By Representative Kaka J. Bag-ao, AKBAYAN Party
Defense’s delaying tactics apparent in the first week of the Senate Trial
The information materials on the impeachment process and on the impeachment case against Chief Justice Renato Corona seek to educate the people on the legal processes in and to give updates regarding the trial at the Senate. The ultimate objective of this forum is to assist the people as they participate in this process of making the Supreme Court and its Members accountable to the people, regardless of the outcome of the trial. A recap of the important matters that occurred during the first week of the Senate trial is made below.
Day 1 (16 January 2012):
Exclusive power of the House of Representatives to “initiate” the impeachment case
As expected, the first legal question that the defense team raised at the Senate was on the issue of the verification of the impeachment complaint filed by 188 members of the House of Representatives. Although no motion to dismiss the complaint is allowed at the Senate trial, the defense tried to maneuver around the rule by filing a “motion for a preliminary hearing” (instead of a motion to dismiss) and prayed for the immediate dismissal of the complaint. The defense’s strategy was apparent— to seek an immediate dismissal of the complaint even before the impeachment trial at the Senate has began.
Unfortunately, however, the subject matter of initiation of the impeachment process, including the filing of the complaint, falls under the absolute exclusive power of the House of Representatives. Under the circumstances of this case, the House of Representatives had already passed upon the sufficiency of the complaint in form and substance, and this is deemed to include the aspects of proper verification, favourable resolution and affirmation of at least one-third of all members of the house. The exercise of this power cannot be subject to the scrutiny of the Senate as an impeachment body because the Senate’s power starts with that of “trying and deciding” the impeachment case as already filed before it. And, thus, Senate President Juan Enrile, acting as the Presiding Officer of the impeachment trial, immediately denied the defense’s motion to dismiss (couched as a “motion for preliminary conference”) the impeachment complaint against Chief Justice Corona.
Private Counsels may appear for the prosecution
Early on, the Presiding Officer also settled that the private prosecutors are allowed to appear at the trial provided that “they act under the control and supervision of the panel of prosecutors of the House of Representatives”. However, the presiding officer disallowed the private prosecutors to argue on questions of law. This means that only members of the panel of public prosecutors, the members of the House, may argue during the proceedings. It seems like this ruling is quite contrary to the provision of Article XIII of Senate Resolution 39 which expressly allows private counsels for both the defense and prosecution to “appear and be heard upon an impeachment”.
Corona pleaded thru private counsels
Contrary to Corona’s previous statements that he will answer the impeachment complaint squarely and personally appear at the trial to answer the allegations lodged against him, Corona –despite being present at the trial- passed on to his private counsels the actual entering of a plea of “not guilty” in his behalf. Admittedly, though, the rules allow his representatives to act in his behalf.
Day 2 (17 January 2012):
Improper application of the “Doctrine of Privileged Communication”
The Senate, acting as an impeachment Court, voted to deny the prosecution’s motion to issue subpoena ad testificandumto the members of the family of Chief Justice Renato Corona, particularly, his spouse Cristina Corona, his children Carla Corona-Castillo, Francis Corona and Czarina Corona, and his son-in-law Constantino Castillo.
There is no doubt that Chief Justice Corona has the option not to appear before the impeachment court in accordance with his Constitutional right against self-incrimination. In ordinary cases, direct family members also have the option not to testify against one another because their communications are considered confidential. Be that as it may, the prohibition on privileged communications cannot be invoked instantly and in a blanket manner as it may only be invoked when the question being propounded to a witness by the opposing counsel are already incriminating against himself or a member of his/her family. Members of the Congress have clarified this several times in their conduct of investigations in aid of legislation in the past. This means that persons to be summoned by the impeachment court, in this case the members of the family of Chief Justice Corona, cannot refuse the subpoena Viewed in that light, the denial of the subpoena requested by the prosecution can therefore be considered to be premature. Furthermore, it was improper for the Court to also afford the shield of “privileged communication” to the son-in-law of Chief Justice Corona. The law on parental and filial privilege extends only to “children or other direct descendants.” Senator Alan Peter Cayetano was correct in stating that the rule applies only to ascendants or descendants with a common ancestry, not to in-laws.
