What if 11 senator-judges are jailed during trial?

The arrest Monday of Sen. Rodante Marcoleta for nonbailable plunder opens a likelihood. More senator-judges being investigated for serious offenses can also be jailed.

That raises a question: what if 11 of them are unable to finish the trial, how will the 13 remnants render judgment on impeached VP Sara Duterte?

Trial will take 92 days – 62 days for the prosecution and 30 days for the defense to present evidence and witnesses. With only three hearing days a week, trial will last seven months, says Senate Secretary Renato Bantug.

The ombudsman and Dept. of Justice are pursuing cases against certain politicos, including senators. Indictments can come within the seven months.

Three senators are so far engaged:

(1) Marcoleta, P75-million bribery and plunder, which places him under suspension and detention during trial (Plunder Law, RA 7080);

(2) Jinggoy Estrada, P573-million flood works plunder, suspended and detained since June 1;

(3) Bato dela Rosa, in hiding from an International Criminal Court arrest warrant for crimes against humanity.

Eight more senators reportedly are facing criminal complaints:

(4) Chiz Escudero, P586-million flood works plunder, filed by the ombudsman from confessions of ex-DPWH Usec. Roberto Bernardo;

(5) Joel Villanueva, P150-million flood works plunder, filed by the ombudsman from testimony of ex-DPWH engineer Henry Alcantara;

(6) Mark Villar, graft in awarding P18-billion contract to his cousin while he was DPWH secretary, filed by the ombudsman, and P1.33-trillion stock market manipulation filed by the SEC with DOJ;

(7) Camille Villar, co-accused with brother Mark in P1.33-trillion stock market manipulation;

(8) Loren Legarda, under DOJ investigation for graft because possibly linked to son Rep. Leandro Leviste’s P24-billion failed franchise, filed by Energy Sec. Sharon Garin (indictment merits suspension, Anti-Graft and Corrupt Practice Act, RA 3019);

(9) Robin Padilla, obstruction of justice in aiding fugitive Bato escape NBI arrest, filed with the ombudsman but bailable;

(10) Alan Cayetano, co-accused with Padilla (the ombudsman has sacked his Senate sergeant-at-arms Mao Aplasca for the same offense);

(11) Bong Go, reportedly also to be named by ICC as co-perpetrator of Rody Duterte in crimes against humanity.

If all 11 are out of commission on judgment day, then what will be the threshold to convict Sara?

Conviction means removal and permanent disqualification from office. The Constitution requires “concurrence of two-thirds of all the members of the Senate” (Article XI, Accountability of Public Officers, Section 3).

Under normal situations, two-thirds is 16 of 24 senators. Escudero stressed that last Monday as impeachment court Presiding Officer.

But what about during unusual times, when even PO Escudero might be jailed?

Trial lawyer Dino de Leon challenges the interpretation that conviction always requires 16 votes, calling it “contrary to the spirit of the Constitution.” The Constitution deliberately says two-thirds, not 16, because the framers knew that Senate membership is not static, the Bantay Senado co-convenor explains:

“Senators may resign, die, become incapacitated or be legally unable to perform their duties.

“If 10 out of 24 senators resign, are imprisoned or become legally incapacitated, does that mean the Senate loses forever its constitutional power to convict an impeachable officer? Surely, the Constitution never intended for an instance when accountability will no longer be possible.”

This stems from the 1949 Supreme Court verdict in Avelino v. Cuenco. It said Senate voting requirements must be understood in light of members who are legally unable to participate.

The SC ruled on the dispute over the Senate presidency. It said that internal leadership battles are political questions. Nonetheless, it confirmed that a constitutional majority required for a quorum is based on the remaining members who are capable of attending, rather than the absolute total of all elected senators.

Retired SC Justice Antonio Carpio expounded on it three weeks ago. At that time, only Estrada and Dela Rosa were unable to exercise senatorial powers and functions, including the right to vote as senator.

With only 22 senators functioning, the two-thirds vote to convict should thus be only 15, Carpio said.

Father Ranhilio Aquino, dean of San Beda Graduate School of Law, said that a good number of fellow law educators in their chatgroup share Carpio’s stand.

Abdiel Dan Fajardo, former president of the Integrated Bar of the Philippines, cited two instances when senators cannot hold office and vote in proceedings:

• When charged with plunder, graft and corruption or similar grievous cases; or

• When under preventive detention or serving criminal sentence.

Citing two SC rulings, People v. Maceda and Trillanes v. Pimentel, he told Rappler: “All prisoners, whether under preventive detention or serving final sentence, cannot practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention.”

Siding with Carpio, UP Law associate dean Paolo Tamase told Rappler: “We need to recognize and accept that we are in unprecedented times in terms of the number of senators possibly facing criminal charges, plus the agenda of the Senate. While the conventional view had made sense for the most part of our history, the emerging view seems persuasive if we intend a functional Senate and functional constitutional processes.”

Alan Cayetano proposed that the Senate request the Sandiganbayan to let Marcoleta and Estrada attend the impeachment hearings. That would not only be self-serving in case he too is jailed. It would also make senators special citizens even if criminally indicted.

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