AS some senator-judges threaten to turn Chief Justice Renato Corona’s Senate impeachment trial into an Inquisition, and President Aquino tries to undermine its integrity by his continued public attacks on the respondent, the Senate may have to terminate the trial in midstream, if only to preserve its honor and whatever remains of the separation of powers.

Even without Corona asking the Supreme Court, through counsel, to restrain the Senate from going any further, the inquisitorial conduct of some senator-judges has reduced the trial into a farce, and convinced rational and honest trial observers that it must end now. It just cannot go on any further.

The situation got exceptionally bad last Thursday when some senator-judges shed all pretense at cold neutrality in order to act as prosecutors, and no one on the Impeachment Court tried to check their misuse of the rules. It became unacceptably worse when the President, who is not a party to the trial, publicly called on Corona in a news conference to reveal the contents of his dollar account, and the executive secretary started asking individual senators, in the name of the President, not to honor the Supreme Court’s temporary restraining order (TRO) on the opening of Corona’s alleged dollar account at the Philippine Savings Bank.

Despite the absolute legal prohibition on the public disclosure of any foreign-
currency deposit, the Impeachment Court had earlier ruled, by a majority vote, that the alleged dollar account be opened for purposes of the trial. This had been requested by the prosecution on the basis of some illegally procured documents tending to show the existence of such an account. In all legal jurisdictions, illegally obtained evidence, known among lawyers as the “fruit of the poisonous tree,” is not admissible in court, or is no evidence at all.

The ruling was questioned by the PS Bank, which asked the Supreme Court to restrain the inquiry into the alleged account. The High Court granted the TRO on the ground that under the law no foreign-currency account may be pried open for any purpose, without the account holder’s express consent.

Whether or not the Senate court will respect the TRO will be discussed by the senator-judges today in caucus. But some senators, speaking in the strictest confidence, revealed having received a call from Executive Secretary Paquito Ochoa allegedly to transmit an urgent personal request from the President that they not honor the TRO.

This suggests a constitutional crime of incalculable magnitude, given the President’s oath of office—“I do solemnly swear that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the nation. So help me God.”

A president may honestly err in failing to understand the law and its commands. But no president should ever inveigh against the law, and ask other government officials to defy the law or an order of the highest court, based on its interpretation of the law, just because he does not like or agree with it.

This is the hardest thing to say, and I may not be forgiven for saying it, but someone will have to say it here and now, or elsewhere or later, that by this very act, P-Noy may have rendered himself completely impeachable and unfit to continue in office. He may have placed himself not just above the law but against the law, the exact opposite of what a president should be.

This has a total wrecking effect on the ongoing Senate process. Should the trial continue, no one would ever know whether a senator-judge would vote to convict because he/she believes Corona is guilty or simply because he/she has been coerced or intimidated by the President. No one would ever know whether a senator-judge would vote to acquit because he/she is convinced Corona is innocent or simply because he/she hates the idea of P-Noy trying to control the entire judiciary and the entire Congress.

Clearly the integrity of the Senate trial has been debased. Even if the Senate rewrote its rules and finally restrained its prosecutor-judges, its cold neutrality has been lost, and it may no longer be possible to erase from the public mind the image of the President’s sword hanging above the heads of the senator-judges. The only effective and honorable way to deal with it is for the Senate to admit that the trial has been corrupted, and to discharge itself from it.

The Senate need not wait for the Supreme Court to rule on Corona’s petition, or on the six other private petitions pending before the Court. The remaining statesmen and stateswomen in the Senate could, by resolution, move for the legal termination of the process. This seems to be the only way to preserve the rule of law and the honor and the independence of the Senate.

Even before the President crashed into the scene, the trial had already been compromised. The efforts of some senators to be fair were no match to the unabashed effort of the inquisitorial judges to act as prosecutors and neither the chairman nor the other senator-judges could do anything about it.

Under Rule XVII of the Senate Rules of Procedure on Impeachment Trials, “if a senator wishes to put a question to a witness, he/she shall do so within two minutes. A senator may likewise put a question to a prosecutor or counsel.”

But while the rule allows a senator-judge to ask a question, some of the senator-judges had been asking not just a question, but a series of questions. And they were not clarificatory questions but cross-examination questions, intended to fish for information, which the prosecution had failed to uncover.

At one point, retired Justice Serafin Cuevas, Corona’s lead counsel, asked the Court what type of question a senator-judge may ask a witness, under the rules. The rules do not qualify, so the chairman could not qualify either.

But the Rules of Court, which are suppletory to the rules of the Impeachment Court, would never allow a judge to act as prosecutor. And the history of the applicable rule would reveal its legislative intent.

The Senate wrote its first Rules of Procedure on Impeachment Trials in 2000, after then-President Joseph Ejercito Estrada was impeached by the House of Representatives. Most of these rules have been preserved.

As Senate majority leader at the time, I presided over the writing of those rules. We tried to copy faithfully the rules of the US Senate, which were first written upon the impeachment of President Andrew Johnson in 1868. They have not undergone any major change since.

Rule XIX of the US Senate Rules says, “If a Senator wishes a question to be put to a witness, or to a manager [prosecutor], or to counsel of the person impeached, or to offer a motion or order [except a motion to adjourn], it shall be reduced in writing, and put to the Presiding Officer. The parties may interpose objections to witnesses answering questions propounded at the request of any Senator and the merits of any such objection may be argued by the parties or their counsel. Ruling on any such objection shall be made as provided in Rule VII. It shall not be in order for any Senator to engage in colloquy.”

We tried to copy that rule in toto, but some senator-judges refused to endorse the proposed rules until I agreed that the senator-judges be allowed to ask their questions orally, instead of simply asking their questions through the presiding officer in written form. But the question a senator-judge could ask would be clarificatory only. That was the spirit behind the rule. We also retained the right of the parties, through counsel, to object to any question being asked by a senator-judge.

Somehow that right to object to a senator-judge’s question disappeared in the present rules. Thus, a senator-judge could tell Justice Cuevas that he could not object to anything said or done by a senator-judge. But while allowing counsel to object to a senator-judge’s question may not conform to the rules, not allowing him to do so clearly violates the Constitution. The rules must be made to conform to the Constitution.

Under those circumstances, the whole proceedings have all but become a danger to the constitutional order. Unless the Senate, therefore, decides to act on its own, the Supreme Court may simply have to step in and end it, once and for all.