CHAPTER 6: DAY 23 (WHEN BANK RECORDS HIDE)

Minutes before the prosecutors walked out of the impeachment trial of President Erap Estrada on 16 January 2001.
 

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his day, 16^th of January 2001, was the longest session of the trial.[1] Also nobody could probably have expected that this would be the last, the 23^rd session day of the trial that started on 7 December 2000.

Jun Davide, the Presiding Officer, opened the day’s trial by informing the senator-judges that they need to act on two pending motions.

One was whether the opening of the second envelope would be allowed or not. The Defense had earlier objected to Prosecution’s attempt to open the envelope in open court.

The second motion also pertained to the objection by the Defense to “the request for the issuance of subpoenas duces tecum to different banks involving the following accounts allegedly made by the parties to be enumerated--the alleged accounts of Laarni Enriquez, Guia Gomez, Joyce Melendrez; the accounts of one indicated as Kevin Garcia; the accounts alleged to be in the name of Jose Velarde; certain accounts without names of depositors; and, finally, accounts alleged to be in the name of the Respondent and/or Mrs. Luisa Ejercito, whether singly or jointly.”

Davide gave both the Prosecution and the Defense 15 minutes each to present oral arguments for or against the twin motions. But before the presentation of oral arguments, the court heard the testimony of Oswaldo Santos, the Prosecution’s witness for the day.

Santos testified that he investigated the whereabouts of the Erap Muslim Youth Foundation. He said he came out with the conclusion that the Foundation did not hold office in the address its incorporation documents said it was holding office.

Also earlier, before Santos’ testimony, the Defense agreed to the motion by the Prosecution that Anton Prieto, who earlier was presented as a witness for the prosecution, be withdrawn and his testimony stricken off the records.

Then came the fireworks on the motion by the Defense to prevent the Prosecution from opening the second envelope submitted by the Equitable-PCI Bank pursuant to a subpoena issued by the court.

Davide first called the Defense, as movant, to present its oral arguments. Mendoza argued for the Defense.

“All of these issues,” Mendoza opened his statement, “we are to deal with this afternoon, Your Honors, involve the jurisdiction of the Senate to try and decide alleged acts of the Respondent, not alleged in the Articles of Impeachment. There are subsidiary issues with respect to certain accounts because they are not in the name of the Respondent. I will deal with them at the end of my arguments.”

On the whole the Mendoza arguments were aimed at convincing the court that the evidence being offered by the Prosecution could not be admitted because the alleged crimes they sought to prove were not part of the charges against Erap brought by the House of Representatives to the Senate for trial. These pieces of evidence, as the Defense often objected, were “immaterial and irrelevant.” One may also note that the Defense has introduced another concept—the notion of “jurisdiction.”

“Records show,” Mendoza went on, “that he and his wife and mistresses and their children have other interests in other companies outside of the three firms listed in his statement of assets Annex C hereof. …So, what is alleged as a factual basis of the assertion that the President violated his sworn statement by committing perjury and the offense of unexplained wealth, incidentally, there is no such offense, as he simply limited to the failure to state in his Statement of Assets and Liabilities other, that is, ‘other interests in other companies outside of the three firms listed in his Statement of Assets and Liabilities.’ As I said, insofar as the cash assets, there is nothing whatsoever here.

“Now, it will be noted, if Your Honors please, in Annex ‘C’. Annex ‘C’ is a comprehensive list of corporations in which the Respondent is supposed to have other interests which… interests, rather, which he did not declare in his statement of assets. All in all, these corporations numbered 88 corporations. Some Table II of the President, Table III, Guia Gomez; Table IV, Laarni Enriquez; Table V, Joseph Victor Ejercito; Table VI, selected companies of Estrada and his families.

“So insofar as corporate interests, if Your Honors please, what need to be determined is whether in the case of the second envelope, St. Peter’s Holdings is listed… is among these corporations listed in Annex “C”.

“As far as the second envelope is concerned, if Your Honors please, we may deduce from the application that the intention is to establish that the check which was supposed to have funded the payment for what we call the Boracay mansion, purchased by St. Peter’s Holdings, was funded ultimately from Savings Account No. 016062501-5, and that is why what is sought now to be produced is the Statement of Account for October 1 to 31, 1999.

“It may be recalled, if Your Honors please, that when on December 15, December 20, the first envelope was opened, it was found that in that envelope there were the applications to open accounts, specimen signatures, et cetera, of Account No. 11025494-5, as well as microfilm copy of Equitable Bank check number. Those were what were in the first envelope.

“Now, what is now sought to be produced is the statement of account of a savings account, which we assumed, the Prosecution contend, will show that the check which was used to fund the price for the payment of, what we call, the Boracay mansion in the name of St. Peter’s Holdings was funded from this statement--from this savings account.

“So, in effect, what is now asserted is to prove that the President was the one who acquired the Boracay mansion through St. Peter’s Holdings. But as we have stated, St. Peter’s Holdings is not among the corporations listed in Annex ‘C’.

“There is one other flaw, if Your Honors please. After the first envelope was opened–which should have been the premise, assuming my assumptions are correct in regard the second envelope–not any of the documents in the first envelope was marked as an exhibit. So that if the papers in the first envelope are the predicates for the opening of the second envelope, that predicate does not exist because the papers which were found in the second envelope have not been marked as exhibits, much less established as belonging to the President.

“These issues we raised, if Your Honors please, go beyond the issue of relevancy. They go to the issue of jurisdiction. Whether the jurisdiction of the Senate to try and decide this case goes beyond--can go beyond the specific factual allegations of the Articles of Impeachment, it is our submission that the Senate is without jurisdiction to try and decide any acquisition based on any act other than those which are specifically alleged in the Articles of Impeachment.

“As to the other subpoenas, if Your Honors please, there are accounts even far remote from the account supposedly related to the acquisition of a property by St. Peter’s Holdings. They involve cash assets or their equivalent. Well, perhaps, as far as the accounts of President--in the name of President Estrada and the First Lady, assuming that cash assets are contemplated, are covered by the Articles of Impeachment, we may say they are within the jurisdiction of the Court. But you have other accounts which are the subject of subpoena duces tecum. Some of the subpoenas apply for subpoena duces tecum to be directed to account numbers without any name. How can the relevancy, the fact that these are covered by the Articles of Impeachment, be determined on the basis of the application?

“Similarly, you have this Kevin Garcia, Jose Velarde and other names, which are not in the names of the President, and not even in the names of Laarni, Guia Gomez. They cannot be presumptively--they cannot be deemed as presumptively belonging to the Respondent.

“There is other one noteworthy, if Your Honors please, regarding these applications for subpoena. It will be recalled that it was agreed among the parties that when a subpoena duces tecum is applied for, the particular check, if it were a check, which would show the relevancy of the application would be indicated and that beyond that, there cannot be comprehensive or catch-all phrase to cover all documents and records in that account. These applications for subpoena duces tecum have sought to circumvent the agreement that there should be no comprehensive clause in subpoena duces tecum addressed to banks. What the Prosecution has done is to list everything that one may find in a bank account or ledgers or accounts except that instead of saying all ledgers, all accounts, they have now specified these one by one. That is why, if Your Honors please, the applications for a subpoena duces tecum have enumerations of documents covering about two pages in single space of documents.

“As a matter of fact, if Your Honors please, in the case of the second envelope, assuming that that is within the jurisdiction of the Senate, what should only the subpoena duces tecum should be limited only to what is necessary to determine whether the check that was drawn on the current account was funded from the savings account. It would be inappropriate, even assuming that purpose, to expose the entire statement of account for that month, much less any other document pertaining to that savings account. As a matter of fact, assuming that the Court does not sustain us on the jurisdiction issue and that the Prosecution’s desire is simply to establish that the check was funded from that savings account, we would be willing to stipulate on that assuming that that is the purpose.

“So, then, if Your Honors please, the issue is not really that complicated, but it is an issue which we have raised many times in this trial. Unfortunately, there has really been no definitive ruling on this. Perhaps it is time that a ruling be made because what has happened really, when the first envelope was opened, we raised that issue. But then the whole–the documents had already been exposed, and so we said, since the matter has been made practically public, we agreed not to pursue our motion for reconsideration but reserving our right to object on the matter of materiality or jurisdiction. Similarly, when the Clarissa Ocampo testimony was made, we likewise objected, but the testimony was allowed to be given, although conditionally given.

“So, the issue before the Court, if Your Honors please, is simply whether the Articles of Impeachment contain any allegation of fact to show that the act, the alleged act of the President in having cash assets or interest in corporations other than those listed in Annex ‘C’ are sufficiently alleged in the Articles of Impeachment so that the Senate would have jurisdiction to try and decide them.

“I recall, if Your Honors please, that when Senator-Judge Revilla was propounding questions to the witness, to the Pagcor witness, he said, ‘Kaya tayo nandidito ngayon, eh, alam nating lahat, dahil lang kay Chavit Singson. Kung wala iyong si Chavit Singson, wala tayo rito ngayon, eh. Sapagkat ganoon po nag-umpisa itong asuntong ito, eh. Iyong reklamo ni Chavit Singson, puro po Chavit Singson iyon, eh.’ (We all know that the reason why we are all here, it’s merely because of Chavit Singson. If there was no Chavit Singson, we will not be here. Because that was how this case started. That gripe by Chavit Singson, all because of Chavit Singson.)”

When the turn for Senator-judges to ask questions came, some tended to favor Mendoza’s views, others raised doubts.

Questions by Enrile, Roco, Cayetano, Drilon and Pimentel were examples.

Enrile wanted the Defense lawyer to emphasize that the Prosecution cannot introduce any evidence the later might have taken fancy on. He asked: “If Article 2 of this Articles of Impeachment simply alleged: ‘The President should be impeached because (1) he violated the Constitution and he stands guilty of graft and corruption; (2) that he violated the Anti-Graft Law; and that he committed perjury and is guilty of the offense of an unexplained wealth,’ would that be a sufficient statement of ultimate facts to warrant the introduction of evidence to prove these allegations, assuming that these are the ultimate facts alleged in this Article 2 of the Articles of Impeachment?”

Mendoza: “These are the only ultimate facts—”

Enrile: “Yes.”

Mendoza: “–and it will be arguable whether these constitute either graft or corruption as contemplated by the Constitution. I would assume that not every graft and corruption is contemplated by the Constitution as an impeachable offense. And whether or not also perjury, which is not among the crimes listed in the Constitution, may be considered a high crime.”

Roco disagreed with Mendoza on the interpretation of the law.

Roco: “… And Section 13 speaks — prohibits the President during his tenure from directly or indirectly practicing any profession, or participating in any business, or any special privilege granted by the government, et cetera. Now, would not these charges be read in the context of the Constitution?”

Mendoza: “But the focus of my entire argument, if your Honor please, – “

Roco: “Yes.”

Mendoza: “–is not so much on the statement or the conclusion, but the statement of facts. Because what we are discussing really is whether having allegedly — allegedly having certain cash deposits in banks or having allegedly interest in St. Peter’s Holdings, not among those alleged in Article 2, falls within the jurisdiction of the Senate to try and decide and then, ultimately, to convict or acquit the President. That is simply the issue.

“Whether those may fall under other provisions of the Constitution, that is not the question. The question is whether… we are now dealing on whether subpoena duces tecum may be issued as regards certain bank accounts.”

Roco: “That is how you read it, but under the piece of paper …”

Mendoza: “That is the issue.”

Roco: “Yes, that is how you read it, but that is not how others may read it. Because Article 2 says that Estrada violated the Constitution. In other words, it is not ‘and.’ It says, ‘Stands guilty of graft and corruption,’ in small letters, not Anti-Graft Law as in the second paragraph, so that the Constitution is always understood to be read in all these pleadings as part of the charges.”

Mendoza: “Well, if your Honor please–but Your Honor does not continue the sentence–this is just like saying, ‘The accused has violated the Revised Penal Code.’”

Roco: “No, the only ….”

Mendoza: “That charge can just be…can evidence of murder, robbery, theft, rape be introduced? That is the issue. When there is an information charging an accused of having committed murder because he killed so and so on such and such a date, that is the only offense that is triable by the Regional Trial Court. And insofar as impeachment cases, it is even more stringent because a Regional Trial Court has general jurisdiction, but a Senate has limited jurisdiction, and that limited jurisdiction encompasses only the Articles of Impeachment which were forwarded to the Senate by the House of Representatives.”

Roco: “We have something more to say about that, but the time does not seem to allow, although I would register an objection because there is no rule and there was no agreement about this two-minute rule as regards arguments with Counsel. Still, the only reason I called attention to ‘violated the Constitution,’ —I did not read the whole paragraph—is because I’m restricted by the two-minute rule. The fact is that these charges are read, and I read from your text, ‘that President Estrada violated the Constitution.’ And then, it says, ‘And stands guilty of graft and corruption.’ So that that violation of the Constitution could only refer to Section 13 of Article VII which prohibits the President from engaging in business.”

Mendoza: “But there is no period there, Your Honor. You made a full stop where there is no basis for doing that.”

Roco: “No, no, no.”

Cayetano had an issue with the suggestion that the impeachment process be conducted in a manner that was similar to that of a criminal procedure. He remarked that “…the Defense has, from the very beginning, I note, proceeded from the theory that the impeachment is a criminal proceeding.”

Mendoza: “No, Sir.”

Cayetano: “And that is why…Yes. In fact, I heard no less than my good friend, Chief Justice Narvasa, argue that this is in the nature of a criminal proceeding.

“The point is, if indeed this were a criminal proceeding, I would agree with my professor that we should apply the strict rules of evidence. But I think there is no precedent. Can you cite any precedent that an impeachment proceeding is criminal in nature?”

Mendoza: “The proposition I submit would apply whether the proceedings are criminal, civil, political, whatever you may say. The proposition I submit is premised on the constitutional provision which provides that the House of Representatives has the exclusive power to impeach, and the Senate has the sole power to try and decide the Articles of Impeachment forwarded by the House of Representatives. That is the premise. And we need not decide, it need not be decided whether the proceedings are criminal, whether they are civil. The fact is that the position of the Defense is predicated on the Constitution. It is jurisdictional. It is not a question of relevancy anymore. It is a matter of jurisdiction.”

Cayetano: “Yes. In fact, I was wondering why you raised that because as the sole arbiter of the impeachment, the Senate has jurisdiction for as long as the impeachment complaint is just.

“Anyway, the point is…. that is why we have the Senate Rules which say that rules on Procedure and Evidence should be liberally construed, because we consider this as a political process and not as a criminal proceeding. And that is why, I was wondering, Mr. Professor, if we follow our Senate Rules on Impeachment, that Rules of Evidence should be liberally construed, I am saying, at least, as a proposition.”

Drilon doubted if Mendoza’s statement of facts and analysis were adding up. Some of his questions below:

Drilon: “Atty. Mendoza, in your opposition to the opening of the second envelope, you expressly stated that you are opposing the opening of the second envelope for the indicated purpose of retrieving or obtaining the statement of account for S/A No. 016062501-5. Is that correct?”

Mendoza: “If you are reading from it, it must be correct. I don’t have it on hand, Your Honor.”

Drilon: “Yes, I am reading. Now, is it not a fact that S/A No. 016062501-5 is owned by President Joseph Ejercito Estrada?”

Mendoza: “No, Sir. There is no such evidence.”

Drilon: “May I ask Atty. Mendoza to read page 56 of the transcript of stenographic notes dated January 2, 2001, as testified to by Ms. Clarissa Ocampo.”

Mendoza: “I do not have the transcript. But, if Your Honor please, as far as I can recall the testimony of Mrs. Ocampo, she said that the signature card for the Trust account was signed by President Estrada. She did not refer at all to savings account number whatever.”

Drilon: “Exhibit ‘XXX’, Your Honor, says: ‘This is to authorize you to debit my Savings/Current Account No. 016062501-5 maintained with your branch in the amount of P500 million and credit my Trust Account No. 10178056 representing my initial contribution. Signed Jose Velarde,’ and this was testified to by Clarissa Ocampo as having been signed by the President in her presence. Is this not proof that the President owns, in fact, S/A No. 016062501-5?”

Mendoza: “Perhaps, I may grant that it is proof. But it does not necessarily establish that the account belongs to President Estrada, and it does not necessarily negate the basic proposition that I have submitted to the Senate that these cash assets are not covered by the Articles of Impeachment. In fact, if Your Honor please, as far as the jurisdictional argument I have submitted, I am assuming that these may be considered account of the President. But assuming that they are, they are not covered by the Articles of Impeachment.

“As I said, there is no direct evidence on that savings account. As a matter of fact, when the first envelope was opened, the signature cards were there. But the Prosecution did not even mark as exhibits the basic documents insofar as the St. Peter’s Holdings account is concerned. They did not mark that. That would have been the more relevant evidence to link the President to this savings account. But as far as that is concerned, there is no evidence whatsoever.”

Drilon: “Couldn’t the Prosecution now mark that in evidence?”

Mendoza: “If Your Honor please, at this stage, we are acting on the basis of the facts before the Court.”

Drilon: “Now, do you recall if the signature cards of the first envelope contain a referral to Savings Account No. 016062501-5?”

Mendoza: “I do not recall. I do not think the signature card makes a referral to savings–I really don’t know, Your Honor. I cannot remember. Because they were not marked as exhibits, we did not get copies of those, and we really did not pay close attention to those documents anymore.”

Drilon: “Now, already marked in evidence are the Statements of Assets and Liabilities of the President for the periods ending December 31, 1998, and December 31, 1999. In those two documents, his cash in bank did not at all reach P500 million. That is of record.”

Mendoza: “Whatever it is, it is not alleged that he did not declare in his Statements of Assets and Liabilities that he had cash assets beyond that.”

Guingona showed observers why lawyers made a living out of words and how they were used.

Guingona: “Is it not a fact that the Articles of Impeachment alleges violation of the anti-graft law that he as the President is sworn to uphold?”

Mendoza: “The Articles of Impeachment alleges violation of the anti-graft law. That is a conclusion of law.”

Guingona: “Yes.”

Mendoza: “And then it follows to state the facts upon which that alleged violation was committed.”

Guingona: “Yes. But in the Preliminary Conference, it was agreed that the basis of this would be the law itself.”

Mendoza: “No, Sir.”

Guingona: “Yes.”

Mendoza: “May I read the Preliminary Conference paper?”

