A lesson in autonomy

Day 17 of the impeachment trial of Chief Justice Renato Corona will likely stand out as one of the most instructive episodes in this fascinating process. What makes it so is the short impromptu speech made by the presiding officer, Senate President Juan Ponce Enrile, right after Sen. Miriam Defensor-Santiago furiously scolded the prosecution panel for allegedly using “fake” documents to secure subpoenas for Corona’s bank accounts. Enrile gallantly took full responsibility for the issuance of the subpoenas.

But it was what Enrile said after that is worth noting. He cleared the ground on which the Senate stands as an impeachment court, especially in relation to the Constitution and the powers of the Supreme Court. “It is my humble view as presiding officer,” he began, “that the Senate as an impeachment court must at all times observe the rule of law. It cannot transgress any of the applicable provisions of the bill of rights. It must be guided by the presumption of innocence…. It must at all times observe the procedural and substantial due process…. It cannot compel a witness to testify against himself. It cannot arbitrarily declare a person guilty of contempt and deprive that person of his or her liberty. It cannot violate the laws passed by Congress of which it is an integral part.”

Having voted with the majority of the senators to abide by the Supreme Court’s temporary restraining order which seeks to enforce the absolute confidentiality of foreign currency accounts, Enrile affirmed the high court’s role as the ultimate interpreter of the Constitution. “Whether or not in the end, this court (the impeachment court) abused its discretion or committed a grave abuse of discretion, amounting to lack of excess of jurisdiction, will be decided by the Supreme Court being the highest court of the land, and the final arbiter and interpreter of the Constitution of this country.” It was his duty, he said, “to respect the authority or power of the Supreme Court to review acts of this impeachment court in interlocutory matters, meaning matters (that have a bearing) on the manner by which this impeachment court would conduct the trial of this particular impeachment case.”

Senator Enrile might have sounded as if he was placing the conduct of the impeachment trial at the complete disposal of the Supreme Court. But, in fact, a close reading of these remarks would show that by conceding the powers of the high court, he was also defining their limits. He said he would accede to the magistrates’ intervention in “interlocutory matters.”  Whatever this term may mean, a simple reading of the Senate President’s views suggests that he would not look with favor at any attempt by the high court to stop the impeachment trial for any reason, or to review the Senate’s final decision.

What Enrile was doing is to assure the Supreme Court, and the public in general, that the Senate as an impeachment court knows its duties under the Constitution, and is capable of administering justice in accordance with the rule of law. This is not an empty boast. It is something the public can judge for itself as it watches the conduct of the televised trial. In contrast, transparency is not something that the Supreme Court can readily claim for itself.  Indeed, the fact that it is its Chief Justice who is under trial makes its intervention in the case suspect at every point.

The defense panel, led by the very capable former Supreme Court justice Serafin Cuevas, has repeatedly protested its lack of power to object to the senators’ various motions on the floor, and their mode of questioning of the witnesses. “Where can we go or to whom can we turn if we are not permitted to object,” cries Cuevas. Clearly, the defense is laying the basis for turning to the Supreme Court for relief. It is true that, under the impeachment rules, neither the prosecution nor the defense is allowed to question the senators or object to their interventions.

But, to be fair, the defense’s claim of helplessness is exaggerated. It is not as if the accused and the witnesses are totally at the mercy of the senator-judges. Though senators may take care not to show open disagreement with one another, they are not barred from questioning one another or objecting to motions presented on the floor. Indeed, they can even challenge the presiding officer’s decisions and call for a vote.

The Senate is, from what we have seen, far from being a monolithic body or a lynching mob. We can assume that in their daily caucuses, the senators are continually reviewing and debating the conduct of the trial. Though the accused’s private counsel may not attend these caucuses, this does not mean that the other senators will allow his rights to be trampled upon by their colleagues. Corona is not lacking in senior senators who are quick to defend his constitutional rights.

Of course, nothing can prevent a proud Supreme Court from taking its review powers to a point where, short of declaring a mistrial, it makes it extremely difficult for the Senate to conduct its work as an impeachment court. It would be a mistake, however, for the high court to take the Senate’s acceptance of its recent TRO as a sign of acquiescence.

The positivization of law – meaning, its emergence as a seemingly self-executing force – is no doubt important to social stability.  Unfortunately, it has sometimes encouraged a fatal arrogance on the part of the courts. This humble citizen wishes to remind the Supreme Court that the flip side of autonomy is restraint, and that an institution best protects its authority when it respects the autonomy of co-equal institutions.