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Jan 17

The Senate and the People of the Philippines

Maccari-Cicero.jpg

Cicero denounces Cataline, by Cesare Maccari

The Corona impeachment trial continues.

If impeachment as a process harks back to the House of Lords, the British Parliament, by way of the Congress of the United States, then yesterday’s opening of the impeachment trial was, itself, suffused with the history, and traditions, of legislatures of the past: our own, and those to whom our Congress owes its antecedents. As I wrote yesterday, the framers of the 1987 Constitution made impeachment much more possible than the framers of the 1935 Constitution; while the Senate retained the substantial procedures adopted during the Estrada impeachment trial, but with some innovations of its own (the red robes being the most obvious example; also, the Senate President’s insistence that only members of the House can address the Senate directly). Along the way, in yesterday’s proceedings, the Senate also upheld certain principles central to the identity of legislatures.

To illustrate my point, there are three things I want to point out as significant about Senate President Enrile’s opening remarks and rulings yesterday.

Take this portion of his opening remarks:

Hence, by its very nature, the work we are about to do is unique. It is a rendition of justice outside our traditional judicial system and it carries with it a grave and serious responsibility. It deviates from our ordinary or normal functions and duties as legislators. The House of Representatives impeaches on the basis of its determination of the sufficiency of the charges both in form and in substance, and of the existence of probable cause, while the Senate bears the sole responsibility to try and decide whether to convict or to acquit the respondent in an impeachment case, that is, whether or not the respondent official deserves to be removed from the office he or she occupies, based on the grounds dictated in the Constitution.

This was an assertion of the prerogatives of Congress. And an assertion, as the Latinist-oriented lawyers might put it, that impeachment is a process that is sui generis, literally, “of its own kind,” or unique. The Rules of Court, for example, such as they are, are supplementary: they are not superior to the rules of the Senate governing impeachment trials (see Rule VI). The Senate President pointedly emphasized this fact –something the defense panel will obviously find it difficult to understand.

A simple demonstration of this is the difference between the opening statements of the Prosecution and Defense. See Rep. Niel Tupaz’s speech and the opening statement of Atty. de los Angeles; the former focuses on impeachment in terms of its being a National Inquest, while the latter made this argument: “The pictures of the Bellagio and the bloated list of titles are, therefore, irrelevant to this trial.” But what of Article II of the Articles of Impeachment? It will be interesting to see how this plays out –as it starts to play out, today.

(On a parenthetical note, there’s been a lot of talk about Tupaz quoting Cromwell, though which version, exactly, he used, may be the source of confusion; but the interesting note here is how it the passage is a powerful one, indeed: consider how Leo Amery used it to historic effect in the parliamentary debate that decided the fate of the premiership of Neville Chamberlain)

Another portion of the Senate President’s opening speech is tied to the acknowledged role of public opinion in this, and all proceedings, of the Senate:

While it has often been said that, by and large, the trial in an impeachment case is political in nature, nonetheless, such is neither an excuse nor a license for us to ignore and abandon our solemn and higher obligation and responsibility as a body of jurors to see to it that the Bill of Rights are observed and that justice is served, and to conduct the trial with impartiality and fairness, to hear the case with a clear and open mind, to weigh carefully in the scale the evidence against the respondent, and to render to him a just verdict based on no other consideration than our Constitution and laws, the facts presented to us, and our individual moral conviction.

The Senate President has been emphatic about our government being a republican, representative democracy, where popular sovereignty is delegated to representatives. And yet, the public is acknowledged to play a role in observing the proceedings and the conduct of all those participating in the proceedings. It’s also relevant to note that as originally conceived by the framers of the American Constitution, impeachment didn’t necessarily involve due process or the procedures of a judicial proceeding. Beyond what Madison stated in his arguing for impeachment –that there would be charges, that the accused ought to confront those charges and defend himself– the process of impeachment was assumed to involve public passions and take into account partisan considerations. It was during the impeachment of Supreme Court Justice Samuel Chase that the U.S. Senate decided to adopt the procedures of a trial –and the decorum of a trial– a personal decision of the President of the U.S. Senate, Vice-President Aaron Burr. This is a demonstration of the power of the presiding officer: not only in terms of rulings, but even in terms of putting their personal stamp on how the impeachment trial is conducted. Enrile can be expected to be a stickler for decorum and all the parliamentary courtesies, and it will be interesting to see how he interprets his injunction against private prosecutors directly addressing the Senate.

