Defense: Conviction voting issue may be raised before SC

MANILA, Philippines — The defense team going to the Supreme Court “is a real possibility” as it questioned the decision of the Senate impeachment court to effectively allow a lower number of votes to convict Vice President Sara Duterte from the fixed 16.

Defense counsel Michael Poa admitted that while they respect the decision of the senator-judges, going to the SC is one of the legal remedies that they are considering.

“I will not deny that going to the Supreme Court is a real possibility,” he said during a press briefing.

Poa added that asking the SC to issue a temporary restraining order (TRO) is another possibility.

“That’s an option. That’s definitely an option. But of course, we’ll have to see first the pros and cons. I have not studied in detail what are the pros and cons, what would be the repercussions of a TRO or repercussions of not getting a TRO,” he said.

“So, definitely everything’s on the table. But again, I just want to make it clear. Now, we don’t want to cast any aspersions against the impeachment court because, once you question the integrity of the court, it’s like trying to cause trouble,” he added.

The defense counsel did not say when the defense will file a petition before the SC.

“It depends on the timing, on what has been discussed here,” he said, adding that they have to consult with the Vice President.

“As to when, well, we will have to discuss the matter with our client,” said Poa.

They are set to meet with the Vice President soon and see if she agrees with the idea of filing a petition before the SC.

“If the client agrees. Because if the client does not agree that we go up to the Supreme Court, then of course, we follow her. We will consider what is the position of our client,” he added.

The defense team participated in the oral arguments on the voting threshold yesterday to explain their position before the senators as well as the public.
With a vote of 13-1-6, the Senate impeachment court voted in favor of lowering the threshold required to convict Duterte.

When asked if the Senate impeachment court has been fair to the Vice President, Poa said, “I don’t want to cast aspersions against the impeachment court. I think the purpose of everyone is to have a fair trial that will not only be convincing for us, meaning the parties, but even for the general public who has been watching us every day.”

“I don’t want to say anything negative against the court. But for us, that is the decision of every senator-judge and we really have to respect that,” he added.

Poa said as lawyers, there would be times when rulings or instances would not be favorable to them.

“Now, if things don’t go our way, that’s okay. That’s part of a trial. For us, there are always legal remedies available. It’s not as if we will lose sleep over this,” Poa said.

Defense: It’s 16

The defense stressed that the threshold to convict should remain at 16 because lowering it while the impeachment trial is midstream raises questions on whether the Vice President is being afforded or denied due process.

In his opening statement during the oral arguments, Poa said the threshold should be 16 because that was the ruling made by presiding officer Sen. Francis Escudero when the trial began on July 6.

“At that time no senator-judge objected, sought reconsideration, appealed. That was over two months ago. Thereafter, witnesses were able to testify, evidence was presented and parties are already in the middle of trial, relying on such ruling of the presiding officer,” Poa said.

The defense panel believes that the threshold issue should have been tackled right from the start.

“In fact, we are already in the middle of the trial and that would go beyond the procedural, that would already raise questions if the respondent, Vice President (Duterte), is being afforded due process guaranteed by the Constitution,” he said.

He pointed out that according to the Supreme Court, in the Duterte vs the House of Representatives, due process must be present in every stage of the proceeding.

The defense argued that the language of the Constitution is clear, that Article XI, Section 3 (6) states, “No person shall be convicted without the concurrence of two-thirds of all the members of the Senate.”

He maintained that absence, non-participation or detention because of criminal charges do not create a vacancy.

During the impeachment trial of former SC chief justice Renato Corona in 2012, there were only 23 senators present because then senator Benigno Aquino III was elected as president. But even with this vacancy, the voting threshold remained at 16 votes.“That begs the question on why the threshold was not lowered for former chief justice Corona then but for Vice President Sara Duterte, it is being discussed even without any vacancy in the Senate,” he said.

Poa argued that senators who are physically absent in the trial should be allowed to vote, not unless they are prohibited by the impeachment court, because “we are a court of records” meaning there are transcripts of stenographic notes (TSNs), journals and even videos of the proceedings that they could refer to.

Even if the senator-judge could not render an impartial judgment because he or she is absent, they could abstain or inhibit. But Poa clarified that abstention and inhibition do not create vacancies, therefore should not affect the denominator at 24.

Poa explained that there would be consequences if the voting threshold is lowered and might affect constitutional provisions. If that happens, it would no longer be called a voting threshold but a “moving target” used by people to benefit from circumstances.

Paolo Panelo, spokesperson for the Vice President, described as “lokohan” the decision of the Senate impeachment court to lower the needed votes to impeach an official.

“It’s a joke,” Panelo said.

In an interview with GMANews, Panelo reiterated that the defense might raise the threshold issue before the SC.

He said that the Constitution is clear, that two-thirds of all members of the Senate are required to obtain a conviction.

Unconstitutional?
 
Davao City 1st District Rep. Paolo Duterte questioned the constitutionality of the Senate interpretation of the two-thirds conviction threshold.

“Majority vote does not automatically make an interpretation constitutional,” he said in a statement posted on his social media.

The Davao lawmaker challenged the Senate’s decision, saying that it is not aligned with the Constitution.

“The Constitution says conviction requires the concurrence of two-thirds of ALL the members of the Senate. If the Senate adopts an interpretation that changes how ‘all the Members’ is counted, then that is no longer simply a matter of parliamentary arithmetic. It is a constitutional question,” he said.

He maintained that it is only the Supreme Court that can settle constitutional questions and “not by whoever happens to have the numbers inside the chamber.”

“If the affected party chooses to bring that question before the Supreme Court, then let the high court decide whether the Senate’s interpretation is consistent with the fundamental law,” he said.

Panelo said the Senate court violated the Constitution and “lost the legal and moral authority to pursue the case.” – Diana Lhyd Suelto