[OPINION] Why impeachments are too important to be left to lawyers alone

Vice President Sara Duterte’s impeachment trial started with two members of the Senate mentioning which law school they graduated from. Later on, unfortunate comparisons between non-lawyers and lawyers were made. There were also veiled suggestions that lawyers will have a better grasp of what was to come. 

The allusions may have prompted Senator Panfilo Lacson to post about a colleague “who has been lecturing us since Day 1 of the impeachment trial, as if being not members of the bar, we will be less judicious in rendering fair judgment.”

As the trial unfolded, people were reminded of what it means to “judicialize” an impeachment trial. By the end of Day 3, the verdict of the exhausted chamber (and the viewing public) was clear. Senator Bam Aquino’s summation was apt: it took almost nine hours to present just one witness. His request called attention to what the lawyers in the room may have overlooked. “If possible, can we allow the testimonies to be heard, can we have proceedings that will go straight to the point, kasi nanonood ang taumbayan?” 

“Nanonood ang taumbayan (the people are watching).” When one says something like this in reference to legalities permeating a proceeding, it sounds like an indictment. But then he has a point. Lawyers do not necessarily make impeachment trials better. When procedural issues crop up, the insight of lawyers is useful to make the process orderly. But when lawyers import courtroom norms into something that’s not meant to be a courtroom, it breeds inefficiency and the benefit of legal insight ceases. Nine hours just for one witness. No wonder some senators were complaining about stiff necks.

Senate not a courtroom

The framers of the Constitution could have placed impeachment trials before the Supreme Court. Instead, they gave it to the Senate where the judges come from all walks of life. It’s a signal that impeachment was designed not to be mired in legalities. The process involves democratic balancing, not ascertaining if a crime was committed.

In impeachments, no one goes to jail, no one pays damages. This kind of trial asks a different question. Has the official so abused the public trust that remaining in office threatens constitutional governance? That determination requires political judgment informed by ethical considerations, public accountability, and practical governance. 

Legal knowledge helps but is not required. 

Must Read

[OPINION] Impeachment trial needs correction

This is why Senator Lacson’s stance is closer to what the Constitution envisions. A senator sitting in an impeachment court is not acting as a trial judge in an ordinary court. Lawyers ask, “What crime was committed?” Non-lawyers ask, “Is the public served by allowing the official to remain in office?” 

These questions may overlap but, they are not identical. For instance, an official may engage in conduct that’s deeply corrosive to constitutional government without violating any criminal law. Conversely, an official might commit a legal violation that does not justify removal from office. 

Representative institutions are better suited than courts to process these questions because they are directly accountable to voters. Public trust, confidence and betrayal are standards that defy conventional legal framing but, come naturally to those attuned to politics. As such, members of the Bar should not take senators to task for asking questions that seem out of place in a courtroom because precisely, the Senate is not a courtroom.

“How has this conduct damaged public confidence?” or “Would allowing this behavior set a dangerous precedent?” When senators ask these questions, they are trying to align closely with impeachment’s true purpose. On the other hand, if senators approach impeachment as courtroom litigation, they may inadvertently apply the wrong decision-making framework. 

“Pati kaming senator-judge gusto rin naming makita itong mga proceedings, yung mga ebidensiya na mas madali ring maintindihan.” Senator Aquino accurately tracks what the Supreme Court has been saying for decades. Even for normal trials, it has cautioned lawyers to stop turning litigation into “a game of technicalities”.

In fact, the current rules of procedure have been revised to veer away from the old-school approach often portrayed in movies or tv. The evolution leans toward more permissive rules followed in arbitration and alternative dispute resolution.

When the presiding officer, Senator Chiz Escudero reminded all parties to let each side present their case because the other side will have their turn, he was also aligning with this principle. As anyone who practices arbitration can attest, tribunals prefer to listen to what a witness has to say — not watch lawyers argue for hours.    

Must Read

Your A-Z guide to Sara Duterte’s impeachment trial

Lawyers have a key role in impeachments. Due process demands it. Yet, the more impeachment proceedings become lawyer-driven, the less effective it becomes in accomplishing the intended constitutional purpose. To be fair, lawyers cannot help themselves. As my kids can attest, we are trained to frame any encounter into a criminal trial. We are trained to magnify the slightest ambiguity, instead of asking, “What really happened? When asked, “Why are you late?”, we ask that the word “late” be first defined with sufficient precision.

The solution is restraint. 

As such, Senator Aquino’s plea is both timely and necessary. Nine hours to present one witness. The journey to get to the truth shouldn’t be that hard. With the public watching, imagine how many of them end up even more frustrated with the legal system. 

A friend mentioned that if this is what passes for normal in the courts, no wonder so many prefer legal shortcuts. The best way to recover respect for the legal profession is to show the public how its members aid constitutional processes, not bog them down. 

Impeachment trials benefit from legal norms but, should resist being paralyzed by them. “Judicializing” impeachment risks forgetting that the most important judge is not even inside the Senate. And to Senator Lacson’s point, this form of democratic judgment doesn’t require a Bar license.

Lawyers might revel in procedure, but the public judges politically. Citizens evaluate trust, legitimacy and abuse of office. They do not fixate on schools of legal interpretation, admissibility or standards of proof. History shows that when the Senate forgets this, the public will not hesitate to send a reminder. – Rappler.com