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Feb 05

Monday’s Caucus: Like the Second Envelope?

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Tomorrow, this issue will be at the forefront — see Prosecution finds Corona’s ‘$700,000 bank account’:

In a supplemental request submitted to the Senate impeachment court on Friday, February 3, the prosecution attached photocopies of the supposed PSBank documents on the accounts of “Renato Coronado Corona.”

The $700,000 deposited in account number 08919100037-3 is supposedly just one of 14 accounts that the Chief Justice and his wife Cristina individually and jointly own with daughter Carla Castillo and her husband Constantino III. Prosecution wants the branch manager of PSBank Katipunan branch to appear before the court and bring the bank documents on February 7, Tuesday.

“The documents indicate an “initial deposit” of $700,000 (est. P34 million) in October 2008, which was not declared in the respondent’s SALNs,” reads the supplemental request.

“While it cannot vouch for the authenticity of said documents, the prosecution believes that it is its duty to submit the documents to this Honorable impeachment court, as they may have a bearing on the Court’s resolution of the pending request for subpoena,” it added…

On Thursday, February 2, lead prosecutor Niel Tupas Jr. reiterated prosecution’s request for the impeachment court to subpoena Chief Justice’s accounts with PSBank and Bank of Philippine Islands (BPI). The defense panel had opposed the request.

In response, presiding officer Senate President Juan Ponce Enrile ordered the prosecution to specify the bank accounts. This is a deviation from the impeachment trial of ousted President Joseph Estrada, when the prosecution was liberally allowed to ask various banks if Estrada had accounts with them.

The supplemental request was filed to comply with Enrile’s order.

Prosecution discovered the PSBank account because of information that the Chief Justice won P1-million in the bank’s March 2008 raffle for its depositors. The BPI account, on the other hand, was discovered because of the checks issued by the Chief Justice to pay for several condominium units.

This article explains why Senate vote on bank accounts crucial:

Will senator-jurors grant the prosecution’s request to subpoena the bank accounts of Chief Justice Renato Corona?

This is going to be a crucial vote, prosecutor Reynaldo Umali told Rappler.

“We’ll have to fight it out. It’s all about the declaration and non-declaration of the Chief Justice of his Statement of Assets, Liabilities, and Networth (SALN),” Umali said.

The senators are expected to put it to a vote during their closed-door caucus on Monday, February 6. The defense panel has filed its opposition to the prosecution’s request…

…Through separate requests, the prosecution wanted to subpoena the Chief Justice’s alleged accounts in PSBank and the Bank of the Philippine Islands (BPI).

The PSBank account was discovered because of an information that the Chief Justice won P1-M in the bank’s raffle in March 2008.

On Thursday, lead prosecutor Niel Tupas Jr asked the impeachment court to act on the prosecution’s requests to subpoena Corona’s bank records. In response, presiding officer Senate President Juan Ponce-Enrile asked the prosecution to be specific in its requests. The earlier requests did not specify the bank account numbers.

On Friday, the prosecution submitted a supplement to their request to comply.

In the impeachment trial of former President Joseph Estrada, the presiding officer then, former Chief Justice Hilario Davide Jr was less stringent in his requirements. He allowed the prosecution to summon bank records without requiring them to provide very specific information such as account numbers.

Update: here’s a summary of the issues, in Monday caucus: secrecy or transparency?
1. Bank confidentiality vs. transparency

2. Judicial review vs. disclosure

Legal observer Article VIII Jester has been critical of the tack taken by the Senate President:

FIFTH, it was also wrong for the Presiding Officer to require the Prosecution to present the specific bank accounts being subpoenaed and to lay the basis for presentation of evidence therefor

In response to the request of the Prosecution for the issuance of subpoenas to compel the production of certain documents and the attendance of certain witnesses, the Presiding Officer refused to issue said subpoenas in due course citing the issue of separation of powers (e.g., records of the SC) and the alleged lack of specificity as to the other documents requested (e.g., specific accounts sought to be subpoenaed). The Presiding Officer likewise required the Prosecution to lay the basis for compelling the production of the same before the subpoenas will be actually issued by the Impeachment Court.

The reasoning espoused by the Presiding Officer is without legal basis and precedent.

Section 1, Rule 21 of the Rules of Court defines subpoena as “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” and “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 mecum.”

