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Feb 19

Chaos Strategem of the Day: Borrow the Road to Conquer Guo

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(image from wanbao)

From the Thirty-six Strategems this (Chaos) Stratagem for Confused Situations is the one known as Borrow the Road to Conquer Guo.

Mr. Corona and friends have been billowing smokescreens, to camouflage their real strategy, which is to halt the presentation of incriminating documents in the Senate until they can maneuver halting the impeachment trial altogether. What smokescreens are these? Recycling issues from the presidential campaign, and deflecting attention from the stump speeches being made by Mr. Corona by accusing the President of what Mr. Corona is doing. You need intrigue-filled smokescreens to prevent people from realizing what Corona is saying doesn’t actually compute with what he’s doing (after all, his SALN and the data coming to light doesn’t compute, either). As Randy David put it in The lawyer’s ‘Umwelt’,

Impeachment is not a strictly legal process because it is also a battle for public opinion. Knowing this, one would have thought that the defense’s best strategy was to volunteer information, rather than to suppress it. Obviously, this is not how Chief Justice Corona and his team have chosen to play the game. Inside the impeachment court, they employ all the legal tools at their disposal to block the flow of information. Outside the court, Corona tries to draw public attention away from his own offenses by attacking his No. 1 critic, President Aquino, in the vain hope of putting him under trial as well.

bLawgger Article VIII Jester points out that Mr. Corona has been undertaking a political campaign in his own defense from the start (not to mention novenas in the premises of the Supreme Court, speeches on December 14 and January 16 and a rally that led him to spontaneously materialize in the balcony of the high court):

Chief Justice Renato Corona is obviously convinced that he is under attack.

He said so himself in two (2) speeches before a maddening crowd of court employees, which included his loyal minions in the Supreme Court (SC)…

Then, on the first day of the Impeachment Trial, before he and his battery of pro bono lawyers trooped to the Impeachment Court, Corona’s tone became overtly political as he accused several personalities of allegedly conspiring to take him out of office…

This brings up, as David puts it, gtom his column linked to, above, a “paradox” for the defense:

No one has been more assiduous in enforcing the rules governing judicial trials than the head of the defense panel, former Supreme Court Justice Serafin Cuevas. He cannot be faulted for repeatedly raising objections on the floor. That is his job – to protect his client. Unfortunately, his objections often appear as attempts to block the “truth.” He is right to insist that not every “truth” needs to be known. Only those “truths” that can be connected to the specific charges and allegations mentioned in the case can be considered valid. Understandably, this is not easy to appreciate or accept from the standpoint of everyday common sense. We all grow up believing that every truth is worth knowing because the truth will set us free.

That is not how lawyers think. “The small subset of the world that an animal is able to detect is its Umwelt,” says the neuroscientist David Eagleman. “We accept our Umwelt and stop there.” The lawyer’s Umwelt is quite restricted. The lawyer sees only what the cognitive rules of his profession permit him to see. He is, in a way, color-blind; and usually he is not aware of it.

He takes comfort in the thought that facts unearthed in the course of a trial, whose relevance has not been shown, are as good as non-existent. He knows they can be stricken off the record of the trial, and cannot be offered as evidence. But, in reality, such information cannot be erased from the consciousness of judges, jurors or, least of all, the viewing public.

Here we see the problem that the defense panel confronts. The basic charge against Corona is lack of integrity, which disqualifies him from holding the highest position in the Judiciary. While the burden of proving lack of integrity formally rests with the prosecution, it is the accused in fact who is under greater compulsion to show that he is a person of integrity.

The reason for this paradox lies in the very nature of impeachment itself. What is being impeached is one’s credibility no less. It is not one’s property or money or liberty that is at stake here (although one may lose these too once a criminal case is filed). It is one’s moral fitness that is being challenged. We expect a good person whose integrity is under assault to go out of his way to remove any doubt about his life, his possessions or his actions. If Chief Justice Corona values his integrity, he should not hesitate to issue a blanket authority to make public all his bank accounts. The worst thing he can do is run for help to the tribunal he heads to protect the secrecy or confidentiality of his assets.

His is the obligation to prove his trustworthiness not only in words but also in deeds. If he has nothing to hide, then he has nothing to fear. But, every time he or his lawyers block the release of information about his properties and bank accounts, he commits what discourse analysts call a “performative contradiction.” His actions belie his words. Ironically, the more his lawyers succeed in protecting his right to privacy, the more he becomes suspect in the public eye.

