Legislators behaving badly
My column this week suggests when the past consensus and former traditions are ignored, as is happening in the current impeachment, its a good sign members of institutions are behaving badly.
Along the way, a review of some other things I’ve written in the past is in order.
Finally, decades apart, it’s remarkable to watch Juan Ponce Enrile in his political prime, as Senate President, and today, as perhaps the oldest Cabinet member on the planet, on the same topic, impeachment.
This week’s The Long View
The Long View
Legislators reinventing the wheel
By: Manuel L. Quezon III – @inquirerdotnet
Philippine Daily Inquirer / 05:06 AM June 18, 2025
Back in 2009, I outlined an essay I wanted to write about Sen. Francis Escudero as a man beyond the clutches of history, which in its earliest origins, studied the past for lessons on leadership. Over a decade later, he ascended to the Senate presidency after losing a bid for veephood and showing little for it.
Nick Joaquin penned a classic account of how Ferdinand Marcos Sr. saved his Senate presidency by surreptitiously restarting the clock during a sine die session when the clock symbolically paused, thus gaveling the session closed when time started ticking. Similarly, who’d have thought Escudero could save his fellow senators from the burden of leadership by example by simply stopping the impeachment clock, restarting it only when it had to be paused again to await the 20th Congress?
A lot of back-and-forth is going on in lawyerly circles over whether what the Senate has done and is doing, and what the House did and intends to do, are legal. All of it stems from setting aside generations-old shared understanding and practices in favor of experimental ideas and redefining what used to be commonly understood. The Senate is being haughty because it has scarlet robes of office (not only unnecessary but counterproductive, as we shall see), which representatives acting as prosecutors don’t have—forgetting the House is the equal of the Senate not only before and after, but during, an impeachment. The Senate, ignoring the presumption of regularity, demands that the House justify its actions and compounds this by demanding any certification be published in the papers when it receives notifications from the House all the time.
Where could such puffed-up ignorance have come from?
It’s a generational thing. I once complained, in exasperation, to another senator (then a congressman, and now in the Cabinet) how it was a betrayal of deeply held parliamentary practice to allow the police—who are, after all, under the command of the executive—onto the premises of House (they lined the path to the rostrum in the session hall during one State of the Nation Address). It was, I said, what we inherited from the refusal of the British to ever allow the agents of the monarchy to try to arrest their members as Charles I did, in person, helping to ignite their civil war. The then-congressmen shrugged it off as, oh well, ancient history—but it’s not.
The force of custom can and should be as strong as the force of law because it tempers behavior and fosters an institutional and not egotistical approach. When tradition, or custom, is neither learned nor applied, it removes the obstacles to officials behaving like petty tyrants or spoiled children. Returning to those robes, and the accompanying grandeur of the title, “senator-judge,” it was a conscious choice that sadly set aside the far nobler, not only it is infinitely rarer but more democratic, title (if they really needed one) of “senator-juror,” which is what senators really are when conducting an impeachment trial.
But as jurors, they’d need to do two things difficult for the elected to do: exercise common sense (and common decency) and listen. Senator-elect Vicente “Tito” Sotto, who has been engaging in a passive-aggressive running commentary of Escudero’s moves, recently made two wise observations. First, “presiding over a collegial body does not require being a lawyer. Familiarity with parliamentary procedure, experience, fairness, and good faith are enough. I had been in impeachment trials before. Adherence to the Philippine Constitution, our laws and rules are within the understanding of a Filipino citizen. Plain and simple language needs no interpretation from a lawyer.” Second, “Sen. Miriam, who was a former RTC judge taught me … in the 11th Congress sen[ator] judges can only ask questions for clarifications.”
To adopt the more humble demeanor of a juror rather than the lofty surety of a judge, will serve as a reminder that since impeachment is a political and not a judicial exercise, when senators are called to render an emergency judgment on the continuing fitness for office of someone elected, they, as elected officials, are being judged, too. For they sit before the bar of public opinion, which is judging, in real time, whether the public’s expectation of basic fairness is being met or not. Doubt it? Recall 2001, and the fate of the senators who never recovered from their loss of public trust.
