IMPEACHMENT TRIAL: Tuesday, January 17, 2012

At 2:03 p.m., the hearing was called to order with Senate President Juan Ponce Enrile presiding.

THE PRESIDING OFFICER.  The impeachment trial of Supreme Court Chief Justice Renato C. Corona is hereby called to order.  We shall be led in prayer by Senator Joker P. Arroyo.

SEN. ARROYO.  Almighty God, our ultimate truth and supreme law, we humbly offer our day to you.  May every word we say today speak the truth and every action we take serve the law.  Help us to be worthy of your trust.  We are gathered today as the impeachment body.  May we be the instrument of peace  and hope that we will do justice though the heaven’s may fall.  With charity and humility in our hearts and with unity of mind and purpose, harness our collective minds to render impartial justice and do well by the people.  And above all,  please God.  Amen.

THE PRESIDING OFFICER.  The Secretary will now please call the roll of Senators.

THE SECRETARY.  The honorable Senators Angara; Arroyo;  Cayetano, Allan Peter Compañero; Cayetano, Pia; Defensor-Santiago; Drillon; Ejercito Estrada; Escudero; Guingona; Honasan;  Lacson; Lapid; Legarda; Marcos; Osmeña; Pangilinan; Pimentel; Recto; Revilla; Sotto; Trillanes; Villar; the Senate President.

THE PRESIDING OFFICER.  With 19 Senators present in the Chamber, the Chair declares the presence of a quorum.

Majority Floor Leader.

SEN. SOTTO.  Thank you, Mr. President.

May I ask the Sergeant-at-Arms to make the proclamation.

THE PRESIDING OFFICER.  The Sergeant-at-Arms is directed to make the proclamation.

THE SERGEANT-AT-ARMS.  All persons are commanded to keep silent under pain and penalty while the Senate is sitting in trial on the Articles of Impeachment against Chief Justice Renato C. Corona.

THE PRESIDING OFFICER.  Majority Floor Leader.

SEN. SOTTO.  Mr. President, I move that we dispense with the reading of the January 16, 2012 Journal of the Senate sitting as an impeachment court and consider the same as approved.

THE PRESIDING OFFICER.  Is there any objection?  (Silence)  There being none, the January 16, 2012 Journal of this court is hereby approved.

The Secretary will please call the case before the Senate sitting as an impeachment court.

THE SECRETARY.  Case No. 002-2011 in the matter of impeachment trial of honourable Chief Justice Renato C. Corona.

THE PRESIDING OFFICER.  Majority Floor Leader.

SEN. SOTTO.  Mr. President, may we ask the parties and/or their respective counsel  to enter their appearances.

THE PRESIDING OFFICER.  For the prosecution.

REP. TUPAS.  Good afternoon, Mr. Senate President, Your Honors.  For the House prosecution panel, same appearance.

JUSTICE CUEVAS.  For the defense, Your Honor, same appearance as duly recorded in the previous proceeding in yesterday’s occurrences.

THE PRESIDING OFFICER.  Majority Floor Leader.

SEN. SOTTO.  Mr. President, we are in receipt of a request for the issuance of subpoena filed by counsel of  Chief Justice Renato C. Corona on 11 January 2012 asking for the issuance of subpoena ad testificandum requiring Rep. Niel Tupas Jr., Speaker Feliciano R. Belmonte Jr., Marilyn B. Barua Yap, Rep. Jesus Crispin C. Remulla, Rep. Hermilando I. Mandanas and Rep. Tobias N. Tiangco to appear for examination before the impeachment court as to their personal knowledge and statements regarding the circumstances and events that transpired on December 12, 2011 which led to the impeachment of Chief Justice Corona.

Mr. President, I move that the Presiding Officer rule on the matter.

THE PRESIDING OFFICER.  The subpoena requested by the defense counsel of the respondent Chief Justice is in connection with the preliminary  issue regarding the verification of the Articles of Impeachment and that matter having been already decided and ruled upon by the impeachment court in yesterday’s hearing, I think the request for subpoena is already moot and academic.  And so, therefore, the Presiding Officer of this court rules that the subpoena is rendered moot, and therefore cannot be granted.  (Gavel)

SEN. SOTTO.  Mr. President.

THE PRESIDING OFFICER.  The Majority Floor Leader.

SEN. SOTTO.  We are also in receipt of a request for the issuance of subpoena filed by the prosecution on 12 January 2012, asking for the issuance of subpoena ad testificandum and subpoena duces tecum to Chief Justice Corona, Cristina R. Corona, Carla R. Corona-Castillo, Constantino T. Castillo III, Francis R. Corona and Charina R. Corona in relation to the instant impeachment proceedings.

To continue, Mr. President, yesterday, January 16, 2012, counsel for the Chief Justice filed an opposition to the request for the issuance of subpoena.  So, Mr. President, I move that the Presiding Officer rule on the matter.

THE PRESIDING OFFICER.  Is there any objection?  (Silence)  There being none, the Chair rules—made the ruling and this ruling is in writing.  May I have the …

ATTY. CUEVAS.  If Your Honor, please.

THE PRESIDING OFFICER.  Yes.

ATTY. CUEVAS.  We have an opposition on record filed several days ago in connection with this motion, Your Honor.

We are opposing the issuance or the request for the issuance of subpoena and subpoena duces tecum to be addressed to the impeachable public officer, the Honorable Chief Justice Corona, his wife and his children, together with the production of the documents therein mentioned and specifically enumerated.

Now, we ask permission, therefore, before the court rules on the motion that we be allowed, even for three minutes, just to support our opposition to the issuance of said the subpoena.

THE PRESIDING OFFICER.  You have three minutes to make your argument, but I would like to inform you that the Chair has already made the ruling denying the issuance of subpoena duces tecum and subpoena ad testificandum, and I would like—but if you want to continue stating your position …

SEN. SOTTO.  Mr. President.  Mr. President.

THE PRESIDING OFFICER.  Yes.

SEN. SOTTO.  May we request the Gentleman to just abide by the motion that we have already approved, and so that the Senate President be allowed to read the ruling of the …

THE PRESIDING OFFICER.  Or you may speak later on after the …

SEN. SOTTO.  Yes.

