The ‘upper’ house

The word “senator”—like “sir,” “senior” and “senile”—comes from the Latin “senex,” meaning an old person. In many countries, the senate is largely an honorary assembly of wise elders who occupy their seats either by inheritance or by appointment. Not so in the Philippines, where the Constitution treats the Senate and the House of Representatives as coequal and autonomous chambers of the legislature. Indeed, because they are elected by a nationwide vote, our senators see themselves as national figures and think of their position as one step removed from the presidency. It is significant that their term is twice as long as that of congressmen. For these reasons, the public cannot be faulted for thinking that the House of Representatives is called the “lower house” because it is somehow lower in the government totem pole than the Senate.

Nothing, of course, is farther from the truth. In many ways, the House has more substantial powers than the Senate. But, if one has been watching the ongoing impeachment trial, it is difficult not to think of the Senate as having the upper hand. While everyone else is held to very strict rules of conduct inside the court, the senators are able to intervene in the proceedings at any point, and to talk at will. They are allowed to question the witnesses, interrogate the counsels of both sides, subpoena more witnesses and documents, make side comments, give speeches or lectures, and even publicly rebuke and insult the lawyers to their faces.

This is vastly different from the impeachment procedure followed in the United States, from where we borrowed the practice. There, the senators who sit in judgment are confined to hearing testimonies and examining the evidence. If they have questions to ask, they must do so in writing and wait for the presiding officer to read them.

No one perhaps has projected political arrogance more virulently than Sen. Miriam Defensor-Santiago. Seeing and hearing her berate the prosecution panel the other day, as if she was scolding schoolchildren, I was moved to ask a former justice of the Supreme Court if that was normal behavior inside our courts. “That’s judicial abuse,” he said. That kind of language, he assured me, is not acceptable even when a judge needs to lecture a bungling lawyer. He referred me to the Code of Judicial Conduct of 1989, which may be more familiar to senior judges than the 2004 version. Canon 3, Rule 3.04 of the old code might well have been written for judges afflicted with Senator Santiago’s temperament. It states: “A judge should be patient, attentive, and courteous to lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants.”

Time and again, in various rulings, the Supreme Court has warned judges to show great care in their conduct inside the court. In Conde v. City Judge Superable Jr., the high court reminds judges: “Perhaps to no government official is the truism that a public office is a public trust more applicable. He dispenses justice for the community. He is its instrument to assure that everyone be given his due. He speaks and acts for the state, not for himself. His personal feelings must not get the better of him.”

“Judges are not common men and women, whose errors men and women forgive and time forgets,” the high court intones in Office of the Court Administrator v. Bartolome. “Judges sit as the embodiment of the people’s sense of justice, their last recourse where all other institutions have failed. As such they bring stability to society, especially where society is under stress. They should prove that the system, after all, works even if the system has its built-in weaknesses.”

More pointedly, the Supreme Court in Juan de la Cruz v. Carretas warns that “a judge who is inconsiderate, discourteous or uncivil to lawyers who appear in his sala commits an impropriety and fails in his duty to reaffirm the people’s faith in the judiciary … that it is reprehensible for a judge to humiliate a lawyer, … that a judge must at all times be temperate in his language…. And that equanimity and judiciousness should be the constant marks of a dispenser of justice.” A judge “descends to the level of a sharp-tongued, ill-mannered petty tyrant when he utters harsh words.”

One can only stand in awe of the meekness with which grown men from the prosecution panel—legislators in their own right—took Senator Santiago’s tirade against them. They have given flesh to the phrase, “I submit, your honor.” So strident was the senator’s harangue that even private lawyer Vitaliano Aguirre’s supposedly contemptuous act of covering his ears while she spoke seemed nothing more than the pathetic reflex of a little boy being bullied by his own teacher. If Aguirre had meant to be disrespectful, he would not have bothered to explain himself. He could simply have yelled to her, from across the hall, “Chill out, lady!”

But law is nothing if not a culture of restraint. The House delegation has conducted itself with admirable composure in the face of repeated provocation. I find it disturbing that the Senate as an impeachment court would routinely cede the floor to Senator Santiago at the start of a session and allow her to set the tone with a rant dripping with recrimination. I doubt if this is how the Senate wants to be remembered. Because of her, this is turning out to be indeed an impeachment sui generis.  Instead of prosecuting the case against the Chief Justice, the House finds itself pitted against the Senate.

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