Guingona: “As a matter of fact, there was an argument as to whether there was bribery in what sense? And it was agreed in that conference that the basis of the charges would be the facts charged in the law itself. And this law, anti-graft law, Section 8, specifically charges that if an incumbent public official is shown to have amassed incomes disproportionate to his legitimate source of income and other lawful sources, then he is subject to suspension or dismissal, and this does not qualify or is limited to certain corporations alone. Unexplained wealth is unexplained wealth, where the Prosecution has the opportunity of showing what the law says.

“And so, therefore, Atty. Mendoza, is it not a fact that as long the Prosecution can establish that there is unexplained wealth even outside of the corporations which you claim to be limited or restrictive, then the Prosecution is within its rights?”

Mendoza: “First of all, if Your Honors please, may I refer again to the Preliminary Conference Order. This is stated very clearly as follows:

“Article 2. Whether on the basis of the facts alleged, not on the basis of the conclusions alleged, on the basis of facts alleged therein, the President could be guilty of graft and corruption.

“Second, as far as the unexplained wealth part of the question is concerned, the Articles of Impeachment says: ‘The President by that sworn statement also committed perjury and the offense of unexplained wealth.’ But the sentence does not end there. It says, ‘because records show that he and his wife and mistresses,’ et cetera. What follows are the statement of facts on the basis of which he is being accused of having committed perjury and having unexplained wealth.”

Nene Pimentel tested how liberal Mendoza could go in the interpretation of the impeachment rules. Mendoza said his concern was not what the impeachment rules said, it was what the Constitution said.

Excerpts:

Pimentel: “If I’d follow the drift of your argument, it looks like you would like to limit the Prosecution to prove only that the President is probably liable for not stating completely that he, his wife and his children have business interests in only three corporations. Is that correct?”

Mendoza: “If Your Honors please, I am not trying to limit the Prosecution. I am saying the Prosecution is limited by the Articles of Impeachment.”

Pimentel: “As stated, among other things, by No. 3 and No. 4, is that correct, in this handout that you gave us?”

Mendoza: “Yes, Sir. The handout is simply a copy of the Articles of Impeachment.”

Pimentel: “Yes, but precisely because of that, I could sense, I could detect some fallacy in your argument for the reason that precisely in No. 4, the President is being charged that he and his wife and mistresses and their children have other interests in other companies outside of the three firms listed in his Statement of Assets and Liabilities. This to my mind, is a statement of fact.”

Mendoza: “Yes, Sir. But what follows is, there is Annex ‘C’.”

Pimentel: “Correct, correct. But if you limit them to Annex ‘C’, you are effectively precluding their right to prove that outside precisely of the firms that are listed, the children have other interests in other companies.

Mendoza: “I am not trying to preclude the Prosecution, Your Honor. It is the Articles of Impeachment which precludes the Prosecution from introducing such evidence.”

Pimentel: “Exactly. But this is a part of the Articles of Impeachment.”

Mendoza: “Yes, Sir.”

Pimentel: “And therefore, the Prosecution should have every right to prove that there are other interests of the President and his wife and mistresses and children in other companies outside of the firms listed in the Statement of Assets and Liabilities.”

Mendoza: “Only those listed in Annex ‘C”.

Pimentel: “Ah, but exactly the wording ‘outside’ means it is not included in the enumeration. Wouldn’t you think so?”

Mendoza: “May I again call attention to the fact that Annex ‘C’ must have been a very deliberate, conscious and exhaustive effort to name the corporations. Because Annex ‘C’ contains the names of 88 corporations.

Pimentel: “All right. And when you talk of ‘other interests,’ couldn’t that, by a broad interpretation of the Rules on Evidence, include cash accounts also?

Mendoza: “No, Sir.”

Pimentel: “Why not?”

Mendoza: “Interests in corporations are equity interests.”

Pimentel: “How about in companies? Couldn’t the word ‘companies’ include banks?”

Mendoza: “No, Sir, because a deposit account is a loan. The relationship between a depositor and the bank is of debtor and creditor.”

Pimentel: “Correct, if you are very strict about the interpretation. But the word ‘interest,’ I would suppose, could include any financial or other interests in any company or other banks.

Mendoza: “I am just invoking the Constitution, Your Honor. I am not being either strict or liberal; I am invoking the Constitution.”

When the court was done with questions related to the oral arguments presented by the Defense, it turned to what the Prosecution had to say.

Joker Arroyo took the floor. He argued for the opening of the second envelope.

Arroyo: “The President’s Counsel raised the question of jurisdiction. To those experienced in proceedings before the Supreme Court when the issue of jurisdiction is raised, that means that, perhaps, the President would, if the decision is adverse to the President, would take this up to the Supreme Court. We cannot dictate to the Defense the course of action, but I am, I have been alarmed by the constant repetition of jurisdiction. In fact, this is a challenge to the Court’s jurisdiction if the decision is favorable to us.

“This Court is composed of 22 members. Only seven are senators…ah only seven are lawyers. The rest or two-thirds belong to different disciplines but not the law. It is to them that I am addressing this, the position of the Prosecution, because the lawyers in this Court can take care of themselves.

“In 1974, when President Nixon was poised to be charged before the U.S. Senate, the Senate drafted rules precisely in anticipation that in case President Nixon is charged or impeached by the U.S. House, then they are prepared. President Nixon resigned before he was charged and, therefore, there was no use for the Senate Rules.

“Those Senate Rules made in 1974 for President Nixon was the Rules used in the Clinton trial. Why do I mention this? There’s too much complaint about the way the Complaint has been drafted. True, this could have been done better. True, it could have been worded better. The fact is, this was prepared by cause-oriented groups, prepared by nongovernmental organizations, prepared by trade union people. It was given to the House. The House, constituting about 105 or over the one-third vote, adopted the Impeachment Complaint prepared by outsiders.

“Now, in the Clinton trial, there was Kenneth Starr who gave the U.S. House of Representatives truckloads of evidence against President Clinton. Here was Kenneth Starr who was given special powers, subpoena powers, in fact, investigative powers, beyond even what other courts could exercise. Because of those powers, he built up what he thought a case against President Clinton.

“The job of the U.S. House of Representatives was very simple. It was made for them. The evidence, duly catalogued and indexed, was for the House Judiciary Committee just to look at it. No sweat. Compare that to our position. We had no Kenneth Starr. We had no special counsel. We had only the cause-oriented groups. But once it was adopted by the House, perforce, it had to be transmitted to the Senate. It was transmitted November 13.

“Now, on November 15, the Senate adopted its Rules on Impeachment. In other words, at the time that the Complaint, the Impeachment Complaint was filed, there was no Senate rule that could guide the complainers. Nothing at all. There was no Senate rule. It is like telling, ‘The Constitution says that Congress will promulgate its own Rules on Impeachment.’ The House did and, perforce, we had to do that because we are flooded with complaints against Justices of the Supreme Court, against constitutional officers. None of those prospered but we have to attend to that. But the Senate had never been faced with an impeachment case, so it hurriedly drafted the Senate Rules on Impeachment on November 15.

“How can we complain? How can anyone complain, at least? How can the Defense now egg on the Senate to say, ‘This Complaint is no good’ when at the time that this was prepared, there was no Senate Rules to guide us? Zero.

“Fair play dictates that when a complaint is challenged, it is because we do not go by substandard, by some measure. There was no standard to follow. There was no measure to be adopted. We submitted it here.

“Now, November 15. The Impeachment Rule says that the Rules of Court will be suppletory and the Rules of Evidence will be liberally supplied. What did the President’s Counsel do? What they did was, instead of asking for a Bill of Particulars which they could if they thought it vague, was to file a Motion to Quash.

“The President’s Counsel mentioned here Bill of Particulars. He is so right. Why? The Bill of Particulars provide a defendant or rather a plaintiff the remedy when the charges are vague. It reads, Section 1, ‘Before responding to a pleading, a party may move for a definite statement or for a Bill of Particulars of any matter which is not averred with sufficient definiteness or particular clarity to enable him properly to prepare his responsive pleading.’ There was a remedy-the Defense did not take advantage of it. What they wanted was to file a Motion to Quash.

“In fact, the arguments raised by the President’s Counsel today had already been discussed in the Motion to Quash. And in that Motion to Quash, the Senate, acting as Court of Impeachment, denied the Motion to Quash. That settles the whole thing. The same reasons about the allegations in the Complaint--the incompleteness, the inadequacy. That was raised here.

“The Defense Counsel was given 30 minutes to discuss. He used nine minutes, I remember it. Now, how can he complain now about the inadequacy of the Complaint when this has been a settled matter?

“But the point here, Your Honors please, and this is where we go to the core of the question. The difficulty we have, the Prosecution, is that we have a President who never uses his name. He has a dozen bank accounts but never does he use his name.

“In the opening argument, I said that the President violated every word of his oath except his name. Little did I realize that he violated even his name because he’s ashamed of it. He doesn’t want to use it and I will proceed to explain why.

“We distributed, if Your Honors please, a….

“If Your Honors please, you will notice here, if you look at this, what are we after? We want to open the second envelope which contains Savings Account No. 01606250-51-5. Now, this account, you’ve heard Clarissa Ocampo talk about the P500 million trust account, that is on the left-hand side. EA trust account, P500 million.

“Now, in one of the letters which Clarissa Ocampo testified on was a letter of February 4, 2000, which had been marked as Exhibit ‘XXX’ on December 22. It reads:

‘Dear Mrs. Bagsit:

This is to authorize you to debit my savings account, Checking Account No. 01606250-51-5 maintained with your branch in the amount of P500 million and credit my Trust Account No. 19178056-1 representing my initial contribution.

Very truly yours,

(Sgd.) JOSE VELARDE’

“If Your Honors please, the P500 million was taken from the savings account and transferred to the trust account. That is why we want it opened because we want to show how the President amassed P3.3 billion within a span of one-and-a-half years. That’s the kind of money that he placed in that savings account. And that is the savings account that the President’s lawyers are saying we shouldn’t open.

“But that’s not the end. If you will notice this chart, there is another account, Checking Account No. 00110-25495-4 of P142 million, that is the controversial check. This amount of P142 million was also taken from the savings account. If the members of the Court would prefer the Powerpoint at your back, you can just turn your chair and see that the flow is there, but the others may want to see this.

“Now, P142 million was taken from the savings account. That is why we want to open this the savings account. We want to open the mystery of this
savings account. This P142 million is what the Prosecution claims a check that was issued by Jose Velarde but actually signed by the President giving P142 million to Sel Yulo.

“Now, Sel Yulo, in turn, turned over the amount to St. Peter’s Holding, and after the St. Peter’s Holding, it went on to the purchase of Boracay from the Madrigals.

“Now, Mr. Chief Justice, we have examined the savings account. Five hundred million was debited on February 4 from the savings account and credited to the trust account of P500 million. Also, two entries appear in the savings account which total P142 million debited from the savings account and transferred to the checking account, also two entries total P142 million. In other words, the P142 million was taken from the savings account.

“Now, if Your Honors please, the problem is that you have three accounts all in the name of Jose Velarde. The Defense, in fact, says even if they are all the President’s, they are not material. That’s the argument. They are not part of the complaint.

“But that is not the end of the story, Mr. Chief Justice, members of the Court. If you see the savings account, we have pending before the Court various requests for subpoena, you see, from the savings account. That savings account is fed by various checks, most of them are paid to cash. Imagine, what was deposited here totaled about P2.16 billion. If you notice the P3.3 billion here, it’s because some other investments went into this. That’s why when the President’s lawyer says that: ‘No. Cash is not investment’…and many went there, in this P3.3-billion account.

“Now, who are they? Mark Jimenez placed amounts there. That’s why we want to know. We want to open the account. Because if we open the account, then we can trace it to Mark Jimenez.

“Dante Tan, P300 million placed in that account. Kevin Garcia–we don’t know him, but a total of P180 million was placed there. Jaime Dichaves, who claims this account, but puts money inside here. How? He claims this is his account but yet he puts money in there, P210 million. Lucio Co and others.

“Now, if Your Honors please, this is no joking matter. Where in the world can you see a President of the Philippines not having any account in his name? And we are told not to open it. These accounts–savings accounts had been closed on November 17, 2000, while on November 15, 2000, when the Senate adopted its Senate Rules, the account was closed. Where did it go? It went again to six accounts, not again in the name of the President. But that’s going very far. If we cannot even open these, how can we go further?

“But is it the gravity of this account? Mr. Chief Justice, members of the Court:

“On December 22, 2000, in a bench conference, we were asked by the Chief Justice whether we could support the ill-gotten character of the P500 million in trust account. Why? Because the trust account was opened February 4, 2000.

“So, question…. And we understand it. How can you say that that is ill-gotten except ‘Yes, you opened the account, but is it ill-gotten?’

“So the Chief Justice tells us: ‘Do you have evidence?’ And we said: ‘Yes.’ And the understanding was…Counsel Daza said: ‘Tell us who.’ Then I answered: ‘No, because for security reasons.’

“So the Chief Justice says, ‘Can you sub rosa inform the Senate President?’ I said, ‘Yes.’ So on New Year’s day, I paid a call on the Senate President and showed him exactly the savings account and mentioned to him the names which, in a previous hearing, the Senate President confirmed and conveyed it to the Chief Justice.

“We are engaged in trivialities in an issue of such a damning importance. Sirs, Madams, we don’t have a ‘Kenneth Starr’… Sariling sikap (By ourselves).

“The Prosecution is labeled as weak. That is what the talk shows say. But through hard work, no Kenneth Stars, no subpoena powers, we were able to dig these up. But this is not the end of the story. There are other accounts under, again, different names. But if we cannot even open this savings account, how can we open the other names?

“The President’s Counsel tells us: ‘They give only the account numbers.’ Naturally, because the President gives fictitious names. The President has prostituted and bastardized the banking system. It is almost a roll call of banks, and he has accounts all over but not in his name. That is why we are asking for subpoena. If this is granted, we will. But because of the time constraints, we will try to zero in on the savings account to end this once and for all, to demonstrate that we cannot have this President because he does not even respect our banking laws.

“Jose Velarde, Jose Velarde, Jose Velarde. Why does he not put Joseph Ejercito Estrada? Is he ashamed of his name?

“Not only that. Mention was made about the mistresses. We want to demonstrate that starting–that is why we ask for statements starting 1998. Why? Because it will be shown that the balances after June 30, 1998, shot up. Imagine, Laarni’s PSBank, Murphy Branch, from a P3-million balance, it shot up to P63, then to P249. That is millions. Then P100 million.

“You see, Mr. Chief Justice, we have a certification here from the Ombudsman which says that: ‘This is to certify that on the basis of the records of the Office of the Ombudsman no document of divestment has been filed by His Excellency, President Joseph Ejercito Estrada, with the Office of the Ombudsman. This certification is issued upon the request of the Hon. Joker P. Arroyo, Representative-Prosecutor in the Impeachment Trial of President Joseph Ejercito Estrada.’

“Now, what does the Constitution say? The Defense says that we are circumscribed by the Constitution. But look at this. Republic Act 7080, an Act defining and penalizing the crime of plunder, ill-gotten wealth, acquired by him, the public official, directly or indirectly through dummies, nominees, agents or subordinates. Who are these mistresses? They fall squarely under the definition.

“Republic Act 1379, Exceptions: ‘Property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of or held by the respondent’s spouse, ascendants, descendants, relatives or any other person.’ That is why the opening of the mistresses’ accounts are important.

“Republic Act 3019, the third law, Section 8. Prima Facie Evidence of a Dismissal Due to Unexplained Wealth. ‘If in accordance with the provisions of Republic Act No. 1379, a public official has been found to have acquired during his incumbency whether in his name or in the name of other persons, et cetera…’ That violates the Anti-Graft law.

“Now, what does the Constitution say? The Constitution says that Section 6, Article VII, ‘The President shall not receive during his tenure any other emolument from the Government or any other source.’

“How did he get the P3.3 billion there in the savings account?

“No. 2. Obligation to Divest – The President shall not, during said term, directly or indirectly practice any profession, practice in any business or be financially interested, et cetera. They shall avoid conflict of interest in the conduct of their Office.

“What we would like to point out is that, while the Defense banks on the Constitution, challenges the jurisdiction of this Court, we would say that as we have read…Forget paragraph 1 in the Articles of Impeachment. That will be treated separately. We will have evidence for that.

“Now, paragraph 2, he also violated the Anti-Graft Law he is sworn to uphold.

“Now, Mr. Chief Justice, the Defense counsel made allusions that we are throwing the Revised Penal Code at the President. No, Sir. We are charging him only with one law, a few pages. Not this book. All three interrelated laws on Graft and Corruption.

3) He filed his…When you break this up, Mr. Chief Justice, for those–again–I would ask–those who are non-lawyers here, if you break up the charges we have, then it is easy to understand how we are proving our case.

“No. 3. He filed his Statement of Assets and Liabilities for the year 1999, stating therein that he and his wife and children have business interests in only three corporations. That is what he said in his Statement of Assets and Liabilities. He said he had only P35 million in Net Worth, then P6.5 million in the banks and yet he has P3.3 billion here.

“4) The President, by that sworn statement, also committed perjury in the offense of unexplained wealth, because records show that he and his wife and mistresses and their children have other interests in other companies outside of the three firms listed in his Statement of Assets and Liabilities.

“Now, Mr. Chief Justice, the Defense makes capital of words in parentheses as if that’s the heart and soul of the entire complaint. That is just illustrative; it’s just to explain. Nothing more. Parenthesized words are not part, but they make capital of it and say that is the meat of the entire complaint.

“Please, we beg you to think that if what we are now trying to show fits the bill….”

Senator-judges lined up, including seldom-heard Ramon Revilla, to ask Arroyo questions.

John Osmeña: “Mr. Chief Justice. I would like to inquire as a nonlawyer–and I appreciate the lecture–why is it that the honorable Prosecutor Congressman Joker Arroyo, since he knows so much about the savings account, Account No. 016062501-5…

Arroyo: “That is the savings account.”

J. Osmeña: “That is the savings account. That’s basically what is in Envelope No. 2.”

Arroyo: “Yes. That is what we are trying to…”

J. Osmeña: “You presume. We all presume. Since you know so much about it, you know that the balance is P3.3 billion, you know that Dante Tan deposited P300 million, that Jaime Dichaves deposited P210 million, that Lucio Co deposited–I did not catch the amount–that Mark Jimenez deposited P180 million, since you know so much about it, why don’t you just bring out all your information and why do you want us to open the envelope? You already know everything about it anyway.”

Arroyo: “Because it would be inadmissible. What would be admissible would be that account that we have requested to be subpoenaed. That is the difference.

