ON MONDAY, 15 JANUARY 2001, the Philippine Daily Inquirer published a Commentary in its Op/ED Section entitled JUSTICE HURRIED IS JUSTICE BURIED (my regular Monday essay in the Official Newspaper of Civil Society in that period, when the biggest issue was how the pro-Erap Senators would acquit him on all four Impeachment Charges without all looking like Goats. The term "CRAVEN ELEVEN" had not yet born on the weekend that I wrote this piece...DJB)--
JUSTICE HURRIED IS JUSTICE BURIED!ON TUESDAY, 16 JANUARY 2001, the Impeachment Trial of Joseph Estrada effectively ended when ELEVEN PRO-ERAP SENATORS voted not to open a SECOND ENVELOPE of evidence from Equitable PCI Bank and the Prosecution team of Joker Arroyo walked out on the trial. On this same date, on that same evening, a crowd began to gather at the EDSA Shrine on the corner of Epifanio de los Santos and Ortigas Avenues, and BEFORE I had a chance to write my next weekly essay for the newspaper, we already had a new President.
PDI Tuesday, 15 January 2001
EIGHT senator-judges would be enough to guarantee an acquittal of the President on each of the four charges for which he is being tried. But each one of them must deny the justice of conviction four times in a row when the cock crows on Erap’s Judgment Day, slated for February 12. (Incidentally, it was on February 12, 1999 that American President Bill Clinton was acquitted in his own impeachment trial.)
This would be a politically sensitive situation for the acquitters. Since a separate verdict must be rendered for each of the four charges against Erap, each acquitting senator-judge, some say, would want to cast at least one vote for conviction to give an appearance of impartiality. By acquitting Erap on only three of the four counts against him, they could each claim, fallaciously, to be no weaker than St. Peter, who denied Christ a total of three times. But how many senator-judges are needed so all acquitters can do this and still prevent conviction? Eight is obviously too few.
A certain well-known formula, credited to the French mathematician Blaise Pascal, gives the number of ways that a set of N things can be combined into subsets containing M of them. (It’s not for the arithmetically faint-of-heart, so I won’t state it here, but it is a widely used formula taught to math students. You can even use it to calculate the odds of winning at jueteng, the illegal numbers game that started all this. Using Pascal’s formula and jueteng rules, the number of ways you can choose 2 numbers from 1 to 37 simplifies down to be 37 times 36 divided by 2, or 666. So the odds of winning with a single jueteng bet is one in 666, the so-called “devil’s number” in folk lore.)
Anyway, back to the problem of the supposedly pro-Erap senators. If only 9 are available for acquittal, then Pascal’s formula (or even a little common-sense figuring) says that there are 8 unique ways of selecting a subset of 8 to vote for acquittal from among the 9. But only 4 of the acquitters can actually vote for acquittal on 3 of the 4 impeachment charges. That still leaves 5 of them who might have to answer to St. Peter for 4 successive votes of acquittal. (A dermatologist could make some careful measurements to decide who those infamous 5 would be. Or they could cast lots for the pudendum-covering garment.)
Next, naughtily assume that there are 10 secret emulators of Judas, who want to masquerade as Peter, among the senator-judges. Now common sense cannot easily be used to figure out the number of ways that groups of eight could be chosen from among the ten. But if you know Pascal’s formula you can still do the arithmetic in your head and discover that there are 45 ways of ensuring an acquittal by 8 on each of the four counts. Among these, 4 different pairs of senator-judges can safely vote for conviction on one article. But that still leaves 2 of the 10 having to vote for acquittal on all 4 counts.
Finally, if 11 senator-judges can be relied upon for this carefully orchestrated hypothetical collusion, Pascal’s combinatorial formula says that there are 165 ways of choosing a group of eight from the eleven to vote for acquittal. Four of these combinations have trios from among the 11 voting for conviction on at least one of the four counts, allowing all 11 to cast votes of acquittal on no more than three counts. Of course, there can be no slip-ups or betrayals in this acquittal scenario.
I fervently want to believe that no senator will feign blindness to the mountain of evidence and testimony that paints Erap’s presidency as a criminal enterprise, and that none would conspire in the manner just described. In our balimbing republic that would be recklessly risky anyway. Even if an execrable conspiracy like this were organized, one or more of the participants might get ideas about becoming a hero of history and turn the others into mustaschioed goats. As Pascal himself once wrote, “The heart has reasons that reason knows nothing of.” So I hope for some pleasantly surprising verdicts.
