The Senate impeachment court reopened on Tuesday, September 8, the question of whether 16 votes are required to convict Vice President Sara Duterte, prompting objections from her defense over the court’s authority to reconsider the constitutional threshold.
The issue was raised by Senator-Judge Erwin Tulfo, who asked whether the requirement of “two-thirds of all the members of the Senate” should be based on the full 24-member chamber or only on senators able to participate in the trial.
“Is it really for 24? We count the 24 or we only count those who are present right now, the 21?” Tulfo asked.
Presiding Officer Francis Escudero treated Tulfo’s motion as an appeal or request to reconsider his earlier ruling that at least 16 votes are needed to convict Duterte.
Escudero said the court would invite legal experts, known as amici curiae or friends of the court, to help senator-judges examine the issue.
The experts are tentatively scheduled to appear on September 16. The prosecution and defense are scheduled to present oral arguments on September 23, after which the impeachment court is expected to vote on the question.
“We will be enlisting the opinion and assistance of amici curiae, or friends of the court, so to speak,” Escudero said.
The court is considering retired Supreme Court justices and constitutional law experts. Escudero said the experts would be selected in consultation with the prosecution, defense and senator-judges.
Defense questions court’s jurisdiction
Duterte’s defense said its participation in the proceedings on the voting threshold would be done only as a precaution and would not mean that it accepts the impeachment court’s authority to reconsider the issue.
Lead defense counsel Sheila Sison said they may pursue legal remedies against both the decision to reopen the question and any eventual ruling changing the threshold.
“Whatever participation that the respondent and the defense would have on any oral argument or on any debate or proceeding relating to the matter taken up by the Honorable Senator Erwin Tulfo in his motion would be only out of abundant caution,” Sison said.
She added that the defense’s participation would be “without prejudice to any remedy” available to Duterte.
Sison said the dispute was not limited to how many votes would be required.
“More than the issue that will be discussed when this issue is taken to a debate is the matter of jurisdiction,” she said.
Senator-Judge Pia Cayetano also questioned whether the impeachment court could revisit Escudero’s earlier ruling. She said the Supreme Court has the authority to interpret the Constitution.
Escudero previously ruled that the voting threshold should be based on the full Senate membership of 24.
“The Court held that the Charter provides that the Senate shall be composed of 24 senators. Without a tinge of doubt, two-thirds of that figure, or no less than 16 members, is in unquestionable compliance with the requisite number of votes,” Cayetano said, quoting the earlier ruling.
She said the court must first determine whether it has the authority to reopen the question.
“Pero kine-question ko nga kung may karapatan man lang tayong gawin ’yun kasi otherwise unconstitutional ’yung act natin dahil hindi natin job mag-interpret,” Cayetano said.
Escudero said the impeachment court would hear opposing legal views before putting the matter to a vote. He also said any decision would be without prejudice to legal remedies that the prosecution or defense may pursue.
Detained senators’ participation raised
The issue arose because some senators are detained, absent or otherwise unable to participate in the proceedings.
Tulfo said senators who have been charged but not convicted by final judgment remain members of the chamber.
“The number will change if we change the base,” Tulfo said, referring to the effect of using only participating senators to calculate the two-thirds requirement.
Senator-Judge Kiko Pangilinan said Senator Rodante Marcoleta had formally communicated his desire to participate. Cayetano said two detained senators had asked the Senate to take a position allowing them to attend and vote.
Escudero said their participation must be decided by the Senate acting as a legislative body, not by the impeachment court. Any attempt to secure their attendance would also require action by the Sandiganbayan, which has custody over them.
Senator-Judge Bam Aquino stressed that the voting-threshold dispute should not be taken as an indication of Duterte’s guilt or innocence.
“Yung issue ng threshold ay ibang issue po ’yan sa guilt or innocence ng respondent,” Aquino said. “This is a matter of interpreting the Constitution and has nothing to do with guilt or innocence per se.”
Prosecution drops 15 witnesses
The threshold debate came on the same day the prosecution dropped its 15 remaining witnesses for the article accusing Duterte of misusing and misappropriating confidential funds.
Private prosecutor Lorna Kapunan said the panel originally listed 27 witnesses. Ten appeared before the court, while the testimonies of two others were covered by stipulations.
“We have decided to forego, Your Honors, not only with the witnesses subpoenaed for today, but with all the remaining 15 witnesses,” Kapunan said.
She said the prosecution believed the evidence already presented had made its case clear. According to Kapunan, the 12 witnesses identified 4,750 documents.
“It is the prosecution’s contention that the case has become very clear,” she said.
Kapunan compared the evidence to pieces on a chessboard that allegedly pointed to Duterte.
“All of these pawns and castles and horses and bishops point to only one person, the Queen. And it is the Queen here, the Vice President,” she said.
The statements were allegations from the prosecution and did not constitute findings by the impeachment court. Duterte has denied wrongdoing in the impeachment case.
The prosecution said it plans to call Duterte as a witness after completing its presentation on all four impeachment articles. It has not filed a formal motion asking the court to issue a subpoena.
“In lieu of presenting 15 other witnesses, we will be presenting the Vice President herself,” Kapunan said.
Defense invokes protection against self-incrimination
Duterte’s defense opposed any attempt to compel her to testify for the prosecution, citing the constitutional protection against self-incrimination.
Sison said the Constitution prohibits forcing an accused person to serve as a witness against herself. She described the protection as a fundamental constitutional right.
“This right is absolute. And this is not only a simple right or a statutory right. This is a fundamental right,” Sison said.
She said impeachment may be a proceeding of a special character, but the constitutional protection does not contain an exception allowing an accused person to be compelled to testify in such a case.
The defense also noted that prosecutors had not filed a formal request for a subpoena. Sison said the defense would submit a written response if such a motion is filed.
She rejected the suggestion that Duterte’s absence from the witness stand showed a lack of interest in the proceedings.
“If respondent is not interested in this trial, she would not have even sent her lawyers to defend her in this case,” Sison said.
Escudero said the court would give the defense an opportunity to respond before ruling on any request to subpoena Duterte. He also noted that Duterte could decide to testify voluntarily, as then-Chief Justice Renato Corona did during his 2012 impeachment trial.
The impeachment trial is scheduled to resume on September 14, when the prosecution will begin presenting witnesses for the article involving Duterte’s alleged unexplained wealth.
