Insinuation

FIRST PERSON

Insinuation

By Alex Magno

Juan Ponce Enrile, bless him, drew a clear demarcating line between a respectable impeachment court and a mere kangaroo court.

That is an important line to draw. He drew it to save the Senate from ignominy in the face of clear indications the partisan passions of the moment could drag this vital institution, as they did the House of Representatives, into the morass of philistinism.

If the Senate, as an institution, survives 88 years hence, future scholars of our politics will look back to this episode and express relief that, when political savagery threatened to engulf the nation, this chamber was led by a learned and unyielding statesman. In the constitutional discourse of our nation, the existence of the Senate has been justified by the need for a chamber with a longer and grander view of things.

Indeed, the historical record of our institutions demonstrates the House so easily yields to pressure from the executive branch while the Senate more often stands as the last bulwark of the independent mind. Members of the House have most often performed as functionaries of executive power while members of the Senate have stood as guardians of the tenuous institutional separation of power.

To be sure, senators are not created equal. Some understand the greater historical value of maintaining the integrity of the institutional arrangement; others can only manage to grasp the fleeting contingencies of partisan alignment and political patronage.

This is why those who value conservation of the rule of law in our country are grateful that at this time we have Enrile at the helm. Imagine if any of those who lusted for the presidency of the Senate wielded the gavel at this most precarious time for the institution. The nation would have been in such a mess by now.

Last Tuesday probably marks the turning point in this trial. That day, Enrile ruled out a witness the prosecution wanted to bring to court to testify on a matter not alleged in the Articles of Impeachment.

Things have come to a head.

The prosecution filed faulty articles of impeachment before the Senate without evidence on hand. They then used the impeachment court as the instrument for mining evidence against the respondent. The presiding judge was lured to issue subpoenas on bank documents because he presumed due diligence on the part of the prosecution panel. It now turns out the supporting documents submitted by the prosecution in its subpoena request is of highly questionable provenance and most likely illegal.

While the prosecution freely indulged in trial by publicity outside the chamber, in the trial proceedings they conducted trial by insinuation.

On Article 2, for instance, the allegation is that the Chief Justice did not make public his SALN. The respondent was obeying a two decade-old Court ruling keeping that document confidential. The prosecution used the bank documents acquired by Senate subpoena to insinuate ill-gotten wealth.

On ill-fated Article 3, the allegation is that the Chief Justice lacks probity and integrity. The allegations in this article and in all the remaining ones require the Senate to second-guess rulings by the Supreme Court. Whatever the specific issues are, the net effect of this is to weaken judicial independence resting on the word of the highest tribunal being final on all legal matters.

It is at this point that the prosecution tried to bring in testimony insinuating bribery, a charge absent in the articles of impeachment. The prosecution is trying to establish what they have not alleged.

The issue here is not mere “legal technicality” — a phrase that so often flutters from the mouths of prosecutors. The issue here revolves around both procedural and substantial due process. A respondent to a case must be informed of the charges against him. In the course of trial, no new charges may be added to the ones initially laid down. The prosecution is trying to circumvent that by freely insinuating extraneous misdemeanor.

This is not prosecution. This is persecution.

Add to the faulty trial techniques used by the prosecution panel the President of the Republic claiming it is his “right” to prejudge a case under hearing, draw conclusions from incomplete facts of the case as well as from “evidence” that have not yet been formally offered in court and then invite his partisans to get “involved” in the trial. Not surprisingly, administration flunkeys such as Akbayan and the Black-and-White Movements have taken out paid ads that can only amplify the original presidential sin: ignoring due process and indulging in trial by publicity.

Having missed the finer points of due process and proper official behavior, the President of the Republic might not have realized he severely insults the Senate sitting as an impeachment court. He severely transgresses the independence of the chamber. He demeans the work of the court.

If the President of the Republic missed those finer points, the President of the Senate clearly did not. However, since the latter is more polite than the former, he applies a more nuanced response. By checkmating the prosecution’s trial by insinuation, he (with apologies to Sun Tzu) slays the chicken to educate the tiger.

This spectacle has now assumed much larger significance for the nation. This is no longer only about the fate of Chief Justice Corona. It is about the efficacy of the rule of law and the capacity of our institutions to perform their respective roles when partisan whim runs amuck.

If the rights of the Chief Justice can so easily be violated by those entrusted with political power, if he can be so vehemently vilified by state-sponsored propaganda, how can ordinary citizens be secure in the framework of law?