The fate of Article II: “A threshold issue”

“None So Blind As Those Who Won’t See,” editorial cartoon, The Judge, November 19, 1881

Yesterday, the much-awaited first appearance of Senator Miriam Defensor Santiago in the impeachment proceedings finally occurred. First, she weighed in with her thoughts on the nature of impeachment:

THE PRESIDING OFFICER. The Lady Senator from Iloilo.

SEN. DEFENSOR SANTIAGO. Thank you.

I would like to say something since we are already discussing the basic principles on which our impeachment proceedings begin. First, let me say that in my humble belief, impeachment contrary to misimpression of both counsel here and some in the media and in the public, impeachment is neither political nor judicial. Impeachment is both quasijudicial and quasipolitical. The term “quasi” means it is almost but not exactly like a political or a judicial proceeding. Therefore, if this is the case in the definition of impeachment, the rules of court will not apply totally to this proceedings but lie within the discretion of this court who are not a Senator court. We are the high court of impeachment.

There may be a Supreme Court, but, nonetheless, we are the sole and only high court of presidential and chief justice impeachment. Therefore, it behoves us to start with this principle, “Justice delayed is justice denied.”

She then proceeding to interrogate both the defense and the prosecution on how they intended to proceed.

SEN. DEFENSOR-SANTIAGO. On just another point, Mr. President, may I be allowed to continue? I have two minutes.

THE PRESIDING OFFICER. Proceed.

SEN. DEFENSOR-SANTIAGO. The question is, what is the standard of proof in impeachment proceedings? In a civil case, the standard of proof is very low, it is preponderance of evidence. In a criminal case, it is very high, proof beyond reasonable doubt. In an administrative case, it is clear and convincing evidence.

That is the suggestion of this humble judge.

You may comment on my suggestion, in which case, I shall ask my colleagues if they have any objection to my proposal.

The prosecution and defense then took turns proposing the standard of proof for the trial:

JUSTICE CUEVAS. May I now be heard, Your Honor, in connection with the suggestion.

THE PRESIDING OFFICER. Let us give the prosecution first the opportunity to speak.

What is the pleasure of the prosecution?

May I request the Lady Senator to please state the level or standard of evidence needed—suggested.

SEN. SANTIAGO. What should be the standard of proof in an impeachment proceeding? It can be any or even beyond the following, and by the way, let me just interject this before I forget, conviction or acquittal are not the only ends of impeachment since if you will read your Constitution, you will realize, the Constitution says, the penalty shall not be further than removal from office and disqualification from public office. Therefore, the Constitution allows implicitly that any other penalty below removal and disqualification is allowed.

These proceedings therefore can result, maybe, in a censure or a reprimand, not necessarily in a judgment of conviction or acquittal.

Now may I have the comments of two counsels on what should be the standard of proof.

REP. TUPAS. For the prosecution, Your Honors, the impeachment proceeding is a keen to an administrative disciplinary action, wherein the penalty could be removal from office and disqualification.

SEN. SANTIAGO So, what should be the standard?

REP. TUPAS. Because of that, Your Honors, the standard should be substantial evidence.

SEN. SANTIAGO. Substantial evidence, and counsel for the defense.

JUSTICE CUEVAS. On the part of the defense, Your Honor, it is our humble submission that the proof necessary for conviction in an impeachment case should be proof beyond reasonable doubt.

Allow me to explain, Your Honor. You will note that in criminal cases, Your Honor, even in simple case of libel, serious physical injury or merely malicious mischief, the required quantum of evidence is proof beyond reasonable doubt. And yet, the penalty may not exceed six months, Your Honor.

Now, why will there be a lesser quantum of evidence required in cases of conviction in connection with impeachment case, Your Honor, where the penalty is very severe, it is not merely equivalent to reclusion perpetua, it is practically a death sentence, Your Honor.

And when it speaks of disqualification from public office, that is a perpetual absolute disqualification. It is not temporary. It is not in the nature of simple disqualification.

So, I would submit, Your Honor, that to do justice to the respondent, not only in this case but in all other cases, the proof required must be proof beyond reasonable doubt.

Secondly, you will note and you will probably agree with me that very few high officials are subjected to impeachment proceedings by way of removal. They are the highest official of the land, the President, the Vice President, the Justices of the Supreme Court, the members of the constitutional commission and the Ombudsman, Your Honor. They are not ordinary official. Why will mere substantial evidence be enough to disqualify them from office? Some of them may have spent years being a member of the constitutional commission, a member of the Supreme Court. It will be too light a treatment insofar as the penalty involved is concerned.

Kindly bear in mind, Your Honor, that absolute disqualification is perpetual. It may not only be temporary, which is only for six months, Your Honor, it may be for life. And if it is for life, why will the quantum of evidence be lesser in cases of conviction or prosecution for a mere simple case of estafa, libel and so on down the line.

That is my humble submission, and I believe that we can amplify our arguments in support thereof when so ordered or necessary, Your Honor.

