Technicalities matter

The past days have seen loud calls from certain sectors in our society (I refuse to call it “popular” or “numerous” calls, as that is certainly far from certain) for a distancing from the so-called “technical” or “legal” or “judicial” approach to the present impeachment proceedings. Such are misguided at most and certainly not thought through as thoroughly as needed at the least. While indeed there may be merit in a more “liberal” interpretation of the rules, this nevertheless presupposes the application of rules itself. The following, partly due to time constraints, constitute mere immediate thoughts and jottings on the subject, and certainly not to be treated as a comprehensive, deliberate reflection (or even a completely reviewed draft) on the matter. Nevertheless, it is hoped that it stimulates a more studied approach on the issue of the application of procedural rules on the present impeachment trial of Chief Justice Corona.

The importance of technicalities

What some call "technicalities" (i.e., the rules of court) are but means to attain the "truth" that people say they want. It must be emphasized that lawyers don't resort to rules because they want to confuse people. They resort to those rules because experience and logic (and the rules themselves being the product of experience and logic, including the evidentiary rules in full display currently at the impeachment proceedings) have shown that this is the objective, impartial way to arrive at that truth against the mere passions of the crowd.

Some lawyers (and not a few crusading journalists) have harped on not letting the rules get in the way of finding the truth. But the rules, the evidentiary rules, were precisely there to help people arrive at that truth. Who is there to say that a particular document or testimony is to be admitted or is irrelevant? What qualification does any individual lawyer or judge (including senator judges) have over others that would make their consideration paramount over all? The point is, if anybody has found a better way to determine admissible evidence then perhaps they should tell us what it is so we can replace our present rules on the matter. There is a reason why the rules of court (which includes evidentiary rules) are so important is because it is objective. It insulates us from the passing passions of the moment. And people should remember this: the rules are there precisely for situations that we have at this moment. Let me repeat: the rules are there precisely for cases like the impeachment trial that we have now – when there are loud, angry calls that have ostensibly no presence of doubt that an individual should be punished for a crime he is supposed to have committed.

The rules are helpful in ordinary cases, when there relatively cooler heads that are fighting over an issue or rights. But the rules simply become necessary when people are terrifyingly certain that a fellow human being must be punished for an act he is alleged to have done. Because it is at that point that we then must exercise restraint and the rules are there to help us exercise that restraint.

Furthermore, people should not confuse the matter of admissible evidence with the standard of evidence or proof necessary to attain judgment. The latter we shall tackle further below. As to the former, it merely means or refers to the crux of the issue of the past days: the application of the rules of court as to the admissibility of evidence. Again, the rules are not mere technicalities so that lawyers can feel superior about themselves. The rules are there to guide us in knowing what document or testimony is relevant, admissible, truthful, or not reliable. Not all documents are correct copies or relevant, some witnesses may only be indulging in gossip or are biased – the rules are there to help us sift through the evidence that should be considered and that which should be discarded. Why the rules? Because unlike the lawyers and the senator judges, we can be more or less (more or less because nothing is perfect) assured that the rules will be more objective, impartial, and not swayed by the need for popularity, pressure, or personal ambition.

Note that the US impeachment proceedings (which proceeds from their Constitution, upon which our own Constitution closely relates) makes unabashed reference to “federal court, common law principles and the precedents of past impeachment trials” in relation to procedure. The reason for this, according to one commentator, is that: “the main functions of rules of evidence in criminal cases is to shield juries from potentially prejudicial or unreliable material, a protection that is less important in the Senate, whose members have the sophistication to give due weight to ‘hearsay’ evidence or other matters. Unlike regular jurors, senators aren't prohibited from reading newspapers or discussing the case; presumably they have already been exposed to much of the evidence. As a general matter, the Senate in the past has tended to err on the side of including evidence.”

Besides, the House Prosecution Panel very well knew the rules and what they were getting into when they filed the articles of impeachment. We know this because the Rules of Court have been there since those House members were in law school, the Senate Rules on Impeachment (particularly Article VI, which specifically makes reference to the recourse to the Rules of Court) have been there since the impeachment proceedings of former President Joseph Estrada, and the Constitution has been there since 1987. Which means that the responsible, intelligent, and mature manner of going about the impeachment proceedings is to have thoroughly prepared as much as possible, including having full knowledge of the rules, before the impeachment complaint was filed. To say that one’s litigation skills are “rusty” or that one is “not as experienced” is not an excuse. It only meant that the House Prosecution Panel, considering the tax money they will use up, had the responsibility to compensate for whatever inadequacies they may feel they have by simply working and studying harder. If they say that they didn’t know that it will be this difficult is to beg the question: why didn’t they know? In any event, nobody forced them (or at least none that we know of) to file the impeachment complaint now rather than later when they could have been (possibly) more prepared.

We also must consider: how fair is to the other party that just because the House Prosecution Panel are having difficulties that the rules should be changed mid-proceedings? Due process and the equal protection principles alone, which is applicable to all – bar none – frowns on this tact.

