The impeachment of Vice President Sara Duterte, and her looming trial at the Senate, introduces a boatload of legal questions that were not raised in past impeachment sagas.

This is because of the peculiar timing of the political crisis — the Senate is on recess, reelectionist senators are busy campaigning, lawmakers’ terms will expire in June, and a new 20th Congress is set to take over in that month.

Rappler lists some of the most frequently asked questions (FAQs), and collates insights provided in public fora and interviews by legal luminaries and lawyers with a deep understanding of the impeachment process in the Philippines.

They include former Supreme Court justices Conchita Carpio Morales, Adolfo Azcuna, and Antonio Carpio, former Senate president Franklin Drilon, former Supreme Court spokesperson Ted Te, and lawyers Lulu Reyes (St. Louis University School of Law Master of Law program coordinator) and Gwen De Vera (University of the Philippines associate professor).

As the Senate is currently on break, can it hold an impeachment trial without the President’s intervention?

Because the Senate is currently adjourned, Drilon and Te believe that the upper chamber, on its own, cannot constitute itself into an impeachment court.

“The reference of the impeachment complaint is to the Senate, and therefore the Senate in a formal session will refer this to the impeachment court,” Drilon said.

“When the articles were transmitted, the Senate had already gone on recess without taking steps to convene the Senate as a court to draft up the rules of impeachment, even if they were simply to adopt the previous rules of impeachment that had been used by the Senate before,” Te said, referring to the House’s submission of the articles of impeachment to the Senate in the afternoon of February 5, just an hour before the upper chamber adjourned.

Former chief justice Adolfo Azcuna, however, believes the Senate does not need to wait for the President to call for a special session, and set the trial in motion.

“The Constitution is very clear that once the articles of impeachment have been filed, the Senate shall proceed, forthwith proceed with the trial, so that is the call already. And they should then sit down as an impeachment tribunal by taking their oath or affirmation as judges in the tribunal and start the trial,” Azcuna said.

But can the President call a special session so the Senate can constitute itself into an impeachment court?

Article VI, Section 15 of the Constitution says the President may call a special session at any time.

Drilon believes the President can call a special session, which will allow the Senate to convene itself into an impeachment court to start the trial.

“The power of the President to call a special session is not limited by anything. It is the theory that the President can even call a special session so that the impeachment trial can take place. And if the President can call a special session to consider legislative measures, even the renaming of a street is a legislative measure, which can be taken up in a special session,” he said.

But some, like Senate President Chiz Escudero, hold the belief that special sessions are only for urgent legislative matters, and that these do not include impeachment proceedings.

Carpio initially shared the same view, but said a workaround is for the Senate to ask for a special session to amend the 2025 budget or the General Appropriations Act (GAA), which he said is an urgent matter, then proceed with the constitution of an impeachment court.

“(The president) can say, ‘I will give you 25 days to convene in a special session.’ Amending the GAA is easy, it may take only one session day, so they have an extra 20 to 24 days. So they can now convene an impeachment court because there is a session,” he said.

Reyes believes any kind of argument opposing the President’s call for a special session to constitute the impeachment court would be “too narrow.”

“There is no distinction in the Constitution as to when the Congress or Senate, in particular, can act as a legislative body or as an impeachment court. So that would require a High Court interpretation as to whether or not those two different roles run on parallel or on different timelines,” she said.

If the impeachment court does not convene as soon as possible, would it not be in violation of the ‘forthwith’ clause of the Constitution?

Article XI, Section 3 of the Constitution says once the articles of impeachment have been formalized by the House, “trial by the Senate shall forthwith proceed.” “Forthwith” means immediately, and without delay.

“‘Forthwith’… also considers reasonable delay under circumstances of the case. To me, the fact that the Senate is on recess, and that some of the Senate members, senators, current senators, are running for reelection, to me, these constitute circumstances that can abate the use of the word forthwith,” Morales said.

Te agreed with Morales that the “forthwith” question takes into account other circumstances.

“The objective circumstances being that the transmittal was made on the last day of the session, and they had gone into recess before they had referred it to the impeachment court. Therefore, that may constitute, even though there is a span of time that intervenes, that may constitute a reasonable delay, as it were, and would not frustrate the meaning of the word forthwith,” Te said.

Drilon however argued that senators’ reelection campaign is not an excuse to delay the Senate’s constitutional duty to constitute itself as an impeachment court.

“It is my respectful submission that the campaign period is not a valid reason to postpone. There should be no circumstance to justify a deferment because the Constitution mandates the performance of a constitutional duty forthwith,” he added.

Sarmiento said the word “forthwith” was a recent addition to the 1987 Constitution, as the clause was not present in the 1973 Constitution. He recalled that he was floor leader when the committee report which contained the clause was presented to the plenary.

“This is a novel addition in the Constitution, and in light of the intention of the framers of the Constitution, without delay, it should be started immediately, because it is a time-compelling, significant activity in our country. Accountability, checking abuse of powers, etcetera, etcetera. To me, I would say that regardless of the recess, an impeachment trial should begin, in light of this constitutional provision,” he added.

