Impeachment court partially rejects De Lima's testimony as hearsay

MANILA, Philippines (Feb 24, 2012) - The portion of Justice Secretary Leila de Lima's testimony that are narrations of facts contained in a published dissenting opinion of Supreme Court justice shall remain in the records of the impeachment court, but her statements alleging irregularities and acts of partiality shall be considered hearsay.

This was Senate President Juan Ponce Enrile’s ruling yesterday on the statements of Justice Secretary Leila de Lima pertaining to the alleged partiality of Chief Justice Renato Corona in exercising his authority over other justices that led to the issuance of a temporary restraining order (TRO) on the travel ban against former President Gloria Macapagal-Arroyo last year.

Enrile, presiding officer of the impeachment court, made the ruling after the defense camp led by former justice Serafin Cuevas moved to strike out the statements of De Lima on the alleged irregularities in the issuance of the TRO by the Supreme Court (SC).

Enrile explained that what De Lima said was “indeed irregular” and should be “stricken out of the record.”

He noted De Lima had no personal and direct knowledge of the circumstances that led to the issuance of the TRO on the travel ban issued by the Department of Justice (DOJ) against Arroyo and her husband Jose Miguel Arroyo.

“It is the ruling of the chair that to the extent of the facts narrated by the witness on the basis of the dissenting opinion, let them remain as part of her testimony. Let it remain as part of the record as a consequence and part of her testimony as a witness,” Enrile said.

“But to the extent of truth or falsity of what the dissenting opinion of Justice Sereno contained, to the extent of those facts, whether they are true or not, that the CJ influenced this or the Chief Justice did that or somebody else did something else then, to that extent it is hearsay, because the witness was not present when those things are being done or being said,” Enrile added.

Enrile was referring to the dissenting opinion of Associate Justice Maria Lourdes Sereno.

In last Wednesday’s trial, De Lima testified on her belief that Corona wanted to help Arroyo flee the country and escape the filing of a non-bailable offense against her that was apparent at the time the TRO was issued.

As regards the details of the arguments of the justices on the issuance of the TRO, Enrile ruled them as hearsay.

“I will allow the testimony of the witness to remain (on) record, and admonish or rather suggest to the court to disregard whether the statement of the Chief Justice or what he did, or what other justices did in the course of deliberations because those are not within the competence of the witness to testify. So therefore those are hearsay,” Enrile declared.

Cuevas earlier manifested to the court that De Lima was incompetent to testify on the issue since she had no direct knowledge.

“Whether objected to or not… if the testimony is hearsay, it shall not and must not be considered by the court in rendering a decision,” Cuevas said.

“We predicated this on the admission of the Secretary of Justice that her knowledge came by reading the dissenting opinion. All she testified on the irregularities did not come from personal knowledge but by reading,” he said.

Northern Samar Rep. Raul Daza, one of the public prosecutors, said De Lima’s testimony should be given a “presumption of truth” and be treated as a “matter of defense and weight.”

“We vigorously object to the strike out… the dissenting opinion is a judicial notice,” he pointed out.

Daza said De Lima, being a public official, is “entitled to a presumption of truth and regularity.”

“I have read the concurring opinions myself… and it is there… it is shown that these statements of irregularities where not treated in those concurring opinions… There was silence in those opinions… Serious(ness) against silence, there is a presumption of truth,” he said.

In explaining his ruling, Enrile said an impeachment case is only “akin” to a criminal proceeding where the rules of evidence on hearsay can be not strictly adhered to.

“It is true that in the strictly criminal case the hearsay rule is very strictly adhered to as a rule of evidence but not in an impeachment case,” Enrile explained.

“That is why I made a distinction between the truth and falsity of what was related by Justice Sereno in her dissenting opinion, and what the witness now said based on what was contained on the information being presented on the basis of the dissenting opinion of Justice Sereno,” Enrile added.

“To that extent and to the extent of the dissenting opinion, let it stay as a part of the testimony of the witness.”

In her testimony, De Lima echoed Sereno’s dissenting opinion wherein the Supreme Court implemented the TRO despite its failure to meet all the conditions set for the issuance of the order.

“This is a conditional TRO but it was made to appear that it could already be implemented,” De Lima told Cuevas during cross-examination.

When De Lima noted Corona supposedly made an alteration on the Nov. 22, 2011 draft of the decision that there was substantial compliance of the TRO, Cuevas said this what was actually reflected in Sereno’s dissenting opinion.

“Because it was never stated in the Nov. 18 (SC) resolution that there was no compliance yet of the condition… so it’s deemed suspended until compliance with the condition,” she explained.

Worse, De Lima said Corona came up with his own version of the Nov. 22 clarificatory resolution that did not reflect the correct voting, instead of clarifying the exact voting and matters voted upon on Nov. 18.

It was at this point that Cuevas again manifested that De Lima’s testimony was “purely hearsay because they do not have your personal knowledge.”