The subpoenas being requested by the Prosecution are in furtherance of the Impeachment Complaint filed against Corona pursuant to the provisions of the Constitution and relevant laws. Part of the allegations in said Impeachment Complaint, particularly with respect to Article II thereof, is that Corona failed to disclose certain assets in his SALNs. Therefore, considering that said alleged assets have been precisely concealed by Corona, how could the Prosecution possibly comply with the requirement of specificity arbitrarily demanded by the Presiding Officer? The Prosecution is requesting the subpoenas precisely because the assets sought to be identified were not disclosed by Corona. It therefore begs the question why the Presiding Officer has imposed such impossible condition for the Prosecution to comply with.

Contrary to what the Presiding Officer would like the Impeachment Court to believe, the subpoenas sought by the Prosecution are not general warrants or roving commissions that are “not canalized with banks that keep [them] form overflowing.”

…The subpoenas requested by the Prosecution, particularly those relating to the bank accounts reasonably specify the documents sought to be produced, such as banks accounts, bank statements, customer identification cards and specimen signature cards. Further, the Prosecution limited the documents and/or records to those under the names of Renato Corona and Cristina Corona.

The Prosecution should insist that it is precisely invoking the compulsory and coercive processes of the Impeachment Court to arrive at a just disposition of the instant impeachment case.

Therefore, there is no legal basis for the Presiding Officer to withhold the issuance of the requested subpoenas.

The same blogger followed-up the entry above with a new one (see Revealing account) with a review of Supreme Court cases in which the inspection of foreign currency accounts has been permitted.

Now the political question is this: the Senate President has made an initial ruling, but a caucus is expected tomorrow. Will the caucus result in a new ruling that is more liberally-inclined than what the Senate President has said, or will it uphold the Senate President’s stand –and what will happen, in turn, when that ruling, whatever it is, is announced in the impeachment court?

If the current position of the Senate President is retained, the prosecution will be unhappy. They will say that their ability to prosecute the case will be fatally hobbled.

If the Senate President’s ruling is set aside or replaced by a more liberal one as a result of the caucus, the defense will be unhappy. They will say that their ability to conduct a proper defense will be fatally hobbled.

So fireworks are expected. If the caucus and the debate afterwards, on the question of bank accounts is important, will it, however, be on the same level of high political drama as the second envelope in the Estrada trial? In terms of how it’s viewed as make-or-break for either side, quite possibly; but whether public interest will be as high, remains to be seen. It is entirely possible –even probable– that many of the arguments will be familiar to those who covered the 2000-2001 Estrada impeachment trial.

Those arguments have been preserved for posterity in Kit Tatad’s book, A Nation on Fire: The Unmaking of Joseph Ejercito Estrada and the Remaking of Democracy in the Philippines, his apologia on his role as the Majority Floor Leader in the Senate during the ill-fated Estrada impeachment trial: a role from which, as I’ve mentioned, he never recovered, politically (perhaps chiefly because he alienated the Estrada camp while never finding another political coalition willing to take him in). He is, of course, a gifted writer. There’s this description of Tessie Aquino Oreta–

Faced with such a menacing crowd, Teresa Aquino Oreta found herself in an ugly fix. She could not get out, and she did not know how exactly to respond to the crowd. In the end she decided to turn away with a gentle waving of the hand and swaying of the hips.

–which is a remarkable interpretation of events!

Anyway, reviewing his book, it’s remarkable how many arguments being reported today, also featured in the 2000-2001 proceedings. In fact, many of the observations bandied about today had echoes in the Estrada impeachment proceedings. How venerable, and able, the defense seemed to be; how frustrating the prosecution seemed to be, to quite a few, etc. Among the issues then, that have also been tackled, now, were:

1. Motion to Quash of the defense dismissed, and arguments on whether they ought to have made a Motion for a Bill of Particulars.

2. Assertions that the charges were unsatisfactory, improperly written, approved and transmitted in a legally-defective manner;

3. Questions on the burden of proof, quantum of evidence; objections of the defense to private prosecutors;

4.Defense arguing that graft and corruption allegations should be thrown out; questions on subpoena for bank records and admissibility of the same;

5. Assertions by the defense that even if there is impropriety not every impropriety is an impeachable offense, for example:

Enrile: Thank you, Mr. Chief Justice. Mr. Counsel, is a statement that the President of the Philippines violated the Constitution an impeachable act?

