January 24, 2012
Transcript of interview with Sen. Santiago
I'm suffering from terminal boredom, all from watching from television the impeachment because I have to stay at home as prescribed by the doctor. I was not even allowed to watch TV because my doctor noticed that every time I watched the impeachment, my blood pressure shot up. I strongly suggest that people who have no strong interest in governance or political science not to watch the impeachment.
Sa tingin ko ang problema natin dito ay ganito: una, ang impeachment ay hindi laban sa presidente, kaya ang publiko wala silang connection. There is no connection between the accused and the electorate because they have never voted for the chief justice. I think that is one of the reasons why people are not as fervid as they were during the first impeachment process. The second is hindi nila naiintindihan kung ano ang impeachment and I am afraid that some members of Congress hindi nakakaintindi kung ano ang impeachment. My observation so far is that Epal Inc. has fizzled out. At first I think some people in Congress thought that this is going to be a display of legal brilliance. They have only visibly established their legal ignorance, so that is the reason why this trial is taking so long because there are all kinds of interpretation concerning what is the nature of the impeachment. As some wise person has said before, in any debate, anything is possible if you don't know what is being talked about.
What I'm talking about is this: impeachment is both quasi-judicial and quasi-political. There is no other process in government or in the judicial system that approximates impeachment; therefore, it is what lawyers call sui generis--in a class by itself. I take that to mean that, as much as possible, all evidence should be admitted. We cannot be as strict as a trial court that is strictly bound by the rules of evidence. The purpose of impeachment is to find out the truth but within a political context. That is why if we take care of the procedure, the better. There should be no triumph of technicality in an impeachment proceeding.
I was hoping that the motion for pretrial hearing would be granted because it would have shortened the entire process. We could have asked, for example, for stipulation of facts -do the plaintiff and the respondent agree that these are the facts so that we'll deal with the facts that they disagree on. That could have made the proceedings summary. In fact, I'm thinking that since most of the evidence consist of documents, maybe by the time the prosecution is finished, the defense can even file for a motion for judgment on the pleadings. But that is, of course, dependent upon them.
The main issue for me is that the public should understand what is going on, and the non-lawyers in the impeachment court should also understand what is going on. In my very humble view, in the first place, the Supreme Court has absolutely no role to play in this process. In fact, we should not be called senator-judges. We should be called the presidential high court of impeachment, meaning to say we are on the level of the Supreme Court. So we are not possibly subordinate to the SC because of the constitutional phrase that the Senate has the exclusive power to try and decide. That should settle issues that are already being raised on whether our decision can be interfered with by anyway through a TRO, or any other process, by the SC. No it cannot.
Dapat, katulad sa bista sa RTC, karamihan sa pagsasagutan sa korte should be in Tagalog na maiintindihan di lamang ng mga testigo, but by those who watch television because this is a process of governance, making the public understand what are the crises befalling the country. As I've said, they have no immediate intimacy with the Chief Justice because they have never elected him, unlike a president. During the Estrada impeachment trial, there was much interest because the people voted him into office, so that will be the main difference.
I think this afternoon I will ask the prosecution a very simple and basic question, which is usually done in pretrial. By the way, I want you to know that pretrial is mandatory in both civil and criminal cases, kaya sana nagka-pretrial kami. Kaya lang pretrial is very tedious for the TV audiences, but I could have ordered it to be conducted just before the actual trial schedule is published.
I will ask them this afternoon "Ilan ba ang testigo niyo?" para sa prosecution at sa defense. Matatantya natin kung gaano katagal iyon. At "Ano ba ang dokumento ninyo? Markahan na ninyo." The TV public is not thrilled watching the marking of evidence. Please! There should be just one day when you mark all your evidence before the clerk of court. Kailangan pa bang pag-awayan itong mga dokumento, or shall we stipulate that certain documents can already be admitted. We can stipulate that 'if you admit this document we can prove that so and so'. It will simply prove, for example, that a certain document is an official copy on file in the Bureau of Lands in the Office of the Register of Deeds, so we don't have to go through the entire authentication process. Is this the document? Does it look like this? Is this your signature? (Sighs)
Ano sa palagay ninyo ang dapat gawin at dapat iwasan ng mga senador para maiwasan ang mga pagbibintang na may pinagkikilingan sila?