With David scrutinizing lawyers under a Sociologist’s microscope, it’s interesting to see what lawyers, in turn, have to say. I assume lawyers following the proceedings know what are legitimate tactics for the defense and lawyering, on the other hand, gets in the way of due process.

Columnist (and lawyer) Joseph Gonzales wrote on February 12,

It’s a bit strange to see the Chief Justice running to his colleagues at the Supreme Court, asking them to restrain the Senate from further proceeding with the impeachment case against him. It has already been a couple of weeks since he showed up all pious at the Senate, and sicced his crack legal team on the prosecution, and so far, they’ve been real bad-ass about the trial.But as soon as the Senate got to the point where his bank accounts were to be revealed, the Chief Justice did a complete volte-face, and he now wants a hall pass. (I wanted to say jail pass, but that could have just been a Freudian slip.)

But what happened to the man who so boldly proclaimed, less than a month ago, that he would fight to prove his innocence?Is this the way to prove his innocence, that he would ask his brethren to intervene and use their judicial strength to block the impeachment process?Wouldn’t his innocence be better displayed to the public if he slugged it out with the prosecution?He did say “wala nang atrasan” (there is no turning back), right?So isn’t this exactly that?

What’s more, he’s also asking the Supreme Court to prohibit the disclosure of his dollar accounts.For this, he relies on the protection of the law on foreign currency deposits, hoping that it would prevent any further revelations on his exact wealth.Again, is this the mark of a man set to prove his innocence?If he is really innocent, then why doesn’t he just waive the secrecy the law affords him, and just produce those darn bank statements?

His lawyers say they ran to the Supreme Court because they are like rats in a corner.In the same breath, they assure us that they are not desperate.Funny, I always thought that when someone is cornered, he becomes desperate.Unless of course, he really wanted to be cornered in the first place.That, however, I would consider flirting.

So is that what the prosecution is doing, flirting with the impeachment court, letting it show a little bit of the tactics it can unleash, before coyly coming back and cooperating a teeny tiny bit more?After all, Chief Justice Corona has just declared that he will fight “to the last breath.” Does this mean he’s going to go back to the Senate for another boring round of repetitive objections to the evidence against him, all designed to make it more difficult to present proof of his guilt?Or does that mean he intends to fight in some other venue?One in where he is the titular head?

The Supreme Court has ruled on one of the Chief Justice’s petition, issuing a temporary restraining order against the subpoena on his dollar accounts.What does this accomplish for Corona?He may have been able to stop the hard documents from coming to light, but it surely isn’t stopping the public’s minds from coming to the very ugly conclusion that he has something to hide.Is this what the Chief Justice wants?Hide his dollars and win by technicality, but lose the faith of everyone else who’s still been giving him the benefit of the doubt?

Not a very smart tactic.

Though blogger The Nutbox counters by saying it might be an effective strategy after all.

Today, Joseph Gonzales comments on the latest line of defense, in Flight and fight:

So here comes the lawyers of Chief Justice Renato Corona, trying to defend him. They say, it was but natural for the Chief Justice to withdraw his many millions from his PSBank accounts on the very same day that he was impeached.After all, they argue, what would a husband do if those funds were his wife’s, and they were in danger of being scrutinized?

…Two points stick out and lead our noses to the conclusion that actually, there are a few things wrong with these funds being in his name…

The first is why were they not disclosed in his statement of assets?Public officials are required to include the assets of their spouses and immediate kin.This cash was his nominally, and if were to believe his lawyers, then his wife’s in reality.But either way, that cash had to show up in his SALN.But it didn’t.On that count alone, our supreme interpreter of the law broke the law.Or maybe we could prevaricate and say, he failed to interpret the law correctly.

The second is, even if we believe the spin doctors who are now trying to say the money did not belong to his wife, but to a family corporation of the wife’s, what’s the supreme interpreter of the law doing helping his wife hide money? (Let me hark back to the statement that he had nothing to hide).

Even supposing that his wife was embroiled in a bitter family dispute, does that mean that a Chief Justice should actually help his wife hide those funds from her relatives by pretending to be the owner of those funds and letting those funds be stashed in his name? Doesn’t that sort of smack of deceit?A hint of pretense, when the records are falsified to show his name as owner?And aren’t all these words that I just used like deceit, pretense and falsification, all words we do not expect and we do not want to see sticking right beside the name of our Supreme Court Chief Justice?

At least, that’s the logical conclusion to be reached when corporate funds aren’t placed in the bank account of the corporation.Why else would they be placed in the name of a private person, who just happens to be the highest court officer of the land?Would it be because once those funds are in his name, they would then be (theoretically) beyond the scrutiny of mere mortals?

