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Feb 27

Borrow a Corpse to Raise the Spirit: Overlawyering the Proceedings

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(Siege of Minas Tirith, by Stephen Hickman)

The 14th of the Thirty-Six Strategies, is the second Stratagem for Attack: Borrow a Corpse to Raise the Spirit. By confusing common sense with legal technicalities (the institution of law), the Defense seems to have found a new avenue of attack. The trial has increasingly become about procedures, and not about the main issue at hand. It began with muddying the waters with assertions of the “rule of law” (see Two sides of the rule of law) despite some lawyers, themselves, arguing that the case, and not legal technique, is what matters (see The Legalese Disease and some unsolicited advice) and sensible reminders, as Peter Wallce bluntly put it, that It’s all about character:

So the prosecution is weak and the defense strong. So what, this is not about the ability of lawyers, it’s about inherent honesty of a man, of the nation’s Chief Justice.

It doesn’t matter if the information is admissible or not. This is not a court of law determining legal guilt, it is a questioning of a man’s fitness to hold a high office that demands the highest levels of honesty and integrity. Proof beyond reasonable doubt is not necessary, the preponderance of evidence is more than enough. We are talking about the character of a man who, more than anyone else, must meet the highest standards of decency. There’s more than enough evidence to say he’s failed to meet the high standards required of a Chief Justice. This is a court to determine the truth of the character of a man. The senators have a responsibility to the Filipino people, to the Philippine nation. This transcends adherence to strict legal niceties.

Incidentally, I completely fail to understand why if you find unexplained wealth you can’t look into it because it wasn’t in the articles of impeachment, that it was a “fishing expedition”. How else do you catch big fish except by going fishing. If it’s uncovered during the proceedings of the trial, as this was, of course you look into it.

This is only the second impeachment trial ever, it is unique in itself and cannot be treated as court cases normally would be. The banks have acknowledged he has more money than he reported. That’s a fact. That’s sufficient reason to declare him guilty. His SALN was false. The defense counsels are first and foremost Filipinos, only secondarily lawyers. They should be concerned about what’s the best for the welfare of their country. A man of now questioned ethics should not be Chief Justice, the doubts alone are sufficient. And 70 percent of a group I surveyed agree.

A chief justice is next to a bishop in the depth of character he must have ? far greater than us mere mortals. Corona does not meet the high standards demanded of the position.

There are some rather concerned about the increasing tendency of the proceedings to get bogged down in procedural wrangling. Not to mention actual rulings of the Senate. As Patricio Diaz puts it, there is the problem of Law Ruling Out Truth:

Enrile ruled that the IC is trying an impeachment case, not a criminal case. The Rules of Evidence do not strictly apply. He ordered to keep on record De Lima’s testimony in full marked e HH as her testimony; but as to its truth or falsity relevant to the complaint it would be considered as hearsay evidence.

In short, since De Lima has no personal knowledge of the Supreme Court proceedings, her testimony is hearsay. That half satisfies the position of the defense. The other half – keeping her testimony as her testimony – satisfies the prosecution as it can argue for its admission as evidence or have Sereno authenticate her dissenting opinion on record.

Enrile has “rendered” to the defense what “belongs” to it – its position that De Lima’s testimony is hearsay according to the Rules of Evidence. At the same time he has “rendered” to the prosecution what “belongs” to it – the burden of validating truth in hearsay evidence.

The hearing on Article 7, like that on Article 2, has exposed the contradiction in the “rule of law”. While touted as the “rule” to arrive at truth and justice, when convenient it is used to rule out truth. Behind this, the defense is ruling out the truth about Corona.

Delima’s testimony was testimony by authority – an accepted mode of arriving at the truth. This is employed by scholars in their researches – primary, when referring directly to an author’s work; secondary, when referring to an author’s work as quoted by another author. De Lima’s reference was primary.

The President reports to the nation from time to time based on the official reports of government offices and agencies. He has no personal knowledge of those official reports. By the Rules of Evidence, the State of the Nation Address, for instance, is hearsay.

In judicial courts, reports are admitted as documentary evidence if authenticated. This must be the basis of Sen. Miriam Defensor-Santiago’s remark that the prosecution’s case is lost unless Justice Sereno can authenticate her dissenting opinion. This can happen if the prosecution can convince the IC to invite Sereno; if the prosecution can invite Sereno; or, if Sereno voluntarily appears as witness.

But the Supreme Court has resolutions en banc banning the justices or any Court official from testifying in the IC trial and preventing the disclosure of Court records. How can the IC or the prosecution penetrate the tightly walled-in Supreme Court and have Sereno testify or authenticate her dissenting opinion on record?

De Lima’s testimony contains damning truth. But considered as hearsay, it has to hurdle the imposing Rules of Evidence standing on the way; this can be admitted as evidence if Sereno can testify or authenticate her dissenting opinion on record. However, the Court resolutions also stand on the way. The rule of law in the form of Rules of Evidence and Court resolutions is ruling out truth that can convict Corona.

So what is happening is as the public –egged on by the defense’s cheerleaders– gets lost in the procedural fog, the main case at hand gets set aside. What the Senate is supposed to be determining is trampled under the general stampede to inspect the latest procedural brawl.

Abe Margallo points out this tendency –to focus on procedure and not the case at hand– means Judicializing the Corona impeachment diminishes Senate role. On the other hand, legal scholar Edsel Tupaz, in Extraordinary Constitutional Interpretation in Corona’s Impeachment says,

Public pulse as of the hour is of the view, more or less, that the majority of the Philippine Supreme Court — a consistent vote of eight against five — are doing all they can to save their Chief Justice from public scrutiny regardless of doctrinal considerations. As protest rallies before the halls of the Court continue, it ought to be noted too that the Philippines is facing extraordinary times which, rightly or wrongly, may call for extraordinary constitutional interpretation. Conversely, public pulse appears to be in favor of the legitimacy of the Senate sitting as an impeachment court, with recent polls showing as much as 86 percent of respondents stating that the public at large will abide by the Senate’s ruling.

The impeachment trial of Chief Justice Corona certainly implicates the clear tension between “judicial privilege” and the public’s right to information on matters of public concern pursuant to Section 7 of Article III of the Philippine Constitution. Should “deliberative privilege” trump the right to information and discovery? It ought to be recalled that Section 7 was entrenched as a constitutional right in response to then President Ferdinand Marcos’s secrecy about his health in the days leading up to the 1986 snap elections, whose perceived failure then triggered the 1986 EDSA Revolution which ousted him and his family, Imelda Marcos included.

Much has been made of the Supreme Court’s moving heaven and earth to prevent the veil of secrecy from being lifted. There re times in the past, when that veil has been lifted, if not totally, at least partially. Most famous perhaps is the decision penned by Chief Justice Concepcion in Javella v. Executive Secretary, well worth reading in full for its disclosures. I’ve written about how Chief Justice Concepcion, seeing the Court finding ways to justify martial law, penned the decision then went into early retirement. You can read about it in Why a Chief Justice Would Think of Resigning. As we also know, former Chief Justice Concepcion made the lesson he took away from that bitter experience, one of the biggest innovations in the present Constitution. That innovation, in turn, has led to concerns that the Supreme Court may be too powerful and can exercise a kind of judicial dictatorship; in which case the healthy effect of Corona impeachment to rebalance powers is taking place, as Abe Margallo puts it.

bLawgger Article VIII Jester insists The principle of judicial privilege and/or confidentiality should yield to higher public interest, i.e., that of making public officials to account for their actions through the direct representatives of the People through the impeachment process. Tupaz takes a more clinical, academic view.

He shared additional thoughts on Twitter:

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