Should senator-judges inhibit from trial due to ‘biases’?

Right after the Senate impeachment court convened on June 10, the first thing Senator Ronald “Bato” dela Rosa did was to file a motion.

Dela Rosa, former president Rodrigo Duterte’s first national police chief-turned-lawmaker, asked the court that handles the impeachment of Vice President Sara Duterte to outrightly dismiss the case.

Another Duterte ally, Senator Bong Go, seconded Dela Rosa’s motion to dismiss, but floated the idea of remanding the case to the House of Representatives. Ultimately, it was Senator Alan Peter Cayetano who persuaded other Duterte allies to back the remand of the case to the House of Representatives instead of seeking a dismissal.

In the end, 18 senators — including Dela Rosa, Go, and Cayetano — voted and successfully pushed to return the Articles of Impeachment to the lower chamber. Constitutionalists and critics said this move was unconstitutional as it had no basis in the impeachment rules.

Before this motion, Dela Rosa admitted to having in his possession a draft Senate resolution that sought to kill the impeachment proceedings even before the upper chamber could be convened into a court.

Senate President Chiz Escudero — the impeachment court’s presiding officer — saw no wrong in these moves that appeared to favor the embattled Vice President.

“Do you want me to cuff, restrain the hands of some, of some people, all members of the impeachment court and limit what they can say. Like, these are the only things you can say. This, you cannot say,” Escudero said in Filipino on June 11.

“I will reverse the situation. There are also members of the Senate who’s not allied with Vice President Duterte. The numbers are equal. There are members who want to push the impeachment,” Escudero added.

But for constitutional framer and law expert Christian Monsod, the mere fact that Dela Rosa had the said draft resolutions was enough basis to recuse themselves from the impeachment trial.

“Senators Dela Rosa and [Francis] Tolentino seem to have already prejudged the case. Judges derive their legitimacy from their independence…. They should no longer take part in the proceedings because they’ve already prejudged it. Where is their integrity?” Monsod told ABS-CBN News.

Other groups, including Akbayan, had called for the inhibition of Dela Rosa, Go, and even Senators Robin Padilla and Imee Marcos, from the trial.

“Their actions have gone beyond bias; they have actively worked to derail the process. From filing resolutions to block the trial, publicly declaring Duterte’s innocence, and pushing for the complaint’s outright dismissal by any means necessary, they have shown open contempt for the Senate’s constitutional duty to serve as an impartial tribunal,” Akbayan said in a statement.

Recuse? Inhibit?

Inhibition is the act of asking a judge or magistrate to desist from handling a case or overseeing proceedings.

In legal cases, the motion for inhibition must be based on a just and valid case. The “mere imputation of bias or partiality is not enough basis for them to inhibit, especially when the charge is groundless,” the Supreme Court (SC) said in the Pagoda Philippines, Inc. v. Universal Canning, Inc. case.

For example, the inhibition of judges was done in former senator and incoming ML Representative Leila de Lima’s last drug case, which suffered delays after two judges recused from the case. The charge was eventually junked in 2024, clearing De Lima of all her drug cases.

Then-handling Judge Romeo Buenaventura inhibited from the De Lima case after he was asked by the former senator’s co-accused to inhibit due to alleged conflict of interest. The succeeding judge, Abraham Joseph Alcantara, also recused himself from the case after he was asked by the prosecution to inhibit.

After his inhibition, Alcantara said that a judge must always maintain the trust and faith of parties-litigants, and at the very first sign of lack of faith “whether well-grounded or not,” the judge has “no alternative” but to stop handling the case.

“[Inhibition] is done when a judge has a conflict of interest (e.g., family relationships, prior professional relationships) or a perceived one. It’s done not just for fairness to the parties but to also protect the perception of the court as fair and impartial,” constitutional law expert and University of the Philippines (UP) College of Law professor Paolo Tamase said.

How about inhibition in impeachment?

On the one hand, inhibition is not present as an option in impeachment proceedings, according to Tamase, because the Senate remains a political body even though it acts as a court during an impeachment trial. The law professor explained that an impeachment trial remains political even though the senator-judges take on a legal character.

On on the other hand, impeachment rules also do not prohibit inhibition among senator-judges, said Tamase.

“I would not apply the Code of Judicial Conduct here (inhibition in impeachment proceedings), since the requirements for impartiality in courts, which are supposed to be apolitical, may not be feasible for senators,” Tamase told Rappler.

In the absence of specific rules on inhibition in impeachment proceedings, Tamase said senator-judges must decide for themselves. The question of whether senators must inhibit is ultimately left to their individual moral conscience, on the Senate as a disciplining body, and on the electorate.

“The Senate has the exclusive power to discipline its own members, so if a senator violates his oath of impartial justice in the impeachment trial, then they would have grounds to discipline him,” the law professor explained.

“Finally and ultimately, the senator’s inability to maintain political neutrality should make the people think twice about voting for him again due to his inability to perform his duties, among the most solemn and constitutionally important of which is to sit in impeachment cases,” Tamase added.

He also explained that in case some of the senator-judges choose to inhibit, it will not affect the votes required to convict, which is two-thirds of the Senate who will vote. Rather, recusal of judges might have an effect on acquittal, because Tamase said “each inhibition amounts to a vote of acquittal.”

‘Too early’

For the Vice President, senator-judges cannot inhibit from the trial just because of their political prejudices against her.

“If that’s our basis of inhibition then we should also inhibit senators who have perceived biases against Sara Duterte, like Senator Risa Hontiveros, who said in a public speech that the Dutertes must be destroyed or must crumble,” the Vice President said in Filipino during a press conference on June 16.

Speaking as part of the impeachment court, Hontiveros said it’s too early to discuss inhibitions among the senator-judges.

“It’s too early to discuss inhibition. There’s a right time to file formal motions in relation to that. And in my view, now is not the right time because we’re too early into this impeachment,” the minority senator said in a RapplerTalk interview.

When prosecution spokesperson Antonio Bucoy was asked about inhibition, the lawyer said Duterte-allied senators must be given the chance to prove themselves. The senators must be afforded the “benefit of the doubt” rather than ask them to excuse themselves.

“We are hoping that the senator-judges will open their eyes and weigh the evidence,” the spokesperson said. “We are hoping that the evidence will convince them to be impartial and to vote. If they have to vote to convict, they will convict. If they have to vote to acquit, they will acquit.”

President Ferdinand Marcos Jr.’s chief legal counsel Juan Ponce Enrile, who had taken part in previous impeachment trials, also has advice for the sitting senator-judges.

“With due respect to them, my first advice is to keep quiet, and then go to the session hall during their trial, sit down and listen to the proceeding, listen to the presentation of evidence,” the former senator told the Inquirer. – Rappler.com

*Some quotes were translated into English for brevity