14 or 16? Senate can decide who counts in Duterte conviction vote – legal expert

MANILA — The Senate itself can determine which of its members are legally and actually able to take part in the impeachment trial of Vice President Sara Duterte before computing the votes needed to convict her, a University of the Philippines law professor said.

Dante Gatmaytan of the UP College of Law said the Senate impeachment court has the authority to decide whether senator-judges who cannot take part in the proceedings should be included in the base for the constitutionally required two-thirds vote.

“The Senate itself will have to rule on that,” he said in an interview on DZUP’s “Suri sa Impeachment” on Oct. 30.

The relevant consideration, he said, is whether a senator can perform the functions required of a member of the impeachment court.

“If they are not free to perform the functions of the senator, they cannot be counted as those who can vote,” Gatmaytan said.

From 16 votes to 14

His comments come amid a dispute over the Senate impeachment court’s Sept. 23 ruling. The ruling bases the two-thirds conviction requirement on the number of senators legally and factually capable of participating in the proceedings, rather than automatically counting all 24 members of the Senate.

The court voted 13-1 to adopt the revised interpretation, with six senator-judges abstaining.

Sen. Francis Escudero, the impeachment court’s presiding officer, cast the lone dissenting vote. Upon his election as presiding officer, Escudero had held that the Constitution required 16 votes to convict.

The senators who abstained were Duterte-aligned Sens. Alan Peter Cayetano, Pia Cayetano, Bong Go, Imee Marcos, Robin Padilla, and Camille Villar.

With four senators then considered unable to take part in the trial, the threshold was calculated at 14 votes instead of the 16 required under the original interpretation.

The four are Sen. Ronald “Bato” dela Rosa, who has been in hiding since May after the confirmation of an International Criminal Court arrest warrant against him; Sen. Loren Legarda, who left the Philippines on Aug. 2; and Sens. Jinggoy Estrada and Rodante Marcoleta, who are both detained and facing plunder charges before the Sandiganbayan.

Under the revised rule, the number of capable senators is determined when the impeachment court renders judgment, which means the threshold could still change.

Article XI, Section 3(6) of the 1987 Constitution provides that no person shall be convicted in an impeachment trial without the concurrence of two-thirds of all the members of the Senate.

With 24 senators, the original interpretation required 16 votes.

Supreme Court has yet to rule on the merits

Gatmaytan said the Supreme Court’s dismissal of the first three petitions challenging the Senate impeachment court’s ruling did not settle the constitutional question.

“There are procedural requirements before the Court accepts a case. In this case, the Court said on grounds of standing and prematurity,” he said.

On Sept. 30, the Supreme Court dismissed separate petitions filed by former Executive Secretary Vic Rodriguez and lawyers Berteni Causing and Ernesto Francisco Jr. It cited procedural grounds, including lack of legal standing and prematurity.

The high court did not resolve the merits of the dispute over the voting threshold.

Gatmaytan said judicial review would generally require an actual action for the court to assess.

He cited the absence of a final vote on Duterte’s conviction as a possible reason for the challenge to be considered premature.

“The best argument against the petition is that that vote has to be taken before the court intervenes,” he said.

Senator-judges file fresh challenge

A new petition filed by Sens. Bong Go and Robin Padilla, along with officials of the Partido Demokratiko Pilipino (PDP), again asks the Supreme Court to invalidate the Senate impeachment court’s revised voting rule and stop its implementation.

The petition was filed on Sept. 29, a day before the high court dismissed the earlier challenges.

Go and Padilla argue that their case differs from the dismissed petitions because, as sitting senator-judges, their own votes and seats are directly affected by the ruling.

In an Oct. 14 resolution released to the public on Oct. 29, the Supreme Court directed the Senate impeachment court and the House of Representatives to comment on the petition within a nonextendible period of five days from receipt of notice.

The directive does not mean the high court has ruled on the merits of the petition or granted the requested temporary restraining order. It only requires the respondents named in the petition to present their side.

The petition argues that the Constitution’s reference to “two-thirds of all the Members of the Senate” means the entire 24-member chamber must be counted, regardless of whether some senators are unable to participate in the trial.

Gatmaytan said the Senate must determine whether a senator is actually and legally capable of participating, citing senators who are absent or unable to perform their duties.

He added that the Senate should clarify its rules on the voting requirement at the start of every impeachment proceeding to avoid similar disputes.