’. But can you compel the accused in an impeachment court?

    And should the accused testify and deny the specifics of the allegations; can the accused be compelled to state more?” – Justice League

    With GMA’s refusal to provide an explanation in the face of such need, she could be charged with contempt of court.

    It is also possible, under certain circumstances, Rule 130, Section 32 ‘Admission by Silence’ may be applicable:

    An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given as evidence against him.

    On the other hand, GMA’s denials will also be evaluated against her own credibility versus that of the evidence.

  39. justice league

    Cvj,

    I have serious misgivings about your idea of compelling the accused in lieu of being cited for contempt. I hardly believe you can compel her to be a witness against herself.

    And though you are working on the premise that the Garci tape is convincing evidence, the defense still has the oppotunity to weave it’s tactics against it. The defense can still demure depending on how strong or weak the prosecution case is after the presentation of evidence by the prosecution.

    Anyway since its your idea, you can elucidate more if you wish.

    As to the “admission by silence”, we are not even sure if PGMA will be present in the impeachment court when the prosecution presents the Garci tape so as to be scrutinized for her response or non-response.

    But if we go back to publicly available information, it would appear that PGMA’s “men” have even beat the accusation to the punch when a number of them brought out so called “forged”, “pre-forged” or whatever Garci tapes to the public.

    Your last paragraph however seems to show you amenable to “denials”. With that being the case, we can wait to see how the prosecution presents its case regardless of whether PGMA provides a convincing explanation of why her conversation with Garci during the election period does not constitute betrayal of public trust.

  40. cvj

    Justice League, in any normal trial, i would agree that a person cannot act as a witness against himself/herself. However, as a government official undergoing a quasi-judicial proceeding of an administrative nature, i believe there is room for compelling such disclosure. After all, it is her job position, not her personal liberty that is at stake.

    If her presence in court is what is required to bring about an “admission by silence”, then i hope the prosecution makes sure that GMA is present when evidence and/or witnesses are presented.

  41. justice league

    Cvj,

    With a dearth of Impeachment related info, I am again forced to look elsewhere for information.

    According to the “PROCEDURE AND GUIDELINES FOR IMPEACHMENT TRIALS IN THE UNITED STATES SENATE” released in 1986 by Sen. Byrd and Sen. Dole; it stated that the first instance of a respondent taking the stand on his own behalf was Judge Robert Archbald. (Which didn’t do much for his case as he got convicted)

    But all those before him who were acquitted in their own impeachment trial never testified in their own behalf which included Pres. Andrew Johnson, Sec. Belknap, Judge Peck, etc…

    Judge Peck even acted in his own defense, giving
    evidence and questioning witnesses. But Peck didn’t take the witness stand himself.

    Now as to PGMA’s presence in the impeachment court; the prosecution wasn’t able to secure Pres. Estrada’s personal appearance in his impeachment while the prosecution was presenting their evidence and witnesses so I wonder how the prosecution will force PGMA to go to hers.

    With regards to the U.S. experience; the above article also states

    “Whether or not the respondent appears in person or by attorney‘‘on the day so fixed therefor as aforesaid, or, appearing, shall fail to file his answer to such articles of impeachment, that trial shall
    proceed, nevertheless, as upon a plea of not guilty.

    If a plea of guilty shall be entered, judgment may be entered thereon without further proceedings.’’

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