AT the time of this writing, we are on the second witness and the cross-examination is on its second day. That is what happens when you allow lawyers to have a run of the show! In fact, the proceedings are becoming tedious and drawn out.
It might help our senators to view clips of Bill Clinton’s trial years ago. There were no lengthy direct examinations and even lengthier cross-examinations. But the job was done, fairly and credibly. I had a look at the United States Senate rules in impeachment proceedings and, unlike the unfortunately ambiguous provision in our Constitution, they clearly provide that two-thirds of senators present are required to convict.
So, the question on everyone's mind is whether there is a way to abbreviate the proceedings and still maintain their fairness. And there certainly are, in fact, different ways. One would have been at pretrial when certain facts, unassailable by both parties, could have been stipulated. This would have obviated the need of proof. But it seems the only fact that both parties were willing to stipulate is the name of the respondent, Vice President Sara Duterte. An equally obvious way is to go for the jugular: keep to the substance, cut the dramatics short, and silence those with an irresistible urge to perorate!
The adversarial system — which is what Philippine courts inherited from the Americans — works on the premise that fairness is best served when the parties are at liberty to present the facts and argue the law most favorable to their case. The theory seems to be good, but already, one eminent jurist wryly remarked that he could not fathom how truth could be reached with both parties braced to lie to their teeth! That might have been putting it a bit too strongly, but the point is well-made.
In civil law jurisdictions, the procedure is inquisitorial, which should not mean the dreaded torture chambers that popular lore tells of the Church's Inquisition, but a system of adjudication that places the judge in full control of the proceedings. It is he who determines which witnesses he wishes to listen to and the documents and objects he wishes to examine. The lawyers assist, but they do not control. In fact, most of the questioning is done by the judge or, as is more commonly the case, a panel of judges. This is the procedure that the Church's tribunals — whether in matrimonial cases or with respect to other issues submitted for canonical adjudication — follow, and no decent professor of legal history and judicial theory will claim that they are any less fair than courts that go by the dramatics of the adversarial system.
With respect to the impeachment trial, it might help for a committee of the Senate — composed of the lawyers and their more thoughtful companions (clearly excluding the clowns and the thespian-wannabes!) — to determine what evidence would be vital for the Senate to receive, whether testimonial, documentary and object. It will also go a long way to limit objections to those questions that directly and distinctly affect due process. Objections like "already answered" and "the document is the best evidence" should no longer be allowed because we should be able to trust — or can we? — that the senators know what should convince and what does not.
I have the impression that both the prosecution and defense are equally succumbing to a misleading allure: obsession with trees and losing sight of the forest.
The respondent is not on trial under any specific article of the Revised Penal Code, nor of any special penal law. So, the House managers should desist from proving elements of crimes as if they were prosecuting an ordinary criminal action. And the defense should avoid barking at the wrong tree — and here, the analogy serves a dual purpose. It is for prosecutors in criminal actions to prove the presence of all elements of a specific offense beyond reasonable doubt, and it is for the defense to punch holes in the prosecution's case.
Rather, what the House managers should endeavor to show is the forest of unfitness for high office captured by such global terms as "culpable violation of the constitution" and "betrayal of public trust." And no matter that the defense may chop at trees, they will not be able to mow down an entire forest.
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