“If I give you a piece of paper, you can always object. No, no, that’s not admissible. But if I give, for instance, a bank record, testified on by a competent bank official, then that would be admitted. Because if I would give a statement, then, sasabihing (you’ll say), ‘Gawa-gawa mo lang yan (You just made it up).’ That is the difference.

J. Osmeña: “Somewhere, somehow, obviously not in your dreams, at hindi mo siguro gawa-gawa, somebody must have told you all about these. And so, why don’t you bring your witnesses here, and your evidence here, and bring these out in the open, and that would be as visible? I am not a lawyer. But I guess, we have had so much, so many witnesses here that almost everything is admissible in this Court, anyway.”

Arroyo: “Sir, we ask that, precisely, we ask that the official records of savings account, ending 5, that’s the savings account…we issued a request for subpoena duces tecum which the Court approved. But then the external lawyers of Equitable Bank wrote the Chief Justice a letter saying that ‘It’s already in the second envelope; so, why don’t you just open it?’ In short, instead of presenting the documents we requested for, the bank says, through their lawyers, that ‘it’s already with the Secretary, so you just open it.’ That is why we have asked that it be opened. But then the Defense opposes it. That is why we are here to discuss this.”

J. Osmeña: “Well, you know, we have had lessons on evidence and I am sure that if you really know that there is P3.3 billion and if you really know all these bloody details–somebody must have told you–there must be evidence somewhere that you have, and all of these things that you are now telling us should be brought in here, you could also bring the people who are saying that.”

Arroyo: “But just to answer, Mr. Chief Justice, the bank records would be the best evidence. That is all.”

Davide next recognized Enrile.

Enrile: “Mr. Counsel, as a brilliant lawyer, you are quite familiar between the distinction of amending a pleading and a motion for a bill of particulars?”

Arroyo: “I don’t claim brilliance, but I understand the difference.”

Enrile: “May a Bill of Particulars correct a matter that ought to be the subject of an amendment pleading?”

Arroyo: “I did not advocate a Bill of Particulars. I only said there is a remedy.”

Enrile: “But now, I am asking you point-blank, as an experienced lawyer, because that is the meat of my question. I’ll come back to the Articles of Impeachment because I think this is the heart of the question.”

Arroyo: “And which is? Can you restate again, Your Honor, the question?”

Enrile: “That you want to correct by a Bill of Particulars a matter that ought to be the subject of an amendment to the pleadings that the House submitted to this Court for trial.”

Arroyo: “The difference between the Bill of Particulars, it is… the motion is made by the other party, the amendment is made by the other party, to make it a point.”

Enrile: “Your Honor…”

Arroyo: “Wait, wait. Just a complainant may be ordered to amend the complaint.”

Enrile: “No, Your Honor. Read Rule X. If you do not know it, I’ll read it to you, in relation to Rule XII.”

Arroyo: “Oh, is there a question already?”

Enrile: “I’m asking you, Your Honor. Now if you do not want to answer that question, Your Honor…”

Arroyo: “No, no, no. The question is, could we have amended it? That seemed to be the thrust of the question.”

Enrile: “Yes.”

Arroyo: “Could we have amended it?”

Enrile: “Yeah.”

Arroyo: “No, Sir.”

Enrile: “Why not?”

Arroyo: “Because we have adopted it and the House has empowered us to prosecute the case on the basis of that Impeachment Complaint.”

Enrile: “Precisely, because the Constitution, which is the authority for this Senate to hear this case, requires that the complaint or resolution must be verified by the members of the House on the basis of knowledge of facts alleged in the Articles of Impeachment, and, therefore, any facts not alleged in the Articles of Impeachment would not be within the competence of this Senate to try.”

Arroyo: “Sir, I thought we finished that already, that we disposed of that in the Motion to Quash. If the idea is that we are going to rehash this, then I will repeat, I will restate the position of the House of Prosecutors and which is that, as of November 13, when we sent the Impeachment Complaint here, which the House adopted as Articles of Impeachment, the Senate had nothing to guide us.”

Enrile: “The trouble, Mr. Counsel, as far as, from the viewpoint of this judge’s concern, you are asking this Senate to amend the Articles of Impeachment in order to insert a material allegation that was not inserted in this Articles of Impeachment so that you can introduce the evidence that you now want to introduce.”

Arroyo: “Sir, we need not amend it because we think that it is adequate, imperfect as it is. We don’t say that this is a classic, it’s an example, a model for a pleading. But it can stand by itself.”

Tito Guingona took his turn. “The testimony, Mr. Witness, which was conditionally admitted, was for the Prosecution to comply with the conditions. Is that correct?”

Arroyo: “Yes, Sir.”

Guingona: “And you can comply with that condition if you are able to show the source of the P500 million which was given as an investment to Wellex Corporation?”

Arroyo: “That is correct. That is in the transcript of December 22nd.”

Guingona: “And, as a matter of fact, there was already evidence that the authority to get the source of P500 million was from that savings account?”

Arroyo: “The Court asked us to complete, to establish the link.”

Guingona: “And if we do not open the envelope and if you are not allowed to comply with the subpoenas, then, in effect, you will be reined in and be able to, in effect, not comply with the condition imposed by the Court.”

Arroyo: “I could not have said it better, Sir.”

Guingona: “Yes. Now, as far as materiality is concerned, can you please cite Rule II there in the diagram which says: ‘In effect…’ Can you please read?”

Arroyo: “He also violated the Anti-Graft Law he is sworn to uphold.”

Guingona: “That is in the Articles of Impeachment.”

Arroyo: “That’s correct.”

Guingona: “Very clear.”

Arroyo: “Very clear.”

Guingona: “And therefore, you are going to present the Statement of Assets and Liabilities mentioned?”

Arroyo: “In fact, we have it here.”

Guingona: “All right. And then—”

Arroyo: “And already marked, pre-marked.”

Guingona: “Then that allows you to compare it with the savings account that he has for 1999.”

Arroyo: “We can do that, although insofar as the trust account is concerned, we cannot. But the savings account, we can, because the balance in the savings account as of December 31, 1999 show the balance of about P500 million over.”

Guingona: “Okay. Last point. If you say that the Annex ‘C’ is illustrative merely, the Defense, on the other hand, says that it is what is supposed to be limited and restrictive, but, in effect, would they not be saying that the President participated in business and, therefore, impliedly violated the Constitution?”

Arroyo: “That was what I was going to explain, if I had more time because he is forbidden under the Constitution from having any other income.”

Guingona: “And therefore, even if we admit Annex ‘C’, then it would show a violation of the Constitution.”

Arroyo: “For instance--let me answer the question--oh, well, it’s not there anymore, but in the trust account—”

Arroyo: “Could I—I couldn’t answer the last question of—”

Davide: “Were you not able to answer it?”

Arroyo: “Can I answer it, just for the record?”

Davide: “You can answer.”

Arroyo: “Thank you, Your Honor.”

“The trust account testified on by Clarissa Ocampo is not a trust account. It is really, in fact, an agency. The President invested P500 million, a loan, and then managed by the bank, but loaned it to Wellex. So we ask the question: Why is the President engaging in business, P500 million loan to Wellex and for which he earned income? That’s my answer to the question of—That’s my answer to Senator Guingona.”

Davide next recognized Loren Legarda.

Legarda: “Earlier, the Defense Counsel cited the issue of jurisdiction. Would it be correct to say, or would it be your position that this question of jurisdiction has now become moot because this has previously been denied? The Motion to Quash has been denied by the Senate. Is it correct to say that? Could you kindly clarify that?”

Arroyo: “Yes, Ma’am. That was raised—that issue was raised, and we read the transcripts. In fact, there was some assertion of jurisdiction during the first hearing. And during, I think, the next hearing. Then there was a question, ‘Are you not going up?’ And the Defense said, ‘No.’

“Now–So to the question of whether that’s been settled, yes, that’s been settled because that has been denied by the Court.

Legarda: “That is so, is now moot?”

Arroyo: “Yes, Ma’am.”

Legarda: “It’s also been cited earlier that in the Articles of Impeachment, Annex ‘C,’ I believe, there were only several corporations or business interests mentioned. And even, I think, in page 9 only Vermont Park was mentioned, and nothing was mentioned of Boracay or let me say, St. Peter’s Holdings. But is it not correct to say that although St. Peter’s Holdings was not particularly mentioned in page 9 or in Annex ‘C,’ but the issue here really is not St. Peter’s Holdings, but the manner of acquisition of Boracay mansion by the President, his wife, or possibly mistresses and his family or his children, and that is the issue? And that is clearly within the purview of the Articles of Impeachment. Is that not correct?”

Arroyo: “Yes, that is the position of the Prosecution.”

Legarda was followed by Frank Drilon.

Drilon: “Congressman Arroyo, a question of jurisdiction has been raised based on the alleged noncoverage of this particular issue in the Articles of Impeachment. Is that not correct?”

Arroyo: “That seems to be the case, yes, Sir.”

Drilon: “The same ground was called an issue of materiality before?”

Arroyo: “That’s how I understand it.”

Drilon: “Now, it’s called ‘question of jurisdiction’.”

Arroyo: “Yes, they changed the nomenclature.”

Drilon: “Now, isn’t it a fact that this particular document that you are seeking to open is covered by a subpoena duces tecum ad testificandum?”

Arroyo: “That’s correct, Sir.”

Drilon: “And specifically, the statement of account for Savings Account No. 016062501-5 for October 1-31, 1999 is covered by a subpoena issued on January 10 of the year 2001 by the Chief Justice.”

Arroyo: “Yes, Sir.”

Drilon: “Now, on the question of materiality, do you recall the ruling of this Honorable Court insofar as the timeliness of raising the issue of materiality is concerned?”

Arroyo: “Yes, the Court said that you can when you present the evidence, when you make the offer.”

Drilon: “In other words, questions of materiality at this point, according to the Court in the Extended Order of 18 December 2000, is premature.”

Arroyo: “That’s correct. That’s how I understand the ruling of the Chair.”

Drilon: “Yes. And the objections on materiality can be obtained when these documents are formally offered in evidence?”

Arroyo: “I remember that.”

Drilon: “So that at this point, you are not yet formally offering this in evidence?”

Arroyo: “No. We are just presenting it and we will offer it at a later time. In fact, the objections I am really surprised, it’s a good thing, Sir, that you mentioned that. We are just asking; we are just requesting for a subpoena duces tecum.

“Ordinarily, we barristers, we go ask for a subpoena duces tecum, the subpoena. Well, the Clerk of Court usually just issues that and there’s not too much hassle over that thing. Why? Because when the trial takes place and we start to present the evidence, that’s when the objection arises. But the objection arises on the materiality of the testimony of the witness.

But here, we’ve not even reached that stage. We’re only asking that the document be produced. But there seems to be a paranoia now on the part of the Defense whenever it comes to the bank accounts of the President. Even before we have started, they say, ‘No.’ How would they know if it is material or not? It may be material for the purposes for which it is offered, but if we make a mistake in the presentation, it may be material but not material for the purpose for which we are presenting it. I mean, whether those distinctions can be raised.”

Drilon: “And certainly, that can be raised at the appropriate time after the documents are seen?”

Arroyo: “Of course.”

Drilon: “At this point in time, we do not even know whether these documents are material or not because we’ve not yet seen it?

Arroyo: “We’ve not seen it, except…. The Court has not seen it. But I think the Defense, the Prosecution has seen it, that’s why we were trying to—Everybody knows this document.”

Drilon: “Except the Court.”

Arroyo: “Except the Court. They have seen this. They have copies. If they’ve seen this, why will they object extraneously to this if they’ve not seen it?

“Now, we have seen it. If we’ve seen it, I’m sure they’ve seen that ahead of us.”

Raul Roco was next. He asked: “Kung susundan po natin ang teoriya ng Defense, pagkasampa ng habla ng Articles of Impeachment, ‘yan ay magiging lisensiya na magnakaw, magtago, kumolekta ng pera. Hindi ho ba?” (If we take the Defense’s theory, the filing of a complaint would become a license for one to steal, hide and amass wealth. Is it not so?)

Arroyo: “I am not very good in Filipino, we’re both Bicolanos. But—”

Roco: “Tama iyon, hindi ba? Because hindi (not) covered sa (by the) allegations. Ninakaw noon, ngayon, pagkahabla, siyempre hindi iyong gagawin naman (Let’s say one committed a crime of theft then, now, after having been sued for theft, he may commit another crime) afterwards, hindi pa (something the suit has not) covered. So, it will no longer be processed to cleanse. The impeachment process will now be a cloak to protect all future violations of the Constitution or violations of law. Tama po ba iyon? (Is this correct?)”

Arroyo: “Tama po iyan. (It is correct.) Because if you don’t open this, then you have a continuing violation—”

Roco: “That’s correct. Now ...”

Arroyo: “—by the President, no less.”

Roco: “Can you please explain how an ordinary Senate Committee—Banks, Blue Ribbon, any other ordinary Senate Committee—pag ipinatawag namin, kahit ano iyan, makukuha namin. Pero heto, (once we summon them, we get them. But here, in this) Impeachment Court, pinaka-ekstraor-dinaryong (a very extra-ordinary) assignment ng Senado, kami lang ang puwedeng maglitis (of the Senate, we we have the sole power to try), we are the only ones who can try–I can see the Bicolano in you–we are the only ones who can try, aba, we are prohibited. Can you please explain what is the logic there?

Arroyo: “Sa katotohanan lang, hirap na hirap kami dito. Hirap (Truth be told, we are finding this very, very difficult. It’s hard)—just to get one. They have filed an omnibus opposition to every bank account that we have subpoenaed. All the allegations now, sinasabi nila (they say), ‘That bank accounts are not part of it, they are not assets.’ All of us here, the senators and us, congressmen, we file Statement of Assets and Liabilities. If you see the column ‘Assets,’ it reads here: ‘(a) Real Properties; (b) Personal and Other Properties.’ Listed in (b), Cash on Hand and in Banks. So, those are assets.

Now, separate ang negosyo (business is something else). It is under Letter B.

Roco: “Yes.”

Arroyo: “Business Interests and Financial Connections. That is where we are saying that the three corporations are the only ones listed. In the Statement of Assets and Liabilities, tatlo po lang ang inilagay nila. Tatlo lang ang inilagay nila (they put there only three). In fact, the wording, I mean, we should not underestimate the ones who framed this impeachment article. They practically copied the wording of the Statement of Assets and Liabilities. Ganoon po iyong ano, kaya hindi naman talagang… Marurunong din iyong mga gumawa. (That’s how it is, it’s not really that … Those who wrote the complaint actually knew what they were doing.)”

Roco: “But the theory turns the law on its head. Binabaliktad lahat. (Everything is turned upside down or reversed.)”

Arroyo: “Yes.”

Roco: “Is there a law that prohibits use of fictitious names to hide the crime?”

Arroyo: “Of course. There is a Commonwealth Act, I don’t remem-ber, but it does. Commonwealth Act 142, I was told by my colleagues here, and the Revised Penal Code, Civil Code. So, here is a President who never uses his name when it involves money. How’s that?”

Roco: “And that law prohibited to hide crime is now being used to protect crime, kung hindi natin puwedeng buksan ang envelope. Tama ba iyon? (if we cannot open that envelope. Is it correct?)”

Arroyo: “Very well said, Sir.”

Roco: “Ang galing talaga nitong Bikolanong ito. (This man from Bicol is really good.)  Then finally, other interests daw (they say), ordinary English, iba, di ba? Iyong iba pa. (right? Then the rest.) Aba’y other interests daw (they say) restricted to three? Eh, tama ba iyon? (Is is correct?)

Arroyo: “I think, even without being a lawyer, let’s say, an English teacher would be able to say that. When you say in only three corporations, that he has other interests in only three corporations, that means there is a violation when he mentioned only three. Yet the Defense contradicts itself by saying that there are 66 other corporations where the President claims …”

The court went into a break. Trial resumed after 25 minutes. It was now Cayetano’s turn to take the floor.

Cayetano: “Sa pagkakaintindi ko, (In my understanding) Congressman Arroyo, iyong (the), testimony ni (of) Clarissa Ocampo was conditionally admitted, hindi ho ba (right)?”

Arroyo: “Tama po iyan.” (That’s correct.)

Cayetano: “Conditionally, conditioned rather that you should be able to prove, meaning ang (the) Prosecution, na iyong (that) P500 million ay galing sa (comes from) ill-gotten wealth, tama ho ba iyon (is that right)?”

Arroyo: “Tama po iyon.” (That’s correct.)

Cayetano: “So kaya ninyo gustong buksan itong (the reason you want to open this) second envelope ay para ninyo i-prove na iyon ngang (is for you to prove that this) P500 million ay (is) ill-gotten wealth, tama ho ba ito (right)?”

Arroyo: “Tama po.” (Right.)

Cayetano: “Sapagkat kung hindi kayo pagbibigyan ng (Because if you are denied by the) Senate Tribunal ay hindi ninyo matutupad ang inyong obligasyon (you will not be able to meet your obligation) as required by the Presiding Officer to prove the link of the P500 million to be ill-gotten wealth, tama ho ba ito (right)?

Arroyo: “Tama po.” (Right.)

Cayetano: “So kaya ninyo gustong buksan itong pangalawang (for that reason you want the court to open this second) envelope?

Arroyo: “Yes, Sir.”

Cayetano: “Ang sabi ninyo ay ang (You said that the) Defense at saka (and the) Prosecution ay alam na ang detalye sa loob nitong (already know the content of the) second envelope, totoo ho ba iyon (is it true)?”

Arroyo: “Totoo (True), except the Court.”

Cayetano: “Kaya nga para yata kaming kaawa-awa dito?” (Which is why we look like worthless here?)

Arroyo: “Tingin ko po nga pag-aawayan…. We are asking you to open something which we both know.” (That’s how I see it, quarreling over something…)

Cayetano: “E, tama ho ba iyon lalo na sa ating bayan?” (Is it fair especially for our country?)

Arroyo: “Nasasainyo po iyon (It would be up to you), if you want to share the contents of the P3.3 billion.”

Cayetano: “Hindi po. Ang importante ay iyong sinabi kong (No. What’s important is what I said about the) legal obligation on your part to discharge your duty to link the P500 million dito sa (to this) ill-gotten wealth sapagkat iyon ang obligasyon ninyo kaya naging (because that was your obligation and the reason why) conditionally admitted ang testimony ni Clarissa Ocampo. Tama ho ba? (Is this correct?”

Arroyo: “Tama po iyon. Pangako namin iyon, ng Prosecution.” (That’s correct. We—the Prosecution—had that commitment.”

