[Newsstand] Four types of senator-judges

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Was the 18-5 vote in the Senate impeachment court on June 10 indicative of the depth of support among senators for Vice President Sara Duterte? The dynamics are complicated, but the answer is no. 

The original motion Sen. Bato dela Rosa included in his privilege speech was for the outright dismissal of the impeachment case against the Vice President. It was not the first time he had raised the idea; the week before, he used a draft resolution to launch a trial balloon. If Duterte’s support in the Senate was in fact deep enough, the trial balloon would have gathered momentum and the motion would have been carried.

But Sen. Alan Peter Cayetano amended the motion, to one that ordered the remanding of the articles of impeachment to the House of Representatives, precisely because the original motion lacked the votes. Let me emphasize that. Dismissing the case would have ended the impeachment trial even before it began. But there weren’t enough senators willing to ignore the Senate’s constitutional duty to proceed with the trial, however “forthwith” is defined.

At the same time, there was a genuine concern among some senators that returning the articles of impeachment was tantamount to dismissal. This led to two actions of the impeachment court: the revision of the amended motion, to include a categorical assertion that the order to the House did not mean dismissal or termination of the impeachment case, and the decision to serve the summons to Vice President Duterte, to answer the charges against her in 10 days. If Duterte’s support in the Senate was in fact deep enough, the revised motion or the summons wouldn’t have been needed.

At most, then, the 18-5 vote means that there was no collective appetite to confront the still highly popular Duterte in a trial setting. But there were senators who did not want to be seen as abdicating their duty. For them, the vote promised delay, and delay meant relief. 

Two factors explain the lack of appetite. The mid-term victories of Bong Go, Bato dela Rosa, and Rodante Marcoleta were persuasive for some senators: “They ran on a protect-Sara platform and the public must want her protected.” And, much more consequentially, President Marcos Jr.’s post-midterm decisions and actions convinced some senators that he was weak — weak in the wake of the elections, weak on the impeachment issue. “Why would I stake my political future on an issue the President himself does not want to pursue?” Implicit in that question is another: “How can this President even protect us?”

Four tendencies

If my reading of the dynamics in the Senate impeachment court at the close of the 19th Congress is correct, the 18-5 vote reflects at least four tendencies or dispositions, only one of which has hardened into a voting bloc. 

We can “place” the 23 senators using two measures.

First, how do they understand the role and power of the Senate? We can describe them, borrowing from the language of judicial studies, as either adherents of Senate restraint (for our purposes we can use the term conservative) or believers in Senate activism. And second: How do they understand the basis of legitimacy of the impeachment court’s decision, whatever that decision may be? We can describe them as either placing a premium on loyalty or on evidence.

Plotted, these measures create four quadrants, or four tendencies. You have the loyalty-activist, the evidence-activist, the loyalty-conservative, and the evidence-conservative. 

Activists want to use the power, and the platform, of the Senate impeachment court either to strike a blow for greater accountability or to galvanize the political class into defending a prized member. Conservatives want to safeguard the dignity of the Senate as an institution, but they do not want to use impeachment to settle scores or to score political points. 

Loyalty-activist senator-judges have no qualms running in the midterms on a platform to protect the Vice President, or maneuvering after the election to dismiss the impeachment case outright, or showing continued partisan support for Duterte even after having taken their oath as impeachment judges. None of this is an issue; the only issue, for them, is whether one is partisan enough.

Among those who ran in the midterms, we can place Dela Rosa, Go, and Imee Marcos; among those who didn’t, we have Robin Padilla and Cynthia Villar. I would place Mark Villar here too, because his father, the richest man in the Philippines who happens to control a large political party, practices big-tent politics. (In 2016, four Nacionalista senators ran for vice president, and they all had Manny Villar’s blessing.) In this big tent, there is room for everyone, and disqualifying anyone from political office (one of the consequences of a judgment of conviction) is anathema. Loyalty-activist senators see the impeachment attempt against the Vice President as a betrayal, of the Duterte family personally, but also of the traditions and workarounds, the rules of the game, of the political class. 

