‘Only a cheater afraid of the rules of the game stacks the deck with five aces’

Editor’s Note: Rep. Celina Babauta (D-Saipan), who chairs the House Judiciary and Governmental Operations Committee, delivered the following remarks in the Senate Chamber during the afternoon session Monday, February 28, 2022. It is being published in two parts due to its length.

Second of two parts

As to Rule 9 Record of Articles of Impeachment.

(e) In transmitting the House Impeachment Record to the Senate Clerk, the House Clerk shall certify that the record is timely, complete and contains all documents and materials required by these impeachment rules.

(2) – If the House Clerk fails to submit the appropriate certification within the [48]-hour period, then the House Impeachment Record shall be automatically stricken and the impeachment matter shall proceed in the Senate without an impeachment record and the Impeachment Prosecutor shall not be allowed to appear or participate in the Senate proceedings and the Senate hearing in any manner whatsoever. The Articles of Impeachment shall be presented to the Senate for final verdict and judgement in accordance with Rule 26 (Final Verdict and Judgment).

This proposed rule is unconstitutional because any technical failure will result in the House losing its ability and authority under the applicable statutes and the CNMI Constitution to prosecute the case before the Senate.

As to Rule 9 (g)(1) and (2) – The certified written request to either strike or supplement shall contain a copy of each document, audio recording and other material that the Impeached Official would like to have included or excluded as part of the House Impeachment Record together with a detailed explanation of why it is appropriate.

Ni månu na demokrasia yan sisteman gobietnamento este na areklamento ni ma susesede na I ma inbestitiga, I ma akukusa, guiya para hu ayik yan hu detetmina hafa na dokumentu siha malago’ña para hu ma inklusu komo ebidensia gi anai guiya ma kokotte?

As to Rule 12. Impeached Official’s Appearance and Answer.

However, neither the impeached official, nor the legal counsel for the impeached official, shall be allowed to appear or participate in any of the Senate proceedings. The Articles of Impeachment shall be presented to the Senate for final verdict and judgement in accordance with Rule 26. If the impeached official, or legal counsel for the impeached official, appears and admits to any of the grounds for impeachment, then, without further proceedings, judgment shall be entered removing the impeached official from office.

This proposed rule appears to provide that a failure on the governor’s part to file an answer within the required time means the governor or his counsel cannot participate in the Impeachment Hearing and the next step is to automatically go to Rule 26 – Closing Arguments. This unconstitutionally and expressly denies the House impeachment prosecutor to present its case if he or she so chooses, especially since the failure to answer by Gov. Torres is automatically deemed to be a denial of all the charges enumerated in the House Impeachment Resolution. Moreover, this proposed automatic default judgement to a denial of any charges by Gov. Torres is the opposite presumption in courts where the failure to respond is deemed to be more of an admission or guilt—hence default judgments are declared against the party that fails to answer.

Moreover, there is nothing in the proposed rules that seem to hold the governor to any standard of accountability. His written reply to any charges is not mandated to be submitted under penalty of perjury and the fact that the Senate president has chosen only one person as an Impeachment prosecutor is taken directly from Gov. Torres’ demands upon the JGO last Dec. 10 wherein he wanted to select who he gets to investigate him, didn’t want to be put under oath, and he wanted to select where and when his investigation will take place.

These rules are so lopsided and unreasonable that they violate the fundamental tenets of due process. These rules are intended to preclude the House of Representatives from having adequate opportunity to plead its case on the merits. Åntes de hu fatto magi I hayi para hu presenta I kausa ginen I sanpapa’ na guma’ esta en hiluk lapesña, en titik papetna, en gedde kannaiña, ya en tape pachotña. Pot para en fan libiano, para hafa båsta en gåsta tiempon miyu para en na’ guaha Senate hearing. Para hafa?

Only a cheater afraid of the rules of the game stacks the deck with five aces. It is clear that this Senate body will prosecute Gov. Torres on a set of rules that are unlawful, unconstitutional and, more importantly, slanted in his favor. The fix is in. And to think that these rules are to be used as a template for future proceedings is preposterous. Rule 7 is so problematic as it is an infringement on sole Constitutional prerogative of the House of Representatives to initiate impeachment proceedings and causes a chilling effect that it will deter any future speaker from initiating impeachment proceedings, knowing that he will have to serve as an impeachment prosecutor.

The burden of proof is left unstated in both national and local impeachment proceedings because ultimately, it is left to the individual conscience of the respective body. The burden of proof should be nothing more than common sense!

Whatever former governor Benigno R. Fitial did nine years ago pales in comparison to the amount of money that Gov. Ralph DLG Torres and Mrs. Diann Tudela Torres have squandered from the CNMI Treasury.

These rules basically create a theory of how Gov. Torres is not guilty and then work backwards from there, creating such arbitrary nuisances such that if the House clerk does not paginate the documents, or if he or she fails to request for and get the permission of the Senate president in order to submit paper evidence, can possibly terminate the entire proceeding in order to fit your predisposed conclusions.

Si yu’us ma’åase’ yan buenas dias.

CELINA BABAUTA (Special to the Saipan Tribune)
Celina Babauta is a member of the CNMI House of Representatives of the 22nd Legislature, representing Precinct 1.