Enrile: This is not a criminal case

“We must remember that we are not trying a criminal case. We are trying an impeachment case … and, therefore, the hearsay rule contained in our rules of evidence does not apply strictly in impeachment cases.”

So said Senate President Juan Ponce Enrile after the lead defense counsel, Serafin Cuevas, moved on Thursday to strike out as hearsay the entire testimony of Justice Secretary Leila de Lima who cited alleged irregularities mentioned in the dissenting opinion on the Supreme Court’s temporary lifting of a travel ban on former President Gloria Macapagal-Arroyo last year.

“We’re going to decide this case on the basis of the quantum of evidence that we think is best to be used in determining whether he is guilty or not guilty, not beyond reasonable doubt because this is a not a criminal case. It is akin to a criminal case, but not really a criminal case.”

Enrile, the presiding officer of the Senate impeachment tribunal, allowed to remain on record De Lima’s narration of the dissenting opinion by Associate Justice Ma. Lourdes Sereno, which revealed purported irregularities in the interpretation, among others, of the temporary restraining order (TRO) issued by the Supreme Court on Nov. 15.

“I understand your position, but we are not proving … the guilt of the respondent beyond reasonable doubt,” Enrile told Cuevas on Day 23 of the impeachment trial of Corona for alleged culpable violation of the Constitution, betrayal of public trust and corruption.

“But to the extent of the truth or falsity of what the dissenting opinion of Justice Sereno contained, to the extent of those facts, whether they are true or not, that the Chief Justice influenced this or the Chief Justice did that or somebody else did something else—then to that extent it is hearsay because the witness was not present when those things were being done or being said,” he ruled.

“And so I will allow the testimony of the witness to remain into the record and … suggest to the court to disregard … the statement on the Chief Justice or what he did or other justices did in that deliberation, because those are not within the competence of the witness to testify on,” Enrile said.

‘Providential’

The prosecution welcomed Enrile’s ruling as “providential” after setbacks this week, which saw Enrile reject a witness called to testify on alleged special privileges Corona and his wife enjoyed from Philippine Airlines while the Supreme Court was considering a pending case involving PAL. Enrile ruled that the testimony was irrelevant because bribery was not specified in the impeachment complaint.

Ilocos Norte Representative Rodolfo Fariñas said that what Enrile had stated on the De Lima testimony was the prosecution’s position from Day 1, stressing that the only issue was Corona’s fitness to remain as Chief Justice.

“If not fit anymore, he is removed. A criminal case can then follow. So, this is a positive development for us,” Fariñas said.

“In fact, it is just any proof that any judge is willing to accept to support a verdict of conviction or acquittal. So it is entirely up to the senators to make a decision. There is no quantum of evidence actually required or set, and lastly, is that hearsay is actually admissible in terms of impeachment cases,” said Representative Miro Quimbo, a prosecution spokesperson.

Under cross-examination by Cuevas, De Lima on the second day of her appearance said that her testimony was based only on Sereno’s dissenting opinion.

Sereno alleged that justices, voting 7-6, found that Arroyo and her husband did not comply with the conditions of the TRO. But Corona purportedly tried to make it appear that compliance had been made.

“Based on your answer now, I gather the impression that all the matters you stated a while ago came from your perusal or reading of Justice Sereno’s dissenting opinion?” Cuevas asked.

“Yes, sir, I’m not a member of the Supreme Court,” she responded.

“In other words, what you have told us insofar as you are concerned, are merely, purely hearsay because they do not come from your own personal knowledge,” Cuevas said.

Splitting hairs

Representative Raul Daza, who conducted the direct examination of De Lima, objected and said Cuevas’ questioning was “misleading.” Enrile overruled Daza.

Senator Miriam Defensor Santiago scolded Daza for claiming that De Lima’s testimony was exempted from the hearsay rule.

A former trial judge who has been elected to the International Criminal Court, Santiago said De Lima could not express her opinions in her testimony unless she had been qualified as an “expert witness.”

“Why are we splitting hairs? It’s very, very clear. A witness can only testify to what he perceived himself,” she said angrily. “In effect, what we’ve been hearing is a series of opinions extrapolated or made to us by the witness.”

Santiago added: “She was not present when these so-called irregularities or discrepancies were taking place so how could she be a witness on all this instance?”

The senator also sought to put in perspective the “weight” of a dissenting opinion in a “collegial” body like the Supreme Court.

Majority rule

She cited a 2006 ruling in which the Supreme Court said: “It is the majority decision, not the dissenting opinion, that is the controlling jurisprudence.”

In a more recent ruling in 2008, the high tribunal stressed that “elementary decision-making teaches that we cite the majority opinion as precedent, not lonely dissenting opinions,” Santiago said.

“Our quest here is factual in nature: was the Chief Justice personally and individually responsible for what are perceived deficiencies or irregularities in the issuance of the TRO? Can one judge be held liable for the decision of a collegial body?” she said.

Santiago said another ruling by the high tribunal averred that, “although the Chief Justice is primus inter pares, he cannot legally decide a case on his own because of the court’s nature as a collegial body. Neither can the Chief Justice by himself overturn the decision of the court, whether by a division or the en banc.”

Never disputed

Cuevas questioned De Lima on why she “laid too much emphasis” on Sereno’s dissenting opinion, noting that there were other dissenters.

“Apparently, you give us the impression that, permit the language, you swallowed hook, line and sinker the truth of what is alleged or incorporated in that dissenting opinion,” Cuevas said.

“I have given it credence, serious credence because it was never disputed or denied by any other member of the court,” De Lima replied.

“But it remains to be a dissenting opinion up to now unless modified or reversed by the Supreme Court in the final adjudication of the case,” Cuevas shot back.

Liable for defiance

De Lima said she “highlighted” Sereno’s opinion because of “the various disclosures or revelations that she had made, which give us the picture of the irregularities that were committed within the court insofar as the issuance of the TRO, as well as the interpretation of the legal status or effect of the TRO.”

Cuevas suggested that De Lima was bound to benefit from Sereno’s revelations, considering the unresolved issue on whether she should be cited for contempt for disobeying the TRO.

“It almost exempts you from criminal liability … It saves you from the trouble of being made liable for having allegedly disobeyed the order of the honorable Supreme Court because there is a restraining order, (but) you issued an order that was countermanding that order. Is it not?” he said.

“The issue of my alleged defiance would still be there even in the absence of these disclosures or revelations,” De Lima responded.

Presumed police powers

Senator Panfilo Lacson questioned De Lima at length on the hold-departure order, eliciting an admission from her that this was contained in a department circular and not based on any specific law but on presumed police powers under the administrative code.

“I know that the former President used that (circular) to go against her perceived enemies,” said Lacson, an Arroyo critic.

Lacson evaded a hold-departure order and disappeared for 14 months beginning in January 2010 after he was implicated in the murders of publicist Bubby Dacer and his driver in 2000.

“Maybe it was used then. You don’t have to worry about that under my watch, sir,” De Lima said.

She added that her department was drafting proposals to allow the department to prevent the departure of people under investigation for alleged criminal offenses. With reports from Cynthia D. Balana, Cathy Yamsuan and Marlon Ramos