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March 7, 2012

This is a sad but historic moment in the Indian democracy. We have assembled to decide the fate of a man who decided the fate of others. This political house is here to perform a judicial function. We have heard a detailed presentation in the defence of the judge sought to be impeached.

The power of removal/impeachment of a judge of the Supreme Court or the High Court is a power which is to be used in the rarest of the rare cases. We invoke this jurisdiction to remove a man and save the dignity of the office, which is paramount.

The invocation of the power is both punitive and deterrent. The removal of a Supreme Court judge under Article 124 (4), and a High Court judge under Article 217 (1) (B) after following the procedures prescribed in the Judges Inquiry Act, can only be for proven misbehaviour or incapacity.

In this case, the jurisdiction is being invoked on the ground of ‘proven misbehaviour’.

While participating in the debate on Article 124, in the Constituent Assembly, Gopalaswamy Aiyangar had expressed a hope that the procedures would never be used during his life time.

His prophecy proved to be true. But now times are changing. We chose the best system for India, a system of Parliamentary democracy with separation of powers and independence of judiciary.

Judiciary performs a divine function where ordinary humans decide the fate of others. When this divine function of deciding the fate of others is bestowed in a Judge, we expect him to perform it with the highest standards of scholarship and utmost impartiality.

He must be detached from all collateral persuasions. The premise of the utmost impartiality, free from aberrations under which the institution of judiciary was created, is no longer available. There are compromises, in terms of quality, in terms of independence and collateral influences.

Thus, there is a need to be vigilant about the judiciary.

Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations.

They must neither be summarily tried nor be thrown to the wolves. A judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth.

In this case, when the Judge under inquiry says that his offence must be proved ‘to the hilt’ or ‘proved beyond reasonable doubt’, he relies on technicalities rather than substance. A Judge is like Caesar’s wife. He must be beyond suspicion.

Caesar divorced his wife merely on the basis of suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be beyond suspicion. Is Justice Soumitra Sen guilty of ‘proven misconduct?

On 10.01.1983 a civil suit was filed by the Steel Authority of India seeking money decree against various defendants. The dispute was in relation to certain goods. On 30April 30, 1984, the Calcutta High Court appointed Shri Soumitra Sen, advocate, as a Receiver to take charge of goods, sell the goods and make an inventory of the goods.

He was directed to file half yearly returns with the court, in relation to handling of the goods. Nothing significant happened till January 20,1993, whereupon the Calcutta High Court directed the Receiver to sell the goods, open a separate bank account, and keep the proceeds free from lien or encumbrance.

The Receiver opened to bank accounts. He eventually sold the entire goods for a value of Rs. 33,22,800. Of this amount he deposited Rs 4,68,000 in the Allahabad Bank and the balance in the ANZ Grindlays Bank.

He did not even once file the return of accounts with the court for how much money he collected, and how much money he had spent. He was entitled to collect a five per cent fee on this amount, which he did.

Of the money deposited in the Allahabad Bank, he usurped them for an unlawful purpose. Instead of holding the money for the benefit of the SAIL, he has issued a number of cheques in favour of private individuals: Subroto Mukherjee, Biresh Prasad Choudhary, Somnath Ray, K L Yadav, and one Jayguru Enterprises.

He also withdrew money against several self-cheques. He further drew out payments against his VISA credit card and made payment to a bookselling company M/s S C Sarkar & Sons.

He has till date not explained why he usurped this money.

He was also appointed Special Officer for disbursement of workers dues in the case of one Calcutta Fans Ltd, which had gone into liquidation. He was given Rs 70 lakh for distribution amongst the workmen. Of this Rs 70 lakh, he withdrew a sum of Rs 25 lakh and deposited it with one company called Lynx India Ltd.

When he had to pay the money to the workmen, he was obviously short of payment. He, therefore, withdrew an amount of Rs 22 lakh from the Receivership account of SAIL, and deposited it in his Special Officer account in relation to Calcutta Fans case.

All this while, he did not render any account to the court. These monies continued to be misappropriated by him, and this misappropriation continued for a reasonable period of time.

On March 7, 2002, the Receiver Soumitra Sen was asked to submit the accounts by the Advocate of SAIL. He did not respond to the same. On February 27, 2003, the SAIL advocate moved to the Calcutta High Court for rendition of accounts.

On December 3,2003, Advocate/Receiver Soumitra Sen was elevated as Judge of Calcutta High Court. The single Judge of the High Court repeatedly issued notices to the Receiver to render accounts.