Mendoza: That is a conclusion of law.

Enrile: No? I was struck just now by the allegation of the Articles of Impeachment, which simply says, “The President, President Joseph Ejercito or Joseph E. Estrada, violated the Constitution.” My recollection of the Constitution is to the effect that for a President to be impeached for violating the Constitution, the violation must be a culpable violation. Otherwise, every time the president is haled to the Supreme Court for having committed an unconstitutional act, he will be impeachable. And I would like to ask your opinion or your comment about that.

Mendoza: Yes, Your Honor. Section 2, Article XI uses the words, “culpable violation of the Constitution.” Except that Article II [of the Articles of Impeachment] refers to graft and corruption, Your Honor.

Enrile: All right. Now my other question, Mr. Counsel, is this. If Article II of these Articles of Impeachment simply alleged, “The President should be impeached because (1) he violated the Constitution and he stands guilty of graft and corruption; (2) that he violated the Anti-Graft Law; and that he committed perjury and is guilty of the offense of unexplained wealth,” would that be sufficient statement of the ultimate facts to warrant the introduction of evidence to prove these allegations, assuming that these are the ultimate facts alleged in this Article II of the Articles of Impeachment?

Mendoza: These are the only ultimate facts, and it will be arguable whether these constitute graft and corruption as contemplated by the Constitution. I would assume that not every graft and corruption is contemplated by the Constitution as an impeachable offense. And also whether or not perjury, which is not among the crimes listed in the Constitution, may be considered a high crime.

The response of Joker Arroyo, then a House Manager, would give any reader a sense of deja vu (see pp. 409-426). Consider this portion, where Rep. Arroyo answers questions put forward by various senators:

Drilon: So that at this point, you are not formally offering this in evidence?

Arroyo: No, we are just presenting it and we will offer it at a later time. In fact the objections… I am really surprised, it’s a good thing, sir, that you mentioned that. We are just asking, we are just requesting a subpoena duces mecum.

Ordinarily, we barristers, we go ask for a subpoena duces mecum, the subpoena. Well, the Clerk of Court usually just issues that and there’s not too much hassle over that thing. Why? Because when the trial takes place and we start to present the evidence, that’s when the objection arises. But the objection arises on the materiality of the witness’s testimony.

But here we have not even reached that stage. We’re only asking that the document be produced. But there seems to be a paranoia now on the part of the defense whenever it comes to the bank accounts of the President. Even before we have started, they say, “No.” How would they know if it is material or not? It may be material for the purposes for which it is offered, but if we make a mistake in the presentation, it may be material but not for the purpose for which we are presenting it. I mean, whether those distinction can be raised…

Drilon: And certainly that can be raised at the appropriate time after the documents are seen?

Arroyo: Of course.

A little later–

Roco (Taglish): …Now, can you please explain how in an ordinary Senate committee –banks, blue-ribbon, in any other ordinary Senate committee– if we ask for it, we get it. But in this Impeachment Court, the most extraordinary assignment for the Senate, we are the only ones who can try –I can see the Bicolano in you– we are the only ones who can try, well, we are prohibited. Can you please explain what is the logic there?

Arroyo: In fact, we find it very hard, just to get one. They have filed an omnibus opposition to every bank account that we have subpoenaed. All the allegations now, they say, “that the bank accounts are not part of it, they are not assets.” All of us here, the senators and us, congressmen, we files Statements of Assets and Liabilities. If you see the column “Assets,” it reads here: (a) real properties; (b) personal and other properties. Listed in (b), cash on hand and in banks. So those are assets. Now business is separate. It is under Letter B.

Roco: Yes.

These arguments and many more besides, give a foretaste of what might be argued today –and has already been argued. Essentially, the arguments are the same for the prosecution and the defense.

But anyway, what would be interesting to know, is whether Tatad derived any lessons from the public reaction to the vote he and 11 other senators took. As far as his book itself is concerned, he derived none, as of the time of publication. The memento described is the moment right after the senators had weighed in on whether to open or keep closed, the second envelope; the experienced politicians all knew, by this time, this was a point of high drama and possible no return. What is remarkable in Tatad’s account, is how politically dense he seemed to be:

Honasan was the last senator-judge to speak on the motion. As soon as he had concluded, Davide motu proprio ordered a break. It was 9:12 in the evening of the longest day of the trial.

