Senators have discussed the possibility of lowering the 16-vote conviction threshold for Vice President Sara Duterte’s impeachment trial due to the absence of four of their colleagues.
Senate Majority Leader Juan Miguel Zubiri said on Thursday that the issue was raised during a caucus held the previous day.
‘There are some senators that have questioned the threshold and it may come up sooner or later,’ Zubiri said in a press conference. ‘There are those who are detained, one is at large. So I think that’s the issue now.’
He was referring to Senators Jinggoy Estrada and Rodante Marcoleta, both detained on plunder charges, and Sen. Ronald ‘Bato’ dela Rosa, a fugitive facing an arrest warrant from the International Criminal Court.
A fourth, Sen. Loren Legarda, is abroad on medical leave.
Zubiri noted that the Senate ‘still had a complete state’ when Sen. Francis ‘Chiz’ Escudero, the impeachment court’s presiding officer, made the 16-vote ruling in July.
‘That issue has to be answered soon enough by the presiding officer,’ he said.
Constitutional provision
On July 6, the first day of Duterte’s impeachment trial, Escudero declared that conviction will still require at least 16 votes from senator-judges.
He made the pronouncement in his opening statement where he tackled the threshold questions that will guide the conduct of the proceedings and rulings.
‘The Charter provides that the Senate shall be composed of 24 senators, without a tinge of doubt, two-thirds of the figure or not less than 16 members, is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article 7,’ said Escudero.
‘It behooves, therefore, all of us, to observe the same fidelity to the Constitution, in this trial, which affects not only the mere ratification of a treaty, but more so affects the substantial rights of the respondent, as well as the sovereign will of the people as expressed in the overwhelming mandate given to her,’ he added.
Public debate
Escudero also said those who disagree with the threshold can seek judicial relief with the Supreme Court.
While no one among the senator-judges challenged it then, questions over the conviction threshold have persisted as the number of senator-judges decreased over the course of the trial due to legal or medical reasons.
Zubiri said the best way to resolve the issue would be to debate it publicly.
He added that should the Senate decide to change the threshold, it was expected that it would be challenged before the high court.
Focus on evidence
In various interviews, lawyers Jay Tolosa and San Juan Rep. Ysabel Maria Zamora of the House prosecution panel, along with spokesperson and former Surigao del Norte Rep. Robert Ace Barbers, said the team was not entertaining the idea of pushing to lower the threshold.
‘Our position on this has been consistent from the very start. We don’t engage in vote counting. At the end of the day, our priority here is to establish an airtight case. We will ensure that, with our case, this will be backed by solid evidence,’ Tolosa said.
‘So that when the trial ends, regardless of what will be the final interpretation of the two-thirds threshold, we will get these numbers. So that is the priority of the prosecution from the start, and it remains to be our priority until now,’ he added.
Nuance in interpretation
Former Integrated Bar of the Philippines (IBP) president Domingo Cayosa, however, said earlier that the threshold may be lowered to reflect who among the 24 senator-judges were present to participate in the trial.
Cayosa said this would be the ‘fair and practical’ reading of the 1987 Constitution as it is in accordance with the spirit of the Charter, which is ‘not restrictive.’
The operative concept, he added, that ties such an interpretation is the word ‘two-thirds of all members of the Senate.’
‘[Estrada, Dela Rosa, and Marcoleta] are all alive and are not yet unseated by any of the constitutionally allowed modes of removal, so they are still senators,’ Cayosa said. ‘Except when they transform themselves into an impeachment court, they all become judges.’
He pointed out that this is where the nuance in interpreting the constitutional provision comes in ‘because how can you be a judge when you were not there, [and] you did not observe and participate.’
‘But if one is on the side of the defense,’ he added, a ‘simple and strictly literal’ reading of the Charter would put the voting threshold at 16.
Last month, Bicol Saro Rep. Terry Ridon said only the impeachment court can decide on the number of votes needed to convict Duterte.
Our perspective on that is that, in the end, it is not for the prosecution or defense to determine the threshold. It is for them. It is for the senator-judges to make that determination,’ he said.