Lawyers to Senators: Make up your mind

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Senate President should make sure all parties are on 'same page' in the trial, they add

MANILA, Philippines – The Senate, sitting as an impeachment court, must take control of the trial, clarify basic rules, and decide on the nature of the ongoing proceedings, according to two lawyers.

They expressed disappointment that as the trial enters its 6th day on Wednesday, January 25, all parties have their own disparate concepts on what the proceeding is all about — criminal, civil, administrative — and the court itself has not made its position and rules clear.

Part of the problem stems from the absence of a pre-trial conference that would have sorted out administrative matters concerning all parties, lawyer Jose Manuel Diokno told Rappler in an interview. A former human rights lawyer and founding dean of the De La Salle law school, Diokno served as one of the private prosecutors in the Estrada impeachment trial.

Diokno said a closed-door pre-trial conference would have given the prosecution and defense an opportunity to submit their lists of witnesses and documents and agree on the sequence of their presentation.

It took senator-judge Miriam Defensor-Santiago on Tuesday, January 24, to ask both parties about their lists. The defense said they plan to call 15 witnesses and submit no less than 25 documents. The prosecution said it would still finalize its own lists.

The impeachment court adjourned after only one-and-a-half hours on Tuesday, following a back-and-forth on rules and a defense motion asking the Senate to stop the prosecution from further submitting evidence on Chief Justice Renato Corona’s alleged ill-gotten wealth.

The Senate asked the prosecution to submit its reply to this plea on Wednesday, when senator-judges are scheduled to hold a caucus in the hope of deciding on the matter.

“There’s no clear picture of what the rules are, they change day to day,” lamented Diokno, a trial court lawyer. “Frankly, I’m disappointed with how the lawyers and senator-judges have been handling this.”

Lack of theory

The other problem is the Senate’s continuing indecision on the nature of the ongoing trial.

“What the proceeding lacks right now is a clear theory on the part of the Senate, prosecution and defense,” said law professor Theodore Te, who’s finishing his masters now in Columbia University in New York.

Te told Rappler over Skype that 3 “theories” on impeachment have emerged from the trial: the prosecution looks at it as akin to an administrative proceeding, the defense and Senate President Juan Ponce Enrile liken it to a criminal one, while other senator-judges say it’s something in between.

A criminal proceeding involves tough regulations, including the requirement to present proof of guilt beyond reasonable doubt. An administrative case would only require “substantial evidence” of guilt.

“It’s amazing that we could proceed to trial with 3 different theories…the Senate has not really defined what they’re looking for,” Te said.

He suggested that Enrile take the “extra step” of calling on his colleagues to “step back and see if we’re all on the same page.”

Te said it would be “futile” in the end if the prosecution presents evidence that the Senate is not looking for.

The lawyer also took a swipe at the counsels for both parties. “What stands out [in this trial] is the underwhelming capacity of the lawyers in terms of presenting the case to the Senate and to the public.”

Asked how the court could best approach the trial, Te said it would benefit the public if senators receive facts like a jury would and decide on the “totality of circumstances.” This would allow them to review the past and consider in their decision-making Corona’s continued fitness for public office after the trial.

The cause of the current deadlock is Article 2 of the Articles of Impeachment filed by the House of Representatives against Corona. The title of Article 2 accuses Corona of betraying public trust by failing to disclose his Statement of Assets, Liabilities and Net Worth (SALN). The sub-categories of Article 2 include allegations of ill-gotten wealth.

Defense counsels, in their memorandum to the Senate, said documents and witnesses pertaining to the sub-category charges are “irrelevant” to what they claim is the main and only point of Article 2, which is Corona’s failure to disclose his SALN.

The prosecution however maintained that the SALN could not be taken independently of the properties and income he has earned in the 9 years that he has been in the Supreme Court.

Scheduled to take the witness stand on Tuesday was Internal and Revenue chief Kim Henares, who was supposed present the income tax returns of the Chief Justice. –

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