Blog admin was able to see only the entry of appearance of the impeachment. Anyway, as to the results of today’s opening:
The Motion for a Preliminary Hearing was denied.
The Motion for a Preliminary Hearing was really a motion to hear grounds for dismissal of the impeachment complaint.
The ground raised — validity of the impeachment complaint for “lack” of verification — is jurisdictional in nature. Jurisdictional in nature is like saying: “Hey, you, stop hearing the main case because… you probably have no authority or have no jurisdiction; because… in the first place, the complaint is void, or of no effect, for not having been verified”. Verification is when the complainant (the one who filed) swears under oath that he/she has read the complaint and signed it voluntarily, etc. – in ordinary litigation, it’s a form that you have your client sign. It is a jurisdictional requirement. Jurisdictional requirement means you get dismissed if you forgot to append it/ embed it. In ordinary litigation, it is enough that one signed it – it doesn’t have to be all of the complainants.
Jurisdiction is the power to hear and decide. It is conferred by law. Grounds of jurisdiction are usually raised in a Motion to Dismiss.
Alas.
This proceeding does not allow a Motion to Dismiss. By its rules.
What do lawyers do whenever a Motion to Dismiss (MTD) is not allowed? They raise it anyway. Why…? it’s what lawyers do, silly; because you might need to say, in the future, that you raised it the first chance you got. (In ordinary litigation, sometimes you’ll need to say, on appeal or certiorari , that you raised it the first chance you got) . At least, ni-raise mo (at least you raised it).
How do you raise it if it’s not allowed? Hide it in the special affirmative defenses of your Answer.
In proceedings where an MTD is not allowed, raising it — (as illustrated, jurisdictional is like saying: “Hey, you, stop hearing the main case, you might not have jurisdiction”), is a long shot. You will be seen through by the court. But you raise it anyway for future use.
And so therefore, the Motion for a Preliminary Hearing here was really a disguised motion for a hearing on a motion to dismiss hidden as special affirmative defenses of the Answer. MTD – not allowed.
And so of course it was denied. Good call. Very efficient, too, and confident: Today’s hearing is a model for courts of law : ordinarily, you have judges/ justices in the RTC / CA/ SC who take months to decide on a motion — may hinihintay (they’re waiting for sumthin’); you have judges who will rule: admitted for whatever purposes it may serve, for every objection — what the hell is that.
And so, today’s hearing is exemplar. Let’s see tomorrow.
(for arguments on why the complaint is considered verified, please see opinions of most commentarists, it’s a beaten up horse that blog admin will not use here.)
i’m just telling you about the tricks of the trade.
The defense should not lose heart because their opening statement was well-reasoned out.
That means… when i was hearing it on the TV news program later, i turned my head and took a second look.
The penalty of death is too harsh, in any jurisdiction, and moreso for the accused prosecuted and tried in a foreign country without possibly the benefit of the best defenses available substantively and procedurally: Elizabeth Batain, Ramon Credo, and Sally Ordinario Villanueva, convicted of drug trafficking in China and scheduled for lethal injection any minute now. Also, the judicial system of China is more “inquisitorial” than “adversarial” ( in an “adversarial” litigation, the presumption of innocence is allowed to hold sway ); i’m also not sure that they were able to avail of the best legal assistance. But these are paradigmatic arguments — useless and too late . i know. i hope the Chinese authorities find it in their hearts to stay the execution one more time and see that busting the drug syndicate itself by making use of state witnesses may have more profound effects in solving the pernicious heroin and cocaine trade …
Our prayers for Elizabeth Batain, Ramon Credo, Sally Ordinario Villanueva.
the impeachment of Ombudsman Merceditas Gutierrez….being heard right now at 10:29 a.m. in the House Committee on Justice. Her legal counsel has been allowed to “control” the first five or seven minutes of the proceeding by being allowed to speak on her behalf without entering any formal appearance, and by directly engaging the congressmen in legal arguments.
Her counsel should be required to make a formal entry of appearance on her behalf since the Committee hearing, dubbed “clarificatory hearing” is tasked to receive evidence and hear the complaint for the determination of a “prima facie” case and therefore partakes an “evidentiary” character. The respondent cannot have her cake and eat it, too; if her counsel would be allowed to speak on her behalf, counsel should enter appearance, formally, on her behalf — thereby, accepting jurisdiction — the legal issue that she is raising again on M.R. in the Supreme Court.
In addition, if counsel is going to be allowed to make statements of fact on behalf of the respondent, the same should not be allowed since complainants or the prosecution have no opportunity to cross, and they have the right to cross on any testimony or statements of fact or evidence; otherwise, it should not be allowed or should be expunged from the records.
