Impeachment trial at the crossroads

A lot has been said about the infirmities of the impeachment complaint against Chief Justice Corona and the lack of preparation and competence of the Prosecution. But the most damaging blow that may have irreparably compromised the impeachment court's capacity to ferret out the truth and render a correct judgment has come from the senator judges themselves voting 13-10 to defer to the Supreme Court Temporary Restraining Order on the opening of Corona's US dollar accounts.

It cannot be over emphasized that the strength of the Senate sitting as an Impeachment Court, most specially now that no less than the Chief Justice is the accused, lies precisely in its supreme authority to rule on pertinent matters, regardless of the interpretation of the law by any other court, the SC included.

Many of the Senator Judges justified their vote as upholding the rule of law, respecting the judiciary and in particular the Supreme Court as a co-equal branch, thereby averting a Constitutional crisis, etc.

All these justifications miss, if not obfuscate, the central point that the paramount and primary function mandated upon the Senate as an Impeachment Court is to hold the highest officials of the land accountable. The Senate is precisely vested with extraordinary powers in order to perform this function and achieve this goal, because the accomplishment of this goal could not be possible in any other court, not even the Supreme Court.

It is Congress, composed of members who are elected to office, and theoretically can be held more politically accountable by the electorate than those merely appointed to their positions, that is empowered to impeach and to try impeached government officials.

The Senate's supreme authority as an Impeachment Court on these matters is mandated by the Constitution precisely to make the intervention or interference of any other court, including the Supreme Court, not only unnecessary but unconstitutional.

A vote not to defer to the Supreme Court order is not only lawful because it upholds the spirit and letter of the Constitution; it is also necessary to the accomplishment of the Impeachment Court's function of establishing the truth, rendering justice and exacting accountability. As a corollary, the vote to defer to the SC TRO opens the gates wide open to further intervention and interference by the Supreme Court which has now unabashedly shown its bias for Corona.

The threat of a so-called constitutional crisis stems from the SC intervening in the impeachment court's authority and functions and not from the Impeachment Court's exercise of its powers to subpoena documents that would shed light on the case before them.

Other facts and circumstances have conveniently been overlooked by the senator-judges who voted to be bound by the SC TRO. Corona has not stepped aside and continues to brazenly use his office to mount his defense both legally and politically. In fact, there is a pending petition by Corona to stop the impeachment trial in its tracks.

Another disturbing, but not surprising aspect of the Senate vote deferring to the SC TRO is the widely reported role of bank and real estate interests and various influence peddlers in securing the majority vote.

Has Big Business, whose stalwarts are known to have multimillion-peso stakes in various cases pending before the Supreme Court, mobilized their resources to at the least, prevent disclosure of damaging information against Corona, or at maximum have this impeachment trial end in acquittal?

The Defense can lob an accusation of a 100-million-per-senator lobby fund from Malacanang in a late-night press conference on the eve of the Senate vote and not be dismissed outright given the Aquino administration's high political and economic stakes and the Cojuangco-Aquino's and other big landlord interests that hinge on Corona's conviction.

Is there less likelihood that big business interests would roll out the dough to preserve their immediate and strategic interests that are inextricably wound up with Corona's in this trial?

The Senate vote to defer to the SC TRO capped the steadily increasing trend in the impeachment trial of the resort to legal technicalities to obscure and obstruct rather than seek and find the truth.

The ordinary layperson, not knowing the difference between the Rules of Court and the Senate Impeachment Court Rules much less their nuances and intricacies, is trapped, along with the search for truth and accountability, in a web of legalese and maneuvers that more knowledgeable lawyers could easily see through as dilatory, diversionary, or simply obstructionist and geared to suppress damaging evidence.

It does not help that the Presiding Officer, so far perceived to be fair and still sharp and alert despite his age, has often gone along with the rigmarole or allowed it, to the advantage of the Defense that has evidently been using the legalistic tactics to the hilt. This was clearly and excessively displayed on the day of the fateful vote when Senator Defensor-Santiago was allowed to indulge for a full twenty minutes in a useless harangue of the Chief Prosecutor in the form of a law classroom graded recitation.

The Corona impeachment trial could still be a golden opportunity to demonstrate how exceptions to the stringent application of procedural rules may be made to achieve the paramount aims of justice. For as anyone who has ever been involved in a courtroom trial knows without exception, what is legal is not necessarily what is just.

