De Lima and the Dilemma

Recent events have forced the prosecution to use their next trump card; the riskiest trump card yet. And it’s all thanks to a certain someone’s “testimony.”

The Senate witnessed last Thursday, February 23, 2012, the major screw-up of Secretary Leila de Lima as she grasped at straws trying to defend her view of Corona’s alleged bias in his judicial decisions favouring former President Gloria Macapagal Arroyo. The Senate eventually deemed her testimony as “hearsay,” since she was deriving her statements not from personal experience of knowledge, but from the dissenting opinion of one of the Justices of the Supreme Court, Maria Lourdes Sereno. Simply put, hearsay evidence can’t hold water if one’s aim is to impeach the respondent, Chief Justice Renato Corona.
Prosecutor Raul Daza tried to justify de Lima’s questionable testimony by raising the exceptions to the hearsay rule, only to be over-argued by Miriam Defensor Santiago.

“Why are we splitting hairs? It’s very, very clear. A witness can only testify to what he perceived himself,” she said angrily. “In effect, what we’ve been hearing is a series of opinions extrapolated or made to us by the witness.”

Santiago added: “She was not present when these so-called irregularities or discrepancies were taking place so how could she be a witness on all this instance?”

(Source: Link)

Unsurprisingly, President Noynoy (PNoy) Aquino, who claims to fully trust the impeachment process, simply cannot help but rush to his lackey’s aid, asserting that the secretary’s testimony is not hearsay.

President Benigno Aquino on Friday said the impeachment court should consider as valid evidence de Lima’s narration of the contents of Sereno’s dissenting opinion.

Sereno’s opinion supposedly showed alleged irregularities in the circumstances surrounding the Supreme Court’s issuance of the Temporary Restraining Order (TRO) on the watch list order against former President Arroyo.

Sereno said the TRO on the DOJ’s travel ban on Arroyo should not have been deemed in full force and effect because several conditions had not been met.

Aquino said de Lima’s testimony is a “reasonable expectation” from a witness, considering that justices cannot be summoned to testify on what they knew, leaving the dissenting opinion as the only basis of what transpired in the high court’s deliberations.

He added that the impeachment process is “largely political,” and that the rules on evidence is suppletory to the hearing.

(Source: Link)

Unfortunately for the vindictive Aquino administration, it is the Senate who will decide, and have decided on the validity of de Lima’s testimony. Still, to recognize the sui generis nature of impeachment trials, the Senate President, Juan Ponce Enrile, ruled that de Lima’s testimony be added to the record for future use.

With de Lima’s hearsay testimony dimming the prospects of victory under Article 7, the prosecution has made a leap of faith and made a stunning decision; they will have Justice Sereno herself testify to the impeachment trial.

The prosecution has expressed its desire to have the SC justice testify to substantiate de Lima’s assertions regarding the respondent’s alleged offenses. Needless to say, de Lima’s blunder inadvertently put the prosecution in a dangerous position, as they are now forced to support her testimony by making its source, a person from a judicial body, appear in court.

The gravity of the prosecution’s request prompted the defense, led by veteran lawyer Serafin Cuevas, to discuss the implications and complexities surrounding this controversial event in Corona’s trial.

Being an SC Justice, Sereno’s personage is governed by the confidentiality in the deliberations of the Supreme Court, as well as the judicial privileges. The constitutional provisions state that the knowledge of Justices regarding the activities in the Court is to remain, well, confidential. This provision, coupled with the fact that the Supreme Court is a separate body of power (which means the Senate and the prosecution has to get the SC’s consent for Sereno to testify), presents a daunting stumbling block to the progress of the trial under Article 7.

In fact, even the Senate itself is cautious in pursuing such a herculean task.

The Senate impeachment court has to seriously weigh the pros and cons of inviting Supreme Court Justice Ma. Lourdes Sereno lest it be accused of engaging in a “fishing expedition,” Majority Leader Vicente Sotto III said Saturday.

“Is it a legal thing to do? Second, is it proper? If she volunteers, why do we need to send an invitation? What worries me is that we might be contributing to criticism that we are on a fishing expedition,” Sotto said in an interview.

