Luistro says amici curiae’s arguments beneficial to prosecution

MANILA, Philippines — The arguments raised by the former Supreme Court (SC) chief justices on reducing the number needed to convict impeachable officials should senator-judges be absent benefits the prosecution, Batangas Rep. Gerville Luistro said on Wednesday.

In an ambush interview after a break in the Senate Impeachment Court’s discussions on the threshold needed to convict Vice President Sara Duterte, Luistro said the position of the majority of the amici curiae is favorable to the prosecution, as there is a huge possibility that the minimum number of votes to convict will be reduced.

Three former SC chief justices — Hilario Davide Jr., Artemio Panganiban, and Reynato Puno — along with former SC associate justice Adolfo Azcuna were appointed by the Senate Impeachment Court as part of the amici curiae.  Of the four, Davide, Panganiban, and Puno appeared to be leaning towards a more flexible interpretation of the two-thirds vote needed for a conviction.

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READ: 3 of 4 ex-SC justices agree conviction threshold not fixed at 16 

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“Of course we are very much positive, confident that the majority of the amici (curiae) apparently has a position favorable for the prosecution.  And that is towards providing not a literal interpretation, but instead an interpretation which is in relation to the other provisions of the Constitution,” Luistro, lead public prosecutor or Duterte’s impeachment trial, said.

“For us, for me, personally, they’re opening the possibility of lowering the threshold,” she added.

Luistro explained that initially, they did not want to make a stand regarding the conviction threshold because they would leave it to the Senate Impeachment Court’s discretion.  However, since the court itself stated that there will be oral arguments on the matter, they would take a stand that will be beneficial to the prosecution.

READ: Panganiban: 16 votes needed to convict, but realities also matter 

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“Let me make it clear, initially our stand really is to submit to the sound judgment of the honorable impeachment court.  Because we honestly believe that this question falls exclusively under the authority of the impeachment court, that being a political question,” she said.

“Nevertheless, in the past hearing, that was last week, we were tasked to engage in an oral argument.  So, naturally, we will be taking the position which is more favorable for the prosecution, and that is the lowering of the threshold,” she added.

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Under Article XI, Section 3(5) of the 1987 Constitution, the Senate is given the “sole power to try and decide all cases of impeachment.”  Also, the same provision states that an impeached official will only be convicted upon the “concurrence of two-thirds of all the Members of the Senate.”

Ordinarily, two-thirds of 24 members of the Senate is 16, but the absence of several senator-judges have raised questions from different sides.  Some individuals supportive of the Vice President have insisted that all members of the Senate refer even to senators who are beyond the coercive powers of the chamber, since their titles as Senators were not removed from them.

READ: Luistro sees lower conviction vote if Senate numbers fall 

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

As of now, four senators have missed a huge chunk of the trial: Sens. Jinggoy Estrada, Rodante Marcoleta, and Ronald dela Rosa have not attended a single trial day, while Senator Loren Legarda left the country early August.

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

During the discussions, Panganiban and Puno said that the minimum number of votes needed to convict an impeached official is not automatically set at 16.  Davide, whose memorandum was read by Senate Secretary Renato Bantug, said the same thing.

According to Davide Jr., “all members” should not automatically mean all 24 senators, noting that the framers of the 1935, 1973 and 1987 Constitutions could not have intended the term to include senators who had resigned or been expelled, those who are physically or mentally incapacitated, those who cannot participate because they are abroad or their whereabouts are unknown, and those legally restrained from exercising their duties as senators.

Davide himself is one of the framers of the 1987 Constitution.

Panganiban and Puno echoed Davide’s position.  Panganiban, in his speech, said that while mathematics will always be about exact computations — like how one-third of 24 senator-judges will always be 16 — realities must also be considered in navigating proposals to lower the number of votes needed for a conviction.

He said this view is anchored on two methods of interpreting laws of the land — from the literal meaning or verba legis, to the reason why the law was written or ratio legis est anima.

Verba legis, Panganiban said while quoting the SC, is plainly reading the law through its ordinary meaning.  If this is followed, Article XI, Section 3(5) of the 1987 Constitution will mean that an impeachable official under trial will be convicted through a two-thirds vote or 16 out of 24 members.

However, there is also the matter of ratio legis est anima, Panganiban noted, which considers the reality in interpreting the law.

Panganiban said that mathematics with reality considered will not always have two as an answer for one-plus-one, using the example of two drops of water being combined to form one single drop of water.

Last June 15, Luistro herself said that the vote threshold for convicting Duterte in her impeachment trial should be reduced from 16 to 14 if more senators become unable to participate in the trial.

Eventually, counsel for the prosecution Benjamin Tolosa said the goal of the prosecution team is to build a case with overwhelming evidence that can convict Duterte regardless of how the constitutional provision on the threshold is interpreted.

During a press briefing last June 22 — on the sidelines of the pretrial proceedings — Tolosa was asked to elaborate his earlier statement about the defense panel seeking an immediate discussion on the votes needed to convict Duterte.

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Tolosa declined to give his opinion on whether there is a need to lower the number of the votes needed to convict Duterte, but he said their intention is to ensure that there is a “compelling case” that can sustain a conviction, whatever the number is. /mr