THE PRESIDING OFFICER.  … ruling is stated into the record.

ATTY. CUEVAS.  Thank you, Your Honor.

Apparently, we were of the impression that there was no opposition, but our opposition is on record.

We only wanted to state that as a fact, Your Honor.

SEN. SOTTO.  No, President, as a matter of fact I read it into the records that you filed an opposition.

ATTY. CUEVAS.  Thank you.  Thank you.  Thank you, Your Honor.

THE PRESIDING OFFICER.  And this Chair would like to state for the record that we have taken note of your opposition and may I now request the Secretary, acting as clerk of this court, to read the ruling of the Chair.

THE SECRETARY GENERAL.  Re:  Request for subpoena to the members of the Corona family.

This court addresses the request for the issuance of subpoena, dated January 12, 2012, filed by the House of Representatives, requesting for the issuance of subpoena ad testificandum and duces tecum, directed to Chief Justice Renato C. Corona, respondent Chief Justice, his wife, Christina R. Corona, their children, Carla R. Corona-Castillo and Francisco R. Corona, and their children’s spouses, Constantino T. Castillo III and Charina R. Corona, to require them to appear and testify before this court during the hearing on January 16, 2012 at 2:00 p.m. or on such other date and time as may be specified by court and to bring with them documents specified.

This court resolves to deny the request.  First, the primary purpose of the request for the issuance of subpoena to respondent, Chief Justice, is to require him to testify for the prosecution in relation to the articles of impeachment filed against him.  This cannot be done without running a cowl of respondent’s constitutional rights against self-incrimination.

Section XVII, Article 3 of the 1987 Constitution provides, no person shall be compelled to be a witness against himself.  The justification for the guarantee was stated by the Supreme Court by the avuncular case of U.S. vs. Navarro, the Supreme Court ruled, it was established on the grounds of public policy and humanity, of policy, because if the party were required to testify, it would place the witness under the strongest temptation to commit perjury, and of humanity, because it would prevent the extorting of confessions by juris.

In similar vein, Supreme Court in U.S. vs. Tan Teng, categorically opined that the main purpose of the provision is to prohibit compulsory oral examination of prisoners before the trial, or upon trial for the purpose of extorting and willing confessions or declarations implicating them in the commission of a crime.

This constitutional provision applies to civil, criminal or administrative cases.  This is not without jurisprudential justification.  In Cabal vs. Kapunan, Jr., in a proceeding for forfeiture of property under Anti-Graft Law, the respondent therein was accorded the right to refuse to take the witness stand to testify.  In Pascual vs. Board of Medical Examiners, the respondent therein in an administrative investigation for immorality and malpractice was accorded a similar right since the revocation of his license as a medical practitioner could even be more serious deprivation than forfeiture of property, neither may the respondent Chief Justice be compelled by subpoena to produce documents stated in the request.  This is because the prohibition is also applied to the compulsion for the production of documents, papers, and chattels that may be used as evidence against the witness.

There is no reason for this court not to apply the above jurisprudential doctrines. It should be stressed that, if convicted, respondent Chief Justice would suffer the penalty of a removal from his position as Chief Justice before the expiration of his term, and suffer perpetual disqualification from holding any government position.  Therefore, it would violate the constitutional right of respondent Chief Justice against self-incrimination if he would be compelled to appear and testify against himself by virtue of a subpoena directed to him by the court, upon the request of the prosecution.

Second, it must also be emphasized that even under the Rules of Procedure on Impeachment trials of this court, the person impeached is not required to attend the proceedings.  The only consequence of his failure to appear is that the proceeding shall continue in his absence.

Thus, the Senate impeachment Rules provides to wit:  Number seven, upon the presentation of the Articles of Impeachment in the organization of the Senate as herein before provided, a writ of summon shall be issued to the person impeached, reciting or incorporating said articles and notifying him/her to appear before the Senate upon a day and at a place to be fixed by the Senate, and name in such wit and to file his/her answer to said articles of impeachment within a non-extandible period of ten days from receipt thereof, to which the prosecutors may reply within a non-extendible period of five days therefrom, and to stand to and abide by the orders and judgment of the Senate.  Such writ shall be served by such officer or person named in the order thereof not later than three days prior to the day fixed for such appearance of the person impeached either by the delivery of an attested copy thereof to the person impeached but the personal service cannot be done, service of the writ may be made by leaving   a copy with a person of sufficient age and discretion at his/her last known address or at his/her office or place of business.  And if the service of such writ shall fail the proceedings, shall not thereby abate but further service may be made in such manner as the Senate shall direct.

If the person impeached, after service, shall fail to appear either in person or by counsel on the day so fixed or appearing shall fail to file his answer to such Articles of Impeachment, the trial shall proceed nevertheless as upon a plea of not guilty.  If a plea of guilty shall be entered, judgment may be entered thereon without further proceedings.

Anent the request for the issuance of subpoena duces tecum and ad testificandum to the respondent Chief Justice’ wife, Cristina R. Corona, the Court also denies the same.  The last sentence of Section 6 of the impeachment rules state that:  “The provisions of the Rules of the Senate in the Revised Rules of Court shall apply suppletorily whenever applicable.”  Thus, the Court is of the considered view that Section 22, Rule 130 of the Revised Rules of Court squarely applies.  It provides:  “Section 22. Disqualification by reason of marriage.  During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse except in a civil case by one against the other or in a criminal case for a crime committed by one against the other, or the latter’s direct descendants or ascendants.”  The reasons given for the rule are:  Number 1, there is identity of interest between husband and wife.  Second, if one were to testify for or against the other, there is consequent danger of perjury.  Three, the policy of the law is to guard the security and confidences of private life even at the risk of an occasional failure of justice and to prevent domestic disunion and unhappiness.  And fourth, when there is want of domestic tranquillity, there is danger of punishing one’s spouse in the hostile testimony of the other.

For this rule to apply, the following requisites must be complied with.  One, that spouse for or against whom the testimony of the other is offered, is a party to the case.  Second, that the spouses are legally married.  Third, that the testimony is offered during the existence of the marriages.  And fourth, that the case is not one against the other.