Our institutions are heirs of other institutions; their experience is part of ours. To ignore it results in what we have: the kind of passive-aggressive contest taking place between the leadership of the House and that of the Senate warping the institutions to which they belong.
Past reflections on impeachment
In 2012 I posted this backgrounder on the institutional origins of impeachment, and the ConCom debates on the topic:
The ceremonial parliamentary robes of members of the House of Lords –which served, until 2009, when the U.K. finally established a Supreme Court, as a court in certain, very specific, cases– are crimson red. As are the robes of High Court judges (and even in the Maryland Court of Appeals in the U.S.A.). There is, I suppose, a sort of historical appropriateness in Senators donning red robes for the impeachment trial of the Chief Justice, if one focuses on the historical origins of the concept of impeachment, which came from British parliamentary practice, as modified by the Americans and adopted in turn in their constitution…
Alexander Hamilton more beautifully phrased it as a “method of National Inquest into the conduct of public men,” and vigorously explained, and defended, the reasons for having impeachment in the constitution in Federalist No. 65 and Federalist No. 66…
The present, 1987 Constitution, introduced two innovations as far as impeachment is concerned. The first was the introduction of “betrayal of public trust” as an impeachable offense. The second innovation was to permit ordinary citizens to file impeachment complaints, as long as they are endorsed by a member of the House; and to retain the drastically reduced numbers needed to impeach an official, in comparison to what was required under the 1935 Constitution. These two innovations were, themselves, responses to the martial law era, and in turn, a validation of the reasoning put forward by Woodrow Wilson, who quoted in turn the Westminster Review, which said impeachment had two benefits: “First, the salutary fear of the probable coming of a day of account will restrain the evil practices of some bad men and self-seekers; secondly, the legal outlet of accusation gives vent to peccant humors in the body politic, which, if checked and driven inward, would work to the utter ruin of the constitution…”
Edwin Lacierda, writing at the time of President Estrada’s impeachment, pointed out Benjamin Franklin’s view that impeachment (as Wilson also observed, a century and a half later, by way of the Westminster Review quoted above) could channel public passion along constitutional channels.
Another 2012 post I wrote looking at what Constitutonal Commission Commissioners and Justices of the Supreme Court said and wrote about impeachment:
In 1986, during the proceedings of the Constitutional Commission, Commissioners Maambong and Romulo discussed how they, and future generations, ought to understand impeachment and impeachable offenses. They did it by Maambong proposing definitions, and asking Romulo if the definition was correct, thus spelling out the intent of the framers of the Constitution.
The first question Maambong asked Romulo was, are impeachment proceedings criminal in nature or not?…
The framers then went on to discuss this passage (I can’t find the exact passage in the 1916 edition of A Treatise on Federal Impeachments by Alexander Simpson Jr. so perhaps the passage is from a later edition): “A person subject to impeachment by Congress is entitled to due process of law although presently there is little judicial authority. It can be suggested that he is also entitled to his privilege against self-incrimination, right to counsel, right to be informed of the nature and the cause of the accusation against him, and the right to be confronted with adversary witnesses.”
And Mambong, after reading the quote into the record, asked, would the statement be applicable to an impeachment proceeding? Romulo replied that first, the House and Senate would have their own rules; that what was read above, applies more to criminal proceedings, but since impeachment is not a criminal proceeding, then, “I do not think, strictly speaking, that it need be criminal procedures. The important thing, I believe, is that the involved party should knew the charges.”…
Seems common-sense: in an administrative proceeding, the question is whether the person is fit to remain in his or her position; what is at stake is not something like life, liberty, or property, but merely a job. Depriving someone of life, liberty, or property, on the other hand, would require a very high standard as something someone has an inherent right to is at stake.
In 2017 I pointed out just because impeachment is a political process, it isn't an excuse to unleash a lynch mob. It's an emergency process to determine continued fitness for office:
Assassination, [Benjamin] Franklin said, was the old-fashioned solution. He suggested impeachment was a better idea.
Alexander Hamilton, was a thinker and a politician before he was a Broadway sensation. He published a series of essays –think of them as überlong Facebook posts, explaining why the American Constitution was a good thing. In one of the Federalist papers, he defined impeachment as “a method of National Inquest into the conduct of public men.”
