PCIJ opposes subpoena request

THE PHILIPPINE CENTER FOR INVESTIGATIVE JOURNALISM (PCIJ) submitted on Wednesday, March 21, 2012, an eight-page opposition to the defense panel’s request for the Senate Impeachment Court to issue a subpoena testificandum et duces tecum for PCIJ Executive Director Malou Mangahas, Multimedia Director Ed Lingao, and Research Director Karol Anne Ilagan.

This opposition prepared by PCIJ counsels Solomon F. Lumba and Nepomuceno Malaluan was received by members of the Defense and Prosecution panels, and the secretariat of the Senate sitting as impeachment court also on Wednesday.

Atty. Lumba is a bar topnotcher, and a professor and former college secretary of the University of the Philippines College of Law.

Atty. Malaluan is a trustee of the Action for Economic Reforms and co-convenor of the Right to Know, Right Now! Coalition that is advocating the passage of the Freedom of Information Act.

Here are some excerpts from the opposition filed by the PCIJ:

1. The purpose of the Request is to “disprove any alleged willful omission of the entries in his SALNs and likewise show good faith in filling up the same.” Obviously, this is to be done by showing that omissions and inaccuracies in the SALNs are rampant among those in government. Hence, any such omissions and inaccuracies in Respondent Chief Justice Renato C. Corona’s SALNs cannot be attributed to willfulness or malice on his part.

2. In legal parlance, this is called the “Everybody Does It” defense ? since everybody does it, everybody is excused. In United States v Oldbear, Oldbear was prosecuted for using Indian tribal funds to pay for the repairs of her vehicle and the purchase of another. The district court convicted her for embezzling the funds. On appeal, she contended that the district court violated her constitutional rights by excluding the testimony of witnesses who also received tribal funds for personal purposes. The appellate court, in affirming the conviction, held that:

Here, the district court aptly characterized Oldbear’s proffer as an attempt to establish an “everybody-is-doing-it defense.” ROA Vol. 4 at 352. Essentially, the witnesses would have testified that they, like Oldbear, were allowed to use tribal funds to pay for personal transportation expenses. But only Oldbear’s actions and state of mind were material to her guilt. And the fact that others may have been the beneficiaries of improper conduct does nothing to excuse Oldbear. The witnesses’ testimony was a sideshow from which the jury could have gleaned little valuable information other than additional instances of sloppy or corrupt management of the Emergency Assistance Program.

3. In the instant case, as in Oldbear, only Respondent’s actions and state of mind are material to his guilt. The fact that there may have been others who benefitted from their improper conduct would do nothing to excuse the Respondent. Thus, any evidence to establish such a defense would be irrelevant and therefore inadmissible under Section 3 & 4, Rule 128 and Section 4, Rule 21.

Assuming arguendo that the “Everybody Does It” defense is relevant, the requested testimonies, documents, or video will not establish such a defense. Hence, they are irrelevant and therefore inadmissible under Sections 3 & 4, Rule 128 and Section 4, Rule 21 of the Rules of Court.

4. Based on figures from the Civil Service Commission, the estimated number of government personnel as of the 2nd quarter of 2010 is around 1.3 million. According to the PCIJ report titled “SALN: Good law, bad results” and “SALN: Great filers, big barriers” cited in the Request, the PCIJ did a “cursory review of the SALNs of about 1,500 senior elective and appointive officials since 1998”. It found that “SALNs are mostly deficient in form and substance, with the habitual and seemingly non-disclosure pointing to flagrant sins of commission instead of mere sins of omission.”

5. Even if the PCIJ reports were based on a review of the actual SALNs filed by those in government, it is doubtful whether a cursory examination of only 1,500 SALNs over 14 years is sufficient to establish that “Everybody Does It” among the estimated 1.3 million personnel currently in government. Thus, all that the requested testimonies, documents, and video can do is to establish that particular individuals filed SALNs that are deficient in form and substance. Accordingly, such testimonies, etc. are irrelevant and therefore inadmissible under Section 3 & 4, Rule 128 and Section 4, Rule 21.