He never cared to reply to the notices. Finally, on April 10, 2006 the single Judge of Calcutta High Court passed serious strictures against him and directed him to pay a sum of Rs. 52, 46, 454/- to the SAIL.

This was in addition to Rs 5 lakh he had already paid. He started paying the amount from June 27,2006 onwards and for the first time, after paying Rs 40 lakh in installments , he moved an application on September 14, 2006 seeking extension of time to pay the balance.

He did not dispute the judgment of the single judge. After paying the balance amount, he moved the single judge for deletion of the remarks against him. The single judge declined his request.

Meanwhile, newspapers in Calcutta published several articles on how Justice Soumitra Sen had continued to keep the misappropriated amounts, even after his elevation as a Judge. The Chief Justice of Calcutta High Court wrote to the Chief Justice of India, that this prima facie amounted to misconduct and Justice Sen should be proceeded against.

On September 20, 2007 he was asked to explain his conduct by the Chief Justice of India. Anticipating an in-house inquiry against himself, he requested for time from the Chief Justice of India, and on the same day argued his case before the Division Bench of the High Court in a proceeding that is prima facie collusive.

All the advocates present in the court including the advocate for the SAIL, and the buyer of the goods agreed with Justice Soumitra Sen’s advocate that strictures passed against him should be removed. The division bench accordingly removed the comments against him.

The Chief Justice of India appointed an in-house inquiry committee of three Judges i.e. Justice A P Shah (then Chief Justice of Madras High Court), Justice A K Patnaik (Chief Justice of Madhya Pradesh High Court) and Justice R M Lodha (a Judge of the Rajasthan High Court) to examine the conduct of Justice Soumitra Sen.

He appeared before the Inquiry Committee and put up his defence. His defence before the single judge, or before the division bench and the in-house Inquiry Committee was that he had, in good faith, deposited the amounts collected by him in the SAIL case as Receiver with Lynx India Ltd and that money got lost because of the liquidation of that company.

Both the single judge and the in-house inquiry committee came to the finding that he had put up a false defence and that no amount of money was deposited with M/s Lynx India Ltd. He deliberately created a smokescreen, since it was the money in the Calcutta Fans case, which had actually been deposited in that company.

The in-house inquiry committee held him to be guilty. He declined the request of Chief Justice of India to resign. Fifty Eight Members of Parliament moved a motion for his removal. An inquiry committee was constituted by the Chairman, Rajya Sabha to examine the case of Justice Soumitra Sen.

He appeared before the committee but claimed a right to silence. He put up a defence of the monies received by him as a receiver being lost on account of liquidation of Lynx India Ltd. This committee also came to the conclusion that Justice Sen is guilty of ‘proven misconduct’.

Justice Sen is guilty of a continued ‘proven misbehavior’ from his days as a lawyer when he was appointed as a Receiver; and this continued well in to his tenure as a Judge of the Calcutta High Court. He never rendered the accounts as directed by the courts both as a lawyer and as Judge.

He created encumbrances, by withdrawing monies, which were in his custody as a Receiver of the court. He transferred these monies unauthorisedly to persons not authorised to receive them. He withdrew the monies himself. He transferred the money to another account, which he maintained as a special officer in Calcutta Fans case.

Even after his elevation as judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006.

He only returned the monies under the coercive order of the court and not otherwise.

During his tenure as judge, he put a false defence before the single judge, the Division Bench, the in-house inquiry committee and the impeachment inquiry that he had invested these monies in a company which went into liquidation.

The liquidated company had nothing to do with these monies. The Division Bench judgment is a judgment with consent of all parties. It does not lay down the law. It is a judgment in personam, which is binding only on the parties, and not a judgment in rem, which binds the rest of the world. It does not, in any way, restrain the jurisdiction of this House under Article 217 from examining a case of ‘proven misconduct’.

Justice Soumitra Sen’s conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence.

He has been held guilty, both by the in-house committee appointed by the Chief Justice of India, and also by the committee appointed by the Chairman, Rajya Sabha. He is conclusively guilty of an offence.

A case of ‘proven misconduct’ is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be Judged by a Judge, who himself is stigmatised. The defence of Justice Sen has thus to be rejected.

— Arun Jaitley, speech in the Parliament of India, in response to Justice Sen’s speech defending himself in his impeachment trial. August, 2011.