Cayetano: “And if you are not able to prove, matatanggal iyong testimony ni Clarissa Ocampo, hindi ho ba (Clarissa Ocampo’s testimony will be stricken off the records, am I right)?

Arroyo: “That’s correct.”

Cayetano: “Ang inyo bang (Do you share the) theory also na iyong (that) Annex ‘C’, iyong mga korporasyon, (the mention of corporations) is purely illustrative lang (only) in character and not exclusive?

Arroyo: “Mabuti nabanggit mo po iyan. Kung tanggalin mo iyong Annex ‘C,’ wala silang, (It’s good you brought that up. If we do away with Annex ‘C,’ they have nothing) they cannot complain. In fact, if you remove Annex ‘C,’ they’ll have no argument at all.”

Cayetano: “Kaya nga ang sinasabi… (That’s why they say….)”

Arroyo: “The reason kung papaano nakasabit iyong (how it got its way here) Annex ‘C’ na iyan (this one) which has caused us so much problem is simply, that is an illustration, illustrative, for example, parang ganoon (like that), Annex ‘C’. But if you look at the Complaint and remove the Annex ‘C’, this thing is a perfect complaint.”

Cayetano: “Ngayon, alam po ba ninyo na ang (Now, do you know that the) rules on verification ay binago na ng (have been modified by) Supreme Court?”

Arroyo: “Our verification is in accordance with the rules of the House on verification in impeachment complaint. Exactly.”

Cayetano: “Yes, pero (but). Exactly. At hindi ho lang ganoon pero iyong (And not only that but the) rules on verification ng mga (of) pleadings ay binago na rin ng Supreme Court, alam ninyo ho ba iyon (have also been revised by the Supreme Court, do you know that)?

Arroyo: “Yes, we are aware of that, Sir.”

Flavier tried to make the discussions light by saying “Mr. Chief Justice, I am now ready to look at the documents inside Envelope No. 2. Thank you.”

Davide: “That may be done later after a resolution shall have been made, if at all it will be made. The honorable Sen. Sergio Osmeña III.”

Serge Osmeña: “Mr. Counsel, anong ibig sabihin ng (what do we mean by) ‘verification’?”

Arroyo: “‘Verification’ is simply that the one who verifies, attests to the truth of the contents.”

S. Osmeña: “That the complaint is true?”

Arroyo: “Tama po iyon.” (That is correct.)

S. Osmeña: “Okay. And iyong (that) Complaint ho, iyan ba iyong (is that the) statement of essential facts?

Arroyo: “Correct, in plain language.”

S. Osmeña: “Ngayon, sa (Now, in a) criminal case, pag hindi po nakasali ho doon sa (if it is not included in the) statement of facts, hindi po puwedeng gamitin sa (that cannot be used in the) trial?

Arroyo: “Oo, kasi anong…. (Yes, because what…) What’s going to be proved?”

S. Osmeña: “Okay. So in other words, if I accuse somebody of stealing money at sinabi ko, ‘Ayun, may (and I said, ‘Look, there is) P10 million diyan sa bangko na iyan, may (in that bank, there is) P10 million rin diyan, may (there also, and) P10 million rin diyan,’ okay lang iyan. Pagkatapos, (there,’ that would be ok. Then) in the course of the trial, nadiskubre ko may (I discovered there is) P1 billion ho rito (here). Hindi magagamit iyong (I cannot use this) P1 billion?

Arroyo: “Nadiskubre (Discovered)?”

S. Osmeña: “Oo (Yes), during the course of the trial, tapos na (done).

Arroyo: “In the course of the….”

S. Osmeña: “Oo.”

Arroyo: “Mukhang hindi.” (Seems you cannot.)

S. Osmeña: “Hindi (No)?”

Arroyo: “Oo.” (Yes.)

S. Osmeña: “Hindi (No). Okey. So ano po…. (it’s….)”

Arroyo: “Pero puwede niyang sabihing (but he can say) newly discovered evidence.”

S. Osmeña: “But in a criminal case, you can always file a new case right away, di ba (can’t you)?”

Arroyo: “That’s correct.”

S. Osmeña: “All right, but in an impeachment trial, you have to wait for one year?”

Arroyo: “You have to wait for one year, and what we don’t know because there’s no jurisprudence on that is that all those that may not have been charged but existing at the time may not be charged again. That, I don’t know. But the thing is that the Constitution is very clear, and which is, that one year after the filing of the Complaint, the Impeachment Complaint, no complaint can be made again on the same person, on the same….”

S. Osmeña: “On the same person and on the same matter.”

Arroyo: “Yes, Your Honor.”

S. Osmeña: “Okay. So in the next impeachment, puwera na iyong (you may do away with) Annex ‘C.’ Nandiyan na ngayon eh. (For now, it’s there.)”

Arroyo: “Tama.” (Correct.)

S. Osmeña: “Okay. Bakit po sinasabi ng (Why is it, says the) attorney for the Defense na hindi daw kasama iyong (that the complaint does not include) cash? Cash was not alleged to have been part of the unexplained wealth.”

Arroyo: “In fact, I’ve been wondering why the Defense insists that cash is not…. Your Honor, you mentioned that cash is not included in….”

S. Osmeña: “Earlier, the Defense Counsel said that hindi ho kasama iyong (there’s no mention of) cash sa (in the) Complaint. Wala sa (There is none in the) statement of facts. What was alleged in the statement of facts are the real estate property or the equity holdings in those corporations.”

Arroyo: “Well, interests include cash. How do you define ‘cash’? That is interest.”

S. Osmeña: “That is what I am asking you.”

Arroyo: “Yes, Sir. As a matter of fact, that cash, when they deposited it in the bank and it earns interest, what is that?

S. Osmeña: “All right. At hindi ba iyong (And is it not that) money is fungible? So what can be real estate today can become BW shares tomorrow, can be converted into loans receivable the day after, et cetera. So hindi dapat i-limit sa (it should not be limited to) type of asset but the totality of the assets. Tama ho ba iyan (Is it correct)?”

Arroyo: “That’s correct.”

S. Osmeña: “All right. Now, bakit nag-o-object iyong (why is there objection from the) Defense kung itong (if this) account diyan sa (at) Equitable ay (is an) account ni (of) Dichaves? Hindi ba klineym ni Dichaves iyan? (Didn’t Dichaves claim it?)”

Arroyo: “Iyan nga ang nakakataka, eh. (That’s what mystifies.) Now that you said it, can I speak in English because I’ll….”

S. Osmeña: “Okay.”

Arroyo: “This account is very strange. When this checking account was opened, the checking account…. Just for a little while so it will be shown. When we talk about the checking account, when the checking account was opened, here comes Dichaves and says, ‘You cannot because that is mine.’ All right. So he says that is his. Along the way comes Clarissa Ocampo and testifies on the trust account. But after claiming that that is his—in fact, he filed a motion or I think a letter claiming that this checking account is his—may (there’s) Motion to Quash pa (even) on this, meaning, that his rights as the owner of the account is being violated. In short, he claims it. Now comes the trust account.

S. Osmeña: “Iyong (That) P500 million?”

Arroyo: “Iyong (This) P500 million. All right. Clarissa said that that is the President’s because she saw the President sign it. Then—and this is important. It is a good thing that was mentioned—then comes the cover-up of December 13. Here comes Dichaves now claiming—

“—the December trust account, claiming now that cover-up on December 13. Here comes Dichaves saying that that is his, the trust account, not this one. [Counsel referring to the transparency]. He claimed, Dichaves claimed that this is his in a letter to the Senate President, to the Impeachment Court. But December 13th, as testified by Clarissa, he tried to claim this by substituting the documents making it appear that there is an assignment that that is his.

“So here you have the situation where here is Dichaves claiming this, here is Dichaves claiming that. But when it was foiled by Clarissa because the President himself–meaning President Estrada–did not give an authority to assign it, it went poof. So the trust account remains that of the President. So how can you now trust this Dichaves who did not pursue his claim on the trust account because the President no less did not give any document supporting him and then now he is claiming this? This is the mystery of all these accounts. Jose Velarde being claimed by someone else, but that’s the President’s.

S. Osmeña: “All right, last question. Clarification. Sinabi po ng (It was mentioned by the) Defense counsel na (that) no predicate was laid because the contents of Envelope No. 1 were not marked as evidence, even conditional evidence. Why did the Prosecution not ask that to be marked?”

Arroyo: “You see, at the time that that was opened, we were not sure about the authenticity of the documents. If you will recall, Private Prosecutor Romy Capulong made a manifestation that he felt that the specimen signature cards were tampered with. At this point… at the time, we were not prepared to accept it yet. But at the moment, tampered or not, we don’t care anymore owning it. Because, well, it’s there, that’s the only thing we can find anyway. If that was tampered, there’s nothing more that we can do.

On his turn, Senator-judge Robert Jaworski asked why the charges were not as detailed as he thought they should be.

Senator-judge Tessie Aquino-Oreta asked if the Bank Secrecy Law might have been violated by bank employees who supplied the Prosecution the bank records contained in the envelope. Arroyo explained that there was no violation if the information was given in connection with the trial of an impeachment case.

Senator-judge Nikki Coseteng expressed the alarm that the way the Prosecution has collected bank records may have triggered capital flight out of the country.

Senator-judge Ramon Revilla, probably to support the contention by the Defense that evidence could not be introduced unless it was meant to prove the alleged crimes, used the analogy of a suspected illegal drugs user who bucked litigation because the search warrant issued by the court was for illegal possession of firearms.

Senator-judge Jun Magsaysay asked if the bank account being debated on contained 3.3 billion pesos. When Arroyo told him that it indeed contained that amount— “at its highest point,” Arroyo said—he could not help but be awed by how good a businessman the account owner was.

“In 1998,” Magsaysay said, “PLDT profited only P1 billion with 7,000 employees…. So, I’d like to meet Mr. Jose Velarde. He must be a good businessman.”

After Magsaysay, Davide recognized Pong Biazon. He asked the court to turn its eye from Annex ‘C’ to Annex ‘A’:

Biazon: “The Defense is saying, in reference to Annex “C,” that this is not listed in Annex “C” and, therefore, should not be touched.”

Arroyo: “That is the position of the Defense.”

Biazon: “All right. May I point the attention of the Court to Annex ‘A,’ which should be valued in the same level as the Defense is putting value in Annex ‘C,’ specifically, page 2, paragraph 5. And may I read.

“‘On or about the first week of August of 1999, President Estrada instructed me’–this is an affidavit of Mr. Singson– ‘to transfer the accumulated deposits in my account to Yolanda Ricaforte. I complied with his instructions and turned over the accumulated deposits amounting to P130 million to Mrs. Ricaforte, who in turn deposited the same to various accounts in Equitable Bank.’

“Now, Mr. Prosecutor, is this deposit part of that savings account?”

Arroyo: “Well, frankly, Your Honor, this is in Article 2-B.”

Biazon: “Yes.”

Arroyo: “While the Tobacco Excise Fund is Article 2-A.”

Biazon: “Yes.”

Arroyo: “That’s not my department so I did not bother anymore to interconnect this because it’s very cluttered. But one thing is that they are somehow interrelated. The problem is that we have to see the date of deposit; who deposited it; and it’s a process in itself. We’ll see the deposit, who made it, then the account number. Then from there, we trace backwards and it’s rather a difficult process. So, in that respect, we did not try anymore to connect it and then make a…. That’s the problem of those who are prosecuting Article 2-A.”

Biazon: “But there is a rule that we can consider evidence for one article for the other?”

Arroyo: “Yes. I think, that has been agreed, yes.”

Senator-Judge Miriam Defensor Santiago: “Mr. Counsel, I invite you to address two points. The first point is the point of the precedent that we are establishing for all future impeachment cases. As you know, our system of law operates on the power of precedent. Our Constitution in the Bill of Rights–that should be Article III, Section 14, paragraph 2–gives to the accused in a criminal case the right to be informed of the nature and the cause of the accusation against him. It is because of this constitutional dictate that our Rules of Court provides rules for admissibility and relevance. That is Rule 128, Section 4.

“My concern is this: In a strictly judicial proceeding, the plaintiff is required to allege all the ultimate facts of his case. And collateral facts under the Rules of Court are not allowed except when it falls under the exception. In effect, I understand the Defense panel to be requesting from the Senate, as an Impeachment Court, a liberal interpretation of the rules on admissibility and relevance. Maybe that is not such a problem. The problem is that we have to look to the future. And my concern is that we might be going on a slippery slope. In other words, it might be bad precedent.

The second–since my time is very limited–is the point of unfair prejudice. The law on unfair prejudice is, a great deal of evidence is excluded on the ground that costs outweigh the benefits. The judge’s power to exclude relevant evidence, if it’s of probative value, is substantially outweighed by the danger of unfair prejudice. Prejudice can arise from facts that arouse the judges’ hostility or sympathy from one side without regard to the probative value of the evidence.

This is the reason why normal judges are allowed, for example, to exclude pictures of the victim in a murder case because it might be too gruesome and work unfair prejudice. So, two points, please.

Davide: “Thank you.”

Arroyo: “Now, as to — I remember only the second point about unfair prejudice. Could the…”

Santiago: “Two points. The first point is, won’t this set a dangerous precedent?”

Arroyo: “Ah, yes, I get it. Now, will it set a dangerous precedent? The remedy is with the Senate. This is policy. The Senate can draft rules. But for so long as the Senate will give us… We are given this to follow; therefore, we operate within this. Now if the Senate, since, anyway, constitutionally now and the months to come will be burdened with this, then all they have to do is to amend the Rules. But as I have stated earlier, these Rules came late. We had already transmitted our Articles of Impeachment before this was even adopted by the Senate. So, what we are saying is, how could we be guided by these Rules of the Senate when they were nonexistent at the time that this was filed, when we framed the Articles of Impeachment? Now if we had this, then perhaps we would have been guided. But we don’t.

Now, the second point about unfair prejudice. I would agree that we would be the last to allow unfair prejudice. But the thing is this: This goes to the very heart of due process and due process is to be informed of the charges. We have been talking about this. This was the subject of the Motion to Quash. This has been subject in every argument. So, is there really--is the President caught by surprise here? Is he caught in the sense that, is he caught by surprise? No.

Now, the other one is, we have an impartial tribunal–another element of due process, unless the senators doubt themselves that they cannot render impartial justice. But we have faith that they can render impartial justice.

So, this is what I can say.

Davide: “Thank you, Your Honor. The last would be the–rather, second to the last–the honorable Majority Leader, Senator-Judge Tatad.

Tatad: “Thank you, Mr. Chief Justice.

“Congressman Arroyo, may I assure you that I have read the Rules of the Senate on Impeachment. There is nothing in these rules that require the House of Representatives to submit a sloppily constructed complaint.

“Now Rule VI provides that the rules of evidence and procedures shall be liberally construed, and you have quoted this. Do you understand this to mean that the charges are also to be liberally construed?”

Arroyo: “To the first question I take offense, Mr. Senator, with the words used--that must the Senate accept a sloppily prepared Articles of Impeachment. Sir, in the Motion to Quash, I said … We are guided by our own rules. And if it’s good enough for the House, the Senate cannot tell us what to do about it. If it passed the House, then take it for what it is. Your function is to proceed on the basis of this.”

Tatad: “If I’d be given a chance, I withdraw the offense.”

Arroyo: “Otherwise, you put the House in a subordinate position, and we stressed that in our opposition to the Motion to Quash--that as far as the House is concerned, it is supreme in its own sphere in the preparation, because as the Defense said, we have the sole power to initiate. And when we initiate, then we submit it to the Senate. But the Senate must take it.

Tatad: “We have.”

Arroyo: “Now, what’s the second question? I forgot.”

Tatad: “Do you understand Rule VI to mean that the charges are also to be liberally construed?”

Arroyo: “Well, that is what the Senate Rules say.”

Tatad: “No. Evidence and procedure, yes. Charges, that’s the question.”

Arroyo: “Look at your Rules. The Rules of Court, I’ve not even seen it but I’ve memorized it, is suppletory. You know when the word used is ‘suppletory?’ It is just a substitute. It is not the principal one. Now, the Rules of Evidence was…

Tatad: “Rule VI, last part. Rules of Court shall apply whenever applicable.”

Arroyo: “All right. Saan iyon? Ah, ito. All right. ‘The Rules of Court shall apply insofar as they are applicable. Rules of Evidence and Procedure shall be liberally construed.’

“We are talking of evidence here. Therefore, it should be liberally construed. We are talking of evidence here. Admissibility, materiality, that is evidence.”

Tatad: “Yes. But are the charges to remain frozen and firm, or are they to be a work in progress which must grow from time to time?”

Arroyo: “I beg to disagree. This is not work in progress. We are not in waiting while we are here. Well, I cannot argue on a legal point with a non-lawyer.”

Tatad: “Well, regrettably, we are simply in the field of logic.”

Arroyo: “That’s the refuge of the uninitiated.”

Tatad: “Well, I move to strike out those remarks, Mr. Chief Justice.

Arroyo: “I agree.”

Davide: “What was the motion?”

Tatad: “To strike out the unparliamentary expression--”

Davide: “Which portion, Your Honor?” (not clear, overlapping of voices)

Tatad: “Mr. Prosecutor, can you quote to us, for the record, Article XI, Section 2 of the Constitution?”

Arroyo: “The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.”

Tatad: “Can the Prosecutor focus on the phrase ‘on impeachment for and conviction of’ and tell us what he understands by this phrase?”

Arroyo: “How’s that again?”

Tatad: “It will be on my time if I repeat it, Mr. Chief Justice. May I be allowed to repeat without my time running?”

Arroyo: “You are arguing with me on the Constitution. Go ahead.”

Tatad: “No, I’m asking a question.”

Arroyo: “Which is?”

Davide: “There’s a pending question.”

Tatad: “I’m asking Prosecutor to try to educate us on his understanding of that phrase ‘The President may be removed from office on impeachment for, and conviction of’ and follows the offenses. The focus is on the phrase ‘on impeachment for, and conviction of.’ What is your understanding of this given the fact that the House shall have exclusive power to impeach; on the Senate, the sole power to try and decide impeachment cases?

Arroyo: “Is Your Honor trying to say that there should be a conviction first?”

Tatad: “No. ‘Impeachment for.’”

Arroyo: “No, because you use the two words. ‘Impeachment for and conviction of.’”

Tatad: “Yes, that is the Constitution.”

Arroyo: “If you remove the phrase ‘conviction of’ then there’s a meeting of the minds.”