These are the reasons why I do not feel it is natural for a husband to withdraw those funds.And why I do not feel he remains fit to be a Supreme Court justice.He has lost those attributes of integrity, honesty, and trustworthiness, which we demand from our public servants.(Fine, these attributes might be hard to come by, even rare to find, but it doesn’t mean we have to stop expecting them.)

Another lawyer, Ted Te, says Mr. Corona has invoked the “peanut butter defense”:

The “peanut butter defense” involves spreading the blame, and is usually, by its nature, non-sequitur , i.e., illogical. For instance, it usually sounds like this: “If I am to blame, he also should be blamed because….”.

The latest version I’ve heard of that defense is typically non-sequitur but it also comes with a particular odious ad hominem flavor (I won’t dignify it by repeating it here).

Mudslinging is commonplace with politicians, not Chief Justices. The Court he leads is considered the “weakest branch,” holding neither the power of the purse nor the might of the sword but armed only with the wisdom of its words and the moral sway of its conscience.

For this reason, a justice is required to be of “proven competence, integrity, probity and independence.” Probity, that quality of having strong moral principles, honesty and decency, is fundamentally incompatible with slinging mud; on the other hand, probity is fundamentally compatible with slinging truth–even if, as it often does, the truth hurts.

At the start of the impeachment trial, the Chief Justice prematurely and mistakenly asserted that it was an attack on the institution of the Court itself. Because his brethren on the Court wisely kept their collective peace despite his insistence on displaying his pompadoured presence on tarpaulins and his propensity for lachrymose displays on a government-owned balcony, the Court itself was insulated from a largely political exercise.

By his own act of filing the self-centered petition to stop the impeachment trial, the Chief Justice has himself dragged the Court through the exercise and placed it in the unwelcome position of having to sit in judgment on an exercise it has no role in–yet. By his own words attacking the President, the Chief Justice has flung mud–an act totally unbecoming of the dignity inherent in the high office he holds and refuses to part with.

If lawyers, who know a thing or two about what lawyers can –and shouldn’t– do, have so much to say, what about those to whom the process is about more than scoring points? There is an interesting blog entry by a priest, Fr. Armado Picardal, CSsR, who writes,

The impeachment proceeding against CJ Corona can be viewed as an effort to search for truth and accountability. It is not an attack against the independence of the judiciary. The chief justice stands accused of being beholden to the former president Gloria Macapagal Arroyo – placed by her by midnight appointment to protect her when the time of reckoning comes. He also stands accused of betrayal of public trust and of corruption. He should face these charges. If he has nothing to hide, then he should allow the impeachment court to see his dollar accounts.

Any attempt to stop the impeachment proceeding by a TRO imposed by his supportive colleagues within the Supreme Court should be opposed and condemned. The Supreme Court does not have the moral high ground at present. It is not only the Chief Justice who is suspected of being corrupted and compromised by the former president.

But for every priest of this sort, there’s a bishop of an entirely different sort.

Another professional, a doctor, Philip S. Chua, MD, for his part compares his profession to that of lawyers, in terms of tackling the cancer of corruption:

I cannot help but compare and discern a stark difference between medical practice and the legal process as far as the search for “the truth, the whole truth, and nothing but the truth” is concerned. Also, holistically, at this impeachment, not only one person is on trial but a whole nation and its people.

In medicine, when the complaints of the patients are heard by the physician or a group of physicians, and the clinical interrogation, examination, evidence-gathering (laboratory test reports, etc), are initiated, the “advocates for truth,” who are the physicians and other members of the team, have only one clear universal goal: to search for truth (the right diagnosis), supported by facts, upon which the verdict (treatment) will depend. Hence, the truth is essential, fundamental, and truly indispensable. And everyone on the case, in good faith and in accordance to their sworn Hippocratic Oath, works expeditiously, to get to the truth in the name of quality medical care or medical “justice” for everyone, Chief Justice or not.

No member of the treating team, including the Big Professor, would be objecting, or refusing to accept, vital data, reports, documents, evidences, etc. None of them would try delaying tactics and technicalities to evade the issue in order to avoid the proper treatment. Above all, no member of the healthcare team would be calling for the medical investigation to be stopped, before or after it has been initiated, with the intentional sinister purpose of keeping the truth from being revealed and setting a most probable criminal to go scot-free…

…When two sides, as in two legal protagonist teams, collide in court, one prosecuting and the other defending two diametrically opposite stands (as to guilt or innocence), only one could be right and just, since there is only ONE truth. This reality in the legal process means only 50 percent of all lawyers are defenders of truth and justice, and the other 50 percent defenders of falsehood and injustice, as what would result in every trial, including the Corona Impeachment.