That's a very tricky question because even in trial court, the Supreme Court has always emphasized that the judge can always ask questions if the counsel is not doing it well or if the questions raised are not adequate to satisfy the mind of the judge. But at the same time, the judge cannot take over from counsel and act as if he were already the counsel eliciting facts that are unable to be elicited by the presiding counsel. So that's a very thin line in the decisions of the Supreme Court. Kaya ang mga trial court judges, ang ginagawa nila they limit themselves to two or three questions. You cannot ask an entire range of questions dahil magmumukha ka talagang prosecutor niyan. This is like a case in the ethics committee. No senator wants to act against a fellow senator. So kung meron man, it would probably be, at the very most, just a warning--warning that you should not do this again. But I doubt very much if we will disqualify one senator on that ground, particularly because this invoked ground has not been tested yet. But basically the best test is, if you ask a series of questions to make a point that should have been raised by counsel. You should receive a lawyer's appearance fee if that is the case. You should have entered your appearance as counsel! (laughter)
Remember the adage, "Justice delayed is justice denied?" The longer it takes, the more prejudiced you are against the defendant or the respondent. Trial to be quick should always be preceded by a pre-trial brief by the plaintiff and by the respondent. Dapat alam na nila ang ginagawa nila. Hindi iyan spur of the moment. Kaya ang problema natin ay mukhang hindi masyadong masigasig ang prosecution, parang they're working around certain issues. Dapat meron kang outline. That's what I suggest to the prosecution, which I used to do when I was trial judge. If I find that the prosecution is a little slow in its efforts, I would say, "Counsel, let's move on." Then in chambers I would call the lawyer and say, "Could you please make an outline of your questions so we could proceed sequentially and logically?"
When you use the word "ask", in legal procedure that means to make a motion in court. You mean will the defense file a motion to inhibit him? I doubt it very much. E kung hindi siya na-inhibit? Eh 'di nagalit siya sa iyo, eh 'di talo ka na? (laughter) Iyan ang mangyayari diyan. Remember what a very wise justice of the Supreme Court of the United States once said, I'm talking about Justice Oliver Wendell Holmes, "The life of the law has not been logic; it has been experience." That's why law is not a question of common sense; it is a question of technicalities, because these technicalities have proved to be absolutely essential to the achievement of justice in the long histories, running for centuries, of the legal profession. Don't think too badly of technicalities. They are meant to protect us. However, as I said, impeachment should not be a case where triumph will belong to the one who cite the most technicalities. I intend to shortcut these technicalities when they are cited.
Kung nangyari po ba iyong pre-trial, naiwasan po ba sana ang pagkakaroon ng surprise witnesses?
Dapat iwasan iyon. Under the due process clause of our Constitution, it is, in effect, prohibited to spring a surprise during trial. In fact, in law we have so-called "discovery procedures" where before the trial, you can go to certain people, and just bring the clerk of court and not the entire court with you, and take his testimony so that he will know how he will respond, particularly if he is a hostile witness for the adversary. These are so-called discovery procedures precisely meant to deflect any attempt to surprise either side since due process is defined as following the search for both justice and truth from both litigants. Kung isusurpresa mo ang kalaban mo, that's unfair surprise. You are not allowed to do that. You cannot bring a surprise witness just to hold your TV audience in suspense. You will likely be reprimanded by the judge or may be cited for unethical conduct. Wala iyan. In fact, I might ask the counsel to re-submit to the court a list of all your witnesses, their names and the substance of their testimony.
On ongoing debate that Article 2 does not contain allegations of ill-gotten wealth.
I am not allowed to comment as a judge outside the courtroom on the merits of the case. That will go to the merits of the case. It will be decided by the High Court of Impeachment in caucus.
What should be done to Senator-Judges who ask more than two to three questions, and tend to act as prosecutors?
This is a very unique procedure, as I said. No proximate procedure in our government, like this, and therefore unlike a regular court of justice, where the presiding officer, who is also the judge, can reprimand people and tell them what to do or hold them in their tracks, the presiding officer (Enrile) has no such power. He is only one of the 23 senator-judges. If I were in the shoes of the presiding officer, I would simply call a judicial recess and I would give a gentle reminder to the senator that there are time limits.
Did you think some of the senators went overboard with their questioning?