During the break, Drilon, Guingona, and Leviste asked me successively if it was still possible for me to withdraw my motion, allow Davide to rule, and call for a vote only if anybody questioned the ruling.

And here, in the next passage, is why I say he gives the impression of being politically dense:

I found this rather curious, to say the least. These were the same judges who were desperately pressing for an immediate vote on the floor on the Clarissa Ocampo issue and did not want to allow even a few minutes’ break so the judges could meet in caucus. And they were asking the question after almost every senator had spoken in a passionate debate.

Dense, dense, dense! The senators sensed a defining moment was coming, one which might lead to a collapse in public confidence in the proceedings, and yet here is how myopic (politically, though possibly not procedurally) Tatad was being:

Anyone with a minimum sense of the rules would have known this was an absurd request –that after a motion had been moved, seconded, and debated, the unavoidable next step would be to vote.

But they obviously knew how Davide would rule; and they seemed to believe that, despite the strong convictions expressed on the floor, none of the judges would question the ruling once it was given. Davide was not entirely uninformed of the maneuver. During the break, Legarda-Levista insisted he should rule, but he pointed out the technical difficulty and suggested that she raise the question on the floor.

Here was a classically face-saving opportunity, taking the senate and the proceedings back from the brink –and Tatad, by invoking the rules, broke the back of the proceedings (again, politically speaking, providing his opponents a pretext otherwise impossible to obtain had Tatad relented):

Accordingly, on resumption, Legarda-Leviste rose to ask whether it would still be possible for the Chair to rule on the question despite a pending motion. And the Chair responded, “Unless the motion duly seconded is withdrawn, the Chair cannot, because the initial authority of the Presiding Officer has been preempted by the motion duly seconded.”

At this point, Tatad spends a paragraph quibbling with the Chair after the fact, and resumes his narrative, by telling the peevish way he scuttled his own political career:

I found the whole episode a little too crude. But I did not want to prolong the debate. So responding to Legarda-Leviste and the Chair, I simply said, “As movant of the motion, I believe we have gone too far. We have heard almost everyone speak on the motion, and it’s time to vote.” And forthwith the Chair ordered a roll-call vote…

The vote took place; pandemonium ensued; the prosecution walked out; the session was adjourned at 9:41. By 10 p.m. the noise barrages were taking place.

We do know, for example, that Miriam Defensor-Santiago on the other hand has taken away a lesson from that experience, as she herself told the Senate on January 24:

THE PRESIDING OFFICER. The Gentlewoman Senator from Iloilo.

SEN. SANTIAGO. Opo. The Rules of Court, we do need jurisprudence by the Supreme Court on whether we should be liberal or highly technical or very strict in applying the Rules of Court. The Rules of Court, itself, in the general principles, contrary to allegation by prosecution counsel that there is a case from the Supreme Court so ruling, that is not even necessary. The Rules of Court itself provide: This Rule shall be liberally construed so that we can achieve justice that is just, speedy and inexpensive. So, that answers the question. If there is a doubt, admit the evidence. That is what the people ruled after the Estrada impeachment trial. At that time, I was not so far away from having been a trial judge. And I wanted to apply the Rules of Court technically. The Rules of Court provide that: “Evidence in court cannot be admitted unless it is relevant to an allegation in the complaint itself. That is the so-called ultimate fact. And since there had been no allegation of wrong-doing in connection with the notorious second envelope, I voted that we should not open the second envelope until and after the complaint had already been amended. So, I really did not vote against opening the second envelope. I said first, you have to comply with the Rules Court. Amend your Articles of Impeachment or your complaint, and then we shall admit it, but not before. At that point, certain prosecutors walked out, and the case was never finally brought to its proper conclusion. And thereafter, I was among those who was demonized because I voted against opening the second envelope dahil ang paniwala ng taumbayan ay, kung ayaw naming buksan pala iyong so-called na second envelope na iyan, may itinatago kami. Bandang huli, nabuksan. Wala naman palang incriminatory to the accused. So, the suspicions against us proved to be unfounded and, in effect, we were validated by time. But it was a very painful experience that you would go around in public and people would shout incriminations against us because sa tingin ng tao ayaw naming buksan ang ebidensya at natural nagsuspetsa sila, may itinatago. Kaya ang aking attitude ngayon ay ganito, should the specific provision by the Rules of Court, that the rules shall be liberally construed, be overcome by a technical rule of procedure that we find somewhere in the middle of the Rules of Court, my proposed answer is no, dahil magsususpetsa na naman ang publiko na may itinatago tayo. The main reason why there is a rule of this nature is because you have to give due notice to the other party of what you are charging him. Eh, kung bigla ka na nga magdala-dala ng ebidensya na hindi niya alam, i-presenta mo pala na konektado doon sa iyong complaint, di wala nga siya namang panahon na maghanda ng kanyang pagtanggol sa sarili niya. He will not have the time. So, since you already know that prosecution intend to call to the stand the Commissioner of Internal Revenue to produce certain income tax returns, I respectfully propose that there is already sufficient notice being given to the defendant. He should, therefore, place himself on notice and prepare his defense.