Tatad: “What I am trying to say, Mr. Prosecutor, is that the Senate tries the President only on the offenses for which he has been impeached.”

Arroyo: “Yes, Sir.”

Tatad: “And those that appear in the Articles of Impeachment.”

Arroyo: “The President has been impeached by the House under the Articles of Impeachment.”

Tatad: “Precisely.”

Arroyo: “And look at what the Articles of Impeachment, may I read to you, here ‘That respondent committed bribery--”

Tatad: “Yes.”

Arroyo: “That respondent committed graft and corrupt practices; that respondent betrayed the public trust; that the respondent culpably violated the Constitution. That meets the requirements of Section 2, Article XI of the Constitution.”

Tatad: “And what about the ultimate facts?”

Arroyo: “The ultimate facts are stated in the allegations. I just mentioned the headings.”

Tatad: “The ultimate facts are as stated in the Articles–”

Arroyo: “That’s correct.”

Tatad: “… not as stated in the press.”

Arroyo: “Oh, that’s an insinuation. I again take offense on that. But never mind.”

Tatad: “No offense was intended.”

Arroyo: “Let it stay on the record because that reflects on the judge.

“Pres. Joseph Estrada violated the Constitution and stands guilty of graft and corruption when he directly requested or received for his personal benefit P130 million out of the P230 million released by Secretary Benjamin Diokno of the Department of Budget and Management allocated under Republic Act 7172 in violation of Section 3-C of Republic Act 3019, as may be seen from the affidavit of Luis C. Singson, provincial governor of Ilocos Sur, dated September 25, 2000. Is that incomplete?

“Second, Pres. Joseph Estrada violated the Constitution and stands guilty of graft and corruption when he participated directly in the real estate business through a family-controlled corporation which constructed 36 townhouses in Vermont Park, Executive Village, Antipolo City as shown in the PCIJ article on President Estrada’s family and financial interests.

“We are going to prove this independently of number 2, 3, and 4. In fact, this is the easiest to prove.

“Now, the President also violated the anti-graft law he is sworn to uphold. Now, as I stated earlier, we are not throwing the book, the Revised Penal Code, on the President. We are saying that he violated the anti-graft law, the law on statements of assets and liabilities, the unexplained wealth. In fact, three interrelated laws, not all.

“The problem with the Defense and, perhaps, for its reasons his Honor is misled, is that what the Defense has--”

Tatad: “I move to strike out.”

Arroyo: “All right. What the President has been saying, or rather the President’s lawyers, they have taken the whole thing in its entirety and then tried to put it together and say, ‘You cannot do that’. So we have compartmentalized it, each one. So you can see that with these allegations we prove each one, and which we can do.

Tatad: “Mr. Prosecutor, have you heard of the name Charles Black, Jr.?”

Arroyo: “No.”

Tatad: “Renowned American constitutionalist in Yale. He wrote the most authoritative handbook on impeachment. May I invite your attention to the book because I am unable to make my points on this respect. Thank you very much.

Arroyo: “I would like to commend the Senator.”

Davide: “The Senate President is recognized.”

Arroyo: “Just a comment, Mr. Chief Justice. I commend the Senator for his search for understanding of the Constitution, which is beyond us, who briefed….”

Tatad: “The Senate President is now recognized.”

Pimentel: “Mr. Prosecutor, may I remind you that you were my lawyer in the martial law years and that caused me to go to jail as a result of your impassioned pleas.”

Arroyo: “Under the conditions then at that time.”

Pimentel: “Yes, of course. May I ask, Your Honor, of your enumeration of the people who were allegedly, according to you, feeding Savings Account No. 1016062501-5? I would think that you were trying to be selective in your enumeration of the people there.”

Arroyo: “Well, I was running through it. Perhaps I missed some names.”

Pimentel: “Yes.”

Arroyo: “Could be. I could have missed some names because I was not reading anymore from my notes.”

Pimentel: “Would you care to fully tell us who are these other people feeding into Savings Account that I have just mentioned?”

Arroyo: “That’s the one that is subject to a subpoena, Mr. President. We have issued a request for subpoena duces tecum.”

Pimentel: “And this savings account is the same—are you saying that this is a combo account with the checking account?”

Arroyo: “That’s correct, Sir. In other words, Mr. President, that these two accounts are a combo account. There’s an automatic transfer. In other words, if the funds in the savings account and the current account runs low, then the savings account—there’ll be an automatic transfer from the savings account to the checking account.

“But may I add, Mr. President, that the wonder of it all is that in this case, this had only one transaction, the P142 million. No other transaction. This one, the checking account. It doesn’t earn interest. In other words, after the P142 million was transferred from the Savings Account to the Checking Account, there was no more movement in this account.

Pimentel: “And these documents are contained in Envelope No. 2. Is that what you are saying, Your Honor?”

Arroyo: “Yes, Sir, because that is what the lawyers said, ACCRA.”

Pimentel: “And then, Envelope No. 2 is already in the possession of the Senate. Is that correct?”

Arroyo: “That’s correct. That is what … I think that the Secretary reported it to the Court and also, the lawyers said so. But why should we both produce them yet when it’s already with the Senate?

Pimentel: “Exactly. So, this is something that is already in the possession of the Senate, and if we were not to open it, don’t you think this will cause institutional damage to the Senate itself as an Impeachment Court?

Arroyo: “I prefer not to comment on that. I have offended already some senators here. I don’t want to.

Pimentel: “All right. Would the name William Gatchalian ring a bell, to be reminded of the people who are feeding Savings Account in question?”

Arroyo: “Sir, good. Antonio Evangelista, one of the contractors in one of the mansions. Ramon Lee. Kevin Garcia is the most mysterious because he is not a known person. But he deposited a total of P180 million in that account, and all in cashier’s checks. Many of these are all in cashier’s checks.

“Why should it be in cashier’s checks?”

Pimentel: “Are you asking me?”

Arroyo: “May I read, Mr. Chief Justice, and Mr. President, the concluding paragraph of the letter of Abello, Concepcion, Regala and Cruz, dated 12 January 2001:

“In view of the foregoing, all the documents sought to be produced through the January subpoena are already in the possession, custody and control of the Honorable Court. We respectfully submit that the production and disclosure to or use by the Prosecution of the said documents are subject to this Honorable Courts final disposition of the objections in respect of their confidentiality and relevance.”

Pimentel: “So these documents were produced not because of a subpoena?”

Arroyo: “No, Sir.”

Pimentel: “They were submitted voluntarily to the custody of the Impeachment Court, is that what you are saying?”

Arroyo: “What happened, Mr. President. is this. When we were looking for the Checking Account, we had this subpoenaed duces tecum. So it was produced and sent here. Then it was followed by another envelope which contains this Savings Account. That is how it went to the Senate as an Impeachment Court. But our request was strictly only on the Checking Account.

Davide: “No more questions, Your Honor?”

Pimentel: “None, thank you.”

Davide: “The Defense will be given ten minutes for rebuttal. Atty. Mendoza.”

Mendoza: “May I please, Your Honors.

“The Prosecutor has implicitly conceded the point of the Defense that the cash assets, as well as the so-called Boracay assets, are not covered by the Articles of Impeachment. Rather, what the Prosecutor has tried to do, on the basis of information, presumptively obtained illegally in violation of Republic Act 1405, showed on this screen for public viewing in order to induce the Senate, perhaps with public pressure, that by those, the Senate, the President may be accused of the most grievous offense and, consequently, must be deemed covered by the Articles of Impeachment and convicted by the Senate.

Senator-Judge Tatad called attention to the phrase ‘on impeachment for and conviction of’.

“I would volunteer my interpretation when it says, ‘on impeachment for and conviction of.’ What is emphasized is that the Respondent cannot be convicted of anything other than what he has been impeached for by the House of Representatives. What the Prosecutor has attempted to do, try to do is, if I may illustrate, is somewhat an illustration I have given before.

“Kung ang isang tao po ay nademanda ng murder, sabihin na natin, dahil pinatay niya si Pedro, noong litisin ito ay nakita nilang mahina pala ang ebidensiya. Hindi nila maaaring ma-convict sa pagkakapatay ni Pedro, kaya naghanap pa sila ng ebidensiya. Nakita nila, pinatay pala si Juan, pinatay pala si Juana, pinatay pala si Petra. (If a person is brought to court for murder, let’s say, because he killed Pedro, but when the case was tried, they saw that evidence was weak. They could not convict him for the killing of Pedro, so they fished for more evidence. Then they saw that a certain Juan was also killed, and then Juana was also killed, Petra was also killed.)

“’Naku,’ sabi nila, ‘napakalaking kasalanan ng taong iyan. Masamang tao iyan, kailangan i-convict na natin iyan. Gamitin na natin itong ebidensiyang iba na pinatay niya itong mga tao. Ikondena na natin sa pagkakapatay kay Pedro, maski itong pagkakapatay nitong iba na hindi kasali diyan.’ Pero hindi po iyan pinahihintulutan, eh. (Then they exclaim ‘how big the crimes he committed was. He is wicked, we must make sure he is convicted. We can use this other evidence showing he killed more people. We convict him for killing Pedro, including those who are not part of the case.’ But this is just not allowed.)

“Mayroon pong kasabihan, hindi ko po maisalin sa Tagalog, pero sa wikang English ay ito, ang sinasabi (There’s a saying which I cannot translate to Tagalog, but in English it goes like this): ‘The end never justifies the means.’ Ganiyan po ang argumento ng (That’s the argument of the) Prosecution.

“Tingnan ninyo, sinasabi nila sa madla, ‘Napakalaking pagkakasala, napakala-king halaga iyan.’ (Look, they tell the public ‘What a grave offense, how huge the amount of money that is involved.’)

“Hindi ko po sinasabing kay Presidente iyan. Sinasabi ko lang, ganiyan ang sinasabi nila, napakalaking halaga niyan. ‘Hindi ba kayo nayayanig diyan, mga Senador, mga Huwes? Maski hindi kasali iyan, hindi pa ba ninyo isasali iyan? Nandidiyan na iyong dokumento sa Senado bakit hindi pa natin buksan?’ (I am not saying the money belongs to the President. What I am saying is that’s what they are saying--the amount is big. ‘Senators and Judges, are you not bothered by it? Even if it is not part of the charge, will you not include it? The document is already in the Senate, why not open it?’)

“Totoo nga po iyan. Dumating dito iyan, wala naman pong subpoena iyan, eh. Hindi naman kasali sa subpoena iyan, eh. (That’s true. It reached the Senate even without subpoena. It is not included in the subpoena.) In other words, even that second envelope should not have been here in the Senate. Ganiyan po ang nangyayari, eh. (That’s how it happened.) And this is what we have been complaining about and raising—the point we have been raising even from inception of these proceedings.

“Iyan pong tseke diyan sa Boracay, doon pa sa (On the check about Boracay, during the) opening statement po ni (by) Congressman Arroyo, lumabas na iyan, eh. Papaano pong nakuha iyan, wala namang subpoena? (That was illegally procured evidence. And when evidence is illegally procured, this ceases to be admissible. In fact, it is our submission, if ever the Senate should rule, that the subpoena should be issued by this…. At this point in time, that evidence proceeding from that second account can no longer be used because it has been illegally procured.

“Sino po ba ang nagsabi? Wala naman pong maaaring magsabi pa sa (Who shared the information? No one can possibly tell the) Prosecution kung anong nandidiyan sa (what’s inside the) second account na iyan kundi rin empleyado ng bangko. Samakatuwid, nalaman nila ang impormasyon na iyan sapagkat ang batas nalabag, nilabag ng mga empleyado sa bangko ang batas. Kung nilabag ng empleyado ng bangko ang batas at sa pamamagitan noon nagkaroon ng base ang (except bank employees themselves. In other words, they got the information by illegal means, the bank employees broke the law. If bank employees broke the law and because of that this becomes the basis of the) Prosecution, then the evidence, which is the fruit, the result of the fruit, the fruit of that poison tree, cannot be used as evidence anymore. Ganiyan po ang nangyayari. (And that is what is happening now.)

“The end, if your Honor please, can never justify the means.

“The means for impeachment have been clearly stated in the Constitution. You must impeach.

The House of Representatives said, ‘Totoo nga po, sinasabi nila, hindi daw sila si (‘True, they say, they are not) Kenneth Starr. Hindi daw sila ang nag-imbestiga kay Presidente (they were not the ones who investigated President) Nixon.’

“Ang katotohanan, iyon pong lahat ng imbestigasyon doon kay Presidente Nixon at kay Presidente Clinton (The truth is, all those investigations regarding President Nixon and President Clinton), nangyari iyon sa (were conducted at the) House of Representatives, and that is what the House of Representatives should have done. All of these impeachment processes, all of these discovery procedures should have been done in the House of Representatives. Pero hindi po ginawa iyan, eh. Ang ginawa nila, (But this was not done. What they did) verify na lang. Sabi, ‘Totoo po iyon, eh.’ Sabi ng mga (They say ‘That’s true.’ Say the) congressmen, ‘Ipadala na iyan sa Senado.’ (‘Send it now to the Senate.’)

“Ngayon po, maliwanag, hindi maaaring pinatotohanan ng (It’s now clear the) House of Representatives na (cannot confirm) nag-verify ng impeachment na iyan, Articles na iyan sapagkat sinasabi ni (because as mentioned by) Congressman Arroyo iyang impormasyon na iyan nalaman lamang nila noong Disyembre. Kung nalaman lamang nila noong Disyembre iyan, ano naman ang porma ng beripikasyon na kinakailangan? Hindi po maaaring vinerify iyan ng mga miyembro ng (this information came to their knowledge in December. And if they knew it in December, what kind of verification was needed? Verification cannot be done by members of the) House of Representatives sapagkat iyon pong (because that) Articles of Impeachment, Nobyembre pa po ang petsa niyan (was dated in November yet.)

“Maliwanag po na iyan ay hindi pinatotohanan ng sino mang miyembro ng (It’s clear that it was never verified by any member of the)  House of Representatives na pumirma sa (that signed the) Articles of Impeachment sapagkat noong panahon na iyon hindi pa po, wala pa pong empleyado ng bangko na mayroong lakas-loob na gumawa nang di sang-ayon sa batas at ibigay iyang impormasiyon na iyan (because during that time, no bank employee could have had the courage to break the law and share this information).

Xxxx

“Hindi po (Not the) House, hindi po (not the) Senate Rules ang ini-invoke namin, eh. Hindi po liberal interpretation ang isyu dito, eh (is not the issue here). Ang amin pong ini-invoke ito pong Saligang-Batas (What we invoke here is the Constitution). Madali lamang pong intindihin ito, eh. Ano po ba ang demanda? Ang Senado po ay hindi puwedeng tumanggap ng ebidensiya, hindi maaaring mag-isyu ng subpoena kung hindi natutukoy tungkol doon sa mga nililitis na (This is easy to understand. What is the charge? The Senate cannot accept evidence, cannot issue subpoena unless they relate to the trial of) Articles of Impeachment na nanggaling sa (that originated from the) House of Representatives.

Pimentel: “One question, Mr. Chief Justice.”

Davide: “The Senate President.”

Pimentel: “If you will allow me, Atty. Mendoza. Iyong halimbawa mo na pinatay si Pedro, hindi puwedeng mag-submit ng ebidensiya na pati si Juan ay pinatay din. Tama po iyon. Pero hindi ba totoo na iyong pamamaraang paano pinatay si Pedro, initak ba siya? Tinalian ba siya ng lubid? (That example about Pedro’s killing, it’s true that evidence on the killing of Juan cannot be accepted. But is it not true that the manner by which Pedro was killed—was he bolo-hacked? Was he strangled?) Was there superior force, you know, exerted on him to kill him? These are valid evidence, I would think.

Mendoza: “Opo. Pero tungkol lahat sa pagpatay kay Pedro.” (Yes. But all about the killing of Pedro.)

Pimentel: “Yes, and this is exactly what is being talked about. It is about the corruption, alleged corruption of the President.”

Mendoza: “Eh, iyon pong means, eh, nandidito din po sa (they are also found here in) Articles of Impeachment. Hindi naman po kami ang gumawa nitong (We were not the ones who prepared this) Articles of Impeachment. Hindi rin naman po ang Senado ang gumawa nito, eh. Ang (The Senate did not do this too. The) House of Representatives po ang gumawa, eh (did this).

Pimentel: “Thank you.”

Mendoza: “Salamat po.” (Thank you.)

Davide: “The Majority Leader.”

Arroyo: “Mr. Chief Justice.”

Davide: “Yes. Prosecutor Arroyo.”

Arroyo: “Could I just have about a few minutes? Could I just have, lest these go in the Record unchallenged, just three minutes?”

Davide: “Pardon?”

Arroyo: “Can you give me three minutes, Mr. Chief Justice? Just a sur-rebuttal. Three minutes.”

Davide: “Sur-rebuttal? I guess no more. We ended the oral argument by way of a rebuttal to the reply. The issues have been properly joined and vigorously discussed.”

Tatad: “Mr. Chief Justice.”

Davide: “The Majority Leader.”

Tatad: “I move that we now put this to a vote by the Court.”

Davide: “There is a motion to…. the only issue on the opening? On the opening. So, there is a motion to put that to a vote.”

Guingona: “Just to clarify, Mr. Chief Justice. There was a previous ruling that this…. the Prosecution is mandated to present evidence in order to link as a condition to the admission of the first Clarissa Ocampo testimony.”

Davide: “But there is now….”

Guingona: “Are we now voting on that condition? Or….”

Davide: “No, no. The issue is very, very clear. It is just on the issue of the opening that had been raised. There is a motion to that effect.”

Guingona: “Well, if it is on the opening…”

Davide: “Yes. The honorable Senator Legarda-Leviste–”

Guingona: “If it is….”

Davide: “–for a while.”

Leviste: “I am sorry. I do not wish to interrupt Senator-Judge Guingona. I just wish to clarify a point, Mr. Chief Justice. I would like to inquire whether the Chief Justice will render a ruling or whether he will leave it to the Impeachment Court to vote on it right now.”

Davide: “Actually, under the Rules–”

Drilon: “Mr. Chief Justice….”

Davide: “–of the Senate, the Presiding Officer may, but there is a motion now that it is the Body that will.”

Enrile: “I second the motion, Mr. Chief Justice.”

Davide: “Yes. Senator Drilon.”

Drilon: “Yes. The pleading, Mr. Chief Justice, styled opposition to opening of second envelope. That is how the pleading is styled. In truth and in fact, we have discussed for the last several hours the question of relevancy of what is contained in the second envelope, and therefore, since it is a question of relevancy, under Rule VI, Your Honor, the Chief Justice can rule initially.