Having said this, there are basic principles that must be upheld by any court of justice, with regard to due process and fair proceedings, that should be followed. The Prosecution cannot invoke “liberality” in the application of the rules as a substitute for being able to marshall the evidence to substantiate the many charges they have filed against Corona.

Where and how does Juan and Juana de la Cruz weigh in on the Impeachment Trial proceedings under the current set-up? Is his/her role reduced to being a helpless or clueless spectator waiting to see how the courtroom drama would play out, while the outcome is being decided by factors beyond his ken and control?

Back to the main point, the Senator-Judges being first and foremost politicians, many seeking reelection, even the most corruptible (by either side) or the ones with the most vested interests, political and economic (on either side), have to be in tune with what the public says on the matter.

In other words, they have to show a modicum of being fair and answering to the demand for truth and accountability.

So the people have to speak up to be heard: We want the truth not legal gobbledegook! Conduct the trial so that our people - acting through the Impeachment Court - can determine whether Renato C. Corona is fit (has the requisite competence, integrity, independence and probity) to remain as the Chief Justice of the land!

The progressive movement, whose overriding agenda in this trial remains to be accountability with regard to the Arroyo regime's high crimes against the people (which the Corona Supreme Court has been a party to) must utilize its high moral and political vantage point, its available resources and ability to forge broad alliances to influence public opinion in this direction.

Moreover, it must galvanize the people to take action on the basis of their real interests, no matter the outcome of this impeachment trial. #

Published in Business World
17-18 February 2012

Far short of expectations

The impeachment trial of Supreme Court Chief Justice Renato Corona has been ongoing for more than three weeks. There is growing doubt among those assiduously following the proceedings whether it will actually be able to ferret out the truth and exact accountability on widely-perceived erring high public officials, i.e. Mr. Corona and ultimately, former President Gloria Macapagal-Arroyo.

Or will the people's stake in the impeachment trial be sidelined by the factional and personal interests of the main characters involved - President “Noynoy” Aquino and CJ Corona/GMA – as these push and pull on the members of the highly politicized Senate impeachment tribunal.

People are definitely interested in knowing the truth and it is to the public interest that the truth comes out. But the odds appear stacked against this happening because of the larger context in which this impeachment trial is unavoidably enmeshed.

Much has been made of the prosecutors' apparent lack of preparation and even competence in marshalling the evidence against Mr. Corona. On the other hand, the defense lawyers, while appearing erudite on the complexities of legal proceedings, are simply resorting to legal technicalities to prevent the presentation of damning evidence against their client.

But there is reasonable ground to believe that the outcome of the trial will not be decided solely on the merits or the strength of the arguments of the defense and the prosecution but on political, economic and even personal interests of the Senator-Judges.

Political alignments are key - whether the senator is an ally of Mr. Aquino or Mr. Corona/Mrs. Arroyo - as well as other compelling considerations such as whether the senator is a reelectionist or eying some other public office, in which case the backing of the incumbent President and/or a high-profile performance that meets with public approbation can make all the difference.

Indeed the Corona impeachment trial by its very nature is imbued with "politics" both in the good and bad sense. Good because this trial in fact is the result of a very just and popular demand that GMA and her cohorts be finally made accountable for all their crimes against the people now that they are out of power.

The trial will be a way in which public opinion can impinge on the process and the outcome. Hopefully, the true people's interest will emerge, and as one veteran public interest lawyer put it, the people can be mobilized as the “great equalizer” in a political process where huge vested interests are clashing.

But so-called public opinion can be manipulated and even manufactured. All the interested parties and the various political and social forces will try to demonstrate that they have the people behind them.

The dominant force of course that has the upper hand in this trial is the Aquino regime, specifically the rabidly pro-Aquino groups dubbed "kamag-anak/kaibigan/kabarilan", and lest we forget, "kapartido".

To be more specific, there are the members of the Cojuangco-Aquino clan (think Hacienda Luisita multi-billion peso interests); the “Balai” group (Mar Roxas/Liberal Party) and “Samar”constellation (Executive Secreatary Ochoa and anti-Balai personalities) are very much alive and kicking; as well as smaller satellite groups like the party-list Akbayan (Political Affairs adviser Llamas, assorted “social-”, “popular-” and ex-”national-democrats” and their hangers on).

The prosecution is in fact controlled by the LP-led alliance in the House of Representatives wherein the progressive party-list Bayan Muna is a minor though persistent and active voice.

The Aquino regime will use this trial to strengthen its hold on the Supreme Court. And in turn use this influence on a slew of cases that it wants to win in the SC like the Hacienda Luisita case, cases involving GMA, and anti-people policies, programs and decisions that are or will be brought before the Court's scrutiny.

