Should surveys on Corona be banned during his trial?

Some quarters have called for the banning of surveys regarding the impeachment of Chief Justice Renato Corona. These calls for a survey ban seem to have been prompted by the recent release of a few nationwide surveys on the impeachment trial:

The Laylo Research Group and Pulse Asia both published results of surveys conducted in February and March.

Social Weather Stations (SWS) released results of a survey conducted on March 10-13, wherein 73 percent of those polled thought the Chief Justice was guilty while some 25 percent thought he was probably innocent. (See table.)

Don’t shoot messenger

Defense lawyers were quick to find fault with the sample size, saying that 1,200 respondents could not adequately represent the sentiment of the whole nation. Some have also criticized the timing or motive of these surveys. This caused my fellow spokespersons—Representatives Erin Tañada and Miro Quimbo—to say: “Don’t shoot the messenger!

A number of student groups in various universities and colleges recently conducted straw polls. Students have dared the powers-that-be to sanction them, asserting their right to be heard.

Should these surveys be allowed? Can or should they be banned?

The prosecution panel believes that the conduct of such surveys is part and parcel of our democracy and the rights guaranteed therein.

SWS vs Comelec

The Supreme Court in the 2001 case of SWS vs Comelec, ruled that a provision of Republic Act No. 9006 or the Fair Election Act, which would have prohibited surveys during the election period, was unconstitutional. The Court stated that such a provision violated the freedom of expression and constituted prior restraint of such freedom.

This guarantee of freedom of expression means that the government has no power to restrict speech because of its message, its ideas, its subject matter or its content, according to the Court.

The usual solution to speech that has gone overboard, perhaps obscene or libelous, is subsequent punishment of such speech, and not censorship or prior restraint.

Critics of the surveys point to their potential power to influence senator-judges, arguing that such pronouncements are sub judice, meaning they may tend to obstruct justice by unduly influencing judges.

An author of a book on impeachment, Edsel Tupaz, explains the nonapplicability of such a rule to impeachment: The sub judice rule, being of common law origin, is usually invoked in criminal proceedings whose ultimate fact-finders and decision-makers rest with a jury composed of laymen.

This is not the case with impeachment proceedings where the proceeding is not criminal in nature. In fact it is arguably administrative, paving the way for criminal and civil processes after the fact of removal and where the “jury” are senators who are not easily affected by propaganda of whatever form.

Unique

Impeachment is sui generis as often pointed out—unique in its quasi-political and quasi-judicial character.

Oftentimes, we find the defense trying to transform the impeachment trial into a full-blown judicial trial, ruled by the technicalities of court procedures. Arguing to ban surveys follows this very same approach.

Again, it bears stating that impeachment is, stripped bare, just a high-level dismissal or recall case against certain powerful officials. The aim is not to punish the erring official, but to protect the body politic, i.e. the people and the state, from an undesirable official.

Arguing from a policy standpoint, there is nothing repugnant in having such surveys conducted and published. Certainly, in the freewheeling market of ideas that is the Philippine media, parties who feel aggrieved by survey results can respond to such.

Snapshots

Surveys, after all, are mere snapshots of public sentiment at a given period—fleeting, ephemeral, subject to change. Unfortunately for the defense, these surveys were taken at a time when the prosecution had already completed much, if not all, of its presentation of evidence and the defense had just begun to present its side.

The percentage of the public that believes Corona is guilty may change after the defense presents its evidence. It may increase or decrease, depending on how things play out. But noteworthy is the large percentage, almost three-fourths, of the public (coming from both the guilty and innocent camps) who believe the Chief Justice should personally appear before the court and testify.

Proposing a ban on surveys tends to presuppose that the Senate impeachment court has the actual power or jurisdiction to impose sanctions on the survey outfits. This remains to be seen. Section 18 of the Senate Rules bans senator-judges, prosecutors, counsels, witnesses and the respondent from publicly commenting on the merits of the case.

Yet, we have routinely seen the same being done. We have not complained because we believe the true nature of impeachment as a public trial should not preclude public discussion of issues. Why else is the trial being carried live on television when regular trials are not?

What if the survey groups were to defy such a hypothetical ban? Can one imagine the Senate sergeant-at-arms (whose daily mantra of “All rise …” at the end of every trial day provided comfort to a great many) trying to arrest the professors who oversee such surveys in order to carry out a possible sanction? Hard to conceive.

Bandwagon effect

Those who fear the influence of surveys say that these create a bandwagon effect, which tends to condition the minds of the public, or worse, the senator-judges. This kind of paternalistic reasoning seems to underestimate the discernment or intelligence of our people and the senators.

There is a reason the power to convict impeachable officials is lodged in our senators sitting as judges. They are supposed to be the nation’s wise men, deftly providing guidance to the ship of state on difficult questions of law and policy.

More than this, they also possess a mandate from the people, and one day, will eventually be called upon by the public to account for the verdict that they will deliver. Such is the beauty of democracy.

Mahar Mangahas of SWS summed up the role of surveys nicely: “Saying that public opinion is irrelevant to reaching a fair verdict in the current impeachment trial simply means that the Senate should not necessarily conform to the dominant opinion in making its decision. It does not mean that the Senate should be unaware of the various opinions on the matter. Listening to what the people say is basic to democracy”

Bygone era

An argument that says we should regulate certain types of speech because it may mislead, confuse, or unduly influence others undoubtedly belongs to a bygone era. Censorship has seldom proven to be a potent repartee to what one might consider impertinent thought or faulty logic. Nowadays, the solution lies in better speech and better, more convincing logic.

At the end of the day, the impeachment trial is a public trial, in which the public has an indubitable stake. In the marketplace of ideas, both inside and outside the Senate impeachment court, the best defense is indeed more speech, more truth-telling, more (and better) legal arguments and more evidence. Not less.

(Aurora Rep. Sonny Angara is a spokesperson of the prosecution panel of the House of Representatives in the impeachment trial.)