The impeachment trial: clerical errors, fishing expeditions, etc.

By Dean Jose Mari B.F.U. Tirol

The impeachment trial is, and will continue to be, a crash course on legal education for lawyers, law students, and laypersons. Week 2 exposed us to two new terms, this piece introduces few more.

“Clerical error” which is synonymous with “typographical error” (RA 9048, Sec. 2[3]), has been employed in a broad sense to cover all errors, mistakes, or omissions which are not the result of the exercise of the judicial function (Llanes and Company v. Bocar [1976]). The Supreme Court is aware that such errors may sometimes creep in its decisions and signed resolutions, and adopted a simple procedure for making proper corrections (Rule 17, Internal Rules of the Supreme Court).

A clerical or typographical error is a mistake that can be corrected, especially if it involves a matter that is not relevant or material to the issue. It is different from a false statement which is intentional. Whether or not a statement is erroneous, or is false, depends on the circumstances and the context. Notably, the presence of many “errors” makes it unreasonable to attribute the same to honest mistake and inadvertence (AM No. 16-05-142-RTC [2017]).

It was expected of the Vice President’s lawyers, who confronted Atty. Lotoc of the NBI during the impeachment trial about the NBI’s records of investigations related to the charge of grave threats, to argue that the records contain material errors that affect the credibility not only of Atty. Lotoc, but of the records themselves. In the same manner, it was expected of the prosecution to argue the complete opposite. We await how the Senator-Judges will appreciate these pieces of evidence.

Parenthetically, the Rules of Court in Rule 132, Section 11 employs the term “Impeachment of adverse party’s witness” if a party desires to challenge the credibility of the other party’s witness. Yes, the Vice President’s lawyers can impeach the prosecution’s witnesses And vice-versa.

The Vice President’s lawyer Atty. Poa used the term “fishing expedition” to object to the prosecution’s request for the Impeachment Court to issue a subpoena the bank and tax records of the Vice President and her husband in connection with the second article of impeachment on unexplained wealth.

Subpoena is a process issued by a court requiring a person to attend and to testify at the hearing or the trial of an action, it may also require him or her to bring with him any books, documents, or other things under his or her control, in which case it is called a subpoena duces tecum (Rule 21, Sec. 1). It is derived from the Latin “sub poena” or under penalty, because a person issued a subpoena who refuses to comply may be punished.

Atty. Poa urged the Impeachment Court to decline to issue subpoena, insisting that it is unreasonable, oppressive, and is utilized to search for evidence – a fishing expedition, according to him.

Courts may refuse to issue a subpoena on three grounds, one of which is if the relevancy of the books, documents or things does not appear (Rule 21, Sec. 4). This is what the Senator-Judges must determine in deciding on the propriety of issuing a subpoena: whether or not the bank and tax records of the Vice President are relevant to the charge of unexplained wealth.

Unexplained wealth cases are one of the exceptions to the Bank Secrecy Law (Republic v. Rabusa [2022]).

The argument that the bank and tax records belong not just to the Vice President but also to her husband who is a private citizen do not make them immune from examination. Section 8 of RA 6713 recognizes the right of the public to know the assets, liabilities, net worth, and financial and business interests of public officials and employees, including their spouses. Section 1(b)(1) of RA 1379 refers to “property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of, or held” by any person, including the respondent’s spouse. And Section 8 (Prima facie evidence of and dismissal due to unexplained wealth) of RA 3019 states in part that “Bank deposits in the name of … the public official, his spouse … including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income” shall be taken into consideration in the enforcement of the said section.

The impeachment trial, with its legal and political aspects, is about to see and hear the evidence on the charge of unexplained wealth, the second of the four articles of impeachment. While the terms “clerical errors” and “fishing expeditions” have no connection to priests and to fishers of men, it behooves the Presiding Officer to ensure that the trial will only revolve around, and the Senator-Judges will resolve the only issue in these proceedings – the fitness of the Vice President to remain in office.