WHEN THE impeachment trial began on July 6, newly-elected presiding officer Francis Escudero opted to maintain the Constitutionally-specified ⅔ vote to convict Vice President Sara Duterte.
As early as then, the Senate en banc must have affirmed the rule, but did not, because it could delay the process which people are not anymore willing to accept.
With at least four senator-judges unable to take part in the impeachment trial, the issue on the senate impeachment court’s voting threshold has resurfaced.
First on the list is Senator Ronald “Bato” dela Rosa who was last seen on May 14 following a failed attempt to arrest him in view of an arrest warrant from the International Criminal Court.
Weeks later, Senators Senators Jinggoy Estrada and Rodante Marcoleta were arrested and have since been in jail for alleged involvement in anomalous flood control projects.
Recently, talks on an imminent arrest of Sen. Alan Peter Cayetano was floated after being dragged into dubious lake reclamation and ghost flood control projects in Taguig City
Meanwhile, Sen. Loren Legarda (who is on extended leave) has yet to return after leaving the country last month for “medical check-up” in Paris, France.
Persistent reports on what has been aptly referred to as “imminent arrest” also haunts Sen. Bong Go for his alleged role in the bloody war against drugs for which former President Rodrigo Duterte was ordered arrested and flown to the Hague to face charges before the ICC.
The name of Sen. Robin Padilla was also mentioned for allegedly helping dela Rosa escape.
All told, the number of active senator judges has gone down and future arrests may happen soon, should the impeachment trial drag on beyond the 92 trial days (62 prosecution days allotment and 30 for defense). Today is the 23rd trial day.
Now the Senate, considering the decimated current attendance and participation, and upon the query posed by Sen. Erwin Tulfo, would be revisiting the ⅔ threshold (or 16 senators) required to convict the VP. Legal experts or amici curiae (friends of the court) would be asked about their legal opinion on the matter. And the Senate had set a decision by September 23.
The Senate impeachment court, with legal experts, will weigh in on the matter on Sept. 16 before the prosecution and defense present their arguments on Sept. 23.
The court’s presiding officer, Sen. Francis Escudero, ruled to have it taken up after Senator-Judge Erwin Tulfo formally asked the body to reconsider Escudero’s July 6 pronouncement that a vote by two-thirds of all 24 senators—or 16 votes—is needed for a conviction.
Article XI, Section 3(6) of the 1987 Constitution provides that an impeached official cannot be convicted “without the concurrence of two-thirds of all the members of the Senate.”
The dispute centers on whether “all members” should mean all 24 senators regardless of their ability to participate, or only those legally able to take part in the impeachment proceedings and final vote.
Escudero said the court would not immediately resolve Tulfo’s appeal through the usual ayes-and-nays vote because of the “sensitive and serious nature” of the issue.
Instead, the court will hear from the amici curiae on Sept. 16. The prosecution and Duterte’s defense will each be given 15 minutes to present their positions during oral arguments on Sept. 23, after which the Senate will vote on the threshold question.
Escudero said the legal experts could provide independent expertise and perspectives on the constitutional issue. Their names have yet to be announced as the court is still confirming their availability.
Opposing Views
Senator-Judge Francis Pangilinan said the amici could include eminent legal experts, retired chief justices or Supreme Court justices, and constitutional law specialists.
The question has already drawn differing views from retired Supreme Court justices and a former president of the Integrated Bar of the Philippines (IBP).
Former SC Associate Justice Adolfo Azcuna, in a June 19 ANC interview said he believed the 16-vote requirement should remain because the Constitution refers to the membership of the Senate, not merely those physically present.
“My view is that the voting threshold is based on the number of members of the Senate whether or not those members are present or able to actively participate,” Azcuna said.
“As long as they remain members of the Senate they should be counted in computing the two-thirds,” he added, maintaining that the threshold remained 16 because the four senators unable to participate were still members of the chamber, the Star reported.
But for Dela Rosa, Azcuna said if the senator is legally considered a fugitive, his status could potentially amount to a constructive resignation because he had placed himself outside the legal system.
Retired Supreme Court Senior Associate Justice Antonio Carpio, in his June 21 social media post, argued that the ⅔ computation should be based on senators who are legally qualified to participate in the proceedings. “If you cannot hold office, you cannot vote,” Carpio said.
But his view on Dela Rosa was that the senator remains such because he had neither been suspended nor removed from office.
Former IBP president Domingo Cayosa, in an interview with the Inquirer on July 11, said the 16-vote threshold could be lowered to reflect the senators actually able to participate in the impeachment trial.
Cayosa described this as a “fair and practical” reading of the Constitution, saying it was consistent with the Charter’s spirit, which he characterized as “not restrictive.”
The operative phrase, he said, was “two-thirds” of all members of the Senate.
Even if Estrada, Dela Rosa and Marcoleta have not been unseated by any constitutional means, “they all become judges.”
Still “how can you be a judge when you were not there, [and] you did not observe and participate.” Cayosa explained. He nonetheless acknowledged that a “simple and strictly literal” reading of the Constitution, from the defense’s perspective, would keep the threshold at 16.
Tulfo’s Issue
Tulfo on Tuesday asked whether senators who are unable to attend the trial should nevertheless be allowed to vote.
“When we refer to all members, who exactly are we counting?” Tulfo asked.
He questioned whether the absent senators’ votes would be accepted despite their nonparticipation, or whether their absence would effectively count as a vote against conviction.
Tulfo warned that retaining a fixed 24-member voting base could result in an “acquittal by default” if enough senators were unable to cast votes.
He cited Avelino v. Cuenco, which he said considers members within the Senate’s coercive jurisdiction in determining the voting base and quorum.
Senator-Judge Pia Cayetano disputed the argument, saying it was inaccurate to suggest that the Senate had adopted the Supreme Court ruling as its governing rule.
Escudero clarified that Tulfo’s appeal seeks a determination of what constitutes “all members” under the Constitution. He also pointed out that changing the voting base would affect not only the two-thirds requirement for conviction but also the one-third threshold for acquittal.
Tulfo said the matter should be resolved quickly because the trial calendar has been expedited, with the prosecution dropping several witnesses and Duterte’s defense indicating it might not present its own case.
“These developments… could bring the court to the final question sooner than expected,” Tulfo averred.
He stressed that he was not seeking to make conviction easier, but to settle how the constitutional requirement should operate under the Senate’s present circumstances.
Sen. Raffy Tulfo, meanwhile, asked how the absent senators would be able to vote intelligently.