Having heard both sides, Senator Santiago said the differences of opinion meant the Senate would have to make a determination:

SEN. SANTIAGO. Mr. President, considering the polar differences in points of view by the two counsels for both camps, I humbly submit that this matter can only be resolved by this high court in caucus.

I so submit.

And then, the discussion went on to whether Article II was composed of the title of the charge (as proposed by the defense) or the title and sub-parapgraphs, as argued by the prosecution. As Senate President Enrile put it,

THE PRESIDING OFFICER. Before I allow you to proceed, I would like to remind everybody that this was requested or ordered by the Presiding Officer in view of the issues raised by the defense in connection with the allegations of facts under Article II of the Articles of Impeachment, primarily on the allegations or the contents of paragraphs 2.3 and 2.4 of Article II of the Articles of Impeachment. And in view of the gravity of the argument posited by the defense, the Chair decided to request or order the parties to submit their respective memorandum on this issue.

So the discussion went this way:

THE PRESIDING OFFICER. … if we have discussed it sufficiently. So, counsel for the defense, you may proceed to argue your case.

JUSTICE CUEVAS. Thank you, Your Honor. The proceedings, Your Honor, insofar as this impeachment complaint is concerned is highly pregnant with a lot of objections and so on, that the counsel for the honorable Chief Justice of the Supreme Court is concerned. We have posed those objections, Your Honor, not to delay or with no intention to further lengthen the time for the trial of this case, Your Honor. But we were merely exercising the right of the respondent, Your Honor, pursuant to law, in accordance with the Constitution, and in accordance with the Rules of Evidence. In this connection, Your Honor, it will be noted that we have been continuously objecting to the presentation of evidence on a charge not incorporated in the impeachment complaint. However, we were met with the suggestion that you just make a continuing to the offer of that kind of evidence, Your Honor. We are sorry to state, Your Honor, that it is rather discomforting on our part for the simple reason that the rules of evidence specifically provides that when it becomes reasonably apparent in the course of the examination of the witness that the questions being propounded are of the same class to those which objection had been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection it being sufficient for the adverse party to record his continuing objection. I would like to believe, Your Honor, and if there are jurisprudence to the effect, that this particular rule of evidence applies only to testimonial evidence and not to documentary evidence. The reason being that insofar as testimonial evidence is concerned, the moment the witness is called on the stand, the offer starts, Your Honor. So the objection can be raised any time the moment the witness is on the stand. This is not so, Your Honor, in connection or in relation to documentary evidence so much so that when there was mentioned about the SALN of the Chief Justice of the Supreme Court , we were vehemently objecting, not that we are worried, not that we are afraid, but it is not the proper time, Your Honor.

Secondly, ang sabi po nila itong bista na ito ay hindi bista ng mga abogado, nanonood dito ang pangkaraniwang tao. Pagkatapos po na mamarkahan iyang SALN na iyan ay meron na pong press conference diyan sa labas. Nakita na ninyo, heto ang ebidensya. May I ask, Your Honor, are they considered evidence in this case? My answer is definitely no because the stage of offering documentary exhibits are the following: first, there must be identification; second, there must be marking; and, third, there must be a formal offer. Now, everybody will agree with me that there is no offer yet. How can this be considered evidence? But they are saying—ito ang ebidensya, maraming property and so forth, guilty iyan and so on. That is not true, Your Honor. That is a falsification of facts and jurisprudence on the point, Your Honor, because they may not be able to offer this anymore. And the offer, Your Honor, it may be rejected or overruled in which case they will not be considered evidence because the rule of procedure states, the court shall not consider any evidence not formally offered and the formal offer entitles the opposite party to object to the admission thereof. There being no formal offer, there being no order of admission, they are not considered evidence and yet pinagpipiyestahan na po kami sa labas. Marami pa lang property iyang kliyente ninyo ganito, ganito. That is not true, Your Honor, wala pa pong ebidensya, wala pang offer.

Now, since our objection is directed toward testimonial evidence, Your Honor, may I be permitted to read Section 38 of the same rule. “The ruling of the court must be given immediately after the objection is made unless the court desires to take a reasonable time to inform himself on the question presented. But the ruling shall always be made during the trial and at such a time as it will give the party against whom it is made an opportunity to meet the situation.” That is why, Your Honor, we were not satisfied by an entry in the records, Your Honor, stating that there is a continuing objection because that does not hold water insofar as testimonial evidence is concerned. Now, how about documentary evidence is concerned?

Enrile, at this point, asked the defense if they–

THE PRESIDING OFFICER. Are you asking for a reconsideration of the ruling of this Chair?

JUSTICE CUEVAS. Precisely, Your Honor. We wanted a clear delineation of the authority of this honorable impeachment court, Your Honor, on the issue of whether these evidences being now presented, Your Honor, violates the rule on admissibility of evidence enshrined under rule of evidence. Now, it may be asked, but you are referring to the rules of court. Yes, because there is no rule of evidence. I have examined, Your Honor, allow me to state this for the record, I have examined many a time the rules of impeachment of this honourable court. I see nothing about the nature of evidence that would be presented and anything relative to the evidence, Your Honor. So what happens? That provision in the rules that the provision of the rules of court shall be suppletory finds no applicability, it is a misnomer because ang amin pong pagkaunawa iyong supplementary merong main at ito po sinu-supplement lamang. E hindi po, wala po namang rule of admissibility na sinasabi sa rules of procedure.