I think everybody tended to go overboard. First, because they thought that they had to take a dramatic stance in front of the TV cameras. That is a problem with TV, because the presence of the observer changes the observed. You know if you shut down all the TV cameras, this proceeding will be finished in one week! This is a big problem, which the U.S. courts have been wrestling. So we have to input that now. What is the effect of television on the quickness with which the litigation is conducted. We all want to finish because of the principle that justice delayed is justice denied. But people want more than 15-minutes of fame to stand there and say abstruse legal terms nobody uses anymore. By the way, in the legal profession, it is completely outdated to use Latin terms and esoteric terms like "hereinabove", "whereinbefore", those are no longer allowed! When they use that, it means that they are not in-step with the latest movements in the legal profession. Everything must be intelligible to the layman, because the people watching, the litigants are lay people. That is why we tend to overact because in actual trial court, when a lawyer appears, he is a paid an appearance fee. And therefore, if the client pays P10,000 today, show me P10,000's worth of histrionics or your acting power. So they fling their arms above and they speak in their squeaky voices (laughter). That is why they do that is because they have to earn their appearance fee. It is an effect of the billing system. If we do not pay our lawyers periodically but on a per appearance basis that's what will happen. Nakakahiya naman sa kliyente niya, tumanggap na siya ng pera, binulsa na niya, kaya dapat marami na rin siyang paganun-ganun. At saka that goes for both sides. That's the problem.
Can the respondent appeal to the Supreme Court?
As I said already, in my very humble view, that is not a remedy available because this is a High Court of Impeachment. We are not some minor court. We are a High Court. We are as high as the Supreme Court, because we are a constitutional creation, and we are not listed as those over which the Superme Court has jurisdiction. There is a constitutional list on areas or topics where the Supreme Court has jurisdiction. We are not listed there. In fact, in the Rules of Court, there's a specific exceptional rule that says these Rules of Court do not apply to certain cases like land registration cases, naturalization cases, election cases, etc. So that means that the Rules of Court do not necessarily apply to all types of litigation so even much less so to an impeachment court. The Supreme Court cannot assert any level of judicial authority over the impeachment court.
Do you agree that the impeachment trial is akin to a criminal trial?
As I said, the word there is "quasi"--almost, but not exactly the same. As you know, it has certain criminal features. And I might say something that might surprise you. Look at the Constitution it says that if the person is convicted the sentence shall go no further than removal from office or disqualification from public office. That means that we can go less than removal from office. That will even surprise our senators. Maybe I should say it in the caucus. Look at the way it is worded, "it shall go no further than" meaning to say, hindi ka puwedeng lumampas, hindi mo puwedeng taasan pa. Hanggang doon lang sa removal from office or disqualification from public office. So you can just mete out the punishment, of let us say, reprimand or censure. Puwede rin iyong ganoon. We don't necessarily have to convict or acquit. We can only just reprimand or just censure, as long as you do not put him to death because that will be capital punishment.
On the suggestion to use Filipino in the impeachment court
Before the presentation of every witness, the person presenting him, at this stage the prosecutor has to explain anong balak mo na ipatunay sa pamamagitan ng testigo na ito. That is his gist of his testimony para maintindihan natin. Kaya dapat niyan, bago magumpisa ang examination ng isang testigo, dapat sabihin na ng abogado niya ano ang pakay ko dito, ano ang susubukan kong gagawin, ano ang ambisyon ko dito in tagalong para maintindihan ng mga manunuod. Has he succeeded in proving his point? Then we go on to the next point. And that should be the point on which the counsel from the adverse party will base his cross examination. In other words, the success of litigation depends on preparation. If you are not prepared, then you are going on a fishing expedition. And by the way, I tend to object if anyone goes on a fishing expedition during examination of witness whether direct or indirect. Dapat alam mo kung saan ka papunta, hindi paikot-ikot pa. You're wasting my time and it makes the senators lose interest particularly those who are not lawyers. We are not confining this process to those with technical legal knowledge. Otherwise, we will have no public participation. We might as well hold it in a darken room just among ourselves! We want the public to understand what's going on kaya kailangan, in fact I've suggested to the Senate President, minsan lang sa isang linggo, magpaliwanag ang presiding officer na ngayong linggo ang mangyayari ay ipresenta itong mga testigong X, Y, and Z ng prosecution dahil hangad nilang ipatunay na ganito, ganyan, ganyan. Tapos, ito namang testigo ay balak naming ipatunay na ganito iyon. Kaya ipaliwanag natin.
