Remanding VP Sara impeachment articles to House unconstitutional — experts

The impeachment proceedings against Vice President Sara Duterte on Tuesday, June 10, took a different turn when the Senate, sitting as an impeachment court, decided to remand the case to the House of Representatives.

Based on the June 10 agenda, the senators were supposed to take their oath as senator-judges as agreed upon by the chamber during its June 9 session. Senate President Chiz Escudero already took his oath as the impeachment court’s presiding officer on Monday.

What triggered the change of plans was Duterte ally Senator Ronald “Bato” dela Rosa’s motion to dismiss the impeachment case against the Vice President. After debates, Escudero ordered the convening of the Senate as an impeachment court to tackle Dela Rosa’s motion.

Convening was necessary to ensure that the Senate was legally acting on impeachment matters.

Given the purported Senate resolution that sought to kill the impeachment trial, experts, including incoming House prosecutor and Mamamayang Liberal Representative Leila de Lima said that the Senate must first convene as an impeachment court before it can decide on the issue. (READ: Senate must convene as court before it can junk Sara Duterte impeachment – De Lima)

From outright dismissal, the motion was amended into an order that sought to return the impeachment case to the House. In the end, a total of 18 senators backed the motion proposed by Dela Rosa and Senator Alan Peter Cayetano.

Only five voted against the motion: Senators Nancy Binay, Win Gatchalian, Risa Hontiveros, Koko Pimentel, and Grace Poe. No one abstained.

Remand, defined

Some senators argued that they just ordered the return of the impeachment case to the lower chamber and did not dismiss it. But during Tuesday’s session, senators used the term remand to repeatedly refer to the action they intended to take in the case.

Even in his speech, another Duterte ally, Senator Bong Go, floated the idea of remanding the case to the lower chamber.

The plain definition of the word “remand” is “to order back.” In law, remanding means another body or court deciding to return the case to another body or court — usually for further proceedings or actions.

This also happens in cases where the appellate court sees deficiencies in a lower court’s decision; the higher court remands the case to the lower court to review or reconsider the case.

Remanding had been done in high-profile cases, such as the pandemic-time detention of activist Reina Mae Nasino and other political prisoners who asked the Supreme Court (SC) for humanitarian reliefs amid the COVID-19 threat. It took the SC five months to release a decision, which was to remand the political prisoners’ appeal for bail to lower courts.

Nasino’s daughter, Baby River, died while the activist was in detention. Nasino has been free for years now after courts quashed the warrants used against her and activists Ram Carlo Bautista and Alma Moran.

Remanding was also done in Rappler cases filed under former president Rodrigo Duterte.

When Rappler asked the Court of Appeals (CA) to void the Securities and Exchange Commission’s (SEC) shutdown order, the CA denied the news organization’s plea to reverse the order, but remanded the case to the SEC for review. In a 2024 ruling, the CA’s Special 7th division nullified and declared “illegal” the SEC’s shutdown order.

Unprecedented, unconstitutional

“Unprecedented” was the word used by Gatchalian to refer to the impeachment court’s move to remand the case.

“With this new intervention, in my opinion, dahil bago siya, parang unchartered territory na ‘di natin alam ‘yong mga susunod na steps (since this is a new approach, it’s like unchartered territory that we don’t know what the next steps would be)… I am probably concerned because without any precedents then we don’t know what’s gonna happen,” the senator told reporters after the June 10 session.

“It is dangerous and disingenuous, particularly when the rules of court have suppletory application. The same purpose could have been achieved by merely asking the House prosecutors to file a compliance and clarify certain issues,” Hontiveros explained during the proceedings.

“There’s no remand or return in the Constitution. The Senate’s obligation is to try and decide,” she added.

For constitutional law expert and University of the Philippines (UP) College of Law professor Dante Gatmaytan, the remanding of the case had no legal basis, adding that there was no point in returning the case to the lower chamber.

“It is only the Supreme Court that can determine the constitutionality of the acts of the House of Representatives,” Gatmaytan explained.

Like Hontiveros, UP Law faculty member and constitutional law professor Paolo Tamase said the Senate’s role in the impeachment trial proceedings was to try and decide. The upper chamber, according to Tamase, was not supposed to supervise or order the House on what to do in the impeachment case.

“It (remanding of the case) violates constitutional structure. The House and Senate are constitutionally equal even if they have different roles in impeachment,” the law professor said.

“In addition to those, it sets a bad precedent — it allows the Senate to punt a politically difficult impeachment to the other House, potentially resulting in an endless ping-pong. It’s not a reading of the impeachment provisions that furthers accountability of not just the impeached officer, but the Senate as well,” he added.

Impeachment: Dismissed or alive?

Some may view the remand as the middle-ground scenario: it was not an outright dismissal, and the impeachment is still in place. However, the remand added another complication to the proceedings, delaying the trial.

For Duterte allies like Dela Rosa, the adoption of his motion was a “victory” for them.

“The mere fact that the court approved the remanding or the returning of the articles of impeachment to the House of Representatives is a manifestation that they agree [with] my privilege speech that the articles of impeachment, the impeachment complaint, is constitutionally infirm,” the Duterte ally said.

Escudero justified their move by saying it was not a dismissal because the Senate will still issue summons for the proceedings.

The motion approved by the Senate was also two-pronged: One, it remanded the case to the House of Representatives and asked the lower chamber to certify that the impeachment complaint contains no constitutional violations.

“The House of Representatives already transmitted the Articles of Impeachment. That’s the certification that the Senate is asking for. It’s right before their eyes. They just need to open them,”
Amando Virgil Ligutan, one of the legal counsels of the impeachment complainants, said.

Gatchalian also said earlier that the Senate impeachment court could have just proceeded to trial to provide a forum to answer questions about the legality of the proceedings.

The Senate’s second demand in the motion said that the “House of Representatives of the 20th Congress communicate to the Senate that it is willing and ready to pursue the impeachment complaint against the Vice-President.”

This means there will be no full impeachment trial against the Vice President during the 19th Congress, which ends on June 13.

So is there a chance for the impeachment proceedings to go to full trial? The answer lies in the 20th Congress since the proceedings will spill over in a few weeks. For now, the impeachment trial is surely in limbo. – with reports from Dwight de Leon/Rappler.com