‘Amici curiae’: Where do invited ex-justices stand on conviction threshold debate?

The Senate has tapped four former Supreme Court justices to be “amici curiae” or friends of the court in the impeachment trial of Vice President Sara Duterte.

The four legal luminaries will advise senator-judges amid the ongoing debate on the minimum number needed to convict Duterte — a punishment that will remove her from office and could disqualify her from the 2028 presidential race.

Their past statements offer a glimpse into how they will guide the impeachment court.

Retired Supreme Court Associate Justice Adolfo Azcuna

Azcuna, in an interview with ANC in June, argued that the conviction threshold should remain at 16 regardless of whether or not some senator-judges are detained or suspended.

At the time, Senator Bato dela Rosa was already in hiding, while Jinggoy Estrada was already in jail over plunder. As of writing, Senator Rodante Marcoleta has also been arrested for plunder, while Senator Loren Legarda has left the country due to medical reasons.

“My view is that the voting threshold is based on the number of members of the Senate, whether or not those members are present, or are present or able to actively participate, as long as they remain members of the Senate, they should be counted in computing the two-thirds,” Azcuna said.

He noted an exception though, believing the threshold could be reduced to 15 if Dela Rosa is considered to no longer be a senator because of his situation.

“If he is judged a fugitive, he can be considered, in my view, as resigned — constructive resignation. Being a fugitive entails running away from the legal system. If one runs away from the legal system, he relinquishes all membership in that system,” Azcuna explained.

Retired chief justice Artemio V. Panganiban

Panganiban, in his Inquirer column, said that he believes Escudero’s 16-vote threshold ruling on the first day of the trial in July is “not set in stone.”

“He could reverse himself at any time, or the impeachment court can reverse or modify his ruling at the proper time. I believe that such ruling is merely interlocutory and does not become final until the decision is reached. Moreover, its reversal or modification requires only a simple majority, not two-thirds,” he wrote.

While he did not explicitly state what he believes is the magic number to secure a conviction, he raises the need to identify the “correct mathematical denominator.” As it stands, the denominator, as per Escudero’s ruling, is 24.

Panganiban cites the Supreme Court as an example, saying it “does not always compute its majority from its full complement of 15 members.” Its internal rules only require a quorum of at least eight members, and any decision can be made through the concurrence of a majority of members who take part in the deliberations.

“Consequently, the computation of the mathematical denominator shifts depending on active participation,” he said. Panganiban cites numerous rulings related to this: League of Cities v. Comelec in 2009, Cruz v. DENR Secretary in 2000, and De Castro v. Judicial and Bar Council in 2010.

Panganiban, however, clarified that such examples are “not for the Senate to follow blindly the Court’s method of ascertaining the voting denominator” because it “reviews only questions of law on facts proven in the trial courts, or admitted as true by the parties.”

Retired chief justice Hilario Davide Jr.

Davide, who presided over the trial of former president Joseph Estrada, has not made any comment on the conviction threshold issue in Duterte’s trial, but his March 2018 interview on GMA News about scenarios on what was then a potential trial against then-chief justice Lourdes Sereno has resurfaced online.

At the time, the Senate had only 23 members, following the resignation of Alan Peter Cayetano to become Rodrigo Duterte’s foreign affairs chief.

His position was that the threshold remained at 16 despite the Senate being down one member.

“The only problem in the Senate is…two-thirds would be required to convict. So in this particular case, two-thirds, it will be 24, not existing 23. The Senate will need 16 to convict. In other words, since there are now 23, the vote of seven would be enough for acquittal,” Davide had said.

It remains to be seen whether he will adopt the same position today.

Retired chief justice Reynato Puno

Puno has also not made a public comment on the conviction threshold debate, but as chairman of the Philippine Constitution Association, he criticized the Escudero-led Senate last year for returning the impeachment articles to the House of Representatives.

“Philconsa warns that it may constitute grave abuse of discretion and risks undermining the most fundamental principle of our constitutional democracy: that public office is a public trust,” Puno said.

Consultation with the amici curiae takes place on September 10. Davide will only submit a legal memo, while the three other former magistrates will appear in person. – Rappler.com