LEGAL experts are split over whether the prosecution in the impeachment trial of Vice President Sara Duterte has established criminal intent behind Duterte's alleged grave threats against President Ferdinand Marcos Jr.
The trial enters its second week Monday with legal luminaries offering contrasting views on the prosecution’s performance during the trial’s opening phase.
The prosecution panel from the House of Representatives concluded its presentation of evidence on the first article of impeachment, which centers on Duterte's Nov. 23, 2024 online press conference where she said she had instructed someone to kill President Ferdinand Marcos Jr., first lady Liza Araneta-Marcos and former House speaker Martin Romualdez should anything happen to her.
Retired Supreme Court Associate Justice Adolfo Azcuna said the panel presented sufficient evidence to establish mens rea, or criminal intent, an essential element of the crime of grave threats under the Revised Penal Code.
"All crimes under the Revised Penal Code require criminal intent. It cannot be based merely on a physical act. Unlike offenses under special laws, where the physical act alone is sufficient to constitute the crime," Azcuna said.
He cited the testimony of National Bureau of Investigation (NBI) Senior Agent John Mark Calilung, the prosecution's first witness, particularly his response to a question from Senator-Judge Alan Peter Cayetano on how investigators determined the gravity of the alleged threat.
Azcuna said Calilung's explanation that investigators considered the capability of the person making the threat to carry it out was crucial in proving criminal intent.
"She has the capability to do it. If she did not, then it would simply be treated as a joke," he said.
He likened the assessment to a game of chess. "When you are playing chess, you are examining the position of your opponent. You do not judge the opponent based on what you think his intention is; you base it on what he can do based on the position," he said.
Azcuna, however, stressed that establishing criminal intent does not automatically make Duterte liable.
"The prosecution has, in my view, shifted the burden of the evidence to the defense, which can still rebut and correct the conclusion drawn," he said.
He noted that Duterte may still personally or through counsel show that she was not serious in making the statement or that her remarks were justified by a perceived threat against her.
"This is, after all, not a criminal case but a case for accountability involving the country's second highest official. She must still be given the opportunity to explain and account for her actions. It is not game over. Rather, the ball is still in play," he said.
Azcuna also said prosecutors were correct in presenting the grave threats allegation first because it is "the easiest to understand" and "easy to prove since it came from Duterte herself."
International law expert Melissa Loja saw things differently, saying the prosecution has yet to establish an impeachable offense that would warrant Duterte's conviction.
"All said, there is no picture emerging of an impeachable offense for which Duterte can be convicted," Loja said.
She said that much of the first two days of testimony focused on an issue that was never disputed.
"It was a wasted two days on a witness who was testifying on a matter which is not disputed," she said.
Loja said prosecutors primarily called the witness to authenticate and formally introduce as evidence the video recording of Duterte's statements.
She noted, however, that the defense could not simply challenge the authenticity of the recording by maintaining that the footage was selectively edited. Instead, the defense could challenge its admissibility under the Rules on Electronic Evidence by arguing that a "chopped up" recording should not be admitted.
Loja said the defense is expected to present witnesses who will argue that Duterte's remarks amounted only to a conditional threat of reprisal rather than an unconditional threat to initiate violence.
Loja also said the trial highlighted the Senate's dual political and judicial roles.
She said she found Senate President Sherwin Gatchalian's role in advising Sen. Francis Escudero during the proceedings as "awkward."
"He seems to symbolize the other half of the schizophrenic personality of an impeachment. On the one hand, it is political. On the other hand, it is judicial," Loja said.
She said that if Gatchalian was seen whispering to Escudero before a ruling, "his mutterings would certainly be misunderstood as a political interjection into a judicial ruling."
Loja defended Escudero's handling of the proceedings despite continuing questions over the scope of his authority as presiding officer.
"Despite his questionable authority as presiding officer, Senator Escudero did his best to balance the inherent right of senator-judges to put forward questions to the witnesses and counsels," she said.
Loja noted that the Senate impeachment rules permit senators to question counsel, contrary to claims that they are barred from doing so.
She also said restraint was necessary, particularly in the case of Sen. Risa Hontiveros, whom she said lacks legal training and judicial experience.
Prosecution spokesman and Lanao del Sur Rep. Zia Alonto Adiong said on Sunday the panel will next call to the witness stand NBI Regional Director Jeremy Lotoc, who led the bureau’s investigation on Duterte’s assassination threat.
Adiong also said Duterte’s video was beyond an ordinary threat because she described arranging for someone to carry out killings.
In a radio interview, Adiong said Duterte’s own words suggested more than an angry outburst.
“Hindi na pagbabanta ’yon. Ano na po ’yan? Meron na pong (That is no longer a threat. What is that? There is already a) capability. Because the understanding has already been made. The request has already been made and, as a response to that request, the hitman agreed... to carry out the order,” Adiong said.
He said the prosecution’s position is based on Duterte’s description of an alleged arrangement with another person, rather than on a simple expression of anger.
Adiong said Duterte went on to describe an alleged instruction to carry out the killings if anything happened to her.
The defense has argued that Duterte’s remarks should be viewed in the context of an alleged plot against her, invoking what it called “Oplan Romanov,” an alleged operation that supposedly placed the vice president under threat.
Senator-Judge Panfilo Lacson on Sunday noted that the proceedings last Wednesday ended early because the next witness, Lotoc, was not in the Senate premises at that time.
Lacson proposed measures to minimize delays in the trial, including having witnesses expected to testify during the week remain readily available at the Senate premises.
"One suggestion I made was that the defense and prosecution make sure their witnesses for one week are readily available in a holding room, so if we finish early with one witness, we can move to the next and not waste time," Lacson said in English and Filipino.
If the trial continues at the current pace of only one witness per week, it may stretch through the Christmas holidays and beyond, he said.
He said Escudero was open to the suggestion.