Now, secondly, if it is true that there is rule of evidence in connection with this, permit me or pardon me to state, Your Honor, that this is incontravention of our constitutional rule of our constitutional provision on the rules of court because it is stated in there that this Rules of Procedure are promulgated by the honourable Supreme Court, pursuant to its role-making power, and this shall govern any and all proceedings, whether criminal, civil or otherwise. Except, in cases of land registration cadastral cases, but not also in cases of election cases, Your Honor.

In other cases, …

At this point, Senate President Enrile and Justice Cuevas had a debate in which Cuevas appeared to agree with the Senate President but held on to his actual difference of opinion with the Senate President:

THE PRESIDING OFFICER. Counsel.

JUSTICE CUEVAS. Yes, Your Honor.

THE PRESIDING OFFICER. Isn’t it that under Article XI, Section 3(a), Congress was mandated by the sovereign people to adopt its own rules on impeachment to effectively enforce or implement the provisions of Section 3?

JUSTICE CUEVAS. I fully agree, Your Honor. With the observation of the honourable Presiding Justice, I am not questioning, Your Honor, the authority of this court to promulgate rules and regulation concerning impeachment proceedings.

What I’m placing on record is there is no such rule insofar as admissibility, Mr. President, is …

THE PRESIDING OFFICER. But, isn’t it also a matter of fact that the Rules of Court itself, if it is Section 4 of Rule 1, …

JUSTICE CUEVAS. Yes, Your Honor.

THE PRESIDING OFFICER. … General Provision, excepted certain proceedings and other proceedings not herein provided for. An impeachment trial is not provided for with rules under the provisions of the Rules of Court. Is it not correct that this section adheres …

JUSTICE CUEVAS. Yes, Your Honor, I fully subscribe and I’m in full conformity with the observation of the honourable Presiding Justice, Your Honor.

I am not questioning, lest I be misunderstood, we are not questioning, Your Honor, the authority and the power of the impeachment court to promulgate its rule, but what I’m stating on record is this, I have examined the Rules of Procedure, I found no provision relative to admissibility of evidence, the nature thereof, the time of presentation. That is my point …

THE PRESIDING OFFICER. That is correct. Counsel, your are correct, because we adopted by reference the Rules of Evidence under Part 4 of the Rules of Court. And that’s why we made it as a part of Rule 6 of this impeachment court that the Revised Rules of Court shall be suppletory to the impeachment rules of this impeachment court.

JUSTICE CUEVAS. I fully agree, Your Honor. I have no doubt as to the authority of the impeachment court, Your Honor.

THE PRESIDING OFFICER. That’s why I took pains in the beginning of this proceedings to characterize the nature of what the case we are handling here. And the reason for that was precisely to determine what rules in the Revised Rules of Court would be made applicable in this proceeding. And in my humble opinion, and in the humble opinion of this Presiding Chair is that only the Rules on Criminal Procedure and the Rules on Evidence will be suppletory to the Rules on Impeachment adopted and published and promulgated by this impeachment court.

JUSTICE CUEVAS. I fully agree, Your Honor. As I have stated awhile ago, with due permission of the honourable Presiding Justice, …

THE PRESIDING OFFICER. Proceed.

JUSTICE CUEVAS. … I have no quarrel with this provision, Your Honor. But allow me …

THE PRESIDING OFFICER. Just a minute, counsel, with your indulgence. If you remember, when I made a ruling for your continuing objection, I imagine that precisely you would register your continuing objections to that line of questioning without having to repeat them orally.

JUSTICE CUEVAS. That’s correct, Your Honor. But only insofar as the testimonial aspect of the witness …

THE PRESIDING OFFICER. Yes, correct.

JUSTICE CUEVAS. … of the evidence concerned, not the documentary exhibit. And yet, you will probably agree with me that there are exhibits already being marked. So this is not covered by the reservation, Your Honor.

THE PRESIDING OFFICER. If …

JUSTICE CUEVAS. I’m sorry, Your Honor.

THE PRESIDING OFFICER. I’m sorry. I have to interrupt you, but, if you recall, I would like to appeal to the records, I precisely announced that the Presiding Officer will allow the marking and presentation, not offer, but presentation of the documentary evidence, conditionally, subject precisely to the resolution of the issue you raised, and for which, the Presiding Officer ordered the submission of the respective memorandum of the parties.

So, proceed.

JUSTICE CUEVAS. Thank you, Your Honor.

Now, you will probably agree with me that enshrined in our Constitution, is a provision to the effect that the Supreme Court or judicial arm of the government shall have the power to issue rules and regulations concerning pleadings, evidence and so on.

Now …

THE PRESIDING OFFICER. But I would like to call your attention that the Rule itself, the Revised Rules of Court speaks of these rules shall be applicable in all courts. It did not refer to this court, only the courts under the judicial branch of the government.