“Of course, that option is for the Chief Justice. I just want to highlight the fact that what we are talking of here is a question of materiality, relevancy, competency of the evidence and incidental questions, and therefore, initially, it is the Chief Justice who will rule. Of course, I will repeat, that is an option of the Chief Justice if he wants to pass it on immediately to the Court. But let me just emphasize, Your Honor, that it is not the opposition, while it styled opposition to the opening of the second envelope, it is actually a rule on the relevancy of what is in the second envelope.”

Davide: “The honorable Senator-Judge Cayetano.”

Cayetano: “I rise here, Mr. Chief Justice, to support the statement of Senator Drilon. Our Rule VI is very clear. It says:

“…the Chief Justice when presiding on the trial may rule on all questions of evidence including, but not limited to, questions of materiality, relevancy, competency or admissibility of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed…

“My point, Mr. Chief Justice, is it is the Chief Justice first that should rule on the question of whether the opening of the second envelope is material and relevant to the matter at hand and, I believe that is the rule, Mr. Chief Justice.”

Davide: “The Majority Leader.”

Tatad: “Just to speak a little more to my motion. Under Rule VI:

“…the Chief Justice when presiding on the trial may rule on all questions of evidence including, but not limited to, questions of materiality, relevancy, competency, admissibility of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed, et cetera.

“The Rule is well understood--all questions of materiality, relevancy, competency.

“I do recall in the course of the arguments that the Defense raised the question of jurisdiction, that simply admissibility, materiality, et cetera. And I have been approached by a number of members of the Court suggesting that a vote be taken on this issue right here on the Floor. That is the reason for the motion. And since the motion has been moved and seconded, and there is an opposition, it is in order that we divide the House on this issue.

Roco: “Point of order.”

Davide: “What is the point of order of Senator Roco?”

Roco: “May I ask that the Rule be read completely, and this is a mode of a point of order. May I just continue where the Majority Leader left off. It says:

“…unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed; or the Presiding Officer may at his option, in the first instance, submit any such question to a vote of the Members of the Senate.

“So that the option is really with the Chief Justice, but he may, of course, give it to us. Thank you.”

Davide: “The Presiding Officer is placed by the Court in a dilemma. You have the second paragraph of Rule VI of Resolution No. 68 on the Rules of Procedure on Impeachment Trial. While it may be true that initially, he may be given, he can exercise that option, you have now a member of the Court itself moving that it should be voted upon, duly seconded, and an opposition was made. Under the circumstance then, the Chair will have to submit it to the Body. The Chair cannot pretend to preempt a motion, unless that motion is withdrawn.

Drilon: “There are two incidents then, Your Honor. The first incident is, the way I understand it, we vote as to whether the Chief Justice should initially rule. Is that the first one?”

Davide: “No, it is not. The ruling of the Chair is, he cannot exercise the option precisely because he is in a dilemma now. There is an existing motion, duly seconded, that that issue should be submitted to a vote.”

Drilon: “The main issue, Your Honor? We are just inquiring.”

Davide: “Yes. The main issue. Meaning that there should be a voting now in open court on the issue that had been raised on whether to open that envelope.”

Roco: “Inquiry.”

Davide: “What is the inquiry?”

Roco: “What is the specific motion? Is this an inter-locutory motion to prevent opening? Because I just want to know what exactly…

Davide: “That was the motion of the Majority Leader on that issue.”

Roco: “No. He just said, ‘to vote.’ But we do not know what exactly what we are voting. What is the substantive main motion?”

Davide: “To be voted upon would be the issue of whether to open or not that envelope.”

Roco: “And that is in the nature of an interlocutory order, I guess, because it is not a final disposition. Would this be correct, Mr. Chief Justice?”

Davide: “What shall we do with the present motion?”

Tatad: “The motion…”

Davide: “Yes, the Honorable Senator Sergio Osmeña III.”

S. Osmeña: “Mr. Chief Justice, I believe a motion should be put in positive form. Not just to vote. Therefore, with the permission of the Majority Leader, may I move that Envelope No. 2 be opened.”

Davide: “That is the positive motion. In effect, it is a modification of the motion of the Majority Leader. What is the position of the Majority Leader?”

Tatad: “Mr. Chief Justice, the original motion presented is that the Court vote on the motion presented by the Prosecution that we open the second envelope.”

Roco: “So, in answer to my inquiry, Mr. Chief Justice, I take it as an interlocutory question. May I then appeal to Rule XXII.”

Davide: “Rule?”

Roco: “Twenty-two, Mr. Chief Justice. That in matters of interlocutory question, we can speak for ten minutes and for not more than 15 minutes on the final question.”

Davide: “On the final question.”

Roco: “Yes. Since this is an interlocutory order, and then maybe, for those who…. May we just skip….”

Davide: “I am…. The Chair feels that Rule XXII will not apply on the matter. It would refer to orders and decisions.”

Roco: “Which may be acted upon–”

Davide: “Yes.”

Roco: “–without objection, or if objection is heard, the orders and decisions shall be voted on without debate by yes and nays, which shall be entered in the record, subject, however, to the operation of Rule VI, and in that case no member shall speak more than once on one question, and for not more than ten minutes on an interlocutory question, and for not more than fifteen minutes on the final question….”

Davide: “Yes, on an interlocutory question.”

Roco: “And motion pending to open…”

Davide: “We can allow, we can apply, and there will be debate subject to the time limitation under Rule XXII.”

Roco: “If we may, we would wish to avail. I will not occupy the whole ten minutes.”

Davide: “You can. But, first, we should hear the proponent of the motion.”

Roco: “Of course. If the Majority Leader would wish to speak on the….”

Davide: “The Majority Leader. Meaning, the period of debate on this particular interlocutory motion, order, would be ten minutes for the proponent and ten minutes for the oppositor.”

Tatad: “Mr. Chief Justice, distinguished Members of the Court.

“We have listened intently to both parties, Prosecution and the Defense, argue the point at issue. It is of utmost importance to this trial that we take a decision as a Court as to whether or not we are going to allow matters which are not specifically included in the Articles of Impeachment to be accepted by this Court.

“Several days ago, we allowed the opening of an envelope. The contents have not been received in evidence, but they have allowed to feed the popular fancy about what’s is happening in this Court.

“As a Senator-Judge, without the legal education that the distinguished Prosecutor has, I come to this Court solely to see if the President of the Philippines deserves to be convicted or acquitted on the basis of the Articles of Impeachment as they are written. I do not believe the Senate can go beyond the Articles of Impeachment.

“The United States has a richer legal experience on impeachment. But even so, there are very few experts and authorities on impeachment. But the most widely quoted authority, Prof. Charles Black of Yale University, in his handbook, Impeachment, containing 80 pages, a very slim volume–this was prepared during the Nixon impeachment in the House–says with clarity and vigor that ‘The Senator’s sole duty is to try the impeached official’--in this case, the President–’only on the basis of the charges for which he has been impeached by the House of Representatives.’

“’It might be emphasized,’ Professor Black says, ‘that the Senator’s role is solely one of acting on the accusations, the Articles of Impeachment voted by the House of Representatives. The Senate cannot lawfully find the President guilty of something not charged by the House any more than a jury can find a defendant guilty of something not charged in the indictment. This follows from the elementary principles of fair notice as well as from the linkage implied by the constitutional phrase on impeachment for and conviction of. It could hardly make sense to read this as allowing impeachment for one thing and conviction for another. Of course, any material uncovered in the course of the Senate trial might be matter for a new impeachment in the House of Representatives.’

“I think I can say that I have been impressed with a lot of the testimonies we have heard in this Court. A lot of criminal activity has been referred to in this Court; a lot of improprieties have been revealed for which I believe the President must respond to. But these things deserve to be heard in their own and proper place since they are not covered in the Articles of Impeachment. We cannot expand the coverage of the Articles of Impeachment.

“In Article 1, for instance, the President is charged with bribery. What is the allegation? That he received on a monthly basis P10 million in protection money from Gov. Luis ‘Chavit’ Singson. Supposing, a witness was to come to us today and say that on Christmas Day or on New Year’s Eve, the President had accepted a container van full of money in exchange for presidential approval of a multibillion-peso contract, can we bring that evidence to prove his guilt under Article 1? As a non-lawyer, I don’t believe we can. We should charge him in a separate forum, not here.

“Well, I have only 10 minutes, Mr. President, and not being a lawyer, I do not have the right to over speak but I believe I have made my stand.”

Davide: “The Honorable Senator Roco who made a reservation.”

Roco: “Yes. Thank you, Mr. Chief Justice.”

Davide: “And after that, the Honorable Senator-Judge Loren Legarda-Leviste; then the Honorable Senator Guingona.”

Roco: “I appeal to my friends and colleagues. In fact, maybe if we can dispense with this as soon as possible, it is better. But it is in the nature of the impeachment process, Mr. Chief Justice, that passions, that there are passions, and I can see the passion of the Prosecution, I can see the passion of the Defense, and sometimes it is precisely because there is passion that we as lawyers and we as senators must now rise above ourselves.

“What is at issue, Mr. Chief Justice, of course, is an interlocutory question but what is being charged is not just President Estrada. We are now putting ourselves before the bar of history. We are putting ourselves before the bar of public opinion, and our judgment on this interlocutory order can therefore affect not just President Estrada, but the Chamber and this Impeachment Court.

“I rise consequently, Mr. Chief Justice, to appeal to all of us to try to consider the interests of not only the Chamber as a Senate, not only the Chamber as an Impeachment Court, but the interest and responsibility that we owe to all those who sent us here. Unfortunately, there is nobody else being given the assignment to try. Wala na pong ibang makapaglilitis dito sa isyung ito kundi tayo. Kaya importante na lahat tayo ay…. ang pinakamataas na kaya natin sa ating kaisipan ang ihahandog natin sa bayan.

Nakita ko po na nagkakainitan kanina ang Prosecutor at ang ibang mga kasama natin. Nakikita kong nagkakainisan pero kung ito lang po ang dahilan, sa palagay ko’y…. Tayo din, sa Senado nagkakainisan din tayo pero naitatabi natin iyan upang maibigay natin at maialay natin sa bayan iyong pinakamahusay. Ano ang nakikita ko po? (The task of hearing this case is unique to us. It is important that we offer our best to the country. I saw earlier the heated exchange between the Prosecutor and some of our fellow judges, but things like this, even among us Senators, if this is a way by which we can show to our people that we are doing our best… What do I see?)

If we convict or declare as innocent the Respondent, President Estrada, it must be on full transparency. Dapat naiilawan lahat. Napakalungkot po kung (We need to shed light on everything. It is sad if) mag-convict tayo or mag-declare na hindi guilty ang Presidente at may nalimutan o may napagtakpan na ebidensiya. Ang (we convict or acquit the President and we missed something, or we allowed suppression of evidence. That) technical objection ay wala daw doon sa (is said to be not part of the) Complaint. Kung tutuusin, nandiyan eh. Ang sabi nga ng (In fact, it is there. As mentioned by) former Justice Isagani Cruz sa kaniyang isinulat, mahihirapan lang daw talagang makita na nandiyan sa (in his article, it’s there but the Defense may find it hard to see it in the) Articles of Impeachment ang defense at naiintindihan ko rin iyan sapagkat tayong mga abogado, magkukuwento tayo ng side natin. Ang (and I also understand it because as lawyers, we present our side. The) Prosecution, ikukuwento ang side nila (they will present their side); ang Defense, ikukuwento ang side nila (they will present their side), at tayo naman natapat na tayo ngayon ang maghahatol. So hinihingi po natin, puwedeng ang (and we as Senator-Judges happen to be the ones who will decide. So we ask, it is possible for the) Prosecution or ang Defense mag-aaway dito pero tayo po, ang hihintayin natin ay ang kabuuan ng ebidensiya (to quarrel here but for us, our task is to wait for the entire body of evidence to unfold.)

The fact that we are on trial should make us pause, Mr. Chief Justice, and I hope we can achieve some consensus on some points. Kung ano man po ang hatol ng (Whatever is the verdict of the) Impeachment Court na ito finally, maging guilty o maging innocent, ang importante ay suportahan ng mamamayang Pilipino (what is important is it gets the support of the Filipino people). It is not as important that it is guilty or innocent. It must be supported by the Filipino people and the Republic of the Philippines.

“This evening, we seem to be about to cross a bridge and I hope, Mr. Chief Justice, that when we cross that, we retain the higher credibility of the Impeachment Court and the impeachment process. Tayo po ang nautusan (We have been called to serve) and that is why I do not want to debate on legal technicalities. The interest of national unity, the interest of the people, ang kapakanan po ng ating sambayanan ay nakataya at hindi natin puwedeng malimutan at iyon naman ang tunay na isyu dito sa pinag-uusapan natin kung bubuksan (the interest of the nation is what’s at stake and we cannot forget that that is the real issue in this discussion).

Xxxx

“Kanina nabanggit ko rin po na bawal ang paggamit ng hindi tunay na pangalan. Nasa (A while ago I mentioned that it is illegal to use fictitious names. It is in the) Penal Code. At sinumpaan ni Presidente na ma-implement iyan. (And the President took an oath to implement that.) May Commonwealth Act at sinumpaan ni Presidente na bawal iyan, at siya ang mag-i-implement. (There is a Commonwealth Act and the President took an oath to implement its prohibitions.) Ngayon po iyong batas na iyon magagamit sa pagtakip. Siguro po hindi tama kung ganyan ang gagawin natin. (Now these laws can be used to hide something. It does not seem right if that is what we are going to do.)

“In summary, because I have less than two minutes, I think if I may appeal to my colleagues, we are the ones now being judged. It’s the Chamber. As we vote on this, we shall be judged. And I hope we…. and I have the highest regard. And whenever I’m asked by media, I keep saying, ‘I have the highest expectations from my colleagues.’ And I hope that that expectation will be met and approved and accepted by the Filipino people.”

Davide: “Thank you. The honorable Senator-Judge Loren Legarda-Leviste.”

Leviste: “Salamat po, Mr. Chief Justice.”

“Simple lang po. May I manifest, Mr. Chief Justice, that this matter before us tonight is the same issue that was before us a few weeks ago, I believe, before Christmas. And that was the subject of an Extended Order by the Chief Justice, by the Presiding Officer, dated December 18, 2000. And therefore, I believe that to be consistent with that ruling then, the appropriate thing to do is to allow the opening of the second set of documents.

“Mr. Chief Justice, our job here is to ferret out the truth. The people deserve nothing less than to know the truth. Payagan po nating, malaman ng taumbayan ang katotohanan sa pagbukas po ng pangalawang dokumento (Let us allow the people to know the truth by having the second envelope opened).

Davide: “Thank you, Your Honor. The Chair will now recognize the Honorable Senator-Judge Guingona.”

Guingona: “Gusto ko lang sanang ipahayag na itong pagbukas ng (I just want to say that opening of this) envelope, not only is in line with the former order of the Chief Justice, conditionally, pero, ito, within the jurisdiction at within the materiality at hindi po totoo, sa aking pananaw, na ito ay parang (and it is not true, in my view, that it is similar to the) murder case na pinatay si Pedro, at ang lumalabas ay iba iyong pinatay. Kaya iyong si Petra ay hindi pwedeng masali rito sapagkat ang charge dito na nakalagay ay (that Pedro was killed and yet what has unraveled is somebody else was killed. So this Petra cannot be included here because the charge that is stated here is) he also violated the anti-graft law he is sworn to uphold.

“He filed his Statement of Assets and Liabilities for the year 1999, stating therein that he and his wife and children have business interests in only three corporations. Hindi sinasabi diyan na iyong (There is no mention in it that) unexplained wealth ay (is) P500 million lamang (only); iyong (that) unexplained wealth ay (is) P2 billion lamang (only); iyong (that) unexplained wealth ay (is) P3.3 billion o mas malaki pa, sapagkat iyan ang batas (or even bigger, because that is the law). And that is very relevant to the charges we are now hearing.

“Kaya iyong Pedro, Petra, hindi po (Hence that Pedro, Petra is not) analogous dito sa nililitis natin na (to what we are hearing in these) impeachment proceedings. And since this is only the opening of the envelope at kailangang malaman ng taumbayan kung ano ang talagang katotohanan, palagay ko, (and the people need to know what really the truth is, I think) Mr. Chief Justice, we owe it to the nation, we owe it to the Filipino, we owe it to the millions who are now listening to grant this simple request. Buksan natin iyong sobre upang malaman kung ano talaga ang nakalagay diyan. (Let us open the envelope so we know what really is in it.)

“Why is the Defense objecting so vigorously? Kung natuloy ba iyong plano na nabulgar dito na si (If the plan succeeded to make) Mr. Dichaves ang may-ari ng (as owner of) savings account, magkakaroon ba ng (will there be) objection kagaya ng (like the) objection na hinaharap natin ngayon (that we face today)? Palagay ko hindi magkakaroon ng ganoong (I don’t think there will be) objection.

“Alam na ng bayan (People already know) and the people have a right to know, we have a right to know, and in the name of truth, in the name of the Filipino, in the name of justice, I ask that this envelope be opened now.

Davide: “Thank you. The honorable Senator-Judge Biazon. Then after that, the honorable Senator-Judge S. Osmeña III, Cayetano, Johnny Enrile, Tessie Aquino-Oreta.”

Biazon: “Noong isang linggo po, nagpunta ako sa (Last week, I went to) San Manuel, Tarlac, kausap ko po iyong mga magsasaka. Ang tanong sa akin, ‘Iyon po bang inyong proseso ay maipakikita sa amin kung ano ang katotohanan?’ (got around to talk to the farmers. They asked me ‘will your process show us what is the truth?’)

