The trial that matters

Many correctly noted that Chief Justice Renato Corona is being tried in two venues: in the Senate convened as an impeachment court, and in the mass media serving as the court of public opinion.  Some find this situation unacceptable, believing that innocence or guilt must be based solely on the law and the evidence, and not on what the public may think.  They consider it intolerable that the merits of a case are being discussed inside and outside the court.

But others contend that public discussion of the case is unavoidable precisely because in an impeachment trial, those who sit in judgment are not ordinary judges but elected representatives of the people who cannot afford to ignore public opinion. Accordingly, they say, the task of the impeachment court is not so much to decide whether a specific law has been broken or not but whether, in the light of the evidence, the public official in question must be removed from his position or not.

As I have written in previous columns, there is no way of bringing these two positions together.  They are two separate forms of communication.  Impeachment lies at the boundary of these two communication systems—politics and law.  Both are legally constituted spheres, but between the two, it is in the sphere of law where one finds the most detailed rules and procedures.  Those who enter its portal are bound by its stringent rules of communication that often clash with the norms of everyday intercourse.  Though also a regulated activity, politics enjoys greater latitude in the way it is conducted.

But to appreciate the crucial difference between law and politics, it may be useful to think of them as ways of observing.  They are guided by separate criteria.  What is important to one may be a matter of indifference to the other. What one notices is precisely the other’s blind spot. Perhaps “worse,” if we may use that word, every sphere tends to think of its own way of seeing as the only valid way to see things.

Law operates by the binary code legal/illegal, and its variations: licit/illicit, permissible/not permissible.  We often hear the Senate impeachment court’s presiding officer, Senate President Juan Ponce Enrile, declaring something “allowed” or “disallowed,”  “admissible/inadmissible,” or “relevant/irrelevant,” just before he bangs the gavel. That is his way of saying that a question, an objection, or an offer of testimony or evidence, is or is not in accord with the rules. The rules are there not only to facilitate communication, or to separate evidence from allegations but, more important, to protect the rights of the accused and of other persons who are not party to the litigation.

Politics, on the other hand, is guided by an entirely different code.  Although it cannot ignore the law, its way of seeing is oriented primarily to considerations of power – how to gain and retain it, what will enhance it, or how and when to use it. This way of characterizing politics may sound disparaging compared to the values that the political system invokes when it describes its operations – legitimacy, mandate, the national interest, constitutional duty, and so on.

Neither law nor politics, in fact, is more important than the other. Both are vital to society’s functioning.  Law stabilizes expectations about acceptable behavior; this is especially crucial in societies rent by moral diversity.  Politics, on the other hand, enables society to override its divisions so as to arrive at collectively-binding decisions.  Law succeeds in its purposes when people unconditionally accept it as a guide to conduct. Politics succeeds when its processes and decisions lessen the State’s need to resort to force.  Law needs politics to legitimize its operations, without having to appeal directly to the public.  And politics needs law to regularize its processes.

Interestingly, this social division of labor works best when institutional roles are sharply delineated.  Politicians make and implement the law, judges apply the law – each by their own respective lights. The problem arises when these roles overlap, as in an impeachment proceeding.  On one hand, as politicians, senators are courting public opinion.  On the other, as judges, they are expected to shut it out.

We are not really strangers to this modern dilemma.  Justices sometimes find themselves inescapably engaged in lawmaking, a political function. One of the most explicit attempts to articulate a judicial philosophy that directly addresses this problem was made by former Chief Justice Artemio Panganiban, now an Inquirer columnist. Justice Panganiban distinguished between the value of liberty and the goal of prosperity.  He said that under his leadership, he would see to it that the high court shall exercise its power of judicial review in such a way as not to interfere with the government’s agenda to attain prosperity.  But, on matters of liberty, he said, the Court will resolutely check government.  This is a good rule of thumb; it signals a healthy respect for politics, even though cases brought to the high court are not always as clearly demarcated.

What this implies is that while there may be two trials going on, the one that will spell the real difference is the one that is going on at the Senate.  Senators may be politicians, but when they play the role of judges, the electorate expects them to abide by the norms of fairness that apply to any court.  They must keep an open mind. They must weigh the evidence in relation to only one question: Will it be in the nation’s best interest to remove Renato Corona from his office as chief justice of the Supreme Court?