12:11pm | URL: http://tmblr.co/Z42vXyHbln_O

(Notes: 1)

Filed under: impeachment

March 7, 2012

Since an impeachment is not a criminal proceeding, the accused office-holder - as in the case of proceedings for abuse of fiduciary trust - has the burden of proving his or her innocence. The accusation of abuse of power only sets in motion a proceeding in which the office-holder must demonstrate that power was not abused.

It follows from this that the accused must bring forth all the evidence about the transactions under suspicion and show by a preponderance of the evidence that there was no abuse of power. Hiding evidence or shutting up witnesses - as was the case with Richard Nixon - is in itself grounds for removal from office. The one who holds the public trust must prove that he or she is squeaky clean.

Whether or not senior government officials deserve removal from office ought to be settled under the law through an impeachment process and not by violent partisan protest or military coup.

— Stephen B. Young, Impeachment: A necessary constitutional reform, Nation of Thailand, February 1, 2012

8:17am | URL: http://tmblr.co/Z42vXyHauZKq

(Notes: 2)

Filed under: Corona Impeachment impeachment

March 6, 2012

Theories of a Brown Monkey: On Corona's Crown and His Claim of Being Democracy Incarnate

brownmonkeytheory:

A friend of mine from law school feels alarmed that the articles of impeachment against Chief Justice Corona has passed the Lower House and effectively igniting the machinery of Impeachment next year. She feels that the dignity of the Judiciary is being assailed since apparently Corona ‘embodies…

9:40pm | URL: http://tmblr.co/Z42vXyHZJZ4-

(Notes: 12)

Filed under: Corona Impeachment impeachment

March 5, 2012

Looking for Mendiola

Very intriguing. A literary take on the impeachment trial and its leading lights.

9:40pm | URL: http://tmblr.co/Z42vXyHVxkQN

(Notes: 1)

Filed under: Corona Impeachment impeachment

March 5, 2012

"The face-off we now see re-calibrates our separation of powers and restores the executive’s proper place as the source of leadership. Since 1986, the fall of the dictatorship has fostered a knee-jerk bias against executive power and in favor of judicial checks and balances. But this has led to government by stalemate, the primacy of procedure over results, where due process is misunderstood as endless process.
This is the best time to correct that. Cory didn’t want to; it was too soon after Marcos. Fidel Ramos preferred to do it behind-the-scenes, efficiently but not institutionally. Erap took to rhetoric, called them “hoodlums in robes” but didn’t stay long enough to disrobe them. Gloria Arroyo alone had the gumption to flex executive muscle upfront; alas she possessed Machiavellian virtù but not true virtue. And comes now Noynoy, riding the crest of popularity for his anti-corruption campaign."

— http://opinion.inquirer.net/19229/‘save-the-constitution-from-the-court…’ (via thegreatest)

8:20pm | URL: http://tmblr.co/Z42vXyHVrznN

(Notes: 10)

Filed under: Corona Impeachment impeachment

March 2, 2012

"Not but that crimes of a strictly legal character fall within the scope of the power…; but that it has a more enlarged operation, and reaches what are aptly termed political offences, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged… by the habits and rules and principles of diplomacy, of departmental operations and arrangement, of parliamentary practice, of executive customs and negotiations, of foreign as well as domestic political movements; and, in short, by a great variety of circumstances, as well as those which aggravate as those which extenuate or justify the offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence"

— Associate Justice Joseph Story, on impeachment, 1833

3:19pm | URL: http://tmblr.co/Z42vXyHKZDkK

(Notes: 1)

Filed under: impeachment Corona Impeachment

March 2, 2012

There are at least two generalizations to be drawn from these American precedents. First, the articles of impeachment were generally not concerned with criminal offenses. Less than one-third of the eighty-three articles the House has adopted have explicitly charged the violation of a criminal statute or used the word “criminal” or “crime” to describe the conduct alleged, and ten of the articles that do were those involving the Tenure of Office Act in the impeachment of President Andrew Johnson.

Indeed, even those articles that seem to allege unlawful conduct, “do not seem to state criminal conduct,” with the exception of the criminal charges against Humphreys for unlawfully supporting the armed rebellion of the Confederacy. Thus, the contention that articles of impeachment must be drawn in terms of indictable offenses cannot be supported.

The focus of the impeachment articles has instead been upon the proper exercise of official power for legitimate purposes. Nine of the impeachment articles against President Johnson charged that he had acted “unmindful of the high duties of his office and of his oath of office,” including his duty to see that the laws were properly executed.

The second conclusion to be drawn from these precedents is “that the grounds [of impeachment] are derived from understanding the nature, functions and duties of the office.” Thus, the standard for impeachable offenses applicable to judges and other civil officers is partially distinguishable from the standard applicable to the President.

