Giving Senate protection to a fugitive senator unorthodox — Tamase

Added: 2026-05-13

[00:00:00]Let's get insights on this topic with Professor Paulo Tamas of the UP College of Law. Good evening. Welcome to the big stories.

[00:00:07]>> Good evening.

[00:00:11]>> All these statements seem to indicate that there is this fear that the Senate will not be doing its job with this change of leadership despite asurances by the new Senate President Alan Peter Cayotano. What is your own assessment?

[00:00:32]>> I think there's reason uh for for uh the public to suspect whether there would actually be uh a trial and a trial forth with if only because the majority in power now is the same majority that was in power during the last uh attempted impeachment. And you saw uh in the last impeachment how certain members of the majority in particular Senator Alan Peter Kayano is now the Senate President uh maneuvered uh using new constitutional or extra constitutional devices like a remand to the House of Representatives um to delay the trial or effectively delay the trial against the vice president then. But uh I'm also I think relying on certain public statements made by uh Senate President Kayano which committed to the trial continuing. So I think the the question more is not whether the child will actually happen.

[00:01:28]It's uh first how soon it will happen and second is if there can be some assurance that despite the open alliance of the members of the majority with the vice president that the trial can proceed fairly. Mhm. For instance, we had Senator Bau de la Rosa risking arrest just to cast his vote um and is now, you know, um in the Senate uh until he fixes his legal issues. But can the Senate be a a safe house? Can be can it be regarded as a refuge for someone whom who is supposed to be answerable to the law?

[00:02:10]There's an answer in the constitutional text in history and there's also an answer in the practice of the senate. So when we look at the constitutional text, the privilege that senators have from being arrested while senate uh is in session only applies to offenses that are have a maximum penalty of six years.

[00:02:30]Now, of course, uh the the penalty in the uh crimes against humanity charged versus senator Dear Rosa in an international court are simply outside of what is contemplated in the constitutional text simply because that mechanism did not exist yet when the 87 constitution was written. And but in any event uh if you look at the spirit behind that provision, the spirit of that uh parliamentary immunity or that immunity from arrest is not to give privilege to a senator but really to preserve his right to participate in the Senate if he is only being charged for minor offenses so that the minor offenses cannot be used to harass that senator and forbid him from participating. We we must point out sorry to interrupt that it's actually that >> uh to prevent harassment of a senator from doing a good job from from you know performing his legislative functions and crafting policy per seen as the reverse like some kind of entitlement.

[00:03:35]>> Yes. And it again the provision was never meant to be an immunity or a blanket immunity. In fact, adjustments to the text of the 1987 uh constitution made it clear that it would only be limited to these minor offenses. Uh and therefore the intent is to actually keep senators like ordinary citizens accountable to criminal process or accountable to needle process. And therefore the perspective should be whether um criminal case is being used to harass a particular senator and prevent him from performing his or her functions or it's simply just the consequence of being charged with an offense.

[00:04:16]>> The second thing we can look at is the practice of the Senate. And in the last administration you had two senators who were in fact arrested while they were in the Senate or were served a warrant of arrest while they were in the Senate.

[00:04:29]That's Senator Lida De Lima and Senator uh Trillianes. Both of them uh did not uh make a ruckus while they were in the Senate session. Of course, both of them were also served with Philippine Warans, which I think you know, Senator D.

[00:04:45]Rosa's side would want to distinguish.

[00:04:47]But in any event, both accepted. Uh even despite the wide consensus among academics, civil society that in the cases of uh Senator Dilema especially, the case was for harassment uh but and nevertheless complied with the legal processes and ended up acquitting uh herself or showing that she was uh not guilty of the the drug charges filed against her. So both of those uh things the constitutional text and the Senate practice can be guides for the Senate on how to proceed with with this particular issue with Senator Bau.

[00:05:22]>> Um as it is no currently attorney Senator Bau is under a Senate protective custody. Um just like Curly Discaya is just as uh Cassandra Leong was. Uh do you think that's a bit unorthodox? And when it comes to Senate rules versus, you know, the Constitution and the rule of law, I mean, how do we balance these two against each other?

[00:05:45]I think it's incredibly unorthodox in the sense that um orders for example to uh protect certain witnesses like uh the curly disaya and and those are examples of the Senate giving them protection to maintain its power to conduct inquiry which is further to its power to make laws but extending a protection to a certain senator who is really a fugitive from international uh criminal law if you want to put it that way. I I don't think I've seen that before. In fact, you look at past practice uh to suggest that when there is a process already, the Senate tends to comply upon coordination with uh law enforcement bodies from the executive department. So, it's a bit unorthodox to see what's happening in the Senate. Now um the protective custody is itself already unorthodox but I think the way that this was done yesterday uh which included contempt orders against the NBI arresting officers that was even more unorthodox than how it would normally proceed.

[00:06:58]>> Well attorney um many legal luminaries have already said that parliamentary immunity does not apply in the case of Senator Batau de la Rosa. With that said, can a case be filed against the Senate as an institution for harboring a fugitive or for obstruction of justice?

[00:07:14]>> I'm not prepared yet to go that far. Uh simply because the uh the technicalities of this case being really an international criminal law case pending before an international tribunal may present complexities that would not be present if this were purely a domestic matter. Um the reality is that criminal laws are not easily uh or criminal prosecution is not easily filed, right?

[00:07:42]And there's some uh high a high bar that needs to be met before somebody's actually considered to have violated uh criminal law, including obstruction of justice. So I'm not prepared to go that far. Uh there might be legal excuses for the Senate for what it did. But I think with that notwithstanding, it is with all due respect unbecoming on the part of the Senate to actually extend protections to a senator to the effect that it seems that the Senate is putting this senator above the rule of law.

