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Why Manny Curato was the unsung witness in Erap’s impeachment trial

(Article published in the January 2, 2002 issue of TODAY, Business Section)
Nobody could take away from Kissa Ocampo the singular achievement of inflicting the mortal wound on former President Joseph Ejercito Estrada’s defense during his impeachment trial. Hers was the testimony that, in no uncertain terms, showed the highest official of the land and reel champion of the underdog engaging in a cheap trick of hiding his identity and concealing his millions. But if Kissa’s testimony had the impact it did, it was because, in no small measure, of the corroborating testimony of her fellow bank officer, Atty. Manuel Curato, one year ago to the day.

Manny Curato was the unsung witness of the impeachment trial. His testimony was what provided Kissa’s with bedrock credibility. And the tribute to the futility of shaking him came from the floor of the impeachment court when defense counsel Jose Flaminiano, using the technical argument of materiality as his cover, told the presiding officer, "We have no cross-examination, Your Honor."

And not a single senator-judge, not even those who had earlier in the afternoon of January 2, 2002, sought to destroy the credibility of Kissa, dared to question him.

Two legal points raised by Senator-Judge Juan Ponce Enrile in his interpellation of Kissa Ocampo should have been asked of Manny Curato. But, trial technique-wise, it was a smart tactic not to ask them of Manny Curato. The first was on the documentary stamp tax. The good senator-judge wanted to know if the stamp tax was paid on the investment management agreement that established the former President’s account with the trust department of the bank.

What did the paying of the documentary stamp tax have anything to do with the signing by the former President under a fictitious name? Absolutely nothing. But the question is one which a trial lawyer would ask. The purpose was to unnerve Kissa, since she presumably was not familiar with the documentary stamp tax law (in fact, not many lawyers are) and instill in her the fear that maybe her testimony would be thrown out because there was a defect on the document she was talking about.

But such a sortie, the good senator-judge must have known, would not have gone anywhere with Manny Curato. Either a documentary stamp was affixed on the investment management agreement or not. If it was, then the question accomplished nothing. If it was not, Manny Curato would have simply quoted Section 201 of the Comprehensive Tax Reform Law which Enrile himself shepherded in the Senate. Under that section of the tax code, a document which is required to be stamped cannot be admitted or used in evidence in any court only "until the requisite stamp or stamp shall have been affixed thereto and canceled." Manny Curato could simply have pulled out the requisite stamp from his pocket and, right then and there, affixed and canceled it to the discomfiture of the good senator-judge.

The other legal question of then- Senator Enrile was about the notarial acknowledgment in the investment management account. Kissa Ocampo testified that the former President signed the document at Malacanang, therefore in Manila. The acknowledgment, it appears from the senator-judge’s questions, indicated Makati. So, wasn’t this a disaster? This, too, was a legal point that was more appropriately asked of a lawyer than of a lay witness. But for tactical reasons the good senator-judge asked it of Kissa Ocampo, the lay person, but not of Manny Curato, the lawyer.

The good senator must have known that he was engaging in some sort of sophistry that could confuse a lay person but not a veteran lawyer like Curato. Curato would have easily pointed out that there is obviously a distinction between a jurat and an acknowledgment. A jurat, which is seen in affidavits, for instance, testifies to the affiant’s signing and swearing before the notary public. That demands that the place of notarial action be the same as the place of signing. But an acknowledgment, which is found in contracts, is simply a statement by the notary that the parties had acknowledged to him that they executed the instrument. The place where the acknowledgment was made by the parties need not be the same place where the parties executed the instrument. Clearly, Curato could have simply smiled away the conflict the good senator was making much of.

It was basic trial strategy that prompted the "no cross, no questions" response from the Estrada camp to the Curato testimony. Silence in this, as well as in other cases, is indeed golden. Just how much gold is anybody’s guess.