THE CHALLENGE OF DUE PROCESS
By Ricardo Saludo

In this grave situation, various groups take advantage of one another, manipulate situations for their own agenda, and create confusion among our people sometimes by projecting speculation or suspicion as proven fact, with the aim of grabbing power.
— Catholic Bishops Conference of the Philippines, 10 July 2005

With the ongoing Congress deliberations on the impeachment complaints against President Gloria Macapagal Arroyo, due process on the allegations against her has finally begun. After months of accusations aired in Congress and media, including what the CBCP described as “speculation and suspicion [projected] as proven fact” both accused and accusers will at last present and cross-examine all their evidence and arguments.

Given the way due process evens the odds for the accused, it should surprise no one that some accusers once so eager to hurl charges with little challenge now think twice about testifying in impeachment proceedings. Yet the odds are far from even for the President or for due process itself. Millions of Filipinos have already judged the First Family without the benefit of a fair trial, if recent surveys reflect public opinion. Due process too may have credibility problems, not because it is flawed, but because its even-handed proceedings and strict rulings will surely present a very different impression of what happened than the largely unchallenged accusations aired current controversies.

One thing is therefore imperative for the impeachment and its rulings to win wide acceptance and to bring stability, not further unrest. Proceedings should not only be conducted with unassailable fairness, but also be clearly explained and justified to a public already steeped in months of allegations and materials intended to incriminate. These claims have faced hardly any opposition from lawyers of the accused who have rightly kept their counter-evidence and arguments under wraps until due process begins.

Hence, it could be an uphill battle for credibility for the impeachment. Fortunately, our people had shown remarkable willingness in past celebrated cases to give due process its due, despite widespread belief in the guilt of personages implicated. When the five-member Agrava Fact-Finding Board was created in 1983, the running joke then was that only five people in the country did not know who killed Ninoy Aquino. Yet the nation followed the board's proceedings. In 2000, resignation calls resounded after Chavit Singson made his accusations. Yet people were glued to each episode of impeachment TV and only went to the streets when most senators voted to hide evidence.

Still, there are special problems in gaining credibility for the current impeachment. The dominance of the administration coalition is portrayed as a factor that could compromise the proceedings, especially if congressmen vote largely along partisan lines (as the U.S. Senate did in the Clinton impeachment trial). Furthermore, very many Filipinos have set aside the fundamental tenet of due process not to pass judgment until all evidence and arguments from both accuser and accused are presented.

Believing a person guilty makes it easier to accept testimony against him, and harder to take in exonerating facts. Those who think the President culpable do not question a widely denied claim that at least 15 people participated in bribery at her home in the presence of so many possible whistleblowers, even though there was not a single rumor about the supposed event nearly one and a half years since. Her detractors are also persuaded by an alleged fraudster quoting the purported rantings of a drunken man.

By contrast, evidence and statements for the accused are disbelieved or even deemed incriminating. Susan Roces’s fuming words twisted the President's apology into an admission of poll fraud. A leading newspaper headlined a story suggesting it was evasive for Malacañang to “clam up” after denying charges. Yet it is the accusers who must respond to denials by producing solid proof, not the accused who is presumed innocence. When jueteng witnesses regretted their testimony, the First Gentleman was blamed, even though Archbishop Oscar Cruz said he had not stringently screened witnesses.

Also hard to impart at this time is the admissibility and validity of evidence in due process. So much supposedly incriminating material, including weeks of hearsay testimony and different versions of the tapes, has proliferated and gained some credence among the public. It may prove difficult to justify why some of that has to be excluded or given little weight.

The tapes are either falsified, manipulated, illegal, or some combination of the three. They may not be admissible as evidence in judicial, legislative and impeachment proceedings, on pain of imprisonment and disqualification from public office for violators. And for any recording to be given evidentiary weight, it must be certified by impartial experts to contain real conversations of the parties said to have been wiretapped, and to be free from alterations. As the CBCP has urged, there must be “a credible, independent process for authentication.” The same can be said with the reams of alleged election documents now being peddled to media by the opposition.
Of the many people making accusations against the First Family, only two have purportedly seen illegal acts. Sandra Cam claims to have personally given a payoff to the President's brother-in-law, and former Palace functionary Michaelangelo Zuce alleged the bribing of election officials. But both have not produced indisputable corroborating evidence (Zuce’s scribbled lists require authentication). Still, if some of the foregoing evidences are deemed inadmissible or weak, would people devalue them in their minds?

A third issue demanding clear explanation would be the legal and technical aspects of the impeachment itself. Overruled congressmen can also decry decisions based on what they consider trivial technicalities. Opponents of due process can exploit the public’s limited legal knowledge to cry injustice over hard-to-explain rulings. Some issues that may be controversial: Should congressmen consider only one complaint, and leave the others for next year? Can the impeachment include actions and events prior to the current term of the President? Can electoral fraud charges and the validity of the results of the May 2004 elections be covered, or should these be left to the Presidential Electoral Tribunal, the sole body empowered to rule on election contests over the top elective posts?

Will rulings on such issues unleash hordes into the streets, as the Senate’s refusal to open the second envelope did in January 2001? And will the people accept an honest-to-goodness vote by the House to reject the impeachment complaints due to weak evidence?

The bottom line for the nation is simple: the current political controversies, particularly the tapes and jueteng issues, must be addressed through credible processes that obtain truth and justice. If there is not a strong case for impeachment, other duly constituted venues may be used, including the Sandiganbayan, the electoral tribunal, the civilian and military courts, and he proposed fact-finding commission. In this democratic constitutional endeavor, our people must be given a truthful explanation of all issues and decisions in the proceedings, not distortions designed to trigger EDSA 4.

The nation must also take to heart the central imperative of due process: allowing accused and accusers to present all evidence and arguments, and to fully assert their legally mandated rights, before judgment is passed. Only with careful deliberation and ample evidence in accordance with the law should an internationally recognized head of state chosen by nearly 13 million Filipinos in elections affirmed by respected independent parties as credible, be prevented from fulfilling her sworn duties to the nation.

In this historic quest for truth and justice, which will again test the integrity and resilience of our national institutions, all participants must put the rule of law and the country’s welfare above personal and partisan interests. Will our leaders deliver this indispensable statesmanship? Will the media do its part in due process by educating the public about its tenets and presenting a balanced, impartial reportage of all contending arguments and evidence? And will the people accept and support a judgment based on the facts and the law, rather than unproven suspicion and speculation? The answers will determine not just the fate of the President, but the future of the Philippines.

the CBCP must be describing themsleves. the nerve to criticize others.

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Freedom of speech allows all parties - be it in groups or as individuals - to have the nerve to criticize others. At the end of the day, it's up to the audience to believe who they want to believe and to dissect how much of what they hear is truth, falsehood, altruistic or self-serving before making an informed decision.

Funny how everyone involes due process whenever there are legal proceedings afoot. But then again, that's the beauty of the adversarial system of legal proceedings in a repersentative and liberal democracy. Sometimes due process is bastardized to the point of making the letter of the law all paramount over the substance of the law. Still, "the client cares little for a beautiful case" so long as his / her interest is served and ultimately upheld. Which then puts the onus of building a solid case for or against all the more imperative.

Bottomline: never go half-assed into a legal proceeding, otherwise due process will bite you where it hurts most...