February 8, 2012
Transcript of media interview with Sen. Miriam Defensor Santiago
Reaction on motion for reconsideration
We just have to rely on the hope that my arguments might convince them or to convince them to order their staff to conduct further research since most legal questions are decided by cases that were decided before. In my view, the cases they cited were not in point; they're not on all fours with the issue. Under the principle of judicial precedent, a prior case decided on virtually the same facts will, in effect, produce a decision for all subsequent cases with more or less the same facts. But the cases produced by the prosecution, the facts are not the same. So I doubt very much if they should be applied. Besides, the foreign currency law has an absolute prohibition against the disclosure of bank records. There is only one exception, that is, when there is consent by the depositor. And clearly there is no consent. So how can you make an exception that is clearly violative of the intent of the law if not its language.
If MR rejected, can it be elevated to the SC?
I don't think so because I take the position that an impeachment court, meaning to say the Senate, is supreme in its own field of impeachment. If we allow it to be a subordinate court to the Supreme Court and the impeachment proceedings are against the chief justice, then, in effect, we would be allowing the impeachment court to act subservient to the SC. That cannot be possible. That would become an absurd result because the respondent is the chief justice of the SC. That would make sense even to the ordinary layman.
The impeachment court has the power to subpoena anybody. Why should there be a very special exception? What is the reason for making an exception in their favor? Even the CJ is subjected to impeachment, which is the worst penalty that can be inflicted on anybody. So why should they be outside the jurisdiction of the impeachment court? That would be an acceptance that the impeachment court is subordinate to the SC. That should not be allowed. Therefore, I am in favor of sending subpoena to the justices.
That is an accepted exception to the principle of checks and balances. Every general principle has exceptions and impeachment is one of those. Impeachment is part of the system of checks and balances. You can check corruption in the SC by means of impeachment against the justices. So if you exempt the remaining justices from subpoena, you might not be able to prove your case on impeachment against the justice who has been impeached. That is the rational behind it.
On defense to seek another venue
No, I am afraid I have to say that they have no remedy except a motion for reconsideration with the Senate. If that motion is denied, and no second motion (you know, sometimes you can file a second and third motion for reconsideration), and we decide we do not accept any further motion for reconsideration, they have no more remedy, I'm afraid.
Can the defense file a MR?
Yes, because there is no rule in the Senate Rules on Impeachment that only a judge can file a motion for reconsideration. The only rule we have is, if our rules on impeachment are lacking, we can refer to the rules of the Senate, which is a different set of rules. The rules of impeachment are just a temporary set of rules for a temporary action, which is not lawmaking by the Senate. The rules of the Senate are a permanent set of rules that govern the lawmaking function of the Senate. So just because there is a provision that says, when there is a situation that is not provided for by the impeachment rules, that situation can be resolved by referring to the rules of the Senate. But to refer to the rules of the Senate which says that only a person who voted with the majority can file a MR, therefore, the author of that theory was trying to make it apply to the senator-judges. But that provision is in the rules of the Senate that is meant to apply only when the Senate is in session as a lawmaking body. It is not meant to apply to the Senate as an impeachment court since it's performing a completely different function.
The general rule of impeachment in the United States, and therefore also in the Philippines because we copied their model, is that the rules should not be so technical that they might defeat the ends of justice. Kung pampahaba rin lang ng kaso, huwag nang masyadong technical. You could of course apply the rules of evidence, which are contained in a big thick book called the Rules of Court. Pero huwag din dapat masyadong technical kasi this is not a purely judicial proceeding. As I said, it is quasi-judicial and quasi-political.
SC is to hold a session tomorrow. What if they do not respect the jurisdiction of the Senate as an impeachment court?
That will be an authentic constitutional crisis because you have on the one side the impeachment court and on the other side the Supreme Court. And now, each one might be asserting their authority over the other. Which one should prevail? That is the issue. And who should decide? I would like to ask, the Supreme Court and what army? That is why the executive branch tends to be the strongest between all the three branches because it has the army or the armed forces of the Philippines. Since neither one has the armed forces, it will become an intellectual stalemate until the people rises in the streets or until something epic happens. I hope no violence will occur.
As a lawyer and as an officer of the court, all lawyers are officers of the court, I will try my best to resolve it peacefully by means of mediation or negotiation. That will be in effect, a funny kind of crisis because neither one has the armed forces to prevail over the other unless they want to do a boxing match, one on one. There's really no other way that you can force the other to concede. Or unless, the executive branch of government throw its weight among one of those two branches.
On how to speed up the trial
Since there was no pre-trial conference, let us resort to all the methods of shortening trials to cut delay that are provided for under pre-trial conferences. For example, stipulation of facts. As I've explained in my speech, before the witness testifies, normally the witness for the prosecution, the prosecutors will say, "The purpose of this witness..." and will go into generalities like, "The purpose of this witness is to prove the truth, prove that the respondent is corrupt..." He should just go to the point and say, "The purpose of this witness is to show that there is a SALN entry that is not accurate." So, he will invite the other lawyer and say, "Are you willing to stipulate, that if we allow this witness to testify, he will say that this particular SALN entry is inaccurate because..." and then you will give the reason. And if the other counsel says, "we stipulate" or "we do not object" then the witness does not have to testify.
