Senate impeach court eyes Sept. 23 ruling on votes to convict Duterte

MANILA, Philippines — With the help of the amici curiae, or “friends of the court,” Senate is expected to vote on Sept. 23 on whether to retain the 24-member voting base for the impeachment trial of Vice President Sara Duterte.

This came as Senator-judge Erwin Tulfo on Tuesday raised concerns over senators who may be unable to physically participate in the final vote on whether to convict or acquit Duterte.

According to presiding officer and Senator-judge Francis “Chiz” Escudero, “Tentatively, we will be setting the amici curiae on September 16 and the oral arguments of the parties on September 23.”

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“Barring any unforeseen and/or questions of availability on the part of the amici curiae, hopefully, we will be able to do this in a week’s time,” he told Tulfo.

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The presiding officer also said the Senate will not immediately resolve the matter through the usual ayes-and-nays procedure for questions involving rulings of the court, citing the “sensitive and serious nature” of the issue.

Instead, the court will seek the opinions and assistance of amici curiae, or individuals invited to provide independent expertise or perspective, to help the court resolve a legal issue.

There will be no impeachment trial on Sept. 16 as the Senate will hear the amici curiae on the voting threshold.

Afterwards, the prosecution and defense will be given 15 minutes each to present their positions during oral arguments on Sept. 23, after which the Senate will vote on the matter.

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Choosing the amici curiae

Following a question from Senate President Sherwin Gatchalian to further clarify for the general public what the amici curiae is, Escudero explained that this refers to retired justices to guide the court on deciding on the matter.

“I hope that, through their extensive knowledge of the Constitution, as well as their experience in legal matters, they can provide us with their insights on this issue, whether in favor of or against either side,” the presiding officer said.

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Senator-judge Kiko Pangilinan further explained, these amici curiae may include eminent legal experts, retired chief justice, retired supreme court justice, and experts in constitutional law and the like.

Pangilinan likewise made a motion for his colleagues to authorize Escudero to select these guests.

Escudero then reaffirmed that such consultations will be made. He said, during the break, that he has consulted both the prosecution and defense teams, and has come up with names agreed upon by both parties.

However, the court has yet to reveal the names of these amici curiae, saying they have yet to get in touch with these people, and ask whether they are willing or available to join the hearing on Sept. 16.

Whose vote are we counting?

This development came as Tulfo also on Tuesday moved for the Senate to revisit Escudero’s previous ruling that 16 votes are needed to convict the vice president, based on the two-thirds concurrence of the 24-member voting base.

Noting that four senators are currently unable to attend the trial, Tulfo asked, “My question now is very basic: When we refer to all members, who exactly are we counting?” 

In addition, he asked whether the senators’ inability to attend the trial will automatically translate to a “no” vote.

He urged the Senate to resolve the matter “sooner than later” as the impeachment proceedings have been expedited, and the final question can come earlier than expected.

Tulfo warned that if the Senate insists on a fixed 24-member voting base, despite senators being unable to participate, their absence can result in what he called an “acquittal by default.”

He cited the Senate’s reliance on Avelino v. Cuenco, which, he said, considers only members within the coercive jurisdiction of the Senate in determining the voting base and existence of a quorum.

Meanwhile, Senator-judge Pia Cayetano said Tulfo’s statement that the Senate relies on Avelino v. Cuenco was “not accurate.”

“This body did not agree to that. The now-minority does not agree to that. So, I just want to put that on the record clearly,” Cayetano said.

“There are many ways to interpret Supreme Court decisions, but let’s not make it appear that it is jurisprudence or it is the rule in the Senate,” she told fellow senator-judges.

Senator-judge Robin Padilla, for his part, called on his peers to uphold their oath, maintaining that any amendments to the Constitution should go through the Senate Committee on Constitutional Amendments.

“The Constitution cannot be altered or circumvented,” Padilla noted.

Escudero then clarified if it was, indeed, Tulfo’s motion to appeal or reconsider the initial threshold ruling made on July 6.

According to Tulfo, he was asking whether the senators unable to be physically present in trial will also be allowed to vote. 

“Let’s not forget, Mr. Presiding Officer, that these people are still members of the Senate,” Tulfo said.

Cayetano, who again rose to make a manifestation, said before setting the date, the Senate should first ask if it even has the right to decide on it.

The senator cited Escudero’s July 6 ruling on the matter and said, “Your ruling, Mr. Presiding Officer, was made. Your ruling was if there’s anyone who questions it, then the recourse is to go to the Supreme Court.”

However, Escudero replied that based on Tulfo’s manifestation, aside from identifying the base figure, Tulfo wants it decided by the impeachment court.

Pangilinan and Cayetano likewise raised before the court that there exists a plea from their detained colleagues, Sens. Rodante Marcoleta and Jinggoy Estrada, to allow them to attend Duterte’s trial.

Escudero said that matter was previously referred to the Senate as a legislative body, not to the impeachment court.

Sen. Raffy Tulfo, meanwhile, asked how the absent senators would be able to vote intelligently if they were not able to attend the proceedings.

As of now, Sens. Marcoleta, Estrada, Loren Legarda and Ronald “Bato” dela Rosa have been unable to attend the trial.

Legarda has been out of the country and on extended medical leave. This came at a time when the Office of the Ombudsman announced that she is under preliminary investigation for a plunder complaint.

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Dela Rosa, on the other hand, is in hiding over an arrest warrant from the International Criminal Court. /apl