Another point involves political policy: the determination to see the proceedings through to their conclusion. The impeachment trial of President Estrada was never finished, the prosecutors dramatically walking out after the vote on the Second Envelope. As Senate President Enrile said,

As I preside over this impeachment trial, allow me to assure one and all that I am committed and determined to see this process all the way to its completion. Let us finish the job, for our Oath demands no less from us.

Although the ostensible respondent in the trial before us is the Chief Justice of the Supreme Court, we cannot escape the reality that, in a larger sense, the conduct of this trial and its outcome will necessarily have a serious impact on the entire nation. Its success or failure to achieve the purpose for which the Constitution has provided this mechanism as part of our system of checks and balances and of public accountability, may spell the success or failure of our democratic institutions, the strengthening or weakening of our sense of justice as a people, our stability or disintegration as a nation, and the triumph or demise of the rule of law in our land.

This further emphasizes the role the public plays in the proceedings. On one hand, as elected officials, senators and congressmen know there can be a political price –or bonus– depending on how the public perceives their performance. On the other hand, there is also a rather stern (and absolutely correct, in my opinion) insistence on the part of Enrile to jealously guard the prerogatives of the legislature. By its nature, the separation of powers is a messy thing, where each branch in a sense, is required to interact with the other branches even if this is fraught with tension from time to time. When a branch of government asserts its prerogatives at the expense of another, political antennas start twitching and the phrase “constitutional crisis” gets bandied about.

Talk of the defense eventually taking its case to the Supreme Court is one such possible cause of tension; it has happened before, and in terms of the previous collision between the legislature and the judiciary (indeed, you can view the current impeachment trial as Round 2 in this fight, see Article IV of the Articles of Impeachment).

I do believe that every politician has, in him, the potential for at least one great speech. For Jose de Venecia, better known as a cunning political operator than an inspiring orator, that speech was the one he delivered, by all indications, extemporaneously, from the rostrum when the House was faced with a true constitutional crisis. Newsbreak, in the story, All Messed Up (December 8, 2003: I do dispute the description of the speech as “incoherent,” a review of the speech itself suggests otherwise). The crisis was caused by the desire of members of the House, to impeach the Chief Justice (then Hilario Davide, Jr.) and the Supreme Court’s handing down an order to the House, to cease and desist. The crisis stemmed from the House facing the question, for its part, of whether it should proceed; the executive, on the other hand, having to decide whether, if ordered by the Supreme Court to enforce its order, it would use the police power to compel the House to obey the Supreme Court; and the Supreme Court’s placing the two other branches in quite a pretty pickle. In the end, de Venecia’s decision was to wriggle out of the crisis by convincing his colleagues to drop impeachment, rendering the Supreme Court’s injunction moot and academic.

Based on what Enrile said yesterday, he seems bent on taking a more combative tack: essentially telling the Supreme Court to lay off. It is a spectacular game of political chicken, since there are five pending petitions before the Supreme Court to declare the impeachment trial unconstitutional. In this instance, even if the Supreme Court were to try to decree an end to the proceedings, it would be confronted with the Senate President as an individual, and the Senate as a collective: with both able to argue, and insist, the impeachment court is the sole and final authority on all things concerning impeachment. This was underscored by the rulings made by Enrile (quite probably, the product of a caucus with his colleagues: this would be in keeping with traditional Senate practice where controversial questions are settled in a huddle, so that the Senate, as an institution, maintains a united stance in public).

