Rules are not made to be broken

The brawl over impeachment court subpoenas is no simple black-and-white battle of the forces of light versus the forces of darkness, of the anti-Corona versus the pro-Corona camps, where each side single-mindedly throws everything including the kitchen sink against the enemy and runs roughshod over respected rules in the legal equivalent of ubusan ng lahi. Remember this: This historic impeachment will reinforce or destroy rules that will bind us long after Chief Justice Renato Corona’s tenure ends.

We love the stance of the partisan or advocate who wants the quick score for his client right here, right now. But the Senate sits as judge. Not for it the narrow and short-term agenda of the partisan, but the high moral road, broad-minded and with depth of conscience. For them, the battle over subpoenas shouldn’t be a barren contest over technicalities.

Rules of evidence are not just about finding the truth. They actually balance the pursuit of the truth against other values: husband-wife and parent-child confidentiality; bank secrecy and the reliability of our banking system; the separation of powers scheme in our system of government. Whoever says “the truth must out whatever the cost” still needs to explain what outweighs that cost: the erosion of family and love, the risk of a bank run, or the short-circuiting of constitutional checks and balances.

In traditional constitutional law, we call this the logic of “pre-commitment.” We bind ourselves in advance to certain rules so that, faced with the temptings of the moment, of “hydraulic pressures” that bear on the here and now, we do not lose sight of larger principles, distant, yes, but more enduring. In the classic words of Benjamin Cardozo, we have constitutions precisely to protect us “against the assaults of opportunism, the expediency of the passing hour… the derision of those who have no patience with general principles.”

Even the great Cardozo would salute the Senate on this point. Remember Day 1 of the trial. The Senate denied the prosecution’s motion to compel the Chief Justice and his family to testify. The Chief Justice was protected by his constitutional right against self-incrimination, the principle that eschews the sheer cruelty of being forced to testify against oneself, one that Torquemada’s Inquisition and the Stalinist show trials routinely flouted. His wife was shielded by “marital privilege” because, among other grounds, forcing spouses to testify against one another strains the family, a “basic social institution” that forms the “foundation of the nation.” How else can husband and wife freely confide in one another if their pillow talk can be subpoenaed? The children were also accorded their “filial privilege” which accepts the reality that loved ones tend to cover for one another, and the “incentive to perjure” is inimical to truth-seeking.

Twice this week, the Senate confronted more such dilemmas. On Monday, it was good news for the prosecution: the Senate will compel the banks to disclose information about the Corona bank accounts. On Wednesday, it was the defense’s turn to hear good news: the Senate rejected the prosecution’s request to compel sitting Supreme Court justices to testify and open the Supreme Court’s confidential records.

Both times, the Senate performed a delicate-balancing act. In its Monday ruling, the Senate carefully said it wouldn’t allow a fishing expedition and would subpoena only those documents strictly related to the SALNs, the core of the second article of impeachment.

But most important of all, the Senate went to great lengths to assure the public not to worry about the secrecy of their bank deposits. This is a principle not to be taken lightly. The Bank Secrecy Law long ago encouraged people to put their savings in banks where they can be lent to investors to generate more wealth for the country. Otherwise, they will lie idle inside a wooden baûl, sterile, attractive only to thieves, and vulnerable to fire. We the public all have a stake in bank confidentiality.

Unfortunately for the Chief Justice, the Bank Secrecy Law lists several exceptions, and one of them significantly is “in cases of impeachment.” Thus the Senate’s wording: “[N]ondisclosure of information… is still the general rule [and there is a subpoena only because of the] impeachment proceedings and for no other reason.” To use a metaphor from the Erap impeachment, the second envelope must be opened.

On the other hand, the Senate also refused to subpoena the Supreme Court justices and their records. The Senate order was cleverly written. It affirmed several times that it respects the judiciary, that it will scrupulously stick to its own turf and won’t venture into the Court’s, and won’t pull rank despite its extraordinary perch as “the sole power to try and decide all cases of impeachment.”

So you think the Senate was being so deferential to the Supreme Court? Not quite. It was actually telling the Supreme Court that it expects the same deference in return now that the Chief Justice and PSBank have asked the Court to step in. After all, if their friendly justices really wish to testify, no order from the Senate is needed. And as Senate President Juan Ponce Enrile himself suggested, whatever facts these justices will recount on the witness stand are already available in the public documents. Denying the subpoena presents no practical setback to the prosecution, but it offers a principled jab should the Supreme Court be minded to circle the wagons around its Chief (pardon the mixed metaphor).

The Senate decision not to issue subpoenas to the Court is a classic pre-emptive strike. The Supreme Court should read between the lines of the Senate order and, having done that, see the writing on the wall.

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