Daza argued Cuevas’ question was leading in substance. “As she (De Lima) testified and as the question called for, she was reading from the dissenting opinion,” he said.

“That is precisely the basis of my question,”

Cuevas added, to which De Lima insisted that her answers were “based on the official documents.”

Enrile explained the lawyers were actually arguing about the use of technical rules of evidence in the trial, which cover the rule on hearsay testimonies.

“So that the people will understand. We are talking of technical rules of evidence. The (Justice) Secretary read the dissenting opinion. But to the extent of the fact on the veracity of the opinion, she is not present,” Enrile pointed out.

Sen. Miriam Defensor-Santiago earlier asked the prosecution to establish the partiality of Corona on the issuance of the TRO.

“Under the complaint Article 7, the defendant is charged with betrayal of public trust through his partiality in granting a TRO… the question under Article 7 simply is, did the CJ show any partiality?” Santiago asked.

On this particular issue, Santiago added De Lima has neither participated in nor was present during the decision-making of the justices.

“She is in fact offering for us her opinion unless she has been qualified as an expert witness,” Santiago said.

Santiago also cited jurisprudence that provides the “weight of a dissenting opinion” is lowly since the majority opinion is deemed as the controlling opinion pertaining to decisions of the Supreme Court.

“It is the majority opinion that is the controlling opinion. This is elementary in law schools. Why are we even taking this up?” Santiago asked.

“Neither can the Chief Justice overturn the decision of the court whether by division or by en banc.”

Santiago noted De Lima “said so herself” that she had no personal knowledge on the issue.

 

The prosecution panel, on the other hand, said they were satisfied with the ruling to keep the testimony of De Lima on the record even after it was declared hearsay.

 

“Even if it is hearsay, it’s going to be admissible. But for now it will depend on how the senators will appreciate it,” House prosecution spokesman Marikina Rep. Romero Quimbo said.

“The issue here is weight. Will they give this evidence weight or not? But the fact is it was not stricken off the record,” he added.

House prosecutor Bayan Muna party-list Rep. Neri Colmenares argued the testimony given by De Lima was not entirely hearsay since she had personal knowledge regarding some issues.

Colmenares cited the attempts to implement the TRO even when the camp of the former president had not yet complied with the conditions set by the Supreme Court when it issued the TRO.

“That is her (De Lima’s) personal knowledge. That is not hearsay. Can that even be done? There was already a decision requiring conditions and yet they are implementing it. Only the chief justice can do that,” he said.

He explained that only the chief justice can order the process server to deliver the orders of the court and it was clear that when the Arroyo couple went to the airport last Nov. 15, they already had a copy of the TRO.

“That means that the Chief Justice released the TRO even though the conditions have not been complied with,” Colmenares said.

“For me her testimony was very valuable without necessarily relying on the dissent of Justice (Ma. Lourdes) Sereno because that was her personal knowledge,” he added.

Aurora Rep. Juan Edgardo Angara, another spokesman for the prosecution, said De Lima’s testimony showed the SC bent backwards to accommodate Arroyo to allow her to escape.

Angara said the SC even held a special meeting on a Friday just to tackle the motion for reconsideration filed by the DOJ on the TRO when this was not normal practice.

Quimbo added the decision of Enrile to keep the testimony of De Lima on the record and his subsequent statement that the quantum of evidence required and not proof beyond reasonable doubt is what would be used to determine guilt, was a “major victory” on the part of the prosecution.

Quimbo said the effort to remove Corona from office is similar to bringing Arroyo to justice for alleged misdeeds.

“Mrs. Arroyo wanted to leave fast and she attempted to escape possible cases. In order to make this possible, Chief Justice Corona – one of her most loyal allies – rushed the TRO,” Quimbo pointed out.

Deputy Speaker Lorenzo Tañada, also a prosecution spokesman, said the prosecution was alarmed by the revelations of Justice Sereno in her dissenting opinion, particularly on Corona’s attempt to distort the high court’s decision on the effectivity of the TRO.

“This goes to show that the Chief Justice will do everything to satisfy Mrs. Arroyo’s interest. It bolsters our allegation that the former president placed Corona in the Supreme Court to defend and protect her and it is to her benefit if he is not convicted and remains as chief magistrate,” Tañada said.

He said it was a good thing De Lima was able to place on record of the impeachment proceedings the dissenting opinion of Sereno, which gives the public an overview on how the SC handled the case of the former president.

“The dissent of Justice Sereno is very important because we were able to take a peek at the workings of the Supreme Court. I think no one in the high court expected that a brethren would come out this way,” Tañada said.

The Senate impeachment court is hearing the testimony of De Lima pertaining to Article 7 of the impeachment complaint, which accuses Corona of betraying public trust through his “partiality in granting a TRO in favor of former President Arroyo and her husband Mike in order to give them an opportunity to escape prosecution and to frustrate the ends of justice, and in distorting the Supreme Court decision on the effectivity of the TRO in view of a clear failure to comply with the conditions of the SC’s own TRO.” (From Philstar.com)