Political but judicial as well; Proof beyond reasonable doubt

The line has been taken that the impeachment proceedings are political in nature and not necessarily judicial. That is wrong. More accurately, they are both. They certainly call on the judgment of each of the individual senator judges. And it must be emphasized that the reason why under the US Constitution (upon which our Constitution parallels) it is the Senate that rules on the impeachment trial and not a judicial body like the Supreme Court is not to belittle the judicial characteristics of the latter but simply because, unlike the Supreme Court, the members of the Senate were not appointed by the President (see Alexander Hamilton, Federalist Papers, No. 65). So, again, to say it is political is true but it should not be at the expense of the judicial aspect of the proceedings. Emphasis must be made at this point that, as mentioned above, commentators are clear in declaring that, historically, US impeachment proceedings tended to rely on evidence in case of doubt. And so, therefore, while a senator judge must ultimately rely on his individual judgment, it is respectfully proffered that such judgment (like “consciences” when dealing with the subject of morality) must be properly formed. And that formation would necessarily involve the rules. What do those rules say?

The main charge essentially is that CJ Corona committed “culpable violation of the constitution” or "betrayal of public trust". These phrases are found in Article XI of the Constitution. Legal commentators have been clear that the former term is supposed to mean "the deliberate and wrongful breach of the Constitution." Furthermore, it has been stated by legal experts that "violation of the Constitution made unintentionally, in good faith, and mere mistakes in the proper construction of the Constitution do not constitute an impeachable offense." The picture that we get from this is the need for a deliberate wrongful act. In short, malice. It must also be considered that "culpable violation of the Constitution" and "betrayal of public trust" are placed alongside the crimes of "treason, bribery, graft and corruption, other high crimes." To be noted as well that impeachment convictions under the US constitution are those for the acts of "treason, bribery or other high crimes or misdemeanors."

Let us shift then to the Rules of Procedure on Impeachment Trials in the Senate. Article I immediately refers to “prosecutors”. Article VII refers to a “plea of guilty”. Article XXI talks of verdicts of “guilty or not guilty,” as well as "acquittal" or "conviction" (incidentally, Article XI of the Constitution also makes use of the word "conviction").

All the foregoing evokes the picture of a criminal proceeding. I am not saying that the impeachment proceedings are a purely criminal proceeding. I am pointing to the fact that it evokes a criminal proceeding, for which the senator judges are well invited to frame their judgments around. Some legal commentators seek to categorize (and in the process belittle) the impeachment proceedings as not criminal in nature because apparently CJ Corona is not sought to be “imprisoned” or “fined” but rather merely “removed from office.” That argument is a farce. The office is not merely any office. It is the office of the Chief Justice of the Supreme Court of the Philippines. It is very sad indeed if one cannot grasp the gravity of that. Furthermore, this is not to mention the fact that the impeachment proceedings could potentially ruin a man’s career, reputation, life, or even place in history. If one cannot appreciate the immensity of that, then one’s sense of compassion is very unfortunately non-existent.

In any event, considering that the rules, in its totality, seem to evoke a criminal proceeding, and that the rules itself on the standard of proof is silent on the matter, and considering the gravity and the immensity of the impeachment proceedings and its verdict, then for a senator judge to consider “proof beyond reasonable doubt” as the basis for his or her judgment (or at least as one basis) is not an irresponsible thing to do.

Certainly, this question was very much in the minds of the senator jurors in US President Clinton’s impeachment trial. Senators from both sides of the aisle have believed that “proof beyond reasonable doubt” is a proper standard. Yale Law School professor Charles L. Black Jr. believed that "overwhelming preponderance of the evidence" (which is a higher standard than that for civil or administrative cases) is proper considering "removal by conviction on impeachment is a stunning penalty, the ruin of a life. Even more important it unseats the person the people have deliberately chosen for the office."

-- In fine --

To call for a "non-judicialized" impeachment proceeding sounds nice on paper. But it should definitely limit itself, not to simplify or change the rules mid-stream, or (even worse) refer to an absence of rules, but merely a liberal interpretation of the rules as is needed by the situation. However, it must be emphasized that this is something that judges normally do anyway, as experienced litigators already know, and for which presiding Senator Judge Enrile is fully aware of and frankly is already doing. Otherwise, “non-judicialized” is merely a motherhood statement: warm and fuzzy but one that does not have any root in reality. If there were simpler, better rules around then we should be using them already even for ordinary legal proceedings for the simple reason that due process and equal protection principles demand it.

Interestingly enough, during the impeachment proceedings for then President Estrada, with a House Prosecution Panel that included now retired Justice Antonio Nachura, assisted by private lawyers such as now former Ombudsman and Solicitor General Simeon Marcelo, nobody seemed to have minded then the rules of the proceedings which were practically the same as they are today.

These impeachment proceedings don't need a change of rules. It just needs more hard work and lesser sloppy thinking.