It is one thing for the defense team to make sure their client gets a fair trial; it is another to prevent the truth from surfacing and obstruct justice. Lawyers who advocate with blatant disregard for the truth are an insult to the legal profession and no better than criminals themselves. The same applies to the judges, to a greater degree.

Why would any lawyer on the case, prosecution or defense, not welcome legitimate and proper evidences that could help expose the truth and serve justice? Aren’t both sides searching for the truth? The defense can present evidence, if they have any, to show that Corona is a saint and not a criminal, that the Chief Justice was legally compliant in his SALN, that he earned every single penny, every home and property (5 or 45, I lost count!) that he possesses today, that he did not amass ill-gotten wealth, that the praying Corona shedding tears was not a plunderer or law-breaker, that the Chief Justice is sinless. If Corona is innocent and has nothing to hide, why does he not come clean and bare it all? What is he scared of?

So far, I personally view Chief Justice Corona and his defense clowns as enemies of honesty, truth, and justice, by the way they argue and behave in and out of court. They also are alike and truly deserve each other. My respect and admiration go the integrity, tenacity and patience of the “younger, fumbling, inexperienced” prosecutors who are struggling very hard to present the truth, while the grandstanding Cuevas tries to derail and prevent them.

As the maneuvering on the part of legal practitioners gets more intense, less and less room is left to Stay with the facts, as Marites Dañguilan-Vitug suggests:

This week, some of the senators spent an inordinate amount of time determining the provenance of the leaked Philippine Savings Bank document which showed account numbers of Corona. But these peso accounts do exist and, in fact, the recalcitrant PSBank president, Pascual Garcia III, had earlier confirmed these and disclosed the year-end balances. Despite Garcia’s misplaced civic spirit—company first before country—he has cooperated albeit with much prodding from some senators.

Let’s recall these substantial amounts in PSBank: P5 million in 2007, P8.5 million in 2009, and P19.6 million in 2010.

Separately, the manager of BPI Ayala, Leonora Dizon, testified that Corona has an existing current account with them and its 2010 year-end balance was P12-M. The other time that this account had significant deposit was in 2007, with a year-end balance of P5-M.

Combining his deposits in the PSB and BPI accounts, Corona had a total of P10-M in 2007 and P31.6-M in 2010.

Compare these to Corona’s declared cash assets in his SALNs:

2007 – P2.5-M (P10-M in BPI and PSB)

2009 – P2.5-M (P8.5-M in PSB)

2010 – P3.5- M (P31.6-M in BPI and PSB)

These facts are uncomplicated and indisputable. The huge disparities clearly tell us that Corona did not tell the truth.

After all, one must always return to the heart of the matter, which is: what is impeachment supposed to achieve? It is supposed to determine, in a public way, if an official who has antagonized elected representatives to the extent that they have secured an indictment in the House of Representatives, deserves to stay in office or not. This is done by means of a reasonably organized hearing in which popularly-elected officials will end up delivering the verdict. However, there is a supposed conflict in the provisions of the Constitution on impeachment and judicial review. A blogger calls this a Clash of Values: Judicial Review vs Checks and Balance. There are, however, many voices who see no unbridgeable gap; a temporary separation of opinion, perhaps, but eminently capable of resolution. We will have to see if that’s the case.

I still believe Mr. Corona has still conceded public opinion; he may even have conceded culpability to a certain extent, in order to avoid conviction purely on technicalities. As an unelected official whose power and authority come not from public approval, or even collegial respect, he may feel he can manage with public disapproval so long as he can still hold the line in the Supreme Court. What he needs, however, is to distract enough of the public and enough of those involved in the impeachment trial, so that they won’t notice or point out, other maneuvers he or his allies are making.

Why would anyone aside from Mrs. Arroyo’s coterie come to his assistance? His defeat would be one more achievement for the cause of accountability; it would bring Mrs. Arroyo closer to her moment of accounting; it would also weaken those who see their political prospects dependent on weakening, in turn, the tide of reform. Otherwise, the tide could leave them feeling soaked come 2013 and 2016. There was already a Showdown in 2010: 2013 is the chance to try to reverse that verdict before it becomes terminally irreversible in 2016. Why do I say “terminally”? Because those who tried to clamber back from the great showdown of 1986, who saw their two-decade clawing back to power once again defeated in 2010, are not getting any younger. The next two elections are the last they can throw their hats into, before the verdict of history becomes permanent.

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