It will consolidate itself further by harvesting tremendous political capital from either getting Mr. Corona to resign or have the Senate find him guilty as charged. This way, the anti-corruption slogan that has become Mr. Aquino's main political platform will be validated. Lingering doubts about his political will and capability to prosecute and punish Mrs. Arroyo and her ilk will be – at least temporarily – set aside.

Already, we see how the US-backed Aquino regime is using the trial to draw attention and criticism away from its gross failings with regard to socio-economic policies and programs – the incessant oil price increases are only the tip of the iceberg - and its servile foreign policy.

The current negotiations between the Philippine and US governments regarding the pre-positioning, on a permanent basis, of more US troops and covert personnel, warships, and war materiel inside Philippine territory were shrouded in secrecy until a US newspaper shed light on the matter. But the news is eclipsed by the mass media's preoccupation with the Corona trial.

As for Mr. Corona, he still has the majority of the Supreme Court justices (majority being Arroyo appointees to begin with) and the high court's rank and file on his side. Across the nation, the lower courts and their personnel seem to be loyal to the Chief Justice for the most part but all they can do is manifest their position and not much else.

The leadership of the Integrated Bar of the Philippines, an influential and vocal association of lawyers, has also taken Mr. Corona's side. Certain personages like reputed legal luminary Fr. Joaquin Bernas and other opinion makers like some Catholic bishops have rallied round the concern that the impeachment trial is an affront on the judicial system itself and threatens the system of “checks and balance” among the co-equal branches of government.

Arroyo partisans shrilly contend that what is taking place is no less than a Malacanang-orchestrated attack on the Chief Justice, the independence and integrity of the Supreme Court and a vile precursor to more political persecution to be inflicted on their political patron, Arroyo, and the establishment of a n alleged Aquino “dictatorship”.

Unfortunately for Mr. Corona, the fact that the impeachment trial is a perfectly legal and Constitutionally-provided resort of Congress to check malfeasance in the High Court, has tied the hands of the latter from checkmating the impeachment trial with some form of injunction. Several petitions to this effect are pending in the SC and will likely languish there unless some major shift in the balance of forces takes place that will allow the justices to provoke a constitutional crisis by imposing a restraining order on the impeachment trial at this late stage.

In the Senate, the clout of Malacanang is undoubtedly at work with LP members pro-actively working to find Corona guilty. Other Aquino allies like Presiding Justice Senator Enrile, though he would be inclined to go along with Malacanang for varying reasons, will also not allow a bungling prosecution to rule the day especially with defense lawyers who are quick on their legal counter-offensives.

The senators who were or are still allied with Arroyo have to pretend to be fair. Senator Miriam Defensor-Santiago herself acknowledged that after the experience of the Estrada impeachment trial - public perception that the Senator-Judges were conspiring to suppress crucial evidence provoked a popular uprising that led to President Estrada's downfall - the current Senate Tribunal must exercise great caution and circumspection that it is not perceived to be doing the same.

Those in the Opposition may still go either way although many of them were former vociferous opponents of Mrs. Arroyo and her “lying, looting and murdering” regime. Many of them also tend to be critical of the Aquino administration though this is tempered by Mr. Aquino's still high popularity ratings. They will be keen on how public opinion is swayed one way or the other and how this translates into their political careers and fortunes.

There is an evident waning of interest in the trial, as shown by the thinning audience in the gallery and notable absence of rallyists outside the Senate. This can either be a wake-up call for the prosecution to shape up, or they can interpret it as the public not caring which way the trial would go, and serve rather as a disincentive for working harder. For the defense, public weariness with the trial is a more conducive environment for an acquittal.

This impeachment trial indeed is the result of factional conflicts among members of the ruling elite but this fact doesn't automatically mean that the progressive forces and the people as a whole don't stand to gain anything from engaging it.
The progressives must call on and mobilize the people to take up their own role in exerting pressure on the prosecution (and even the defense) to do better and the Senator-Judges to act with independence, probity and fairness and most of all, with the commitment to arrive at truth and justice.

The progressives must be unwavering in their principled campaign to bring Arroyo and her ilk to the bar of the people's justice even as they are vigilant in uncovering and opposing the self-serving, reactionary agenda of the Aquino regime. This will require greater political astuteness, closer and more diligent monitoring, and popular calls to action at critical junctures of the entire impeachment trial. #

Published in Business World
3 February 2012