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Jan 19

He said, She said, and Gravitas

6154431101_d0544793da_z.jpgThe old Senate session hall, now being restored, as photographed by Roy de Guzman. Among its features is a frieze with sculptures of the great lawmakers and lawgivers of history:

North Wall

Hammurabi, Moses, Ramesses the Great, Li Si, Augustus Caesar, Sir William Blackstone;

South Wall

Solon (Athenian Statesman), Averroes, Justinian, Manu, Charlemagne, Hugo Grotius, Woodrow Wilson, Pope Leo XIII;

East Wall

Kalantiaw, Mabini.

From 1926 until the Legislative Building was destroyed in 1945 (from 1926-1935 as the session hall of the Senate, then for the National Assembly), then from 1949 to 1972 (again as the Senate, but oddly enough, with the lower floor covered over), and again from 1987 to 1998 (also with the lower floor covered), these statues loomed over lawmakers as they conducted their work. One can only wonder what it would have meant to the proceedings of the Senate, either in 2000-2001 or now, if they had stayed in their old chamber, with its palpable associations with history.

“Let that impression be a function of the public. If they have that impression, they can punish us.” –Senate President Enrile on senators’ alleged bias, quote reported by Ryan Chua

A basic question seems to have escaped many people as they scurry down the rabbit-hole of legalese: why do you think the removal of elected or appointed officials with fixed terms was placed in the hands, not of the courts, but of the legislature –composed of individuals not even required to be lawyers?

And why is it that impeachment is no obstacle to criminal trial and conviction?

The answers to both would go a long way in clarifying in people’s minds what impeachment is, and how impeachment as a constitutionally-ordained procedure for deciding whether unofficial deserves to remain in office or not, stands in comparison to criminal trials. If you consult the Journal of the Constitutional Commission that framed the 1987 Constitution, there’s a portion where the framers explained what they intended, when they put in the provision on impeachment. Would the Senate adopt criminal procedures? Strictly speaking, no. What the impeached official deserves is appropriate notice of the charges and a chance to respond –this is discussed by former Chief Justice Artemio Panganiban in his article, Due process in impeachment.

A good place to start is Impeachment: A Political and Historical Guide, published by the Official Gazette. Consider the Grounds for Impeachment: they consist of defined crimes, and other offenses that are not felonies. Consider, further, How Conviction or Acquittal is Determined: essentially as a conscience vote. And consider What is the Result of Conviction in an impeachment trial: loss of public office (and beyond the power to pardon on the part of the Chief Executive), without prejudice to a criminal trial afterwards. The principle at work is the prohibition against double jeopardy.

To be sure, the Constitution itself is the basic law; and the Rules of Court apply in the Senate Rules, to supplement its own rules. Debate and the presentation of interpretations by lawyers will be vigorous: see the articles of Daniel Wagner, Edsel Tupaz, and Jermaine Spence, Of politics and the rule of law in the Philippines, and that of Raul Pangalanan, Anti-democratic constitutionalism; see as well, Artemio Panganiban’s More political than legal.

The basics seem clear and doesn’t require rocket science: there are times when it is necessary to determine if a high official deserves to stay in office or not; there is a procedure for determining this, and the procedure is lodged in the two houses of the legislature; there are grounds for removal, which range from crimes defined in the statute books, to more loosely defined ones, but they all involve acts and behavior that are deemed to be so grave, and serious, as to justify removal from office. On the other hand, for the kinds of impeachable offenses that are also criminal offenses, officials can also be tried in a court of law for those crimes (which carry corresponding penalties ranging from imprisonment, to fines, or both). The entire process is put in the hands of legislators, whose qualifications for office are basic, ranging from residence, to citizenship, to age and no more. Meaning: both in determining whether an official should be impeached, and whether an impeached official should be removed from office or not, the capacities of an ordinary citizen are sufficient to handle the task.

