OPINION: Vote on threshold is vote for due process

MANILA — After the Senate, sitting as an Impeachment Court, voted on the threshold vote to decide on the ongoing impeachment case, a lawyer identified with the Dutertes declared that the Senators who voted in favor were “criminally liable”. That was some interesting declaration the media must have thought. They then sought comment from prosecution lawyers Atty. Kapunan and Atty Ligutan, and all they could say was they didn’t know of the lawyer who made the declaration.

They may not know the said lawyer personally but would have likely heard about him at least as he was prominent during the past administration. One can only then surmise why the rather blunt reply; I can only assume that they found the declaration asinine.  Of the many discussions elicited by the issue and especially by the vote to decide on the issue itself, not one lawyer or expert mentioned anything similar or near that interesting assertion.  At best, many thought the defense will ask the Supreme Court to intervene as they repeatedly did before. There was no talk to that effect whatsoever, coming from any lawyer who comments publicly on issues.

One can only imagine how bizarre things have turned out lately in the country’s politics, especially with the impeachment.  Perhaps many simply do not understand what impeachment is or may have not read the constitution to be able to objectively weigh in on the issue/s.  It should be noted though that the study of the constitution is required in tertiary education and now in Senior High under the new curriculum.

This acrimonious divide could only be deliberately instigated.  It’s not borne out of lack of information nor understanding, but a result of a deliberate effort to muddle the issue/s, impute malice on political actors that do not belong to the group and incite the people to act against the government.

The ridiculous declaration that the Senators who voted to reverse the earlier pronouncement of the presiding officer on the threshold are criminally liable could not be just stupid.  It is impossible that the lawyer himself did not know it was a ludicrous public statement.  It is more likely a conscious statement to bait the public; the statement was a hyperbole, an exaggeration to assert that said vote of the Senators was contemptuous that they bastardized the constitution and thus should be penalized.  A preposterous claim of criminal liability designed to agitate the public and hopefully lead them to take the streets and force a government break down a la Edsa.

The Duterte alliance has called for people power countless times, even as early as last year.  Several groups have been formed mainly for the purpose; to agitate the public including especially the active officers in the armed forces.  Even religious groups have been summoned to support; and the KOJC of Quiboloy and Iglesia ni Cristo were more than willing to oblige. 

With the ongoing impeachment trial, where damning evidence have been presented to prove the allegations raised against the Vice President, everyone is aware that public support is waning and will continue to diminish, that they have to find every way soon and fast to get the government to break down and install the VP as President.  They know this from the very beginning; every step of the way, every option or avenue available for them were considered to prevent the impeachment from happening.  The truth that will be and now revealed is bound to only result to erosion of public trust.

Remember the preliminary investigation in the House of Representatives (HRep)? The lawyers of the VP went to the Supreme Court to question the first impeachment and managed to get a favorable decision.  That decision however came with an interesting prescription, the HRrep could no longer do impeachment with just sheer numbers.  The high court made clear that impeachment is not just political an exercise but a legal proceeding and has to ensure “due process”.  The HRep, given the power by the constitution to initiate impeachment has to make sure there is a clear substantiated case and not just one that’s caused by political partisanship.

Unlike previous impeachment initiatives then, for instance the case of former President Erap where articles of impeachment were endorsed to the Senate via opening prayer, the HRep this time had to do more than just the required numbers. The preliminary investigation had to be undertaken before a vote can proceed to endorse the articles of impeachment.  Just like in an ordinary case that is filed in a regular court, a complainant files a case and a fiscal proceeds to determine whether there is a case or not.  This preliminary investigation is just like this particular step, intended to determine if there is in fact a case or not. 

Like clockwork, the lawyers of VP then, went to the Supreme Court again, arguing that the HRep was conducting a “mini trial” usurping the power of the Senate. Note that the house precisely had to conduct the preliminary investigation following the prescription of the court with their decision on the case filed by the same lawyers.  It’s impossible then that they didn’t know they were complaining against what they themselves asked from and secured from the high court.  Some oxymoron move but one can only wonder why they had to do it just the same.

The bottomline can only be to do everything to stop the impeachment from happening, which should not have happened in the first place.  Remember the several times the VP was asked to appear in the public hearings at the house to explain how the confidential funds were spent.  The argument that no explanation can be made precisely because it is confidential, that it will affect the operation and will endanger the agents, is simply untenable.  Confidential funds are public funds and while undertaken in restricted circumstances still have to be accounted for, albeit following different procedures.

The VP in fact could have easily asked for an executive session.  That way, the whole operation including the agents involved will remain secure and at the same time, the requirement of accountability can be satisfied.  This was not considered though, whatever the reason was, bringing us to where we are now, the impeachment already happening at the Senate.

Every step of the way they had to stop the impeachment from happening, and every step of the way it’s becoming clear why.  The Duterte political alliance is formidable, this has been shown in many ways and rather consistently.  Before the preliminary investigation could get underway, several prominent members of the house declared that they will not support the impeachment.  Rep. Ronnie Puno, leader of a block of about 50 members of the house asserted that they will not be supporting the impeachment.  Cagayan De Oro Representative Rufus Rodrguez also did the same announcement, as well as Ormoc Representative Richard Gomez and some more others. 

In the end, we know how it turned out.  An overwhelming 257 members, including those who earlier declared will not support, voted to endorse the Articles of Impeachment.  25 lawmakers voted no and 9 members abstained.  There could be no other explanation why it turned out this way despite all the declarations of allegiance to the VP which explains why it is imperative to stop the impeachment. When the weight of the evidence supporting the allegations is made manifest, it would be difficult to deny what needs to be done, hence the result of an overwhelming majority endorsing the articles of impeachment.