JUSTICE CUEVAS. With due respect, Your Honor, I find no distinction, Your Honor, because it refers to Rules of Procedure. And it says, “this rule shall not apply to”, so there are exceptions clearly indicative.

THE PRESIDING OFFICER. I am not arguing with you counsel, but I am just calling your attention that the—precisely, Congress was authorized to make its own Rules on Impeachment. The Revised Rules of Court recognize this and it says that the rules it was promulgating shall be applicable to all courts, meaning the courts operating in this country in a permanent—as a permanent structure of our government institution.

JUSTICE CUEVAS. I recognize that Your Honor. I have no reason to disagree lengthily from the opinion of the Presiding Justice. I am merely an advocate of this particular insight, Your Honor.

THE PRESIDING OFFICER. You may proceed.

This part was interesting to me, because it shows how lawyers approach things differently from the public. Note how, in arguing how parts of Article II should be declared irrelevant and thus, not valid charges, Cuevas actually underscored the charges by reading them, mentioning them, and so on: meaning, they were further underscored for anyone watching the proceedings. For a lawyer, this is unimportant, because the court would be limited to what survives after the parts they object to are thrown out; but in a public hearing of this sort, acquittal on a technicality would fatally affect the very purpose of impeachment, which is, to settle the question of whether or not an accused official is fit to remain in office. So here’s Justice Cuevas arguing on technical grounds:

JUSTICE CUEVAS. Now, a cardinal basis of our opposition to the introduction of evidence, in connection with the alleged illegally acquired wealth, Your Honor, is the very impeachment complaint we have on hand. It has enumerated as number two, the failure to file and disclose the SALN. There is no mention whatsoever, dealing with illegally acquired wealth. In fact, what had been referred to according to the prosecution, as applicable to the point and issue, are the allegations embodied in paragraph 2.3 and 2.4. But if we examine, Your Honor, these particular paragraphs, this falls under the discussion and arguments, not allegation. They are entirely different, Your Honor.

May I be permitted to go a little farther.

THE PRESIDING OFFICER. Proceed.

JUSTICE CUEVAS. Paragraph 2.3, Your Honor, states, it is also reported that some of the properties of the respondent are not included in his declaration of his assets, liabilities and networth, in violation of the Anti-Graft and Corrupt Practices.

Second, 2.4, respondent is likewise suspected and accused of having accumulated, suspected of having accumulated ill-gotten wealth, acquiring assets of high values, and keeping bank accounts of huge deposits.

It has been reported, it has been reported that the respondent has among other things, a 300 square meter apartment in a posh mega property development at the Fort, in Taguig, Your Honor.

It is our humble submission that this allegation does not suffice for purposes of serving as a basis for a course of action on the part of the impeachment officials, Your Honor. Why? Because it is based solely on reported, and also on suspected.

May I give an example, Your Honor, halimbawa po ay umutang sa akin si Juan dela Cruz ng P500, hindi po nagbabayad, paano ko makokolekta iyang utang na iyan? Nag-file po ako ng complaint, ang nakalagay po sa complaint, ang suspetsa ko po, may utang siya sa akin Pangalawa, alinsunod pos a mga report, hindi siya nagbabayad. Eh, iyon ho ba ay sufisyenteng cause of action? Kahit na hindi sumagot iyong defendant, wala akong right for recovery. Why? Eh, walang enough cause of action based on my very allegation. Do we go into the answer? Maski walang answer po, madi-dismiss ang kaso. Do we go into the reply? The same story. Why will the reply supply the deficiency in the complaint for impeachment, Your Honor. That is revolutionizing jurisprudence on the point. I am sorry to state this, Your Honor, but I happen to be with the academic world of the University of the Philippines and I had been there for no less than two decades, Your Honor.

Now, question. On the basis, thereof, how do we determine then whether there is a cause of action or not? The ruling is, based on the allegation, without any evidence whatsoever, can a valid judgment be rendered in favor of the plaintiff on the basis of the allegation? The answer is no. And even if there is a decision, it will be null and void because of violation of due process.

Now, let me illustrate a criminal case. Nadukutan po si Juan de la Cruz. So, it could be robbery snatching or whatever it is or slight physical injury. Maaari ho bang sa information na ipa-file ng fiscal ay ilagan niya, alinsunod sa balita naming, nasuspetsa ko eh ikaw ang dumukot o ganito. Hindi po tatayo iyan. It will not stand the test of judicial scrutiny, Your Honor, and if it would do, it would be violative of the constitutional right of the accused against the presumption of innocence. I have delivered my piece, Your Honor. I am very thankful to this august Body, Your Honor. Thank you very much.

Then the prosecution was given a chance to respond:

THE PRESIDING OFFICER. Thank you, Counsel. Is the panel prepared to respond?

REP. TUPAS. Yes. Mr. President, can I just be given time and to briefly respond.

THE PRESIDING OFFICER. Proceed.

