Can Vice President Duterte testify on her behalf?

The short answer is, she should, because otherwise all the evidence presented by the prosecution will stand unchallenged. Not that this will matter to her solid supporters, but it will likely influence undecided voters. Clearly, the Bill of Rights protects her against self-incrimination. But this story is more complicated than it seems. Vice President Sara Duterte cannot be compelled to testify against herself, but the circumstances seem to be compelling her to testify on her behalf.

Indeed, another constitutional controversy is afoot.  There is no doubt that the impeachment court has the power to compel witnesses to testify. But does that power extend to forcing the impeached official to testify against herself? The impeachment court is actually considering compelling the Vice President to testify for the prosecution as a hostile witness. Though it has indicated that it may, yet again, hear oral arguments before deciding to issue a subpoena.

Article III, Section 17 of the Constitution is clear: “No person shall be compelled to be a witness against himself.” This is the constitutional right against self-incrimination.  But there is an important distinction to make here. An ordinary witness who receives a subpoena generally has to appear, take the stand and answer questions. That witness may refuse to answer a particular question if the answer could incriminate them. But an accused in a criminal case may refuse altogether to take the witness stand.

This distinction lies at the heart of this controversy.

Impeachment is not a criminal case. The 1987 Constitution treats it as a distinct constitutional process. Its immediate consequences are removal from office and permanent disqualification from holding any public office. Criminal liability, if any, remains a separate matter. Pertinently, whether the impeached official is convicted or acquitted, criminal prosecution must be pursued if warranted by the facts.

Some have argued that an impeached official should not automatically enjoy the same absolute protection against taking the witness stand that a criminal suspect enjoys. They contend that the official could be required to appear and simply invoke the privilege when a particular question could incriminate her.

But there is a serious flaw with that position. Bear in mind that the Bill of Rights is sacrosanct. The right against self-incrimination does not disappear because the proceeding is impeachment rather than a criminal trial. Constitutional rights protect everyone—including the Vice President. This may not be real to some of members of the polity, but it is a constitutional principle that must always be asserted. Especially, when it is being ignored.

Forcing the Vice President to testify against herself would be unconstitutional. But this must also mean that compelling the impeached official to take the witness stand would be offensive to the Bill of Rights. It cannot be emphasized enough that the Bill of Rights is sacrosanct. Under no circumstance can it be compromised.

Nevertheless, the reality is only the Vice President can directly answer the accusations against her. Her subordinates cannot speak for her on matters uniquely within her knowledge. This creates a difficult political and evidentiary choice. She cannot be forced to testify. But if she wants to directly challenge the prosecution’s evidence and tell her side of the story, the proper time to do so is when the defense presents its case.

The Vice President’s constitutional right not to testify must be respected. But so too is the political reality that silence carries consequences in an impeachment trial. If the Vice President chooses not to take the stand voluntarily, the prosecution’s evidence will remain substantially unchallenged. This means preserving the existence of clear and convincing evidence to support the impeachment charges, specifically the one on the misuse of confidential funds.