So what’s our takeaway from these two?
The first is that politics is like a box of chocolates, you never know what you’re going to get. The sovereign people in their wisdom can make a mistake. They can think they’re electing a statesman but end up with a traitor, a crook, a psychopath or all three. Then what do you do? There are times when the only thing to do is kick that person out of office. Richard Nixon knew his time was up, when both his allies in the House and his friends in the Senate told him he would not only be impeached, but convicted in an impeachment trial. So he resigned.
The second is that if you are going to kick someone out of office, there has to be an orderly procedure, yes; which is why the rules of court are used, to keep things systematic.
But you also need a procedure that is in the hands of democratically elected people, and not unelected judges. After all, the person you want to kick out has a rare and powerful thing: a mandate from the people or from the institutions established by the people. Therefore, the kicking out has to be done by representatives elected by the people.
And the third is that even if you are a traitor, a crook, a psychopath or all three, there are three things you cannot be deprived of without a slow, careful, and non-political proceeding in a court of law that assumes you are innocent until you are proven guilty. These are: life, liberty, and property. On the other hand, to lose public office does not risk your life, your liberty in the sense of rights all humans have, and it isn’t property. Only two things can happen to you if you’re impeached and then convicted in an impeachment trial: you lose your office, and you can be banned from holding office in the future.
So these are the things an impeachment is not, and the things it is:
Impeachment is not a criminal trial. It is about the abuse or violation of, public trust.
Impeachment is not about punishment. You do not have to prove guilt beyond a reasonable doubt., the standard used in criminal trials. It is about whether you continue to be fit, in eyes and minds of our duly-elected representatives, to continue to hold public office. That is all.
Let me explain why. Impeachment is about this question: is injury being done to society itself, requiring the removal of this official?
In other words, is this person… so bad, in terms of his policies or the way in which the official conducts himself in office, that the country would be better off kicking that person out before the end of his or her term?
This is a question of policy, of the national interest, and oftentimes, this is an emergency question because only extremely grave abuses of power can lead to impeachment, which suggests that if things have gotten bad enough to result in an impeachment, it had better be solved as soon as possible.
Just because impeachment is a political process, it is not about letting loose a lynch mob. It does not mean, as superficial commentators sometimes say, that this is merely a numbers game. This is because while it is a political process, it is not just about the politicians. The public is expected to watch, understand, and form an opinion. Ideally, this means the public can see if the House and Senate are acting in the public interest or purely out of politically self-serving motives.
It’s a question best addressed by people who themselves hold a mandate equal to the one being impeached. In our case, only senators have a national constituency just like the president or vice president, for example. This is why both in the systems from which we borrowed it, and in our own system, impeachment is a political process and not a judicial one.
But, just to play safe, even if impeachment ends up a purely partisan exercise, the person impeached cannot lose life, liberty, or property because of impeachment –you will still have to go to trial in a proper court, to lose any of those things.
Also in 2017 I pointed out impeachment is meant to be an instrument of last resort: yet our Constitution's authors made it easier than ever:
And so it was that some who saw Ferdinand Marcos methodically paving the way for a dictatorship planned to prevent it the old-fashioned way: through assassination. As one of them once told me, they hatched two cunning plans.
The first involved a remote-control model airplane loaded with a grenade, which would dive-bomb Macoy as he played golf: “But the range was limited and chances are he would have noticed an antenna poking out of the shrubbery.” The second involved stuffing a (live, mind you) cow with explosives: “We actually tried it, and it worked—boom, lots of ground round beef. But how to get Marcos to go over and pet a cow that had had TNT shoved up its rectum?” So nothing happened.
When the dictatorship had already been around for several years, some would go on to try to fight fire with fire, attempting urban terrorism against a regime they considered a gangster government, anyway. But others tried the only alternative that exists for a law-abiding society that wants to vomit out its ruler: impeachment.