Earlier, the Senate President, in his opening remarks, made, what he believed, to be the lessons from the Estrada impeachment, the policy of the Senate: to vow to conclude the trial; to be conscious of the gravity of what they are undertaking, and to be aware of the precedents they are establishing, and to avoid pitting the presiding officer against the senate as a whole.

What Tatad’s book provides is a useful summary of contrasting opinions as well as a refresher course on the debates that took place in the Senate during the last impeachment trial. In many respects, they are remarkably similar to the debates taking place, now.

Which leads me to a brief word on the prosecution: if the job of the defense is to prevent the admission of evidence harmful to its client, then the job of the prosecution is to put forward, and have admitted, evidence that will prove its case. Much has been made of the style, rather than the substance, of the prosecution’s efforts: with uncomplimentary comparisons being made to prosecution in the Estrada impeachment.

Yet in Tatad’s book, there’s this exchange between House Manager (the term, then, for what is today known as a House Prosecutor) Arroyo and Senator Tatad:

Tatad: Thank you, Mr. Chief Justice.

Congressman Arroyo, may I assure you that I have read the Senate Rules on Impeachment. There is nothing in these rules that requires the House of Representatives to submit a sloppily constructed complaint. Now Rule VI provides that the Rules of Evidence and Procedure shall be liberally construed, and you have quoted this. Do you understand this to mean that the charges are also to be liberally construed?

Arroyo: On the first question, I take offense, Mr. Senator, at the words used –that must the Senate accept a sloppily prepared Articles of Impeachment. Sir, in the Motion to Quash, I said, “not the Senate. We are guided by our own rules.” And if the complaint is good enough for the House, the Senate cannot tell us what to do about it. If it passed the House, then take it for what it is. Your function is to proceed on the basis of this.

Tatad: If I had given offense, then I withdraw the offense.

Arroyo: Otherwise, you put the House in a subordinate position, and we stressed that in our opposition to the Motion to Quash –that as far as the House is concerned, it is supreme in its own sphere in the preparation, because the defense [he meant “Constitution”] said, we have the sole power to initiate. And when we initiate, then we submit the complaint to the Senate. But the Senate must take it.

Tatad: We have.

Arroyo: Now what’s the second question? I forgot.

Tatad: Do you understand Rule VI to mean that the charges are also to be liberally construed?

Arroyo: Well, that is what the Senate Rules say.

Tatad: No. Evidence and procedure, yes. Charges? That’s the question.

Arroyo: Look at your Rules. The Rules of Court –I’ve not even seen them but I’ve memorized them– are suppletory. You know when the word used is “suppletory”? It is just a substitute. It is not the principal one. Now the Rules of Evidence were…

Tatad: Rule VI, last part: “The Rules of Court shall apply whenever applicable.”

Arroyo: All right, where is it? Ah, here. All right. “The Rules of Court shall apply insofar as they are applicable. Rules of Evidence and Procedure shall be liberally construed.” We are talking of evidence here. That the rules should be liberally construed. We are talking of evidence here. Admissibility, materiality, that is evidence.

Tatad: Yes. But are the charges to remain frozen and firm, or are they to be a work in progress, which must grow from time to time?

Arroyo: I beg to disagree. This is not a work in progress. We are not in waiting while we are here. Well, I cannot argue on a legal point with a non lawyer.

Tatad: Well, regrettably, we are simply in the field of logic.