This Court is of the view that the foregoing requirements for the application of marital disqualification rule under Section 22 , Rule 130 of the Rules of Court are present in the instant case.

For one, it is an admitted fact that Mrs. Cristina Corona is the wife of respondent Chief Justice and that she sought to testify during the existence of her marriage with the respondent Chief Justice.  Secondly, the request for the issuance of subpoena to Mrs. Corona is for her to testify in favor of the prosecution.  Thirdly, this impeachment case is definitely not a case of Spouses Corona against each other.  Thus, not falling within the recognized exception of the marital disqualification rule, this Court finds the request for   subpoena duces tecum and ad testificandum to Mrs. Cristina Corona without legal justification.

As far as the request for the issuance of subpoena to respondent Chief Justice’s children, Carla R. Corona Castillo and Francis R. Corona are concerned, it should also be stated that these are also disallowed.

Section 25, Rule 130 of the Revised Rules of Court, provides that: “Section 25. Parental and filial privilege.  No person may be compelled to testify against his parents, other direct ascendants, children, or other direct descendants.”  The above is an adaption from a similar provision in Article 315 of the Civil Code that applies only in criminal cases adopted in Article 215 of the Family Code.  But those who revised the Rules of Court chose to extend the prohibition to all kinds of action whether civil, criminal or administrative filed against parents and other direct ascendants or descendants.  The disqualification is intended to preserve family solidarity and to prevent a common child to be used by a parent against the other on criminal litigations between them.  The solidarity and unity of the family is shattered  when a child takes sides in parental feuds.  Neutrality is still the best part of prudence on the part of descendants except only in extreme cases.  Thus, on account of the foregoing reasoning, this court cannot issue subpoena to respondent Chief Justice’s children, Carla R. Corona Castillo and Francis R. Corona.

With respect to the request for subpoena duces tecum  and ad testificandum to Mr. Constantino T. Castillo III and Charina R. Corona, this court adopts the doctrine of necessary implication.  The doctrine of necessary implication means that what is implied in the statute is as much as part thereof as that is expressed.  This court believes that by necessary implication, children-in-law are covered  by the prohibition to testify on account of parental and filial privilege.  The rationalization of this court is bolstered taking into account the primordial purpose of parental and filial privilege which is the solidarity and unity of a family.

Wherefore, in view of all the foregoing, the request for the issuance of subpoena dated January 12, 2012 be denied for lack of merit.  Signed, Senate President Juan Ponce Enrile.

THE PRESIDING OFFICER.  The counsel may proceed to state  his additional argument., if you have.

JUSTICE CUEVAS.  Mr. President, I made that short manifestation because I was not yet informed that there is a decision forthcoming.  And aside from that, there was a categorical statement that there seem to be no opposition.  It is only for that purpose, Your Honor, that we wanted the record to speak the truth of the reality.

Thank you very much, Your Honor.

REP. TUPAS.  Mr. President, Your Honors please.

THE PRESIDING OFFICER.  What is the pleasure of the chief counsel of the House of Representatives?

REP. TUPAS.  Mr. Senate President, with all due respect, may we request that the prosecution be given time to file a written motion for reconsideration, Your Honors.

THE PRESIDING OFFICER.  You may but I would like to advance to you that your appearance of certain persons to appear here and bring documents for the purpose of making them testify for the prosecution and I think that since the principal party  in this case is the Chief Justice and he is the respondent and the people being called upon along with him to be brought here under a compulsory process to testify would expose him to a possible questions that will compel him to testify, that is the reason why this court has rendered the decision denying the request for the prosecution.  It is true that in proper situations and circumstance, a person may invoke the right of not to be compelled to testify against himself where he is sitting on the witness stand but in those cases, a compulsory process has not been issued to him.  And if I remember my Constitution, the Bill of Rights, and the criminal procedure that I learned, the only one entitled to a compulsory process to comply the attendance of witnesses in his defense and evidence for his defense is a person charged with a crime.  This proceeding is akin to a criminal case.

And so, therefore, that is the basis of the ruling of this impeachment court.

REP. TUPAS.  Mr. Senate President, with that, the prosecution submits to the ruling of the Senate President.  Thank you.

SEN. CAYETANO (A.).  Mr. President.  Mr. Presiding Officer.

THE PRESIDING OFFICER.  The Gentleman from Taguig.

SEN. CAYETANO.  Mr. Presiding Officer, I agree with the ruling as so far as the Chief Justice is concerned, but as to the wife, the children and the son-in-law, may I put on record my reservations, Mr. President.

First of all, Mr. President, I am also a family man and whether or not we should call the children is really not my concern by actually the concern of the prosecution.  But I would just like to deal with the strict legalities or like to deal with the interpretation of the law whether or not the prosecution is in fact entitled to subpoena the children and certain documents.

First of all, Your Honor, the relevance and materiality of the subpoena is readily discernable from the documents so far as disclosed by the prosecution in their pleadings among the charges against the Chief Justice is the accumulation of ill-gotten wealth, the alleged accumulation of ill-gotten wealth and false entries is in the SALN.  Some of the properties discovered by the prosecution allegedly are in the names of Corona’s children.

If you look at Republic Act No. 1379 on Forfeiture of Ill-Gotten Wealth, paragraph 1 states, “Property unlawfully acquired by the respondent, but its ownership is concealed by its recorded in the name of or held by the respondent’s spouse, ascendants, descendants, relatives or any other person.”  Clearly, it is relevant and material.  And clearly, the law points us to the fact that this people may be called if the allegation is that these properties were hidden and their names were used.

Clearly, legitimate inquiry on properties extend to respondent’s spouse, ascendants, descendants, relatives or any other person.  Especially in this case were, for example, alleged TCT No. 2039-P issued on 23 October 2008 in the name of one of the daughters was issued for P6 million, a property in Taguig when she was only 30 years old.  And it was Corona, himself, who acted as her attorney-in-fact.

The question, Your Honor, is, may they claim disqualification or privilege not to testify against the respondent in impeachment trial?  It really depends on the purpose and the offer of evidence.  But we are not yet there, Mr. President.

