Political but fair

It is obvious to anyone who has been watching the impeachment trial at the Senate that this is not an event non-lawyers would find easy to comprehend or, even less, feel confident to wade into. Despite the laudable effort of the presiding officer, Senate President Juan Ponce Enrile, to make them less rigid and technical, the proceedings have not been easy to follow. The whole discursive field remains inhospitable to those without any training in courtroom procedure—including, I imagine, a good number of the senators themselves.

That is not how it is meant to be. Impeachment is supposed to be more of a political procedure than a strictly judicial one. That is the reason the power to impeach is lodged in the political branches of government, rather than in the courts. If impeachment were intended to be judicial, then the Constitution would have assigned the task of impeaching a chief justice of the Supreme Court to another court, like the Sandiganbayan. Similarly, the impeachment of a president would be tried not by the Senate but perhaps by the Supreme Court itself.

Part of the confusion may stem from the title that the senators have assumed for the duration of the trial—that of “senator-judges.” I don’t know why they should be called that. (At the impeachment of former US President Bill Clinton in 1999, an American senator objected to being referred to by the lawyers as a “juror.” Chief Justice William Rehnquist, who was presiding, sustained him. The word was never used again during the trial.) They are senators, neither jurors nor judges. That being the case, they are not bound by courtroom procedures and standards. The Senate is empowered to draw its own rules to guide the trial, in addition to the parliamentary rules of order they use in their usual deliberations and hearings. The rules of court are meant to be only supplementary.

In what way then is impeachment a political exercise? It is political in the sense that, as a form of discourse (or as a way of seeing and communicating), its goal is to arrive at a policy decision that binds the whole society. In this it is governed by a separate code. Whereas Law is guided by the distinction between legal and illegal, Politics is steered principally by the distinction between majority and minority, and between government and opposition. These two sides of the political divide are supposed to represent competing conceptions of what is good for the nation. That is the essence of politics. Thus, with regard to the on-going impeachment, the political question is: Will the removal from office of Chief Justice Renato Corona be good for the country or not?

The basic mechanism of politics is the vote – the division of the house into majority and minority. If the Senate impeachment court were just another courtroom, then clearly what it should be looking for is proof of guilt beyond reasonable doubt – regardless of what the public may believe. Indeed, there is an explicit norm inside the courtroom to shut out public opinion from the decision-making process. In contrast, the Senate cannot avoid taking into account the public pulse. As representatives of the people, the senators have no choice but to be mindful of what the people need to know so they may form valid opinions on the issues affecting them.

Because impeachment is mainly political, it is understandable that its final outcome tends to be heavily shaped by party affiliation. But, as the American experience shows, senators freely crossed party lines in at least half of the celebrated impeachment trials in which presidents and justices were on the dock. We should expect this even more in a political system like ours where party affiliation is only lightly embraced.

Can a political process, such as an impeachment trial, be conducted in a fair, orderly and sensible way without having to resort to the restrictive conventions of the courtroom? Obviously, the answer is yes. Imagine what would happen if the countless hearings called by the House or Representatives and the Senate were to be conducted strictly in accordance with the rules of court. They would get nowhere. And yet, such hearings need not be chaotic, nor do they need to trample on anyone’s individual rights to get to the facts.

The basic ethic that is supposed to govern parliamentary deliberations is known to every parliamentarian. Courtesy must override passion. Decorum must rein in impulse. Mutual respect must temper arrogance. Above all, the natural advantage enjoyed by parliamentarians as they sit in their chamber must be balanced by the courtesy they extend to non-members who have been invited or allowed to participate in parliamentary proceedings.

It is true that guests must observe proper decorum; they should not argue with their hosts. But, in whatever setting, it is equally bad form to attack or scream at any guest. In this regard, I thought Sen. Miriam Defensor-Santiago, whose interventions have been otherwise useful and sensible, went completely out of bounds when she pounced on Arthur Lim, one of the private prosecutors. Her outburst was unwarranted and did not speak well of her as a senator or as a judge-elect of the International Criminal Court.

Perhaps, it is because politics has been so demeaned in our country that it comes naturally to us to privilege law over politics, judges over politicians, and courts over parliaments. But, politics can redeem itself not by mimicking the courts but by taking its distinct deliberative functions seriously.

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