Can the impeachment trial carry over to the next batch of senators?

The Philippines is currently on the 19th Congress. The terms of all House lawmakers, as well as 12 of the 24 senators, will expire on June 6, 2025. Current lawmakers will be succeeded by a new batch of legislators who will win in the May elections. They will constitute the 20th Congress.

Drilon believes that whether or not the 20th Congress can tackle the articles of impeachment submitted to the 19th Congress is an open question.

Sarmiento thinks the 20th Congress can continue the impeachment trial, drawing from the Supreme Court ruling Pimentel Jr. vs Joint Committee of Congress in 2004. In that decision, magistrates denied then-senator Aquilino Pimentel Jr.’s plea for the Court to annul the JCC’s canvassing of votes for 2004 presidential and vice presidential candidates since the proceedings extended beyond the adjournment of the 12th Congress.

“The Supreme Court [made] a distinction between legislative function and non-legislative function. The Supreme Court [said] that it has become a functus officio insofar as non-legislative function, meaning that outside of legislation, it has a continuing function. It could be convening as a canvassing board. It could even be serving as an impeachment court,” Sarmiento said.

Te believes that if the impeachment court is constituted while the 19th Congress is in session, the said court remains valid once the 20th Congress comes in because the Senate is not acting as a legislative body, but a non-legislative one.

“The question now of how many members and which members, that is now the difficult question because practically half the Senate will have their terms ended, there will be new senators coming in, and that would have different implications,” Te said.

Azcuna believes the Senate must take jurisdiction first of the articles of impeachment.

“[The Senate] should signal that the impeachment articles has been filed with them as a tribunal, not as a lawmaking body,” Azcuna said.

De Vera sees three scenarios: one, that the trial may continue in the 20th Congress; two, that the articles of impeachment remain valid in the next Congress, but it is up to the Senate whether it would resume the 19th Congress’ work or start anew; and three, that the 20th Congress just abandons its predecessor’s work.

What happens if some of the House prosecutors don’t get reelected in May?

The House has designated 11 prosecutors in Duterte’s impeachment trial. Some of them face competition in the midterm elections. If the impeachment trial spills over to the 20th Congress, what happens to those who potentially lose their local races?

“If they don’t get reelected, then they cannot be a prosecutor, a public prosecutor, but they can also join the private prosecutors because the House can also — like in previous impeachments — also engage the services of private prosecutors,” Carpio said.

If Vice President Duterte resigns before or during the trial, will this result in the cancellation or pre-termination of the trial?

The impeachment complaint forwarded by the House to the Senate asks the upper chamber to remove Duterte from office, and bar her from seeking public office in the future.

If Duterte resigns, the House’s first plea becomes moot, but what about the second plea?

“I share the consensus that resignation, when trial has started, would not necessarily call for the dismissal of the articles of impeachment,” Morales said. “Impeachment is not for the protection of the respondent. It’s for the prevention of abuses, continuous abuses, and for the protection of the public from being the subject of corruption, bribery, high crimes.”

“I think even for other public officials and employees, if there’s an administrative case that’s already pending, it will not be dropped just as a result of a resignation,” De Vera argued.

Drilon insisted that even if Duterte resigns before the impeachment court is constituted, the Senate can still try her on the issue of perpetual disqualification.

“That’s jurisdiction, that’s within the power of the impeachment court, and therefore it is not [made] academic by the resignation of the respondent before or during, or after the trial,” Drilon added.

Drilon was a senator-judge during the 2000 impeachment trial of then-president Joseph Estrada, but the court aborted the trial after he resigned from office in the wake of the second People Power uprising. Drilon said it didn’t make sense for them at the time to continue the trial “given the political situation at the time.”

Carpio, however, has a different view, saying that once Duterte resigns before there’s a judgment of conviction, there will be no prohibition for her to seek public office again in the future.

“They can file a criminal case because that’s separate. In the criminal case, if she is found guilty, there will be a prohibition from office,” he argued. “Not in the impeachment case, but if there’s a criminal case, there’s a perpetual disqualification also if she’s convicted.”

Can and should the Supreme Court step in on the impeachment saga?

Three petitions about Duterte’s impeachment have been filed with the Supreme Court, the most notable of which is the Vice President’s plea for the magistrates to block the Senate’s looming impeachment trial.

The Supreme Court had dipped its toes in impeachment efforts in the past. For example, it once stopped the filing of an impeachment complaint against former chief justice Hilario Davide.

Drilon said it would be best for the Supreme Court not to interfere with the Senate, which under the Constitution, has the sole power to try and decide all impeachment cases.

“Let this be treated as a political question and, therefore, leave it to the judgment of the Senate acting as an impeachment court to decide on this, including questions of jurisdiction,” he added.

Carpio-Morales, however, offered a slightly different view, saying the Supreme Court can intervene if the petition involves demandable rights of the people.

“As long as the question is not political, but there is grave abuse of discretion on the part of the respondent, and or there is an actual controversy that involves demandable rights, the Supreme Court can step in,” Carpio-Morales argued.

– Rappler.com