Cayetano warns of mistrial, says SC should set threshold

MANILA — Sen. Alan Peter Cayetano warned on Wednesday, Sept. 23, that the Senate impeachment court risked a “mistrial” by changing mid-trial the number of votes needed to convict Vice President Sara Duterte.

The minority leader argued that the Supreme Court, not the impeachment court, has jurisdiction to interpret the conviction threshold. He also argued that the question should have been settled before the Senate adopted its trial rules.

Cayetano made the manifestation as the court heard oral arguments on Sen. Erwin Tulfo’s Sept. 8 motion. The motion asked the court to reconsider the July 6 ruling of Sen. Francis “Chiz” Escudero, the presiding officer, that 16 votes were needed to convict.

He urged the court not to vote on the matter at all.

“On the record, I would prefer – and I would insist – that if there is a question on the threshold, the question be brought before the Supreme Court,” he said.

Cayetano warned that changing the threshold mid-trial could give either party grounds to question the proceedings before the Supreme Court. He said the entire trial could be nullified if the change were found to constitute grave abuse of discretion.

He explained that even if the impeachment court has jurisdiction over its own rules, “it may disappear when there is grave abuse of discretion that amounts to lack or excess of jurisdiction” on certain matters.

Under Article VIII, Section 1 of the 1987 Constitution, the courts may review acts of any branch of government for grave abuse of discretion amounting to lack or excess of jurisdiction.

Cayetano recalled that he raised the threshold issue himself on the trial’s first day, arguing that the constitutional rule is ultimately a question of jurisdiction.

He added that even if the impeachment court has the power to change the threshold, it should have done so at the start and not mid-trial.

“Timing is essential,” he said. “If we did it before we passed the rules of the Senate, all parties would have been informed and all parties would have had the chance to go to the Supreme Court.”

“To discuss it in the middle of the trial, just before the prosecution is ending and just before the defense will be presenting their evidence, is not only inconvenient or uncomfortable, but I use the word ‘mistrial,'” he added.

Cayetano also questioned the fairness of reconsidering the threshold while several senators remain unable to attend the trial amid political pressures outside the court.

“There are real politics happening here. It’s not an accident na hindi panay opposition ang puro wala na dito,” he said.

He was pointing out that the senators now absent are largely from the opposition.

“Inside the court, nararamdaman natin y’ung fairness. But the reality is, this court does not exist in a vacuum. May nangyayari sa labas… Hindi dapat gumawa ng mga akusasyon dito, pero hindi rin pwedeng bulag-bulagan dito na walang nangyayari sa ating bansa,” he added.

He said the chamber should not make accusations, but it also could not pretend that nothing was happening in the country.

OTHER DISSENTERS

Sen. Imee Marcos also questioned the recalculation. She argued that constitutional requirements should not be adjusted to match the number of votes available.

Marcos is the sister of President Ferdinand Marcos Jr., who ran with Sara Duterte under the UniTeam banner in the 2022 elections.

“Huwag natin ilapit ang finish line dahil lamang nahihirapan tayong abutin ito,” she said.

She meant that the Senate should not move the finish line closer simply because it is struggling to reach it.

Davao City 1st District Rep. Paolo “Pulong” Duterte, the vice president’s brother, said a majority decision does not necessarily make an interpretation constitutional.

He said questions on how to count “all the Members” of the Senate should ultimately be resolved by the Supreme Court.

Rep. Chel Diokno, the prosecution’s counsel on the issue, countered that the change in the count would not guarantee a conviction.

“The evidence does not become stronger or weaker depending upon the denominator,” he said.

The court voted down Cayetano’s bid to stop the deliberations before granting Tulfo’s motion, 13-1. Escudero cast the lone dissenting vote.

Sen. Mark Villar abstained on the procedural vote but joined the majority on the threshold itself.

NEW CALCULATIONS

Under the new ruling, the phrase “all the Members of the Senate” in Article XI, Section 3(6) of the 1987 Constitution refers only to senators who remain legally and factually capable of participating in the proceedings at the time of the vote.

The ruling excludes five categories of senators from the count:

• Those detained, suspended, or otherwise legally restrained from exercising their functions.
• Those sought by authorities whose whereabouts are unknown.
• Those suffering from a physical or medical incapacity.
• Those beyond the coercive processes of the Senate.
• Others similarly situated.

The ruling currently covers Sens. Jinggoy Estrada and Rodante Marcoleta, who are detained while facing plunder charges before the Sandiganbayan.

It also covers Sen. Ronald “Bato” dela Rosa, whose whereabouts have been unknown since the International Criminal Court issued a warrant for his arrest over alleged crimes against humanity.

Sen. Loren Legarda, who is abroad and has repeatedly extended her medical leave, is also excluded.

Escudero said the court must formally determine, on the basis of competent and sufficient evidence, whether a senator falls under any of the five categories. The remaining members will form the denominator for computing two-thirds.

He added that if the computation produces a fraction, the requirement must be rounded up to the next whole number, even if the fraction is less than 0.5.

“For example, if the denominator is 20, two-thirds is 13 and one-third or 13.33. If we round it down to 13, 13 votes would fall short of the constitutionally required two-thirds concurrence, which is 13.33,” Escudero said.

“Since a fraction of a vote is impossible as there is no fraction of a senator, [the vote] must be rounded up to 14 votes, the next higher whole number, to ensure that the votes for conviction constitute at least two-thirds of the relevant membership,” he continued.

‘PRO HAC VICE’

Escudero registered his objection on the record but formally accepted the court’s decision.

“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. “The Presiding Officer, after all, is not the Court. He is merely the custodian of the process, not the proprietor of its outcome.”

He stressed that the ruling applies pro hac vice, or for this occasion only. It sets no binding precedent for future impeachment trials because the current court faces extraordinary circumstances.