We should be clear on two things. In normal circumstances, two-thirds of the Senate is 16. If somehow 16 still vote to convict at the end of the ongoing impeachment trial, there won’t be a problem, either. The problem is that these aren’t normal circumstances because the Senate itself is in the dock—literally, with one of its members an actual fugitive, two others detained pending trial, with more who should also be behind bars. This is why the three justices had to be brought in to advise the Senate because at the rate it’s going, every week seems to bring the possibility of additional senators being in peril of detention.

Like most everyone else, I read about the opinions put forward by the retired justices, and similarly, I have my own opinions about what they said. And what others said, too, for example, former Supreme Court Associate Justice Antonio Carpio, who tends to be combative and so may have been too risky to invite. But he has said elsewhere that 16 can’t be a fixed number to achieve a conviction because it would mean impeachment would work only some of the time when it is an instrument that should be usable all of the time.

This seems to go against the view of former Supreme Court Associate Justice Adolfo Azcuna, who said only death, conviction, or expulsion can permanently remove a sitting senator, but in any case, the number required to convict is fixed because it is meant to be a difficult number to achieve. So much so that it is preferable to risk what he (Azcuna) calls a “mistrial” rather than tinker with this number; but this is a price too steep, Carpio seems to suggest.

The other justices were inclined to be more flexible in determining the set of senators to whom the constitutional requirement of a two-thirds vote to convict should apply. There is an instance where less than 16 constituted two-thirds of the Senate, as Sen. Juan Miguel Zubiri reminded his colleagues. In 2001, the Senate lost four of its members due to Edsa Dos: Gloria Macapagal Arroyo had been elected to the vice presidency; Marcelo Fernan had died; and (because of Edsa Dos) Teofisto Guingona Jr. had been appointed vice president, while Raul Roco had become secretary of education. Treaties came up for concurrence; the Constitution also requires two-thirds of all the members of the Senate for concurrence to be given. Because there were four vacancies, two-thirds were determined to be 13.

That, on the whole, there was a consensus among the justices was encouraging. But what I found discouraging—and it highlights, for me, the deficiency in asking people with little to zero political experience to weigh in on a political process (politics in the broadest sense: the activity through which a community decides who gets power, and how that power is used).

Is the purpose of an impeachment justice? This is the assertion of former Chief Justice Artemio Panganiban. Perhaps from a philosophical perspective. But the practical purpose of an impeachment is to determine fitness for continuance in office. Justice will be served through civil and criminal cases where life, liberty, or property are at stake. But none of these is imperiled by an impeachment; possession of office, and possible disqualification from future office, is what’s at stake.

To be sure, what an impeachment is not is either a lynching or a communist show trial. There must be basic fair play and rules to that end. But we should never overlook the fact that impeachment is an emergency response to a collapse in public trust. It is an instrument of last resort against incompetence or tyranny when the traditional cure, as Benjamin Franklin pointed out, was assassination. It is a given that political passions and partisanship will lead both the naïve and the devious to proclaim that each impeachment effort is a now or never battle for the soul of the republic; but the flipside of this is that a national mandate by election, or the conferment of position by the representatives of the people, is not something that should be easily invalidated; one reason impeachment is a political exercise is that it invites the parallel convening of the court of public opinion, which judges both judges and the judged, harshly.

These are considerations beyond the training, much less the imagination, of mere jurists. On the other hand, one would never leave the fate of the life, liberty, or property of an individual in the hands of a gang of politicians posturing for applause. That is where the indifference, even hostility, of the law to opinion and emotion are precious.

The whole problem is that the Supreme Court said if you are in the custody of the law, your liberty is under restraint; you cannot engage in any profession, or business, or hold elective or appointive office while detained. But the Constitution does not enumerate detention as a manner through which membership in the legislature can be lost. This is the heart of the problem. The Senate, which has exclusive power in impeachment trials, could demand the participation— including the presence—of imprisoned members for impeachment hearings. Then they could vote, and theirs would be informed ones because they’d participated.