Defense cross-examination of Matibag was tactical, subtle — Sarmiento

[00:00:00]Joining us tonight is University of Saint La Salle constitutional law professor and former law dean Ralph Sarmiento. Welcome to the big story, attorney.

[00:00:12]>> Yes, Magandang gabi sis. Thank you for having me in your show.

[00:00:16]>> First question, was the prosecution able to prove Article 4?

[00:00:23]>> Well, prosecution I think specifically for today it was able to establish your institutional basis the fact in the long video you that they presented that this was also institutional in the sense that there was an action on the part of the NBI as an institution in investigating assessing the threat. So begin in the long new dimension. No, this is not only the work of some agents, but this is an institutional action on the part of the NBI. I wouldn't say that the evidence presented with respect to Article 4 is airtight. Like for example, there will be questions about your credibility evidence presented. You there was a question about the personal knowledge of the for example the director Matibag considering that he was just new in the NBI and of course he was not personally.

[00:01:30]Present during the initial stages of the investigation. So he could not be testifying straight or directly on on the initial stages of the investigation. So there are successes on the part of the defense and at the same time successes in the part of the prosecution. In in the last two days of the proceedings.

[00:01:53]>> Attorney much debated about even yesterday and also today was the statement of Lascañas which is actually in the ICC and triggered the grant of limited immunity by the ICC to Lascañas way back in November 2020. Could the prosecution have made more uh proven or attempted to prove the veracity of that statement come up in David >> Well, to put into into context, it was very clear that the prosecution explained that they were only presenting the affidavit of Lascañas as part of the testimony of NBI director Matiwag. So, they were not presenting the affidavit on its own merits to establish the contents or the substance of the affidavit itself. So, so the one the one the one possibilities for you. If you are presenting the affidavit in that particular context and only as a lead in in setting forth a direction in your in the NBI investigation, then it does not need to be it does not need to be notarized. It does not need to be but I'm verified or to be presented as as an evidence. Now, if it is to be presented as an independent or separate evidence separate from the testimony of director Matiwag, then it has to be but I'm going to you will have to establish its authenticity.

[00:03:24]You the identity of the person the affiant who executed the said affidavit must be presented on the stand.

[00:03:32]Otherwise, if he cannot be subjected to cross-examination, then the technically under the law and under the rules of procedure, the the affidavit to just be considered just a mere scrap of paper.

[00:03:45]So, it really depends on the purpose of the presentation of the said affidavit.

[00:03:51]All right, so you think that was a the proper avenue of presentation because the contents which were marked some of the phrase phrases were were quite damning if true.

[00:04:04]>> Well, well, technically, so uh either if you would be presenting the the contents, then you would have to present the one who personally executed the affidavit, the source, the very source of those statements. Now, if Director Matibag is just presenting the affidavit that says in a you know, this this was our lead in establishing or in analyzing, investigating whether there was a pattern, then um you know, it it should only be admitted for that particular and only for that particular purpose.

[00:04:37]>> So, if you say that there are still some and even the airtight, where could they have improved?

[00:04:46]>> Well, I think one of the one of the cuz I but but of course we must also understand that you impeachment trial cuz I it's a it's not only a judicial proceeding or a constitutional accountability you're not only presenting before the judges, you're also presenting before the people and the people of course are watching >> [laughter] >> Is that one consideration?

[00:05:16]>> Yeah, it's one consideration. Now, you're playing on the political theatrics. You're also playing on the evidence. So, for example, you uh for example, one of the supposedly if this is strictly a criminal proceeding or a trial proceeding in a judicial body like a court, the witness is supposed to testify only on personal knowledge about facts and he cannot make conclusory statements. He should not be making conclusions of facts or conclusions of law.

[00:05:44]But in this particular case, so Director Matibag tried to make some conclusions of law >> Yeah. and then when when there was an you know an objection on the part of the defense, the ruling was that they were they they they were allowed to remain on the record subject to the evaluation of the senator judges. Now so that serves a political purpose because it was presented to the people it was you know the people were made aware of those conclusions but technically in a court of law that should not happen.

[00:06:13]>> Mhm.

[00:06:14]>> So looking at it from the point of view strictly of judicial proceedings, that would be considered as a weakness in the point of view of law and judicial proceedings but in the point of view of politics it may serve the purpose because it was already made known to the people and it was not removed on the record because it strike strike off you know.

[00:06:33]>> Right.

[00:06:33]>> On the record but you know it was already presented to the people.

[00:06:38]>> Mhm.

[00:06:38]So I guess they also had to calculate how much the attention threshold of the public is.

[00:06:46]>> [laughter] >> Precisely. Precisely. Sometimes you know but then you have to present and then test the waters until you know until what up to what extent would you be admonished >> Mhm.

[00:06:59]>> by the by the judges or by specifically by the presiding officer. So if you are not being admonished then you are making such conclusory statements you are no longer you are no longer testifying but actually arguing the case for the for the prosecution.