Commentaries by lawyers include the observations in @abogadomo.com:

So what were the important legal lessons in day 3 of the trial? First, is the importance of obeying a subpoena. As defined under the Section 1, Rule 21 of the Rules of Court, a subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.

As seen yesterday, even if Ms. Vidal tried to convince the senators-jurors that she needed the authorization of the Supreme Court before submitting the SALN to the impeachment court, she had no choice but to comply since the said documents were requested through a validly issued subpoena. Had she continued to be non-cooperative, she could have been cited for contempt.

Another observation is this:

Another interesting highlight of the impeachment trial yesterday was the objection posed by Atty. Cuevas to a question propounded by senator-juror Franklin Drilon to Ms. Vidal. A sheepish Atty. Cuevas had to backtrack when reminded by Senate President Enrile that this was not allowed under the Rules on Impeachment promulgated by the Senate.

Even during proceedings in regular courts, a judge is allowed to question witnesses and any lawyer worth his salt would not object to this. As held by the Supreme Court in several cases, a judge is called upon to ascertain the truth of the controversy before him. He may properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time (Domanico v. Court of appeals, 122 SCRA 218, 225 [1983]) and clarify obscure and incomplete details after the witness had given direct testimony. (Valdez v. Aquilizan, 133 SCRA 150, 153 [1984]). After all, the judge is the arbiter and he ought to satisfy himself as to the respective merits of the claims of both parties in accord with the stringent demands of due process. (People v. Ancheta, 64 SCRA 90, 97 [1975]).

Professor Vicky Avena for her part, said on TV yesterday:

Absolutely correct observation, Lynda. And if we may just share with the public, kahit sa kaso, sa korte, ang judge, mayroong kapangyarihan na magtanong ng classificatory.

Now Senate President Enrile said, ‘dito, kahit hindi lang clarificatory, kahit cross-examination, puwede.’ I think sinabi niya yun kasi he is cognizant of the role of the impeachment court which is, in fact of any court, which is to arrive at the truth.

While it is true na parang magmumukhang kumakampi ka with one or the other at a certain point, pero kung ang Senator-judges, ang talagang tingin nila, ‘We want to know this,’ —ganun ka-simple, ‘Gusto naming maliwanagan,’ ‘Ano ba, meron ba talagang SALN?’ ‘Ano bang laman ng SALN?’ It’s really common sense, makatwiran naman yun.

Kapag ganung nagkataon na makatwiran yan kahit mukhang pumapanig sa kahit anong parte ng mga naglalaban, hindi mo ma-bblame yung mga judges na gustong malaman ang katotohan. And therefore, pag sinabi nilang hindi lang clarificatory kung di cross-exam, I think it’s because of the duty of the impeachment court.

Sa ordinaryong korte, bawal ang cross-exam kasi parang kang kumikiling, tinutulungan mo yung isang parte. Pero nga sa impeachment court, iba yung mandate eh. The mandate is to get at the truth, to preserve democracy.

So basically, Senators can ask anything they please, in their desire to clarify points as they deliberate on the charges and the evidence presented by both sides. Yesterday, there was a curious exchange in the impeachment court and in the Supreme Court.

In reverse chronological order, this is what Midas Marquez said, around 4:50 p.m. yesterday:

Marquez: The Chief Justice has already authorized the release of the SALN and he let his lawyers when to actually allow it to be released. And therefore there’s no really big issue about it. And just for the assurance for the clerk of court, I was just summoned by the Chief Justice and was told by the Chief Justice to assure the Clerk of Court that she has nothing to worry about as far as the Chief Justice is concerned.

Paulit-ulit naman ang ating punong mahistrado na binabanggit sa kanyang mga talumpati at panayam kung ano ang nakasaad sa kanyang SALN. So talagang walang rason para itago pa ‘yung SALN na iyon.

Therefore, there were no opportunities for the court of clerk to seek an advice or to seek the advice of the court en band.