REP. TUPAS. The only issue here, Mr. President, Your Honors, is that whether the allegation of ill-gotten by the respondent is alleged in the complaint. And Section 2.4 of the impeachment complaint states that: Respondent is likewise suspected and accused of having accumulated ill-gotten wealth, acquiring assets of high values, and keeping bank accounts with huge deposits. And we enumerated an example. Among others, the 300 square meter apartment and a Posh, Mega World Property Development at the Fort in Taguig. What is the test, Your Honors, whether the allegation is sufficient in the complaint? The test is simply, as stated in a particular case in 1960, Abe vs. Foster Wheeler Corp. The allegation is sufficient if it contains sufficient notice of the cause of action even if the allegations may be vague or indefinite. In other words, the allegation in the complaint is sufficient if it informs the respondent of the accusation against him. Sa madaling salita po, kung naiintindihan ng respondent na inaakusahan siya ng, for example, ang accusation dito na nagnakaw siya at mayroong ill-gotten wealth, kung naiintindihan niya iyon, then it would be sufficient. Ngayon, kung kahit po iyong ordinaryong tao lang, pag nababasa iyong complaint namin, let us say iyong 2.4, nakalagay dito iyong accumulated ill-gotten wealth na allegation. And naiintindihan ho iyon ng ordinaryong tao na mayroong accusation ng ill-gotten wealth. Ngayon po, noong sumagot si respondent Chief Justice sa kanyang Answer, hindi naman ho ini-strike out ito as vague. Hindi po. In fact, ang ginawa po nila and I will read page 31, paragraph 11. Ito po iyong answer ni Chief Justice Corona. I will read it, “At any rate, the allegations are flatly denied. The truth of the matter is that, Chief Justice Corona, acquired his assets from legitimate sources of income, mostly from his professional foils.” Ang ibig pong sabihin, naiintindihan ni Chief Jjustice na kami sa Kongreso, 188 kami, pumirma kami ng impeachment complaint, at sinasabi naming, inaakusahan ka namin Chief Justice ng ill-gotten wealth. And using the sufficiency test. It suffices , Your Honors. Further, I just want to point out that the counsel for the defense has been arguing even when we argue this last week about the rules on pleadings under the rules of court. But under the Senate rules of impeachment trials which is Resolution No. 39, Section 6, the rules of court only applies suppletorily when applicable only on matters of evidence and not on pleadings. In fact, in a long line of cases ruled by the Supreme Court, it is stated that pleadings should be liberally construed and this is important, that we construed liberally para po mabigyan ng flexibility iyong complainants para i-prove iyong kanilang kaso. I also like to point out, Your Honors, that the caption even if, for example, in our complaint which is the Article II it speaks of SALN. But it is elementary and basic rule, Your Honors, that the caption is not controlling but the allegations in the complaint and once we alleged it which we expressly alleged in the complaint, then the allegation is sufficient.

THE PRESIDING OFFICER. Counsel, excuse me for interrupting you.

REP. TUPAS. Yes, yes, Your Honor.

THE PRESIDING OFFICER. But you made an enumeration of the articles under which you are impeaching the respondent. What is the utility of that listing if those are not allegation of ultimate facts?

REP. TUPAS. We alleged Article II as nondisclosure of SALN because the essence of SALN is for public officers to disclose so that we will know the assets, we will know the liabilities and we will know the net worth.

THE PRESIDING OFFICER. The question of the Presiding Officer is, I think I do not have my copy of the complaint before me but I am not sure of the case. But the prosecution in drafting this pleading enumerated the Articles of Impeachment under which they are impeaching the respondent—one, two, three, four, five, six, seven, eight—and then you discussed it in the body of your pleading. Now, the question is, what is the purpose of enumerating those eight Articles of Impeachment if those are not allegations of ultimate facts under which the prosecution seeks to impeach the respondent?

REP. TUPAS. When we drafted the complaint, Mr. President, it is just a designation for convenience on the part of the Members of the House of Representatives that we put in the caption. But it does not necessarily mean that we have no allegation of ill-gotten wealth because we specifically stated in at least two paragraphs in the complaint under Article II the allegation.

THE PRESIDING OFFICER. Just a minute, counsel. I am talking of the grounds for impeachment. What is the meaning of grounds for impeachment? And then it says here, respondent betrayed public trust, committed culpable violation of the Constitution and graft and corruption in the following manner—one, two, three, four, five, six, seven, eight. What is the purpose of this statement of grounds if these are not ultimate facts?

REP. TUPAS. These are ultimate facts, Your Honors, together with the allegations therein. Like Article II, there is a betrayal of public trust when he failed to disclose to the public his statement of assets, liabilities and net worth. And then under that Article II, we specifically alleged at least two paragraphs under that article that respondent amassed…

At this point, the Senate President reviewed the charges in Article II:

THE PRESIDING OFFICER. Just a minute. Pardon me for interrupting you so that the public will know.

Ang sinabi sa Article II, “Respondent committed,” committed means an act, “committed culpable violation of the Constitution and/or betrayal of public trust when he failed to dispose to the public his statement of assets, liabilities and net worth as required under Section 17, Article 11 of the 1987 Constitution.” Very specific. That is the way normally pleadings are written. So, that’s why I’m trying to clarify this because—so that we will understand it as the judging court.

