Whatever goodwill Senator Juan Ponce Enrile had earned during the first day of the impeachment proceedings totally evaporated today when he ruled that the motions for “subpoena duces tecum and ad testificandum” filed by the prosecution against the family of Chief Justice Renato Corona are covered by “self-incrimination clause,” “marital and familial privilege” and therefore the Senate cannot issue the subpoenas.
As regards the “ad testificandum” the rule may be invoked, but only by the parties themselves, but the “duces tecum” (documenary evidence), is not covered by either the “self-incrimination” doctrine, or of the “marital privilege communication” principle because these are not testimonial evidence.
Furthermore, the issuance of subpoenas is a ministerial duty of any tribunal. The right to object to them lies with the party and can be raised only at an opportune time, i.e., during the trial and not prior to it and it cannot be ruled upon motu propio by the Senate or by the Court but have to be invoked by the party that enjoys the privilege. The entire Senate which ratified the ruling of Senator Enrile did not know any better.
“Self-incrimination” and “marital communication” privileges should be invoked only by the party that is affected. And because these are personal rights, the same can be waived. Sen. Enrile cannot invoke these rights ahead of the parties who can invoke and assert only the same during court hearing and on questions directly propounded to the witness that clearly put him/her into the prospect of incriminating himself/herself or violate the marital/filial privilege. A blanket acceptance of the privilege without the specific question that triggers the invocation of the privilege is not what the rule contemplates.
Sen. Cayetano was more in point when he said that the witness can only invoke it at opportune time and he cited Wigmore that the privilege have exceptions. He even went to say that it should not cover the in-laws who was also requested by the prosecution to appear during the hearing to shed light on his being a registered owner of a piece of property claimed to be part of those acquisitions of his father-in-law, the embattled chief justice.
And while Senator Enrile admonished the prosecution and the defense during the first day of the trial for litigating the impeachment in the public arena, it was quite obvious that he was pandering to the same public acclaim himself by delivering a lecture on the concepts of “marital and filial privilege” and the doctrine of “self-incrimination” through the Senate clerk in an epic misplaced erudition.
My faith in the prosecution though and my initial admiration of Congressman Neil Tupas had been dashed. To think that I have volunteered to work with the prosecution for free and to lend my trial experience to it but without getting any response from my offer speaks volume of the team’s overconfidence. I was hoping that any of the prosecutor would stand up against Sen. Enrile and put out that smirk in his face by telling him that he is a legal fraud. I could have texted my position to any of the prosecutor, but I have no access to anyone of them.
I can only pray for a much lesser disaster in the days to come!
But it was obvious that my professor, Justice Serafin S. Cuevas was grandstanding.