“Dito po ay may nabanggit na tayong (Here there is already mention of) P500 million trust account, may nabanggit na tayong (we already mentioned) P142 million na ginamit po doon sa isang mansiyon. Ito pong (that was used for a mansion. This) P142 million na ito, itong P500 million ngayon ay lumalabas na iisa yata ang may-ari sapagkat iyong tatlong (now it appears that there is only one owner because these 3) accounts na sinasabi puro po (being mentioned are all) Jose Velarde. Jose Velarde iyong trust account, Jose Velarde iyong pinuntahan noong (is where the) P142 million (ended up), at ngayon ay mayroong mga lumalabas na impormasyon, mga kababayan, (and now some information is coming out, fellow citizens), Chief Justice, mga kapanalig ko po dito sa Senado, na ito nga pala ay parte ng isang malaking kayamanang maaaring magkahalaga ng (fellow believers in the Senate, that these amounts are part of a huge treasure amounting to) P3.3 billion sa pangalan ng (in the name of) Jose Velarde. Papaano po natin puwedeng paghiwa-hiwalayin iyong tatlong iyon kung iisa lang naman palang pangalan ang ating nadidinig? (How can we segregate these three if we hear only one name?) Jose Velarde sa P142 million, Jose Velarde sa P500 million. Merong impormasyon na (There is information that) Jose Velarde pa rin ang nakakabit dito sa (is yet linked to this) P3.3 billion. Mahaharap ko pa kaya uli iyong mga taong nagtanong sa aking magsasaka kung hindi po natin bubuksan at pakakawalan iyong katotohanan na nakakulong diyan sa pangalawang (Will I be able to face the farmer who asked me questions if we do not open and free the truth that is trapped inside that second) envelope na iyan?

“I need to see what is in that envelope. It can help me formulate my decision when the time for me to render my final decision comes. Pag hindi ko po nakita kung ano ang nasa loob ng (If I do not see what is inside that) envelope na iyon, kung ano pa man ang aking magiging hatol, pirmi ko pong iisipin habang-buhay na ang aking hatol ay kulang. Ang ibig ko pong sabihin, kung ano man ang aking magiging hatol ay sapagkat nakabase sa katotohanan. Huwag nating ikulong ang katotohanan na iyan na nakakulong diyan sa envelope na iyan. Palabasin natin iyan sapagkat ang sabi po ng ating mamamayan: ‘Katotohanan po lamang ang aming hinihingi.’ (whatever my verdict will be, I will bear in mind for as long as I live that my judgment was wanting. What I mean is whatever decision I will make will be based on the truth. Let us not lock the truth inside that envelope. Let us free it because, say our fellowmen: ‘The truth is all we ask for.’)

“Again, by the nature of what constitutes an impeachment proceeding that I have expounded many times, I invoke Rule VI or Section 6 or Article VI of the Senate Rules na hindi po maaring ikulong ang katotohanan dahil lamang sa teknikalidad. Hindi natin maaaring ikulong ang katotohanan dahil po lamang sa (the truth cannot be suppressed on the sole ground of technicality. We cannot hide the truth simply because of) legalistic gobbledygook.

Davide: “Thank you, Your Honor. The honorable Senator-Judge S. Osmeña III.”

S. Osmeǹa: “Mr. Chief Justice, you know, tonight the reputation of the Senate as an institution is at stake. For the past several weeks starting December 7, practically the whole country has followed the progress of this impeachment trial via television, or radio or video tapes later on. Everybody knows the evidence that has been brought out in this trial, whether they were accepted conditionally or absolutely they still know. But what is important to this institution, Mr. Chief Justice, is not whether the final verdict of the senators will be to convict or to acquit the President of the Republic. What is important is that the process was transparent, and that the verdict is in keeping with the evidence that has been brought out during this trial. Pag overwhelming po ang evidence, eh, ano ang magagawa natin–ma-a-acquit ba iyan? Eh, magagalit ang taong-bayan sa atin. Pag kulang naman ang ebidensiya, (If evidence is overwhelming, what can we do, do we acquit? The people will surely slam us. But if the evidence is weak) it would be ridiculous for us to convict His Excellency, the President.

“Ngayon po, noong (Now, on) December 20, binuksan po natin iyong (we opened) Envelope No. 1. Iyong nakasulat ho diyan (What is written there), ‘Jose Velarde,’ Wala namang koneksiyon pa kay Pangulong (There is no connection yet to President) Erap Estrada. Ngunit mayroong (But there is) notation diyan na ito po ang (that there is) the other half of a combo account at nakasulat po doon iyong (and it is written there that) savings account number ni Jose Velarde. Later on, when Clarissa Ocampo testified that, indeed, she saw the President of the Republic signed Jose Velarde to five sets of documents, the agency agreement or Investment Management Agreement, the authorization to debit his savings account, the very same numbered savings account that was in the first set of documents that came out of the first envelope delivered here by Equitable Bank and other documents, that was when the connection was made.

“Now, the Senate allowed the opening of the first envelope. The Senate allowed the testimony of Clarissa Ocampo and people found Clarissa Ocampo to be very, very credible. After all, she had no reason to lie.

“Ngayon po, dito sa (Now, in this) account that is being hidden inside Envelope No. 2, the savings account, as asserted earlier by Prosecutor Joker Arroyo, will show reported deposits of about P3.3 billion over a span of 12 months.

“Malamang po ay nandiriyan ang deposito na galing sa (It is likely that is where deposits coming from) tobacco fund na binanggit ni (mentioned by) Gov. Chavit Singson na ibinigay daw niya kay (are being kept and which he said he gave to) Atong Ang, at ibinigay ni (and given by) Atong Ang kay (to) Joseph Estrada. Paano natin malalaman iyon? Malamang nandiriyan din ho ang (How will we know it? It is likely that is where we will also find the) P200 million na ibinigay ni (given by) Ricaforte kay (to) Ed Serapio at idiniposito daw ni (which was said to be deposited by) Ed Serapio sa isang (in one) Equitable Bank account, the same bank. As a matter of fact, the treasurer of the Erap Muslim Youth Foundation is none other than the chairman of the Board or then chairman of the Board and majority owner, George L. Go.

“So, sa ngayon po (as of now), as a member of this impeachment panel, ako po ay nagtataka kung bakit natatakot ang (I am surprised why the) Defense panel na buksan ang (is afraid to open this) envelope na ito. Sapagkat, una sa lahat, nadinig ko po (Because first of all, I heard), and I have heard it several times that His Excellency, the President, said, ‘I have not committed graft and corruption; I have not received a single cent from any source that is illegal.’ And when Clarissa Ocampo testified, I remember the President said, ‘Wala akong kinalaman diyan.’ (‘I have nothing to do with it.’) So, why is the Defense panel so afraid to open this?

“On the other hand, baka pag binuksan ang (if we get to open this) envelope na ito ay tapos na ang boksing (it might just end it all). And that is where we are tonight.

“So, Mr. Chief Justice, when we took an oath to be members of this impeachment panel, we took an oath to render impartial justice. As far as I am concerned, the one on trial here, the President of the Republic, is not really the one on trial. It is the Senate that is on trial.

“Furthermore, the Senate has been conducting this impeachment trial to make sure that society can be saved from anybody who would be declared unfit for public office.

“Simple question: Can a president or any official deposit P3.3 billion in his account and still be fit for public office? That is the question tonight. And if we vote not to open Envelope No. 2, and I know that the contents of Envelope No. 2 will somehow find its way into the newspapers if not tomorrow then the day after and the whole country will know what is in Envelope No. 2, then I think the members of this Body will only have themselves to blame for trying to make sure that the Filipinos lose on a technicality. Pag may na-technical dito, ang taong-bayan po ang na-technical.

“Therefore, Mr. Chief Justice, I move that we open the envelope and even accept on condition, in the same manner that we opened the first envelope, and we allowed Clarissa Ocampo to testify so that later on we, as members of the Impeachment Body, may decide whether, indeed, the testimony and the documents were relevant or not.”

Davide: “The Honorable Senator-Judge Cayetano; after him, the honorable Senator-Judge Enrile; and finally, the honorable Senator-Judge Aquino-Oreta, the honorable Senator-Judge John H. Osmeña, the honorable Senator-Judge Franklin M. Drilon, and the honorable Senator-Judge Ramon B. Magsaysay, Jr.”

Cayetano: “Ang paningin po ng ating mga kababayan sa buong bansa ay nasa atin ngayong gabi simula po nang magdebate dito ang Prosekyusyon at ang Depensa at kasama na po ang mga pananalita ng mga Senador-Huwes dito sa isyu na kung dapat ba nating buksan iyang pangalawang envelope na hinihiling ng Prosekyusyon. (The whole nation has its eyes fixed on us tonight since the start of the debate among the Prosecution, Defense and Senator-Judges on the issue of whether we should open the second envelope or not as requested by the Prosecution.)

“Sana po ay pinagbigyan natin ang ating Mahal na Mahistrado, si (I had hoped that the) Presiding Officer, the Honorable Chief Justice na siya muna ang mag-ruling sapagkat iyan naman po ay naaayon sa (was given the opportunity to first issue a ruling as this is provided under) Rule VI ng ating (of our) Senate Rules on Impeachment. Sana po ay gusto kong marinig kung ano ang kaniyang sasabihin, kung papayagan niyang buksan itong (I hoped to hear what he had to say, if he would allow the opening of this) second envelope o hindi. Subalit (or not. But this is) moot and academic na po iyan sapagkat naunahan po tayo ng isang musyon (now because we are now pre-empted by a motion).

Ano kaya ang laman nitong (What could be the content of this) envelope na ito? Bomba? Kung ito man ay bomba, palagay ko po ay hindi nakakamatay ito ng tao, na kagaya noong mga bombang sumabog noong (Bombs? If these are bombs, I don’t think they can kill people, unlike the ones that exploded on) December 30. Kung ito’y bomba, baka ito po ay bomba ng katotohanan kaya dapat siguro nating buksan at huwag tayong matakot sapagkat iyang bomba na iyan ang magbibigay sa atin, hindi lamang ng katotohanan. Sinabi nga po ng Bibliya, (If this is a bomb, perhaps this is a bomb of truth which we should unwrap and for which we should not fear because that bomb will give us not only the truth. As quoted in the Bible) ‘The truth shall set us free.’

“Ang akin pong mga kaibigan sa Depensa, kahit ayaw nilang tanggapin, subalit iyong kanilang mga argumento ay sinasabing ang proseso rito ay (My friends in the Defense, even if they refuse to accept it, their arguments would make it appear like these are) criminal proceedings. Halimbawa po ngayon ay narinig natin ang aking mahal na propesor, na binanggit iyong tinatawag na prinsipyo na (For example we just heard it from my beloved professor, talking about the principle that), ‘The fruit of the poison tree cannot be admitted.’ Iyan po ay prinsipyo sa (That is a principle of) Criminal Law, iyong tinatawag na (that so-called) ‘proof beyond reasonable doubt’ na nabanggit din dito (also mentioned here) days ago. Again, iyan po ay prinsipyo ng (that is a principle of) Criminal proceeding.

“Pero, gaya po nang pagkakasabi ko kanina, hindi po ito (However, like I said earlier, this is not a) criminal proceeding. Ito po ay (This is a) political process na nakalagay sa ating Saligang Batas para husgahan kung ang isang Pangulo ay dapat manatili sa kaniyang puwesto. Hindi dapat kulungin o kaya bigyan ng pena na pera kung hindi tanggalin lamang sa puwesto. Kaya po ito ay hindi (provided for in the Constitution to determine if a President should stay in office or not. He should not be jailed or penalized but merely removed from his position. Therefore, this is not a) criminal proceeding.

“Kaya naman po nang ginawa namin iyong (That is why when we worked on the) Rules of Impeachment ay sinunod namin ang (we followed the) Record of the Constitutional Commission na sa debate nga po ang aming nakita na ang sinabi ng gumawa ng ating Saligang Batas na ang (that in the pertinent debates we saw what the framers of the Constitution said, that the) Rules of Procedure and Rules of Evidence should be liberally construed. Sapagkat iyon pong mga bayani na naghanda at gumawa ng ating Saligang Batas ay alam po nila na ito ay hindi (Because those heroes that drafted the Constitution knew that this is not a) criminal proceeding, kung hindi isang (but rather a) political process. At iyan na nga po ang naging base ng aming (And this has become the basis of our) Rules of Proceedings.

Xxxx

“Bakit kaya gustong palabasin ng (Why would the) Prosecution at buksan itong (wish to open the) second envelope? Sapagkat mahalaga po, mahal na magistrado at mga kababayan, ayaw lang sabihin ng Depensa subalit kung hindi natin papayagan na mabuksan ang (Because it is important, although the Defense would not admit it, that if we do not allow the opening of the) second envelope, ang testigo ni (the testimony of) Clarissa Ocampo ay itatapon sa basura, kung hindi man, sa kangkungan. Sapagkat ang layunin ng (will be wasted. The objective of the) Prosecution ay tumupad sa obligasyon na sinabi ni (is to comply with the directive of the) Chief Justice na kailangang i-link ninyo, o isabit ninyo, o sabihin ninyo iyong (that there is need to connect the) P500 million na sinabi ni (mentioned by) Clarissa Ocampo dito ay galing sa (as having been sourced from) ill-gotten wealth. Kaya nga importante at mahalaga na ito na nga po ang obligasyon na gustong tuparin ng (So it is important, and this is in keeping with the obligation that needs to be performed by the) Prosecution--to link that that P500 million is ill-gotten wealth. At iyan nga pong pagbubukas ng (And that the opening of the) second envelope ang magpapatunay (will prove it), according to the Prosecution.

“Ang sabi po ng mahal kong Propesor, ay dapat daw ang ating gagawin dito, ang maging batayan ay ang Konstitusyon. Tama po iyan, Propesor. Pero wala naman po sa Konstitusyon na sinasabing (My beloved Professor said that what we should do must be based on the Constitution. But there is none in the Constitution that says) how do we prove the Articles of Impeachment. Iyan po ay nasa (It is in the) Rules of Impeachment na ginawa ng Senado (which the Senate promulgated). At ang (And the) Rules of Court po ay (is) suppletory in character whenever applicable. Sapagkat ang Saligang-Batas ay hindi naman naglalahad na (Because the Constitution does not say) ‘Okay, pagkatapos nang (after the) impeachment ay manggaling sa (will originate from the) House at naririto na sa Senado ay wala naman po sa Konstitusyon ang sinabing, “Papaano ninyo (and now it is here in the Senate and nothing in the Constitution says)…will prove, how will the House Prosecutor now prove the allegations in the Complaint or the ultimate facts?”’ Wala po sa Konstitusyon iyan, Propesor. Iyan po ay nasa (It is not in the Constitution, Professor. That is in the) Rules of Impeachment na aming ginawa (which we drafted). And the Rules of Court are suppletory in character.

Xxxx

“Kung hindi naman bomba ang labas niyan at wala namang sinasabi ang (If it is a dud and the) Prosecution, eh di, iyan po (has nothing to show for it, then this) will be held against the Prosecution at magtatagumpay ang (and this shall be as success for the) Defense. Pero, habang hindi natin nakikita ang laman ng (However, for as long as we do not see what’s in that) second envelope na iyan, habang hindi natin nakikita kung ano nga ba iyan, ano po ang sasabihin natin dito? Gaya po ng sinabi ko, alam na ng Depensa, alam na ng (for as long as we are unable to determine what it really is, what shall we say about it? Like I said, the Defense knows, the) Prosecution ang laman nitong (know the content of this) second envelope. Kami lamang yata rito ang hindi nakakaalam. Ang mga taong bayan na nakikinig sa atin at ngayon at nanonood ay hindi nila alam. Tama po ba iyan? Hindi naman ho tama na ang mga abogado ng (We members of the court seem to be the only ones who do not know what’s in it. The general public who are watching us right now do not know as well. Is it correct? It is not correct that counsels for the) Defense at mga abogado ng (and counsels for the) Prosecution ay alam ang laman ng (know the contents of the) second envelope, na kaming mga Senador ay hindi alam (while we Senators do not know)?

“I submit, Mr. Chief Justice, that the opening of the second envelope is relevant and material to the testimony of Clarissa Ocampo, that the P500 million was indeed of the President signing as Jose Velarde. And that it is relevant and material to prove as an obligation on the part of the Prosecution that such P500 million is part and parcel of an ill-gotten wealth, which is the ultimate fact sought to be proven in the second paragraph of Article 2 of the impeachment complaint.”

Davide: “Thank you. The Chair will now recognize the honorable Senator-Judge Enrile.”

Enrile: “Mr. Chief Justice, I’ll be very, very brief. I feel when I am standing in this Chamber this evening that I am actually facing the bar of history and the bar of public opinion. There is a certain amount of trepidation in my heart but nonetheless, I must perform my duty as I must being a member of this Chamber.

“Mr. President, Mr. Chief Justice, I am not saying at this point that Pres. Joseph Ejercito Estrada is guilty of the charges against him. Neither am I saying that he is innocent. Not yet. What I am saying at this point, and this is the only issue before us, is that I cannot as a judge perform the function of the House of Representatives which has the sole power, authority and prerogative to prepare the Articles that will impeach the President. If indeed the President of the Philippines committed the alleged wrongdoings being imputed to him on the basis of the facts claimed to have been uncovered by the Prosecution after the Articles of Impeachment have been elevated to the Senate, then let the House of Representatives perform its constitutional duty to prepare a new set of Article or Articles of Impeachment to embody the newly discovered acts of alleged wrongdoing.

“To do otherwise, Mr. Chief Justice, and ladies and gentlemen of the Senate, I humbly submit that this Senate acting as an Impeachment Court has no power under the Constitution to amend the Articles of Impeachment before us. It cannot constitutionally and validly perform the task lodged solely by the Constitution on the House of Representatives. To do that, to do so would be a total travesty of due process and a transgression of elementary fairness.

“You know, Mr. Chief Justice, ladies and gentlemen of this Chamber, we talk of discovering the truth. There are people in this Chamber who do not know the meaning of truth. One time, and I’ll tell you this, I was charged with a crime that was not even in our statute book--Rebellion Complexed with Murder. And my witness to the fact that I was innocent--and even the distinguished member of the Senate-Senator Cayetano knows about this and some gentlemen in this Chamber know about this--my witness was no less than a priest who was saying mass in my house at that very moment when they say that Senator Gringo Honasan, then Colonel Honasan was in my house with 100 soldiers at that precise moment for which I was framed and jailed with Rebellion Complexed with Murder in order to immobilize me. And you know what happened to Father Danilo Dagsaan, the priest? He was shipped out of this country by no less than Jaime Cardinal Sin, with the connivance and conspiracy of President Corazon Aquino. And this is the opportune time, Mr. President, Mr. Chief Justice, for me to put this in the annals and record of this Republic so that future historians will know the entire truth about this.”

Pimentel: “Thank you. Let’s have the next.”

Oreta: “Thank you, Mr. Chief Justice.

“Well, as correctly pointed out earlier by the Majority Floor Leader, Senator-Judge Francisco Tatad, the Articles of Impeachment is not an open-ended charge sheet which can be expanded from day to day to accommodate discoveries made by the Prosecution. Well, I agree that the Rules of Evidence should be liberally construed. I submit that liberal interpretation of the Rules should be consistent with the twin concepts of fair play and due process.

