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POSTSCRIPT / December 17, 2000 / Sunday

Senators must decide if they are only judges

By FEDERICO D. PASCUAL JR.

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WHILE the ruling of Chief Justice Hilario Davide Jr. allowing the opening of the bank records on the Valhalla account appeared to have favored the prosecution in the impeachment trial of President Estrada, it is too early for them to rejoice.

First, despite the statement of Rep. Joker Arroyo of the prosecution that their case depended on those records, it is too early to assess their probative value. It could turn out that the P142-million Valhalla check was not signed by President Estrada as Arroyo alleged.

Second, as announced by Sen. John Osmeña of the pro-Estrada bloc in the Senate, a senator (himself?) might question the Davide ruling on Monday and force a vote on it. A simple majority could overturn the ruling.

Third, as intimated by defense lawyer Estelito Mendoza, this suki of the Supreme Court might just run to the high court to find relief for his client the President. While the tribunal may rally around its chief despite the known influence of Mendoza in the premises, the defense could buy valuable time for other forces to work.

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OPENING of the Equitable-PCI Bank records will only confirm their existence, not necessarily confirm the direct participation of President Estrada in the preparation of the check.

The documents will still be several layers and several objections away from the left hand of Joseph Ejercito Estrada that Arroyo charged had actually signed the Valhalla check used to buy the Boracay mansion for a presidential mistress.

Even if the opening of the bank records would confirm reports from the banking grapevine that the secret account was opened by a presidential crony, a quantum legal leap is still required to conclude that the crony’s act is that of the President.

* * *

THE short cut across the chasm is the verification of the signature on the Valhalla check.

The Scotland Yard handwriting expert brought in by the prosecution could testify that the Jose Valhalla signature was indeed affixed by Joseph Ejercito Estrada.

We would then expect the President’s defense team to produce its own expert, mercifully not from the National Bureau of Investigation!, to dispute the prosecution expert’s opinion.

A side battle of experts would then erupt on the Senate floor, adding another delay to the proceedings and pushing farther away the direct linking of the President to the core charges.

* * *

WITH the expected delays (plural), the petulant prediction of John Osmeña that the impeachment case may just be decided next month without the Valhalla documents being entered as evidence would come to pass.

If the Valhalla papers’ opening and acceptance is effectively blocked by the defense, and the prosecution loses the case (even if not necessarily for that reason), Arroyo is thus provided a ready excuse for his failure to prove the charges.

A defeated Arroyo could always say “natalo kasi ayaw ninyong buksan ang mga bank records.”

* * *

THE caucus tomorrow of the Chief Justice with the senators is crucial. Conceivably, the caucus would try first to draw out a consensus on whether or not Davide’s ruling allowing the Valhalla records would stay.

Failing a consensus, the dissent would have to be resolved by a vote as provided under the Senate’s rules of procedure. A simple majority vote among the 21 senators wins. (Davide is a non-voting president. Sen. Robert Barbers, who is abroad for medical treatment, has not taken his oath as judge.)

If Davide’s ruling for opening the Valhalla records is affirmed, that’s not the end of the tortuous legal trail. Mendoza has served notice that the defense might elevate the matter to the Supreme Court.

* * *

THAT’S not the only contentious issue that may yet find its way to the Supreme Court.

One still unresolved question is whether or not the 11-man House prosecution team sent to the Senate trial may engage the services of private lawyers.

Chief Justice Davide has allowed it over the objections of the defense and despite a letter of House Speaker Arnulfo Fuentebella saying that private lawyers were not authorized by the chamber.

As it appears that the Senate would listen to the Speaker only if he presented a House resolution, the pro-Estrada elements in the House are now busy putting together such a resolution.

* * *

ONE question is whether or not the prosecution presentation conducted so far by a private lawyer would be stricken off the record if a House resolution were received by the Senate in the next few days.

We think that whatever has been entered into the record with the assistance of private lawyers, notably Simeon Marcelo who examined key witness Ilocos Sur Gov. Luis “Chavit” Singson, should stay.

The effects of any House resolution disallowing private lawyers assisting the prosecution should be prospective, not retroactive.

* * *

IT is not the fault of the congressmen in the prosecution team that the House did not explicitly prohibit their engaging private lawyers. The team’s job is to win the case and it is presumed to have been armed with plenary powers to do its job well.

The prosecution team should not now be punished for an omission that is not their fault. It should, in fact, be commended for its initiative of getting competent assistance in doing its difficult job.

Neither should the watching public be punished through the overhauling of the records and a reenactment of the trial just because of an oversight of a negligent House.

Nor should the truth be the victim of partisan maneuvers in the House. Whether elicited by a congressman-lawyer or a private lawyer, the truth will still be the same truth.

* * *

IT is not likely to happen, but suppose there were only five lawyers in the entire membership of the House of Representatives.

How can the chamber send an 11-member prosecution team composed exclusively of congressmen who are lawyers who are at the same time competent and in agreement with the filing of the impeachment charges? In such a situation, should not the House retain private lawyers?

Note also that the Constitution prohibits lawmakers from engaging in their profession. If congressmen-lawyers have not been practicing for years, how competent would they be in handling a difficult case?

It is absurd to adopt a general rule, as contemplated in the proposed House resolution, that only congressmen must actively prosecute an impeachment case.

* * *

THE pro-Estrada leadership in the House seems to think that in this impeachment case versus the President, the complainant is the House of Representatives. It is not. Under Section 3, Article XI, the Constitution merely designates the House as the initiator of impeachment cases.

In the present case, the charges were in fact filed by some citizens’ groups, with some congressmen merely affixing their signatures to endorse the charges.

In effect, the complainants are the “People of the Philippines,” not the House of Representatives. But the title “People of the Philippines vs. President Joseph Ejercito Estrada” is avoided in the title of the case so as not to give the misimpression that it is a criminal case.

In practice, the plaintiff or complainant generally chooses his own lawyer.

* * *

USING an analogy frequently used, the complaining parties are the people, with the House being a kind of prosecutor or fiscal that checked if there is probable cause or a prima facie showing that the filing of charges is warranted. The Senate is the court or the judge trying the impeached President.

Public prosecutors or fiscals are sometimes assisted by private lawyers of complainants, although these lawyers act under the direction of the prosecutor. The private lawyers engaged so far in the impeachment case operated in the same manner also under the direction of the prosecution.

Why should we suddenly change this practice of allowing private lawyers just because Joseph Ejercito Estrada is the one facing charges? That’s excessive pasipsip by administration congressmen.

* * *

SEN. Juan Ponce Enrile, for whatever reason, confronted Singson in Friday’s hearing with some arithmetic error in ledgers that had been presented as evidence. Wittingly or unwittingly, Enrile thus gave Singson a chance to correct or explain away the error as part of his direct testimony.

The alacrity of Enrile in pouncing on the error was providential since it saved Singson the ordeal of having to face a sharp defense lawyer on cross-examination on the erroneous entries.

In the manipulative hands of the other party’s lawyer doing a cross-examination, even a simple error could be blown out of proportion. But Singson was spared this.

The defense lawyers may want to ask the friends of the President among the senators to first coordinate with them before embarking on their own cross-examination of witnesses.

* * *

THIS brings us to a related point. Many people are laughing at the ridiculous titles being piled before the names of senators. They are not only senators and judges, but are also at times witnesses, defense/prosecution lawyers, friends of the court, and even court jesters. How do you roll into one all those titles?

As taxpayers, we want to remind senators that by their antics, they might just be destroying the very institution that has provided them a platform for projecting their alleged legal expertise in aid of reelection.

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