Arroyo: That’s the refuge of the uninitiated.

Tatad: Well, I move to strike out those remarks, Mr. Chief Justice.

Arroyo: I agree.

Presiding Officer: What is the motion?

Tatad: To strike out the unparliamentary expression.

Presiding Officer: Which portion, Your Honor?

Tatad: The entire statement prior to the motion.

Now, Mr. Prosecutor, can you quote for us for the record, Article XI, Section 2 of the Constitution?

Arroyo: “The President, the Vice President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violations of the Constitution, treason, bribery, graft and corruption, other high crimes, betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.”

Tatad: Can the prosecutor focus on the phrase, “on impeachment for, and conviction of” and tell us what he understands by that phrase?

Arroyo: How’s that again?

Tatad: It will be on my time if I repeat it, Mr. Chief Justice. May I be allowed to repeat without my time running?

Arroyo: You are arguing with me on the Constitution. Go ahead.

Tatad: No, I am asking a question.

Arroyo: Which is?

Presiding Officer: There’s a pending question.

Tatad: I’m asking the prosecutor to try to educate us on his understanding of the phrase, “The President… may be removed from office on impeachment for, and conviction of…” What is your understanding of this, given the fact that the House shall have the exclusive power to impeach, and the Senate, the sole power to try and decide impeachment cases?

Arroyo: Is Your Honor trying to say that there should be a conviction first?

Tatad: No, “impeachment for.”

And so on and so forth, leading to Tatad’s arguing that the prosecution is limited by what was specifically alleged in the Article of Impeachment, and that anything else could not be admitted, because not specifically alleged; this was seized upon by Estelito Mendoza to argue that additional evidence or evidence not specifically alleged could not be included, using examples taken from criminal procedure.

Diametrically opposite views, as those of the prosecution and defense naturally must be, will inevitably collide and it’s left to the Senate to pick one side or another to uphold. The question is if in deciding an issue, a crisis point is reached.

Tatad reproduces the statements senators made on what turned out to be the fateful vote on the second envelope, and they put forward what have endured as two different perspectives on impeachment.

First is what we can call the strict constructionist model, favored by the defense and put forward by Tatad.

Tatad: Mr. Chief Justice, distinguished members of the Court. We have listened intently to both parties –the prosecution and the defense– argue the point at issue. It is of utmost importance to this trial that we take a decision as a Court whether or not we are going to allow matters which are not specifically included in the Articles of Impeachment to be accepted by this Court.

Several days ago, we allowed the opening of an envelope. The contents have not been received in evidence, but they were allowed to feed the popular fancy about what is happening in this Court.

As a senator-judge, without the legal education that the distinguished prosecutor has, I come to this Court solely to see if the President of the Philippines deserves to be convicted or acquitted on the basis of the Articles of Impeachment as they are written. I do not believe the Senate can go beyond the Articles of Impeachment…

Second is the liberal application model, as put forward by the late Raul S. Roco:

Roco: …If we convict or declare as innocent the respondent, President Estrada, it must be on full transparency. It must be in the light. It would be sad if we convict or declare the President innocent, while forgetting or covering some evidence. The technical objection is that it is not in the complaint. In fact, it is there. According to former Justice Isagani A. Cruz in his writing, the defense would find it hard to see it in the Articles of Impeachment, and I understand that because we lawyers like to tell our own side. The prosecution will present its side, the defense will present its own too. But as judges we will allow them to quarrel, but we will have to wait for the entirety of the evidence.

The fact that we are on trial should make us pause, Mr. Chief Justice. And I hope we achieve some consensus on some points. Whatever the final judgment of the Impeachment Court, whether guilty or innocent, it is important that it should be supported by the Filipino citizenry. It is not important that the judgment is guilty or innocent. It must be supported by the Filipino people and the Republic of the Philippines.

