Last of two parts
BEFORE the start of Vice President Sara Duterte’s impeachment trial, Presiding Officer Sen. Francis “Chiz” Escudero declared in open court that 16 votes of the 24-member Senate are required to convict the respondent. No one among the senator-judges assailed it. After all, that was how Article XI, Section 3(6) of the 1987 Constitution puts it: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”
The recent moves to “reconsider” the voting threshold to secure a conviction in the impeachment court did not happen in isolation. It is not like Lady Wisdom suddenly appeared before Senator-judge Erwin Tulfo, who then took the floor to ask: “When we refer to all members (of the Senate constituted as an impeachment court), who exactly are we counting?”
I almost believed that Tulfo was bewildered by the manner his question was worded. I was nearly convinced that he was like an innocent young mind seeking counsel in a perplexing situation. Until I realized that this was the same senator who ride roughshod on a live television coverage that “sometimes we have to bend the law to please the people.” Then I understood that his question comes with a major agenda. His issue has nothing to do with “the prosecution keeps on changing their strategy.”
Tulfo’s concern has everything to do with the arithmetic of the apparent voting tendencies of senator-judges and how Duterte continues to lead in preference surveys for president. And his concern that Senators Jinggoy Estrada, Rodante Marcoleta and Ronald “Bato” de la Rosa would not be able to vote is of no moment because even if they were present during the hearings, we have reasonable ground to believe that they would vote “not guilty.” Therefore, his ultimate agenda, actually — and also Sen. Juan Miguel “Migz” Zubiri’s — is to overturn the ruling of the presiding officer and to reduce the threshold of 16 votes to convict Duterte.
Barometer of voting climate
An impeachment trial has long been considered sui generis. It is a quasi-judicial and quasi-political proceeding where the votes of senator-judges are influenced by emergent factors. Absent any metric with which to approximate how senator-judges are likely to vote when judgment day comes, I would venture on looking at Rappler’s Six Analytical Factors that tend to affect the senators’ voting tendency in an article I accessed on Sept. 19.
I submit that, as in any legislative voting, patterns are not random but a product of various considerations, as Ateneo de Manila University Assistant Prof. Arjan Aguirre declares in an interview with Rappler. He maintains that the votes of the senator-judges will be affected not only by law and evidence, but also by “2028 electoral positioning, Senate bloc cohesion, public opinion and media, Duterte popularity and International Criminal Court arrest spillover, and VP position offer post-conviction.”
Following these considerations, he grouped the senator-judges into categories: hard conviction, seven (Risa Hontiveros, Bam Aquino, Francis “Kiko” Pangilinan, Vicente “Tito” Sotto III, Panfilo “Ping” Lacson, and brothers Erwin and Raffy Tulfo); soft conviction, four (Lito Lapid, Zubiri, JV Ejercito, Sherwin Gatchalian); hard acquittal, nine (siblings Alan Peter and Pia Cayetano, Imee Marcos, Bong Go, Robin Padilla, Mark Villar, Estrada, Marcoleta, and de la Rosa); soft acquittal, one (Camille Villar); and moderate, three (Loren Legarda, Joel Villanueva, Escudero).
Could this explain the move of some senators to determine the “right voting threshold”?
The nagging question
The views expressed by the four amici curiae, or “friends of the court” — three eminent former chief justices and an associate justice — did not provide a singular and coherent answer as to the voting threshold to convict an impeachable official.
Former chief justices Artemio Panganiban and Hilario Davide Jr. support the position that senators who have not physically participated in the proceedings will no longer be included in the denominator, with Panganiban exhorting ineligible senators to inhibit themselves from voting.
Former chief justice Reynaldo Puno is inclined to allow to vote those who may have missed parts of the impeachment proceedings, provided they be given transcript of stenographic notes. But the “two-thirds” is not fixed at 16, depending on the denominator should not be fixed at 24.
Only former associate justice Adolfo Azcuna argues that the denominator 24 cannot be reduced. While he concedes that de la Rosa, who was not even able to take his oath as senator-judge; Marcoleta and Estrada, who were not at all able to participate in the trial; and Legarda, who has attended the proceedings but is on extended medical leave, may not be allowed to vote, but the denominator stays at 24.
Among the amici curiae, only Azcuna is part of the commission that drafted the Constitution and who wrote Article XI, which deals with the accountability of public officers. His invocation of the legislative intent of the fundamental law and the wisdom behind making the removal of a high government official deliberately difficult, i.e., by a supermajority, was unassailed.
Sadly, even with the collective wisdom of the amici curiae, there remains no consensus as to how to determine the denominator that will dictate the voting threshold. And those who are bent to lower it are those who are poised to convict the respondent in this impeachment case. We will know on Sept. 23, when the Senate decides whether to lower and what would be the voting threshold to convict the respondent.
Dean Ralph Sarmiento comments on what pushes the senator-judges to seek the interpretation of the provision in question. He asks: “When constitutional text produces an inconvenient result, do we adjust the meaning to accommodate present circumstances? Or do we obey the rule until the people amend the Constitution?”
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