CONG. TUPAS. Kaya nga ho, Mr. President, nung sinulat namin ito, when we drafted this, there are allegations of ultimate facts. But in Article II, it should be taken together with the allegations in the paragraphs contained in Article II. At kasama na nga po doon iyong Ill-gotten wealth, which we expressly alleged doon sa Article II.

THE PRESIDING OFFICER. Precisely. The problem is that this was expanded in the discussion. So, we are at a quandary how to—In fact, we are at a quandary as to how to treat this article.

So, that’s why I want you to explain it so that the public and the respondent will understand, because he is entitled to be informed of the charges against him

CONG. TUPAS. Pero I think, Mr. President, when the respondent answered, he was able to understand that we are accusing respondent of a massive ill-gotten wealth.

Under Article II, to us, Mr. President, the allegations of non-disclosure, together with the allegation of ill-gotten wealth should be taken together. And it forms part of one article which is now Article II.

THE PRESIDING OFFICER. Are your through? Is counsel through?

CONG. TUPAS. And in the answer, the respondent did not even move to strike out. It means, naintindihan nga ni Chief Justice yung aming accusation.

And with that, we submit, Your Honors, that we have sufficiently alleged the allegation of ill-gotten wealth by respondent under Article II in the impeachment complaint. We submit.

Then more prosecution-defense ping-pong:

THE PRESIDING OFFICER. The defense counsel may …

JUSTICE CUEVAS. May I go on my rebuttal, if Your Honor, please.

THE PRESIDING OFFICER. Rebuttal if you wish.

JUSTICE CUEVAS. Thank you, Your Honor.

Now, I hate to say that when the honourable Congressman Chief Prosecutor in this case mentioned that we never challenged, Your Honor, the validity of the impeachment complaint on the ground that it does not allege sufficient facts is totally unsupported by our answer, Your Honor.

May I be allowed to continue with our articulation, Your Honor. Paragraph 10, in paragraphs 2.3 and 2.4, complainant suspect and accused Corona of betrayal of public trust, because he allegedly accumulated ill-gotten wealth, acquired high-value assets and kept bank accounts with huge deposit not declared in his SALN.

So, there is no acquisition, Your Honor, of any illegally acquired wealth. The only acquisition he failed to disclose this in his SALN.

Continuing, further, Your Honor, in our answer, we stated definitely, the allegations are conjectural, very clearly and speculative. They do not amount to a concrete statement of fact that may require a denial. Sinabi po naming hindi na dapat patulan iyan, e ayaw naming maging bastos po naman e kaya medyo simple po ang sabi namin. The allegations are conjectural and speculative. They do not amount to a concrete statement of fact that may require a denial. Accusations in general terms such as those have no place in pleadings, Your Honor, as they bring only hearsay and rumor into the body of the evidence involved. At any rate, the allegations are flatly denied, the truth of the matter is that—then we were explaining, Your Honor.

Now, are we precluded from questioning the validity and the correctness of the impeachment complaint? The answer is no. We took an issue with the prosecution in this particular matter, Your Honor.

Secondly, they say, naintindihan naman iyan ni Justice Corona e. E maski ba ano ang ilagay ninyo, e di maiintindihan namin. Hindi iyon ang pag-uusap. Hindi ang pag-uusap ay kung naintindihan, ang tanong ay sinunod ba ninyo ang requirement ng pleadings. Kung hindi ninyo sinunod, kahit naintindihan, nilalabag ninyo ang karapatan ni Justice Corona sa tinatawag na due process.

It is not the answer. It is not the rejoinder that determines the existence of an impeachable offense, Your Honor. ‘

Now, secondly, Your Honor, if we examine the jurisprudence on the point, it is not a question of insufficiency of allegation. We do not agree. We take issue with them that it is only a case of insufficient allegation because the doctrine point in the case of Marcelo vs. Sandiganbayan, our honorable Supreme Court stated that every pleading should contain in a methodical and logical form, a plain, concise and direct statement on the ultimate fact on which the party pleading relies for his claim of defense.

Sinabi ninyo, ninakaw, e paano po ninakaw? Hindi ba iyon ay conclusion of fact?

That is not a statement of fact. Sinabi mo, magnanakaw si Chief Justice Corona. Is that a statement of fact? That is a conclusion of fact. But what is the basis? That is precisely what was submitted in this particular impeachment complaint, Your Honor.

Since the situation is, has no, there is no correct allegation. Now, going further, the honorable Supreme Court, this is jurisprudence, this is not Justice Cuevas speaking, Your Honor, this is the Supreme Court speaking.

In view of the absence of specific averments in the Congress complaint, the same is the fact defective for it presents no basis upon which the court should act or for the defendant to meet with an intelligent answer.

The complaint, to stress, did not present any documents claimed to be the source of the information. We are totally bankrupt of anything, Your Honor. It is a brazen, general allegation, subjecting the respondent to the whims and caprices of the complainant, in this case.

I hate to say this, Your Honor, I am only emphasizing a point, and I owe the prosecution an apology if I went this far, Your Honor, but merely to emphasize and clarify the point I have raised before this honorable tribunal.

