Press Release
January 21, 2014

STATEMENT ON PNOY "INFLUENCE" ON IMPEACHMENT
By
Senator Miriam Defensor Santiago

If President Aquino merely confined himself to attempts to influence the outcome of the impeachment trial last year, he did not commit a crime. But if he bribed the senator-judges to convict the accused, then he is guilty of bribery as prohibited by law and as a ground for his own impeachment under the Constitution. It is not a crime for the President to try to influence the outcome, because an impeachment trial is both legal and political in nature. It is illegal for the President to try and influence the courts, because of the principle of independence of the judiciary. But it is legal for the President to try and influence the senator-judges, because he is the nominal head of his political party, and within bounds, he has the right to assure his political survival.

In his privilege speech, Sen. Ramon Revilla, Jr. claimed that Pres. Aquino had him fetched from his house and brought to Malacañang, where the President allegedly tried to convince him to withstand pressures from civil society to acquit.

Hence, I shall deal with two issues: judicial review of impeachment trial; and the constitutionality of the DAP, particularly when it is apparently used as a bribe.

On the issue of whether judicial review of the impeachment trial is now called for, I believe that the Supreme Court can give due course to a petition for review on certiorari, on the ground of extrinsic fraud, which was committed outside the narratives of the trial.

American authors conflict on whether the Supreme Court has the power to review a judgment of impeachment and conviction by the Congress. Prof. Charles Black, Jr. of Yale University writes that judicial review is not acceptable. But Prof. Raoul Berger of Harvard University writes that judicial review can be undertaken by the Supreme Court. He argues that judicial review of impeachment is required to protect the two other branches of government from the arbitrary will of Congress.

I now go to the issue concerning the DAP (Development Acceleration Program), which sourced the additional pork barrel shortly after impeachment. It reportedly consisted of P50 million for each senator-judge and P100 million each for Senators Juan Ponce Enrile, Franklin Drilon, and Francis Escudero. It is now an accepted fact that Malacañang disbursed the DAP, shortly after the impeachment to the senators who voted to convict.

If evidence shows that Malacañang paid these amounts to the senator-judges as consideration for a guilty verdict, then the crime of bribery has been committed, both by the President and by the senators.

Naturally, Senators Jinggoy Estrada and Senator Ramon Revilla, Jr., in their respective privilege speeches, denied that the DAP funds they received were bribes, because the law punishes both the giver and the taker.

But the question arises: Why were the three senators who voted to acquit not given P50 million or P100 million each? Thus, it appears on the record that if the senator voted to convict, he got at least P50 million. But if the senator voted to acquit, he does not get anything. At the very least, this procedure is discriminatory and constitutes a violation of the Equal Protection Clause of the Constitution. It also gives rise to the natural presumption that bribery was intended and consummated.

I hope the Supreme Court give priority to petitions concerning the constitutionality of the DAP, to help settle the burning issue of bribery of an impeachment court. Sen. Joker Arroyo, Sen. Ferdinand Marcos Jr. and I were the only three out of 24 senators who voted to acquit. If the Supreme Court rules that DAP is unconstitutional, then the usual consequence is that the senator-judges will be obliged to restitute and return to the government the sum of P50 million each; and the sum of P100 million each from Sens. Enrile, Drilon, and Escudero. Furthermore, Pres. Aquino will become liable for impeachment, on the constitutional ground of bribery.

I find it unusual, but not illegal, that the three senators widely reported to be most involved in the pork barrel scam - Sen. Juan Ponce Enrile, Sen. Jinggoy Estrada, and Sen. Ramon Revilla, Jr. - are airing their defense in the media, in addition to the counteraffdavits they have filed with the Ombudsman.

This is a battle fought in media between Malacañang and the three senators charged by the NBI with plunder before the Ombudsman. This is extraordinary, because during the stage of preliminary investigation of a criminal case, the parties prefer to rely only on their affidavits and counteraffidavits, without need for propaganda in other fora, such as the Senate or the media.

The rule against public comment applies only when the case is pending before the court. But this unconventional method of using media to raise a defense in a criminal case raises the issue of whether the persons in interest, meaning the accused, do not have full faith in their counteraffidavits, and seek to use public opinion to pressure the Ombudsman to resolve the cases in their favor.

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