Where the prosecution erred

Dean Tony La Viña
I would be remiss if I do not repeat what I and many others have said before–the prosecution has only itself to blame for the difficulties it has had in presenting evidence

Dean Tony La ViñaOn Day 25, the prosecution finally rested its case when lead House prosecutor Rep Niel Tupas Jr announced that the prosecution would no longer present evidence on the other 5 articles of impeachment against the Chief Justice, for the reason that they “have already presented a strong case” and evidence “suffice to convict Corona for betrayal of public trust.”

He confirmed to the presiding officer that the prosecution case would “stand or fall” on the bases of the 3 articles of impeachment, namely: Article 2 (non-disclosure of properties in Corona’s Statements of Assets, Liabilities and Net Worth or SALN), Article 3 (lack of probity, integrity and independence), and Article 7 (irregularities in the issuance of a temporary restraining order for former President Gloria Macapagal-Arroyo last November). 

However he said that the prosecution reserves the right to present evidence on Corona’s dollar account once the TRO issued by the Supreme Court (SC) is lifted.

The Tupas announcement did not come exactly as a surprise to many observers; clearly, the prosecution was running out of witnesses even as their many attempts to bring new witnesses in were successfully blocked by a very skillful defense.

Personally, I expected such an announcement to come but was still taken aback by the timing as well as its scope. I expected the prosecution to announce they would no longer present evidence but I did not anticipate that they would actually withdraw Articles 1, 4, 5, 6 and 8.

I imagined that they could still ask the Senate to make a decision on the merits in some, if not all of these Articles, using legal techniques such as taking judicial notice of Supreme Court decisions, media reports, etc.

Prosecution’s evidence

In any case, after 25 long days of the impeachment trial, what has the prosecution presented by way of evidence? Under Article 2, we recall the testimonies of Supreme Court Clerk of Court Enriquieta Vidal, who, after much prodding from some senator-judges, finally revealed that she was in possession of the Chief Justice’s SALNs.

There was the testimony of Bureau of Internal Revenue (BIR) Commissioner Kim Henares, too, who said Corona did not fill up the acquisition cost column in his SALNs and that some properties were not registered the year after acquisition.

The prosecution also managed to show the failure to disclose certain assets which proved to be registered in the name of the Corona. These included the Bellagio condominium penthouse and the McKinley Hills transaction which involved the Coronas’ daughter. The latter was not disclosed in the 2009 SALN of the Chief Justice.

In addition, the prosecution presented the Bonifacio Ridge condominium and the active Bank of the Philippine Islands (BPI) peso-accounts opened in 1989, which had an ending balance of P12,024,067.70 as of Dec 31, 2010.

As to the PS Bank deposits, uncertainty exists as to whether these will be admitted as the defense motion for the suppression of evidence concerning these PSBank peso accounts remains pending. The assertion is that these were allegedly illegally obtained.

Game changer

In my view, a game changer in the eyes of the public was the revelation of the circumstances under which information about the PS bank deposits were obtained by the prosecution.

I know Congressmen Rey Umali and Bolet Banal personally; they are men of integrity and I would like to believe them. But the “small lady” and “bag left in the gate” stories seem to be too incredible to many. The problem is that these stories trivialize truth-telling – in fact, they make people conclude that since every one lies, why should someone be punished for doing the normal thing?

The current controversy involving Pagcor head Cristino Naguiat has the same effect for many people; if Naguiat is forgiven, why not Chief Justice Corona? There are, of course, distinctions between the standards one should use for the Chief Justice and for a gambling operator/regulator. But that distinction is not obvious to the masses who see only that one is a friend, while the other is an enemy.

An even more important distinction is that the Pagcor incident involves only one incident and can possibly be explained as a mistake of judgment and certainly does not constitute a pattern. In the case of the Chief Justice, unless rebutted or explained by the defense, there seems to be a willful pattern not to disclose certain assets and properties.

The prosecution’s best case is in the evidence it presented to the effect that Corona failed to disclose certain assets or made under-declarations in his SALNs the year after, or even years after, they were supposedly acquired. Again, the sheer number of these omissions clearly reveals a pattern. 

Defense rebuttal

Of course, the defense for their part will try to rebut this evidence when the time comes. Possible defenses may include assertions that:

  • transfer of ownership of the condo units may have not yet been consummated since Corona had not accepted them
  • the misdeclarations or non-declarations were done unintentionally
  • the Coronas come from families of means which explains their hefty bank deposits

 

The defense has a tall order, considering the non-declarations and under-declarations were all over his SALNs which may, by any standards, be difficult to explain away. 

