GUILTY: When the defense acted as prosecutors


The rule is that the prosecution must prove the strength of its case. It cannot rely on the weakness of the defense. But in the historic conviction of Renato C. Corona, it was strangely the defense that ensured that   Corona would be the first officer in Philippines history to be removed from office through impeachment.

The prosecution rested its case solely on Article 2 of the Articles of Impeachment, to wit: that he failed to disclose to the public his statement of Statement of Assets, Liability and Net Worth as required under the Constitution. This could have meant either of two things: one, he did not disclose his SALN as required by law; or two, he was not truthful in his declarations thereat.

At the onset of the trial, the prosecution immediately subpoenaed the former CJ’s SALN that it had alleged, and rightfully at that, should have been made public. This means that the prosecution could not have meant to prove that his declarations in the SALN were untruthful precisely because they had not seen them. This was why they wanted Marites Vitug and Harvey Keh to take the witness stand:  to state that they were denied access to these SALNs.

I reckoned that the Congressmen must have thought that the former CJ would go the way of former Ombudsman Merceditas Gutierres. That is, that he would resign as soon as the articles are filed. But the former CJ did not resign. Confident, perhaps, that the prosecution did not have the goods on him, he opted to wage battle with the prosecutors and Malacañang.

The CJ was right. The prosecution did not have the goods on him. It appears that the prosecution only commenced with its case build-up after the transmittal of the impeachment articles to the Senate.  In fact, they were so excited when the Land Registration Authority provided them with a computer printout of 45 properties allegedly belonging to the former CJ that they run to town with it even before they had the chance to verify the veracity and accuracy of the list.

And for it, they got tremendous flack. While they managed to prove the existence of 11 properties, the damaged has been done. Senators would take turns lambasting them for vilifying the name of the former CJ by revealing raw information to the public rather than to the impeachment court.

After which the prosecution had very little. There was BIR Commissioner Kim Henares who testified that the ex-CJ could not have lawfully acquired his declared property with his declared lawful income alone. But this was declared immaterial because the articles of impeachment did not allege that the ex- CJ amassed ill-gotten wealth.

Then there was the flip-flop in the PAL attendant’s case under Article three. But even if the flip-flop did happen, the Senate was not impressed since this could not be attributable to the CJ alone, the SC being a collegial body. The prosecution then sought to prove that Corona received lots of free trips from PAL through the so-called platinum card. But this too was not allowed. Finally, the prosecution presented Justice Secretary Leila De Lima who unfortunately, did not have personal knowledge on how the former CJ allegedly altered records of court proceedings to make it appear that the majority of the court had already enjoined her from preventing former President GMA from leaving the country. Justice Serreno, in her dissent, claims that this was subject to certain conditions- which had not yet been complied with.

By the time the prosecution had rested, the betting was that the former CJ would be acquitted. But the strangest thing happened: the defense actually picked up the cudgels for the prosecution. First, they summoned Ombudsman Conchita Carpio-Morales and enabled her to present to the impeachment court the AMLAC report detailing that the ex-CJ had US$10-12million in bank deposits. Then the defense flip-flopped and contrary to its initial refusal, allowed the CJ to take the stand. In his opus, the ex-CJ proved what the prosecution could not: that he had US$2.4 Million and about 80 Million pesos in deposits, sums which he did not declare in his SALN. The climax was when the former CJ walked-out of the proceedings after his 3 hour monologue. That was the turning point. Even those who were unsure of the CJ’s guilt could not absolve him lest they themselves earn the public ire.

The rest is history. On the basis of both the testimony of the Ombudsman and the former CJ, and courtesy of the latter’s walkout, the  Senate found Corona guilty. Thank goodness for the defense. It did a splendid job for the prosecution!

Corona’s contemptible performance


Like millions of others, I was glued to the television the other day watching Chief Justice Renato Corona testify in his own impeachment trial.

Everything about last Tuesday was dramatic. First, there was his refusal to take the stand. He then relented and agreed to testify after the Ombudsman had detailed Anti-Money Laundering Council documents indicating that the chief justice had at least $12 million in various accounts. Prior to last Tuesday, his counsels and talking heads assured the public that Corona would “tell all” and would expose the malice of the individuals who falsely testified against him.

On the day itself, there was a meticulous script acted out by “B” actors, who now deserve acting awards. There was the traditional mass officiated by religious leaders closely identified with former President Gloria Arroyo, the usual illegal mass action by court officials and employees, and even a hero’s send-off for the embattled Corona.