Yesterday Enrile ruled against holding a pretrial conference. He ruled that the House (Rep. Tupaz had pointed to the Journal of the House) and Senate (in issuing its Writ off Summons to the Chief Justice) had fulfilled the requirements of the Constitution and acted in keeping with their powers –a point further fortified by his first ruling in today’s hearing, where he denied the motion of the defense to summon members of the House to question them on the manner in which the House undertook the signing and verification of the Articles of Impeachment. Enrile underscored this point when Justice Cuevas tried to make a manifestation on the motion to subpoena the Chief Justice and members of his family; Enrile said he could make a manifestation but that he’d already made a ruling; leading Cuevas to back down to give way for the ruling to be read. The Senate, anyway, ruled in favor of the defense, saying that it went against the defendant’s right not to incriminate himself:

“THE SECRETARY GENERAL. Re: Request for subpoena to the members of the Corona family.

This court addresses the request for the issuance of subpoena, dated January 12, 2012, filed by the House of Representatives, requesting for the issuance of subpoena ad testificandum and duces tecum, directed to Chief Justice Renato C. Corona, respondent Chief Justice, his wife, Christina R. Corona, their children, Carla R. Corona-Castillo and Francisco R. Corona, and their children’s spouses, Constantino T. Castillo III and Charina R. Corona, to require them to appear and testify before this court during the hearing on January 16, 2012 at 2:00 p.m. or on such other date and time as may be specified by court and to bring with them documents specified.

This court resolves to deny the request. First, the primary purpose of the request for the issuance of subpoena to respondent, Chief Justice, is to require him to testify for the prosecution in relation to the articles of impeachment filed against him. This cannot be done without running a cowl of respondent’s constitutional rights against self-incrimination.

Section XVII, Article 3 of the 1987 Constitution provides, no person shall be compelled to be a witness against himself. The justification for the guarantee was stated by the Supreme Court by the avuncular case of U.S. vs. Navarro, the Supreme Court ruled, it was established on the grounds of public policy and humanity, of policy, because if the party were required to testify, it would place the witness under the strongest temptation to commit perjury, and of humanity, because it would prevent the extorting of confessions by juris.

In similar vein, Supreme Court in U.S. vs. Tan Teng, categorically opined that the main purpose of the provision is to prohibit compulsory oral examination of prisoners before the trial, or upon trial for the purpose of extorting and willing confessions or declarations implicating them in the commission of a crime.

This constitutional provision applies to civil, criminal or administrative cases. This is not without jurisprudential justification. In Cabal vs. Kapunan, Jr., in a proceeding for forfeiture of property under Anti-Graft Law, the respondent therein was accorded the right to refuse to take the witness stand to testify. In Pascual vs. Board of Medical Examiners, the respondent therein in an administrative investigation for immorality and malpractice was accorded a similar right since the revocation of his license as a medical practitioner could even be more serious deprivation than forfeiture of property, neither may the respondent Chief Justice be compelled by subpoena to produce documents stated in the request. This is because the prohibition is also applied to the compulsion for the production of documents, papers, and chattels that may be used as evidence against the witness.

There is no reason for this court not to apply the above jurisprudential doctrines. It should be stressed that, if convicted, respondent Chief Justice would suffer the penalty of a removal from his position as Chief Justice before the expiration of his term, and suffer perpetual disqualification from holding any government position. Therefore, it would violate the constitutional right of respondent Chief Justice against self-incrimination if he would be compelled to appear and testify against himself by virtue of a subpoena directed to him by the court, upon the request of the prosecution.

Second, it must also be emphasized that even under the Rules of Procedure on Impeachment trials of this court, the person impeached is not required to attend the proceedings. The only consequence of his failure to appear is that the proceeding shall continue in his absence.