Congressmen still arguing how the respondent would be accommodated by bending their rules, 15 minutes into to the proceeding.
Respondent’s counsel now arguing on rules of procedure for filing an Answer, still without formally entering an appearance, the Chair said he was there in the status of an observer (but being allowed to argue extensively at any time with all congressmen and sundry).
Finally! reception of evidence. but it’s interrupted again by a congressman asking for … a definition of probable cause. Dribble dribble dribble… dribbling the ball…
still discussing definition of probable cause.
Finally! presentation of evidence.
Nag- speech pa! (the congressman presenting the witness is delivering a speech!)
Still “speechifying”. Where’s the witness?! i have classes at 1pm.
ANC says she is presenting evidence — she is not, she’s in the status of an endorser of the Complaint, not a witness; she is delivering a speech —
have classes in a minute. Those who have handled impeachment proceedings and trials know that the “star” or VIP of any case, is the witness — not the lawyers, not the presentors, not the endorsers, but the witnesses. They’re the ones who make the case. Not the congressmen/ senators/ judge or lawyers — but the witnesses, the evidence… congressman still “speechifying”. Where are the witnesses…?!
Those matters she is talking about in her speech, the Ombudsman’s conviction rate, delay in prosecution, etc., are matters of record and should be presented by the custodian of the records or any person who has procured the records officially, with the exhibits being marked already now…. instead of a speech… ANC still says she is presenting evidence. She is not. She is not a witness, she wasn’t even placed under oath, she is giving a speech. Okay, let us just grant that she is delivering the opening statement on behalf of the prosecution– the chair should have announced it as “Opening Statement”; and please, even my youngest and most junior students have visuals and animated graphics even of last-minute presentations in class. ANC still says she is presenting evidence. she is not. this is supposedly an “opening statement”… that was not announced as such by the chair; and she is just reading from her seat — even my youngest, most inexperienced students don’t do that for presentations, they are trained to go up, make a real presentation, think on their feet, with charts and visuals.
still reading from her seat, speech, speech. ANC still saying “presents evidence”. She is not presenting evidence, she is not a witness. Wala bang nakakaintindi. still reading from her seat.
momentous, historic occasion pala ito. Finally! Committee Vice Chair Fariñas interrupted her and said what she was reading was already stated in the complaint. The Chair agreed! she was given just two minutes more. i hope when partylist Bayan Muna makes an opening statement of their complaint, they do better than read from their seat like this “opening statement”, still, ongoing, she’s gone over two minutes. Still reading from her seat… interrupted by the Chair again, asked to wind up. She is not winding up.
final word na raw, she is just reading the last paragraph of her complaint… ooops, not yet winding up.
she said “mak-ka-ber” (macabre).
Now, she’s done.
Marking of evidence. Interrupted again by the congressman who asked definition of probable cause; now asking what rules will be used in the marking of evidence and on admissibility… dribble, dribble, dribbling the ball. Congressman Walden Bello argued passionately that in the minutes his comments yesterday were edited out, secretariat answered they were just summaries and the verbatim comments are in the transcripts. Committee vice chair minutes have been approved; Walden Bello still argued; vice chair said approval of minutes should be reconsidered, motion approved, minutes reconsidered, vice chair said minutes be amended as stated etc., more “pahabols” (last-minute belated changes) on the minutes, minutes amended. Chair said, “Let’s proceed now”.
Finally!
The witness takes her oath. finally, after more than one hour into the proceeding. The witness makes a speech. Instead of testifying right away as to facts of her personal knowledge. Speech, speech, people like to make speeches. Now, she is giving her statements of fact. finally. Normally, in a hearing, the person presenting the witness, after asking the witness his/her name and legal status, states the purpose of the testimony, etc.. Then, a “question-and-answer” or direct examination follows; but i guess their rules of procedure are more relaxed and loose. More speech/ exhortations after the statements of fact.
Finally, the second witness. i have to go to classes. thank you for your time. the second witness is good — he was to the point, solemn, spoke of personal experiences, of his knowledge; he spoke of his son who had died/ had been killed in a Philippine Navy hazing. heartfelt. Respondent-Ombudsman dismissed the case.
good witness.
The Committee Vice Chair is refuting the “Opening Statement” of the complainant! ha? (huh?). nag-lecture.
On Q and A, the answers of the first witness to the questions of a congressman — That’s how to testify; and not the “speechifying” earlier; she described in detail the force that was used when the police took her in custody — that’s what i’m talking about; that’s a good testimony.
