Former Senate president and Justice secretary Franklin Drilon asserted Monday that a senator-judge could pitch for the dismissal of the impeachment case of Vice President Sara Duterte, contradicting statements from some law experts that doing so is deemed unconstitutional.

The powers of the senator-judges, he said, are distinct from a tribunal judge, who is strictly not allowed to move for a dismissal of a case in the absence of a fair trial, without hearing the evidence and counter-evidence of prosecution and the defense. 

“If some senator-judges question the jurisdiction of the current [Congress] to hear this impeachment complaint, a senator-judge can move to dismiss it. There is no need for a party to do so like a defense panel,” he said in an interview. 

“This is not a court […] and the people sitting there are not judges but senators-judges. So, [they] can file a motion to dismiss the impeachment complaint for any legal reason that they may cite,” the former senator continued. 

House prosecutor Joel Chua, however, countered that although no provision forbids an outright dismissal of an impeachment on the basis of a consensus of senator-judges, they cannot simply do so without restraint, citing a lack of basis.

“What will be the basis of their motion to dismiss if they do not allow us to present our evidence? What will be their basis?” Chua said in an interview. “The Constitution is clear: the job of senator-judges is to try and to decide. So, how can you hear the case if there is no trial?”

Chua, head of the House panel that investigated the alleged anomalies in Duterte’s use of confidential funds that led to her impeachment, maintained that the prosecution panel will respect whether or not the Senate impeachment court acquits the VP. 

He, however, emphasized that impartiality is crucial on matters as grave as impeachment and that allowing the prosecution to present their evidence first before dismissing it outright is extremely necessary.

“Just allow us to present [our evidence], then let the impeachment court decide,” Chua said.

Former Integrated Bar of the Philippines president Domingo Cayosa said over the weekend that dismissing the impeachment complaint on the basis of majority vote is possible, but inappropriate, especially if done prematurely, without holding an impartial trial.

Drilon sat as a senator-judge in two historic impeachments in the country, one of that of then president Joseph Estrada in 2001 and the late Supreme Court Justice Renato Corona in 2012. 

Raising motions, he recalled, were not only limited to the parties—the prosecution and the defense — and that senator-judges then were afforded the same privilege.

Senator Robin Padilla, a Duterte ally, had sought dismissal of the impeachment complaint through a resolution that was filed even before the Senate officially acquired jurisdiction on the same by convening as an impeachment court. 

The seasoned actor-turned-legislator called into question the jurisdiction of the 20th Congress to hear the case, arguing that unfinished business cannot cross over to a new Congress pursuant to the Senate’s rules.

Echoing the long-standing position of House prosecutors, Drilon retorted that the impeachment is sui generis—distinct from legislative functions—thus, not subject to congressional rules. 

In addition, he insisted that the Senate is a continuing body, unlike the House, whose members’ term automatically expires after three years, with the start of a new Congress.

“It must proceed because the Constitution states that when an impeachment complaint is received, it must be tried. It cannot be dismissed for lack of jurisdiction because it is not an ordinary court,” he stressed.

“The impeachment court, as we called it, is sui generis — one of a kind. So, ordinary rules of court are not applicable to it,” Drilon pointed out. 

If pro-Duterte senator-judges succeed in dismissing the complaint even before the court starts the trial, the prosecution can contest it to the Supreme Court for “abuse of discretion.”

“The Supreme Court is the ultimate decision-making body. In this particular case, it can be said that this is an abuse of the power of the impeachment court by defying the order of the Constitution to try this case,” Drilon concluded.

The Senate took more than four months from receiving the verified impeachment complaint on 5 February before it convened as a court, triggering public backlash and speculations that the delay was deliberate and meant to kill the trial.

The House of Representatives impeached Duterte on 5 February on charges of graft and corruption, bribery, culpable violation of the Constitution, and betrayal of public trust, among others. A total of 215 lawmakers endorsed the complaint.

A two-thirds vote — or at least 16 of the 24 senators — is required to convict and permanently bar Duterte from holding public office, derailing her bid for the presidency.