Thus, the Senate impeachment Rules provides to wit: Number seven, upon the presentation of the Articles of Impeachment in the organization of the Senate as herein before provided, a writ of summon shall be issued to the person impeached, reciting or incorporating said articles and notifying him/her to appear before the Senate upon a day and at a place to be fixed by the Senate, and name in such wit and to file his/her answer to said articles of impeachment within a non-extandible period of ten days from receipt thereof, to which the prosecutors may reply within a non-extendible period of five days therefrom, and to stand to and abide by the orders and judgment of the Senate. Such writ shall be served by such officer or person named in the order thereof not later than three days prior to the day fixed for such appearance of the person impeached either by the delivery of an attested copy thereof to the person impeached but the personal service cannot be done, service of the writ may be made by leaving a copy with a person of sufficient age and discretion at his/her last known address or at his/her office or place of business. And if the service of such writ shall fail the proceedings, shall not thereby abate but further service may be made in such manner as the Senate shall direct.

If the person impeached, after service, shall fail to appear either in person or by counsel on the day so fixed or appearing shall fail to file his answer to such Articles of Impeachment, the 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.

Anent the request for the issuance of subpoena duces tecum and ad testificandum to the respondent Chief Justice’ wife, Cristina R. Corona, the Court also denies the same. The last sentence of Section 6 of the impeachment rules state that: “The provisions of the Rules of the Senate in the Revised Rules of Court shall apply suppletorily whenever applicable.” Thus, the Court is of the considered view that Section 22, Rule 130 of the Revised Rules of Court squarely applies. It provides: “Section 22. Disqualification by reason of marriage. During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse except in a civil case by one against the other or in a criminal case for a crime committed by one against the other, or the latter’s direct descendants or ascendants.” The reasons given for the rule are: Number 1, there is identity of interest between husband and wife. Second, if one were to testify for or against the other, there is consequent danger of perjury. Three, the policy of the law is to guard the security and confidences of private life even at the risk of an occasional failure of justice and to prevent domestic disunion and unhappiness. And fourth, when there is want of domestic tranquillity, there is danger of punishing one’s spouse in the hostile testimony of the other.

For this rule to apply, the following requisites must be complied with. One, that spouse for or against whom the testimony of the other is offered, is a party to the case. Second, that the spouses are legally married. Third, that the testimony is offered during the existence of the marriages. And fourth, that the case is not one against the other.

This Court is of the view that the foregoing requirements for the application of marital disqualification rule under Section 22 , Rule 130 of the Rules of Court are present in the instant case.

For one, it is an admitted fact that Mrs. Cristina Corona is the wife of respondent Chief Justice and that she sought to testify during the existence of her marriage with the respondent Chief Justice. Secondly, the request for the issuance of subpoena to Mrs. Corona is for her to testify in favor of the prosecution. Thirdly, this impeachment case is definitely not a case of Spouses Corona against each other. Thus, not falling within the recognized exception of the marital disqualification rule, this Court finds the request for subpoena duces tecum and ad testificandum to Mrs. Cristina Corona without legal justification.

As far as the request for the issuance of subpoena to respondent Chief Justice’s children, Carla R. Corona Castillo and Francis R. Corona are concerned, it should also be stated that these are also disallowed.

Section 25, Rule 130 of the Revised Rules of Court, provides that: “Section 25. Parental and filial privilege. No person may be compelled to testify against his parents, other direct ascendants, children, or other direct descendants.” The above is an adaption from a similar provision in Article 315 of the Civil Code that applies only in criminal cases adopted in Article 215 of the Family Code. But those who revised the Rules of Court chose to extend the prohibition to all kinds of action whether civil, criminal or administrative filed against parents and other direct ascendants or descendants. The disqualification is intended to preserve family solidarity and to prevent a common child to be used by a parent against the other on criminal litigations between them. The solidarity and unity of the family is shattered when a child takes sides in parental feuds. Neutrality is still the best part of prudence on the part of descendants except only in extreme cases. Thus, on account of the foregoing reasoning, this court cannot issue subpoena to respondent Chief Justice’s children, Carla R. Corona Castillo and Francis R. Corona.

With respect to the request for subpoena duces tecum and ad testificandum to Mr. Constantino T. Castillo III and Charina R. Corona, this court adopts the doctrine of necessary implication. The doctrine of necessary implication means that what is implied in the statute is as much as part thereof as that is expressed. This court believes that by necessary implication, children-in-law are covered by the prohibition to testify on account of parental and filial privilege. The rationalization of this court is bolstered taking into account the primordial purpose of parental and filial privilege which is the solidarity and unity of a family.