At the Senate itself, the script was literally visible: a couple of pages of a monologue read out by Corona himself, a major deviation from ordinary court proceedings where witnesses are never allowed to deliver opening statements. This was a very carefully written script. Its writers knew that the opus would be allowed by a court that has repeatedly declared that it would respect the magistrate if and when he takes the stand. More importantly, its writers knew that the people would be watching.

And boy, what a show it turned out to be!

The scripted monologue itself was pathetic. Not only was it very poorly written, it was also bereft of the truth that Corona promised the nation. Half of it was mud thrown at the President, Ronald Llamas, and even Franklin Drilon. The other half was about the dirty laundry of the Basas.  Was Corona unmindful that his own children and wife were members of the same clan? The Senate President repeatedly asked him if he was finished, but he went on with his litany on matters, which were irrelevant and immaterial. And when he finally addressed the issue leveled against him by the Ombudsman, he resorted to a negative pregnant: the Ombudsman was lying but he admits having dollar deposits which according to him, are absolutely confidential and need not be declared in his SALN.

Prior to his appearance, a little known employee of the BIR, of all agencies, which the chief justice himself quoted in his monologue, opined that dollar deposits do not have to be disclosed in the SALN.

After which, he resorted to a conditional waiver of the secrecy of his dollar and pesos deposits, which takes effect only if and when the 188 congressmen who voted to impeach him and Franklin Drilon sign similar waivers. Talk of a cheap trick!

And after an excruciating two hours of vilification and self-pontification, he states that he is the chief justice of the Republic and leaves the stand.

I still can’t decide which was more offensive: his litany of mud or his walkout. I ask this because he is not just a very high official sought to be removed from his office. He is the chief justice if the land and as such, should personify the prestige and dignity of the legal profession. By resorting to mudslinging at the stand, Corona broke all rules of evidence that were developed over time to ascertain precisely the truth of controverted matters. And by walking out, he has shown contempt not only for the Senate sitting as an impeachment court, but to the rule of law itself, which as chief justice, he should be the first to uphold. If his departure were really for medical reasons, why did he not ask for leave of court? That would have been easy and would certainly have been granted on humanitarian grounds. It does not help that he was captured on camera clearly intent on leaving the Senate on cue. Clearly, what he and his advisers did not anticipate was that the Senate President would order the lock-out of the Senate to prevent him from leaving.

As I write this, it has become apparent that the chief justice will not return to the Senate as he is reportedly in the intensive care unit. I do not question his state of health as that is now between him and his creator. What I condemn is his performance that degraded the legal profession and eroded the people’s trust in the rule of law.

At the very least, Corona has proven to all that he does not deserve to remain as chief justice!

The defense’s debacle


The prosecutors in the on-going impeachment trial of Chief Justice Renato Corona owe the defense a mountain of gratitude. After all, it was the defense that proved what the prosecutors could not:  That the chief justice has dollar deposits in the amount of— at least—$12 million, which he failed to disclose in his Statement of Assets, Liabilities and Net Worth.

 

What on earth was the defense thinking when it called on the Ombudsman as its own witness? Perhaps they thought that the Ombudsman would not honor the subpoena sent to her to testify in the Senate. But why would she ignore such a subpoena when as a retired Supreme Court magistrate, she knows all too well that unlike contempt issued by the courts, a contempt imposed by the legislature may be for a lifetime. Did they think that the Ombudsman would not disclose details of her ongoing investigation, or at least not the documents tending to show the existence of the CJ’s dollar deposits, because to disclose these would be to violate the existing law protecting the confidentiality of dollar deposits without a court order?

 

But why would the Ombudsman not disclose this? To begin with, the secrecy of dollar deposits is only provided for by a law, while the duty of the Ombudsman to “investigate public official” for “illegal, unjust, improper, or inefficient” acts and its power to “request any government agency for assistance and information necessary  x x x  and to examine, if necessary, pertinent records and documents” are both provided for by the Constitution. Pursuant to the principle of hierarchy of laws, the Constitutional provisions on the Ombudsman prevail over the prohibition of the FCDU law.

 

What makes the defense act even more perplexing is that from the declarations of the Ombudsman herself, she apparently had no intention of taking the stand in the ongoing trial. When asked by Senator Miriam Defensor Santiago to what purpose the Ombudsman could investigate an impeachable officer such as the CJ, the Ombudsman responded that is was only for the purpose of “recommending to Congress the filing of an impeachment complaint after the one-year ban in December of this year.” Ergo, her investigation, if warranted, would have resulted only in a letter to the Speaker of the House perhaps recommending a second impeachment proceeding against the chief justice. This implies that she did not see taking the stand as an option.

 

So the question is: Why did they do it?