Thank you, Your Honor.

REP. TUPAS. Just a short rejoinder, Mr. President.

THE PRESIDING OFFICER. Proceed.

REP. TUPAS. The counsel for the defense has been arguing and using the Rules on Pleadings under the rules of court again. We submit, Your Honors, that the Rules of Court, as far as pleadings are concerned, is not applicable in this impeachment tribunal. It is very, very clear, and I would like to stress and point it out, that under Resolution No. 39, which is the Impeachment Rules on Trials by the Senate, in Section 6 of that provides that the Rules of Court suppletory applies whenever applicable, but only on matters of evidence and at pleadings. In fact, what should be applied here or jurisprudence, Your Honors, and it is very clear that pleadings must be liberally construed so that the litigants can have ample opportunity to prove their claims, as was held in the Cometa vs. C.A, 1999 case, and a long line of cases decided by the Supreme Court.

Your Honors, the defense filed a motion to dismiss at the beginning of this trial, with respect to verification, they never filed—no filing of any motion to dismiss, with respect to the allegation of ill-gotten wealth, and we consider that as waiver. Waiver in the sense that the respondent understood what is ill-gotten wealth. If an ordinary layman can understand what is accusation of ill-gotten wealth, with no reason if you are the Chief Justice of the Supreme Court.

So, we submit, Mr. President and honorable members of the Senate.

THE PRESIDING OFFICER. Thank you.

JUSTICE CUEVAS. Just one minute, Your Honor, sur-rebuttal to clarify points raised,.

THE PRESIDING OFFICER. You have one minute.

JUSTICE CUEVAS. One minute only, Your Honor.

THE PRESIDING OFFICER. One minute, and this will be the last.

JUSTICE CUEVAS. You can cut me anytime, Your Honor.

THE PRESIDING OFFICER. Yes.

JUSTICE CUEVAS. Now, he mentioned a jurisprudence to the effect that allegedly, the court should be liberal in interpreting pleadings, Your Honor. That is correct, if there is merely vagueness. Kung hindi po maliwanag, kung hindi kaduda-duda po. Pero ang pangyayari rito hindi lang vagueness. Walang allegation with respect to illegally acquired wealth. Wala. Kaya ang sabi ng husgado, kung walang ganyan, walang impeachment complaint, and therefore, the entire proceedings shall be declared a nullity. Thank you, Your Honor.

After this exchange, Senator Santiago once more went to the podium and made an interesting pitch for liberality as far as admitting evidence is concerned. This was an important statement by a Senator –who has had prior experience sitting in an impeachment court– because it shows how precedents are laid, and how they can be changed, as the institution and those who comprise it, learn from the past.

THE PRESIDING OFFICER. Thank you. Any comment? The Lady Senator from Iloilo.

SEN. SANTIAGO. Mr. President, may I beg please, that I should be called the Lady Senator because it sounds to me like the Baby Senator.

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. This is not being spang (?) on him overnight. So, if let us say, we give three days from now for preparation, there should be no more argument about whether we should admit evidence or not. In this kind of proceeding which is televised throughout our archipelago, the more evidence we admit, the more the people will believe that our decision has been fair. Kasi ang itatanong niya ay, ano ang itinatago ninyo? Bakit ang dami ninyong sinasabi tungkol sa mga teknikalidad na ito? We are not interested in these technicalities by the Supreme Court. Malay naming kung ano iyon, kung totoo iyon o kung tama ang Ingles mo. So, let us give then the defendant time, maybe three days, before we call the Commissioner of Internal Revenue. By all means let us call her, let us see what she has in her hands. Thank you.

This was followed by a rather pointless plea for liberality in the rules by Rep. Tupaz, and followed by this manifestation by Senator Allan Peter Cayetano, essentially a continuation :

THE PRESIDING OFFICER. The Gentleman from Taguig.

SEN. CAYETANO (A.). Magandang hapon, Mr. Presiding Officer.

Mr. Presiding Officer, alam po natin, hindi lang po sa ating bansa tinanong ang mga pinag-uusapan natin ngayon. Well-taken po iyong sinasabi ng prosecution. Naiintindihan ko po at trabaho noong depensa iyong mga karapatan, basic human rights, basic constitutional rights, due process ng ating Kagalang-galang na Chief Justice.

Extraordinary po kasi itong impeachment e. So, even in modern countries that have a longer history of constitutional law like the United States of America, at ngayon po, sa Latin America, ilang beses ng ginagamit din ang impeachment, and it is replacing the usual coup d‘etat as a form of constitutional check and balance.

Kahit sa Amerika po, iyong mga tinatanong natin ay itinanong din nila. If I may quote from a law professor, Michael Gearhart, who was also quoting from one of the authorities on impeachment na si Charles Black. Sabi niya sa Amerika, noong impeachment ni President Clinton, na nire-refer naman niya iyong libro ni Mr. Charles Black, na si Charles Black naman ay nag-aral sa impeachment ni President Nixon, “the four most controversial procedural questions raised in impeachment proceedings have been: number one, whether the impeachment trial is more like a criminal or a civil proceeding for the purposes of determining the appropriate burden of proof.

