Senators junk Chiz’s ruling on fixed 16 votes to convict

With detained, missing or sick senators, 2/3 vote threshold may go down to 14

MANILA, Philippines —  Senators yesterday junked Sen. Francis Escudero’s July 6 ruling as impeachment court presiding officer to fix at 16 the required votes needed to convict Vice President Sara Duterte.

Thirteen senators – including one from the minority – voted to modify the numbers needed for conviction, while Escudero gave the lone negative vote. The remaining six members of the minority abstained and left the session hall.

In their vote, the senators maintained the two-thirds threshold, but excluded senators who are sick, in hiding or detained, from taking part on the day of verdict to acquit or convict Duterte.

A resounding “aye” rang through the plenary hall as the senators held their nominal voting by voice vote, after oral arguments on Day 29 of the trial yesterday.

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

Sen. Mark Villar of the minority made a surprise affirmative vote, opting not to join the rest of his minority colleagues led by Sen. Alan Peter Cayetano in boycotting the vote and leaving the session hall.

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 and Francis Pangilinan voted yes.

Mark’s sister, Camille Villar, siblings Alan Peter and Pia Cayetano, Bong Go, Imee Marcos and Robin Padilla did not vote.

Before the voting, defense counsel Michael Poa said their camp was open to seeking help from the Supreme Court to stave off or reverse a revision in the voting threshold rule.

The debate over the voting threshold was triggered by an appeal from Sen. Erwin Tulfo for Escudero to reverse his July 6 ruling for a strict reading of the conviction clause of the 1987 Constitution, that “two-thirds of all members of the Senate” means 16 of all 24 senators.

Barred from voting on verdict day are 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.”

The restrictions cited by Escudero cover four of the 24 senators: Ronald dela Rosa, Rodante Marcoleta, Jinggoy Estrada and Loren Legarda

“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,” Escudero said.

At two-thirds of 20, the conviction threshold equates to 13.33. But since “fraction of a vote is impossible, as there is no fraction of a senator,” Escudero ruled that a figure with a decimal point is “rounded up to the next higher whole number, even if the fraction is less than 0.5… to ensure that the votes for conviction constitute at least two-thirds of the relevant membership.”

This means the number to convict is now lower – from 16 to 14 senator-judges.

‘For this occasion only’

Escudero expressed hope there will be no more changes in the voting rules in future 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,” the presiding officer 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,” he said.

Before the lunch break, the senators put to a vote Cayetano’s attempt to block the vote on the threshold. On that issue, five minority colleagues voted to block the vote, while 13 senators pushed for the voting, including Escudero. Mark Villar abstained.

Explaining his vote, Sen. Bong Go said the 1987 Constitution is very clear that “no person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

“Therefore,  I respectfully manifest my vote for the appeal of Senator Cayetano. I reiterate my belief that conviction requires ‘two-thirds vote of all the members of the Senate,’ two-thirds of 24 is 16. This is what is clearly stated in our Constitution, this is what binds us, pag wala ito, watak watak tayo.”

At a press briefing after the trial, Sen. Erwin Tulfo expressed his rejection of the news angle that the court “lowered the threshold,” saying the conviction remains at two-thirds of senators present on the day of verdict date.

“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,” Gatchalian said in a statement.

Hontiveros said clarifying the voting threshold would ensure that justice is served based on the ruling of active judges in the impeachment court.

“As our amici curiae have stated, the Senate generally has the final say when it comes to an impeachment verdict,” Hontiveros added.

House prosecutors welcomed the decision of the impeachment court even as they vowed to remain focused on proving their case against the Vice President through presentation of evidence.

“From our end, the job has not been any different. Our mandate as prosecutors: to present all the evidence, and lay out our case to the best of our ability. As far as we are concerned, that is still our focus, and we will continue to do that job until the end of this trial,” Akbayan party-list Rep. Chel Diokno said.

“The two-thirds vote didn’t change in the decision of the Senate impeachment court. Whatever is the figure in the final outcome, the prosecution will still lay out all the necessary evidence to prove accountability and achieve justice,” Mamamayang Liberal party-list Rep. Leila de Lima said.

“Our responsibility in the prosecution does not change whether this court determines that the applicable numerical requirement is 16 or some other number,” Diokno pointed out.

“Accountability cannot be held hostage by absentee votes,” Diokno’s colleague in Akbayan, Rep. Perci Cendana, said.

Monsod: Right decision

In an interview with “Storycon” on One News, constitutional framer Christian Monsod said the Senate made the right decision in revising the voting threshold.

“They are correct. The denominator can be changed,” Monsod said. “The plunder law says that all their power and rights as senator are suspended. In other words, they are only senators in name and not in substance,” Monsod said, referring to Estrada and Marcoleta. “Therefore, they should not be included in the count of the denominator.”

Former Senate president Franklin Drilon said he was not surprised by the development. -  Neil Jayson Servallos, Delon Porcalla, Janvic Mateo