Making sense of all that has transpired on the road to the ongoing impeachment trial at the Senate provides us the necessary context to understand the recent vote of the Impeachment Court to revisit the voting threshold.  And given such context, the vote could only be a natural progression to seeking due process.  Hopefully this is seen by many, that we are able to render efforts to sow disorder ineffectual.  As it is now, there’s really an orchestrated effort to lead the public astray and convince them that every effort to pursue accountability is nothing more than political persecution.  

It’s impossible to miss the truth though if only one really tries to weigh everything. It will only be hackneyed to argue that one must be objective as there will always be biases.  And this is where the context is made crucial.  The members of the HRep are the perfect examples.  Despite their biases, as many declared early on that they would not be supporting the impeachment, any thinking individual, regardless of biases, cannot ignore what is apparent, again as the context unravels and everyone had to weigh options moving forward.

The same is now before us with the vote at the Senate.  There was a line that was drawn from the very start, several Senators declared that they will not support the impeachment.  It was then clear who will likely be voting to acquit.  Because of that, many have already assumed that those who did not make the same declaration would likely vote to convict.  The essential seeing, hearing and weighing of evidence as the decision can only be arrived at after a trial, is conveniently left out.  It is not the fault of most of the Senators that everyone, including the public, thanks to the incessant barrage of information and disinformation in social media, think that the result of the impeachment was already determined.  Hence the fixation with numbers.

This led to the assumption that with 11 Senators in the minority and thus supportive of the VP will surely prevent a conviction.  The fixation is the needed 16 votes to convict and that the series of cases being filed against some members of the Senate who are with the minority are made to appear as deliberate so that 16 can be secured and thus convict the VP.  What they have forgotten, conveniently yet again, is that the number 16 is a consequence vis-avis of 9 votes needed to acquit.  In other words, if the number to needed to convict decreases, the number to acquit also decreases.  There should then be no problem if it actually happens.

If we go back to context however, it will show why they will intentionally not see it that way as they are constantly looking and wanting for an excuse to do another Edsa, particularly Edsa 2 where the then mysterious brown envelope was voted by the majority not to be opened.  They want to people to be agitated and see the threshold vote in the same way and lead to another mass action, abbreviate everything and install the VP as President.

If you come to think of it, it wouldn’t make sense why they’d still insist on an extra-constitutional push to install their leader considering, as they have always claimed, they have overwhelming support.  Like a mantra, their army of bloggers, trolls and public agitators keep on repeating, warning everyone that they have 32 million followers, the same number of those who voted for the VP in 2022.  With them being certain with this humongous number, there’s no need to exert effort now as they’ll surely be in power in 2 years.

On the other hand, if this number truly is there, they should have been able to achieve their objective of bringing down the government as they have attempted countless times to gather people on the streets to demand the President’s resignation.  Then again, the truth really is there should be no issue with the threshold vote.  It is nothing more than a conscious reflection of how best to proceed given the current circumstances.

Given the current circumstances, one must ask who among “all the Members of the Senate” are actually able to sit “for that purpose”, given that they “shall be on oath or affirmation”.  That oath or affirmation is not just some ritual; it is a declaration of “what it is to be a judge”.  If to be a judge, one need not be physically present, will s/he still be able to remain effective and impartial?  Will due process not be compromised as a result?

Would it not matter if s/he is physically present, to see the witness testifying, appreciating his/her facial expression and body language, including being able to make sense of the whole surroundings, of the reaction/s or demeanor of fellow Senator Judges and even the audience who is the closest measure of a public there is?  Will due process not be affected if every member of the Senate, regardless of whether they are able to actively and physically able to participate allowed to vote?  If this is the case, would that not mean that the entire trial after all was but superfluous as everyone anyway already knew how they’d vote?

Is due process applicable only to one party, in this case the prosecution as some would have the entire impeachment to be plain and simply political orchestration? Is due process not also in the interest of the accused, that she’d also prefer to be judged on the basis of evidences presented and not by some absurd loyalty?

On the claim of some that the Senators placed behind bars are “not of their fault”, are they saying that all are but trumped-up charges?  Are they forgetting that a court, especially the Sandiganbayan, cannot just entertain a case without looking at the kind of evidence that is presented by the prosecution?  In fact, have we forgotten that a criminal case now has to meet a heftier standard of “reasonable certainty of conviction”?  And even if we disregard all of these, are those charged with plunder really unlikely to have committed such offense?  Is it the first time they are facing this kind of charges?

After all these exegeses, the bottom line is the 2/3 required in the constitution remains, it was never disregarded.  All that had to be considered is how best the Senators, sitting as judges in the Impeachment Court, can effectively discharge this important function.  This is nothing more than ensuring due process, which is in the interest of all parties, especially the people.  Ultimately, it is not only the number of votes needed to convict that decreased.  The number to acquit likewise decreased.

The number to convict in the original configuration was 16, it is now 14 based on the current 20 “active” members of the impeachment court.  In the same vein, the number needed to acquit now with the new configuration is 7, compared to before which was 9.  It is ridiculous to say the number was decreased to ensure conviction as it essentially remains the same considering the number to acquit also changed.  The bottom-line, especially if we look at what happened in the HRep, the members of the Senate sitting as an impeachment court would have to decide on the basis of the evidence presented.