Sara Duterte can't serve as Rodrigo Duterte's legal counsel in ICC. Here's why

What does the Constitution say?

University of the Philippines Constitutional Law Professor John Molo told PhilSTAR L!fe Roque is referring to Section 13, Article VII of the 1987 Constitution.

The provision states that "the President, Vice President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure."

"They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office," the law reads.

Sara followed Rodrigo to The Hague after the former president's arrest on March 11.

On March 17, Roque said—and later retracted—that if the VP was applying to be Duterte's counsel, it was so she could get access to him as each family visit requires communication with the detention facility. 

"The Vice President of the Philippines cannot appear as legal counsel before the ICC," Atty. Ralph Sarmiento, the dean of the College of Law of University of St. La Salle, said, adding that the prohibition in the Constitution includes serving as legal counsel.

"The prohibition applies to all forms of professional practice, whether domestic or international. The Constitution does not distinguish between practicing law within the Philippines or abroad," he continued. "The Vice President, as a public official, is bound by the same ethical and constitutional restrictions regardless of the jurisdiction."

These rules are in place to prevent conflict of interest and ensure high-ranking officials can focus solely on their official duties, according to Sarmiento.

Both lawyers noted that this rule under Sec. 13, Art. VII does not apply to all government posts, elected or otherwise—it specifically names the President, Vice President, Members of the Cabinet, and their deputies or assistants.

There are other separate prohibitions for other government offices and employees.

"No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure, unless otherwise allowed by the Constitution or by law," Sec. 7 of Article IX-B states.

There are exceptions to the prohibitions, according to Sarmiento. The Supreme Court ruled in Civil Liberties Union v. Executive Secretary G.R. No. 83896 (1991) that officials may hold ex officio positions if these are inherent to their primary functions and do not involve additional compensation.

An "ex officio" position refers to a role that is automatically held by virtue of another position one person occupies.

Former president Duterte's legal defense team will consist of British-Israeli lawyer Nicholas Kaufman as his lead counsel, while former executive secretary Salvador Medialdea and Roque will be the supporting lawyers. 

On March 14, the controversial ex-leader attended his first hearing through a video link where he was informed of his alleged crimes against humanity and his rights as a defendant.

His next appearance is set for Sept. 23 for the next stage of the process, a hearing to confirm the charges.

Duterte could be the first Asian former head of state to be indicted by the ICC. 

At the confirmation of charges hearing, the judges will decide whether the prosecution has presented enough evidence for the case to go to trial.

If the charges are confirmed, it could be months before the case eventually goes on trial, and years before a final judgment is rendered.

Vice President Duterte, meanwhile, faces an impeachment trial that will start in July.