The prosecution in the impeachment trial of Vice President Sara Duterte on Tuesday sought to keep open the possibility of calling her to the witness stand after it has completed its presentation of evidence, but the defense immediately objected, saying she cannot be compelled to testify against herself.

Private prosecutor Atty. Lorna Kapunan said the prosecution was dropping its remaining 15 witnesses on the alleged misuse of confidential funds but reserved the right to call Duterte as a witness.

Defense lead counsel Sheila Sison opposed the move, invoking Duterte’s constitutional right against self-incrimination and arguing that, as the respondent, she can refuse to take the witness stand altogether.

“There is an innate problem in that kind of request. The Constitution prohibits this kind of testimonial compulsion from the accused herself,” Sison told the Senate impeachment court.

She cited Article III, Section 17 of the Constitution which provides that no person shall be compelled to be a witness against himself.

“This is not only a simple right or a statutory right; this is a fundamental right,” Sison stressed.

Kapunan maintained that the prosecution’s evidence has established a pattern pointing to Duterte as the accountable person in the alleged misuse of confidential funds.

“In this game of chess, the most important piece, more important than the king, and I speak this not because of my gender, but the queen is more important than the king because the queen can move in many directions,” Kapunan said. “And we have seen that, we have seen that in the evidence presented.”

Kapunan said the “queen” referred to Duterte and her testimony would be material to Article I, Article IV on grave threats, as well as the remaining articles involving unexplained wealth and alleged bribery of public officials.

“Unless the Vice President herself appears and respects the process of this impeachment court and affirms, confirms her allegation of innocence, your honor, the people will never know if the prosecution’s case is really based on witnesses and evidence,” Kapunan said.

No ordinary witness

Sison rejected the suggestion that Duterte’s decision not to testify meant she was refusing to defend herself.

“The respondent is here through her counsel. If the respondent was not interested in this trial, she would not have even sent her lawyers to defend her in this case,” she said.

She argued that Duterte’s constitutionally guaranteed right of protection remained intact even if impeachment is a sui generis (in a class by itself) proceeding rather than an ordinary criminal case.

Sison said jurisprudence distinguishes between an ordinary witness who generally must appear when subpoenaed and may invoke the right against self-incrimination when faced with an incriminating question, and an accused who may refuse to take the witness stand altogether.

“The preservation of liberties does not depend on motives,” she said, quoting Supreme Court language. “A suppression of liberty has the same effect whether the suppressor is a reformer or an outlaw.”

When Presiding Officer Sen. Francis “Chiz” Escudero asked when the prosecution intended to subpoena Duterte, Kapunan said it had rested its case on the article under consideration but reserved the right to call two possible witnesses at the end — Duterte herself and possibly an amicus curiae, a friend of the court.

Escudero said the trial would proceed with the prosecution’s presentation on unexplained wealth beginning 14 September.

The Senate impeachment court will set aside 9 and 10 September for both parties to mark voluminous documents involving the bank records of Duterte and her husband, lawyer Manases Carpio. No hearings will be held on those dates.