What is an 'amicus curiae,' and what is their role in court?
As the impeachment trial of Vice President Sara Duterte continues and debates flare over the voting threshold, Presiding Officer Chiz Escudero announced that the court will invite what is called an "amicus curiae" to weigh in.
This comes after Senator-judge Erwin Tulfo made a motion to revisit Escudero's previous ruling that at least 16 senators, or two-thirds of all 24 Senate members, are needed to convict Duterte. Tulfo questioned whether the impeachment court should still count absent senator-judges when determining the number of votes needed for a conviction.
Four members of the impeachment court have so far been unable to participate in the proceedings: Jinggoy Estrada and Rodante Marcoleta are detained over separate plunder cases, Bato dela Rosa is facing an arrest warrant from the International Criminal Court, while Loren Legarda is abroad for medical treatment.
On Sept. 16, the court will get insights from the amici curiae before having oral arguments from the prosecution and defense on Sept. 23.
But what exactly does it mean to be an amicus curiae, and what role can they play in an impeachment proceeding?
What is an 'amicus curiae?'
Constitutional lawyer Atty. Mike Tiu told PhilSTAR L!fe that amicus curiae translates to a “friend of the court,” and their role is to "guide the court on a question of law or fact where the court might not have specific expertise."
"The court often calls on them to help them in answering a difficult question that requires careful study," he explained.
Tiu said that any person "who has established or acknowledged expertise on a subject" can be called by the court as an amicus. "There are no strict qualifications. A court’s recognition of their expertise and, maybe, independence would be sufficient."
As Duterte's case specifically involves the matter of law, however, Atty. Michael Henry Yusingco said that the amicus curiae must be a law or legal expert.
"[They] must have both expertise and experience in the field of law. [Their] opinion must have credibility and integrity," he said.
According to Tiu, the court itself selects and invites the amicus curiae.
"In other jurisdictions, experts and organizations may file amicus briefs without the invitation of the court, such as in the US Supreme Court. That is not the practice in the Philippines, although it is also not prohibited. The practice in the Philippines is that they are invited by the court," he said.
What is their function during the trial?
An amicus curiae does not replace either the prosecution or the defense. Instead, Tiu said they are tasked with answering specific questions on a matter of their expertise or under specific directions from the court.
"They can help in interpreting law, explaining the intent of framers, testify on the results of their study or scholarship based on the questions asked by the court," he said.
"They are not witnesses, not even expert witnesses. They do not address the specific issues of fact before the impeachment court," he continued.
Yusingco echoed this in that the task of an amicus curiae is to "give guidance to the court on a particular legal matter."
"The scope is limited by the questions given to him or her by the court," he said.
An amicus curiae does not necessarily have to be completely neutral or have no personal political views. "The partisan leanings of the amicus curiae are immaterial. What is primordial is his or her expertise and experience in law," Yusingco said.
"Obviously, the amicus curiae will take a position to answer the questions posed by the court. But the expectation is the answers will be based on legal arguments."
Despite their expertise, he noted that it is still up to the court to consider or reject their opinion, as they have full discretion on how to use the guidance of the amicus curiae.
Duterte's impeachment trial is now on its 23rd day. She is facing a total of four impeachment articles alleging the misuse of confidential funds, unexplained wealth, bribery and procurement irregularities, and grave threats and high crimes.
An arrest warrant was recently issued against her by the Quezon City Regional Trial Court in relation to her remark against President Ferdinand Marcos Jr., First Lady Liza Araneta-Marcos, and former House Speaker Martin Romualdez.
She has since posted bail of P120,000 for each count, totaling P360,000.