The lawyers’ ‘ultimate fac’

If the legal minutiae have begun to test everybody’s patience, it is because the lawyers fail to see that it is the Filipino public they have to woo. That is not surprising.

One titan of the law, Joseph Story, had long ago likened the law to “a jealous mistress, [who] requires a long and constant courtship … not to be won by trifling favors, but by lavish homage.” Another, Oliver Wendell Holmes Jr., pursued the metaphor: “…a mistress only to be wooed with sustained and lonely passion, only to be won by straining all the faculties by which man is likest to a god.”

If I suddenly recall these classic quotes, it is not because the impeachment lawyers have displayed godlike virtuosity but rather because I have often heard them say “ultimate fac.” Each time the imagination runs amuck.

Senators Miriam Defensor-Santiago and Gregorio Honasan have provoked a deep debate on the constitutional nature of the impeachment process. Is it a criminal proceeding that demands the strictest safeguards for the rights of the accused, including the highest standard of “proof beyond a reasonable doubt”? Or is it a mere administrative process where the rules are relaxed and the evidentiary standard is merely “substantive evidence”?

I agree that the issue is important, but I feel that, whichever way it goes, it will not make much of a difference. In the end, each senator-judge will be applying the legal tests according to their own lights, hopefully illumined by the public’s. Consider the following:

First, Senator Honasan asked an apparently simple but very loaded question: Does the person being impeached enjoy the right to be “presumed innocent until the contrary is proved”? The answer from both sides was a categorical “Yes.” But that question was actually tricky because the Constitution limits the right solely to “criminal prosecutions.” Yet when the question was posed, could anyone have answered, “No, it doesn’t apply”? For the defense, of course, it is in their interest to invoke the presumption of innocence. But for the prosecution, it was simply inconceivable for Rep. Niel Tupas to have disavowed the presumption, first as a matter of law (in which case we stretch the constitutional text to cover non-criminal trials as well) but even more as a matter of public opinion. My former student Niel had no choice but to say “Yes, it applies.” In the end, the presumption can be invoked just the same, whether impeachment is criminal or not. The big debate didn’t settle this question. Common sense and fairness did, as I assume Senator Honasan intended.

Second, several of the articles of impeachment rest on pure questions of law that will not rise or fall on the basis of evidentiary tests. Was Renato Corona a midnight Chief Justice? To imply that all must be considered under a standard of evidence obscures the key questions that demand little evidence, only a judgment as to law.

Just to show you how useless the criminal versus administrative debate is, let me ask you: Does one need to feel betrayed “beyond a reasonable doubt”? It’s simply absurd to talk about the breach of public trust in this context.

Third, the big debate doesn’t determine the “appreciation” of the evidence. It can’t tell us what truth the senator-judges will read from the evidence. How much evidence establishes truth beyond a reasonable doubt, that is to say, with moral certainty about the truth or falsity of an allegation? Every senator-judge will have his or her own threshold of moral certainty. Some are easily convinced, others not. Some are instinctively distrustful (“diskumpyado”), others more sanguine and unsuspecting. In other words, we repose too much trust in the power of words to confine and “cabin” what is essentially the intuitive judgment of human beings. At a more theoretical level, that in fact was the central insight of Holmes’ “Legal Realism”: “Certainty is an illusion and repose is not the destiny of man.”

Finally, contrast the questioning by the parties’ counsels and that by the non-lawyer senators. In addition to Senator Honasan’s which I had earlier discussed, recall how Sen. Ralph Recto grilled Bureau of Internal Revenue chief Kim Henares. Until then, for over an hour, the private prosecutor wasted everybody’s time on a detailed questioning to prove facts already admitted by the defense (and for which further proof was utterly superfluous), or about points on which Henares couldn’t conceivably testify (“beyond her competence”). Yet it was Senator Recto who elicited from Henares not just the key facts so that Corona’s tax returns could be examined by the Senate, but likewise the nuance that Corona might have made tax payments not reflected in the BIR records.

It is time to do what the Senate and the opposing camps should have done at the outset: sit down and hold the equivalent of a “pre-trial” to streamline the flow of the trial. Mercifully but not surprisingly, it was Santiago who has come to the rescue, and called on both parties to put their cards on the table for all to see.

Had this been done sooner, we could have precluded the pathetic scene last week, when the prosecution wanted to open the trial with the second article of impeachment (corruption) while the defense had its guns ready to defend on the first (midnight Chief Justice). We could have saved ourselves that excruciating hour-wait for Corona’s tax returns, in the first place uncontested by opposing counsel. We could have saved ourselves the exasperation of watching documents “marked in evidence,” akin to watching grass grow.

For the lawyers, the ultimate fact is that it is the Filipino people whom they are wooing. That is apparently lost on some prosecution counsels who act like being boring is actually a seduction strategy.

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