Reflections on the opening of the impeachment trial.
There are two courts, the impeachment court, and the court of public opinion.
Among lawyers there is a school of thought (which I personally find convincing) which argues that in a trial of the Vice-President, the Chief Justice should preside as in the case of the impeachment of a president. The background to this thinking is that a Senate President is a possible successor in either case and properly should recuse –or be recused. The Senate President could easily have proposed this.
On the other hand there seems a consensus among lawyers that in the absence of a categorical statement, the Constitution leaves it up to the Senate to decide which of its members can preside over an impeachment trial. This requires setting aside the opinions or even assumptions of the framers of the Constitution to the contrary (the assumption is logical: the Senate President is the presiding officer of the chamber). I don’t doubt that had he remained Senate President, Vicente Sotto III would have presided over this trial; there is no shortage of able and willing experts to assist in the same manner that in investigative hearings the US House and Senate hire counsel and both chambers have their own parliamentarians whose rulings are sought in tricky parliamentary questions.
The fact is Sherwin Gatchalian declined to preside over the trial and politically speaking, that conveys weakness. I disagree with those who point to Francis Escudero’s facility with legal procedure to justify Gatchalian’s loss of nerve: if that was the need, you could have gotten the Chief Justice and perhaps been on even firmer legal ground; but the senate presidency of Gatchalian was shot in the knees the moment he surrendered the gavel. The rest of the first trial day showed him sitting beside Escudero looking defeated.
I’d opposed Aquilino Pimentel Jr.’s insisting on sitting beside Chief Justice Davide during the Estrada trial as pointless egotism on one hand, and an unfortunate emphasis on the judicial aspect of the trial to the exclusion of what it more interestingly is, too: a jury of peers. It was an invitation to legal pedantry which is a very deep and harmful affliction of our legal profession. But a sign, I guess, of how far apart we are culturally from the attitudes required to have a jury system.
Having the Senate President sitting beside the Chief Justice diminished the Chief Justice and pointlessly kept the Senate President front and center and the tandem style is even more pointless here where the Senate President is edged aside on his own insistence because he feels himself incompetent to do a job any of his peers are qualfied to do according to the same Constitution whose absent words are used to justify an assumption no reasonable person made before yesterday. By all means the trial will proceed, and Escudero will bluff his way through the proceedings: mind you he has been given a stature he doesn’t deserve and with it comes the ability to frame the trial by ruling from the chair. Among his problematic ones papered over yesterday was his declaration that 16 votes are required to reach a guilty verdict. Though again here there may be a legal consensus–which brings us back to the court of public opinion.
So the optics are of a weak-kneed leader, sidelined from day one; of an aggressive, uncouth, snide, snarling minority smarting from defeat and intent on using every chance to discredit the proceedings –a task made easier by weak leadership which spent time coming up with legal excuses for its (non)presiding officer.
But the senators are judge and jury so that even Pia Cayetano has to claim she will keep an open mind –that’s the pressure on everyone in the Senate. And this makes us turn our gaze to the prosecution and the defense: how I wish they retained that fine, traditional designation of the House Managers for the prosecution to remind everyone that the House’s participation is as the body of representatives closest to the people.
The opening speech was better heard than seen because of that bubble of saliva that frankly nauseated some spectators and so distracted from what Rep. Luistro had to say. But if the contents of her speech made for good politics, her lack of mastery of the procedural game was a handicap: by insisting on reading the charges in full, and having it denied by the chair, she inched towards that place we have been conditioned, by previous experience, to think the House usually belongs, which is that of being inept. You know that old saying, never ask a question when you don’t know the answer beforehand. She should have been sure the chair would allow the reading of the charges in full, before asking that it be done; that’s what pre-trail conferences are for, one would guess.
Rep. Diokno on the other hand seems to be in his element: folksy, calm, insistent on being fair to both sides (leaving no room for the defense to object to his proposal to give them more than adequate time to review the prosecution’s coming lists of witnesses to subpoena, for example), and razor-sharp on the rules.
The lead counsel for the defense is proof of what I think should be called the Estelito Mendoza Syndrome: the belief that you need a wily, seasoned, trial lawyer to head an impeachment defense, when such lawyers have mastered the procedural and psychological challenges of handing judges but not juries –of senators and the public. The result is when they try to score points before the bar of public opinion they fall flat, because they end up obscuring it in a cloud of legalese, and when they resort to legal wizardry it either falls flat because it can always be trumped by an appeal to common sense or even the biases, political or otherwise, of the two juries.
In truth much as the lawyers scoff at it, the strongest argument of the defense is the Vice-President’s mandate because it is that mandate that ensured it would take so long before this trial could even take place; but it was not an argument that should have been made in the way it was, by the person who made it. The optics of any impeachment begins with the start of the trial itself, which is already a defeat for the accused. It takes bravura to turn this public humiliation, which it is, into a moment of either exalted martyrdom or looming vengeance, take your pick as to which will appeal to the public and intimidate the senators.
This is a case for the House Managers to lose. I seemed to sense a kind of unease among senators over proposals to make all the evidence immediately, publicly, available: this is something impossible back in the Estrada trial and to the extent possible today, not possible back during the Corona trial. What the discussions telegraph is that it is entirely possible the Vice President is going to have to confront a mountain of incriminating evidence.
It will be interesting to see just how closely the trial is followed by the public, in this era of mass distraction and weaker journalistic institutions. I feel most people are inclined to keep an open mind, and see where the evidence leads –or what evidence or testimony is presented– and how well or badly both the House Managers and the defense do their jobs not to mention the demeanor and participation of the senators, all of whom will be nervously watching the court of public opinion for signs and portents.
If you were to use the “Malakas at Mahina” lens, the Vice President has been brought to this moment of accountability, itself a sign of weakness: her (and her father’s) brand had been that of Impunity. That the ranks of her obvious defenders is diminished, while suggesting a Pyrrhic victory (if it happens) for her foes (they might make a case, but lack the numbers to convict), also suggests weakness, not least after days of exertions by the Iglesia. Here, the weakness of Gatchalian might benefit the institution of the Senate since Escudero had been seen to be helpful to the Vice-President’s cause in the past; his merely wielding the gavel for all we know, could somehow moderate the enthusiasm of the Veep’s defenders. Pia Cayetano seems perpetually on the verge of a nervous breakdown and Alan Peter Cayetano seems very much the worse for wear; a battle of the wits of the sort an impeachment is considered to me, simply isn’t the battlefield where Imee Marcos or Bong Go or Robin Padilla can really prosper.