Of the four tendencies, this is the only one which is a committed voting bloc. No matter what happens, these senator-judges will use their role either to acquit Duterte or to dismiss the case altogether. 

Evidence-activist senator-judges want to make an example of the vice president; they are not shy about using the power of the impeachment court to teach lasting lessons in accountability. But they base their position on the evidence gathered by the QuadComm hearings and the like; they are driven by the belief that the evidence as eventually presented during the impeachment trial will bear them out.

We can place the two members of the Senate minority here: Koko Pimentel and Risa Hontiveros. Grace Poe, another senator who voted against the remanding, also recognizes the power of an impeachment court to reform Philippine politics, but would need the evidence presented before reaching a conclusion. Senate President Chiz Escudero has an elevated (some may say supremacist) view of the powers of the Senate, but I think (unpopular opinion alert) he will eventually decide based on the evidence. Joel Villanueva, who was roundly taken to task for coaching Marcos at one crucial point in the June 10 session, and JV Ejercito share Escudero’s view of the Senate as a society-shaping institution; I think, however, that they would in the end be open to the evidence.

Loyalty-conservative senator-judges are above all mindful of the political dynamics that influence decision-making in the Senate; they do not necessarily see the Senate as an innovative institution, but they are keenly conscious that political alliances make decisions, and votes, possible. To them, political loyalty is not seen as base or ambitious, but rather, and realistically, as political capital, as the price of survival. 

We can place a plurality of the senators in the 19th Congress here: Among those who ran in the midterms, we would have Lito Lapid, Pia Cayetano, Bong Revilla, and Francis Tolentino. Among those who did not: Migz Zubiri, Jinggoy Estrada, Raffy Tulfo, Loren Legarda, Alan Peter Cayetano.

Evidence-conservative senator-judges are conservative in the sense that they are motivated by a healthy respect for the institutional dignity of the Senate; they do not necessarily recognize impeachment as a platform for reforming Philippine politics. But the details, of the provisions of the Constitution or of the evidence behind the impeachment case, matter to them. 

I would place Sherwin Gatchalian and Nancy Binay, two of the five who voted against remanding the articles of impeachment to the House of Representatives, in this quadrant. 

20th Congress

What about the seven incoming senators of the 20th Congress? I think Marcoleta, like other winning senators on Duterte’s slate, and Camille Villar, like her brother and mother, would be loyalty-activist senator-judges. Despite different political positions, Bam Aquino, Kiko Pangilinan, Ping Lacson, and Tito Sotto would be evidence-activist. Erwin Tulfo, like his brother, would be loyalty-conservative. 

Sotto’s studied statements, which are critical of Escudero’s handling of the impeachment case, are especially worth noting. The former Senate president, who now holds the record for the most number of times a person has been elected to the Senate (five), owns a high opinion of the role of the Senate in Philippine society. He demonstrated his commitment to the institutional dignity of the Senate when he barred government agents from entering Senate premises to arrest Sonny Trillanes, then an incumbent senator, in 2018. 

But he has been vocal about the impeachment case not only because of the role of the Senate; he is also running for the Senate presidency, and his statements are meant to appeal to a majority of senators. I note that he occupies the same quadrant as Escudero: evidence-activist. But his understanding of the role of the Senate is much more tempered than Escudero’s; this would appeal to those senators who lean conservative. And his reminder that “a senator-judge cannot file a motion himself,” a lesson he said he learned from the late Miriam Defensor Santiago, would appeal to those who want to do things by the book.

Will there even be an impeachment trial? The delay engineered by Alan Peter Cayetano allows Duterte’s allies inside and outside the Senate to try all sorts of means to let her off: parallel cases, Supreme Court intervention, inordinate delay, public exhaustion, constructive dismissal. But if and when the trial proceeds, we will have more chances to see that there are in fact different types of senator-judges — and that both prosecution and defense strategy must rely on that difference. – Rappler.com

Veteran journalist John Nery is a Rappler columnist, editorial consultant, and program host. “In the Public Square with John Nery” airs on Rappler platforms every Wednesday at 8 pm.