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Mar 03

Feign Madness But Keep Your Balance: More Heat than Light

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‘I know what you’re thinking about,’ said Tweedledum; ‘but it isn’t so, nohow.’

‘Contrariwise,’ continued Tweedledee, ‘if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.’

‘I was thinking,’ Alice said politely, ‘which is the best way out of this wood: it’s getting so dark. Would you tell me, please?’

But the fat little men only looked at each other and grinned.

–Lewis Carrol, Tweedledum and Tweedledee, Through the Looking Glass.

The 27th of the 36 Strategies, is a Stratagem for Gaining Ground: Feign Madness But Keep Your Balance.It is well to remember what Edmunde Burke said, in his opening statement in the impeachment of Warren Hastings:

It is by this tribunal, that statesmen, who abuse their powers, are accused by statesmen, and tried by statesmen, not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality. It is here, that those, who by the abuse of power have violated the spirit of the law, can never hope to escape through any of its defects.

Impeachment is supposed to determine one thing alone: is an impeached official, deserving of staying in office, or should he or she be terminated from employment, because staying in office would harm the country? That is all that impeachment is concerned with. If there are allegations of criminal guilt, they are to be disposed of by means of a case filed in criminal court, and not in the Senate: not least, because certain officials are immune from suit while they hold office, so logically, if criminal cases are to be filed, they could only be filed after the official is removed from office and not during.

While some lawyers argue that impeachment should adhere very closely to the procedures and requirements of criminal trial, because conviction can result in perpetual disqualification from office, the framers themselves of the Constitution believed that since impeachment concerned public office –loss of which does not involve the loss of a basic human right such as life, liberty, or property– the rules for impeachment should not be so very strict. The framers of the Constitution as well believed a function of the provisions on impeachment was to have a deterrent effect on those tempted to abuse office.

In earlier entries I pointed out that a side-issue in this current impeachment case, is that the veterans of the first impeachment trial in 2000-2001 put forward views which, it is only human of them to want to pursue yet again. For example, both the Senate President and Senator Santiago would, by virtue of their being lawyers, approach impeachment from the point of view of a judge conducting a criminal trial. Others, also lawyers, might pursue the case, on the other hand, from an appreciation of the political nature of the proceedings. And they are free to do so, with the ultimate reckoning being the vote on each Article of Impeachment.

Yet both perspectives seem to recognize that if impeachment itself is part of the system of checks-and-balances (it is the legislature’s check on the Supreme Court’s authority, for example), the public, by watching the proceedings, is forming a judgment, too. While senators are free to vote their conscience, the public is free to decide if that vote is in conformity with their views on the merits of the case.

The result, if a senator’s actions and votes are disliked by the public, can be catastrophic for a senator’s career. Tessie Aquino-Oreta, John Osmeña, Kit Tatad, for example, never recovered from the Second Envelope vote in 2001, while Enrile and Santiago eventually did. Yet Santiago herself, early in the the current case, did state the political fallout that occurred from what she herself admitted was a too-legalistic approach to the proceedings, which infuriated the public. A keen political observer might note that on the other hand, Santiago is at greater liberty to revert to type, as she will no longer seek public office; and while everyone expects Enrile not to seek further political office in 2016, it is no secret his son might make a bid for the Senate, in which case his father’s luster or lack of it, would affect his career prospects. Hence, the more temperate behavior of Enrile, even when obviously irked by the lawyers of the defense and the prosecution, or Joker Arroyo’s seeming contrast between his days as a House prosecutor and today, as a Senator (he is at the end of the line, as far as politics is concerned), and Santiago’s shall we say, stürm und drang.

Vergel Santos calls it A spectacle within a spectacle:

She may only be only one of 23 but, by sheer dint of character, Miriam Defensor Santiago is able to hog the spotlight and make herself a spectacle within a spectacle. And on Wednesday she was at her most spectacular – and also at her most arrogant.

