The trial of an ex-president

If, suddenly, Erap decides to keep silent and not defend himself in protest against an unfair judicial process, I would think the system would really break down. If he says he won’t play the game, explain himself, question the witnesses or dispute the evidence against him, we would be unable to judge him.  We would know the crime but not the person.  Can we condemn a person we do not know?

The situation we face today however is different from this.  Erap has ordered his lawyers to withdraw from all the cases filed against him, but he is not keeping silent. In fact, he has made himself available to the mass media, straining to explain his actions and to voice his deep reservations about the judicial system in which he is being tried. The terrain of engagement shifts to the public arena, where his lawyers cannot protect him.

The trial at the Sandiganbayan Court will go on, and, in the absence of lawyers of his own choice, Erap may choose to be an active or passive participant.  The court may prevent media from speaking to him while he is under detention, but nothing can stop his political allies and members of his family from talking to media.

Instead of attorneys, Erap will have to rely on mass organizers and on friendly elements in the media to translate his words into political action.  He will need advisers to help him sharpen his rhetorical skills when he answers questions from media. It would help if he has influential friends in the military and the police who can neutralize the armed forces when the time comes.  But if the mass organizations supporting him are not presently in a state of mobilization, it will be very difficult for Erap to activate them now and to wage a political struggle while he is in prison.  In self-defense, the government would be forced to hunt his leaders down and lock them up as well.

I do not believe this is the option Erap was contemplating when he dismissed his lawyers.  He knows that the political route is fraught with danger.  He cannot afford to completely abandon the legal arena, where he can call upon the counsel of lawyers and the support of sympathizers in both houses of Congress. The moment he calls for the overthrow of the present government, none of his powerful allies in public positions would be able to help him.

What is he up to then?  He has not repudiated the system that is trying him, but he has questioned the impartiality of the Sandiganbayan and the Supreme Court justices. This move may accomplish two things for him.  First, it may take away public attention from the fatal slip he made in the TV interview with Pia Hontiveros where he unnecessarily volunteered the information that he had indeed signed the name “Jose Velarde” on bank documents. Second, and more importantly, it may oblige the judiciary to be more lenient and accommodating in deciding the motions and petitions filed on his behalf.

Foremost of these motions are Jinggoy Estrada’s petition to be released on bail, and Erap’s petition to be allowed to leave for the US for a knee surgery.   Both have been denied.  The reason is obvious: the continued detention of Erap and Jinggoy is the court’s best guarantee that their lawyers will press for a speedy disposition of the cases against them rather than resort to dilatory tactics.

To the surprise of the judges however, the Estrada lawyers are not going for a speedy trial.  They are exhausting all the legal means at their disposal to protect the rights of their clients and to keep the trial proper from taking off.  They have questioned the constitutionality of the anti-plunder law, the very law on which the main case against their client hangs. They have opposed the creation of a special division of the Sandiganbayan Court for the sole purpose of hearing the cases against Estrada.  They have complained against the selection of the members of this division by appointment rather than by a raffle, as is customary in Philippine courts. And they have protested a continuous trial schedule that orders them to appear in court 3 times a week.

The creation by the Supreme Court of a special division to try the cases against the former president, to my mind, is not necessarily inimical to the interest of the accused.  But, given the politically sensitive nature of the case, it would have been better if the judges were chosen at random.  The present set-up gives the lawyers for the accused every reason to demand the withdrawal of judges they perceive to be incapable of fair judgment.  As to the decision to hold a continuous trial entailing 3 sessions per week, I think the schedule is reasonable provided the lawyers are given enough time to rearrange their commitments so they can prioritize the Estrada trial.  I understand they would be happy with a twice-a-week schedule of hearings instead of the 3 hearings per week decided by the Sandiganbayan. I do not believe that is an unreasonable request.

It is foolish to think that the trial of a former president can be treated just like any other case.  Whether we like it or not, this case has unavoidable political implications, and we must tread carefully every step of the way. Depending on how we manage it, this trial can blow up the nation or it can set it on the road to full institutionalization.  To be able to bring a former president to trial for corruption is a huge gain in political maturity we cannot afford to waste.


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