Clearly charges of constitutional violations and gross abuse of power for illegitimate purposes should be included as impeachable offenses regardless of the offender’s office. On the other hand, although the criminal laws and personal misconduct outside the purview of the office may constitute impeachable offenses against such civil officers as
federal judges, such offenses may not in many cases rise to the level of
impeachable offenses against the President.

— Edwin Brown Firmage, The Law of Presidential Impeachment

3:18pm | URL: http://tmblr.co/Z42vXyHKZ8OE

(Notes: 1)

Filed under: Corona Impeachment impeachment

March 2, 2012

"It is by this process, that magistracy which tries and controls all other things, is itself tried and controlled. Other constitutions are satisfied with making good subjects; this is a security for good governors. It is by this tribunal, that statesmen, who abuse their powers, are accused by statesmen, and tried by statesmen, not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality. It is here, that those, who by the abuse of power have violated the spirit of the law, can never hope to escape through any of its defects."

— Edmund Burke, opening statement in the impeachment trial of Warren Hastings.

3:13pm | URL: http://tmblr.co/Z42vXyHKYgK3

Filed under: Corona Impeachment impeachment

March 2, 2012

It may be good for senators to remember that the rules of evidence applied in ordinary litigation evolved in the context of the judge-jury relationship in England and the United States. Since jurors were lay persons inexperienced in the law but charged with the task of deciding questions of fact, they needed some kind of guidance and protection from judges whose task was to rule on questions of law. Since jurors were unfamiliar with the law and the ways of counsel, in danger of being misled by irrelevancies or by fraudulent or biased testimony, or by testimony presented solely for the purpose of playing upon their passions and prejudices, the judges developed a network of exclusionary rules, known as rules of admissibility. Thus, statements to which judges might listen with impunity were carefully kept from the jury by rules excluding such evidence as hearsay and opinion. Things likely to complicate the case, confuse the mind, or mislead ordinary lay persons as to the real facts in issue were accordingly excluded from the jury. This is the basis of the so-called Anglo-American system of evidence. It is a system of rules of admissibility composed of rules of exclusion to determine whether, a piece of evidence should or should not be admitted. This is the system that found its way into the Philippines, with no jury background. This consideration should be reckoned with by our courts, especially in the Senate whose members are not ordinary citizens. A number of them are lawyers of stature, including former professors of law and secretaries of justice. They should have considerable latitude in admitting evidence objected to as “immaterial” or “irrelevant,” since in the final evaluation of the case they can ignore evidence that has no probative value, instead of wasting so much time and effort in wrangling on questions of admissibility. As stated by the pre-war Supreme Court in Prats & Co. v. Phoenix Insurance Co., 52 Phil. 807(1929): “These rules (worked out in England and the US) have little pertinence to a system of procedure, like ours, in which the court is judge both of the law and of the facts. Apart from these considerations is the circumstance that time consumed in the trial on such collateral points is generally many times greater than would be consumed if the questionable testimony should be admitted for what it is worth.” This is sound advice from American and Filipino justices who composed the Supreme Court in 1929. JusticeStreet penned the decision, concurred in by Justice Malcolm. The senators sitting today as an impeachment court are called judges, not jurors, precisely because they are judges both of the law and of the facts. Hence, they should know better than involve themselves in pointless disputes on whether a given piece of evidence is immaterial or irrelevant.

The Senate may do well to conduct its impeachment trial almost in the same manner it conducts its committee investigations, except that in an impeachment trial, the senators acting as judges are under the leadership and guidance of the Chief Justice of theSupreme Court as presiding officer, in the interest of orderly procedure and conformably with the mandate of the Constitution.

— Jovito Salonga, Why the Impeachment Trial is slow, tedious and full of technicalities, Kilosbayan Magazine January 2001 issue.

2:39pm | URL: http://tmblr.co/Z42vXyHKVOhG

(Notes: 3)

Filed under: Corona Impeachment impeachment

March 2, 2012

Go back to what’s it about: what the meaning of impeachment is.

1:59pm | URL: http://tmblr.co/Z42vXyHKQn2E

(Notes: 5)

Filed under: Corona Impeachment impeachment

March 2, 2012

HAVE the senators prejudged Atty. Vit Aguirre? If they punish him, they will have approved of Sen. Miriam’s arguable misconduct and show it as a model for all to follow. A fair inquiry may show that she might have been guilty of disorderly conduct herself. Were I well, and with the prosecution, I might have taken exception so my apos won’t think: “Si Lolo pala, gago, sabi ni ang galing Senadora Miriam.” Aray.

