When senator-judges become defense counsels

By Antonio Contreras

On the Contrary

The Manila Times

August 1, 2026

IN my view, the prosecution and defense panels are doing their assigned jobs. The prosecution is presenting a case for conviction. The defense is challenging that case and protecting the respondent. We may criticize their strategies, but advocacy is their function. The deeper problem lies elsewhere: in a Senate impeachment court where some senator-judges behave not as neutral adjudicators but as additional counsel, usually for the defense.

A basic distinction should govern the proceedings. Counsel may examine and cross-examine witnesses, challenge credibility, develop a theory of the case and draw conclusions from the evidence. Senator-judges may ask genuine clarificatory questions and make proper procedural interjections.

Their task is to understand, regulate and decide. Once their questions become leading, argumentative or designed to rescue one side from damaging testimony, they cease clarifying and begin advocating.

Sen. Robinhood Padilla illustrated this confusion when he admonished the prosecution not to be “one-sided.” A prosecution panel is necessarily one-sided, just as the defense is. Each side presents its strongest lawful case, and truth is tested through the contest between them. The person who must not be one-sided is the senator-judge. Yet Padilla’s intervention effectively adopted a defense complaint and directed it at the very panel whose constitutional task is to prosecute.

Sen. Bong Go crossed a similar boundary when he appeared to explain or justify Vice President Sara Duterte’s assault on a sheriff. The prosecution offered the incident as evidence of an alleged pattern of violent conduct. Go was free eventually to reject that inference when judging the case. But supplying an exculpatory explanation while the evidence was being presented was the work of defense counsel. A judge evaluates an explanation after it is offered; a defense lawyer offers it.

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Senators Alan Peter Cayetano and Pia Cayetano have repeatedly pursued lines of questioning that resemble cross-examination. Their interventions have tested witnesses, challenged the prosecution’s theory and supplied propositions favorable to the defense. The problem is not that senator-judges ask questions. It is that questions cease to be clarificatory when they are structured to impeach a witness, elicit concessions for one party or argue with an answer. Cross-examination belongs to counsel, not to judges wearing a second, invisible defense hat.

Sen. Raffy Tulfo provided another example in his questioning of a bank manager. Instead of clarifying banking procedures or the witness’ testimony, he passed judgment on the witness’ managerial competence. That was no longer a neutral effort to understand the evidence. It was an argumentative conclusion about the witness, delivered before the court had completed hearing the case. If parties are forbidden from making premature factual or legal conclusions, senator-judges should not be allowed to make them from the bench.

This exposes a glaring double standard. Party-list representative Leila de Lima was stopped while introducing the prosecution’s presentation because she was supposedly already making conclusions of law and fact. Senate presiding officer Francis Escudero enforced a narrow, legalistic limit on how the prosecution could frame its case. Yet the same court has tolerated senator-judges making conclusions, disputing witnesses and advancing defense-friendly interpretations during questioning. Rules cannot be strict restraints on the parties but elastic privileges for the judges.

Pia Cayetano presents an additional contradiction. She rose to remind everyone, including her colleagues, about proper conduct and decorum. But she later shared a spliced video that reinforced a narrative favorable to the defense. A senator-judge who publicly circulates selective material bearing on a pending case is not merely commenting on procedure. She is entering the adversarial contest. One cannot credibly police judicial restraint inside the chamber while practicing partisan advocacy outside it.

The conduct can be plainly enumerated: Padilla faulted the prosecution for performing its adversarial role; Go supplied a defense-oriented justification for contested conduct; Alan Peter and Pia Cayetano used questions resembling cross-examination; Tulfo pronounced judgment on a witness’ competence; Pia Cayetano amplified selectively edited material; and Escudero imposed legalistic restraints on the prosecution while permitting senator-judges wider latitude to argue and conclude. These are not isolated slips. Together, they reveal a failure of role discipline.

Impeachment is not an ordinary criminal trial. Its ultimate question is not simply whether criminal guilt has been proven under the standards of a trial court. It is whether a high official has committed an impeachable offense and remains fit to retain the public trust. Due process remains indispensable, but legal formalism must not be selectively used to weaken one side while senator-judges themselves engage in conduct that would be improper for neutral adjudicators.

This is why the overjudicialization of impeachment is dangerous. The Senate borrows courtroom rules, then applies them asymmetrically. It restrains advocates for being argumentative while allowing judges to argue. It warns parties against conclusions while permitting judges to announce their own. It insists on decorum while some senator-judges campaign for a preferred interpretation. Procedure becomes not a safeguard of fairness but a convenient instrument for controlling one side and assisting the other.

Neutrality does not require silence. Senator-judges may clarify ambiguities, resolve procedural questions and test whether they have correctly understood the record. But they must not rehabilitate witnesses, construct defenses, attack prosecution witnesses or publicly promote one party’s narrative. The relevant test is not whether a question ends with a question mark. It is whether its purpose is comprehension or advocacy.

The prosecution and defense should be allowed to do their jobs. The Senate impeachment court must do its own. Its members are not there to rescue either panel, much less to become an auxiliary defense team. They are there to hear the full case, maintain fair rules and judge without appearing to have chosen a side in advance.

When senator-judges become counsels, the principal casualty is the credibility of the court. Any verdict, whether conviction or acquittal, will command respect only if the process is evenhanded. The Constitution entrusted the Senate with the grave power to try impeachments. That trust requires more than legal knowledge. It requires restraint, consistency and the discipline to remain judges even when partisan instincts tempt them to become lawyers.

The author is a professor at the University of the Philippines Los Baños and vice chairman of the Board of PTV Network Inc. (PTVNI).