[00:07:12]>> Mhm.

[00:07:12]>> So well it really depends on how the how the defense would handle such a situation or such an actuation by the by the witness.

[00:07:21]>> Where did the prosecution rather the defense score and chip at the presentation of the prosecution?

[00:07:32]>> I think the the the cross-examination was tactical. It was subtle. Minsan You know, you would not actually realize it though from the social You so mad not perspective not but on theatrical perspective but I I think it was tactical. So it proceeded from questioning your personal knowledge. You basis you like for example you you affidavit and everything.

[00:08:03]Okay um I think you you weakness done was too much reliance for example on the one sidedness not argument. When they were pushing that the NBI was one sided. I think that does not really serve the the defense case very well.

[00:08:25]Uh But I took okay. You cannot say now Now well you know what to do you know what I'm doing to but I don't so But I it's threat. Will have to be independently analyzed and independently handled. And I think NBI director was also able to explain them and Now there was also but I don't attempt to investigate the threat against the the vice on the life of the vice president except that now suddenly now there was no appearance despite the subpoena.

[00:09:02]There was no appearance on the part of the person subpoenaed. So the the investigation did not actually push through. So it's not like the You also but I don't he was saying saying now this is different. You the case of vice president Sara Duterte because in this particular case the the threat was made publicly in a live streamed video. So but I don't you but I don't rest if so look at all in the manner in concern and going in threat because it was already made publicly.

[00:09:33]>> And was Is correct for the defense to keep playing also the video?

[00:09:41]>> Well, it really depends on what they were trying to >> on them?

[00:09:45]>> It really depends on what they were trying to achieve, no? Um I think the what they were trying to achieve you pattern either they're playing on the context now theory context background and they want to to push through you can you can argument now this you know, portions of the videos can be spliced that you have to look at it from the context of how it was said, why it was said by the government. So, I think they were you know as part of their strategy well, it really depends now on how you want to to handle the case now it's a part of the strategy and plan of the defense team.

[00:10:24]>> Mhm. All right, attorney I'd also like to ask you about um some schools of thought that have come out that even if the VP is should she be convicted, can she still run? Are there options? Is there an opening there or is the is the constitution clear?

[00:10:48]>> Well, the constitution says now you you the punishment for or penalty for impeachment once you are convicted is removal and disqualification from holding public office in the Philippines.

[00:11:01]Now you you there are two theories here one there is conviction one one theory is that package deal you removal and disqualification from public office. And now there's also another theory which I actually you know proposed in the in some of my analysis that these two penalties are supposed to be separate.

[00:11:22]And that is why precisely for example even if there is let's say resignation on the part of the vice president the the Senate impeachment trial can actually proceed for purposes of determining whether she she should be convicted and then disqualified from holding public office in the Philippines. Cuz once there's a resignation, then it makes the the removal penalty as already the so it it is the one.

[00:11:51]But the penalty of disqualification is separate thing. So we we we have Yeah, we have precedence from other jurisdictions whereby uh after they they vote on the conviction which results in removal in a penalty of removal, they vote separately on the question of disqualification.

[00:12:14]>> So that will be a matter that the court will have to address as well.

[00:12:19]>> Well, ultimately ultimately, but I do believe that you know, the Senate being the the the sole judge of the the trial.

[00:12:30]Um I I think it has to make a stand and should not only be >> court will be the one to to decide on whether to vote on those two separate matters.

[00:12:40]>> Yeah, technically. Because I don't think the Supreme Court will have enough basis to say that they have to be packaged deal not the removal and then that is disqualification from holding public office in the Republic of the Philippines. Or if the if for example, the impeachment court decides that it's only removal, but there will be a separate vote for disqualification. And then what if for example, there was conviction for purposes of removal and then the vote for purposes of disqualification was not met the required number for purposes of disqualification. That's a possibility.

[00:13:18]And we actually saw that in some countries.

[00:13:20]>> I see. So you're you're saying hindi package deal hindi hindi claro actually doon sa constitution ano?

[00:13:28]>> Hindi hindi clear.

[00:13:29]>> But what makes you think that this what why is this your belief?

[00:13:35]>> Well, um >> What's the principle behind it?

[00:13:38]>> The the evidence may be sufficient for purposes of removal from public office for this particular for the particular term.

[00:13:49]>> Mhm.

[00:13:49]>> But the senators may find the evidence as not sufficient >> Mhm.

[00:13:54]>> for the perpetual and absolute disqualification from from holding public office of the respondent.

[00:14:00]>> Mhm. Kasi perpetual you I mean forever you know.

[00:14:02]>> Perpetual is not >> Right. It's kind of harsh.

[00:14:05]>> And not not only and that does not only apply to the presidency, it applies to all all public or government positions as well.

[00:14:13]>> Mhm.

[00:14:14]Well, we thank you so much for your interesting uh take and insights. That was University of Saint La Salle constitutional law professor and former law dean Ralph Sarmiento.