THE Senate, it seems, will see a division of the house to determine whether to cause, by compulsory process, specifically through a subpoena duces tecum, the bank statements of the Duterte-Carpio couple to be brought before it. When the issue was debated before the Senate last week, counsel for the defense apparently chose to anchor his argument on the evils of what has been called a “fishing expedition.” It is one of those charming expressions that have become cliches in legal language — referring to a situation where the prosecution (or the complainant) does not really have the evidence, and invokes the offices of the court to “fish” for helpful evidence by the compulsory attendance of witnesses or the presentation of documents and objects.
In other words, a “fishing expedition” is what happens when the prosecution has utterly nothing to go by and hopes, by the coercive power of the court, to fish for what it may gainfully use from what the accused or the defendant himself is required to produce.
In its simplest terms, a “fishing expedition” is wrong because it is not the accused who must furnish evidence that the prosecution can use against him, but the prosecution that must have a case against the accused even before the information is filed in court. It is quite a different story, however, when the prosecution has had a glimpse of inculpatory evidence and is stonewalled by the accused, who invokes protective provisions to keep the evidence from reaching the bar of accountability. If we wish to go by the metaphor of fishing, it is not the case of throwing the line blindly in, in the hope that some gullible fish may take the bait, but rather, of hauling the fish in that has already been sighted!
And all this is court-speak — the language of litigation, the labyrinthine ways of established rules of procedure and of evidence. It is a trap into which the Senate may be so easily lured to take the term “court” literally and to act as if it were a court of law, governed by a regular court’s rules of evidence and the morass of jurisprudence with which wily and shrewd lawyers are all too familiar.
But what impeachment proceedings are should be at the very heart of the debate, and for our senators to arrive at an intelligent decision about whether to cause the production of the documents the House managers wish brought before the Senate, it will be well for them to understand what impeachment was meant to be — and that means going back to the idea of the Founding Fathers. This is not subservience to colonialism but a mere recognition of the historical and juridical fact that the provisions of our Constitution on impeachment are a progeny of the US Constitution.
Alexander Hamilton, in The Federalist Papers No. 65 (March 7, 1788), wrote:
“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature the which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
“The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
“The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.
“What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of national inquest into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain, it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?”
The vice president is on trial for “injuries done immediately to the society itself” — and the devices by which bank deposits and concealed wealth are kept from scrutiny should have no application in proceedings by an elected branch of government that constitute a “national inquest” into her conduct as the second highest official of the land. The impeachment process cannot be “the bridle in the hands of the legislative body upon the executive servants of the government” that it was meant to be if the reins are not completely in the Senate’s hands — and this can happen when the Senate itself, dominated by the unwise, refuse to take hold of them in utter cowardice or condemnable partisanship and execrable partiality!
Something like this happened at the trial of then-president Joseph Estrada when the issue came before the Senate about opening the now-notorious “second envelope.” It was evidence the House managers had introduced, but John Osmeña pre-empted the presiding officer, Chief Justice Hilario Davide, Jr., and asked for a division of the house that resulted in a refusal to open the evidence. The public did not allow that perfidious suppression of evidence to go undeterred — and they took to the streets. The rest is history. We should not wait for tumultuous history to repeat itself!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