 

Lawyer Jose Roy III said it was upon the express order of Corona himself, to know what the Ombudsman has. I guess the defense achieved its purpose—except that in the process, they crucified their client.

 

The defense, after realizing that the Ombudsman dropped a bomb shell against the chief justice, is now saying that the information divulged are: one, not accurate, because the amounts were not verified by the Ombudsman herself; and two, in any case, illegally obtained and hence inadmissible.

 

Such are admirable attempts to contain the consequences of their self-inflicted damage. But these are utterly bereft of merit. To begin with, the Ombudsman divulged the documents only insofar as it forms part of her ongoing investigation about an alleged dollar deposit undeclared by the chief justice in his SALN. Certainly, this was what complainants Rissa Hontiveros-Baraquel et al alleged in their complaint. Moreover, although she has not personally verified the accuracy of the accounts, she is still entitled to presume that a very specialized agency such as the Anti-Money Laundering Council would be discharging its functions regularly. If at all, the AMLC cannot be faulted for heeding the constitutionally mandated power of the Ombudsman to solicit its assistance. Instead, it should perhaps be faulted for not conducting its own investigation even before the impeachment trial.

 

Moreover, the chief justice himself, in the form prescribed for the SALN,  has expressly authorized the “ obtain and secure from all appropriate government agencies, x x x such documents that may show my assets, liabilities, net worth, business interests and financial connections.” How can he now complain about the acts of the Ombudsman?

 

With the testimony of the Ombudsman,  Corona has put the last nail in his own coffin. Ironically, we have the defense to thank for this.

 

The $10 million question


At long last, the die is cast. After repeatedly saying that Chief Justice Renato Corona need not take the witness stand in the impeachment trial against him, his counsel, out of the blue, assured the Senate that the CJ will take the witness stand.

The promise though appeared to have a condition: that is, that the Complainants against the CJ in a pending complaint in the Ombudsman, to wit, former Akbayan Representative Risa Hontiveros-Baraquel and Rep. Walden Bello, together with Harvey Keh, and no less than Ombudsman Conchita Carpio-Morales; should be subpoenaed by the Senate to appear purportedly as hostile witnesses in the impeachment trial. After which, the CJ’s counsel promised that his client will take the stand to rebut what these witnesses may say. This is interesting. While the nation has been left wondering about an alleged 700,0000 dollar account with PS Bank allegedly belonging to the CJ and yet undeclared in his SALN,  the nation gasped with horror at the possibility that the CJ may have a lot more in his  dollar accounts. In fact, the amount is mind-boggling: 10 Million or at least 420 Million pesos at today’s exchange rate.

There’s an obvious difference between the circumstances behind the 700,000-dollar placement and this later 10 Million deposit. In the case of the smaller amount, it was the Prosecution that asked the Court to subpoena PS bank to bring and present to the Court the documentary evidence for such an account. When asked by the Court where the Prosecution obtained its information about the account, the Prosecution panel claimed that a “small lady” in the gallery of the Senate gave it to Rep. Reynaldo Umali. It would later turn out that Rep. Jorge Banal of Quezon City had previously gone to the Katipunan branch of PS Bank to inquire about this 700,000-dollar account. Rep. Banal in turn, claimed that an unknown person left the documents at his residence.

The Supreme Court then came to the rescue of the embattled CJ when in a petition filed by PS Bank, the Court issued an indefinite temporary restraining order which effectively stopped the impeachment court from compelling the bank to produce all relevant documents relative to the $700,000 account. This time, the $10 Million dollar deposit was not even by reason of any document, even information, provided by the Prosecutors. Instead, what is  clear on the basis of newspaper reports are: One, as alleged by veteran Journalist Ellen Tordesillas in a story published by Vera files, the Ombudsman allegedly had asked the Anti-Money Laundering Council to provide her with a copy of the documents establishing that the CJ has an undisclosed amount in  dollar deposits in  undisclosed banks. This, according to Tordesillas, the Ombudsman did in response to the complaint filed by Hontiveros et al.

Two, in a story carried exclusively by the Philippine Daily Inquirer, the CJ was allegedly asked by the Ombudsman to explain in writing within 72 hours how he acquired several peso and dollar accounts, described as  “grossly disproportionate” to his salary. Quoting from Carpio’s order, the PDI reported that the CJ was allegedly asked to explain, among others, how he acquired dollar deposits with an “aggregate amount of at least US$10,000,000”.

It was because of this second story that Senators Miriam Defensor-Santiago opined that the Ombudsman could conduct a parallel investigation with the impeachment court on the CJ’s concealed dollar deposits. Senator  Edgardo Angara , for his part, said that the impeachment court could accept evidence emanating from the Ombudsman in this regard. The legal basis for both Senators’ opinions is found in the Ombudsman law, which provides that the said office may investigate even impeachable officers for the purpose of recommending to Congress the initiation of impeachment against them.

