Too early to seek SC view on impeachment voting, says prosecution

MANILA, Philippines — While they will adhere to the Supreme Court (SC) order asking them to comment on a petition against the impeachment court’s decision allowing a lower minimum number of votes for conviction, two prosecutors believe such talks are premature due to the lack of a justiciable issue.

In separate online interviews on Friday, lead public prosecutor and Batangas Rep. Gerville Luistro and counsel for the prosecution, Benjamin Tolosa Jr., said there is no injury yet that the petitions from Senators Robinhood Padilla and Christopher “Bong” Go would cure.

On Wednesday, it was revealed that the SC had asked the House of Representatives and the Senate to comment on Padilla and Go’s petition, which questions the Senate impeachment court allowing fewer than 16 votes for Vice President Sara Duterte’s possible conviction, in case several senators cannot be present for the ruling.

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“One of the requirements in filing a petition for certiorari based on grave abuse of discretion amounting to lack or excess of jurisdiction is injury.  And I honestly believe there is no injury yet and that is why I’ve been saying the petition is premature because the only time that this will become ripe […] is when they have voted,” Luistro told reporters covering the House.

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“Meaning there’s a verdict already as to whether the respondent vice president is convicted or acquitted, that’s the only time we say that there was injury […] But right now, while there is a ruling on the interpretation of threshold, which, as far as the impeachment court is concerned, is final already, nonetheless we cannot say that the issue is ripe without any injury,” she added.

READ: SC asks Senate, House to comment on Sara Duterte impeachment vote rule

Tolosa echoed Luistro, saying the composition of the Senate impeachment court when the petition was filed may differ once it is scheduled to render a decision on Duterte’s case.

“Well, I agree but ultimately that’s a question to be decided by the Supreme Court if it’s already a justiciable question but of course one view says it’s not yet because voting has not yet occurred, we don’t even know if it’s going to be an issue because the determination of how many people can vote will be done only at the time that the judgment will already be rendered,” he said.

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“So it’s possible that the status of the senator-judges will be different at that time compared to the time now,” he added.

Article XI, Section 3(5) of the 1987 Constitution states that an impeached official will only be convicted upon the “concurrence of two-thirds of all the Members of the Senate.”

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Two-thirds of all the 24 members of the Senate is 16, but the absence of several senator-judges has raised questions from different sides — with individuals supportive of the vice president insisting that all members of the Senate refer to all senators even if they are beyond the coercive powers of the chamber, since their titles as senators were not removed from them.

However, others have asked how judges can make a sound decision if they have not observed the proceedings and have failed to study documents and witnesses’ testimonies.

As of October 13, or the last time that trial was held, four senators have missed a huge chunk of the trial: Senators Jinggoy Estrada, Rodante Marcoleta, and Ronald dela Rosa have not attended a single trial day, while Senator Loren Legarda left the country in early August.

Estrada and Marcoleta have been detained on separate plunder raps, while dela Rosa has evaded public eye amid an arrest order from the International Criminal Court.  Legarda is on medical leave.

After the oral arguments last September 23, 13 senator-judges present voted in favor of allow a lower minimum number of votes to convict Duterte, with the denominator used to determine a two-thirds vote depending on how many members of the Senate are available once it decides on the case.

The ruling read by Presiding Officer and Senator-judge Francis Escudero stated that the following members will be excluded from the voting process:

• Detained and/or suspended, or otherwise legally restrained from exercising the functions of a senator
• Persons sought by authorities whose whereabouts are unknown
• Suffering from a physical or medical incapacity
• Beyond the coercive processes of the Senate
• Others similarly situated

READ: Impeach court ruling on conviction threshold: Who can’t vote?

For example, Escudero said that if only 20 senator-judges remain, two-thirds will be 13.33.  This means they will have to round up even if the decimal is less than 0.5; instead of merely 13 votes to convict Duterte, the requirement will be 14 votes.

Luistro has admitted in the past that a lower minimum number of votes for conviction is beneficial to the prosecution, as they would need fewer votes to convict Duterte due to the absence of several senators.

She, however, also said that the ideal scenario is for the prosecution to still get at least 16 votes or more to convict, to make any possible issue “moot and academic.”

READ: Ideal is 16 or more conviction votes, even with lower denominator – Luistro

The prosecution panel originally listed four charges in its Articles of Impeachment against Duterte, but last October 13 — before trial adjourned for a break — Luistro manifested before open court that they are withdrawing three of four articles, leaving Article II as the lone case.

Article II deals with allegations that Duterte has unexplained wealth and that she did not declare it in her SALN

If Duterte is convicted under Article II, or on the allegation that she has unexplained wealth that she did not declare in her Statement of Assets, Liabilities, and Net Worth, she will be removed from office.

Aside from removal from public office, the charges against Duterte carry another penalty if she is convicted — perpetual disqualification from holding public office.

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The trial is slated to resume by November 9, during which the defense panel will have its chance to present its evidence and witnesses to counter the allegations under Article II. /gsg