Impeachment does not take the nature of a criminal proceeding
Although the Presiding Officer agreed that the nature of impeachment proceeding is sui generis (a class of its own)—meaning, it is neither purely political nor criminal in character—he indicated in open court that “it is more akin to a criminal proceeding”.
With due respect to the Presiding Officer, it is opined that the impeachment proceeding is not “more akin to a criminal proceeding”. On the contrary, the proceedings are more political in character. First, the Constitution allocates the power of impeachment to Congress—the right to accuse is exclusively lodged with the House of Representatives, while the sole power to try and decide all cases of impeachment belongs to the Senate—both of which are political branches of the government. Second, the impeachable offenses are political and not necessarily criminal offenses. Hence, among the grounds of impeachment are “other high crimes” or “betrayal of public trust”. Third, the consequences of impeachment are political punishments and not necessarily penal in character. Fourth, the courts have no power to review the decisions of the impeachment body because they are considered as political in nature.
None other than the former Chief Justice Reynato Puno clarified the nature of impeachment proceedings as neither political nor criminal, but sui generis. Not being a purely criminal proceeding, it does not require “proof beyond reasonable doubt” to convict a person impeached. Thus, the senators may use any quantum of evidence except for “proof beyond reasonable doubt” as basis for their vote in any of the articles of impeachment such as “clear and convincing evidence”; “preponderance of evidence”; or “substantial evidence”.
Prosecution has the right to determine the order of presentation of evidence
It is common knowledge in trial practice that the prosecution is given the flexibility in the manner of presenting the evidence, in the same manner that the defense is accorded the same leeway in presenting their defense. It is thus surprising that Corona’s defense counsels were over eager and wanted to dictate the order of presentation of the articles of impeachment. That move was clearly dilatory.
Day 3 (18 January 2012):
Impeachment Court as a Constitutional Body
The Senate properly issued the subpoena to Supreme Court Clerk of Court, Atty. Enriqueta Esguerra-Vidal, as well as the production of the statement of assets, liabilities and net worth (SALN) of Chief Justice Corona.
The Senate sitting as an impeachment court is a Constitutional body created under Article XI for purposes of impeaching a public officer. This does not pertain to the usual legislative functions of the Senate. To effectively comply with this mandate, the Senate has the power to issue subpoena to a person to testify personally (subpoena ad testificandum) or to produce documents (subpoena duces tecum). This would not result in a Constitutional crisis because this is part of the processes the Senate, as an impeachment body, is allowed to issue under the principle of checks and balances.
Senator Judges are allowed to clarify matters
Under the Senate rules, a Senator Judge can put a question to a witness, prosecutor, counsel, and even to the person impeached. Note that each Senator is treated as a Judge in the impeachment trial. He/she has the power to ascertain each fact of the case. The accusations of bias by the defense panel against some of the Senator-Judges who asked questions to clarify some matters are utterly unfounded.
Day 4 (19 January 2012):
Truthful and genuine disclosure
The prosecution started with Article II of the complaint which deals with the non-disclosure of the SALN of Corona. By public disclosure of SALN, the prosecution means the “truthful and genuine” SALN of Corona, not one with hidden or undervalued statements, otherwise, there would be no public disclosure at all as required under the Constitution. Consequently, this article included the investigation of the allegations of ill-gotten wealth and accumulation of other high assets and huge bank accounts.
Again, the defense has thrown a barrage of objections against the presentation of the land titles allegedly owned by Corona and his family. They are expected to continue with their legal maneuverings in the coming days and prevent the presentation of other documents by the prosecution, thereby further delaying the proceedings of the case.
Admittedly, both prosecution and defense panels are still learning the ropes of the conduct of an impeachment proceeding. And, this is quite understandable because the use of the impeachment process is rare as it is important. It is beneficial though that the Senate sitting as an impeachment body is prepared and able to give guidance to the parties, with Senate President Enrile at the helm.
 Resolution adopting the Rules of Procedure on Impeachment Trials.
 Section 25, Rule 130, Revised Rules of Court.
 Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003.