Equality of arms

Because the prosecution panel in Vice President Sara Duterte’s impeachment trial drew a parallel to the past in dropping some allegations to speeding up the process, it is useful to reflect on what had happened before.

In the 2012 impeachment trial of Supreme Court Chief Justice Renato Corona, the prosecution dropped five of eight articles (1, 4, 5, 6 and 8) on the 25th day of trial. It presented evidence only on Articles 2, 3 and 7, saying that was enough to convict.

Then Senate President Juan Ponce Enrile ruled in March 2012 that no evidence from either side would be received on the dropped articles. He also ruled that no vote or verdict would issue on them.

That is essentially what Senate impeachment court presiding officer Senator Francis “Chiz” Escudero ruled this week.

On 13 October, the House prosecution panel in the Duterte trial withdrew all but one article of impeachment, the one on unexplained wealth, to expedite proceedings it said.

The surviving article is similar to the charge Corona was found guilty of — Article 2 for failing to fully disclose his assets in his Statements of Assets, Liabilities and Net Worth (SALN).

Article II in Duterte’s trial is on unexplained wealth, SALN violations and prohibited business interests.

Lead House prosecutor Representative Gerville Luistro told the court the prosecutors in the Corona trial also withdrew some articles and went ahead with the rest to win their case.

The head of Duterte’s defense team, Atty. Sheila Sison, said that if the reason for dropping the three articles was to shorten the proceedings, this would result in a mistrial because the defense would not be able to present its own witnesses and evidence to rebut the allegations against their client.

Sison cited four reasons to continue the trial: the allegations were already in the record; the defense was ready to rebut; the court’s ruling allowing the reduction removes the rebuttal; and the prosecution can’t control the defense’s case.

The court held that Duterte need not present evidence or witnesses on the three charges because the senator-judges will not render a verdict on them.

Sison called this “completely unfair” since Duterte would have no chance to defend herself after the evidence presented on the dropped articles had damaged her reputation.

The defense argued that the prosecution could decide which articles to pursue but could not dictate how the defense presents its case, which goes to the principle of equality of arms, which is at the core of due process.

Equality of arms is a fair trial principle that ensures each side in a proceeding has a reasonable opportunity to present its case under conditions that don’t put it at a substantial disadvantage.

Sison’s arguments mirrored the points raised by Senator Miriam Defensor Santiago in Corona’s case.

If they withdrew the five charges, Santiago said, the prosecutors would have to return the complaint to the House of Representatives for amendment.

Her outburst peaked on Day 26 of the Corona trial on 29 February 2012, the day after lead prosecutor Representative Niel Tupas Jr. announced the prosecution’s withdrawal of the articles.

As a former regional trial court judge, Santiago said she had never seen a lawyer withdraw a course of action they had told the court they would present evidence on.

Santiago accused the prosecution of playing games with the senator-judges after earlier promising to present about 100 witnesses. The feisty Senate impeachment court member then floated charges of contempt for misleading the court and wasting the senator-judges’ time.

While Santiago did not raise the mistrial allegation, she accused the House lawyers of engaging in a trial by publicity and prejudgment for their habit of telling the media its evidence already proved Corona’s guilt.

She asked whether the prosecution was withdrawing the five articles or merely waiving its right to present evidence to support them.

If the articles were withdrawn, she argued, the complaint would have to be returned to the House for amendment.

In the Duterte trial, presiding officer Escudero raised the same concern, saying the withdrawal by the prosecution would effectively amend the articles that were signed by 188 House members.

The Corona and Duterte impeachment trials happened 14 years apart, yet the procedural maneuvers bear a striking resemblance. In both cases, critics could argue that the proceedings were less about establishing guilt with evidence and more about stoking public outrage.