WRAP: Impeachment court ends debate on threshold, opens door for judicial review

MANILA — The supermajority — or two-thirds vote — needed to convict Vice President Sara Duterte will be of “those members who at the time of the vote, remain legally and factually capable of participating in the proceedings” and not of all members of the 24-seat chamber.

The Senate impeachment court voted to revise the threshold in light of absences by senators who are detained on graft cases, are in hiding or are on medical leave, circumstances that presiding officer Sen. Francis “Chiz” Escudero said are unprecedented and that, he said, he hopes the chamber does not see again.

The defense, which has protested the ruling and has hinted at bringing it to the Supreme Court, had argued that the original 16-vote threshold had been operative since the start of the trial and had not been questioned until September 18.

Defense counsel Michael Poa said questions on it “should have been brought up at the earliest opportunity” and cited Senate rules and the Rules of Court on deadlines to seek reconsideration on rulings.

He also said the Constitution is clear that that it is two thirds of all members. “It does not say all members present. It does not say all members participating, and that distinction matters,” he said.

He said changing the denominator would deprive Duterte of a fair trial since the defense prepared for and participated in the trial assuming a threshold of 16.

Atty. Poa also argued that the 16-vote threshold is a “constitutional safeguard,” not only for the respondent but also for the impeachment court.

“Because, Your Honor, if absence, detention would change the denominator, then, Your Honors, you will be opening yourselves up to being coerced, being intimidated, being threatened by those who wish to manipulate the result of the impeachment process.”

Akbayan Party-List Rep. Chel Diokno, among the prosecutors, said the Constitution requires “active participation” in proceedings to try, weigh evidence and determine a respondent official’s fitness for office, which absent senator-judges would not be able to do.

He said fixing the threshold at 16 even if some senator-judges whose “inability to participate is beyond dispute” would be absurd. 

“Yes, the Constitution deliberately makes conviction harder by imposing the two-thirds requirement. 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,” he said, warning of “acquittal by default“. 

Diokno also argued said adjusting the threshold is not changing the rules since conviction would still require a two thirds vote.

“What this court must determine is the constitutionally applicable membership given the Senate’s actual legal capacity to perform its impeachment function, mindful of the circumstances before the court,” he said.

He also pointed out that changing the denominator “changes the arithmetic on both sides,” which would mean the defense would also need fewer votes to secure an acquittal.

Apart from legal arguments, the debate on the voting threshold also saw emotional appeals as first-termer Sen. Camille Villar called out Sen. Erwin Tulfo for what she said were attacks on colleagues unable to attend hearings.

Tulfo, who suggested adjusting the conviction threshold because of senators’ absences, had been talking about senators facing cases.

At one point, he used the term “magnanakaw”, or thief, but did not refer to anyone by name.

“I think it’s unfair to call them out that their crimes are of plunder and of theft because none of those senators have been convicted,” Villar, who later shed tears at the podium, said.

“Let us give each other due respect,” she also said.

“‘Wag n’yo naman kaming idiin (Don’t push us down),” Sen. Robinhood Padilla, who is under investigation for obstruction of justice, also said.

He said he has a hearing on Friday and hinted he may also end up being arrested.

“Baka ma-miss ko na kayo (I might miss you) ,” he said.

Tulfo apologized for his remarks.

“The statements were not attacks against our fellow senators but merely confronting the present reality that some senators are physically or legally unable to participate in the impeachment trial,” he said.

Senate Minority Leader Alan Peter Cayetano tried to prevent a vote on the threshold as he raised a point of order on Sen. Erwin Tulfo’s motion to revisit the ruling on it.

He maintained that the Constitution is clear on the conviction threshold and that he believes the Senate has no power to interpret it otherwise. 

He also said that if it comes to a vote, he and others in the minority bloc would not participate since he does not want “to taste poison.”

The minority leader also explained without prompting why he had decided to grow a beard.

He added he and some members of his bloc had decided to stop shaving as a symbolic message to “not shave our votes” as he warned against “vote shaving” in the impeachment trial.

Sen. Mark Villar, who has also grown a beard and who is in the minority bloc, abstained from voting on  Cayetano’s point of order, which failed 13-6-1.

He later voted in favor of adjusting the conviction threshold.

Clean-shaven Sen. Bong Go and Sen. Padilla, who has a goatee, did not participate in voting either.

The Senate impeachment court voted to adjust the threshold, with Escudero as the lone “no” vote.

He said that while he disagrees, he is not the court, and is bound to carry out its decisions.

Escudero said, however, that the threshold — a ruling and not a change in the rules — will not be binding on other impeachment courts in the future and that fractions will have to be rounded up “to ensure that the votes for conviction constitute at least two-thirds of the relevant membership.”

He has also instructed the clerk of court to produce the transcription and records of Wednesday’s proceedings by Thursday morning so parties can use them for their filings and other moves in response to the ruling.