(Question…)

M: Maaari, because if you were to study the grounds, the guidelines issued by the court, there are grounds in which the court will allow the giving of the SALN. So lalo na ‘to subpoena from the Senate impeachment court, I think that is something that the court en banc will consider duly.

(Question…)

M: It’s not a matter of the court informing Atty. Vidal. As I’ve said Atty. Vidal have already included the subpoena for Tuesday’s en banc session and perhaps what would happen prior to the en banc session on Tuesday, Atty. Vidal will likewise submit a manifestation of what actually transpired in the hearing this afternoon to the en banc, so the court en banc can come up with a resolution, taking into consideration everything that has transpired.

(Question…)

M: Kung titignan natin yung guidelines na pinalabas ng Supreme Court noong 1989, which was reiterated three, four more times in 1990s, paliwanag doon na puwede naman talagang ilabas yung SALN huwag lang lilihis dun sa guidelines.

Wag lang gagamitin for fishing expeditions, wag lang gagamitin for harassment purposes. In this particular case, this is a subpoena issued by the Senate impeachment court. We would like to think that subpoenas issued by courts are not meant for fishing expeditions of for harassment purposes. These are valid court processes which we all have to comply with.

(Question…)

M: I think that Atty. Vidal wanted to deliver, the message she wanted to deliver when she went there is to tell the Senate impeachment court of the policies of the court –number 1. Number 2, that there is a pending case, and that is the PCIJ case. And number three, that she has already included the subpoena in Tuesday’s en banc session. And leave the decision to the Senate impeachment court what it would do.

Will the Senate impeachment court respect a co-equal branch of government and say ‘Okay, let’s defer that issue and let’s wait for Tuesday’ or will the Senate impeachment court, nonetheless, require the immediate submission because of the subpoena it issued.

I think that was what Atty. Vidal wanted to deliver, that message: ‘Ito and polisya ng Korte Suprema, nasa sa inyo na po kung ano ang gusto ninyong gawin.’ In this particular case, nakita naman po natin kung ano nagging desisyon ng Senate impeachment court ay kunin pa rin o ipasumite yung SALN.

But as I’ve said, there seems to be no problem at all because anyway, the Chief Justice has already authorized the release of the SALN and in fact, he’s assuring the clerk of court that as far as he’s concerned, she, the clerk of court has nothing to worry about.

(Question…)

M: Well, of course the chief, including the defense lawyers would invoke all these technicalities. Katulad nga naman ng sinasabi n gating Punong Mahistrado noong una pa sa kanyang talumpati, sa kanyang mga panayam, ‘Wala po akong tinatago. Ang nasa SaLN ko ay limang pag-aari lamang.’ In fact sinabi nya na yung laman eh so bakit naman itatago pa niya?

(Question…)

M: Yung nasa impeachmet court kasi, ang pina-subpoena lanag naman eh yung SALN ng Chief Justice so siguro hindi natin puwedeng ihambing yung kundisyon ni Chief Justice dun sa kundisyon ng labing-apat na mahistrado dahil wala naming kautusan galling sa Senate impeachment court o kung ano mang korte na ilabas ng 14 na mahistrado ang kanilang SALN. So we are just talking about the Chief Justice here.

(Q)

M: Ang naka-subpoena naman, yung agenda ng Senado, regarding the SALN of Chief Justice Renato Corona… ang pending issue before the Supreme Court.

Now this is what transpired in the Senate earlier that day. It begins with the prosecution presenting the Clerk of Court of the Supreme Court as a witness (and the Senate President wondering why the witness hadn’t been presented as a hostile witness).

Atty. Bautista What documents did you bring with you, Ma’am?

Ms. Vidal: Just some notes on several requests for SALN and the court action on them.

B:  May we examine them, please?

V:  Just my notes only. They are my notes only.

B.: Sorry, my understanding was that you had the actual requests.

V.: No. But I placed in the rollo of the court …

B.: Thank you.

V.: … which we are not allowed to bring out.

