‘2/3’ rule revisited: Fewer votes needed to convict Sara Duterte

MANILA, Philippines — The Senate impeachment court on Wednesday voted to lower the number of votes needed to find Vice President Sara Duterte guilty at her impeachment trial, ruling that the constitutionally required two-thirds majority would be computed only from senators legally and factually capable of participating in the impeachment proceedings.

The 13-1 vote effectively reduced the threshold from 16 to 14 votes, based on the 20 senator-judges currently considered capable of participating in the trial.

Presiding Officer Francis “Chiz” Escudero, who cast the lone dissenting vote, said he disagreed with the decision but would enforce it as the court’s “new controlling ruling.”

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“While the chair takes exception to this decision, the chair nonetheless accepts it as a judgment of this court and is bound to give it effect,” Escudero said.

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“Accordingly, the chair accepts and declares the ruling adopted by the court as the new controlling ruling upon further proceedings and the chair shall apply this ruling faithfully,” he added.

READ: Sara Duterte trial: Who voted to adjust the conviction threshold?

The six other senator-judges—Alan Peter Cayetano, Pia Cayetano, Imee Marcos, Bong Go, Camille Villar and Robinhood Padilla—did not participate in the vote after previously maintaining that the impeachment court should not decide to alter the number of votes required to convict Duterte.

Excluded from the count

Mark Villar, who belongs to the minority bloc, voted in favor of the motion. The other 12 votes came from members of the majority bloc.

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The 13 who voted to adopt the new threshold were Senate President Sherwin Gatchalian, Senate President Pro Tempore Vicente Sotto III, Senate Majority Leader Juan Miguel Zubiri, Risa Hontiveros, Francis “Kiko” Pangilinan, JV Ejercito, Raffy Tulfo, Erwin Tulfo, Joel Villanueva, Bam Aquino, Panfilo Lacson, Lito Lapid and Mark Villar.

Under the “new controlling ruling,” the phrase “all members of the Senate” in the Constitution’s impeachment provision will refer to members who, at the time of the vote, remain legally and factually capable of participating in the proceedings.

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Excluded from the computation are senators who are detained or suspended or otherwise legally restrained from exercising their functions; those being sought by authorities whose whereabouts are unknown; those suffering from physical or medical incapacity; those beyond the coercive processes of the Senate; and others similarly situated.

Four senators have so far been unable to participate substantially in the trial.

Jinggoy Estrada and Rodante Marcoleta are detained in connection with separate plunder cases. Ronald “Bato” dela Rosa has not attended the trial amid an arrest order from the International Criminal Court, while Loren Legarda has been on an extended medical leave since Aug. 3.

With the four excluded, 20 senator-judges constitute the denominator. Two-thirds of 20 is 13.33, which Escudero said must be rounded up to the next whole number.

Thus, 14 votes—not 13—would be required to convict Duterte.

Still two-thirds concurrence

Escudero said the court would continue to require a two-thirds concurrence and would round up any fraction.

“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,” he said.

“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,” Escudero added.

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

The ruling, Escudero stressed, applies only to Duterte’s impeachment trial and does not amend the Senate’s impeachment rules or establish a binding precedent for future impeachment proceedings.

He said the court would determine, based on evidence, whether a senator falls under any circumstance that excludes a member from the denominator.

Escudero maintained that the two-thirds requirement remained intact; only the membership from which it is computed had changed for this trial.

Empty seats cannot judge

Public prosecutor Akbayan party-list Rep. Chel Diokno argued that impeachment senators were performing an “extraordinary constitutional function” that required them to take a separate oath as senator-judges.

“You hear, you examine, you deliberate, and ultimately, you judge,” Diokno said.

“How can a senator who has never been a judge, because he has never taken the oath, do this? How can a judge who is not present at the hearings to examine witnesses and documents do this?” he asked in Filipino.

Diokno also asked whether an impeached official should effectively have to answer to “a vacant seat and cold tables” if absent senator-judges were still included in the denominator.

He argued that requiring 16 votes when some senator-judges could not hear evidence, examine witnesses or deliberate would allow their absence to determine the outcome.

Constitution says ‘all members’

“Yes, the Constitution deliberately makes conviction harder by imposing the two-thirds requirement,” Diokno said. “But making it harder is not the same as making it depend on senators who are not judges, or who are incapable of acting as judges.”

“The prosecution is confident in its case. We believe in our evidence and we trust the independent judgment of this honorable court. And whatever the threshold is, however this court decides this issue before it today, the prosecution will do its job,” Diokno said.

“Our responsibility is not to find the most favorable arithmetic. Our responsibility is to prove the articles of impeachment,” he added.

Defense counsel Michael Poa opposed changing the 16-vote requirement, warning that lowering the threshold midtrial could affect other constitutional provisions and raise due process questions.

“If we were to lower the threshold here, we will not be lowering the threshold in a vacuum. That has consequences. There are many constitutional provisions that will be affected,” Poa said.

“It’s no longer called a threshold. It’s a moving target for people who want to benefit from circumstances,” he added.

Poa noted that the Constitution says “all members of the Senate,” not “all members present” or “all members participating.”

“Absence does not create a vacancy. Nonparticipation does not create a vacancy. Being detained because of criminal charges does not create a vacancy,” he said.

“Circumstances change, political alliances shift, majorities come and go, but at the end of the day, the Constitution must remain,” Poa said.

Prosecution targets October

Despite the threshold dispute, the House prosecution panel expects to finish presenting evidence on Duterte’s alleged unexplained wealth within October, when full-day hearings are scheduled.

Lead prosecutor Batangas Rep. Gerville Luistro said the panel was still evaluating its witness list.

“I think [by] October we will be able to finish,” Luistro told reporters.

“Right now we still have the complete list. Our evaluation is a continuing process as to who will be presented and who will be dispensed with,” she said.

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The prosecution has yet to decide whether to continue presenting evidence under Article 3, which covers the bribery allegations. Luistro said the matter would be studied in October. —With a report from Agence France-Presse