Sentenced to jail for calling Macoy a super-subversive in early 1983, and told to apologize, I said, “Your Honor, I have been advised to say sorry. I won’t. A weekend in jail? A low price to pay for the high privilege of sharing the suffering of our unhappy Motherland.” Earlier fined fifty pesos for saying the court was getting militarized, I pulled out a hundred-peso bill and said, “I’ll gladly pay it, can I say something more for another fifty pesos?” Good manners, right conduct, urbanidad and breeding come to mind as part of our training in Mendiola.

On impeachment I use Justice Cruz’s book on Political Law. I have also long had Berger’s 1973 book on impeachment. One may also read my articles in Mr. & Ms., pre-Edsa ’86, and a 2001 San Beda Law Journal article where Uncle Jovy Salonga groused about “our slavish adherence to the rules of evidence that were not originally designed to apply to impeachment proceedings.” Why the Impeachment Trial is Slow, Tedious and Full of Technicalities. Circa Edsa ’01, of unhappy memory, now unsung.

— Rene Saguisag, Memories are made of these, March 2, 2012

1:31pm | URL: http://tmblr.co/Z42vXyHKN0nE

(Notes: 11)

Filed under: Corona Impeachment impeachment

March 1, 2012

Mr. Corona failed these fundamentals the day he accepted a clearly unacceptable “midnight appointment“. It doesn’t matter if it was constitutional or not, it matters only that it was a wrong thing to do. You obviously don’t accept an appointment by someone leaving office. You must have the decency to wait for the incoming leader to make appointments. You particularly do so if you are to assume the highest position of honesty, morality, and probity in the nation.

The eight articles of impeachment are purely supplemental to this. And already Corona has failed this test. It’s not about how much money he maybe has, and certainly not about how that information was acquired. It’s about honesty. The bank documents may be found to have been illegally obtained and hence not acceptable in a court of law, but this is not a court of law, it’s a court of public opinion. That opinion based on these documents is that he’s guilty of, at the very least, perjury. He did not declare those accounts in his Statement of Assets, Liabilities and Net Worth, and those bank accounts undeniably do exist, it’s that simple. There is also no question that he has more assets than were declared in his SALN. It doesn’t matter if it was 45 or 25 or even five apartments. They weren’t listed in his SALN. He also has dollar accounts, that’s confirmed. How much is in them is irrelevant. The existence of these was not mentioned in his SALN. An honest mistake is not acceptable as shown by previous decisions on public servants dismissed for far less than is being accused now. I hope the defense lawyers can recognize that. Whether Corona is legally guilty of something can be brought up separately in a court of law. And more rigorous standards can be imposed there.

So the prosecution is weak and the defense strong. So what, this is not about the ability of lawyers, it’s about inherent honesty of a man, of the nation’s Chief Justice.

It doesn’t matter if the information is admissible or not. This is not a court of law determining legal guilt, it is a questioning of a man’s fitness to hold a high office that demands the highest levels of honesty and integrity. Proof beyond reasonable doubt is not necessary, the preponderance of evidence is more than enough. We are talking about the character of a man who, more than anyone else, must meet the highest standards of decency. There’s more than enough evidence to say he’s failed to meet the high standards required of a Chief Justice. This is a court to determine the truth of the character of a man. The senators have a responsibility to the Filipino people, to the Philippine nation. This transcends adherence to strict legal niceties.

Incidentally, I completely fail to understand why if you find unexplained wealth you can’t look into it because it wasn’t in the articles of impeachment, that it was a “fishing expedition”. How else do you catch big fish except by going fishing. If it’s uncovered during the proceedings of the trial, as this was, of course you look into it.

This is only the second impeachment trial ever, it is unique in itself and cannot be treated as court cases normally would be. The banks have acknowledged he has more money than he reported. That’s a fact. That’s sufficient reason to declare him guilty. His SALN was false. The defense counsels are first and foremost Filipinos, only secondarily lawyers. They should be concerned about what’s the best for the welfare of their country. A man of now questioned ethics should not be Chief Justice, the doubts alone are sufficient. And 70 percent of a group I surveyed agree.

A chief justice is next to a bishop in the depth of character he must have ― far greater than us mere mortals. Corona does not meet the high standards demanded of the position.

He should do the decent thing and resign.