Cynical speculations predicting “guilty but acquitted”, come from the manifest arrogance of some senators who shamelessly lawyer for the parties. Just because they are judges does not make them gods full of conceit. Are there no limits at all to their powers in the trial? Why does Davide allow senators to argue with witnesses and twist their testimonies? As Chief Justice of the Supreme Court, he should not feel inferior to the senators, some of whom may have plenty of training in the law but openly profane it.
A near-unanimous vote in either direction is essential to help heal the nation in the post-trial period. A verdict of 15-7 or 14-8 or even 11-11 could be a recipe for national disaster. Such a “division of the house” would rip this country apart. Each senator represents a large political constituency. Such a narrow vote would guarantee a long period of devastating national strife.
So far, the tribunal has carefully avoided any divisive vote on the procedural issues, prudently going into executive sessions whenever that danger has arisen. So, why risk virtual civil war over the main question by imposing the artificial deadline of February 12? Political ambitions be damned!
The search for consensus should be pursued till the truth is made manifest and the senators’ voting, superfluous. The trial ought not to be a contest of political wills and bloated egos. Let all the evidence and testimony be produced. Make Erap testify as he has bragged he would. Subpoena the President, if necessary. Indulging his cowardice to face his accusers and disprove the charges is most unfair to the people and mocks the Constitution. The trial’s outcome should not depend only on technicalities, dirty lawyer tricks, delaying tactics and time pressure.
Some people say that justice delayed is justice denied. But I say, justice hurried is justice buried, and the nation’s future with it.
HOW THAT HAPPENED with such breathtaking speed is one of the greatest mysteries of the Second Envelope and the Second EDSA. Remember that it was only in early October, 2000 that Luis "Chavit" Singson sang on the common criminal enterprise upon which he and Erap had embarked; less than two weeks later Jaime Cardinal Sin had called on Erap to resign and GMA obediently quit as Social Welfare Secretary and joined the resignation clamor; by November Erap had been impeached, by December his trial had started, Clarissa Ocampo testified, the Craven Eleven voted, Joker quit, Edsa rallied, and by Saturday, 20 January 2001, Chief Justice Hilario G. Davide had declared the Presidency vacant by virtue of Erap's PERMANENT DISABILITY as attested to by GMA's fax, and had sworn in GLORIA MACAPAGAL ARROYO as President.
WHY THE CRAVEN ELEVEN SENATORS voted not to open that Second Envelop of Evidence, is also a mystery since it later turned out to be something that would have been beneficial to Erap's defense--an affidavit from a certain Jaime Dichaves (an Erap crony) claiming as his, the Jose Velarde account which Clarissa Ocampo said belonged to Erap. I think it was because they wanted to next exclude Ms. Ocampo's very damaging testimony against Erap, possibly on the grounds that they were irrelevant and immaterial to the actual impeachment charges, as their continuing objection to it claimed, but which had not been ruled on by Davide. Those legalities will of course never be settled because in effect, Chief Justice Davide HAD LOST CONTROL of the greatest political trial in judicial history by not ruling one way or another on Ms. Ocampo's crucial testimony.
RESTORATION OF A PERSONAL ZION? Why had Davide not ruled on Clarissa Ocampo's testimony by the middle of January 2001, when she had given her dramatic testimony in December before Christmas 2000? He easily could've and should've. But he didn't! Why? Why? Is it because he was being pressured to do so by the Palace and the pro-Erap Senators but he wouldn't do it? Yet he ALLOWED them to do that thing with the Second Envelope. Perhaps he got back at them by ignoring the Constitution a few days later and swearing in the Vice President. It was the only way he could recover from the greatest failure of his judicial career, after what some have called the most brilliant and competent handling of a high profile trial in Philippine Judicial History. Yet Davide's courage faltered at the Impeachment Trial, in my opinion. Later, in grief and regret, he would indulge in the personal vainglory of good intentions by accepting Gloria's fax to an oathtaking and the hellish reality of an illegitimate President put there by a judicial putschist restoring a personal Zion.