Two things got her goat. One was a university poll that pronounced Corona guilty, thus implying no need for further trial. Santiago wanted all who voted for conviction expelled and forthwith, with some dramatic breast-beating, let it be known that no one but no one had the power to convict but only she and her court alone – so help us, God! – thus not just shutting out the sovereign people to whom she and the rest of the court owe their merely reflected power, but effectively mounting a coup on them.

The other provocation, serving in fact as the trigger of the day’s spectacle, was the prosecution’s decision to no longer prosecute the rest of its allegations. That may seem unproblematic to normal minds, but not to Santiago’s. It launched her on another of herd is courses on legalities, and in its course she expressly and emphatically, not just implicitly as she had charitably done before, called the prosecutors gago (stupid) and their decision all kagaguhan (stupidity).

Quaintness and other qualities that made her a huge curiosity now worn, Santiago has ceased to be a legitimate show. She tries harder and harder to be funny or fearsome, but fails more and more at both.

One prosecutor had definitely suffered her enough and didn’t mind showing it: he pressed his palms to his ears as Santiago discoursed, possibly sparing himself hearing the aspersions cast on him and his fellows; in fact, he didn’t deny his contempt and said he was taking the consequence.

That public detonation by Senator Santiago was precisely the sort of thing that led to her losing public sympathy in 2001; proof how fickle public sympathy can be. Rene Saguisag bluntly states that there are times when a lawyer willingly has to commit contempt of court –while gladly suffering any penalty imposed by the court:

HAVE the senators prejudged Atty. Vit Aguirre? If they punish him, they will have approved of Sen. Miriam’s arguable misconduct and show it as a model for all to follow. A fair inquiry may show that she might have been guilty of disorderly conduct herself…

Sentenced to jail for calling Macoy a super-subversive in early 1983, and told to apologize, I said, “Your Honor, I have been advised to say sorry. I won’t. A weekend in jail? A low price to pay for the high privilege of sharing the suffering of our unhappy Motherland.” Earlier fined fifty pesos for saying the court was getting militarized, I pulled out a hundred-peso bill and said, “I’ll gladly pay it, can I say something more for another fifty pesos?” Good manners, right conduct, urbanidad and breeding come to mind as part of our training in Mendiola.

But beyond the spectacle is the truly interesting insight the behavior of Santiago –and public approbation of that behavior until just recently– provides. Edwin Espejo in a commentary (see Senator Miriam Santiago: Lost in translation) noticed how Senator Santiago is far from infallible:

She castigated the prosecution panel for what she claimed was a deception and for such it should be ‘punished’ and cited for contempt. A former judge herself, Senator Santiago said the prosecution is losing and giving away its own case because of their perceived incompetence.

On the last hearing day of the week, the senator was again her usual unpredictable self. This time, in a complete turnaround, goading and coaxing the prosecution and laying the ‘foundation’ from where the prosecutors should take off as far as the assailed document – a photocopy of Supreme Court Chief Justice Renato Corona’s opening bank document – which was attached in the request for subpoena.

The subpoena, granted by the Senate impeachment court, yielded damning information against the chief justice. Such information, however, are now being threatened to be thrown away because of the authenticity, or lack of it, of the prosecution’s annexed document for the subpoena.

What was lost in Santiago’s tirade against Tupas and the rest of the prosecution was her own error. The assailed document was never introduced in court. Records of the Senate impeachment proceedings will bear out that what were introduced and marked were records submitted and testified by PSBank officials.

These are facts that senator ignored when she first gave Tupas a nationally televised tongue lashing, described by her colleagues in the law profession as uncalled for. In the middle of her monologue, Tupas vainly tried to explain that the controversial document was not among the documents marked by the prosecution as its evidence. But Santiago wanted none of it.

On Thursday, Santiago prefaced her manifestation as a judge that she was willing to give the prosecution a good day. Without admitting her previous mistake, she again asked Tupas if the controversial document was among the evidences introduced by the prosecution which her fellow Ilongo member of Congress reiterated in the negative.

In other words, there is a dynamic at play which, even as some senators may declaim they are immune to the peanut gallery, actually plays to the gallery: marshaling an inherent respect for age, and legal credentials and magnifying it with theatrics designed to intimidate –browbeat, actually– those for whom the senator may have a personal or other dislike.