The Request is unreasonable and oppressive under Section 4, Rule 21 because it: (1) attempts to make the Oppositors the private investigators of a party; (2) essentially treats the PCIJ as the official custodian of SALNs; and (3) requires Oppositors to bring to the Honorable Impeachment Court a very large volume of materials, the bulk of which are irrelevant because they cannot be authenticated.

6. The testimonies, documents, video, and news reports mentioned in the Request are or will all based on SALNs that the PCIJ was able to secure from the official custodians thereof upon request and payment of the appropriate fees. These SALNs are similarly available to every citizen. It might be more appropriate for the Respondent to direct the Request to these official custodians or do what the PCIJ did ? go to the official custodians, make a request, pay the appropriate fees and, after securing the SALNs, do research and analysis. The Respondent, or any other party for that matter, should not be allowed to free ride on the efforts, work, and journalistic portfolio of the PCIJ and, in so doing, make it that party’s private investigator, especially when such can be avoided through a little foresight and some hard work.

7. Furthermore, the Request requires the Oppositors to bring around 1,500 SALNs and related documents covering a span of 14 years. This is a very large volume of materials. The SALNs alone, stacked and measured from end to end, would stretch around 20 feet in all. This excludes as yet a separate pile of the request letters, follow-up letters, and replies from various government agencies that are SALN custodians that the PCIJ has gathered in the last 14 years. And even if brought, the SALNs would be of doubtful relevance since they are not original or certified true copies. The PCIJ, through the Oppositors, cannot authenticate them since, as has been said, the PCIJ is not the official custodian of SALNs. For these reasons, the Request is unreasonable and oppressive under Section 4, Rule 21 of the Rules of Court.

The balancing of interests between those of the Respondent, the press, the PCIJ, and the Oppositors calls for a denial of the Request.

8. In the course of the proceedings, the Honorable Impeachment Court, in the exercise of its Constitutional power to solely try and decide this case, has balanced competing legitimate interests in ruling on a number of applications for subpoena. It denied the issuance of subpoenas to members of the Supreme Court in consideration of the principle of separation of powers. It denied the issuance of subpoenas to members of the House of Representatives in consideration of inter-parliamentary courtesy. It also denied the issuance of subpoenas to members of the Respondent’s family in consideration of marital and filial privileges.

9. The instant Request calls for a similar balancing between the interests of the Respondent, the press, the PCIJ, and the Oppositors. In the 22 years since its founding, the PCIJ has earned a reputation for probity and independence, both here and abroad. It has won over 150 major awards, including nine National Book Awards, a Catholic Mass Media Award, more than two dozen awards from the Jaime V. Ongpin Awards for Investigative Journalism, the Agence France-Presse’s Kate Webb Award for exceptional journalism work in difficult or dangerous circumstances, the Asian Journalists Association Award for Press Freedom, and the “Breaking Borders Award” for outstanding web projects that “demonstrate courage, energy, and resourcefulness in using the Internet to promote freedom of expression” from Global Voices and Google.

10. Considering the highly political circumstances that attend impeachment cases such as this one, and the adversarial nature of the proceedings, there is a reasonable expectation of exposing the PCIJ and the Oppositors to unfounded conclusions of partisanship if presented as a witness by either party. The possibility of reputational damage not only affects the PCIJ and the Oppositors in their private capacities, but also the press as a whole to which the PCIJ belongs.

For a downloadable copy of the PCIJ’s opposition, as submitted and received by the impeachment court and the defense and prosecution panels, please click here.

Here are some of the stories that have come out regarding the subpoena.

• ABS-CBN News: PCIJ to CJ defense: Do your own research
• RAPPLER: PCIJ to Corona: ‘Everybody does it’ is no excuse
• GMA News Online: PCIJ to Corona camp: Don’t ‘ride’ on our work
• Interaksyon: PCIJ opposes subpoena on Corona trial, says ‘Everybody Does It’ defense irrelevant