Shoot the ball, not the ref

The impeachment defense has done everything but argue its case on the merits. Now belatedly asking the Supreme Court to stop the trial, the defense signals that it never intends to. The defense cannot shoot the ball, so it shoots the referee instead.

One questions a court’s jurisdiction before a trial, not in the middle. Only with the most strained constitutional pretext can the defense now seek an injunction, after the Serafin Cuevas School of Law has run for several weeks and Senate President Juan Ponce Enrile has repeatedly asserted the Senate’s “sole power to try and decide all cases of impeachment,” including a complaint’s validity.

Shooting the referee is the defense’s latest ploy in a grand strategy of avoiding the issues. Faced with a concrete accusation, the defense responds with an abstract legal doctrine. When Chief Justice Renato Corona was accused of biased voting in decisions, the defense argued: 1) the Senate may not question Supreme Court decisions and 2) one justice may not be held liable for the acts of a collegial body. When Corona was accused of not disclosing his (presumably truthful) statement of assets, liabilities and net worth (SALN), the defense claimed Supreme Court regulations prevent this, even after other justices voluntarily disclosed their SALNs. Before the trial, when Corona was accused of railroading a TRO to allow former president Gloria Macapagal-Arroyo to leave the country, many cried for blind obedience to an amorphous concept of rule of law that precluded analysis of the circumstances. Most recently, Corona’s statement, “They will have to kill me to stop me from facing the Senate and the people because I have nothing to hide,” has given way to bank secrecy laws.

President Bill Clinton claimed “I did not have sexual relations with that woman,” but it was because “sex” in his colorful dictionary did not include oral sex with a White House intern. Unfortunately, this trial is not about whether it was Corona, and not Hayden Kho, who is in those videos. The trial is about whether Corona manipulated our jurisprudence to favor Arroyo, whether he refused to disclose his assets – dollars included – in violation of the Constitution’s anti-corruption provisions and, ultimately, whether he is a midnight chief justice. These simple questions deserve straight answers, not a defense by abstract legalism that claims that the questions may not even be asked.

Having proclaimed that only the military can stop the impeachment trial, Enrile cannot afford to cede any authority. The high court now gauges the Senate’s resolve against its trial balloon TRO on the disclosure of Corona’s dollar accounts. It seems to be a magnanimous compromise, a little TRO instead of the feared constitutional crisis should it order the trial stopped. Ignoring the little TRO’s precedent, however, would be like ignoring Muggsy Bogues.

When the Supreme Court blocked Chief Justice Hilario Davide Jr.’s impeachment in 2003, it claimed it could interpret the rules governing impeachment even though it had no power to decide the verdict. Impeachment is a political process in part because there are few restrictions and even the very definitions of betrayal of public trust and culpable violation of the Constitution are left to senators’ judgment. Imagine if the ongoing debate on the standard to convict crystallizes, whether into betrayal “beyond reasonable doubt,” betrayal with “overwhelming preponderance of evidence,” or betrayal with “substantial evidence.” Might the Supreme Court rule that the Senate’s verdict failed to meet its own standard and nullify it as “grave abuse of discretion”? Idle legal minds can craft infinite outlandish pretexts.

The defense insidiously claims that it has properly raised questions of law before the Supreme Court. This is like justifying a rule book change that forces a referee to count shots in only one side’s basket. Questions of law are woven into the impeachment trial’s fabric, and even if the Supreme Court does not outright halt the trial, a deceptively narrow order may leave the impeachment court with nothing to decide. Enrile need not suffer the travesty of having another court headed by the defendant himself shape his trial; every textbook tells the defense to raise its issues before the impeachment court when it has convened.

A true fan may be a fan not of one team or the other, but a fan of the game itself. It is perfectly legitimate for the silent majority not to be anti- or pro-Corona, but simply pro-Constitution, pro-truth and pro-justice. We must protect the legitimate, credible process we have in motion. Yes, the process drags, some prosecutors are grandstanding, the defense can be hypertechnical and we still wonder whether private prosecutor Arthur Lim jilted Sen. Miriam Defensor-Santiago in law school. But we are proud that people are not rallying in the streets, television and the Internet have made the trial a paragon of transparency, and democracy reverberates in Facebook and Twitter. If a player attacks the referee, should not the fans of both sides come down from the stands and rally behind the referee for love of the game?

Let us stand behind the ongoing process and see it through this time. Let us refuse to have our minds constricted by the defense’s legalisms and demand straight answers to the weighty (if poorly drafted) accusations. If the preceding generation reclaimed the Philippines’ place as Asia’s most vibrant democracy through People Power, let the present generation maintain this place by affirming that we now have institutions that make People Power superfluous.

Oscar Franklin Tan ([email protected]) is an international corporate lawyer who works in the Singapore office of one of the world’s largest law firms.