Convicting Vice President Sara Duterte will no longer require a fixed 16-vote threshold, as the Senate impeachment court ruled on Wednesday, Sept. 23, that the constitutional two-thirds majority applies only to senators eligible to participate.
The ruling, which followed a 13-1 vote with six senators not participating, overturned the 16-vote threshold set by Senate impeachment presiding officer Sen. Francis Escudero at the start of Duterte’s impeachment trial last July 6.
Escudero has stood by Article XI, Section 3(6) of the 1987 Constitution, which stated that the Senate has the “sole power to try and decide all impeachment cases, and requires a concurrence of two-thirds of all the members of the Senate for a conviction.”
The 13 who voted to scrap the fixed 16-vote threshold were mostly senator-judges belonging to the majority: Senate President Sherwin Gatchalian, Senate Pro Tempore Vicente Sotto III, Senate Majority Leader Miguel Zubiri, Panfilo Lacson, Francis Pangilinan, Bam Aquino, Risa Hontiveros, Raffy Tulfo, Erwin Tulfo, Joel Villanueva, JV Ejercito, and Lito Lapid. The lone minority member who voted with them was Sen. Mark Villar.
The six senator-judges who boycotted the vote were Senate Minority Leader Alan Peter Cayetano, Pia Cayetano, Imee Marcos, Bong Go, Camille Villar, and Robinhood Padilla.
Escudero stance
As expected, Escudero voted against the motion introduced by Sen. Erwin Tulfo on Sept. 8, which was tackled on Wednesday, to determine who could vote in the impeachment trial, given the absence of four senators for months now.
“For the record, while the chair takes exception to this decision, the chair nonetheless accepts it as a judgment of this court and is bound to give it effect. The presiding officer, after all, is not the court. He is merely the custodian of the process, not the proprietor of its outcome,” Tulfo said.
But after the vote, Escudero made it clear that the impeachment court’s ruling and interpretation of the conviction voting were only pro hac vice or “for this occasion only.”
“It shall not constitute a binding precedent in any future impeachment proceedings,” he said. “This is a ruling, not an amendment of the rules.”
“Further, the circumstances that gave rise to this ruling [are] extraordinary. It has never happened before, and the chair hopes that it shall never happen again,” Escudero stated.
4 absent
The senator-judges revisited the conviction threshold after four of their colleagues had been physically absent from Duterte’s impeachment trial.
Senators Jinggoy Estrada and Rodante Marcoleta are currently detained for their respective plunder cases; Sen. Ronald “Bato” dela Rosa is in hiding after the International Criminal Court had issued an arrest warrant for the crimes against humanity case filed against him and former president Rodrigo Duterte in relation to the drug war; and Sen. Loren Legarda has been on medical leave abroad for over a month now.
The impeachment court’s move to vote on the conviction threshold came a week after it invited four retired Supreme Court justices as amici curiae (friends of the court) to hear their legal interpretations on the issue.
Retired Chief Justices Hilario Davide Jr., Artemio V. Panganiban, and Reynato S. Puno all said the number of votes to remove an impeachable official should not be fixed at 16.
On the other hand, retired Associate Justice Adolfo Azcuna pushed for the 16-vote threshold as it comprises the constitutionally required two-thirds of the 24 senators.
Both the prosecution and defense teams, represented by Akbayan Party-list Rep. Chiel Diokno and lawyer Michael Poa, respectively, gave their positions on the threshold issue on Wednesday, Day 29 of Duterte’s impeachment trial.
‘Controlling’ ruling
After the vote, Escudero cited the “controlling” ruling of the court, where, in determining the two-thirds concurrence required for conviction, it states that “all members of the Senate shall refer to those members, who, at the time of the vote, remain legally and factually capable of participating in the proceedings.”
Excluded are those who are “detained and/or suspended or otherwise legally restrained from exercising the function of a senator; persons sought by authorities whose whereabouts are unknown; suffering from physical or medical incapacity; beyond the coercive processes of the Senate; others similarly situated.”
Escudero said the impeachment court will determine “whether a member fails within any of the five circumstances” based on “competent and sufficient evidence.”
“The remaining senators shall constitute the denominator from which the required two-thirds concurrence shall be computed,” he said.
But when the computation of two-thirds results in a fraction, “the number of votes required for conviction shall be rounded up to the next higher whole number, even if the fraction is less than 0.5.”
Cayetano appeal
Before the vote, Sen. Alan Peter Cayetano had told the impeachment court that the minority would not participate in the voting. “We don’t think it’s a matter that we can vote on,” he said, adding: “You don’t taste poison. You don’t vote on what’s right or wrong.”
Cayetano sought to stop the vote by raising a point of order to Tulfo’s motion. He had earlier argued that the Supreme Court should tackle the threshold question.
But Cayetano’s appeal lost, with a 13-6 vote and one abstention.
With the new voting threshold, the defense team said Duterte “does not shrink from accountability, nor does she fear the outcome of this impeachment trial.”
“(Vice President Duterte) asks for nothing spectacular from this Court, only the most essential and basic guarantees due to every individual: fairness and impartiality from (this) court,” lead defense counsel Sheila Sison said.
Sison also said that from this day forward, Duterte’s participation in the trial would proceed with caution. “That she reserves every right to exhaust all legal remedies available under the law and Constitution,” she added. CS
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