[00:08:13]>> If it's clear that there Yeah. If it's clear that there's an international uh criminal law warrant against this person, then at the very least it is incumbent on the Senate to let the process play out, right? instead of actively seeking to lawyer for uh Senator Del Rosa who I think has the enough resources and capabilities to to defend himself and therefore insulate the Senate as an institution from charges of it you know not complying with with law itself.

[00:08:45]>> What about tweaking uh certain Senate laws um to be able to accommodate you know um whatever the new majority wants?

[00:08:52]Pi I think we were discussing this earlier. Go ahead.

[00:08:55]>> Yeah. Um, you have Senator Marco proposing a change in the rule um requiring senators to be physically present during sessions in participating in sessions and now it seems that senators would be allowed to participate um virtually anywhere um because of this um proposed amendment. What are your thoughts on that and what are the potential dangers of that?

[00:09:16]So real technology has really progressed from the time when the original Senate rules were written uh particularly when the rules in the constitution itself were written concerning physical presence of senators. I I will say first that this is not unprecedented. You do see remote voting uh remote participation options already present in other legislatures. uh the easiest example for us as the United States during COVID the House of Representatives uh passed a rule change that would allow them to vote remotely.

[00:09:50]But that rule change was I think uh if I'm not mistaken withdrawn uh eventually when when things return to normal. So remote voting in this day and age might well be a good policy actually. It ensures that the senator will be present in debate and that the persons who voted for that senator are represented in that debate. I think what makes it dangerous is when the rule change is obviously to accommodate another consideration. And I'm not saying that Senator Marleta's rule change was precisely to accommodate a situation where Senator Dear Rosa can hide and still participate >> in Senate hearings, Senate uh Senate plenary sessions through uh video conferencing and and remote voting. But you also cannot remove that suspicion from the public. that suspicion is fair on the part of the public because of what they saw yesterday.

[00:10:40]>> Now, what do you anticipate to be legal tumblings, maneuverings that can be done to uh prevent immediate action on the uh impeachment complaint after let's say it's already transmitted to the Senate?

[00:11:02]We didn't know about remanding then and it it happened.

[00:11:08]>> But what else what are what do you see >> as as happening?

[00:11:14]>> I'll deal with the most obvious for me uh objection. I think the one that might be raised is the fact that there are pending petitions in the Supreme Court um to to question the proceedings in the House of Representatives. But the legal answer to that and you know just to acknowledge that despite the political character of impeachment you can expect legal argument to to really rule uh or to define this issue. Uh the legal response to it is that unless the Supreme Court has issued a TTRO or a status quo anti-order against the Senate, not against the House, but against the Senate, >> then there is nothing for the Senate to uh to take notice of and nothing that would stop the Senate from its duty to proceed with the trial.

[00:12:04]>> Um the other objections you can expect would be similar to what we saw last year. So while this is following the regular mode of impeachment which goes to the committee on justice there were a couple of times if you would notice due process objections raised >> and while I think those due process objections are much much weaker than last year it does it's enough I think the fact that they exist >> uh imagine as an imagination uh will be enough to already or might provide for some ammo on the part of the Senate if it indeed did not wish to push with uh the child.

[00:12:42]>> You know, Congressman Terry Ridon points out that there is a pending uh motion filed before the Supreme Court which makes the Senate a respondent.

[00:12:54]um is that um he he cites that it could be uh potentially risky because even if the Senate was not yet, you know, it hasn't received the articles of impeachment yet, but it was made a respondent in a case filed by the uh party of the vice president.

[00:13:16]So if if that were the case and with uh just the caveat that I have not seen that motion or perhaps the supplemental petition, the initial problem um and just providing for academic commentary, the initial problem would with that >> would would be that it that petition would have been filed before there would actually be an actual case or controversy which is a requisite for the court to participate in these kinds of reviews. um and the the emergence the later emergence of an actual case when it is eventually filed with the Senate will not cure the fact that it was filed before the Senate received uh the petition. So you can see a few legal hurdles there. Uh but I think ultimately just based on what has happened in the last few uh weeks, we can expect one of the petition the four petitioners in before the Supreme Court now to supplement their petition and include the Senate as a party once the articles of impeachment have been transmitted to the to the upper chamber.

[00:14:17]>> Last question, attorney, very quickly.

[00:14:19]the uh that supplemental affidavit by Ramil Madriyaga. A lot of uh you know uh back and forth between whether or not it should have been admitted and if he would have been should have been allowed to read it in the house. Um what are what is your academic perspective on that?

[00:14:35]>> None of these would affect um none of what was presented in the house affects what can be presented in the senate. So first there is no rule in the senate rules which says that only evidence that has been presented in the house can be brought in the senate. Um any issues concerning their admisibility whether they can be taken on by the senate would be considered a new once the impeachment trial proceeds to the upper chamber. But the second is that I think we need to exercise a bit of caution when it comes to the evaluation of um these pieces of evidence before the senate. It's it's a good reminder at this point that the Ephesian proceedings before it are not really strictly legal proceedings. They are not before the traditional courts.

[00:15:20]They are really befiled before an elected body of politicians. And the evidence that would be persuasive to them um and the evidence that would be persuasive to the public might not necessarily conform to what to the strict rules of admissibility that would apply to courts. And it's a good reminder at this point where you have the house prosecutors being announced or the house managers being announced that it it'll be interesting to see which of those were um which of the managers were presented to provide for really legal acumen uh trial skill and which ones were are presented to converse with the public because that's what you tend to see in impeachments. There are two conversations ongoing, one within the Senate and one outside.

[00:16:04]>> All right. We thank you for talking to us and giving us your academic perspective.