Explained: What happens to 'biased' senator-judges in Sara Duterte's impeachment trial?

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MANILA, Philippines — Senators now serve as impeachment judges, not just lawmakers. Yet some have been seen publicly fraternizing with Vice President Sara Duterte, casting doubt on the impartial justice they swore to deliver.

This goes beyond mere ethical lapses. According to political scientist Cleve Arguelles, the senator-judges’ perceived bias cuts to the core of public trust in the country’s democratic checks and accountability mechanisms.

“What a disappointment that it’s the senator-judges themselves who would make it easy for the public to undermine whatever sense of independence they have created by taking that oath, by having everything televised,” he told Philstar.com in an interview.

Two days after taking their oath as senator-judges, Senators Robin Padilla and Imee Marcos joined Duterte on a trip to Malaysia for an Independence Day celebration on June 12.

Onstage, Padilla even pitched himself as campaign manager for a potential “Sara-Imee” tandem in the 2028 elections. Marcos, meanwhile, rallied the audience to “stand behind” the vice president.

While their loyalty to the Dutertes was no secret, both stood and took the oath as senator-judges. With their names entered into the Senate roll, their role in the impeachment court was already official.

Robes aside, their duty to remain impartial had already taken effect when the impeachment court convened on June 10. 

This raises the question: Are they violating their oath?

Inappropriate for a senator-judge

For Antonio La Viña, constitutional law lecturer at the University of the Philippines College of Law, the answer is straightforward: yes, the senator-judges are breaching their sworn duty.

“Yes. It’s clearly inappropriate,” he told Philstar.com in a message.

Based on the Senate’s adopted rules, this is the oath senators took in the case of Duterte’s impeachment:

“I, (state your name), solemnly swear that in all things appertaining to the trial of the impeachment of Vice President Sara Zimmerman Duterte, now pending, I will do impartial justice according to the Constitution and laws of the Philippines: (So help me God).” 

With this oath, lawyer and litigator Dino de Leon stressed the oath demands strict impartiality. The “sui generis” or unique nature of impeachment proceedings does not exempt senator-judges from this obligation.

“While Impeachment Proceedings are Sui Generis, it does not excuse senator-judges when they exhibit manifest partiality. They have to remember that their sworn oath is to do impartial justice,” he told Philstar.com in a message. 

While some believe the behavior of certain senator-judges clearly violates their oath, UP College of Law assistant professor Paolo Tamase said “context matters” in the public gatherings they attend.

He explained that impeachments are “part-political, part-legal” and differ from typical court proceedings. The “very strict rules” of judicial ethics that apply to trained judges, he said, are not imposed on senators sitting in an impeachment trial.

It’s not illegal to be friends with the defendant. But when senator-judges publicly associate themselves with the vice president, Tamase warned, it risks eroding public trust in the Senate and trial as a whole.

“But that continued public association will definitely have an impact on the people’s trust not just in individual senators but the Senate as an institution — can they really dispense justice in these proceedings with the expected political neutrality?” he told Philstar.com in a message. 

Arguelles said this is precisely why donning the robes and taking their oath matter. “It’s theatrics with a purpose,” he said. Padilla and Imee were two of those who chose not to wear the robe. Another was Sen. Cynthia Villar. 

Given that senators are political and partisan actors, Arguelles said these rituals are all the more important to assure the public they can be trusted to set aside their alliances and judge fairly in the trial.

With questions now raised over the impartiality of some senator-judges, is there any way to ensure fairness in the trial?

Inhibition of senator-judges

One option is for those biased to voluntarily recuse themselves from the proceedings.

But can someone move for their inhibition, and would it be put to a vote? According to Senate President Chiz Escudero, who presides over the impeachment court, no such vote will take place. 

It will be up to each senator-judge to decide, guided by their conscience, whether to inhibit themselves.

The House prosecution panel earlier said it is exploring legal remedies to preserve the integrity of the impeachment process in line with the Constitution and Senate rules. Among the options being considered is a motion for inhibition.

La Viña, de Leon and Tamase all stressed the same point: the decision for a senator-judge to step aside is entirely voluntary. 

De Leon, however, thinks it is unlikely for those perceived as biased to recuse themselves. 

“It is possible, but knowing these senators, I don't think they will inhibit themselves,” he said.

“Delicadeza is the root of voluntary recusal, which I think is not part of their values by the mere fact that they are behaving more like lawyers of Sara instead of impartial judges,” de Leon added. 

Without specific Senate rules on inhibition, Tamase explained that any senator-judge who breaches their oath of political neutrality is, in theory, “subject to discipline by the Senate as a whole.” 

But if a senator-judge recuses themselves, what happens to their vote? 

Like a vote for acquittal

Since it hasn’t happened before, Tamase said there is no clear guidance on the fate of a recused senator-judge’s vote in the impeachment trial. 

However, he pointed out that under the Constitution, a conviction requires the vote of two-thirds of “all members” of the Senate, not merely two-thirds of those voting.

It is as if inhibiting would result in a vote for the impeached official’s acquittal, since it means fewer senator-judges voting for conviction.

Still, Tamase said it helps preserve the fairness of the trial when a senator-judge recognizes their bias and chooses to step aside.

“Inhibition won’t be all for naught in that case. It still removes from the court a senator-judge who can act as shadow counsel for or against the accused,” he said. 

“It helps the institution maintain political neutrality and removes a referee that can actively help a party,” Tamase added. 

What to look out for

Amid confusion over the Senate’s order to return the articles of impeachment, the House prosecution has filed a motion for clarification. It seeks to understand what the Senate meant by the move and what specific outcome it hopes to achieve. 

Deferring receipt of the articles, the House said it will only comply with the impeachment court’s order once clarification is issued and deemed in accordance with the law.

For Escudero, the House has no choice but to comply with the order since both chambers of Congress are no longer co-equal bodies after the impeachment court convened. The Senate has also issued a writ of summons to Duterte, asking for her response to the articles of impeachment. 

With the clarification sought, it’s the Senate’s turn to respond. But the House prosecution is firm: the Senate has acquired jurisdiction, and the trial must continue even into the 20th Congress.