This evening we seem to be about to cross a bridge, and I hope, Mr. Chief Justice, that when we cross that, we retain the higher credibility of the Impeachment Court and the impeachment process. We are the ones who have asked to do this job, and that is why I do not want to debate on legal technicalities. The interest of national unity, the interest of the people, is at stake, and we cannot forget that that is the issue here, whether or not we are going to open…

Next is the public referendum argument of Sergio Osmeña III:

Osmeña, S.: Mr. Chief Justice, you know, tonight the reputation of the Senate as an institution is at stake… Everybody knows the evidence that has been brought out in this trial, whether it was accepted conditionally or absolutely. But what is important to the institution, Mr. Chief Justice, is not whether the final verdict of the senators will be to convict the President of the Republic. What is important is that the process was transparent and that the verdict is in keeping with the evidence that has been brought out during this trial. If the evidence is overwhelming, what can we do? Can we possibly acquit? Our people will be angry with us. Now if the evidence is lacking, it would be ridiculous for us to convict…

So, as of now, as a member of the impeachment panel, I am wondering why the defense is afraid to open this envelope…

Because, first of all, I heard it, and I have heard it several times… the President said, “I have nothing to do with that.” So why is the defense so afraid to open the second envelope?

On the other hand, if we open this envelope, the boxing match would be over. And that is where we are tonight.

So, Mr. Chief Justice, when we took an oath to be members of this impeachment panel, we swore to render impartial justice. As far as I am concerned, the one on trial here, the President of the Republic, is not really the one on trial. It is the Senate that is on trial. Furthermore, the Senate had been conducting this impeachment trial to make sure that society can be saved from anybody who would be declared unfit for public office…

And finally, the spirit and not letter of the law position of the late Renato Cayetano:

Cayetano: …My friends in the defense, even if they do not admit it but by their arguments, they say these are criminal proceedings. For instance, we heard my beloved professor [Estelito Mendoza] say, “The fruit of the poisoned tree cannot be admitted.” That is a principle in Criminal Law, what is called “proof beyond reasonable doubt,” mentioned here days ago. Again, that is also a principle in criminal proceedings.

But as I said earlier, this is not a criminal proceeding. This is a political process provided in our our Constitution in order to judge whether a president is fit to remain in office. He is not to be jailed or punished, just removed from office. That’s why this is not a criminal proceeding.

So when we drafted the Rules on Impeachment, we followed the record of the Constitutional Commission, and we saw in the debates of those who drafted the Constitution that the rules on procedure and the rules on evidence should be liberally construed. Because the heroes who prepared and made this Constitution knew that this is not a criminal proceeding but a political process. And that’s the basis of our Rules of Proceedings.

So what do we hear from former Senator Salonga, a well-known lawmaker and member of the Senate for many years? What did he say? That we are too strict in using the Rules of Procedure and Evidence; that why not only is the process slow but the witnesses are unable to tell the truth.

Retired Justice Isagani A. Cruz has admitted in a recent column that he made a mistake when he said an impeachment trial is criminal in nature. This well-known and eminent magistrate said he made a mistake because he saw that liberty of the rules of procedure and evidence is needed…

My beloved professor says we should base everything on the Constitution. That is right, Professor. But the Constitution does not say how do we prove the Articles of Impeachment. That is in the Rules of Impeachment made by the Senate. And the Rules of Court are suppletory whenever applicable. The Constitution does not say how the House prosecutor will prove the allegations in the complaint or the ultimate facts.

That’s why I ask my fellow senators that we have a duty to see the truth. We have a duty given the Senate as an institution an unblemished reputation because we have a lot of obligations to face after this. If the envelope does not contain any bomb, it will be held against the prosecution and will be a triumph for the defense…

And so as we know, the rest is history. If I might hazard a psychological approach to assessing historical events, the downfall, politically, of Tatad was his zealotry, something compatible with his extreme religious orthodoxy, but diametrically opposed to the often case-to-case and nearly always, flexible judgment required in moments of great political stress. His fellow senators put forward a way that would have restrained the proceedings to the institutional arena, where generally, the consensus today says, they properly belong (that is the ultimate lesson of Edsa Dos, a consensus that held in the long decade that followed). Yet at the crucial moment, Tatad ensured, more than any other individual, that what he laments to this day, could actually take place.

So it should be asked when those claiming to be taking the public pulse are like Tatad, Maceda, Magno et al., well, consider their political misdiagnoses in the past and you have to wonder…

Additional readings for today:

Raul Pangalanan gives an illuminating digest of the legal points raised so far, in Day 1 to 11: Legal points hotly debated and evidence presented.

Ted Laguatan argues The issue is Corona’s guilt, not the prosecutors’ competence.

Raissa Robles writes how Relative warned JBC in 2001: Corona could bring “disrepute” to SC.

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