This happened in August, 1985. The previous year, as a kind of safety-valve, Marcos tolerated an increase in the number of opposition assemblymen in the Batasan Pambansa. This gave the oppositionists an opportunity—and, they felt, a fighting chance. This was because, as Fr. Joaquin Bernas (writing in Veritas on September 22, 1985) pointed out, the 1973 Constitution had reduced the number of assemblymen required to impeach the president to one-fifth of the Batasan’s membership from the required two-thirds of the House of Representatives to impeach under the 1935 Constitution. This reduction in the required number of votes is what heartened to the opposition.
But Bernas discovered that clever Marcos had everything figured out. The Batasan’s rules on impeachment stated that even if you obtained one-fifth of the assembly to approve impeachment, the majority party (Marcos’ very own KBL) could set up a committee which had the power to cancel the decision.
The opposition went ahead with the effort, anyway, inaugurating many of the scenes we’ve become so used to, today: the bold declarations of intent, the grand articulation, on paper, of damning accusations; hooting and jeering in the gallery, as the ruling party mobilized its membership to reject impeachment, accompanied by the lawyers of the president making snide comments about the futility of destabilization. And the outcome everyone expected all along: tossing the impeachment complaint into the trash after a ritual vote or two, followed by a Palace declaration hailing democracy’s latest triumph.
But as Maris Diokno recalled in 1988, one momentous thing came out of the failed Marcos impeachment attempt. An assemblyman with TV experience, Orly Mercado, had put together a video (on Betamax!) showing the splendid Marcos properties abroad. The video circulated widely. According to Diokno, businessmen who saw it “concluded that the problem was indeed political, not financial,” which primed them to be unusually brave come February, 1986.
To be sure both Marcos and the opposition knew that impeachment, then, as now, was as much about public opinion as it was about using and abusing the rules. The difference was that Marcos, as he got sicker and sicker, started thinking in terms of one crisis at a time, while the opposition was finally learning to play a long game. Marcos would continue winning every battle, officially anyway, while the opposition had geared up to win the war. How else to explain Marcos’ conceited solution to the erosion of his public standing, from the assassination of Ninoy Aquino in 1983, to the failed impeachment of August-September 1985: to announce, in 1985, that he would call a Snap Election?
From these stories three things are clear, when it comes to impeachment.
First, it is supposed to be the instrument of last resort. It’s not supposed to be taken lightly, but the reason it exists is a very serious one. As Fr. Bernas put it, “But the very fact that the people who ratified the Constitution included an instrument for rescinding the mandate and the compact [meaning: the past election which provides for a fixed term of office] is a clear indication that the people’s judgment made at the polls is never meant to be an irrevocable mistake. The impeachment process is itself the people’s safety device against a mandate and a compact that have been betrayed.”
Second, it is a political process. From start to finish, the outcome of an impeachment is dependent on politicians in the House of Representatives and in the Senate, and not on any court of law. We have to understand the reason for this, and it has to do with the above. It’s an emergency solution to a problem that cannot be allowed to just drag on, because the potential for harm to everyone is simply too great. And all it’s about, at the end of the day, is whether the impeached official should stay in office or not. Its only result is removal from office—and, if necessary, a ban from any other public office for life.
But it isn’t about punishment in the criminal sense, because criminal punishment can only be decided by a court of law. For example, life, liberty and property are such basic rights that only the strictest, most impartial, and non-political process should be followed if you are to be deprived of any of the three. But political office—and losing it—does not deprive you of life, liberty (in terms of human rights) or property. It’s really a policy question that can be left to policymakers who have an electoral mandate to act as the people’s representatives.
This also means that while the arena is first in the House of Representatives which decides whether to impeach a person, then in the Senate, which basically acts as a jury to decide if that person should be removed from office, the whole drama plays out in public, with the public being called upon to decide on how all the officials concerned are behaving.
Third, our own system of impeachments is rather unique. It gives a lot of power to minorities, which goes against the instincts of most democratic institutions to require big majorities for major decisions. Requiring only a fifth of the membership of the House to impeach is supposed to be helpful in terms of exacting accountability. Who knows where these magical numbers come from—why one-fifth instead of, say, one-tenth or one-fourth?—but it is supposed to be small enough to give principled oppositionists a fighting chance but large enough not to turn it into a matter of whimsy.
Enrile, past and present
Behold! Thirteen years ago:
And just recently: