Duterte lawyer: Changing conviction threshold raises questions on due process

Atty. Michael Poa, a defense lawyer for Vice President Sara Duterte in her impeachment trial at the Senate. Senate PRIB/ ABS-CBN News file

MANILA — A lawyer for Vice President Sara Duterte in her impeachment trial maintained Wednesday that the minimum number of votes needed to convict her should remain at 16, arguing that changing the threshold while the trial was underway would raise questions about whether the country’s second-highest official was being afforded due process.

“Kung ibababa po natin ‘yong voting threshold when trial is already underway — in fact, nasa kalagitnaan na po tayo, Your Honors — that will go beyond the procedural. That will already raise questions if the respondent-Vice President is being afforded due process guaranteed by the Constitution,” lawyer Michael Poa said as he outlined the defense panel’s position during oral arguments before the Senate impeachment court on the votes required for conviction.

Poa said both the defense and prosecution “must be able to rely on the rulings of the presiding officer,” referring to Sen. Francis “Chiz” Escudero.

“Otherwise, that will run contrary to the basic principle of what is an orderly conduct of a fair trial,” he said.

Escudero earlier ruled that the conviction threshold be set at 16 votes or two-thirds of the Senate’s 24 members.

But Sen. Erwin Tulfo later questioned the figure, noting that four senators — Ronald dela Rosa, Jinggoy Estrada, Rodante Marcoleta and Loren Legarda — have largely been unable to participate in the proceedings and asking whether they should be allowed to vote on Duterte’s impeachment.

Specifically, Tulfo sought clarification on the meaning of “all the Members of the Senate” under Section 3(6), Article XI of the 1987 Constitution, which governs impeachment proceedings and states: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

Poa argued that when Escudero made his ruling that set the threshold to 16 in July, no other senator-judge objected or sought reconsideration.

“That should’ve been brought up at the earliest opportunity, after mabigay ‘yong ruling,” Poa said. “Pero hindi po nangyari ‘yon.”

He also cited Senate and court rules that prescribe periods for motion of reconsideration.

Poa said the two-thirds “supermajority” required for conviction was also “obviously a constitutional safeguard for the respondent.”

“It ensures na hindi matatanggal ang matatas na opisyal ng ating bansa dahil lang hindi niya kaalyado ang mayorya sa impeachment court,” he said.

Poa also argued that “the language of the [1987] Constitution is clear” and no longer needed “further interpretation.”

The provision under Article XI “does not say all members present, it does not say all members participating,” he said.

He also cited Section 2, Article VI of the Constitution, which states that the Senate is composed of 24 senators. Therefore, Poa argued, 24 should serve as the denominator in determining the voting threshold unless a seat is vacated due to the “death, resignation, disqualification or expulsion of a sitting senator.”

Azcuna was among four legal experts who recently served as amici curiae, or “friends of the court,” offering advice on the voting threshold.

“If that senator-judge does not feel that he or she can render an impartial absent dahil nga absent siya… Hindi lang naman yes or no ang boto, puwede naman mag-abstain, puwede naman mag-inhibit,” Poa said, stressing that abstention should still not change the denominator determining the threshold.

Poa also warned that lowering the threshold could have consequences for other constitutional provisions with similar voting requirements, such as those governing the expulsion of a senator and amendments to the Constitution.

During Wednesday’s proceedings, the prosecution, represented by Akbayan Rep. Chel Diokno, also presented its arguments over why the conviction threshold should not be fixed at 16.

Diokno stressed the importance of senator-judges’ active participation in an impeachment trial, questioning how a senator can render a judgement if they failed to personally hear witnesses and examine the pieces of evidence themselves.

Dela Rosa has been absent from the trial as he is in hiding while wanted by the International Criminal Court for his role in former President Rodrigo Duterte’s drug war.

Estrada and Marcoleta are currently detained over plunder cases, while Legarda is on medical leave.