Let Leila join Senate teleconferences

Last week, the Senate amended its rules to allow the use of “teleconference, video conference, or other reliable forms of remote or electronic means” in plenary sessions and committee hearings. The coronavirus pandemic made teleconferencing in the Senate’s work necessary; teleconferencing in its turn necessarily raises the question: Does it apply to all senators?

Sen. Leila de Lima is in detention, on trumped-up charges. But regardless of whether one believes the charges to be completely made up or to be evidence-based, she remains a senator; she continues to work with her staff, file bills, take part in public discourse as a member of the Senate. But she cannot take part in Senate debate, she cannot join hearings of the social justice committee she chairs, and she cannot vote.

She could not do any of these, in the almost 40 months since she was detained, precisely because she was in detention. In spite of the constitutional presumption of innocence, Philippine jurisprudence (surely correctly) holds that a detainee’s liberty must be restricted. In the words of Trillanes v. Pimentel: “Confinement restrains the power of locomotion or actual physical movement.”

But adoption of Senate Resolution No. 372 opens the possibility that, while her “actual physical movement” will remain restricted, and without her needing to leave her detention quarters, De Lima can join other senators in plenary sessions or committee hearings through video or even audio-only conferencing.

This was a possibility first raised by Senators Franklin Drilon and Panfilo Lacson last August; it is a necessity today.

Senate President Vicente Sotto III has been much more considerate of De Lima’s dignity as a senator in custody than his predecessor, but last week he rejected the possibility of De Lima joining the Senate’s video conferences by invoking—not the Senate’s powers and responsibilities—but the jurisdiction of the courts. He said that “only the courts and the Philippine National Police would have jurisdiction over her.”

This is an unfortunately narrow view of the matter.

Despite his residual reputation as a political lightweight because of his background in show business, Sotto actually enjoys his peers’ respect for his readiness to protect the Senate’s institutional dignity. After he was elected president of the Senate in 2018, he paid a long, cordial, and productive visit to De Lima. When the police suddenly showed up in the Senate’s parking area later that year to arrest Sen. Antonio Trillanes IV, he strongly criticized the lack of courtesy and allowed a stand-off that lasted for weeks. And earlier this year, he defended the right of the Senate committee on public services to hold a hearing (aired nationwide) on the ABS-CBN franchise over the vociferous objection of Speaker Alan Peter Cayetano.

He should consider De Lima’s participation in Senate video conferences also as an issue involving institutional dignity. Without claiming special privileges for the detained senator, he can make the case that, because both the coronavirus pandemic and the available technology now make e-participation in sessions and hearings possible, De Lima remains fully under the jurisdiction of the courts and the police while doing the work she was elected to do.

To be sure, court rulings are not as unequivocal. Trillanes v. Pimentel, for instance, notes somewhat ruefully that “in Jalosjos, which was decided en banc one month after Maceda, the Court recognized that the accused could somehow accomplish legislative results.” But in People v. Jalosjos itself, we read: “Succinctly stated, accused-appellant has been discharging his mandate as a member of the House of Representatives consistent with the restraints upon one who is presently under detention. Being a detainee, accused-appellant should not even have been allowed by the prison authorities at the National Penitentiary to perform these acts.” What this means, legally, is that De Lima’s potential participation in the Senate’s online sessions and hearings presents an opportunity for the courts to clarify their position. It should not be the Senate’s view that the courts will declare those sessions and hearings off-limits to De Lima anyway; rather, a Senate jealous of its members’ rights and responsibilities should force the courts to make a declaration.

What this means, politically, is that — at a time when a mere agency like the National Telecommunications Commission can ignore both houses of Congress; during a public health emergency where the executive department’s high-profile deployment of a senator-aide diminishes the Senate itself; in a crisis where its extraordinary resolution seeking the health secretary’s resignation was blithely set aside — the Senate has the opportunity to assert its institutional independence.

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