In any event, the time to invoke this is when they are called to testify.  A subpoena cannot be defeated on mere invocation since it would be premature until they are actually called to testify.

Some may say these are mere semantics, meaning, ii-issue po natin na subpoena, tapos pagdating dito, hindi rin pala pwede mag-testify.

But this court cannot shortcut the process.  We cannot deny the subpoena because we cannot predict if and when the daughters will, in fact, manifest or claim the privilege, or of the husband will claim the disqualification against the wife.

The proper procedure is for us to issue the subpoena and for the defense or the witnesses to be the one to claim the privilege later on.

But moving ahead of ourselves, Your Honor, even assuming that there is such a privilege and there is such a privilege under the law, Professor Wigmore who is often quoted as an authority on evidence points out to an exception to the marital communication privilege.  Professor Wigmore mentioned an exception when a transaction in issue was alleged to have been conducted by the wife as an agent of the husband, or sometimes by either agent as agents or the other.

Therefore, Your Honor, the rule of disqualification or the rule of claiming the privilege is not absolute.  Ibig pong sabihin, Kagalang-galang na Presiding Officer, ang hinihingi pa lang po ng prosecution ay bigyan po sila ng karapatan na ipatawag ang mga witnesses.  Hindi po tatanggalin sa mga witnesses na ito ang karapatan nila na huwag mag-testify laban sa kanilang ama kung ito ay ayon sa batas at ayon sa privilege na puwede nilang i-claim.  Hindi rin po tinatanggal sa asawa ang karapatan na siya ay ma-disqualify to testify against the husband.

Your Honor, I also disagree with the ruling of the court that the son-in-law is not qualified because there is a Supreme Court ruling Lee vs. Court of Appeals 625 SCRA 66 wherein the Supreme Court said that the rule applies to direct ascendants or descendants with a family tie connected by a common ancestry.  It does not apply to in-laws, Your Honor.

I thought twice, Your Honor, about rising and discussing this especially because of my high respect to the Presiding Officer and to a seeming consensus of the Senate, but I do not want this to be a precedent.  I do not want either side to ask for a subpoena later on, and then, we will be ruling based on our interpretation of the law, without considering, Your Honor, that in fact, the prosecution or the defense is in fact entitled to that subpoena, Your Honor.

So, I just like to put this on the record, Your Honor, under the Rules, we can ask for a vote for the Senate, I do not know if the prosecution will be filing anything, because it they will be filing anything, then, I will not ask for a vote at this point in time, and we can decide this later on.  Many have said that the allegations can be proved by other means, but as I said, whether or not the family should be called is not my call.  I have my personal stand and belief on that issue, but it is irrelevant at this time and I should not even say what my personal belief is about calling the family.  But whether or not they should be granted a subpoena—may I just summarize, Your Honor, I agree to the ruling as far the Chief Justice, but I disagree as far as the wife, the children, the son-in-law and the documents sought to be subpoena, Your Honor.

THE PRESIDING OFFICER.  Before I posit a question, I would like to state for the record that the Chair has no intention of depriving or shuttling the prosecution from obtaining evidence to prove their case.  In fact, I have signed the request for subpoena duces tecum against the respective registers of deeds of the various cities where these claimed real estate properties are located including a subpoena duces tecum for them to produce the certificates of–transfer certificates of titles and the condominium certificate of titles, if any, and I think, the prosecution has all the means to obtain the evidence properly if they apply the rules of evidence.

By the way, these subpoenas were released by this Chair early this morning, now, if the purpose of the manifestation is for the Gentleman from Taguig to appeal the ruling of the Chair to the Senate, please make it in the form of a motion properly so that it can be disposed.

The Gentleman from Pampanga.

SEN. PANGILINAN.  Thank you.  With the permission of Senator Cayetano, Mr. President, just a point of inquiry, I am sort of confused, because earlier, the prosecution manifested that they are to file or submit a motion for reconsideration, but after the Senate President explained the position or the ruling, the prosecution made a manifestation that they are submitting to the ruling of the Chair.  So, is it—do we take it to mean therefore they have withdrawn the earlier manifestation of submitting a motion for reconsideration and are therefore submitting to the ruling of the Chair?  Just a clarification, because there were two manifestations, Mr. President.

THE PRESIDING OFFICER.  We have already, according to the record, we have already submitted to the ruling of the Chair.  But a Member of the Senate has made a remark in the form of a manifestation that is why I am asking him if he is appealing the ruling of the Chair to the Body.

SEN. CAYETANO (A.).  Yes, Your Honor, with all due respect, and I agree, Mr. Presiding Officer, I did not make any imputation that the Presiding Officer or any one in the Senate is stopping the prosecution or the defense from proving their case.  My point, Your Honor, is that I just want to follow the law and in accordance with my interpretation, Your Honor, that if they ask for a subpoena, and under the law they should be granted a subpoena, that is the reason I stand and ask for a reconsideration of the order or for the Body to vote on the ruling of the Chair, Your Honor.

THE PRESIDING OFFICER.  You know, my knowledge of evidence is that an adverse party in a civil case can be summoned by the other party to testify in favor of the requesting party, but this is not a civil case.  This is in the nature of a criminal case.  So, that is the very basic reason why the ruling of the Chair was made.

REP. CAYETANO (A.).  Your Honor, if we had a pre-trial then, the exact nature of the impeachment case, whether it is in the nature or simply akin to a criminal case, could have thoroughly discussed, Your Honor.

THE PRESIDING OFFICER.  May I remind the Gentleman that we do not have a rule on pre-trial.

REP. CAYETANO (A.).  Yes, Your Honor.

