Pangmatagalan na impeachment trial

I keep hearing talk about “Ang tao ang magpapasya.”

The only “boses ng tao” that I trust is that which can be reliably ascertained. That is the voice in the ballot box, by way of an election, or a ratification of the Constitution. Any other claim to “voice of the people” is suspect to me.

Now in 1986, the voice of the people overwhelmingly ratified the Constitution. In that Constitution, the people stated that when an impeachment case is filed, they have tasked the Senate to decide for them. The people did not say that they would decide.

Had the people wanted to decide themselves, they would have instituted a referendum mechanism for impeachments. But no, they chose to let the Senate decide.

When the people left the decision-making to the Senate, they also left the decision to make rules with the Senate. For better or for worse, the Senate has chosen to abide by the time-tested Rules of Evidence applied in courts.

So whether the partisans prefer the so-called common sense (kuwentuhan style of Inday Badiday), or what many call technicalities (Rules of Evidence) is immaterial; because at the end of the day, it is the Senate that will determine which Rules will apply. It is also the Senate that will determine whether Corona will be removed or not.

The House panel should live with it, and get good lawyers to carry their cause. They alloted millions anyway.

Clarification pa. Please, the Senate will not vote to impeach Corona. He has already been impeached (charged). The Senate will choose to remove or allow Corona to stay, by convicting or acquitting.

In the years when the US bases agreement was being discussed, I was working in the Senate. The many public fora conducted then, especially in the areas affected (Zambales) showed that the people wanted to retain the bases. The same sentiment was manifest all over the country.

In fact, had Cory submitted the decision to a referendum, the votes to keep the bases would have won overwhelmingly.

Cory knew that she would have difficulty getting two-thirds of the Senate. But she wanted to build the institutions of democracy – a legislature independent of the Executive, and an independent Senate. So she did not use her massive popularity, but obeyed the will of the people, stated in the Constitution. She let the Senate decide.

Contrast this with the son, who puts his desire to kick out Corona above the ideal of building or affirming institutions.

True, scoundrels must be removed.

But is honesty so dear, or cleanliness so sweet, as to be purchased at the price of destruction of institutions?

Corona will go, and so will Noy. But institutions are supposed to endure.

Maybe not in the Philippines. Every so often, we have a new Cosntitution (Five in a hundred years – Malolos, 1935, 1973, Freedom, 1987). Every so often, the elite want to display some “people power”.

We keep pushing the reset button. Lagi na lang nag-uulitan. Instead of supporting existing institutions, we keep trying to recreate them.

Napapag-usapan ang pangmatagalan.

Ito naman ang pangmatagalan na issue ukol sa mga peryodistang testigo.

We all agree that journalists, including Marites Vitug, have no personal knowledge; that they gather info from their sources.

My problem here is the bigger picture regarding their (Ellen’s) profession.

What if the source wants to remain confidential? Will Vitug be forced to reveal her sources? We will have a case similar to Judith Miller of the New York Times, when she refused to reveal her sources about the Valerie Plame affair, and chose instead to spend 85 days in jail.

What if the source wants to remain confidential, but the publisher reveals? Then the source can sue for compensatory damages. That was the case of

COHEN v. COWLES MEDIA CO (Minneapolis Star)., 501 U.S. 663 (1991)

During the 1982 Minnesota gubernatorial race, petitioner Cohen, who was associated with one party’s campaign, gave court records concerning another party’s candidate for Lieutenant Governor to respondent publishers’ newspapers after receiving a promise of confidentiality from their reporters. Nonetheless, the papers identified him in their stories, and he was fired from his job. He filed suit against respondents in state court, alleging, among other things, a breach of contract. The court rejected respondents’ argument that the First Amendment barred the suit, and a jury awarded him, inter alia, compensatory damages. The State Court of Appeals affirmed, but the State Supreme Court reversed.

The Supreme Court of the United States reversed the State Supreme Court, and remanded the case for further proceedings to determine damages.

So we have two examples here, the case of Judith Miller, who wanted to honor her promise, and the Minneapolis Star, which wanted the truth to be revealed, or some such. Either can argue that theirs is the higher ideal – (1) revealing the source, for a more complete story (Minneapolis Star), or (2) refusing to disclose the source, because she (Judith Miller) gave her word.

The Minneapolis Star invoked the First Amendment (Freedom of Speech). But the Supreme Court held that allowing a damages suit

“is no more than the incidental, and constitutionally insignificant, consequence of applying to the press a generally applicable law that requires those who make certain kinds of promises to keep them.

Delaying tactic daw, noong gusto ni Cuevas ng pre-trial. Ngayon, reconsider si Enrile, pre-trial muna daw.

A pre-trial is not a delaying tactic, but is meant to actually abbreviate the proceedings. In fact, it is mandatory in civil trials. If you do not appear for the pre-trial, you are declared as in default. (parang hindi nag-file ng answer).

Sec. 2. Nature and purpose.

The pre-trial is mandatory. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

(h) The advisability or necessity of suspending the proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action.

Note letter (d). If the party admits the document, or admits what a witness will testify to, then there will be no need to present the witness or the document. That saves time and effort on the part of the other party.

That is what Cuevas said in the presentation of Kim Henares. Authenticity lang ba? Okay, we admit the ITRs are authentic. Tapos na, huwag niyo nang isalang pa yang witness na yan. Aminado na namin.

The problem is that Arthur Lim and Tupas were not trying to win the case in court, they were trying to score points with the gallery. They wanted Henares to comment on the ITR. But Henares is was not being presented as an expert witness. She was being presented as a mere authenticating witness.

Gusto nila Lim na madining ng gallery ang “Ito lang po ang kinita ni Corona, napakaliit po, blah blah blah.”

As Enrile said, the best evidence is the document. Ano ang testimonya mo, ang pagbabasa ng ITR? Eh marunong din kaming magbasa. I-sumite mo na lang ang ITR, bahala na ang husgadong magsuri.

So if a pre-trial is held, we will know which side actually wants to prolong the proceedings. I predict that Cuevas will want to admit many of the obvious documents of the prosecution – appointment papers of Corona, SALN, ITR, etc. On the decisions, Cuevas will say the best evidence is the decision itself, as Enrile and Arroyo have said.

Tupas will hem and haw, because he wants the shock and chismis effect of a witness taking the stand and blurting out some fact or other to be commented upon, dissected, and analyzed in the media, blogs, and coffee shops.

If you reduce the witnesses, you reduce air time. That is disadvantageous to one who is playing to the gallery.

So mag pre-trial tayo, nang magkaalaman.