As for former Justice Cuevas, recall that one senator tried to exclude Atty. Marlon Manuel from participating on a supposed conflict of interest –when one could easily argue that Cuevas himself had a conflict of interest in participating in a high constitutional case,when he himself had participated in rebellion and sedition: and then defended the Senate President when he’d been charged with rebellion in the past. After all, lawyer Sonny Pulgar had quite early on noticed, he claimed, an inclination to be kind to the defense and harsh on the prosecution, on the part of the Senate President. But to my mind the Senate President has adroitly managed to maintain public confidence in his handling of the proceedings. As for Cuevas himself, Article VIII Jester points out his legal technique is far from flawless.

Yet a cold reading of the transcripts of the proceedings –removing the images and eliminating the decibels– might show that what comes across as speaking ex cathedra is more heat than light; that on the other hand, what comes across as plain bumbling –because shrilly described as such– is, on the whole, far from breathtaking lawyering but serves the purpose anyway; and could clarify where the rulings may themselves present what can only be described as existential problems for the proceedings.

The dilemma of identity is graphically explained by Patricio Diaz (see Law Ruling Out Truth) as follows:

In her oral testimony, relying mainly on the dissenting opinion of Associate Justice Maria Lourdes Sereno, she related how Corona had the TRO enforced despite the failure of Arroyo to meet one of three conditions. Chief Defense Counsel Serafin Cuevas moved to strike out from the record De Lima’s testimony as mere hearsay – inadmissible according the Rules of Evidence.

In response, 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.

This is the burden of the senators: Enrile has declared the IC is trying an impeachment case, not a criminal case; the Rules of Evidence do not strictly apply. Yet, unless the Supreme Court relaxes its ban on the appearance of justices as witnesses at IC hearings and on the disclosure of its records, Corona is untouchable behind the rule of law.

Let us return to the meaning of the word–

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And why, eminent lawyers such as Jovito Salonga, as far back as the 2000-2001 impeachment, pointed out, Why the Impeachment Trial is slow, tedious and full of technicalities:

As stated by the pre-war Supreme Court in Prats & Co. v. Phoenix Insurance Co., 52 Phil. 807(1929): “These rules (worked out in England and the US) have little pertinence to a system of procedure, like ours, in which the court is judge both of the law and of the facts. Apart from these considerations is the circumstance that time consumed in the trial on such collateral points is generally many times greater than would be consumed if the questionable testimony should be admitted for what it is worth.” This is sound advice from American and Filipino justices who composed the Supreme Court in 1929. Justice Street penned the decision, concurred in by Justice Malcolm. The senators sitting today as an impeachment court are called judges, not jurors, precisely because they are judges both of the law and of the facts. Hence, they should know better than involve themselves in pointless disputes on whether a given piece of evidence is immaterial or irrelevant. The Senate may do well to conduct its impeachment trial almost in the same manner it conducts its committee investigations, except that in an impeachment trial, the senators acting as judges are under the leadership and guidance of the Chief Justice of the Supreme Court as presiding officer, in the interest of orderly procedure and conformably with the mandate of the Constitution.

By the way, Raul Pangalan said as much, recently, too (see Fearless stand on airport standoff):

On Thursday, he [Enrile] partially rejected former Justice Serafin Cuevas’ objection on hearsay evidence. Enrile ruled that impeachment proceedings are an exception, citing not any statute or case-law but an academic work by American author Raoul Berger. But Enrile is right: The hearsay evidence rule is meant to insulate the so-called “jury of one’s peers” from improper testimony. The senators are judges who are empowered to decide what evidence to hear and what punishment to impose, not jurors who are supposed to decide only questions of fact. By their electoral mandate, they are supposed to be able to judge for themselves what to believe and what not to believe.

Here is the Salonga article, in full (more than a decade later, Edsel Tupaz’s article, Extraordinary Constitutional Interpretation in Corona’s Impeachment, seems to approach the question of impeachment from a similar perspective):

Why the Impeachment Trial is Slow, Tedious and Full of Technicalities

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