The most crucial issue, however, articulated by senator-judge Joker Arroyo and a couple of other senator-judges, is whether the nondisclosure of assets and liabilities as mandated by RA 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees should be considered a serious breach of conduct, enough to warrant his removal from office.

A corollary question is whether his being the highest official of the Supreme Court sets for him a higher ethical standard, which is not required of other officials and employees in the government.

Under Article 3, which accuses Corona of culpable violation of the Constitution and betrayal of public trust in connection with the High Court’s so-called flip-flopping decisions on the PAL-FASAP labor row, the prosecution presented FASAP President Bob Anduiza. The latter claimed that the Chief Magistrate “meddled” in FASAP’s 13-year-old labor case against PAL, which stemmed from the retrenchment of around 1,400 flight attendants in 1998.

Noteworthy about Article 3 is the difficult question raised by some senator-judges and by the defense itself on whether the Chief Justice had a direct hand and could have been solely responsible for the “flip-flopping” of the Supreme Court. Questions come to mind, considering the deliberative and collegial nature of the decision-making process.

Prosecution to blame

Frankly, while I am completely supportive of FASAP in their dispute with PAL, I do not think that the prosecution’s case to prove Article 3 is powerful enough to warrant conviction. It could have been helped if evidence about the perks received by the Corona couple was admitted; unfortunately because Article 3 was poorly crafted – it did not include an allegation of bribery – such evidence was disallowed by the impeachment court.

In this assessment of the prosecution’s case, I would be remiss if I do not repeat what I and many others have said before – that the prosecution has only itself to blame for the difficulties it has had in presenting evidence. If anything, the lesson from this trial is that the House should conduct hearings first and gather evidence on its own terms before sending an impeachment complaint to the Senate.

“Fishing expeditions” for evidence will not work when you are up against the best lawyers in the country defending the impeached official or making rulings for the impeachment court. I will certainly not criticize the defense panel for their excellent representation of their client or the impeachment court for its rigor and commitment to due process.

Averting a constitutional crisis

Going back to the prosecution, its case for Article 7 is stronger. I found refreshing and quietly persuasive the performance of prosecutor Neri Colmenares. Humility and consistency is a clear plus in an impeachment court like the one we have. Justice Secretary Leila De Lima testified on the dissenting opinion of Justice Ma. Lourdes Sereno on the TRO in favor of Arroyo.

The primordial question is whether the acts of the Chief Justice, as revealed by Sereno in her dissent, are sufficient to show partiality in favor of the former president. In relation to this, I believe that the presiding officer was correct in not forcing the issue of calling on Sereno to take the witness-stand, avoiding collision with the Supreme Court, much like what the impeachment court did with the TRO on the dollar accounts.

Any move to this effect was simply fraught with danger and may have precipitated a constitutional crisis which we all do not want to happen. Besides, the impeachment court could always take judicial notice of Sereno’s dissenting opinion, which is already in the public domain.

Woman of integrity

I have known Justice Sereno for more than 30 years. We were classmates in college in the Ateneo de Manila. Because I waited for 4 years before enrolling in law school, Sereno also became my professor at the University of the Philippine College of Law. Later, when I graduated, we became colleagues as I too joined the UP Law faculty.

We were also neighbors in Hardin ng Rosas in UP Diliman. I mention how I know Justice Sereno to be able to attest that she is a person of the highest integrity and deepest Christian faith. We have been in many fights together, some very nasty and brutal (fortunately for me we have always been on the same side) and she has always had the courage to speak truth to power.

She will not shrink from appearing in the impeachment court, no matter the consequences, if she thinks it is the right thing. I will certainly support her if she takes the decision. But for me, the broader question is whether her testimony is, in fact, necessary. And this is where I disagree with the prosecution.

I think the case of Article 7 is best presented through the uncontroverted facts asserted by Sereno in her dissent. It is up to individual senator-judges to appreciate that or not. The long-term consequences to the court and to Sereno personally are I think too serious to risk an appearance that does not contribute to a case that has already been made.

Open mind

In sum, the way the prosecution handled and presented its case has been a big let down, considering the high expectations that the public had at the commencement of the trial because of the hype and hoopla, which the spokespersons and even some panel members themselves forecast. But this is not to say that it was all an unmitigated disaster.

Undoubtedly, the prosecution has established a number of facts prejudicial to Corona, which the defense cannot do anything about but rebut. Now that the prosecution has rested, the ball is now in the hands of the defense.

Let’s all watch and listen and give the defense too the courtesy of an open and unprejudiced mind. – Rappler.com

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