Impeach court ruling on conviction threshold: Who can’t vote?

MANILA, Philippines — With the Senate Impeachment Court ruling to lower the threshold needed to convict Vice President Sara Duterte, Presiding Officer Francis Escudero has laid down specific conditions on who will not be allowed to vote once they decide on the case.

After the oral arguments on Wednesday, 13 senator-judges present voted to lower the number of votes required to convict Duterte.

They also agreed that the denominator that will be used to determine a two-thirds vote will rely on how many members of the Senate are available.

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According to Escudero’s ruling, the following members are excluded from the voting process:

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• Detained and/or suspended, or otherwise legally restrained from exercising the functions of a senator
• Persons sought by authorities whose whereabouts are unknown
• Suffering from a physical or medical incapacity
• Beyond the coercive processes of the Senate
• Others similarly situated

“To determine the two-thirds concurrence required for conviction under Article XI, Section 3(6) of the Constitution, the phrase ‘all members of the Senate’ shall refer only to those members who, at the time of the vote, remain legally and factually capable of participating in the impeachment proceedings,” Escudero said.

“The impeachment court shall determine on the basis of competent and sufficient evidence whether a member falls within any of the five circumstances mentioned in the new controlling ruling,” he noted.

“The remaining members shall then constitute the denominator from which the required two-thirds concurrence shall be computed,” he added.

Escudero further clarified that the number of votes required to convict Duterte will still be two-thirds of the members present. 

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But in case the computation of two-thirds results in a decimal point — like in case only 20 senator-judges remain, which means that 13.33 will be the two-thirds — Escudero said that they will round up the number even if the decimal point is less than 0.5.

This means that instead of needing 13 votes to convict Duterte, there will be 14 senator-judges needed to remove the vice president from office.

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“Third, where 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,” Escudero continued.

“For example, if the denominator is 20, two-thirds is 13 and one-third or 13.33,” he computed.

“If we round it down to 13, 13 votes will fall short of the constitutionally-required two-thirds concurrence which is 13.33,” Escudero told the senator-judges.

“Since a fraction of a vote is impossible as there is no fraction of a senator, 13.33 — again by way of example only — must be rounded up to 14 votes, the next higher whole number to ensure that the votes for conviction constitute at least two-thirds of the relevant membership,” he said.

The presiding officer remarked that this will be done to ensure that provisions of the 1987 Constitution will not be violated. 

Under Article XI, Section 3(5) of the 1987 Constitution, the Senate is given the “sole power to try and decide all cases of impeachment.”  

Also, the same provision states that an impeached official will only be convicted upon the “concurrence of two-thirds of all the Members of the Senate.”

Ordinarily, two-thirds of 24 members of the Senate is 16, but the absence of several senator-judges have raised questions from different sides.  

Some individuals supportive of the vice president have insisted that all members of the Senate refer even to senators who are beyond the coercive powers of the chamber, since their titles as senators were not removed from them.

However, there are also those who have asked how judges can make a sound decision if they have not observed the proceedings and failed to study documents and witnesses’ testimonies.

This was the same point raised by public prosecutor and Akbayan party-list Rep. Chel Diokno, who led the oral arguments for the prosecution panel.

READ: Diokno: If senator-judges are absent, will vacant seats decide case?

As of now, four senators have missed a huge chunk of the trial: Senators Jinggoy Estrada, Rodante Marcoleta, and Ronald dela Rosa have not attended a single trial day, while Senator Loren Legarda left the country early August.

While they back moves to lower the number of votes needed, the prosecution has vowed to present evidence, regardless of the final number of votes needed to convict Duterte. 

However, lead prosecutor and Batangas Rep. Gerville Luistro previously said also that the opinion of the amici curiae appointed by the Senate Impeachment Court favors their stand.

During the discussions last Wednesday, three of the four former Supreme Court (SC) justices appointed as amici curiae said that the required number of votes to convict will not always be 16.

Former Chief Justices Hilario Davide Jr.’s position paper, which was read by Senate Secretary Renato Bantug, stated that “all members” should not automatically mean all 24 senators.

Davide is one of the framers of the 1987 Constitution.

He said that the framers of the 1935, 1973 and 1987 Constitutions could not have intended the term to include senators who had resigned or been expelled, those who are physically or mentally incapacitated, those who cannot participate because they are abroad or their whereabouts are unknown, and those legally restrained from exercising their duties as senators.

READ: 3 of 4 ex-SC justices agree conviction threshold not fixed at 16 

Two former chief justices – Artemio Panganiban and Reynato Puno – echoed Davide’s position. 

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Panganiban, in his speech, said that while mathematics will always be about exact computations — like how two-thirds of 24 senator-judges will always be 16 — realities must also be considered in navigating proposals to lower the number of votes needed for a conviction. /apl