The impeachment trial: pointers for pundits

By Dean Jose Mari B.F.U Tirol

Impeachment is a Constitutional process reserved for a select few government officials to determine whether or not they are fit to continue in office. It is sui generis – in a class of its own – because a respondent who is found guilty will not incur any criminal or civil liability.

And it is not merely a legal, but also a political process. Which is as it should be. For it starts in the House of Representatives and proceeds forthwith to the Senate, the two bodies which compose the legislative branch of government, whose members are the representatives of the people. And like the people, not everyone in both Houses are, or are required to be, lawyers.

But the fact that impeachment is in part a political process does not mean that anything goes. Week 1 of the Vice President’s impeachment trial showed how the presiding officer steered the proceedings by ruling on the lawyers’ respective objections and other manifestations, and also in determining whether to recognize them and the other senator-judges, i.e. to allow them to speak. Indeed, the Rules of Court, which consists of more than 100 Rules (each of which is composed of numerous Sections), apply to the impeachment trial in a supplementary capacity.

Note that the prosecution dispensed with the presentation of the video of the Vice President resigning from the position of Secretary of Education on the ground that her lawyers admitted this during pre-trial, a fact that was noted by the presiding officer and acknowledged by her lawyers in open court. This is allowed under the rules of evidence, which is part of the Rules of Court.

In contrast, the prosecution took several hours to present its first witness, an agent of the NBI, the bulk of his testimony consisted in establishing his qualifications and thereafter identifying and authenticating videos which contained the statements of the President, the then- House Speaker, and the Vice President herself under the rules of evidence. His testimony was tedious, yes. Boring, definitely. But necessary, even if most, if not all of us (including the senators themselves) have already seen them. Thus, the need to present them according to the rules on evidence.

Speaking of evidence, under the Rules of Court a party can present three types of evidence to prove its case (or to disprove the other party’s case): testimonial (i.e. a witness), documentary, or object (for example, a USB). Documentary and object evidence are identified by a witness (unless undisputed, for example the resignation video). Under the rules, the purpose of these three types of evidence must be offered to the court: in the case of a witness, before they testify; on the other hand, documentary and object evidence are offered after the party has presented all his evidence and rested his case. Which is why the objections concerning the photocopies identified by the witness are premature, and may also be misplaced because photocopies are, in an evidentiary sense, generally admissible in evidence to the same extent as the original. But we can expect the Vice President to object to the said photocopies when the prosecution formally offers them.

And speaking of testimonial evidence, each party has the opportunity to cross-examine the other party’s witness, basically for two reasons: to destroy it, or to elicit admissions that are favorable to their side. But like all the other variables in a trial, cross-examination questions must be carefully crafted so that they achieve their intended purpose, not the opposite. Interestingly, part of the Vice President’s cross-examination of the NBI agent involved one of the videos that was identified by the witness on direct examination, albeit a different portion. This may be interpreted as an admission of the genuineness and accuracy of the video.

The impeachment trial is just starting. It is too early to tell where the evidence will go, and how the senator-judges will vote. Apart from its principal function under the Constitution, the trial serves another civic role: it provides us, the general public, a view of certain aspects of litigation and court processes. Which will hopefully lead us to understand and appreciate the value of procedural rules and constitutional presumptions, foremost of which is the right to be presumed innocent, whether one is an impeachable officer or an ordinary citizen.

Week 1 of the impeachment trial, which consisted of three trial days, ended with the prosecution presenting one witness; it will not be unusual if the presentation of the other witnesses of the prosecution as well as those of the Vice President, will also be tedious and boring. But these will also be necessary. This is a trial – a legal proceedings – not a telenovela, although there will be fireworks sometimes. Its legal and Constitutional significance prevail over its political aspect; substance over soundbites. May we who observe the trial, whether as citizens, as senator-judges, or as lawyers of the parties, always remember the difference.