Impeachment Politics: Will Marcos Call a Special Session for Sara Duterte’s Trial?

By Louis ‘Barok‘ C. Biraogo — February 12, 2025

WHAT happens when the impeachment of a nation’s second-highest official teeters on the edge of constitutional crisis? The impeachment trial of Vice President Sara Duterte has not only divided the Philippines but also raised urgent questions about the rule of law, political fairness, and the future of democratic governance. This analysis unpacks the legal controversies, political stakes, and the path forward for a nation at a crossroads.

Unpacking the Legal and Constitutional Crossroads

Retired Supreme Court Senior Associate Justice Antonio Carpio’s assertions regarding the Senate’s ability to proceed with the impeachment trial of Vice President Sara Duterte rest on the argument that legal and procedural paths exist to reconvene and move forward, despite the Senate being in recess. However, a deeper examination of Philippine constitutional provisions, Supreme Court precedents, and ethical considerations suggests that the issue is far from settled.

The Special Session Argument

Article VI, Section 15 of the 1987 Philippine Constitution grants the President the discretionary power to call a special session of Congress “whenever in his judgment the exigencies of the public service require it.” Carpio suggests that President Ferdinand Marcos Jr. could call a special session to pass urgent legislation, such as amendments to the General Appropriations Act (GAA), and in doing so, create an opportunity for the Senate to convene as an impeachment court.

However, this argument is met with strong counterpoints:

Presidential Discretion: The Constitution does not mandate the President to call a special session for impeachment. The Supreme Court, in Estrada v. Desierto, ruled that the President’s power to call a special session is discretionary and not subject to judicial review. Thus, Marcos has no legal obligation to convene Congress unless he deems it necessary.
Ethical Concerns: If Marcos were to call a special session solely for impeachment, it could be perceived as politically motivated—either to fast-track or delay proceedings depending on his political calculus. This could undermine the Senate’s independence and set a dangerous precedent for future impeachment cases.

The “Forthwith” Argument

Article XI, Section 3(4) of the Constitution states that “trial by the Senate shall proceed forthwith.” Carpio interprets this provision to mean that the Senate must act immediately upon receiving the articles of impeachment.

However, constitutional interpretation and historical precedent suggest otherwise:

Definition of ‘Forthwith’ – The term does not necessarily mean “immediate” but can be reasonably interpreted as “without undue delay.” The Estrada (2000-2001) and Corona (2012) impeachment trials were both suspended during legislative recesses, indicating that past Senates did not interpret “forthwith” as overriding their procedural discretion.
Judicial Affidavits as a Time-Saving Measure? Carpio proposes that judicial affidavits be used to streamline cross-examination and save time. However, impeachment trials are not ordinary judicial proceedings; they involve public officials and require a full, adversarial trial process. Cutting corners could violate due process and weaken public confidence in the legitimacy of the trial.
Separation of Powers – The Senate, as an independent body, has the sole power to set its procedural rules. Interpreting “forthwith” as an absolute command could undermine the legislative branch’s autonomy and blur the separation of powers between the legislative and judicial branches.

The “One-Third Rule” Argument

The House of Representatives’ overwhelming 215-0 vote to transmit the impeachment complaint signals substantial political backing for the case. However, the one-third rule (Article XI, Section 3(2)) does not dictate how the Senate should conduct its proceedings.

Senate’s Discretion: The Senate is not a rubber stamp for the House. While the House determines if there is probable cause, the Senate acts as a trial court and has full discretion over scheduling and procedures.
Supreme Court Precedents: No ruling mandates that the Senate must convene immediately once the House transmits impeachment articles. The Senate’s independence in conducting impeachment trials has been upheld in past cases.
Ethical Implications: Rushing to trial without adequate preparation could lead to a flawed process, while unnecessary delays could be viewed as deliberate political obstruction. Striking a balance is crucial.

Power Plays and Political Repercussions

The timing and handling of the impeachment trial carry significant political ramifications for all major players:

President Marcos Jr.
- If Marcos calls a special session, he risks appearing as intervening in the impeachment process, which could provoke backlash from both Duterte loyalists and his own allies in the Senate.
- If he declines to act, he may be accused of shielding Duterte or being indifferent to corruption allegations.
Senate Leadership (Francis Escudero)
- Escudero has rejected calls for a special session, arguing that the Senate must treat all impeachment cases equally and not rush Duterte’s trial.
- His position strengthens Senate independence but also exposes him to criticism from impeachment proponents who demand swift action.
House of Representatives
- The near-unanimous vote in the House underscores the broad political will to hold Duterte accountable.
- However, pushing the Senate too aggressively risks overstepping constitutional boundaries and appearing as dictating Senate proceedings.
Duterte and Her Allies
- The Vice President’s impeachment trial could be weaponized in the ongoing Marcos-Duterte power struggle.
- A prolonged delay benefits Duterte, allowing her to mobilize public support and pressure Senate allies to block conviction.

The Other Side of the Coin: Refuting Carpio’s Legal Stance

Constitutional Interpretation: The “forthwith” clause does not override the Senate’s discretionary power to set impeachment trial schedules.
Judicial Precedents: The Estrada and Corona cases established that recesses pause impeachment trials, reinforcing the argument that the Senate is not obligated to convene immediately.
Political Neutrality: If Marcos were to call a special session, it could be seen as an executive interference in what should be a legislative function.
Due Process: Speeding up the trial could compromise fairness, violating Duterte’s constitutional right to defend herself adequately.

Recommendations

Preserve Senate Independence: The Senate should assert its authority by deciding independently whether and when to proceed with the trial. Political pressure from either the House or Malacañang should not dictate its actions.
Ensure Fair Trial Procedures: While efficiency is important, the Senate must ensure that due process is observed. Judicial affidavits can expedite proceedings, but they should not replace full cross-examinations of witnesses.
Balance Transparency and Deliberation: The Senate’s decision to publish the articles of impeachment online is commendable. However, they should also set a clear procedural timeline to dispel allegations of delay tactics.
Marcos Must Remain Neutral: The President should avoid calling a special session solely for impeachment, as this could politicize the process further. He should instead let the Senate decide on its own timeline while publicly committing to respecting its independence.
Manage Political Fallout: Both Marcos and Escudero must navigate the divisive political landscape carefully. While the Senate must maintain institutional integrity, it must also reassure the public that the trial is moving forward in a fair, timely, and impartial manner.

Conclusion

Justice Carpio’s assertion that the Senate can proceed with impeachment if it has the “will” raises important constitutional and political questions. However, legal precedents and ethical considerations suggest that the Senate retains full discretion over when and how to conduct the trial. A hasty trial could compromise due process, while indefinite delays could erode public trust. The best course of action is for the Senate to assert its independence, ensure fairness, and proceed methodically—without being swayed by external pressures.