[OPINION] In the trial vs Sara Duterte, public tolerance has its limits

Rules that constrain politicians seem to no longer matter — if the prize is access to more polarized votes. The Senate needs to disincentivize this behavior. This Sara Duterte impeachment trial began with senators taking an additional oath. Under the rules they imposed on themselves, they swore to “do impartial justice according to the Constitution.” Their Impeachment Rules also require them to observe “political neutrality.” Impartiality and neutrality. Perhaps this is why some senators saw fit to repeatedly lecture their colleagues about due process as if they were high school students. Some even implied that non-lawyers would be less capable of ensuring the ongoing impeachment trial adheres to constitutional standards. Yet, nothing says “impartial justice” quite like a senator-judge who reposts a video attacking a member of the prosecution team in between hearings. And nothing says “neutrality” quite like using a spliced video to make it appear that Akbayan Representative and prosecutor Chel Diokno said things he never did. All this just a few days after another senator complained why the prosecution was always “one-sided.” It seems the very concept of a fair trial has been turned on its head. Restating a couple of basic principles becomes necessary. First, due process exists to deliver justice, not subvert it. It becomes hollow formality when its fundamental requirement is lacking: a fair and impartial judge. Those objections about dates, hearsay, originals, and photocopies become meaningless if the judge is compromised. One can comply with the Rules of Court down to the very letter, but without a fair judge, the proceeding will still be a sham. Since impeachments are done before senators and not justices, no one is surprised to see partisanship creep in. Politicians being who they are, no one is also shocked to see alliances reflected in the way some senators ask their questions. But public tolerance has its limits. Were a member of the Supreme Court to post a manipulated video about counsel in an active case, a thousand lectures on due process would do little to convince the public that the trial remains fair. Sa boxing, minsan may referee na biased. Pero kapag yung referee nakikisuntok na, ibang usapan na yan. (In boxing, some referees may be biased. But if it’s the referee who starts a brawl, that’s another matter.) Senator Pia Cayetano was present in the Senate when Congressman Diokno delivered his arguments regarding the prosecution’s requests for subpoena. It was a masterclass in calm but effective exposition that earned praise from several sectors. Unless she was busy, or inattentive, there is no reason to believe she failed to grasp what the rest of the country did. And yet, she posted that video. Chasing online clout This is the new era of impeachments that the old rules weren’t designed to anticipate. As pointed out by a colleague, social media has introduced a different set of incentives for senator-judges’ behavior that may not be constrained by previous protocols. In the case of this incident, the temporary bad press is deemed tolerable so long as the post enhances the senator’s online following with her base. Rules that constrain politicians seem to no longer matter — if the prize is access to more polarized votes. The Senate needs to act quickly to disincentivize this behavior. First, the Senate’s role as a stabilizing body in highly partisan incidents gets eroded. Second, if impartiality is seen as performative, it encourages more officials to violate it with impunity. Third, this conduct ultimately weakens public trust, which, in turn, gives senators power, and shelter, against an over-reaching executive branch. There are many ways to resolve this. In our courts, if a judge feels he or she can no longer remain impartial then it becomes her duty to recuse herself. If a senator is too dedicated to seeing her cause to fruition, then perhaps the body should engage her directly. There is precedent for this, if not within the Senate’s internal rules but, from the body whose impartiality it is trying to mimic. There have been times when the Supreme Court admonished its own justices for certain actions that were deemed unbecoming. There is no reason why the Senate should shy away from doing so. As for those who view social media likes as a prize worth ignoring norms of statesmanship and judicial decorum, it’s worth nothing that online infamy comes at a price. At least 82% of Filipinos want the Vice President to face the charges fairly. Swing voters react negatively to blatant partisanship in impeachment matters. History bears the names of former senators who became defined by their impeachment antics for decades. If that is not enough disincentive, a politician should also consider the short-term. With all the open investigations on corruption, a blatantly biased senator who mocks the nation’s desire for fair play becomes an easy target. There will be little public sympathy for those who did the nation a disservice by denying it a fair arbiter in this process. The public is not so ignorant as to be unable to discern performative lectures on impartiality — especially when it is followed by partisan conduct that leaves little to doubt. If senators mean what they say about due process, or their claims of selective enforcement by the Executive, then they must first practice the neutrality they claim to revere. – Rappler.com John Molo teaches Constitutional Law and Appellate Advocacy. He is a founding partner of Mosveldtt Law and has handled several landmark cases before the Supreme Court. How does this make you feel? Loading