Luistro clarifies: Required votes to convict, not threshold, can be lowered

MANILA, Philippines — While the Senate impeachment court’s ruling allowed a lower minimum vote requirement to convict Vice President Sara Duterte if some senator-judges are absent, it did not change the conviction threshold itself.

Batangas Rep. Gerville Luistro clarified this situation on Thursday in a press briefing at the Batasang Pambansa.

Luistro was asked whether the impeachment court’s decision on Wednesday meant that a lower threshold to convict Duterte is now allowed. 

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The lawmaker is the lead public prosecutor for Duterte’s impeachment trial

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She maintained that the 1987 Constitution’s two-thirds requirement for conviction still stands.

“The threshold was not lowered, two-thirds remains two-thirds,” she explained.

“The honorable impeachment court only enlightened us as to who will be part of the denominator, by giving clarity to the phrase ‘all members of the Senate,’” she told reporters.

“And their answer was – this pertains only to those who are legally and factually present or qualified,” Luistro recalled.

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“By saying so, those who are detained are excluded from voting, along with those suspended, those who are in hiding at running from the law,” she identified.

She also mentioned “those with physical and medical incapacities, along with those beyond the coercive power of the Senate.”

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Another clarification that Luistro made is that based on their understanding, the Senate impeachment court’s ruling is that the availability of senator-judges will be considered at the time of voting.

She cited what was read by Presiding Officer and Senator-judge Francis Escudero.

“But of course, I wish to make it clear also, the pronouncement of the impeachment court on its ruling that is pertaining to the time of vote,” Luistro pointed out.

“This means, the legal and factual qualification of the members of the impeachment court will be decided upon at the time they cast their vote,” she remarked.

As an example, Luistro believes that Senator Loren Legarda, who has been on medical leave since early August, can participate and vote.

This is if ever Legarda will return to work before the court delivers its verdict on the impeachment case against Duterte.

“Because that was stated in the ruling at the time of vote, so it can change, depending on the number of senators who will be legally and factually present at the time, the impeachment court casts their vote,” she explained.

“So like for example, Senator Loren – she took an oath,” Luistro recalled.

“If she will return and she will be present at the time of vote, following that ruling, consistent to that ruling, I think she should be considered to be allowed to vote,” she said.

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

The denominator which will be used to determine a two-thirds vote will depend on how many members of the Senate will be available.

The ruling from Escudero stated that the following members will be excluded from the voting process:

• 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

Escudero also laid down specific conditions on who will not be allowed to vote once they decide on the case.

He clarified further that while the threshold is still two-thirds of all members present, they will have to round up, in case the computation results into a decimal point.

As an example, Escudero said that in case only 20 senator-judges remain, two-thirds will be 13.33. 

This means that they will have to round up, even if the decimal point is less than 0.5.

This means that instead of merely 13 votes to convict Duterte, the requirement will be 14.

Escudero said that this method will ensure that provisions of the 1987 Constitution will not be violated.

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

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.

This is because 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’s side.

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

Aside from Legarda, three other 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.

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Estrada and Marcoleta have been detained on separate plunder raps, while dela Rosa has evaded public eye amid an arrest order from the International Criminal Court. /apl