Apparently, this was the game changer. While the CJ, through his lawyers, lawyers ignored the show cause letter of the Ombudsman arguing that the said office has no jurisdiction over an impeachable officer such as the Chief Justice, the results of such an investigation was nonetheless, the reason why the CJ will now take the stand. According to his counsel last Tuesday evening, this was to “rebut the testimonies” of Hontiveros and the Ombudsman et al, which presumably, will be adverse to the CJ. Obviously the nation will be glued to the proceedings specially when the Ombudsman takes the stand, which she has said she will. And the obvious question will no longer be whether such a huge deposit exists, which for all intents and purposes, appear to be admitted. The issue now is why he did not declare such an amount and how he acquired this huge sum.

The plot thickens. It’s definitely more fun in the Philippines!

US neutrality in Scarborough: blessing or bane?


I’m not at all surprised that Uncle Sam opted to be neutral in our on-going row with China on the Scarborough Shoal. Fact is -other than maintaining freedom of navigation in the South China Sea; it is not to the national interest of the United States to engage its biggest creditor in any controversy. Furthermore, since it gave us “independence”, the US has never recognized our claims to the waters found in the metes and bounds of the Treaty of Paris. They have argued consistently that what it bought from the Spaniards was the land territory of the Philippines, never mind that the treaty itself uses the qualifier “archipelago”, which in ordinary parlance refers to islands and waters constituting a unified whole. In fact, not too long ago, the Americans already made it very clear that notwithstanding the Mutual Defense Pact between the Philippines and the United States, the later would not come to our rescue if an armed conflict should erupt between China and us over the Spratly’s. And why would they? Our problem, simply put is – Uncle Sam has never bought our argument that the Spratly’s and the Scarborough are ours.

The reason for the American non-recognition of our water boundaries has to do with the fact that to date, it has not become a party to the United Nations Law of the Sea (UNCLOS). It is logical hence for it not to give recognition to sovereign rights in the Exclusive Economic Zone (EEZ), a right provided for the first time in the UNCLOS, when it has not itself consented to recognize such a regime. This is sad given that the UNCLOS provisions on the EEZ and the continental shelf were either borrowed from contemporary US practice, or triggered by them.For instance, while the US has not recognized the EEZ, it has instead recognized “fishing rights” over a body of water with the same scope and breadth of the EEZ, or up to 200 nautical miles from a country’s baselines. . Anent the legal regime applicable to the continental shelf -where bulk of newly found oil and natural gas deposits have been found – it was in fact the American “Truman “ declaration that asserted the exercise of American sovereignty over its “natural extension of the landmass” that triggered the recognition of sovereign rights over the continental shelf.This is not to say that the US will forever be neutral in the West Philippines Sea controversy. As American authorities have stated, their interest is to maintain freedom of navigation in the sea that carries at least 30 percent of all sea navigation from north to south in this part of our woods. Certainly, any act on the part of China that would impede this freedom of navigation will necessarily be a threat to the national interests of the United States in the region.

In any case, it was ill advised of our policy makers to appeal to the United States for military assistance in the resolution of this dispute. One, the use of force under international law, sans a UN Security Council Chapter 7 resolution or unless done in self-defense- is illegal under international law. Full stop. What were our policy makers thinking? Did they think that war could solve this controversy?

Certainly not.

Moreover some politicians in China would want nothing less than an escalation of the controversy. This would had been inevitable had the United States come to our recue. China is today undergoing a political crisis of sorts when its rising political star, Bo Xilai, recently figured in a scandal. The heir apparent to the highest post in the Chinese politburo was recently fired and his wife ordered to be investigated in connection with the murder an Englishman. What has been unfolding now in China is a race to fill in the vacuum created by Bo’s expulsion from the politburo. Like our own politicians who can smell a great political opportunity, it would have been a disaster had the US decided on a more aggressive role in the ongoing spat. This would have given some Chinese politicians tremendous opportunity to invoke Chinese nationalism against “US meddling”. The result could have led to a military confrontation reminiscent of the Vietnam War of the 1970’s with the modification that the South China Sea and the Philippines may be the theatre of war. Thank goodness hence that Uncle Sam decided in the manner that it did. The alternative would have been all-out war.

In any case, I reiterate that because the law, the UNCLOS, is on our side, the time is ripe to submit this controversy to the mandatory and compulsory jurisdiction of the International Tribunal on the Law of the Sea (ITLOS).