THE PRESIDING OFFICER.  According to the Rules of Impeachment …

REP. CAYETANO (A.).  I was simply explaining, Your Honor, that there is a wide amount and a rich amount of discussion on whether or not an impeachment case is, in fact, criminal in nature, civil, administrative, and it has been described as many as being a sui generis  or class by its own being akin to a criminal case but having a different process or procedure, Your Honor.  And while I agree, Your Honor, that we will be following the criminal rules of procedure, Your Honor, as I said in the arguments I made a while ago, that at the time that they are called and the evidence is offered, that is the time that the witnesses called can claim the privilege or can claim the disqualification.  But at the time that they are asked to be compulsory brought to the Senate, that is the right of the prosecution.  And that is the interpretation, Your Honor, of this Representation especially, Your Honor, to the son-in-law which I feel is very clear.  And there is a Supreme Court case that says that son-in-law, it should be a direct ascendant or descendant.  But kung asawa po ng anak, hindi po ito covered ng privilege ng filial privilege, Your Honor.

THE PRESIDING OFFICER.  May I remind the Gentleman that under the rules of this Court, every Member of the Senate has only two minutes to speak.

SEN. CAYETANO (A.).  Yes, Your Honor.

THE PRESIDING OFFICER.  And we are tolerant.  But I would like to read for the information of the Gentleman that the grounds of impeachment are culpable violation of the Constitution, treason is a crime, bribery is a crime, graft and corruption is a crime, and other high crimes.  And that is why this Chair considers this proceeding akin to  a criminal case.

SEN. CAYETANO (A.).  Yes, Your Honor.  I do not disagree with that, Your Honor.  But I disagree with the ruling and I do not want it to be a precedent, Your Honor.  That is why I brought it up before some Members in our discussions about whether or not a subpoena can be issued and I am asking that the Senate decide whether or not they should be issued a subpoena.  And, Your Honor, may  I please point out, there is a difference as to the plea to the issuance of a subpoena to the CJ himself, the wife, the child, the children, and the son-in-law, Your Honor.

THE PRESIDING OFFICER.  We note the opinion of the Gentleman, and may I request him to please allow the proceedings to go on.

SEN. CAYETANO (A.P.).  Yes, Your Honor, I am not delaying the procedure, I am simply making the motion to amend the ruling wherein the ruling as far as the CJ will stand.  But as the ruling to the children and to the son-in-law and the wife, that the subpoena be issued by the Senate, Your Honor.

THE PRESIDING OFFICER. Are you appealing the ruling of the Chair to the body?

REP. CAYETANO (A.P.).  Yes, Your Honor.

THE PRESIDING OFFICER.  Well, then I will put it to a vote.

The Majority Floor Leader.

SEN. SOTTO.  If the body is willing to take a vote, we are ready to take a vote as requested.  But there is a suggestion that a recess be called by one of the members.

THE PRESIDING OFFICER.  Session is suspended for one minute.

It was 2:46 p.m.

RESUMPTION OF HEARING

At 3:00 p.m., the hearing was resumed.

THE PRESIDING OFFICER.  The session of the Court  is resumed.  An issue has arisen because a request for a subpoena duces tecum and a subpoena ad testificandum against Chief Justice Corona, his wife and children and son-in-law, were requested, and the Chair ruled to deny the request.  The prosecution indicated its conformity with the ruling.  Nevertheless, a Member of the Chamber of the Senate objected in effect to the ruling of the Chair.  And so, the Chair asked the Member of the Senate whether he wanted the House to be divided.  And the Chair has decided to divide the House in order that the matter be decided by the Senate sitting as an impeachment court.  As I said beforehand, I am not the court.  The Court is the Senate.  And so, therefore, I will now ask for a division of the House on this issue.  And so I ask the Secretary to call for a vote.

THE SECRETARY.  All those in favor of the ruling of the Chair, say ayes.  And those not in favor of the ruling of Chair, say nays.

THE PRESIDING OFFICER.  What is it?

THE SECRETARY.  How about raising of the hands?  All those in favor of the ruling of the Chair, raise your hands.  Please count.  Okay.  Those not in favor of the ruling of the Chair, raise your hands.

THE PRESIDING OFFICER.  What is the result of the voting?

THE SECRETARY.  So, 14-6.  Fourteen in favor of the ruling of the Chair; six not in favor.

THE PRESIDING OFFICER.  So, the ruling of the Chair is sustained and so it stays as a ruling of the Senate.

SEN. SOTTO.  Thank you, Mr. President.

THE PRESIDING OFFICER.  Majority Floor Leader.

SEN. SOTTO.  Thank you, Mr. President.  Yesterday, January 16, 2012, the counsel for the Chief Justice filed a motion to disallow appearance of a private prosecutor praying that the honorable impeachment court disallow the appearance of Messrs. Mario Bautista, et al. as private prosecutors there being no compelling justification for the same.  So, Mr. President, I move that the Presiding Officer rule on the motion.

THE PRESIDING OFFICER.  With due respect to the defense, the Chair rules that the request is not in order because the Rules of the House allows the presence of a private prosecutor to assist the panel of prosecutors designated by the House of Representatives.  It is a matter of rule and a matter of proceedings.

So ordered.

REP. TUPAS.  Mr. Senate President, please.

THE PRESIDING OFFICER.  The Gentleman from Iloilo.

REP. TUPAS.  May we be allowed, Mr. Senate President, just to make a very, very short manifestation.

THE PRESIDING OFFICER.  Proceed.

REP. TUPAS.  A few minutes ago, Mr. Senate President, Your Honors, after the explanation by the honorable Senate President, the prosecution submitted to the ruling with respect to the denial of the request for the issuance of subpoena.  However, with due respect to the Senate President, we just want to put it on record, Your Honors, that the prosecution take exception to the statements specifically that and I quote:  “The proceeding is akin to a criminal case”, and another one is that it is in the nature of a criminal case.  With due respect again, Mr. Senate President and Ladies and Gentlemen of the Senate, it is the position of the prosecution that the impeachment proceeding is not akin to a criminal case nor is it a proceeding in the nature of a criminal case but our position is that impeachment proceeding is sui generis or it is like no other.  And in this regard, may we be allowed to submit a legal memorandum with respect to this issue, Your Honors please.

Thank you.

THE PRESIDING OFFICER.   But I would like to read into the record the reason why the Chair has stated that it is akin to a criminal case.  Just for the record.

