The threat of contempt of court in impeachment

With due respect to the impeachment court, that threat of contempt is more of a loud barking than a threat of actual biting. It is respectfully submitted that the Senate's sub judice rule is more honored in breach than in compliance.

The senator-judges themselves are violating the sub judice rule, together with both the prosecution and the defense. For all sides know that this is not only a battle of legal arguments. This is a war of public opinion. You cannot gag all the people all the time. The procedural rules cannot prevail over the substantive rights enshrined in the Constitution. Impeachment is not exactly like a court trial. Impeachment is not merely a judicial but a political proceeding. The people have the right to know and also the right to express what they think. They should not be gagged.

That impeachment sub judice rule may not survive a punctilious scrutiny by the Supreme Court when some legal wizard would pose a challenge that it abridges the citizens' freedom of expression, freedom of speech, and the fundamental right of the people to be informed of all matters of public interests. The vice president and her counsels keep on making press statements on the merits of the case. The senator-judges themselves make public statements on the substances of the issues being litigated. They should honor their own rules. This is a war in the arena of public opinion.

The same is true with both the defense and the prosecution. They are both guilty of violating sub judice. Even if both sides appoint official spokespersons, such minions are mere mouthpieces and the agents cannot be making statements not cleared by the principals. But the "unkindest cut of all" is the fact that many senator-judges themselves could not restrain themselves but make comments that show where their sympathies are.

The Senate impeachment presiding officer, the very articulate and audacious senator from Sorsogon, Francis Chiz Escudero, took the stand last week and declared: "With respect to prior statements or conduct covered by Rule 18, the court shall extend grace, exercise liberality and wipe the slate clean. Tabula rasa, so to speak. From this point forward, however, Rule 18 shall be strictly enforced,” he underscored.

Rule 18 of the Senate Rules of Impeachment in the Philippines is the sub judice rule that bars public comments or disclosures about the merits of an ongoing impeachment case. The sub judice rule covers the impeached official herself, the vice president, who appears to keep on violating it by making public statements attacking the Senate itself and its senator-judges. Let us see if the court can and shall punish the vice president.

While Rule 18 applies only to prosecutors, defense counsels, witnesses, and the impeached official, Escudero served notice to the spokespersons of both panels that they are covered by Rule 71, which invokes the code of conduct for public officials and the rule on indirect contempt. He reiterated his earlier suggestion that the parties appoint spokespersons that are not members of the legal team. But then again, these mouthpieces are mere instruments of the prosecution and the defense respectively.

Let us see if the impeachment court can punish the vice president who was reported to have said the following: “A strong case does not need the adornment of theatrics. A senator calling a witness ‘stupid,’ a lawyer calling me the ‘mastermind of a scam’ or another witness referring to me as a ‘brat,’ does not prove a case, nor does it produce evidence,” the vice president was reported to have said.

If she says that again, which is very likely, will the impeachment court declare her in contempt? If not, then only the simple folks are going to be gagged again. That would constitute another form of compartmentalized justice. The vice president is also a lawyer; will the Senate impeachment court refer her contemptuous statements, if at all, to the Supreme Court Bar Confidant or the Integrated Bar for investigation? Let us cross the bridge when we reach there.

At the end of the day, the Senate can never deprive the people of their freedom of speech, of the press and of expression, much less the right of the people to know all matters of public interests. The Senate cannot be higher than the Bill of Rights, much less the sovereign Filipino people.