Prosecution, defense anticipating ex-SC justices’ take on threshold issue

MANILA, Philippines — Both sides in Vice President Sara Duterte’s impeachment trial are anticipating how the retired Supreme Court (SC) justices will address the question of whether there is a need to lower the threshold needed for conviction, as it may be crucial to decide the fate of the country’s second-highest official.

In a press briefing on Tuesday, after the 25th day of Duterte’s trial, Bicol Saro party-list Rep. Terry Ridon said it would be good to hear the side of several former SC chief justices and an associate justice as to whether the Senate Impeachment Court should use a lower number to interpret the two-thirds vote needed to convict an impeached official.

The impeachment court has appointed retired Chief Justices Artemio Panganiban, Reynato Puno and Hilario Davide, Jr., as well as retired Associate Justice Rodolfo Azcuna, as friends of the court, based on their credentials and known expertise on constitutional issues.

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“Siyempre magandang malaman po natin, kasama po ng kabuuan po ng Senate Impeachment Court at ng publiko, ano ho ba ‘yong pagtingin nila dito sa usapin po ng threshold? Kasi ayan naman po ’yong talagang major question for tomorrow, but kami naman po sa bahagi po ng prosecution, we will have our opportunity to lay our case as well next week,” Ridon said.

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(Of course it is good if we will know the number, along with the entire Senate Impeachment Court and the public, as to how they look at the issue of the threshold? Because that is the major question for tomorrow, but for us in the prosecution, we will have our opportunity to lay our case as well next week.)

“So paghahandaan din po namin ‘yan, antabayan na lang po natin ‘yong formal na position kasi ‘yong defense at prosecution will have to submit their own official position on the matter,” he added.

(So we will prepare for that; let us wait for the formal position because the defense and the prosecution will have to submit their own official position on the matter.)

Schools of thought

Prosecution spokesperson and impeachment advisor Robert Ace Barbers said that the former SC magistrates can give their insight on different schools of thought—like the insistence of some people that 16 votes are needed to convict Duterte, and the suggestion that this number should be lowered since several senator-judges have not been able to attend the trial.

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“Mahalaga na magkaroon tayo ng opinyon mula sa mga legal luminaries tungkol dito sa usapin ng threshold. Kasi marami ngang usap-usapan at mga haka-haka […] ang ibang schools of thought lumalabas, sinasabi tama ba na ang isang hukom ay mag-render ng decision kahit hindi niya nakita ang ebidensya, o hindi niya nadinig ang ebidensya, o hindi niya nakita ‘yong demeanor ng witness,” he said.

(It’s important to hear the opinions of legal luminaries about the topic of threshold, because there have been many thoughts and suggestions […] different schools of thought come out, some ask whether it is proper for a judge to render a decision even if he or she failed to see and hear the evidence, and was not able to see the demeanor of the witness.)

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“So is this fair, can a judge or an ‘absentee judge’ for that matter […] render a fair and just decision against the respondent? So kaya itong mga tanong na ito ay mahalagang masagot at ang opinyon na manggagaling sa mga amicus curiae natin na mga legal luminaries, ay makakadagdag ng knowledge at na idea sa ating mga senator-judges,” he added.

(So is this fair, can a judge or an ‘absentee judge’ for that matter […] render a fair and just decision against the respondent? So it is important that these questions be answered through the opinion coming from our amicus curiae, our legal luminaries, as this can provide additional knowledge and ideas to our senator-judges.)

Take advantage

Defense lawyer Michael Poa said that they may take advantage of the chance given by impeachment court Presiding Officer and Senator-judge Francis Escudero to ask questions of the amici curiae.

“Tignan po natin, pinaghahandaan din namin dahil nga sabi nga ng ating Presiding Officer that we can ask questions through him, we will be listening intently at kung may pagkakataon na may gusto tayong mga bagay na malinawan, eh we will make use of that privilege extended to us by the Presiding Officer to ask questions through him,” Poa said in a separate press briefing.

(Let us see, we have prepared for this also because as our Presiding Officer said, we can ask questions through him, we will be listening intently and if there is a chance that we want to clarify matters, we will make use of that privilege extended to us by the Presiding Officer to ask questions through him.)

“Sa amin naman to be very fair to the impeachment court, very open naman sila to suggestions, medyo consultative naman talaga ‘yong nangyari, so we have no issues at all, at sino ba naman kami to question ‘no, dahil established naman po talaga ‘yong ating mga magiging amici curiae tomorrow,” he added.

(For us, to be very fair to the impeachment court, they have been very open to suggestions; they have been consultative in their proceedings, so we have no issues at all; who are we to question the views when the members of our amici curiae are well-established.)

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

The same provision states that a person will only be convicted upon the “concurrence of two-thirds of all the Members of the Senate.”

Confusion

This phrase, however, has led to confusion from different sides. Some individuals supportive of the Vice President said 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—as Barbers said—some also question how judges can make a sound decision if they have not observed the proceedings and failed to study documents and witnesses’ testimonies.

The amici curiae is expected to help the court navigate these issues, with Senate officials assuring the public that the former SC justices will be fair.

READ: Senate impeachment court claims impartiality in amici curiae selection

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 in early August.

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

Last June 15, lead public prosecutor and Batangas Rep. Gerville Luistro said that the vote threshold for convicting Duterte in her impeachment trial should be reduced from 16 to 14 if more senators become unable to participate in the trial — as there are possible complaints against several members of the Senate.

READ: Luistro sees lower conviction vote if Senate numbers fall

Eventually, counsel for the prosecution Benjamin Tolosa said the goal of the prosecution team is to build a case with overwhelming evidence that can convict Duterte regardless of how the constitutional provision on the threshold is interpreted.

During a press briefing last June 22—on the sidelines of the pretrial proceedings—Tolosa was asked to elaborate on his earlier statement about the defense panel seeking an immediate discussion on the votes needed to convict Duterte.

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Tolosa declined to give his opinion on whether there is a need to lower the number of votes needed to convict Duterte, but he said their intention is to ensure that there is a “compelling case” that can sustain a conviction, whatever the number is. /cb