Number two, whether any presidential privilege applies to the impeachment proceedings.

Number three, what rules of evidence, if any, should be applied in impeachment hearings, particularly in the Senate impeachment trials.

And four, the propriety of Senate’s using as special trial committee to take testimony and receive evidence.”

Kanina po, napag-usapan na po ni Senator Miriam Defensor-Santiago iyong whether this is a criminal or civil proceeding. Noong unang araw po, diniscuss din poi to n gating Presiding Officer.

Ngayon po, ang tinatanong, whether any—what rules of evidence, if any, should be applied in impeachment hearings. Ang sabi po ng professor of law na ito, “it is unnecessary to make any particular rules of evidence, applicable to impeachment proceedings. Both state and federal courts require a special rule of evidence to make trials more efficient and fair, or to keep certain evidence from the jury, whose members might not understand or appreciate its reliability, credibility, or potentially prejudicial effect. That concerns leading to the use of special rules of evidence in state and federal courts do not however apply to impeachment trials. An impeachment trial is not the usual kind of trial, nor does it involve a typical jury, rather, impeachments are extraordinary hearings, administered by sophisticated and politically savvy body, the Congress of the United States.”

In other words, Mr. President, to summarize, mayroon po tayong special rules of evidence sa mga korte, civil, administrative, criminal rules, sapagkat, sa Amerika, iyong jury, hindi sila trained doon sa mga questions, kung leading, misleading, kung hypothetical siya, so, baka mangyari, hind maging fair o reliable iyong trial dahil baka mag-admit sila ng ebidensya na hindi reliable, hindi credible or baka prejudicial.

In fact, ang jury, hindi dapat nanonood ng telebisyon, pero–so, in other words, baka mabola noong mga abogado ang mga jury. Pero po sa Kongreso, sa Senado na nagta-try ng impeachment trials at sa ibang bansa, ang Judiciary, it is not applicable because hindi dapat nabobola ang mga Senador. Dapat sila ay politically savvy and highly sophisticated to appreciate the evidence.

Today, the prosecution submitted its memorandum on Article II, after the defense had submitted theirs on the same subject. You can reed the Memorandum of the Defense (Motion to Quash) and the Memorandum of the Prosecution. The first order of business of the Senate today will be to dispose of the question of whether to admit all of Article II, or restrict it to the title, as proposed by the defense.

At the start of today’s proceedings, the Senate Preaident announced that the senators met in caucus, and decided to admit 2.2 & 2.3 but not to admit evidence on 2.4 –but to allow (as Drilon pointed out) evidence in connection to “conclusions of law,” specifically concerning the anti-graft law. What does this ruling mean? The prosecution cannot make allegations of ill-gotten wealth or introduce evidence to that specific purpose; but nothing prevents the senators from making that conclusion based on evidence presented for this Article of Impeachment.

But first, let us pause for a Miriam Moment:

So, after much wrangling, the BIR Commissioner testified to records recording the following

RENATO CORONA

CRISTINA CORONA

The problem with this information is that this would be the sole basis for the Corona couple to buy their properties. But it would be insufficient to do so. But, Aha! the Defense would say, the Coronas had an 11 million peso loan from the wife’s family corporation –but the family corporation has been nonexistent since 2003… So, the plot thickens.

(update, Thursday)

In Corona assets, taxes don’t match, the Inquirer lists the properties mentioned in yesterday’s hearing:

Prosecutors also zeroed in on a property in La Vista Subdivision, Quezon City, which Corona and his wife Cristina purchased nearly nine years ago for P11 million. Henares said that Cristina Corona had no income prior to the purchase made on Sept. 2, 2003.

Sensing blood, Lim walked toward the center of the hall and tried to go for the kill.

“Given this situation, Madam witness, what is the position of the BIR regarding this transaction?” he asked, only to be rebuffed by Enrile, who said he was eliciting an “opinion.”

Enrile later ruled to disallow the question, after Henares admitted that the bureau was still investigating the La Vista purchase.

Henares also produced certificates authorizing registration (CARs) purporting to show properties of the Corona couple in Metro Manila: an October 2004 CAR covered a P3.5-million condominium unit in The Columns CA on Ayala Avenue in Makati City bought by Cristina; a November 2005 CAR of a P9.1-million property in Global City, Fort Bonifacio, Taguig City bought by Cristina; a December 2009 CAR of a P12.5-million unit in the Bellagio I, Ft. Bonifacio, owned by the Corona couple; another December 2009 CAR of three properties worth P14.5 million; a December 2003 CAR of a P2.5-million unit in the Burgundy Plaza in Quezon City; an October 2010 CAR of an P18-million 1,200 sq-m land in Pansol, Diliman, sold by Cristina to daughter Ma. Carla C. Castillo; a March 2010 CAR of an P8-million 460-sq-m land in Pansol, Diliman, sold by the Corona couple to one Amelia Rivera; and a December 2011 CAR of the Corona couple’s P700,000 worth of club shares in The Palms Country Club Inc. in Filinvest, Alabang.