On terminal boredom
This is a duty. Believe me. I would really rather go scuba diving in the Bermuda Triangle and get possibly lost there. Believe you, me, it will really raise my blood pressure. In any event, I have come because this is my duty as a senator. I have no choice. Point of terminal boredom citation from Justice Story, who is one of the famous legal authors. Whatever he said no longer applies. Justice Story lived centuries ago. So that is sometimes the problem with law, when people quote a referendum to the past without connecting it to the present circumstances. Well, the moment I said that, I turned it off. I said my act of contrition, got down on my knees, and almost shot myself.
On the performance of the prosecution
They were all a little bit nervous. That is to be expected. And I think a little fear of the unknown because he did not know how things were going to go or how the media would treat them. I think now, more or less, they have gotten into the swing of thing especially if our rulings as a High Court of Impeachment are consistent then I think we can have a more disciplined structure. I would say that it was pretty unstructured in the first week. You know these hot shot lawyers when they appear before a judge they are very very prepared, that' why they deserve their reputations.
If the Senate decides to answer the temporary restraining order filed in the Supreme Court, what are the implications?
Does it imply a submission to jurisdiction (of the Supreme Court)? There is a rule in civil cases in the Rules of Court that if a person alleges that the court has no jurisdiction, clearly he has to appear and make his allegations, otherwise he will be declared in default and the other party will automatically win. If we apply this example in civil cases in the impeachment court, if at all the impeachment court will file a reply, it is simply to say you have no jurisdiction over us, and we do not care to explicate or explain ourselves fully or at length because there is no necessity. We're an independent court. Out of courtesy to you, we will just answer to educate you that you have no power over us. That should be the extent of the answer. We will proceed anyway, no matter what they do. The Senate will then say in effect to the Supreme Court, "All right, you want us to answer? We don't want to answer." And who is going to take action against us? You? And what army?
If you think the court has no jurisdiction, you cannot just keep quiet and say I'll just ignore them. Then they will proclaim a decision where you are declared, for example, to use a legal term, non-suited. You did not go to litigation or you lost through default. So the decision will go to your opponent. That's why the civil court involved rule is, you must appear just to tell the court you have no jurisdiction. Then you litigate whether you are correct or not. That will be in effect the form the High Court answer will be to the Supreme Court. You might be Supreme, but we are High! (laughter)
On Enrile as presiding officer
He is a very conscientious. He has a problem with his eyes but I can tell that he has been reading a lot. So that must be very taxing for him. So far, all his rulings have been respectable. There is no question to doubt their competence.
Do you think the trial will take a long time before it concludes?
I will clear that up this afternoon at 2 o'clock. I will ask how many witnesses are you going to present approximately of course, because it depends on what points come up. But still, we already know that. Ilan ang testigo (ng prosecution at) ng defense counsel? Eh 'di macocompute natin. Pagkatapos nung trial na iyan, first the prosecution presents evidence then the defense presents evidence. Meroon pa iyan, meroong tinatawag na rebuttal , where the prosecution again presents kung may prinisenta ang defense na hindi naforsee ng prosecution. They have a right to rebuttal, which means they can present a few witnesses to rebutt what the defense said followed by surrebuttal , the defense naman ngayon will try to controvert what they said in rebuttal. Prosecution, defense, rebuttal, surrebuttal. And so within all of these terms, the two sides this afternoon will have to tell me how many witnesses do they expect. Ayoko ng sagot, "Oh that depends, Madame Senator!"
On allegations that you are pro-Corona
Before the case was filed here, I was being asked as a politician. And you know, the media will stab me in broad daylight if I say no comment. So of course I have to answer. But if you noticed, after the articles of impeachment have been officially filed with us, I've tried not to say anything concerning the merits of the case. So it should be taken off the record of the impeachment court. Many of us in politics answered according to our own, independent analysis.
That is only a lay man's opinion. But now I am hearing the evidence. Noon, wala akong ebidensya so of course I was only answering on general principles of law. I am a political science major so I was only quoting what I learned in PolSci. I think these are the general sentiments of the legal profession. But now, we don't have to be bound, not by those things I have read in the textbooks, but by the actual evidence. We are bound by evidence. That's all we can do.
Tuesday, April 28
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