Law and Politics

The trial that matters | Inquirer Opinion

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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.
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e 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?
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