Fireworks erupted yesterday over the Senate impeachment court’s ability to dismiss outright the impeachment case against Vice President Sara Duterte through a majority vote by the 24 senator-judges, which is within the realm of possibility.

The move to dismiss should not come from the members of the court, according to incoming Senator Panfilo Lacson since he said it has never been practiced.

A former official of the mandatory organization of lawyers, the Integrated Bar of the Philippines (IBP), stated that the impeachment court’s dismissal of the complaints is possible, although it is deemed inappropriate.

“Definitely, the motion to dismiss should not come from the senator judges. That kind of thing hasn’t happened before. That’s why I commented that the judge was very wrong to move to dismiss the case,” Lacson said in a radio interview.

He issued the remarks when asked about the ongoing efforts in the Senate court to dismiss the impeachment against the Vice President, even without holding a trial.

A suggestion made by Senate President Chiz Escudero, the court’s presiding officer, indicated that it would only take a majority vote to dismiss the articles of impeachment lodged against the Vice President. 

The Senate chief claimed that he would cast a negative vote if a senator-judge moves for the dismissal of the impeachment.

He, however, clarified that he could not prevent them from making such a motion, citing rules by the Senate impeachment court that don’t forbid the same. 

Duterte allies—Senators Christopher Bong Go, Ronald dela Rosa, Robin Padilla, and Imee Marcos—had called into question the legality of the impeachment, alleging violation of the one-year bar rule under Article XI, Section 3, Paragraph 5 of the Constitution. They pushed for its dismissal, but it was subsequently amended, resulting in the return of the articles to the House. 

Charter framers and legal experts have warned of a potential grave abuse of discretion should the Senate impeachment court allow the dismissal of Duterte’s case. They emphasized that it has no legal power to take actions beyond conducting a full-blown trial and rendering a decision.

During a vote, 18 senator-judges, outvoted five of their peers, Aquilino “Koko” Pimentel III, Risa Hontiveros, Grace Poe, Win Gatchalian, and Nancy Binay, for a motion that would return the articles to the House.

Senator Ronald “Bato” Dela Rosa, an ally of former President Duterte, initially moved to dismiss the articles of impeachment against Duterte.

The result of the voting emboldened supporters of the Vice President that the same equation will hold in case the vote on the proposal to discard the House articles of impeachment

A motion, based on Senator Bong Go’s proposal, sought to return the articles of impeachment to the House of Representatives.

“The public will observe our demeanor. We must always bear in mind that we are senator-judges, not members of the defense or the prosecution team,” Lacson said, adding that the Constitution must guide senator-judges in the impeachment trial.

Lacson indicated the Constitution was clear that the impeachment trial must “forthwith” proceed, with senator-judges mandated to “try and decide” the case.

“Forthwith. That is what the Constitution mandates. Let’s not be confused by differing interpretations by different sectors. We should stick to the basics - ‘try and decide,’ so let’s try and decide,” he said.

“Senator-judges must behave and speak like judges... Judges ask clarifying questions if the defense or prosecution does not give a clear reply. It is not the senator-judges’ job to express personal opinions on the case,” he added.

Lacson said senator-judges must focus on the flow of evidence and not be distracted by statements from various personalities during the impeachment trial.

“We should have the equivalent of blinders so we will not be distracted by comments on the issues in the trial... In the US, the jury is sequestered and has no contact with the outside world, allowing them to focus solely on the evidence. That should be our attitude,” he said.

Not a matter of consensus

Lawyer Domingo Cayosa, a former president of the Integrated Bar of the Philippines, argued that matters as grave as impeachment should not be dismissed simply because of a mere consensus or majority decision.

“What’s important here is not whether it’s possible, but whether it’s appropriate. It doesn’t mean that just because it’s possible, they’ll do it,” he said in an interview.

“Since when does a judge, instead of hearing both sides, move for the dismissal of the case himself? It is possible, but it’s not proper, it’s not right.”

In most tribunals, Cayosa said a motion to dismiss is generally “frowned upon” to allow both parties—the prosecutor and the defense—a fair opportunity to be heard and present and counter evidence. Dismissing the case based on a technicality would “shortcut” the proceedings without considering the merits of the impeachment case, thereby undermining impartiality and accountability. 

“If you dismiss it from the very start, without allowing the evidence to be presented, then we will not uncover the truth. If the senator-judges are sensible, they should study it first carefully,” he stressed. “It will be a great disservice to the Constitution and the Filipino people. The impeachment proceeding is designed to be transparent and open to the public.”

Representative-elect Chel Diokno, who is set to join the panel of prosecutors, echoed the same frustration. 

“Moves to convict are not allowed. The oath of senator-judges is to only [hear and weigh] the evidence, then make a judgment,” he said in an interview.

As legislators, Cayosa pointed out that expectations are high for senator-judges. He said Escudero has a “moral and legal duty” to educate his colleagues on how to abide by the Constitution.

“We should pray for them to do their job, not to politicize it. As I see it, they’re testing the waters,” he said.

The House prosecution panel on Friday formally submitted its response to Duterte’s counter-affidavit to the allegations against her under the articles of impeachment. 

The House outlined seven articles of impeachment against the VP. She could be convicted if found guilty just on a single article, as long as it meets the required two-thirds votes, or equivalent to 16, of the 24-member Senate impeachment court.

Duterte was the first second-highest official impeached by the House on 5 February on grounds of graft and corruption, bribery, betrayal of public trust, culpable violation of the Constitution, and other high crimes. At least 215 lawmakers backed her removal from office. Her impending trial in the Senate will be the first of its kind in the country. 

The articles of impeachment were primarily anchored on the supposed misappropriation of P612.5 million in confidential funds allocated to her office and the Department of Education during her tenure as its secretary, as well as her alleged kill plot against President Marcos Jr.’s family.

“These Articles of Impeachment highlight respondent Duterte’s unfitness for public office. The Honorable Impeachment Court should reject respondent Duterte’s desire for a dismissal without trial,” the document submitted by the House prosecution reads.

“The severity of the charges leaves no room for technical evasion. A trial is not only warranted but necessary to reinforce justice, uphold democratic principles, and affirm that no individual—regardless of rank or influence—stands above the law,” it added. 

Duterte’s lawyers, from the Fortun Narvasa & Salazar law firm, had argued that the impeachment complaint must be dismissed, calling it void ab initio (from the beginning) because the House violated Section 3 (5) of Article XI of the Constitution, which prohibits the initiation of more than one impeachment against the same official within a period of one year.

The articles of impeachment transmitted to the Senate on 5 February, shortly after the House impeached Duterte, were the fourth petition lodged against her in a span of only two months.

VP Duterte has long denied corruption allegations involving her confidential funds. She likewise asserted that her assassination remarks against former ally-turned-foe Marcos were merely taken out of context.

The Senate is expected to try her when the 20th Congress opens on 28 July. She needs only nine votes for acquittal. With six senator-judges reportedly aligned with her, she may only need three additional votes to secure a not guilty verdict.

However, a guilty verdict (requiring 16 votes) on even one article is sufficient for conviction, forcing her out of office and permanently disqualifying her from running for a government position, derailing her possible bid for presidency.