Besides, the Senate also doesn’t want to end up “getting embarrassed if we decide to issue the invitation and the Supreme Court en banc rejects the invitation,” he added.

That’s why, the prosecution’s request to invite Sereno to appear at the trial for Article 7, and Senator Antonio Trillanes IV’s motion to send written “interrogatories” to the justice would be tackled in Monday’s Senate caucus, Sotto said.

(Source: Link)

Either way, any decision that will come up will give the prosecution a hard time. If Sereno is allowed to testify without a hitch (which is quite unlikely), the prosecution will nevertheless observe strict limitations to what the witness can divulge to the trial, in accordance to the confidentiality in deliberations and judicial privileges. If only “interrogatories” can be sent to the controversial witness, the prosecution won’t be able to milk anything worth a strong case. Finally, if the Supreme Court rejects the invitation, then there isn’t much hope for Article 7.

Basically, the prosecution has hinged its fate under Article 7 on the hands of the Supreme Court. Kudos to Secretary de Lima!

However, the issue concerning the impeachment trial does not end in de Lima. The chain of misfortunes the prosecution currently faces concerns not only her ineptitude, but the very grounds upon which the prosecution tries to impeach the respondent to pave way for PNoy’s kingdom.

The seventh article in the impeachment asserts that the respondent betrayed public trust by being biased in granting a temporary restraining order on the travel ban imposed on former president Arroyo. It asserts that Corona, driven by his personal motives aided Arroyo in frustrating the ends of justice by conniving with her and her husband, rendering him impeachable under such grounds. However, here comes the problem.

The most noticeable problem in the allegations of the impeachment is that even if the respondent is the Chief Justice, he is only as influential as his colleagues in the Supreme Court in their rulings. His vote is as powerful as any other Justice’s vote. Taken strictly at face value, the fact that the Chief Justice voted in favor of the former President more often than the others cannot serve as a ground to impeach him. This is not conclusive proof of one’s bias. How could one objectively define Corona’s partiality relative to the other Justices, which, according to them, betrays public trust and is an impeachable offense?

Of course, to override this dilemma is to allege to the respondent’s under-the-table transactions with the concerned parties regarding this matter. Article 7 is rich with conspiracy theories regarding the respondent’s relationship with the former President, asserting that they are in cahoots, trying their best to have Arroyo escape the grasp of justice. Article 7 also asserted that Corona intended SC spokesperson Midas Marquez to spread public misinformation regarding the efficacy of the TRO, simply because he didn’t “correct” the spokesperson. Given the gravity of the accusations specified under Article 7, the obvious thing to consider next is proof. This is where the crux of the problem takes place.

The accusations imposed on the respondent solely concern the activities of the Supreme Court regarding the granting of the TRO. In fact, much of the article’s arguments are derived from the dissenter in the TRO issue, Justice Ma. Lourdes Sereno. However, such information is governed by the confidentiality of deliberations and judicial privileges. Needless to say, to substantiate the claims purported by Article 7, the prosecution will be at odds with the constitutional provisions in the Supreme Court. Help from private individuals is out of the question, since SC deliberations are supposed to be secret in the first place. Evidence from a private individual will instigate a small-lady-esque conundrum; either the evidence is fake, or that that individual, together with the prosecution, is in very serious trouble.

To sum it all up, the prosecution, in writing the seventh article of impeachment, sealed their fate of having to challenge the barriers of the Supreme Court just to make a case. In writing Article 7, they would have inevitably led the Senate to be at odds with the Supreme Court. Given the nature of the accusations of the article, it was only a matter of time. And by an amusingly cruel twist of fate, it just had to be Secretary de Lima to have things fall into place. The Aquino administration just had to stab itself just to fulfil the consequences of Article 7.

This is a clear example of how the prosecution gives itself a very hard time. Evidences backfiring at them, repeatedly getting scolded by the Senate like stubborn schoolboys, and now, bringing upon themselves some major trouble by writing Article 7, it seems the prosecution might just be highly incompetent, or highly masochistic. Or both.