published on December 13, 2011.
We just reformat with some headings to make it more "palatable" and to summarize the intended points.
- The House move to transmit the impeachment case to the Senate was proper, despite the speed of how it was done. We have an impeachment case!
Each House is the master of its own rules and procedures. The House or Representatives is not under the Senate. The House has to devise its own rules. This is consonant with the rulings of the Supreme Court. As long as those pre-arranged rules of procedures are followed — just because some people think it was done in too much of a hurry — it will not necessarily affect the validity of their proceedings. Apparently, these rules were followed, and so the transmittal to the Senate is proper.
- The Senate is prepared for the impeachment trial, re the Ombodsman case
In the case of the Senate, I believe we are already prepared for the impeachment trial because we have hit the books already, a few months ago when there was a proposal to conduct an impeachment trial against former Ombudsman Merceditas Gutierrez. So we already had our caucuses and closed-door sessions to talk about the procedures to be followed. Once these procedures are agreed upon, they will bind all the members of the Senate. I have only two concerns.
- Difficult to separate politics from the impeachment trial
The first concern is this: I don’t really know how we can keep a proceeding in both natures: the nature of a political proceeding, and the nature of a criminal proceeding. It is very difficult to decide on legal bases a political question. Inevitably, every senator will have his own political biases, and it will take a very high degree of strength of character to rise above the personal political biases and adhere instead to the rules approximating the Rules of Court, which we already have. So that is for every senator to decide on his own conscience.
- On the lack of trial experience for senators who are not lawyers My second concern is this: many of the members of the Senate are not lawyers, or if they are lawyers they have not had any trial experience and had no professional experience with the Rules of Court. So basically, many of them will be depending on their legal consultants.
- Texting or consulting constituents during the impeachment trial look improper, it should be banned.
My fear is, if these senators do not study in depth the legal problems involved, or just find it too incomprehensible, it will be their legal assistants who will, in effect, decide the case. There is nothing we can do about it, but I hope that, at least during the caucuses, we will adopt a rule that will prohibit the senators from receiving text messages or other types of messages during the trial. You don’t want to see a trial judge in any regular trial court in the country consulting his text messenger or any device to see what is the advice of his consultant. I noticed in the last impeachment proceedings that this was done by certain senators. I thought that it was very unseemly that they should receive guidelines from their consultants even on questions to propose to the witnesses or the litigants involved. So, I hope that does not happen.
Those are my two concerns: 1) how to keep objective and even-handed in a considerably not strictly judicial and not strictly political but quasi-judicial and quasi-political at the same time; and 2) the non-lawyers or non-practicing lawyers might repose too much confidence in their own legal consultants. Otherwise, I think the Senate is already prepared. Chief Justice Corona will start just like any litigant with a presumption of innocence and — as in any criminal case — the burden of proof is in the prosecution, meaning to say the House of Representatives acting as the prosecution or the fiscal. One other concern of mine in the impeachment trial, and possibly the most important of my concerns is this: we know that there are different levels of evidence or proof required to certain cases. In a civil case, for example, the level of proof is substantial evidence. In a criminal case, the level of proof required is proof beyond reasonable doubt. That is why it is very difficult to convict in a criminal case. Now what will be the level of proof in an impeachment trial? Will it be substantial evidence? Proof beyond reasonable doubt? Clear and convincing evidence? Satisfactory evidence? There are so many kinds of evidence involved. In other countries, sometimes the senators or whoever performs the role of judges cannot agree with just one level of proof and therefore would just throw it back to the senators or judges to decide on its own way what level of proof will be. One senator might apply the level of proof of substantial evidence and therefore convict or redeem on small evidence or insignificant amount of evidence. One senator may apply another standard — the standard of proof beyond reasonable doubt — and therefore acquit because it is very hard to prove. Remember that in a criminal case, even one or just one-half of a reasonable doubt is already sufficient to acquit them. So the chief justice standing trial will be limited to all the rights that are extended to other citizens in his place. What is your advice to the non-lawyers in the Senate? Oo, sana mag-aral naman. Sana naman intindihin kung ano ang proseso ng impeachment. Hindi iyong pakursunada: kursunada ko ito kaya i-acquit ko o I will vote the person guilty. Merong mga nuances diyan.
- There are many technicalities involved!, The Rules of Court should be followed!
There are so many technicalities involved in an impeachment case. For example in the opening of the second envelope, I was demonized because I voted against it pursuant to the Rules of Court. Noong buksan nila, wala naman palang laman na incriminating against the accused. So you see the strength of public opinion might sometimes be misled simply because of ignorance. I hope that this will not happen in this case.