Senate impeachment court to tap legal experts on voting threshold

MANILA, Philippines — The Senate impeachment court is set to enlist legal experts as amici curiae, or friends of the court, to resolve a potential deadlock over the voting threshold required for conviction in the impeachment trial of Vice President Sara Duterte. This decision comes as four senators remain absent for various reasons, leading to differing interpretations on the number of votes needed to convict. Senate President Francis Escudero, who also presides over the impeachment court, announced the plan following Senator Erwin Tulfo's formal appeal of his July 6 ruling that set the conviction threshold at 16 votes out of the full 24-member Senate. "Given the sensitive and serious nature of this issue and topic, as discussed earlier with counsels for the parties and the senator-judges, we will be enlisting the opinion and assistance of amici curiae, or friends of the court so to speak, in order to give their opinion with respect to this issue," Escudero stated. Proceedings on September 16 will be suspended to accommodate a full-day hearing with the amici curiae or special resource persons. Oral arguments from the prosecution and defense panels are scheduled for September 23. Tulfo questioned whether the constitutional phrase "all members" strictly means 24, regardless of the absence of four lawmakers beyond the Senate's coercive jurisdiction. He referenced the Senate's reliance on the 1949 Supreme Court ruling in Avelino v. Cuenco for determining legislative quorum, which calculates the majority based only on members physically capable of attending. "If we insist that the voting base is fixed at 24, regardless of the evidence presented, regardless of the vote of the senators who are able to listen to the testimonies, the absence of those senators, whether we like it or not, will result in an acquittal by default," Tulfo argued. The mention of the Avelino doctrine prompted Senator Pia Cayetano to recall the June 3 "rump session" by the 12-member majority of now Senate President Sherwin Gatchalian to oust her brother Alan Peter Cayetano as Senate president after the latter's session boycotts. Pia spoke for her brother, the now Minority Leader Alan Peter, who was absent at yesterday's proceedings. "It was said that this body has consistently relied on the Avelino v Cuenco. That’s not accurate. These 12 members used the Avelino v Cuenco for their own purposes to declare there was a quorum. The now-minority does not agree to that. Let’s not make it appear it’s the rule of the Senate," Pia said. Impeachment court spokesman Reginald Tongol confirmed Escudero’s plan to get help from retired Supreme Court justices and constitutionalists. He noted that sitting justices cannot participate as chances are high that the threshold issue would eventually be elevated to the High Court. Tongol said at least three experts would be invited, but stressed nothing is final yet. When asked if it was possible for the amici curiae to advise the Senate to simply let the Supreme Court decide on the threshold issue, Tongol acknowledged it is possible. "Of course, the opinions of the amicus curiae will be taken with great consideration by the senator-judges," Tongol said. Aside from the threshold, Tongol noted that the legal experts would also have to settle the distinct legal statuses of the absent senators – specifically whether detained lawmakers suspended under the anti-plunder law should still be counted as part of the chamber. Senator Francis Pangilinan said the issue is "separation of the powers between the judiciary and the legislative branch and impeachment court," as he called on the Senate to also respect the Sandiganbayan’s jurisdiction over Estrada and Marcoleta. Senator Bam Aquino said the issue "is not really a question of guilt or innocence; it is a matter of threshold." Senator Joel Villanueva said the constitutional provision is clear that the vote to convict is 16 of all 24 members. "This is very clear to me: ‘No person shall be convicted without the concurrence of two-thirds of all the members of the Senate.’ I thought that is non-debatable. But now that there is an appeal, which I totally understand," Villanueva said. Senator Robin Padilla, a vocal Duterte supporter, said the 1987 Constitution is clear about 16 of 24 votes to convict. - Marc Jayson Cayabyab, Bella Cariaso