B.:  So, these requests are also registered or recorded in a log book?

V.: They are included in the rollo of the AM matter.

B.:   Forgive me. Can you please describe on a step by step process how a request for a SALN is received by your office?

Justice Cuevas:  I am apprehensive to make an objection, Your Honor, but the demands of justice and in fairness to the impeached public official, I am placing on record my objection to the— Because these are impertinent, immaterial and irrelevant to the subject under consideration, Your Honor.

The Senate President: The witness may answer. She is just asked to described the manner the procedure of …

C.: Okay. Submitted, Your Honor.

JPE:  .. the request for the release of the SALN.

V.:  When we receive any request for SALN, we place the pleading or the motion or the letter for that matter in the rollo of the case where there are other requests for SALN are also reported.

B.: And after placing it in the rollo, what do you do with it?

V.:  They are included in the agenda of the court.

B.:  But you do have a file of all these requests?

V.:  Yes. The court—In our office, we have a file.

B.:  Are they also kept in a vault or a safe?

V.:  No, Your Honor.

JPE: Just a minute, Mr. Counsel. I just want to clarify. When you say place it in the agenda, for what purpose is it placed in the agenda of the court?

V.: The matter is placed in the agenda of the court for its appropriate action and information.

JPE: Matters placed in the agenda of the court are under the disposition of the court?

V.: Yes, Your Honor.

JPE:  Proceed, counsel.

B.:  So, Madam witness, you do not consider it your obligation under the SALN law to make any decisions with respect to disposition of request for SALN?

V.: Yes, Your Honor.

C.:  For direct examination, Your Honor.

JPE: She has already answered that she’s incompetent to do that.

B.: Yes, thank you, Your Honor.

Your Honor, please, may we reserve right to subpoena the individuals earlier mentioned by the witness and the other documents which were referred to during her testimony?

JPE: Will you please clearly state into the record your request for subpoena. Who are to be subpoenaed? What documents are to be brought in? So that the ___ and that proper orders will be issued.

JPE:  In the meantime, session is suspended for one minute. (Gavel)

(later) Drilon:  I already forgot my question, Your Honor. Again, this subpoena duces tecum requires you, Madam, to produce the sworn statements of assets and liabilities and networth (SALN) of Chief Justice Renato C. Corona for the years 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011. And you said you submitted this to the court for their disposition. Now, if the Court does not approve this subpoena, are you going to bring these documents to the court?

Ms. Vidal: I follow the resolution of the Court dated May 2, 1989.

D.: Please answer my question, yes or no. Will you bring it if the Court does not authorize you to bring them?

V.:  The Supreme Court has its rules which is a co-equal body as the Senate.

D.:  So, you will not …

V.: I am awaiting instructions from the Court.

D.: Assuming that the instruction is not to authorize in consistence with the Resolution, to bring the SALN of the Chief Justice, you will not obey the subpoena of this Court.

JPE: Witness, I must remind you that while we respect the separation of powers, we obey the subpoena of the Supreme Court.

V.:  Yes, sir.

JPE:  And we hope and expect that the Supreme Court as an equal branch will equally respect the processes of this Court. And so, kindly answer the question of the Senator from Iloilo.

V.:  Yes, Your Honor. I placed the subpoena in the agenda of the court for its information and I await the instruction of the Court which I believe …

JPE: But aren’t you the custodian of the records?

V.:  Yes, Your Honor.

JPE:  As custodian of the records, you have disposition over those records.

V.: Yes, Your Honor.

JPE: And so, therefore, if we call on you to produce those records, then you must produce them.

V.:  Yes, Your Honor.

JPE:  All right. May I request counsel for the respondent to please take note of this. That this court under the Constitution has the sole power to try and decide this case. We must not be impeded by any agency of government in the performance of our duty.

C.:  We take note of that, Your Honor.

