January 6, 2012
Transcript of interview with Sen. Alan Peter S. Cayetano Part 2
ON THE PROCESS OF IMPEACHMENT
People are not only going to look at the result. Sure, there are surveys now. But the survey has to do with the results. Kung ano perception nila sa handling of the case, sa TRO, sa certain individuals like the President and the Chief Justice.
But the surveys have nothing to do with the process, for strengthening of our democracy, for the strengthening of our institutions. And even if they did, we have to ignore that and keep to the principles of impartiality. The constitution is very clear. It shows a process to remove a sitting impeachable official. The Supreme Court is very unique because they had a resolution or decision before that before you can have a magistrate or someone from the judiciary removed, and before you can file cases against them in the Ombudsman, you will have to make an administrative case in the judiciary first. They can easily say that the Chief Justice is impeachable, but although they do not have immunity from suit like the President, they can rule that one cannot file a case in the Ombudsman if he has not been impeached. If that happens, there are a lot of Supreme Court magistrates and justices who still have long terms ahead of them in the Supreme Court. That's why the impeachment process is very important.
16 is an absolute number. 2/3 is an absolute condition for you to be able to remove someone from the office. If you have the majority, but not the two-thirds, there's nothing to stop you to ask for a reprimand or for some sort of political or judicial statement.
Sa kabilang banda, dahil kulang ang mga senador ngayon, kung may walo na boboto na i-acquit, or vote not to remove him, he will not be removed. By saying that, you will not be discussing the merits. That's just discussing the process.
ON SUB-JUDICE RULE ASC:
(Reporter: What's your take on the prosecutor talking about the merits? Do you agree with other senators like Chiz and Ping...?)
It's not a matter of agreeing with the senators, because it's in the rules. It is written there that the senator-judges shall refrain from discussing the merits of the case. In the next paragraph, it says the prosecutors shall likewise refrain from discussing the merits of the case...
Now, this is the difficulty: since it is also political in nature, those who want the Chief Justice impeached also want to build a case with the people. But there is a way to do that. The prosecutors should not be the one to talk.
For me, it's simple. If you want to be a prosecutor, don't talk outside the impeachment court. If you want to talk, then don't be a prosecutor. You can be a spokesman or an individual advocate instead.
Because the impeachment rules, in my interpretation, does not prohibit everyone else from talking about the case. It prohibits the senator-judges for this simple reason: it's important that we're not only impartial, it is also essential that we appear to be impartial.
The prosecutors were included in this to make the case clear for the people. This means that whatever you will say outside the impeachment court should be the same as what you will say inside. But anyone has a tendency to be unguarded with his thoughts outside the court because there is no one to navigate, or to play referee.
That's why the rules are amended that we refrain from talking. Although it's not absolute because refrain simply means "choose not to speak", but the spirit of the rule is clear.
(Reporter: is there a sanction for those proven to have broken the sub judice rule?)
There is no explicit penalty under the rule but of course, direct and indirect contempt is always an available option for the impeachment court. And as I said, the trial technically has not started yet. Pinag -uusapan pa nga yung pre-trial. The rules say that prosecutors cannot speak on the merits of the case outside the impeachment court. Kung gusto nila magsalita, mag-spokesman nalang sila. So mamili nalang sila. Parang kami din, kung gusto ko maging impartial, I can be a judge. Ngayon, kung gusto ng isang senador na magsalita then that senador may resign para pwede makapagsalita. Because if one just inhibits, that senator is already giving up one vote out of the 16 to impeach or the 8 to acquit.
ON QUANTUM OF EVIDENCE
(Reporter: They said that to convict, the Chief Justice has to be proven guilty beyond reasonable doubt.)
That is a debate that is more theoretical. Because in lower courts, the quantum of evidence can be measured. Whether it is by substantial evidence or beyond reasonable doubt, you can appeal it to the higher court.
It has been said by many advocates of check and balance US-style impeachment that you do not need to prove beyond reasonable doubt because it is more of a political rather than a criminal proceeding. However, there have been cases in the past, particularly administrative, wherein the Supreme Court said that when the penalty is removal, it is also criminal in nature because a right is being taken away from that official, in this case, his right or privilege to that public office.
If it can be proven beyond reasonable doubt, that would be better. But what is the quantum of evidence as far as reasonable doubt is the goal? That will be left to the senators. My personal feeling is that the quantum of evidence, whether you say substantial evidence or beyond reasonable doubt, is more theoretical because, for a senator, I think it will be simple: guilty or not guilty.