— Peter Wallace, It’s all about character, February 24, 2012

9:40pm | URL: http://tmblr.co/Z42vXyHHgVXX

(Notes: 6)

Filed under: Corona Impeachment impeachment

March 1, 2012

March 7, 430-630PM, Leong Hall Auditorium, ADMU

(Source: kaelco)

8:20pm | URL: http://tmblr.co/Z42vXyHHaXbf

(Notes: 17)

Filed under: Corona Impeachment impeachment

February 29, 2012

Miriam Defensor Santiago just over a month ago

Miriam Defensor-Santiago told the Senate on January 24 that she’d learned a lesson from the 2001 impeachment. Today, she contradicted what she said a little over a month ago.

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 of 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.

3:01pm | URL: http://tmblr.co/Z42vXyHDsVs5

(Notes: 3)

Filed under: Corona Impeachment impeachment

February 28, 2012

Law Ruling Out Truth

From Law ruling out truth, by Patricio Diaz

Mindanews, February 26, 2012

On the witness stand was Justice Secretary Leila de Lima testifying why she defied last November 15 the Temporary Restraining Order issued by the Supreme Court. The TRO would have allowed former President Gloria Macapagal-Arroyo to leave the country by restraining the Department of Justice from enforcing its Watch List Order banning her from traveling abroad because of impending criminal cases against her. De Lima stood by the DOJ’s WLO preventing Arroyo from boarding her plane for Singapore.

In her oral testimony, relying mainly on the dissenting opinion of Associate Justice Maria Lourdes Sereno, she related how Corona had the TRO enforced despite the failure of Arroyo to meet one of three conditions. Chief Defense Counsel Serafin Cuevas moved to strike out from the record De Lima’s testimony as mere hearsay – inadmissible according the Rules of Evidence.

In response, Enrile ruled that the IC is trying an impeachment case, not a criminal case. The Rules of Evidence do not strictly apply. He ordered to keep on record De Lima’s testimony in full marked e HH as her testimony; but as to its truth or falsity relevant to the complaint it would be considered as hearsay evidence.

In short, since De Lima has no personal knowledge of the Supreme Court proceedings, her testimony is hearsay. That half satisfies the position of the defense. The other half – keeping her testimony as her testimony – satisfies the prosecution as it can argue for its admission as evidence or have Sereno authenticate her dissenting opinion on record.

Enrile has “rendered” to the defense what “belongs” to it – its position that De Lima’s testimony is hearsay according to the Rules of Evidence. At the same time he has “rendered” to the prosecution what “belongs” to it – the burden of validating truth in hearsay evidence.

The hearing on Article 7, like that on Article 2, has exposed the contradiction in the “rule of law”. While touted as the “rule” to arrive at truth and justice, when convenient it is used to rule out truth. Behind this, the defense is ruling out the truth about Corona.

Delima’s testimony was testimony by authority – an accepted mode of arriving at the truth. This is employed by scholars in their researches – primary, when referring directly to an author’s work; secondary, when referring to an author’s work as quoted by another author. De Lima’s reference was primary.

The President reports to the nation from time to time based on the official reports of government offices and agencies. He has no personal knowledge of those official reports. By the Rules of Evidence, the State of the Nation Address, for instance, is hearsay.

In judicial courts, reports are admitted as documentary evidence if authenticated. This must be the basis of Sen. Miriam Defensor-Santiago’s remark that the prosecution’s case is lost unless Justice Sereno can authenticate her dissenting opinion. This can happen if the prosecution can convince the IC to invite Sereno; if the prosecution can invite Sereno; or, if Sereno voluntarily appears as witness.

But the Supreme Court has resolutions en banc banning the justices or any Court official from testifying in the IC trial and preventing the disclosure of Court records. How can the IC or the prosecution penetrate the tightly walled-in Supreme Court and have Sereno testify or authenticate her dissenting opinion on record?

De Lima’s testimony contains damning truth. But considered as hearsay, it has to hurdle the imposing Rules of Evidence standing on the way; this can be admitted as evidence if Sereno can testify or authenticate her dissenting opinion on record. However, the Court resolutions also stand on the way. The rule of law in the form of Rules of Evidence and Court resolutions is ruling out truth that can convict Corona.

This is the burden of the senators: Enrile has declared the IC is trying an impeachment case, not a criminal case; the Rules of Evidence do not strictly apply. Yet, unless the Supreme Court relaxes its ban on the appearance of justices as witnesses at IC hearings and on the disclosure of its records, Corona is untouchable behind the rule of law.