That can still be done before you allow the witness to begin talking whether under direct examination or under cross examination, you just say it at the outset.
Reaction on Fariñas' statement regarding CJ receiving pro-bono services
He raised an ethical question. But the issue actually that underlies all of these is just because there is a provision in the anti-graft act against accepting favors. Does that mean that the CJ as a respondent is now legally obligated to pay his lawyers if they present their services gratis, if they accept the case, or if they in fact, seek the case themselves as a service to maybe what they see as an embattled CJ as against the president or as the Supreme Court under attack or for whatever reason, is that prohibited by law or is that allowed? So we have to check with the bill of rights of every citizen, particularly those who are accused. What are the rights of the accused? We know that already. The right against self-incrimination, the right to remain silent etc. One of the rights is the right to be represented by counsel. So if you are going to disqualify counsel just because they are doing the CJ a favor then in effect you will be exercising or claiming the power to choose what lawyers the CJ should have. And you would then have to require evidence that he is actually paying them because in effect, you are disqualifying him from pro-bono services. So I don't think that will wash the argument that it is unethical for him to accept services because while on the other case they are also claiming that they are accepting unpaid services of lawyers. So what is allowable for them, according to their argument is not allowable for the CJ. There is a disparity here in moral standards.
On the subpoena for CJ Corona's bank documents
The danger I see is that potential bank investors in the Philippines will withdraw their deposits and transfer them to Singapore, which is now beginning to be known as the Switzerland of Asia because their security procedures are so airtight that there is almost absolute confidentiality about accounts. You open an account in Switzerland or Singapore, it is extremely difficult to get a court to issue an order to open the records of that account. That's why they are called havens. If we develop this reputation that even the Chief Justice can have his bank accounts opened on a mere allegation without proof, it might already be sufficient to drive away the capital market from our country, and we are badly in need of capital investors. The effect on our country will be devastating. I am very afraid that there might be bank runs. It doesn't concern the middle class, but it concerns the upper class people.
The senators should have a conscience, and that conscience should be educated. It's a very delicate question of calibrating public interest, and your private interest in your political career. We already know who are behind the charges and who are behind the defense, so it becomes a question which is political in nature. And by the way, the Supreme Court has no jurisdiction over the impeachment court because, according to our Constitution, although the SC can claim jurisdiction over political questions, an impeachment process is not a purely political question. As I've said, it is quasi-political and also quasi-judicial. That is the answer to their defense that under the Constitution, there is a provision that allows the Supreme Court to exercise jurisdiction over political questions. But the impeachment is not a political question only; it is also a quasi-judicial question.
Yung mga unknown sources na iyan, for me as a trial judge, they have no credibility in the first instance. The moment you say "This is unknown, I don't know where it came from", it places a big question mark in my mind. It depends on the attitude of the judge. But common sense will dictate to you kung napakahalaga pala ng papel na ito and it might be decisive in the outcome of the trial. Are we going to base our decision on a paper that has not been authenticated?
These alleged papers might prove to be original. They might be completely fictitious papers. We have no clue. But if they prove to be authentic, then it becomes a question of who violated the bank secrecy law. You know how to search. Media cannot be forced to reveal their sources, but there are other ways of proving the authenticity of these documents. There has to be an investigation and certainly there is certainly going to be criminal liability if these are authentic bank documents.
On the perceived credibility of the proceedings from the public, considering the performance of the members of the entire impeachment court
Let the public judge. I will not judge my colleagues, but my suggestion from all these observations is that members of Congress who might be actively participating in the next impeachment trial of anybody should be first made to undergo a seminar on what is impeachment, etc. You just cannot come in from the cold and become an overnight expert on something.
On the mounting impeachment complaints against Justice Del Castillo in the House of Representatives
I was startled because we already have the Chief Justice under impeachment and now we'll have another one? It's very hard to countenance a situation where there's a building made of bricks and the bricks are falling one by one. It's a defining moment in our national history. It will change the complexion of our entire political system which is tripartite in nature. What will be the nature of the impact of these almost coincidental or simultaneous impeachments on the system of checks and balances? Ano kaya ang magiging ibig sabihin nito? Kung ayaw mo ang ginagawa sa Korte Suprema, ipapa-impeach mo?
Miriam's Valentine's Day message to Pnoy
I have no comment that refers to his own private life. Of course we all want him to be happy, so I hope that he makes a good choice if he is choosing--at his age he should be choosing--his possible potential mate. Unless he is resolved to be a bachelor forever, I will advise him that it is a life of complete misery. Everyone needs a partner in life, so let's wish him good luck in his search.
Miriam's birthday message to PNoy
I hope that the spirits of his parents, who did well for our country, will continue to guide him and that he will always be conscious of their high expectations--perhaps too high expectations--because it's so difficult to be a president. Frankly, if the presidency is offered to me now on a silver platter at my age, after all my experience, I will politely decline it. I will be flattered, but I will decline it. It's extremely difficult to be a president. Let us all wish him a happy birthday, in a sense that he might gain peace of mind and serenity.
Unfortunately, according to the Dalai Lama, desire is the source of all misery and unhappiness in life. So if he is going to look for a mate, he might desire her, then he would become unhappy. I would have to consult the Dalai Lama.
Tuesday, May 26
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