Tuesday, February 28, 2012

AURA: CJ Corona Impeachment Trial

Analyzing, Understanding, Reading and Appreciating (AURA) the CJ Corona Impeachment Trial is a practical and intellectual exercise of common sense and wisdom.

Senate As An Impeachment Court

The Philippine Constitution grants to the Senate the SOLE and EXCLUSIVE power to try and decide all impeachment cases.

It is now public knowledge that the Senate as an impeachment court is both quasi-judicial and quasi-political. The Senator-Judges as expected are mostly non-lawyers who represent the thoughts and will of the people who elected them. They are not expected to know the letters and nuances of the law. It is sufficient that they are able to ferret out the facts, and analyze, understand and appreciate their application to obtain and render justice. The dominant requirement is just plain “common sense”.

Impeachment History

Our law on impeachment has its roots from both the U.S. and British legal jurisprudence.

Research shows that the U.S. Senate as an impeachment court treated the admissibility of testimony with following guidelines:

“Considering the character of this proceeding, that it is a trial of impeachment before the Senate of the United States, and not a proceeding by indictment in an inferior court;

Considering that Senators are, from beginning to end, judges of law as well as fact, and that they are judges from whom there is no appeal;

Considering that the reasons for the exclusion of evidence on an ordinary trial where the judge responds to the law and the jury to the fact are not applicable to such a proceeding;

Considering that, according to parliamentary usage, which is the guide in all such cases, there is, on trials of impeachment, a certain latitude of inquiry and a freedom from technicality;

And considering, finally, that already in the course of this trial there have been differences of opinion as to the admissibility of evidence;

Therefore, in order to remove all such differences and to hasten the dispatch of business, it is deemed advisable that all evidence offered on either side not trivial or obviously irrelevant in nature shall be received without objection, it being understood that the same when admitted shall be open to question and comparison at the bar in order to determine its competency and value, and shall be carefully sifted and weighted by Senators in the final judgment.”

In the British Parliament, the Rules of Evidence were treated this way:

“It was contended before that tribunal, that instead of the strict and iron rules of a law court, the field was broad and liberal, and to be controlled by no rule but the Lex et consuetudo Parliamenti. (The law and custom of the Parliament)

“They are not to be trammeled and hemmed in by the rigid rules of evidence..…. the strictness which prevails in the ordinary criminal courts does not apply here, nor is it required that the article of impeachment should be drawn up with all the rigid precision of an indictment. The proceedings in this highest court are to be more liberal and free, and nearer substantially to the course pursued by courts conversant with the civil than the criminal law.”

Enrile Ruling

This is why I was not surprised when Senate President and Presiding Judge Enrile finally held “that the hearsay evidence rule does not apply fully because the impeachment trial is not a criminal case.”

This further means that the required proof would not be that in a criminal case which is “proof beyond reasonable doubt.”

The ruling came about because the prosecution presented Justice Secretary de Lima as a witness to prove the Article 7 charge that Corona allegedly “engineered” the issuance of the temporary restraining order (TRO) that would have allowed Arroyo and her husband to escape punishment in corruption and election fraud investigations against her. She testified on the following:

1.   That she had issued three watch-list orders to ensure that the Arroyos remained within Philippine jurisdiction while under investigation;
2.   That the Supreme Court issued a TRO lifting the watch-list orders but imposed three conditions: the posting of a P2-million bond, assignment of an agent to receive court orders in Arroyo’s behalf, and notice to local consulates each time they land in a country abroad;
3.   That Arroyo was blocked at the NAIA because she had not fulfilled all those conditions;
4.   That CJ Corona had allegedly maneuvered things so that it would appear that the conditional TRO was already in effect; and
5.   That she relied on such allegation based on the internal deliberations of the Supreme Court narrated in the dissenting opinion of Associate Justice Ma. Lourdes Sereno.

On this testimony, Enrile stated:

"It is the ruling of the chair that to the extent of the facts narrated by the witness on the basis of the dissenting opinion, let them remain as part of testimony, as record. But to the extent of the truth/falsity of what the dissenting opinion of Justice Sereno contain, to the extent of those facts whether they are true or not, that the CJ influenced this, or CJ did that, then to that extent it is hearsay because the witness was not present when those things were being done/said,"

The ruling correctly admitted into the record as evidence numbers 1, 2 and 3 but ruled that numbers 4 and 5 are considered hearsay.

There is no doubt that because Secretary de Lima was not present at the internal deliberations, she had no personal knowledge of what transpired. It was therefore hearsay.

Is it inadmissible then?

Public Records

Not necessarily! Supreme Court decisions, concurring, dissenting and separate opinions are Public Records that are promulgated and published. They are recorded in the course of official business and made available and accessible to legal researchers, members of the judiciary, lawyers and all interested parties.

The impeachment court could treat them as Entries in the course of business and Entries in official records as provided for in Sections 43 and 44 of Rule 130 in the Rules of Court respectively, as exceptions to the hearsay evidence rule.

The separate opinions of Associate Justices Abad and Velasco as well as the dissenting opinions of Associate Justices Sereno and Carpio on the same issue are kept and incorporated in the same records. They have been promulgated and published and are accessible to the public.

Why not admit all the opinions as evidence when offered and let them be “carefully sifted and weighted by the Senators in the final judgment"?

Judicial Notice

Also as provided for in Rule 129, the impeachment court could take Judicial notice under Section 1 because the said opinions are official acts of the judiciary, or under Section 2 because the said official judicial acts have become public knowledge. Section 1 is mandatory while Section 2 is discretionary.

Electronic Evidence

In this digital age wherein the Philippines has become a leading exponent, and having been named Text, Facebook, Twitter and Call Center Capital of the world, using electronic data as evidence to seek the truth for justice should draw significant attention.

Government websites have become reliable sources of information, news, laws, jurisprudence and the like of Filipino citizens residing in the country and abroad. Official public documents, forms, publications and other records are digitally replicated and uploaded in official government websites run by web masters required to obtain security clearances.

Under U.S. rules, the contents of some these government websites are self-authenticating and are admitted as electronic evidence not unlike computer records.

This is E-Gov working for, of, and by the people.

I gain access to the Supreme Court decisions, opinions, laws and other judicial matters from the website of the Supreme Court and the judiciary. Similar contents are replicated or linked by the websites of the Official Gazette (www.gov.ph), the Arellano Law University, Chan, Robles Law offices and others.

In search of truth and dealing with questions of fact and law, there is no reason why the impeachment court could not make use of what the Supreme Court itself had promulgated, published and uploaded in its own website.

They can start with the opinions of Associate Justices Sereno and Carpio as well as those of Associate Justices Abad and Velasco regarding the temporary restraining order (TRO) issue.

The published opinions would be in place of the Justices who are unavailable - their physical presence having been barred by order of the Supreme Court and by the Senate’s refusal to require their presence.

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