The lawyer’s ‘Umwelt’

Ordinary people who have been watching the impeachment trial at the Senate wonder why lawyers cannot seem to ask the most logical questions in the most direct way. Like: How much money did the Corona couple keep in the bank right up to the day they simultaneously withdrew all their deposits?  What were the sources of these deposits? If the withdrawals were made out as manager’s checks, have these checks been negotiated? By whom? More to the point: if impeachment is a valid reason for breaching the confidentiality of peso accounts, why can’t the impeachment court ask all the major banks to report all accounts kept by the Corona couple in their banks?

The simple answer is that the secrecy of bank accounts is strictly protected by law, and the rules of court prohibit asking general questions that take the form of a “fishing expedition.” The law requires that charges filed against anyone in court must be specific enough to allow verification. They must not be so broad in scope as to cover information not directly referred to in the charges or the alleged facts. There is a very sound reason for this. The Constitution itself commands it; it is the state’s way of institutionalizing the limits of its power over the individual.

Accordingly, a case filed against an accused does not automatically confer on anyone the right to peer into every aspect, or detail, or secret of his life. The prosecutor must show the basis for bringing up every piece of information concerning the accused. Such information has to be relevant to the specific charges or to the facts alleged.

No one has been more assiduous in enforcing the rules governing judicial trials than the head of the defense panel, former Supreme Court Justice Serafin Cuevas. He cannot be faulted for repeatedly raising objections on the floor. That is his job – to protect his client. Unfortunately, his objections often appear as attempts to block the “truth.” He is right to insist that not every “truth” needs to be known. Only those “truths” that can be connected to the specific charges and allegations mentioned in the case can be considered valid. Understandably, this is not easy to appreciate or accept from the standpoint of everyday common sense. We all grow up believing that every truth is worth knowing because the truth will set us free.

That is not how lawyers think. “The small subset of the world that an animal is able to detect is its Umwelt,” says the neuroscientist David Eagleman. “We accept our Umwelt and stop there.” The lawyer’s Umwelt is quite restricted. The lawyer sees only what the cognitive rules of his profession permit him to see. He is, in a way, color-blind; and usually he is not aware of it.

He takes comfort in the thought that facts unearthed in the course of a trial, whose relevance has not been shown, are as good as non-existent. He knows they can be stricken off the record of the trial, and cannot be offered as evidence. But, in reality, such information cannot be erased from the consciousness of judges, jurors or, least of all, the viewing public.

Here we see the problem that the defense panel confronts. The basic charge against Corona is lack of integrity, which disqualifies him from holding the highest position in the Judiciary. While the burden of proving lack of integrity formally rests with the prosecution, it is the accused in fact who is under greater compulsion to show that he is a person of integrity.

The reason for this paradox lies in the very nature of impeachment itself. What is being impeached is one’s credibility no less. It is not one’s property or money or liberty that is at stake here (although one may lose these too once a criminal case is filed). It is one’s moral fitness that is being challenged. We expect a good person whose integrity is under assault to go out of his way to remove any doubt about his life, his possessions or his actions. If Chief Justice Corona values his integrity, he should not hesitate to issue a blanket authority to make public all his bank accounts. The worst thing he can do is run for help to the tribunal he heads to protect the secrecy or confidentiality of his assets.

His is the obligation to prove his trustworthiness not only in words but also in deeds. If he has nothing to hide, then he has nothing to fear. But, every time he or his lawyers block the release of information about his properties and bank accounts, he commits what discourse analysts call a “performative contradiction.” His actions belie his words. Ironically, the more his lawyers succeed in protecting his right to privacy, the more he becomes suspect in the public eye.

Impeachment is not a strictly legal process because it is also a battle for public opinion.  Knowing this, one would have thought that the defense’s best strategy was to volunteer information, rather than to suppress it. Obviously, this is not how Chief Justice Corona and his team have chosen to play the game. Inside the impeachment court, they employ all the legal tools at their disposal to block the flow of information. Outside the court, Corona tries to draw public attention away from his own offenses by attacking his No. 1 critic, President Aquino, in the vain hope of putting him under trial as well.

By engaging the accused in a verbal brawl, the President risks lending credence to the charge that this case is driven by vendetta and that it has nothing high-minded about it. At this point, there is more than enough damaging information to warrant Corona’s conviction. It is better, I think, for P-Noy to stand aside and let the Senate finish its work.

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