“Moreover, Mr. Chief Justice, we cannot close our eyes to the repercussion of the undue disclosure of bank records in pursuit of the Prosecution’s fishing expedition. And yesterday’s edition of the Philippine Daily Inquirer, an article in its front page read: ‘Equitable PCI Bank for Sale.’ In the article written by the reporter Clarissa Batino, she clearly states that an amount of at least P30 billion has been withdrawn from the bank significantly eroding its deposit base of P160 billion.

“I am alarmed, Mr. Chief Justice, of these developments. If withdrawals continue not only in Equitable PCI Bank but for all other banks called upon by this honorable Impeachment Court to disclose their financial dealings, the net effect would be the destruction of our banking industry and in turn hammer another nail to our battered economy.

“This, Mr. Chief Justice, I cannot allow such a situation to occur. I cannot allow this Impeachment Court to be used as an instrument which causes the fall of our banking industry and may lead to our country’s financial ruin. I cannot and will not allow this Court, Mr. Chief Justice, to be used wittingly or unwittingly by the Prosecution in its fishing expedition to the detriment of our country’s economy.

Davide: “Thank you. The honorable Senator-Judge John Osmeña.”

J. Osmeǹa: “Thank you, Mr. Chief Justice. The whole country or maybe, perhaps even Filipinos in other countries are listening to us right now. And I wonder how many of them think, listening to our colleagues, that they are listening to a political rally, or they are listening to a legal proceeding. Because the nature, Mr. Chief Justice and my dear colleagues, of what has been going on in this Chamber for the last month and a half, has really been an event which has, in effect, been an arena on two sides. On the one hand, you have the political arena.

“And Amado Doronilla correctly observed in a recent column of the Philippine Daily Inquirer that those who are opposed to the continued tenure of President Joseph Ejercito Estrada are winning the public opinion back. A very, shall we say, candid remark because he, in effect, is saying that what is going on is not really a trial for the impeachment of the President of the Philippines, but rather an effort to bring down the President, not by the constitutional processes that we are actively engaged in but through the bar of public opinion.

“And that perhaps, Mr. President, explains why many times in this Court there are statements by the Prosecution that it is making a proffer. It is announcing something that it will do to subpoena the records of Citibank because the President, his wife, the ladies that he is said to be associated with, as well as his so-called cronies, have accounts in Citibank. And immediately, the next day, almost all the newspapers are headlining President Estrada, Mrs. Loi Ejercito Estrada, et cetera, et cetera, have accounts in Citibank. As if this was gospel truth.

“This is, of course, the arena of public opinion that is being fed by unsubstantiated loose remarks coming from the Prosecution within this Chamber. We are therefore being used, Mr. President. We are being used, we are being made puppets in a show to bring about the completion, the success of an agenda that is not provided for in the Constitution. And that is what really is the unfortunate thing of what is going on.

“Now, Mr. President, in this whole effort, members of the Senate are attacked by the Prosecution. There is scoreboard there right across our very parking lot which ridicules us. Of course, those who are perceived to be not following the dictates of the mob.

“And, Mr. President, we ourselves have torn upon each other. And even in the lounge where we have our meriendas, you need not be perceptive to see how the groupings of the Senators sitting with each other no longer show the old environment of collegiality that was present here. Nagkakampu-kampo na tayo doon sa (We have divided ourselves into camps at the) dining room. Those are, shall we say, the heavy burden that we have to bear as a result of what is going on. And I bewail this because it is unnecessary. And it would have been totally different if there had been no TV cameras in this Hall. It would have been totally different. And this is the result of all these cameras all over. Cameras picking on our feet, cameras trying to catch us asleep, cameras trying to catch us talking to each other, as if we were supposed to sit here like stupified mummies listening to everything that is going on.

“And so, Mr. President, tonight we are here voting on a very simple question. I mean, this is a question that a judge in the Regional Trial Court rules on every day. This is a question that Justices of the Court of Appeals rule on. The rules are very simple, the rules are very clear, the facts are very clear, but because there is TV around, this has become a big spectacle.

“Mr. President, I would like to say that our vote tonight, even if some of us feel that they are casting their vote on the final judgment, is not really a vote on a final judgment. And the final judgment may or may not follow the result of the voting tonight. And there are those, I think it would be appropriate to say, who want to make a big issue out of this for their own purposes. So be it. For me, Mr. President and Mr. Chief Justice, this is just a simple vote on a simple procedural issue that is well — which is well-defined, provided for the Rules of Evidence and all the rules that we have been following.

“So, in conclusion, may I say, Mr. President and Mr. Chief Justice, what is this fuss all about? Thank you.”

Davide: “Thank you. The honorable Senator-Judge Drilon. After that, the honorable Senator-Judge Magsaysay.”

Drilon: “Mr. Chief Justice, my colleagues. It is quite unfortunate that my good friend, Sen. Juan Ponce Enrile, brought up the issue again, an incident in history that happened ten years ago. I will not deal at length on that point. I would rather just let history and our people decide on the action of the players at that time.

“But let me just state that in 1990, I was placed in a situation where I had to defend the existence of a duly constituted government. And therefore, I invoked the law and the legal processes in order to protect the duly constituted government. I did not take extralegal measures. I invoked a decision on the dissenting opinion in a case decided by the Supreme Court. We follow the law; we follow the Constitution. Let the people judge our action in history.

But having said that, Mr. President, Mr. Chief Justice, let me now share my position insofar as this matter in issue at hand.

The issue here is whether or not envelope, or the contents of Envelope No. 2, is covered or covered by the Articles of Impeachment. It is argued that these are not covered by the Articles of Impeachment, and therefore it is immaterial and irrelevant as argued by the Prosecution [Defense - IA], as they have done in the past. In fact, Mr. Chief Justice, the phrase ‘irrelevant and immaterial’ would be the most popular phrase these days. Pumunta po kayo kahit saang (You go to any) party. And unang sasabihin sa inyo (the first greeting you get: ‘Objection, Your Honor, on ground that it is irrelevant and immaterial.’ Buong bansa po ay halos abogado na. Ngunit ito po ngayon ang tanong natin: Ito ba talaga ay (It seems everybody has become a lawyer. But this is our question now: Is it really) irrelevant and immaterial?

“Sa akin po, Kgg. na (For me, Honorable) Chief Justice, hindi po (it is not). At Kgg. na (And Honorable) Chief Justice, sinabi niya doon sa kaniyang (he said in his) extended opinion dated December 18, in ordering the opening of the first sealed envelope that the objection based on immateriality would be premature, and once the document obtained in connection therewith are formally offered in evidence, that is the time when objections on materiality can be, should be ruled upon. And, therefore, this issue has been ruled upon by the Chief Jusice.

“Kaya nga po kanina, ay hiningi ko, kung pupuwede, na ang (That is why early on I asked, if it was possible, that the) Chief Justice muna ang siyang maghusga dito sa ating pinag-uusapan. Dahil ito po, (would first decide on this issue. Because the determination of) irrelevant and immaterial, ay isang patakaran sa husgado. At sino po ang maghuhusga? Sino po ang (is a judicial process. And who will judge? Who is the) most qualified to judge on relevance and immateriality? It is the Chief Justice. Kaya po aking hiniling kanina, kung maaari sana, na ang (That is why my request early on, if it was possible that the) Chief Justice, under Rule VI of our Rules, could first decide on this. Unfortunately, that was not possible because the motion had already been filed.

“Has this ruled upon by the Chief Justice? Yes, because on January 10, 2001, by order of the Chief Justice, this document was subpoenaed. On January 10, 2001, the Chief Justice, Chief Justice Davide, ordered, through a subpoena duces tecum ad testificandum, that documents related to Savings Account No. 016062501-5 be produced.

“Bakit po ayaw ng (Why the objection from the) Defense panel buksan ang pangalawang (on the request to open the second) envelope? Maliwanag po dahil ito ay pag-aari ni Presidente (The answer is clear, because the owner of the account is) Joseph Ejercito Estrada. Doon po sa (In) Exhibit ‘XXX’, isang sulat, na ang sabi ni (a letter, that according to) Ocampo, ay pinirmahan ni Pangulong (was signed by President) Estrada bilang (as) ‘Jose Velarde.’ Ang nakalagay doon (Written there was): ‘My Savings Account 016062501-5’ Iyan po ang sinabi ni (That’s what) Jose Velarde (said); iyan po ang sinabi ni Pangulong (that statement came from President) Estrada. Maliwanag po na ang (It is clear that this) account na ito ay pag-aari ni Pangulong (is owned by President) Estrada. Inamin po niya iyan, kaya po ayaw buksan ng Depensa iyan (He admitted to it, which is why the Defense does not want to open it). Grounds of relevance and materiality.

Mr. Chief Justice, my colleagues, Envelope No. 2 is relevant and material in our quest for truth. Envelope No. 2 is relevant and material for the credibility of this proceeding. Envelope No. 2 is relevant and material for the credibility of this Institution. Envelope No. 2 is relevant and material to the faith of our people in this democracy.

Davide: “Finally, the Chair recognizes the Honorable Senator-Judge Magsaysay.”

Magsaysay: “Thank you, Mr. Chief Justice. Almost 50 years ago, there was an ordinary simple man who walked this same country and worked in the same government. He was an ordinary man, in the sense that he was not a lawyer, he was a mechanic. But because of his trustworthiness, people trusted him, he was able to become President. Unfortunately, that same man died in office, short of his four-year term, at the age of 49, and that man was my father, the late President Ramon Magsaysay.

“That’s why I’m here this evening, Mr. President, because of the name that my father carried with dignity and with honesty. So, it is an honor for me to be here in the Senate, to be one amongst the 22. The highest votes given by the public to the Senate, to a senator is maybe 15 million votes. Senator Roco, in 1995, having garnered close to 15 million votes, and the lowest among those of us must have garnered at least 7.5 million votes.

“All I am saying, Mr. President, is that the people voted for us–all 22 of us–because they trusted us. So, what is governance? We are looking at this issue of presidential leadership in crisis on the issue of governance. Because if we do not look at this moral principle of leadership, if we are going to get bogged down in technicalities and techniques and not substance, then we will have lost the institution. We will have lost the reputation of us Senators being among the best and the brightest.

“The Senate has been the training ground for future leaders and even many Presidents. We look around us here, the Hall, the same Hall that we are in, produced good people like Benigno Aquino Jr., the older brother of our friend Tessie Aquino-Oreta. The same Senate Hall produced a Gerry Roxas who, in the martial law years, was able to say no to President Marcos. And I will read the rest of the roll call: Jose “Pepe” Diokno, if you remember, ‘a yellow ribbon around those trees’ Lorenzo Tañada, the father of our congressman, one of the Prosecution Congressmen, Bobby Tañada; Claro M. Recto; Jovy Salonga. These are just a few of those that have gone through the Senate and acquitted themselves because they carried the trust and did not fail the Filipino people.

“Why am I saying this, Mr. President? Because I am not a lawyer. I am an engineer. I was in business for 25 years until I was asked by President Ramos to run for the Senate. And I was honored because I was given the same mandate as each and every one of us here was given the same mandate.

So, what am I saying, Mr. President? This is the issue on moral principles of governance. The principles of governance, which is justice, equity, openness, honesty, integrity, trust. These are the things that you should ask for and not be looking at techniques. The techniques of law, as my good friend here, says, ‘Gobbledygook and lots of gibberish.’

“You look at yourself in the mirror every morning and look at your conscience. If you will be able to look at yourself in the morning and say you have done good to the country and for your people, then you have respected yourself.

“So, Mr. President, this proceeding has become too politicized because a lot of us here–maybe even me–have become partial. We have prejudged this issue. But the main issue is, is this person in Malacañang fit to be President? Because I, my father sacrificed his life just like Tañada, Gerry Roxas, Ninoy Aquino, sacrificed their lives. If you will vote according to politics, that is in your conscience.”

Davide: “Thank you. The honorable Senator-Judge Miriam Defensor Santiago and after that, the honorable Senator-Judge Honasan.”

Santiago: “Mr. Chief Justice, I love a good debate just like the next lawyer. But tonight, I am tired of all these disputations. I am weary. I want to go home to the love of my family. Yet, as a trained lawyer, and as an advocate and disciple of the rule of law, I know that it is my duty to stand up tonight and affirm the fact that a society of love can exist only if it is protected by the rule of law.

“The law is not a litany or a series of technicality, an impression that we might have gathered from what has been said in this Hall today. The law is the very basis of the social contract that pulls the Filipinos together and renders them one nation.

“Long, long ago, the most famous litigant in the entire history of the human race was asked by this judge: ‘Is it not true that you claim to be the king?’ And the litigant who was not a trained lawyer stared into the face of his tormentor and said: ‘What is the truth?’ For there are many truths. There are many realities.

“I stand for the rule of law as I see it according to the light that has been given to me by my Creator. No person, no group, no sector of society has a monopoly of the truth or of the law. That is why we must learn to accept each other’s convictions and that is why I intend that, together with the rest of my colleagues, whom I hope will do likewise, I intend to vote out of a sense of the shared destiny of the Filipino people.

Davide: “Thank you. Finally, the honorable Senator-Judge Honasan.”

Honasan: “Mr. Chief Justice, Mr. Senate President, my distinguished colleagues, I was almost disappointed that everything I wanted to say was said in more eloquent terms by the Honorable Judge-Senator Miriam Defensor Santiago. But I have very little to add.

“Mr. Chief Justice, to me this is all about the rules and following them. The ultimate rule is the Philippine Constitution. When I rose in rebellion against three Presidents, and what I perceived then to be corrupt and inefficient governments, everybody told me that I had violated the Constitution and my oath of office as a soldier.

“Mr. President, Mr. Chief Justice, whether we open the second envelope or not, the truth cannot be suppressed to the Filipino people. So, instead of spending time trying to defend the Constitution, I think we should all try to follow it first.”

Davide: “Thank you. Anybody else?” [Silence]

“The Chair would like to motu proprio order a suspension for ten minutes.”

It was 9:12 P.M. Trial resumed at 9:34 P.M.

Davide: “The trial is now resumed. There is a pending motion now duly seconded on the issue of whether or not to open the second envelope.

“The Honorable Senator-Judge Loren Legarda-Leviste.”

Leviste: “Mr. Chief Justice, may I inquire at this point in time whether it would be possible for the Presiding Officer to render–”

Davide: “A ruling?”

Leviste: “–a ruling despite the fact that a motion to vote has been raised by a Senator-Judge? May I just inquire.”

Davide: “Unless that motion duly seconded is withdrawn, the Chair cannot because the initial authority of the Presiding Officer had been preempted by that motion duly seconded.”

Tatad: “Mr. Chief Justice.”

Davide: “Yes, the Majority Leader.”

Tatad: “Mr. Chief Justice, as movant of the motion, I believe we have gone too far. I believe we have gone too far. We have heard almost everyone speak to the motion, and it’s time to vote.”

Davide: “So, let’s vote now. This should be a roll call vote.”

S. Osmeña: “Mr. Chief Justice.”

Davide: “The honorable Senator-Judge Sergio Osmeña III.”

S. Osmeña: “May I respectfully move for a nominal vote.”

Davide: “Roll call vote. Nominal voting. The issue is whether or not to open the second envelope. To open, the vote should be yes. Not to open, the vote should be no. Is that clear?

“To open, the vote should be yes, and a vote of not to open, the vote should be no.

“The Secretary will now call the roll for the nominal voting.”

Atty. Reyes, Acting Secretary: “Honorable Senator-Judges

“Aquino-Oreta…………….	No
“Barbers ………………….
“Biazon ………………….	Yes

Davide: “Slowly, slowly, please.”

Atty. Reyes: “Cayetano…	Yes
“Coseteng…………………	No
“Defensor-Santiago….……	No
“Drilon……………………	Yes
“Enrile……………….……	No
“Flavier………………….	Yes
“Guingona……………….	Yes
“Honasan…….………….	No
“Jaworski…….………….	No
“Legarda-Leviste……….	Yes
“Magsaysay Jr………….	Yes
“Ople…………………….	No
“Osmeña (J)…………….	No
“Osmeña (S)…………….	Yes
“Revilla…………………	No
“Roco………….……….	Yes
“Sotto III……………….	No
“Tatad………….………	No
“The Senate President….	Yes

 

Davide: “What’s the vote of the Senate President?”

Pimentel: “May I explain my vote.”

Davide: “The Senate President may explain his vote.”

Pimentel: “I vote to open the second envelope. I vote to do so because that is the only way to determine whether or not the contents of the envelope are relevant or material to the case at bar. Because of this development, Mr. Chief Justice, I realize that the no’s have it. And therefore, I resign my presidency of the Senate as soon as my successor is elected.”

Davide: “Let us first announce the vote. [Applause] You have 10 yes votes and 11 no votes. The no votes have it.”

Tatad: “Mr. Chief Justice, before we adjourn, I move that we now approve the Journals of the Impeachment Court of January 11 and 12, 2001, respectively.”

Davide: “Any objection? [Silence] There being none, the motion is approved.”

Arroyo: “Mr. Chief Justice.”

Davide: “The Honorable Prosecutor Arroyo.”

Arroyo: “The Prosecution reserves its right to take whatever course we have to make and to report the matter to the House of Representatives.”

Davide: “The reservation is noted.”

Tatad: “Mr. Chief Justice.”

Davide: “The Majority Leader.”

Tatad: “I move that the Impeachment Court now stand on recess until two o’ clock tomorrow afternoon, Wednesday, January 17, 2001.”

Davide: “Is there any objection? [Silence] There being none, the motion is approved. The trial is suspended until tomorrow at two o’clock in the afternoon.”

Trial suspended at 9:41 P.M.

Prosecutors walked out

But before any formal suspension of the trial could be declared by Davide, something unexpected has already marred the proceedings. Members of the prosecution team, as soon as Davide announced the result of the voting, grabbed their things, stood up, took random steps, then left, heading for the exit.

The Senate’s session hall was in disarray. Most of the senators also stood up and converged according to affiliation at the middle of the session hall. One majority member, Senator Oreta, could be seen having an impromptu street jig, with obvious delight. Some members of the minority went up the podium to hug Pimentel, whose vote must have been a letdown for those who elected him to the top Senate post. The gallery added ruckus to the unexpected turn of events, as some joined the prosecutors in protest, and others erupted in jubilation.

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[1] Prime time TV programs had to be pushed back so that the networks could carry the proceedings live. The business side of TV programming would have no problem with this: the show that the impeachment trial has become was breaking viewer ratings records.