An impeachment case is not a civil case nor is it a criminal case.  It is sui generis, a class by itself.  But it is closer to a criminal case than a civil case.  In a civil case, the parties, both the plaintiff and the defendant, are normally private parties, persons and the subject matter of the case is usually a legally demandable and imposable right which carries more punitive sanctions.

In a criminal case, the direct complainant is the people of the Philippines and the case invariably involves a legally punishable conduct which carries a punitive sanction like loss of freedom or imposition of economic burden.  In an impeachment case, the people of the Philippines are only indirect complainants.  They delegated  in their Constitution the exclusive power to initiate all cases of impeachment.  They delegated it to the House of Representatives composed by their elected Representatives.  An impeachment case carries a punitive sanction which is limited to the removal from office and disqualification to hold any public office under the Republic of the Philippines by the official charge.  The criminal character of an impeachment case is exemplified by the fact where the person charge has to be informed of the charges of the state, that he has to plead guilty or not guilty to the charges and that “the party convicted”, this is Section 37 of Article XI of the 1987 Constitution, “shall nevertheless be liable and subject to prosecution trial and punishment according to law.”  I just want to put that into the record.  That is the opinion of the Presiding Officer.

Majority Floor Leader.

REP. TUPAS.  Your Honors, may we just ask, what is the source of the material just read by the…

THE PRESIDING OFFICER.  This is the product of my own mind.

REP. TUPAS.  Okay.  Thank you.  Thank you, Your Honor.

THE PRESIDING OFFICER.  Majority Floor Leader.

SEN. SOTTO.  Thank you.

Mr. President, we are now ready for the presentation of evidence by the prosecution.

THE PRESIDING OFFICER.  The prosecution may proceed.

REP. BARZAGA.  The prosecution, Your Honor, is ready to present its evidence and as provided for in the complaint, we shall start presenting evidence insofar as Article II is concerned.

THE PRESIDING OFFICER.  May we know why you are changing the sequence of your Articles of Impeachment.

REP. BARZAGA.  If Your Honor please,  it is a basic truism insofar as the practice of law is concerned, that a party presenting evidence has the power to determine what would be the order of presentation of evidence.

In the complaint, there are eight articles pertaining to impeachment.  And insofar as Article II is concerned, it deals with the SALN, with the ill-gotten wealth of the respondent.  And this issue has been the subject of discussion before the media.  No less than the respondent has stated that he owns only five properties.

On the other hand, there has been an allegation that there is claim …

THE PRESIDING OFFICER.  Wait a minute, counsel.  The Presiding Officer is asking, may you please state why you are changing the sequence of your articles of impeachment?

REP. BARZAGA.  Yes, that is why—May I be permitted to complete?

Firstly, Your Honor, I have stated that the party presenting evidence, as a basic rule, has the right to determine what would be the order of —

THE PRESIDING OFFICER.  But I thought you are also to state otherwise.

REP. BARZAGA.  Yes, Your Honor.

That is why we are justifying why we want to present evidence on Article II.

Secondly, Your Honor, there has been so many news releases insofar as the SALN and ill-gotten wealth issue are concerned.  And, therefore, it would be the best interest of the parties, as well as the public, for us to present evidence, insofar as this issue is concerned.

There have been claims regarding the properties of the respondent.  There has been an allegation that even the Chief Justice is willing to donate the properties to the victims in Cagayan De Oro.  And, therefore, in the highest demand of public interest, in order to settle this issue, we want that we be allowed to present evidence insofar as Article II is concerned.

THE PRESIDING OFFICER.  Is the counsel …

I am asking if the Gentleman is finished.

REP. BARZAGA.  Yes, Your Honor.

THE PRESIDING OFFICER.  All right, what is the pleasure of the defense?

JUSTICE CUEVAS.  Thank you, Mr. President.

We are not in total conformity.  And in full accord, the statement of the honorable prosecutor, Your Honor, for the simple reason that while it is true, that the prosecution or the prosecuting officer can determine the order of presentation of his witness, that is merely discretionary and not a matter of right.

There is never any jurisprudence on the point that will point to the fact that it is an exclusive privilege and absolute at that because it is subject to the discretion of the court.

Now, we are wondering why there will be an alteration in the manner of presentation of evidence, Your Honor.  We will serve with a copy of the impeachment complaint.  There are eight grounds reinstated.  We wanted to believe that any and all grounds will be the subject of the evidence of the prosecution if the manner they are stated or appearing in the articles of impeachment.

Why the deviation?  Now, there is an allegation to the effect that there is a demand public opinion and so on in the newspaper.

It is very clear, Your Honor., that in this kind of proceedings we are totally disregarding public opinion.  We are totally disregarding what the press states, Your Honor.  But, in accordance with the oath of the Members of this honourable Body, Your Honor, it is stated that what should governed, the ruling of this honourable impeachment court will be the conscience of these Members thereof, but in accordance with the provisions of the Constitution and the law.

Now, if we subscribe or allow the introduction of this kind of evidence, then this impeachment court will be at the mercy of the prosecution, Your Honor, which can never be the philosophy nor the reason behind the requirement of procedure insofar as trial is concerned.

I do not see any reason why they cannot proceed with No. 1 and so on down the line, and instead choose No. 2, Your Honor.

First, if they have witnesses right now, Your Honor, may we place on record that we have never yet been identified with the identity of this witness.

As a matter of courtesy, Your Honor, we were expecting that we will be granted at least three days three days wherein which to be informed on who these witnesses are so that we can prepare for an intelligible cross examination.

True, we may cross examine, but if it is not intelligible, it is not in accordance with the procedure, and the law, Your Honor, then, it will be an exercise of futility.  There is nothing that this impeachment court could get from that, not any enlightenment but rather confusion, Your Honor.

We wanted to avoid that kind of an eventuality.

THE PRESIDING OFFICER.  Is the prosecution ready to present evidence on Article I?

REP. BARZAGA.  Well, we are not ready, Your Honor,

THE PRESIDING OFFICER.  You are not ready.

REP. BARZAGA.  But may I just make a rejoinder, Your Honor, we are ready for Article II.

THE PRESIDING OFFICER.  You are not ready to …

REP. BARZAGA.  We are ready for Article II.

