Saturday, March 17, 2012


Joaquin G. Bernas, S.J.
Beating a Dead Horse. Monday last week the much awaited presentation of the defense began. The public, I believe, expected a possible dramatic beginning but nothing of that sort happened. Instead the chief defense counsel spent much time in what eventually turned out to be a case of beating a dead horse. He insisted that due process should have characterized the formulation and submission of the articles of impeachment but that no such due process was observed. Never mind that the twenty-six days that preceded his argument had provided every opportunity for due process in the Senate.
Whether or not there was due process in the House will need proof. The problem, however, is that trying to prove absence of due process will have to cope with one of what I would call the “facts of life” that are accepted in House proceedings particularly in the preparation of the records of Congress. According to jurisprudence, when there is conflict between, on the one hand, what is found in the Record and, on the other, some extraneous evidence such as oral testimony or newspaper reports, what is stated in the Record is accepted as truth unless it is reprobated by the House itself. In the current case, the Record of the House says that all 188 members who signed the impeachment complaint appeared one by one before the Secretary General and swore in writing that they had read the complaint and considered its contents as true. The Speaker himself, instead of reprobating it, has affirmed its correctness. That should be the end of it, no matter what the non-signers of the articles of impeachment might say. But that would not be the end of due process because due process should also characterize the Senate trial.
Sidelight about me. An interesting sidelight for me are media reports that I declined to testify in the Corona trial. The report is not entirely accurate because nobody asked me to testify. I only saw my name listed as witness for the defense in media reports. In fact, one of the senior lawyers for the defense told me that they put my name in the list only when they were required to present a list of witnesses. A formality, in other words.
If invited, however, whether for or against, will I testify? My clear preference would be “No.” I prefer being free to write legal opinions which can be for or against either side of the impeachment debate. Testifying as witness for the defense would tag me as being only for the defense. In fact, my views on what are happening in the impeachment trial may be found in my Inquirer Monday columns and in my JGBernasSJBlogs. Some of them do not make everybody happy on either side of the political divide.
Discipline in the House. I am sure people are now wondering what the future of Congressman Toby Tiangco will be after his testimony about the circumstances surrounding the formulation of the articles of impeachment. Will he be disciplined by the House?
Let me just say that the House has the power to suspend or expel a member for “disorderly behavior.” Disorderly behavior is not defined in the Constitution. The House alone determines what behavior can be considered disorderly. The vote needed to suspend or expel a member is two-thirds of all the members.
Was the behavior of Congressman Tiangco disorderly? Your guess of what the House members might think is as good as mine.
Lessons from the ongoing proceeding. Listening to the impeachment proceeding last week and the questioning and cross-examination about the contents of the SALN declaration made by the Chief Justice I came to the conclusion that, if you really want to play it safe, you need the help of a lawyer and an accountant to fill out the form. Or, as one retired public official familiar with both the old and the new SALN law said, those entering public service for the first time now should undergo a seminar on how to accomplish the SALN report! Better yet, let all the confusing requirements be simplified.
Another thing I have learned is that members of the judiciary and of related public offices do not do very badly at all in terms of what they get from government for their work. It may also be noted that, although allowances are given (and, surprise, surprise, rather generously) for official purposes, the law does not require strict accounting for what they receive as allowances. I am speaking, of course, of the higher levels of the judiciary and related offices such as the Electoral Tribunals. I am not sure if what the public is seeing in the impeachment process will encourage more people to join the lower levels of the judiciary where there are many courts which have remained vacant.
19 March 2012

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