Wherefore, in view of all the foregoing, the request for the issuance of subpoena dated January 12, 2012 be denied for lack of merit. Signed, Senate President Juan Ponce Enrile.”

I understand that a wife cannot be compelled to testify against her husband, unless it is a case between the spouses. The same applies to papers: defendants cannot be compelled to produce self-incriminating documents.

So now: to observing today’s hearing as it unfolds.

Update 3:57 pm:

Word of The Day:

Pari passu is a Latin phrase that literally means “with an equal step” or “on equal footing.” It is sometimes translated as “ranking equally”, [1] “hand-in-hand,” “with equal force,” or “moving together,”[citation needed] and by extension, “fairly,” “without partiality.”

In my entry earlier today, I suggested that Senate President Enrile probably hoped to manage the trial by consensus: that is, for his rulings to reflect a consensus arrived at in caucus, rather than have the rulings of the chair lead to wrangling on the floor. But after Enrile’s ruling on the motion to issue subpoenas ad testificandum and duces tecum to the Chief Justice and his family,which he ruled against, citing the Constitutional right against self-incrimination, Senator Allan Peter Cayetano rose to contest the ruling, citing the forfeiture law and jurisprudence on it. Cayetano himself suggested this was Enrile’s hope, when he diffidently said he thought carefully about whether he should rise to contest the motion: stating he agreed as far as the Chief Justice is concerned (he has a right not to incriminate himself) but disagreed as far as family members are concerned. Enrile responded by saying he had no intention to shackle the prosecution; after some discussions the end result was, after a rather lengthy period of tiptoeing around the issue, a break to caucus on the question. After a lengthy caucus, Enrile restated the motion he made, how the prosecution submitted, and a motion made questioning the ruling. Enrile said he had decided to divide the house on the issue. Result? Saying aye and nay failed. So hands had to be raised. 14 in favor of the ruling of the chair, 6 against. So the ruling was sustained. Here is the breakdown according to Interaksyon:

The six senators who voted to reconsider Enrile’s ruling:

Cayetano (Alan Peter)

Cayetano (Pia)

Villar

Trillanes

Guingona

Pimentel

The 14 senators who supported Enrile’s ruling:

Estrada

Sotto

Angara

Arroyo

Drilon

Escudero

Honasan

Marcos

Lacson

Lapid

Osmena

Pangilinan

Recto

Revilla

Another motion: defense motion to reject private prosecutors. Chair ruled that since the House rules permit private prosecutors to assist the House prosecutors, the motion would be denied. Prosecution made an interesting manifestation objecting to the Senate President’s saying the impeachment trial is in the nature of a criminal proceeding. Enrile explained what he meant –stating that the case is sui generis, indeed– was that the case is closer to a criminal rather than a civil case. Asked the source, Enrile replied to the prosecution, “it is the product of my own mind.” Much mirth followed by continuing mirth over the vigorous enunciation of legal terms by Rep. Barzaga. Then there was wrangling over the order of articles, leading to the Senate President’s bon mot, pari passu. Joker Arroyo at one point helped by pointing out the prosecution has the right to determine the order in which it will present evidence. Then Barzaga buckled and acceded to the defense’s insistence on postponing the proceedings. The whole thing went from bad to worse: it got tangled to the extent that Senator Angara had to propose a means for the day’s proceedings to be salvaged from “total disaster.” But it wasn’t enough to rescue the proceedings. So, a suspension, as His Magnificence the Senate President dryly put it, “for one long minute.”

When the hearing resumed, it was simply to signal the inevitable. So Enrile had to suspend the hearing until tomorrow.

(On a historical note, today is the anniversary of President Marcos’s proclamation of the 1973 Constitution: the maneuverings he engaged in are discussed in my entry, The Referendum Scorecard 1935-1987.)

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