D.: So that, just asking the view of the witness as a custodian of these records, it is not your view that the orders of this impeachment court is not subject to the approval of the Supreme Court. In other words, you do not subscribe to the proposition that the orders of this court for you to produce these SALN is subject to the approval of the Supreme Court.

V.:  As the Clerk of Court, I have the obligation to inform them of whatever subpoena or matter is brought before him. So, I just await instructions.

D.:  If the instruction is not to produce the SALN you will not follow the subpoena of this impeachment court?

V.:  Being …

D.:  Please answer, yes or no.

V.:  I will follow, Your Honor. I just gave it to them for their information and authorization.

D.:  All right. So, you just gave it to court for their information.

V.: For their information and authorization which I believe they will also grant.

D.:  If have no authorization, will you bring these SALN in compliance with our subpoena.

V.: If the court requires me to do so, I will do so. The impeachment court, I mean.

D.:  If the impeachment court requires you to do so…

(And then…) D.: Now, at this point you have not brought the statement of assets, liabilities and net worth ask for by the Supreme Court.

V.: I have brought them with me.

D.:  You have brought the SALN with you. Is that correct?

V.:  Yes, Your Honor.

D.: Alright. May I ask now the witness to produce before this court the documents that were subpoenaed by this court in a subpoena dated January 17, 2012 as the witness said that she has these documents with her.

JPE.: The witness must comply, submit to the court thesubpoena that you submit to this court.

D.:  The SALN, Your Honor.

JPE: The SALN.

V.:  Yes, but I have not received the—I have placed it also in the agenda of the court.

D.: I thought…

JPE: We did not subpoena the Supreme Court. We subpoenaed you to produce the record in your custody. So you are now ordered by the Chair to surrender these records to this court.

V.: Yes, Your Honor.

So this is the crux of the matter: if, as Midas Marquez said, the Chief Justice had given permission to submit his SALN, why then, did the counsel for the defense object, since Marquez said his instructions had been given to his counsel? Curious.

In today’s hearing, there was an extended, and vigorous, effort by the defense to dismiss, outright, Article II of the Articles of Impeachment that accuses the Chief Justice of amassing ill-gotten wealth. After a lot of debate, Senator Pimentel proposed both sides submit memoranda on their posits; while the Senate President said it was all preliminary, and they would, basically, cross the bridge of admissibility when they reached it but not just yet. Cayetano and Escudero then weighed in, involving dissecting the sentence construction of the charge(s), and the intention of the writers.

But it seems pretty clear: Cuevas is insisting on what is required for criminal proceedings. Precisely, an impeachment trial is not a criminal proceeding, so the explanations in the Articles of Impeachment forms part of the charge. This means that when the Articles of Impeachment state:

II. RESPONDENT COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST WHEN HE FAILED TO DISCLOSE TO THE PUBLIC HIS STATEMENT OF ASSETS, LIABILITIES, AND NET WORTH AS REQUIRED UNDERSEC. 17, ART. XI OF THE 1987 CONSTITUTION.

2.1. It is provided for in Art. XI, Section 17 of the 1987 Constitution that “a public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. ”

2.2. Respondent failed to disclose to the public his statement of assets, liabilities, and net worth as required by the Constitution.

2.3. It is also reported that some of the properties of Respondent are not included in his declaration of his assets, liabilities, and net worth, in violation of the anti-graft and corrupt practices act.

2.4. Respondent is likewise suspected and accused of having accumulated ill-gotten wealth, acquiring assets of high values and keeping bank accounts with huge deposits. It has been reported that Respondent has, among others, a 300-sq. meter apartment in a posh Mega World Property development at the Fort in Taguig. Has he reported this, as he is constitutionally-required under Art. XI, Sec. 17 of the Constitution in his Statement of Assets and Liabilities and Net Worth (SALN)? Is this acquisition sustained and duly supported by his income as a public official? Since his assumption as Associate and subsequently, Chief Justice, has he complied with this duty of public disclosure?

The whole thing is the charge!


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