Prosecution warns of ‘acquittal by default’ with fixed conviction threshold

MANILA — The prosecution panel on Wednesday argued that including senators who are unable to act as judges in the computation of the voting threshold amount to an “acquittal by default” in Vice President Sara Duterte’s impeachment trial.  

House prosecutor Akbayan party-list Rep. Chel Diokno noted that while the 1987 Constitution deliberately made a conviction harder by imposing the two-thirds requirement, this “is not the same as making it depend on senators who are not judges, or who are incapable of acting as judges.”

“That would be tantamount to an acquittal by default, a failure to arrive at the threshold number caused, not by the judgment of the incapacitated senators, but by their mere inclusion in the denominator,” he told the impeachment court hearing arguments on the threshold to convict or acquit Duterte.

Diokno also asserted the importance of a senator taking an oath before the start of any impeachment trial and stressed it is a requirement mandated by the 1987 Constitution.

He explained senator-judges are “not dealing with ordinary legislative business; you’re exercising an extraordinary constitutional function as an impeachment court.”  

“This is the only time in the constitution that members of the Senate are required to take an oath separate from the oath they took when they assumed their office,” he said.

Diokno underscored the importance of senator-judges’ active participation in an impeachment trial, questioning a senator’s ability to render a judgement when they failed to personally hear witnesses and examine the pieces of evidence themselves. 

“Hindi po ba ang utos ng konstitusyon ay mapanagot sa taong bayan ang mga opisyal sa lahat ng panahon? Hindi ba sa impeachment case ang kumakatawan sa taong bayan ay kayo po, senator-judges? Kanino haharap at mananagot ang impeached official kung absent o hindi available ang huwes? Sa bakanteng upuan at mesang malamig?” Diokno asked.

Debates on the minimum number of votes required to convict Duterte were first prompted by the absence of Sen. Ronald dela Rosa, who is in hiding over crimes against humanity allegations before the International Criminal Court. He failed to take his oath as a senator-judge.

Senators Jinggoy Estrada and Rodante Marcoleta remain in detention over plunder cases following their arrests in June and July, respectively, and Sen. Loren Legarda has been on medical leave for nearly two months now. The three were able to take their oaths but have been missing a substantial number of impeachment proceedings already.

Wednesday’s oral arguments followed the rare Senate appearance of some retired justices of the Supreme Court, who offered their legal opinions as amici curiae or “friends of the court” on the thorny issue, which was formally raised by Sen. Erwin Tulfo earlier this month.

The basis for the number of votes required to convict an impeached official is illustrated in Article XI Section 3(6) of the 1987 Constitution.

It states that: “The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation… No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.” 

Some argue that the conviction threshold is flexible because the 1987 Constitution used the term “two-thirds” and that it could be open to interpretation, but others insist that the number is fixed at 16 votes as the Senate is composed of 24 members.

Retired Chief Justices Hilario Davide Jr., Artemio Panganiban, and Reynato Puno signified that 16 votes is not the least number to secure a conviction, citing various grounds, including the need for senator-judges to be physically present in the trial, while retired Supreme Court Associate Justice Adolfo Azcuna asserted that all 24 senators should be counted in determining the voting threshold. 

For Diokno, senators who are detained cannot hear the evidence, deliberate, and vote and that “their inability to participate is beyond dispute.”

He said if the denominator is fixed at 24 given the situation of other senators, “conviction would always require 16 votes,” which he called “absurd.”

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

Lawyer Paolo Panelo, a spokesperson for Duterte, said last week that lowering the conviction threshold in an impeachment trial could invite the government to target senators who may be expected to side against its wishes.

Presiding officer Francis Escudero has said that he wants to resolve the issue early for any challenge to the conviction threshold ruling be brought to the Supreme Court before the trial ends.

Escudero had maintained that the number of votes to convict Duterte is 16, and his colleagues will soon vote whether to change or keep his ruling.