The defense of Vice President Sara Duterte can ask the Supreme Court (SC) to intervene in her impeachment trial even before the Senate reaches a verdict if it can show that the chamber’s new voting rule has already violated her right to due process, a former Philippine Bar Association president said.

Lawyer Rico Domingo, who also chairs the Movement Against Disinformation Inc., said the defense need not wait for an actual conviction using the new threshold before seeking judicial review.

“Kung may ganoon klaseng allegation on due process, pwede sila umakyat because they’re already adversely affected by the proceedings,” Domingo said in a radio interview.

On Wednesday, the court overturned its earlier interpretation that 16 votes — two-thirds of the full 24-member Senate — were required to convict Duterte. It instead ruled that the denominator will consist of senators who are legally and factually capable of participating when judgment is rendered.

The ruling does not permanently set the threshold at 14 votes. Rather, the required number could change depending on how many senator-judges remain legally and factually capable of participating when the verdict is taken.

When can the SC step in?

The question, Domingo said, is whether the SC would even give such a petition due course given the constitutional independence of the impeachment court.

“If the Supreme Court respects the independence of the impeachment court, mukhang hindi sila magbibigay ng TRO,” Domingo said, referring to a temporary restraining order.

“But if they see that there really is grave abuse of discretion, then perhaps they would issue a temporary restraining order,” he added.

The issue of timing was also raised during Wednesday’s oral arguments. House prosecutor Chel Diokno argued that a challenge to the threshold would become ripe for SC review if the Senate eventually convicts Duterte using fewer than 16 votes.

Domingo offered a different view, saying the defense could go to court earlier if it can demonstrate an existing due process violation. He said the defense could also choose to wait until the prosecution has presented more of its evidence before deciding whether to seek judicial intervention.

“If they see that the prosecution’s evidence and the response of the people to the evidence is bad for the defense, that’s their timing to go up and say their due process is being violated because of the grave abuse of discretion committed now,” Domingo said. 

He nevertheless questioned why the threshold issue was not challenged at an earlier stage. 

The consequence of waiting

Domingo said waiting until after the Senate has voted could put the defense in a different legal position because an impeachment conviction does not carry the ordinary appeal or motion-for-reconsideration process available in regular cases.

“They should have done it earlier. Assuming na may verdict na conviction, walang appeal yan. Walang motion for reconsideration,” he said.

That makes the timing of a possible Supreme Court petition consequential for the defense, which could either seek intervention while the trial is ongoing or wait for the Senate to act on Duterte’s fate.

Domingo also said the trial could continue despite the absence of some senator-judges as long as the impeachment court retains a quorum and the defense is given due process. “If there is a quorum, they can proceed with the trial,” he said.

Poa: SC petition, TRO on the table

Domingo’s assessment gained significance on Thursday when Duterte’s counsel and defense spokesperson Michael Poa confirmed that a SC petition is among the legal options being considered.

Poa said the defense is weighing both going to the High Court and seeking a temporary restraining order, but has yet to decide whether or when to file.

“Mag-akyat, number one, at pangalawa, kung aakyat tayo, hihingi ba tayo ng TRO — yan po ang mga options na nakalatag sa harap natin,” Poa said in a separate radio interview. 

Poa said the defense must first consult Duterte and determine when the issue becomes justiciable, or appropriate for judicial determination. He said Duterte had been updated on Wednesday’s proceedings but that the defense had not yet discussed with her whether to pursue the SC route.

“Definitely hindi naman tayo magsisinungaling na hindi tayo aakyat dahil isang posibilidad talaga yan. Titignan lang natin kung kailan ba dapat tayo aakyat,” Poa said. 

Poa said the defense participated in the oral arguments ad cautelam, or with caution, so that taking part in the proceedings would not be treated as giving up possible legal remedies.

“Kung mayroon kaming nakikitang mga bagay na puwede natin iakyat sa Supreme Court at kwestyunin, maaari pa rin natin gawin,” he said.

Poa also said resignation was not an option being considered by Duterte. “Para kay VP Sara, hindi namin pinag-uusapan ang resignation. It was never on the table for her,” he said.

Duterte is facing four impeachment articles stemming from allegations of misusing P612.5 million in confidential funds, accumulating unexplained wealth, bribing education officials, and making grave threats and inciting to sedition through statements against other government officials.