The mystery of the Friday hearing

(Editor’s Note: This is a weekly review of the impeachment trial of Chief Justice Renato Corona. It aims to help the public appreciate the legal issues and enable them to be engaged more meaningfully in this historic process.)

The mystery of the Friday hearing was why both parties were no longer interested to look at the bank accounts. But what is really perplexing is why the Senate itself could very well have opened the accounts—but balked. Either the senator-judges had already made up their minds, and there was no point prolonging the agony. Or the senator-judges knew that, in the final reckoning, it is not questions of fact that will decide this case but questions of law, morals or public policy.

The prosecution says that its evidence is already complete. After all, Chief Justice Renato Corona himself has already confessed to the facts: he admitted that he held $2.4 million in four dollar accounts and P80 million in peso accounts. He admitted that he did not disclose the dollar accounts in his statement of assets, liabilities and net worth (SALN). For the prosecution, that makes an open-and-shut case. The law is clear, the facts indubitable. No guesswork needed. All we need is the straightforward application of the letter of the law.

The defense says that the prosecution hasn’t proved anything. The wealth can be explained. The dollar accounts are from Corona’s savings from way back, while the peso accounts are commingled savings of several members of his family. He didn’t declare the dollar accounts in his SALN because the law provides that foreign currency deposits are “absolutely confidential.” He didn’t declare the funds earmarked for the Basa-Guidote heirs because they weren’t his.

Defense has big problems

There are big problems with the defense’s case. First, all the explanations that the assets had been legitimately acquired are irrelevant. The prosecution actually failed to charge the Chief Justice for ill-gotten wealth (for which they have been faulted) and indeed the Senate barred all evidence on that point. The only issue before the Senate is the nondisclosure in the SALN.

Second, the defense is plain wrong when it argues that the SALN requirement itself allows exceptions “in accordance with law,” in this case, the Foreign Currency Deposits Act. There is simply no such exception. The SALN reporting obligation covers all assets, peso and dollar alike. The proffered distinction is totally contrived.

Worse, to exempt dollar deposits from the SALN will defeat the law’s purpose altogether, and tear a giant hole in the net meant to catch grafters.

The only way the defense can pull it off is for them to plead that the omissions do not rise to the level of an impeachable offense. Perhaps that is why they took pains to show how the wealth was legitimately gotten. The defense can argue that nondisclosure is not mala in se (wrong in itself) but merely malum prohibitum (wrong because prohibited). (For show biz buffs, this was Ellie’s first recitation answer in the movie, “Legally Blonde.”) The evil sought to be avoided is graft, while the SALN is merely one mode of enforcement. The root evil was never the subject of the proceedings, and mere mala prohibita cannot amount to an impeachable offense.

On the other hand, the prosecution can argue that precisely, if it’s malum prohibitum, it doesn’t require intent. The omission is criminal in itself without having to show intent to conceal.

Evidentiary problem

On the other hand, if the prosecution insists on applying the law mechanically, they face equally mechanical evidentiary issues. The undeclared wealth is right now proved with the testimonies of two people: the Ombudsman ($12 million in 82 accounts) and the Chief Justice himself ($2.4 million in four accounts and P80 million in peso accounts). The prosecution itself has said that Corona’s statement is legally worthless and didn’t even bother to cross-examine. They are then left with the Ombudsman’s accounting but it’s too bad they chose not to open the actual bank statements.

Senate reluctance

The Senate itself wasn’t interested in hearing more facts. First, it refused Sen. Miriam Defensor-Santiago’s plea to subpoena the bank managers. Next, even after Chief Justice made his waiver absolute, the Senate President declared the Senate “not a producer of evidence, but only a hearer of facts” and would “merely take note of the waiver [but not] act on it.”

That is correct but it wasn’t always his position. Recall that the Senate subpoenaed witnesses on its own before, when they were incensed at confidential bank documents being leaked to the Senate, and they summoned several witnesses sua sponte (on their own accord). Even defense counsel Serafin Cuevas wondered, “Whose witness is this?” The rules assume that a witness has to be offered by a party (exactly what Enrile now says), but earlier everyone was saying that the impeachment was sui generis anyway.

Monday’s oral arguments

The purpose of Monday’s oral argument is to help the judges make up their minds by weaving together the facts with the legal arguments. The past 42 hearing days were evidentiary; it played the detective’s whodunit game. Monday’s hearing is a different ball game. In it, the parties marshal their facts and frame their theory of the case.

And then the senators vote. Each article of impeachment will be voted on separately. Each senator will be called individually to state his vote and may explain briefly.

The oral argument is superfluous if the judges have already decided, or will not decide on the basis of the merits of the case anyway. But it can be decisive if the senator-judges realize that sound reasoning is necessary to make their verdict just.