Ex-SC justices: No violation of due process if 16 votes are changed

Former Supreme Court (SC) chief justices Artemio Panganiban, Reynato Puno, and Adolfo Azcuna said Wednesday that there is no violation of due process if ever the Senate, acting as impeachment court, decides to change the voting threshold of 16 to convict Vice President Sara Duterte.

Senator-judge Francis Kiko Pangilinan asked the three amici curiae, or "friends of the court," whether they think there will be a violation of due process if the voting threshold is changed while the trial is already ongoing.

"There has been some commentary that the threshold vote ay changing the rules. Therefore, the due process requirement of the respondent and even the prosecution, when you change the rules in the middle of the proceedings, maapektuhan yung due process clause. Kasi dapat hindi binabago habang nagkakaroon ng paglilitis. Could you care to comment?" Pangilinan asked.

(There has been some commentary that [revising] the threshold vote is changing the rules. Therefore, the due process requirement of the respondent and even the prosecution—when you change the rules in the middle of the proceedings, the due process clause gets affected. Because rules shouldn't be changed while a trial is ongoing. Could you care to comment?)

Panganiban said that there is no violation as the voting has yet to commence.

"Wala pa pong paglabag, sapagkat hindi pa kayo bumuboto. In other words, it hasn't been implemented. Wala pa po. Hindi pa ini-implement. Kaya tuwing yung ginagawa niyo nga, you are anticipating the issue, the problem. So commendably, you are doing this meeting so that you cannot be accused of grave abuse of discretion kung sakaling dumating 'yun," he said.

(There is no violation yet, because you haven't voted yet. In other words, it hasn't been implemented. Not yet. It hasn't been implemented. So with what you are doing, you are anticipating the issue, the problem. So commendably, you are holding this meeting so that you cannot be accused of grave abuse of discretion should that time come.)

"Maaaring magpalit at isip niyo ngayon, pagkat hindi pa nangyayari, hindi pa kayo nagbobotohan. Kaya there is no grave abuse of discretion, in my humble opinion, as of now," he added.

(You may change your mind right now, because it hasn't happened yet—you haven't taken a vote yet. That's why there is no grave abuse of discretion, in my humble opinion, as of now.)

Pangilinan repeated the question to the two other former SC justices.

"Our presiding officer has ruled that it is 16. Now, if we reconsider that ruling and decide as a court that it is lower than 16, or if we decide that it is 16, walang problema. Pero if we decide it's lower, is it a denial of the respondent's right to due process that the rules were changed in the middle of the proceedings?" he asked.

(Our presiding officer has ruled that it is 16. Now, if we reconsider that ruling and decide as a court that it is lower than 16, or if we decide that it is 16, there is no problem. But if we decide it's lower, is it a denial of the respondent's right to due process that the rules were changed in the middle of the proceedings?)

Puno noted that the impeachment court is currently discussing the rule.

"It's a vague question when you say changing the rule. Wala pa naman talagang rule. Tsaka kung ang ginagawa po ay tinatalakay kung ano talaga yung meaning nung particular rule na 'yun, ay hindi po changing the rule 'yun. Tinatama lang yung dapat maging interpretasyon nung rule, lalong lalo na yung isang rule na napakaraming reasonable interpretations," he said.

(It's a vague question when you say changing the rule. There isn't really a settled rule yet. Besides, if what is being done is discussing the actual meaning of that particular rule, that isn't changing the rule. It's simply correcting what the proper interpretation of the rule should be, especially for a rule that has so many reasonable interpretations.)

"Dapat yung aakyat sa Supreme Court must demonstrate an injury. Papaano ide-demonstrate yung injury na 'yun kung wala pang final interpretation yung Senate, wala pang applicability ito," Puno added. "Baka yung bagong interpretasyon ay makinabang pa yung magre-raise ng constitutional issue. Palagay ko ay hindi tatanggapin ng Korte Suprema itong issue na ito sa panahon na ito. It's a matter of perfect timing."

(Whoever goes to the Supreme Court must demonstrate an injury. How can that injury be demonstrated if the Senate hasn't rendered a final interpretation yet, and when there is no applicability so far? The party raising the constitutional issue might even benefit from the new interpretation. I believe the Supreme Court will not entertain this issue at this time. It's a matter of perfect timing.)

Meanwhile, Azcuna echoed the sentiments of his colleagues.

"Because the question of the interpretation of the 2/3 is a procedural matter. And procedural matters can be retroactive. There is no vested right to a procedure. So the rule is if it's procedural, it can be applied to pending cases," he said.

"So even if the trial has already started and you change the interpretation of the presiding officer, I think there is no violation of due process. There's no vested right that has been violated because all these matters are procedural," Azcuna added.

After his election as presiding officer, Senator Francis Escudero stressed that the 1987 Constitution provides that no person shall be convicted without the concurrence of two-thirds of all the members of the Senate or 16 votes.

Escudero also confirmed that his statement constituted a formal ruling of the impeachment court, which is subject to any legal remedies available to the parties.

Meanwhile, four of the current 24 senator-judges of the vice president's trial are either detained for plunder cases or remain in hiding. —LDF, GMA News