Retired Supreme Court Associate Justice Noel Gimenez Tijam has cautioned that the Senate impeachment court’s refusal to let Vice President Sara Duterte’s defense rebut evidence tied to three withdrawn impeachment articles could raise due process concerns, which he said could be grounds for a mistrial.
Tijam argued that because the prosecution’s testimonial, documentary, digital and other evidence remains part of the impeachment court’s records, the defense should be allowed to present countervailing evidence to challenge it in the interest of due process and fairness.
“Due process and constitutional justice require that the side of the defense should also be heard contravening the prosecution evidence still on record to insure fair play and discount arbitrariness,” Tijam wrote on social media.
“To deny the defense that right would be a ground for mistrial,” he added.
Tijam proposed two options for the impeachment court: allow the defense to present evidence countering the prosecution’s case on the three withdrawn articles or remove the related prosecution evidence from the records.
He warned, however, that expunging the evidence could carry consequences for the prosecution team. “The prosecutors can be cited in contempt of the Senate for wasting the time of the Senate or for obstruction of justice,” Tijam said.
The retired justice also said Congress could discipline the prosecution panel through suspension or removal for what he described as unethical conduct resulting from the use of public funds to pursue charges that were eventually withdrawn.
“The Ombudsman can investigate whether the wasteful use of millions of public funds to pursue a bogus and malicious prosecution which was later withdrawn amounts to plunder,” he added.
In its ruling, the court said Duterte would no longer need to defend herself against the withdrawn articles through the presentation of evidence before the Senate. It also lifted the sub judice restrictions on public discussion of those allegations, allowing her and her lawyers to address them publicly, subject to existing confidentiality and protective orders.
The court limited the defense’s presentation of evidence in the trial to the remaining unexplained-wealth article.
The defense had objected to the prospect of being unable to answer allegations already presented in the proceedings. Lead counsel Sheila Sison argued that the withdrawal should not determine how Duterte and her lawyers would present their case.
The prosecution, meanwhile, said narrowing the trial to one article would expedite proceedings and reduce the burden on the Senate, the respondent and the public.
The impeachment court’s decision leaves the senator-judges to determine whether the remaining unexplained-wealth charge warrants conviction, while the dispute over how the withdrawn articles and their evidence should be treated adds another procedural issue to the proceedings.
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