16-vote requirement scrapped: New vote threshold

CEBU, Philippines — Thirteen members of the Senate impeachment court voted Wednesday to overturn the fixed 16-vote requirement for convicting Vice President Sara Duterte, ruling that the two-thirds threshold should be based on senator-judges who are legally and factually capable of participating in the proceedings.

A resounding “Aye” rang through the plenary hall as the senator-judges voted by viva voce following oral arguments from both parties on Day 29 of the impeachment trial.

In a surprise vote, Senator-Judge Mark Villar remained in his seat and joined the affirmative vote, breaking ranks with the Alan Peter Cayetano-led minority bloc, which boycotted the proceedings.

The Villar family is facing a preliminary investigation by the Ombudsman over graft allegations arising from residents’ complaints about the water services of the erstwhile Villar-led PrimeWater Infrastructure Corp.

Those who voted yes were Senate President Sherwin Gatchalian, Senate President Pro Tempore Vicente Sotto III, Majority Leader Juan Miguel Zubiri, and Senators Panfilo Lacson, Bam Aquino, JV Ejercito, Risa Hontiveros, Lito Lapid, Erwin and Raffy Tulfo, Joel Villanueva, Kiko Pangilinan, and Villar.

The minority members who did not participate were Villar’s sister, Camille Villar; siblings Alan Peter and Pia Cayetano; Bong Go; Imee Marcos; and Robin Padilla.

The 13 senator-judges voted to approve Senator-Judge Erwin Tulfo’s appeal seeking to reverse Presiding Officer Francis Escudero’s July 6 ruling that the constitutional requirement of “two thirds of all members of the Senate” meant 16 votes out of all 24 senators.

Escudero voted “Nay” against reversing his ruling.

“The ayes have it. The appeal is won,” Escudero said after the voting.

In reading his revised ruling, Escudero acknowledged that his decision had been overturned and said the vote was part of the democratic process.

The new interpretation excludes from the denominator senator-judges who are “detained and/or suspended, or otherwise legally restrained from exercising the functions of a senator; persons sought by authorities whose whereabouts are unknown; suffering from a physical or medical incapacity; beyond the coercive processes of the Senate; and others similarly situated.”

“For the record, while the Chair takes exception to this decision, the Chair nonetheless accepts it as a judgment of this court and is bound to give it effect. The presiding officer, after all, is not the court. He is merely the custodian of the process, not the proprietor of its outcome. This is the essence of democracy: the disagreement be preserved without obstruction, and that lawful result be obeyed without resentment,” Escudero said.

“This is the tradition that gives the strength and legitimacy to the Senate, whether we sit as a legislative body or as an impeachment court. We allow the fullest ventilation of views, even if those views differ sharply from our own. But at the end of the day, we vote. We abide by the judgment of the majority, even if we disagree with it. Accordingly, the Chair accepts and declares the ruling adopted by the court as the new controlling ruling upon further proceedings, and the Chair shall apply this ruling faithfully,” he added.

Under the new formula, the denominator will depend on the number of senator-judges legally and factually capable of participating when the verdict is rendered. Any fractional result will be rounded up to the next whole number.

Thus, if the active roster consists of 20 senator-judges, two-thirds would be 13.33, requiring 14 votes to convict. A one-third threshold would require seven votes for an acquittal.

The ruling does not permanently establish 14 as the conviction threshold. If the four currently absent senator-judges become eligible to participate in the verdict, the denominator could return to 24, requiring 16 votes for conviction.

The four absent senator-judges are detained plunder suspects Jinggoy Estrada and Rodante Marcoleta, International Criminal Court fugitive Ronald Dela Rosa, and Loren Legarda, who is on medical leave abroad.

Escudero said the new interpretation applies only to the present impeachment proceedings.

“This ruling and interpretation of the court shall operate pro hac vice, or for this occasion only. It shall not constitute a binding precedent in any future impeachment proceedings,” Escudero said.

“This is a ruling, not an amendment of the rules. As such, it has no binding but merely persuasive effect on future impeachment proceedings, the hands of whom we cannot shackle, as there is no stare decisis as between impeachment courts. Further, the circumstances that gave rise to this ruling are extraordinary. It has never happened before, and the Chair hopes that it shall never happen again,” he added.

The six members of the Cayetano-led Senate minority bloc boycotted the vote. They left the plenary hall before the voting began. Padilla even shook hands with members of the majority before leaving.

Before the lunch break, the senator-judges voted on Cayetano’s attempt to block the threshold vote. Cayetano was joined by his five minority colleagues, while 13 senator-judges, including Escudero, voted to proceed. Villar abstained from that vote.

The senator-judges did not explain their votes after the viva voce voting before the trial was adjourned, but several later issued statements explaining their positions on the revised denominator.

In a press briefing after the trial, Tulfo rejected the characterization that the court had “lowered the threshold,” saying the constitutional requirement remained at two-thirds of the senators qualified to vote on the verdict.

“Pinatawag po natin itong presscon na ito para itama lang po yung balita natin. Mali po yung lumabas ngayon na binabaan po ang threshold. We did not lower the threshold. Two-thirds still two-thirds. The purpose of which is not to lower the threshold. We're maintaining the two-thirds,” Tulfo said.

“Of course, dahil maganda po yung headline, maganda nga pakinggan, threshold lowered. Alam ko naman, pare-pareho tayo, dating sa media rin ako. Naghahanap tayo ng headline. But we have to correct this, because it is not right. We did not lower the threshold,” he added.

For his part, Gatchalian said he voted to overturn the strict interpretation that fixed the denominator at all 24 senators after considering the arguments and position papers of the amici curiae—retired chief justices Artemio Panganiban, Reynato Puno and Hilario Davide Jr.

Of the amici curiae, only retired Associate Justice Adolfo Azcuna maintained that the Constitution requires a fixed 16 votes, regardless of senators who are detained, sick or otherwise unable to participate.

“The Constitution gives the Senate the sole power to try and decide all cases of impeachment. Today's vote was an exercise of that responsibility. The views of our amici curiae weighed significantly in my decision. Their presentations helped the Court consider not only the text of the Constitution but also its purpose, and the need for a process that is fair to all parties,” Gatchalian said.

“Malaki ang naging ambag ng kanilang paliwanag sa aking pag-unawa sa usaping ito. Ang aking boto ay batay sa prinsipyo, hindi sa sinumang senador o sa nasasakdal,” he added.

Hontiveros, in her statement, said clarifying the voting threshold by not fixing the denominator at 24, but instead basing it on senator-judges able to participate on verdict day, would ensure that the process considers the active roster of judges.

“As our amici curiae have stated, the Senate generally has the final say when it comes to an impeachment verdict. Tayo ang dapat tumingin at magtimbang sa ebidensiya. At sa huli, tayo ang kailangang manindigan sa ating boto,” Hontiveros said.

“Mag-iwan tayo ng magandang halimbawa, lalo na sa mga susunod na miyembro ng Senado. Let us prioritize constitutional purpose and be true to our obligations to the people. We should not insist on being fixed and rigid - at the expense of keeping avenues for justice and accountability open,” she added. — /FPL (FREEMAN)