THE PRESIDING OFFICER.  Wait a minute.  You are not ready to present evidence for your Article I?

REP. BARZAGA.  We prepared for Article II, Your Honor.  And may I just make a brief rejoinder to the statements of the counsel for the defense.

THE PRESIDING OFFICER.  You have two minutes.

REP. BARZAGA.  Yes, Your Honor.  Personally, we do not want public opinion to be the issue insofar as SALN is concerned.  As a matter of fact, no evidence has been presented, and yet there has been press releases regarding the ownership of this property.  It is for the best interest of the parties, especially the impeachment court if we settled the issue pertaining to the evidence regarding the SALN and ill-gotten wealth.

Counsel for the defense also stated that we did not give them the opportunity to identify our witnesses.  We have to state, Your Honor, that there has been no pre-trial insofar as this case is concerned.

Moreover, Your Honor, the defense, has submitted so many pleadings, objections to the subpoena, things like that.  If they really want that they should be notified or be informed of the witnesses, they could have filed the appropriate motion insofar as this request is concerned.

THE PRESIDING OFFICER.  Is the Gentleman through?

REP. BARZAGA.  Yes, Your Honor.

THE PRESIDING OFFICER.  Just for the record, then, if you consider Article II as the most important part of your articles of impeachment, why did you not make it as your number one article?

REP. BARZAGA.  Well, we consider, Your Honor, that all articles in the impeachment are important.

THE PRESIDING OFFICER.  They are in pari passu.

REP. BARZAGA.  Yes, Your Honor.

THE PRESIDING OFFICER.  Alright.  The Gentleman from Makati and Bicol.

SEN. ARROYO.  Thank you, Mr. President. I do not think we can limit the presentation of the articles on the part of the prosecution.  I have once been a prosecutor, and sometimes we have witnesses, sometimes we do not have, so, we rearrange it, and that is what happened in the Estrada impeachment.

But to solve this problem, may we request the prosecution to now or to rearrange the presentation of the prosecution’s evidence, and that would help everyone, so that we would know also, on the part of the Senate, we will know what to study beforehand.

So, if they can rearrange it, I think, it would be for the good of all.

THE PRESIDING OFFICER.  For orderly proceeding, I think the suggestion of the Gentleman from Makati and Bicol is well-taken, and if I may request the prosecution to rearrange the order of your articles of impeachment in such a manner that the defense is forewarned, so that we can also help the staff of the impeachment court to prepare for the succeeding hearings.

JUSTICE CUEVAS.  Besides, Your Honor, may we be allowed to make a short manifestation, Your Honor.

THE PRESIDING OFFICER.  Proceed.

JUSTICE CUEVAS.  Besides, Your Honor, there is abundant jurisprudence to the effect, that in the filing of any charge involving a criminal offense, the prosecutor must already be in possession of the evidence against the accused and not gather the evidence after filing the information. That is a condemned procedure.  It is violative of the rule on due process, Your Honor.  Now, they say that this is the subject of the talk of the town.  This is what had been discussed by the press and the media.  Because they always deal with it, not knowing that there is a rule that should be followed in the matter of presenting evidence.

THE PRESIDING OFFICER.  We take note of that, Counsel, and I think that for us to proceed, may I now request the parties to prepare for trial and let us finish this manifestation and counter-manifestation and go on into the nitty-gritty of presenting the evidence.

JUSTICE CUEVAS.  Yes, Your Honor, and thank you very much for that accommodation.  We are prepared to cross-examine any and all witnesses they will be presenting under the first article of the impeachment complaint, Your Honor.

THE PRESIDING OFFICER.  Thank you.

JUSTICE CUEVAS.  Because that is how we understood the rule of procedure.  Thank you very much, Your Honor.

THE PRESIDING OFFICER.  Proceed, Counsel.  You may proceed to present your evidence but kindly state for the record the rearrangement that you want in the presentation of your evidence henceforth with respect to the eight articles of impeachment.  So that we can also guide the Clerk of Court and the staff in an orderly recording of the proceedings.

REP. BARZAGA.  Yes, Your Honor.  Right now, we shall be starting with the presentation of evidence insofar as Article II is concerned, and tomorrow, we will be filing a written manifestation regarding the order insofar as the presentation of the other articles are concerned.

THE PRESIDING OFFICER.  So ordered.  Call your first witness.

JUSTICE CUEVAS.  If Your Honor please, may we be allowed to make a short comment, Your Honor.

THE PRESIDING OFFICER.  Yes, you have one minute.  Short only.

JUSTICE CUEVAS.  Thank you, thank you, Your Honor.  It is more than enough.  All the while we were agreed on the proposition that the order of the presentation of their witnesses or evidence, Your Honor, will be in accordance with what is stated in their complaint.  We prepared for that, Your Honor.  Even in our Answer.  We deal with the allegations one by one.  One, two, three and four.  Now, they say they are not prepared to present their witnesses under Number 1.  What is there to prevent us, Your Honor, in stating for the record, very honestly and sincerely, that we are not prepared for Number 2 because we were expecting that they will be dealing with Number 1?

THE PRESIDING OFFICER.  Counsel, I am sure that you have prepared your trial brief.  And I am sure you can handle the prosecution and meet their request by using your trial brief.

JUSTICE CUEVAS.  Yes, Your Honor.  But, may we be allowed to state, Your Honor, that trial is a battle of legal minds, Your Honor, opportunities and so on.  And for that reason, Your Honor, we want to manifest and confess on record that we are not ready insofar as the evidence for the Article Number 2 is concerned.  That is why, we come before this honorable Court, if not in bended knees, but a plea that the presentation of their evidence be centered or gravitate on the first article of impeachment.

THE PRESIDING OFFICER.  Are you objecting to the request of the prosecution to start with Number 2?

JUSTICE CUEVAS.  Definitely, Your Honor.  With your permission, and with your regard, and we apologize for this manifestation, Your Honor, because as we have stated, when we were discussing it, this even with the panel of defense lawyers, Your Honor, we were dealing with Article 1 as the priority article that will be dealt with in the presentation of their evidence, Your Honor.

