Petty and profound

It took seven days for the impeachment trial proper to begin. The Senate’s decision to issue subpoenas for bank records and related motions marks the point where the battle truly began. It could have ended up a failure before it even started: if the current Senate had turned its back on the precedents established in previous impeachments, this impeachment would have become a pointless exercise.

The issues had been decided even before the session began. A caucus of senators had already reached a consensus, and it only remained for senators to be given a last stab at asking questions before the chair ruled in the name of the body.

And boy, did they stab.

The best that can be said of the combined efforts of Vice President Sara Duterte’s defenders is that they helped provide a study in contrasts between the petty and the profound. On one hand, Sen. Alan Peter Cayetano is the face of everything wrong with the Senate today, just as the defense lawyers of the Vice President, with their tactic of producing boredom through a million objections, served their client but demeaned their profession. On the other hand, Akbayan party list Rep. Chel Diokno is a living reminder of two things. First, even if you represent the best of what yesterday’s Senates stood for, you can’t get elected to it today, and second, if you practice law in the grand manner, you can be both profound and grow in public stature. Being an effective petty-buster is merely a karmic bonus.

But I am being too harsh on the Cayetanos. I actually strongly believe they have every right to be biased, and if, for some reason, they are unable to rein in their biases, it can still help the process. When senators take an oath “that in all things appertaining to the trial of the impeachment … now pending, I will do impartial justice according to the Constitution and laws of the Philippines,” they pledge to arrive at a verdict having reviewed everything with as open a mind as humanly possible and in a manner in keeping with constitutional requirements (including not taking things to extremes by trying to simulate the rigors of a judicial exercise!); but they do not pledge, because they cannot be compelled, to stop being themselves.

After all, since they belong to a group, then their own perspectives, when taken to extremes, tend to cancel each other out. Anyone who’s ever done group work in school knows this firsthand. It is an integral assumption in any jury trial. British academics defending the jury system pointed out, “When judges assess whether behaviour was ‘reasonable’ or a complainant’s response was ‘credible,’ they are making ethical evaluations that mix facts with values. A judge evaluating whether a working-class defendant’s actions were reasonable brings their own class experience to that judgment, whether they recognise it or not.” In the case of juries, on the other hand, since they decide “through deliberation, they must make those experiences visible and justify their interpretation to each other.” In contrast to this, “If a judge makes a decision on their own, only their own biases will influence the verdict. In a jury, consensus needs to be reached. Different opinions and perspectives will shape the outlooks of others. This makes the verdict more informed by community beliefs, rather than from specific sections of the community”—a weakness of relying on individual judges. And a definite liability when dealing with the essential question of public trust, on the part of an elected or public official.

The ordinary lawyers did the ordinary—argued the law backward and forward, invoking every useful tactic taught them in school and by experience—but it was to no avail when boiled down to a question of values: “Confidentiality cannot trump accountability,” Diokno said, and no Latin maxim could be found to rebut it. It is a healthy reminder that the red robes and “if your honors please,” and the flimflam flummery of judicial protocol are precisely that: unnecessary, even unhealthy adornment, when all the Senate is called to do is render jury duty and arrive at a decision, individually, but with collective effect. As one American primer puts it ever-so-briefly, “a jury of citizens will determine community standards and expectations in accordance with the law … Juries provide the voice of common sense and the perspective of the citizen to our developing body of law.” Which is what the Senate did, depending on what previous Senates had decided in previous impeachments.

Just as the devil can quote scripture, so can senators plead objectivity while demonstrating bias. Might as well be upfront, knowing one, two, or however many out of 24 or fewer are not the whole; and if no one should be beyond redemption, no one should be condemned until the process has conclusively proven they’re contemptible.

The question now becomes, who will be the first legislator to propose amending Republic Act No. 6426, which requires a depositor’s waiver for foreign currency deposits to be looked into in a proceeding. One has to wonder if the Veep will be as tough as her father in denying any and all calls to “sign the waiver!”