The bigger challenge for the senator-judges now is not only in identifying the quantum of evidence, but for us to be impartial. Will he/she vote in accordance with his/her conscience in accordance with the evidence, or will he/she vote in political lines?
(Reporter: Will this be subject to discussion in caucus?)
Possible. But any agreement will again be left to the conscience of the individual senators. We can all agree to the level that will qualify something as circumstantial evidence and the level that will qualify something as will prove guilt beyond reasonable doubt. But when it is my turn to vote, I will not allow any senator to convince me that it qualifies as beyond reasonable doubt, when for me it does not. It's a little bit more theoretical.
What's important is that first, the charges can be articulated and can be very clear both to the public and to the senate; and, number two, the evidence will also be clear.
(Reporter: will PDAF play a big role in the impeachment?)
Again, theoretically, any political accommodation by the Malacanang is not evidence at all. But again, this is where the humanity, the weaknesses of every person will come in. That's why in the same manner, when we were fighting against the previous administration, we felt that pork barrel allocations, appointments, and other accommodations were being used in the impeachment process to protect President Arroyo.
To be fair to the present administration, there have been no offers of special treatment in whatever form in exchange for votes. And I hope it will continue that way. I can only speak for myself.
(Reporter: is it right that the Palace is already looking for a replacement?)
I can only speculate on why that news was released. It could be something that they're very confident in the evidence; they could also be very confident in the surveys; they could also be confident in the numbers. But that is also all based on their analysis.
But for me, I believe that once a senator puts on the robe and once it is time to vote, we should be able to transform from a politician into a statesman.
(Reporter: Are those under the President allowed to comment on the impeachment?)
A Secretary is the alter-ego of the President. Now, the rules only say that the senator judges or the prosecutors cannot or should refrain to comment on the merit. That means the media: columnists, anchors, commentators and even cabinet officials can (under the rule).
We have other laws that may cover these acts like the ethical standards of Government officials. I haven't reviewed that whether or not there is a violation there though.
The separation of powers is one doctrine but on another hand we also have the concept of checks and balances. Those two interplay with each other. Just like in the case of separation of the church and state, the doctrine is clear and the line is distinct, but it is also clear for the Church when there is already a moral issue at hand.
So in this case, there's a separation of powers but there's also a check and balance and there's nothing to prohibit the president from initiating an impeachment (of an impeachable official). He was successful in his advocacy of getting the Ombudsman replaced, and when this happened there were a lot of things that raised eyebrows whether or not he should have initiated that or not.
ON THE ISSUE OF 3 BRANCHES OF GOVT 'IN CONFLICT'
(Reporter: Is the Judiciary as an institution being attacked by this impeachment process?)
Some people feel that as an institution, the courts are being involved and the question now is - appropriate ba o hinde? I can only try to understand both sides, the Judiciary feels that the courts are affected or their independence is compromised. The executive feels it is their advocacy and duty to pursue the 'daang matuwid'. Both sides have a point.
But what is important to look at as well is that if the trial happens and ends in a fair and impartial manner, we would have all passed the test of a democratic institution.
In the same manner, President Noynoy is the president but he's not the Office of the President. The Office of the President is the head of all executive offices except that in the case of the President, we only have one who leads the executive.
In case of the Judiciary and the Senate or in the House, we talk about a collegial body except that we elect one to be first among equal. In the judiciary, one is appointed to be first among equal but theoretically, they're all equal headed by an administrative head.
So even if we'll try to impeach 1 out of 15 of the Supreme Court Justices, it will not be impeaching the Supreme Court. It will be impeaching the individual justice.
It is true that the CJ is not the Supreme Court but there can be cases wherein going against certain justices can be viewed as going against the court. There could be cases that one is going against Pres. Noynoy as a person and leader; but there can be cases that he feels there's disrespect for the office.
Those are the sentiments but the mere fact that you'll impeach a justice, that doesn't mean that you're going against the SC but the manner in which you impeach can be basis for this argument. For example, if someone has a complaint against a certain journalist, that is not against press freedom. But if the way to go after the journalist is wrong and is an affront to freedom of the press, that's a different case altogether.
I am just saying that the constitution says who the impeachable officers are. How the system impeaches the officer will determine whether it is going after the office or only the person.
Tuesday, March 11
Monday, March 10