REP. BARZAGA.  If Your Honor please, insofar as the evidence to be presented this afternoon is concerned, we will just be presenting certified true copies of the titles to the property of the respondent as well as the corresponding documents, such as the deeds of absolute sale which became the basis for such titles.  As a matter of fact, inasmuch as they are certified true copies, I don’t think, without being presumptuous, that the defense counsel would be having a cross-examination.  We will just be proving that the respondents are the owners of the properties on the basis of the record of the Land Registration Authority.  That would be all.

JUSTICE CUEVAS.  I do not know what kind of evidence …

THE PRESIDING OFFICER.  Just a minute.

JUSTICE CUEVAS.  I am sorry, Your Honor.  And I apologize.

THE PRESIDING OFFICER.  Just a minute.  Are you presenting a testimonial evidence to accompany the presentation of your documentary evidence?

REP. BARZAGA.  Well, we shall not be presenting any testimonial evidence.  We shall be presenting certified true copies and this is permitted under the Rules of Court considering that the documents which we have to present happen to be public records.

THE PRESIDING OFFICER.  Who will testify on the signatures of the parties who are certifying on this document?

REP. BARZAGA.  Well, it is computer-generated, Your Honor, computer-generated documents and I think the defense counsel would agree that under the present procedure insofar as titles are concerned and supporting documents, the computer-generated copies are the certified true copies.

JUSTICE CUEVAS.  We would not like to discuss on that point, Your Honor, because we understand in accordance with the Rules of Procedure and Evidence and even in accordance with the Rules of Impeachment before this honourable impeachment court, we have the right to cross-examine to whoever witness they may want to present, whatever documents they may have in mind in presenting, Your Honor, we will never be deprived of the opportunity to cross-examine because that will be violative of our right to due process, Your Honor.

THE PRESIDING OFFICER.  Let me understand the position of the Gentleman from the prosecution side.  Are you just asking for the marking of these documents or are you submitting them as evidentiary material already in this proceeding?

REP. BARZAGA.  Evidentiary material, Your Honor.

THE PRESIDING OFFICER.  Because if you will submit this as evidentiary material, then this Chair will have to rule on the admissibility of this document.

REP. BARZAGA.  Well, anyway, Your Honor, as we understand, the court has already issued subpoenas to the Register of Deeds, to the Land Registration Authority.

THE PRESIDING  OFFICER.  Precisely.  Why can you not wait for the Register of Deeds to bring those here?

REP. BARZAGA.  Yes, Your Honor.  That is why I am manifesting that we are willing to postpone the hearing for today and…

THE PRESIDING OFFICER.  Iyon pala ang gusto mo, postponement.

REP. BARZAGA.  No.  Actually, Your Honor, I was toying the idea that in order to expedite the proceedings, they would be willing to accept these computer-generated documents.  After all, these computer-generated documents are in the names of the respondents.

JUSTICE CUEVAS.  Your Honor, with due apologies…

THE PRESIDING OFFICER.  Wait a minute.

JUSTICE CUEVAS.  I am sorry, Your Honor.

THE PRESIDING OFFICER.  Just a minute.  I have practiced a long time ago and I am not used to computer-generated document.  What I understand by under the Rules of Evidence is that any document presented in a courtroom must be authenticated and the basis for the presentation must be laid.  In other words, the predicate must be laid first.  Correct?

REP. BARZAGA.  Actually, Your Honor, during the time that I was also  practising, that was the procedure.  But now, insofar as the LRA records are concerned, we have the computer-generated documents which are in the security paper of the Land Registration Authority with a bar code.

THE PRESIDING OFFICER.  Well, anyway, at any rate, in order to cut short this discussion, we will come to that time when we will either rule the admissibility or non-admissibility of your documents and I warn you that unless the Chair is satisfied that these documents are authentic and unless you present the custodian of this document and testify on the presence of these documents in the computer, then the ruling of the Chair might be adverse.

REP. BARZAGA.  Yes, Your Honor.  Thank you very much for that ruling.

THE PRESIDING OFFICER.  Not ruling but a warning.

REP. BARZAGA.  Yes, Your Honor.

The ruling that we have the obligation to properly identify under the Rules of Evidence at the proper time.

THE PRESIDING OFFICER.  But what is your pleasure now?  Do you want to proceed or you want to postpone?

REP. BARZAGA.  We will just have it postponed, Your Honor, to avoid further arguments and in order to afford the defense counsel the opportunity to prepare for tomorrow’s hearing.

THE PRESIDING OFFICER.  The Gentleman from Aurora.

SEN. ANGARA.  Yes, Mr. President.  I thought we want to go back to the previous question.  I thought the arrangement being suggested by Senator Arroyo that since the prosecution is going to redo and reschedule the presentation we will have today, at least we will hear from them the sequence of presentation to assist all parties, the defense, as well as us, so that our staff can study the sequence of presentation.

But now we are back again to debating whether we begin with Article II.  And now, we are confronted with the fact that we are not prepared even to listen to Article II.

So, can we now, Mr. President, so that this afternoon will not be a complete disaster and loss, can we now ask for that previous agreement that the prosecution will present to us now if a new calendar of presentation, so that tomorrow, we will be ready, our staff will be ready, as well as the defense will be ready.

And perhaps, Mr. President, Mr. Chairman, you may want to call for a five-minute recess so that the prosecution can get together and agreed on the …

THE PRESIDING OFFICER.  The trial is suspended for a one-long minute.  (Gavel)

At 3:51 p.m., the hearing was suspended.

At 3:55 p.m., the hearing was resumed.

THE PRESIDING OFFICER.  Majority Floor Leader.

SEN. SOTTO.  Mr. President, may we now recognize the prosecution panel to manifest the …

ADJOURNMENT OF HEARING

THE PRESIDING OFFICER.  The Chair would like to make a statement.

In view of the circumstance where we are in, and in view of the perception of the Presiding Officer of this court, that the prosecution is not prepared to present evidence today, the court motu proprio postpones the trial until tomorrow afternoon at two o’clock.

So ordered.  (Gavel)

It was 3:56 p.m.

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