The amici curiae

After that awesome display of erudition by retired Supreme Court justices last Wednesday, no one seems to dare make a fearless forecast on how senators will vote on the issues for which the justices were invited by the impeachment court.

The retired chief justices told the senators that impeachment trials are solely assigned to the chamber under the constitutional mandate on accountability, so the senators could draw up – and amend – their own rules.

Put simply, if senators want to lower the voting threshold to convict, they should just go ahead and do it. The same goes for lowering the 16-vote threshold because incumbent members are in hiding from arrest, or suspended and detained without bail for plunder, or abroad on extended leave and unable to participate in the trial.

The senators can change their own rules even if, as one ex-CJ pointed out, the SC can still step in if it sees grave abuse of discretion by the impeachment court. Since SC members are impeachable officials, however, I’m betting they will exercise extreme prudence in interceding in an ongoing impeachment trial.

Simply deciding to vote by a simple majority on the lowering of the two-thirds voting threshold is complicated enough. How many will constitute the simple majority? Senators have yet to decide on the status of their colleagues who are unable to participate due to legal problems.

Former SC senior associate justice Antonio Carpio has pointed out that Republic Act 7080 or the Anti-Plunder Act of 1991 automatically and mandatorily suspends the accused public official. This bars a senator, for example, from filing bills and attending sessions while the case is under litigation. Carpio said this excludes them from voting or being counted for a quorum.

The Senate is holding a caucus today on these issues.

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For once, the Senate impeachment trial drew public attention last Wednesday, and people didn’t switch channels out of boredom.  

Their task, the senators were reminded by the former CJs, was to determine the fitness of Sara Duterte to continue serving as Vice President. She won’t land in prison if convicted, but she can be barred permanently from holding public office – meaning she can’t pursue her presidential bid in 2028. 

But even without guidance from the justices, I think most of the senators have already made up their minds on their decision regarding the VP’s impeachment trial.

In those four hours of speeches by the justices and clarificatory Q&A, the senators merely cherry-picked the points they needed to reinforce their positions for or against conviction.

One issue is how to interpret the constitutional provision on a two-thirds vote of ALL members of the Senate. Does “all” refer to the number of seats, meaning a fixed 24, or the number of incumbent senators who are alive, capable of carrying out the duties of a senator and physically present at the impeachment trial?

All three former CJs believe that using plain common sense, the 24 is a moveable figure, in case of an incumbent senator’s death, irreversible disability or inability to carry out one’s duties.

Only former SC associate justice Adolf Azcuna maintained that the 24 is fixed, along with 16 as the two-thirds number of votes to convict. He warned that making it a variable number is open to political manipulation.

In the rare event that a large number of senators are unable to participate in a trial and vote – perhaps due to a deadly accident – Azcuna said the impeachment must then be shelved until new senators are elected.

The impeached official can still be held accountable for offenses through regular criminal prosecution, Azcuna pointed out.

Azcuna, one of the framers of the 1987 Constitution, said impeachment was deliberately designed to be difficult, to prevent its abuse.

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Amicus curiae ex-CJ Artemio Panganiban reminded the senators – in a non-insulting way – that they are not lawyers and they shouldn’t cram to be one as they handle a process that is heavily political and unlike a court trial for a criminal offense.

People are inevitably confused, however, because the impeachment trial is still proceeding like a regular court trial.

Presiding officer Francis Escudero has laudably reduced the legal gobbledygook in the process, but there’s still a lot of legalese to turn off people who have better things to watch on TikTok.

Even that session with the amici curiae, while deeply interesting for a certain segment of the population, was all Greek (or Latin) to the majority who can’t grasp heavy concepts delivered in English.

The brilliance displayed by the justices provided stark contrast to the limited capabilities of certain senators. The justices’ arguments about public accountability were also surely lost among certain senator-judges who are expected to vote not on the merits of the case, but on the merits to their personal fortunes of voting one way or the other.

Ombudsman Jesus Crispin Remulla is proposing civil service eligibility as a requirement for all barangay officials. There should also be educational requirements for those tasked to craft the country’s laws.

In several countries, each level of government entails passing a test for eligibility. In our country, the bars for capabilities and integrity are set lowest for those in the highest offices.

And so we shouldn’t be surprised by mediocrity, incompetence and corruption in public service. Those brilliant amici curiae are exceptions in our public service rather than the rule.

We’re also partly to blame for this. As the saying goes, the government we elect is the government we deserve.