Ask Me Anything: Constitution expert on why pre-trial is important to impeachment process

Are 16 votes really needed to convict Vice President Sara Duterte before the impeachment court?

This conventional view is being revisited ahead of her impeachment trial, and on the heels of instability at the Senate, where numerous senator-judges are facing legal battles that could prevent them from participating in the high-profile proceedings beginning July.

One school of thought argues that given one senator’s arrest, the threshold could be lowered.

The Constitution’s wording

Article XI, Section 3 (6) of the Constitution states: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

Article VI, Section 2 of the same charter also sets the composition of the Senate to 24 members.

Basic algebra indicates that to convict an impeachable official, 16 votes must be secured.

The ’emerging’ view

However, some practitioners of the law, including retired Supreme Court justice Antonio Carpio, say that in determining a majority or a quorum in the Senate, those disqualified by law because of suspension from office cannot be counted.

So far, Senator Jinggoy Estrada is detained for his non-bailable plunder and graft cases, in connection with his alleged role in the flood control corruption scandal.

“Since Estrada is under preventive detention and suspended from office, he cannot exercise the functions and powers of his office, which includes the right to vote as senator,” Carpio told Rappler.

Some seasoned lawyers have adopted Carpio’s position.

Abdiel Dan Fajardo, former president of the Integrated Bar of the Philippines, cites two instances that prevent senators from holding elective office or voting in Senate proceedings.

The first is when a public public officer is charged with graft and corruption, plunder, or similar criminal offenses. Fajardo invokes Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act, and Republic Act No. 7080 or the Plunder Law, both of which suspend a public officer who is slapped with those charges.

The second instance, he said, is “when a public officer is under preventive detention for a non-bailable offense (not necessarily graft and corruption or plunder) or serving a criminal sentence.”

Fajardo raises two rulings to support his argument: People v. Maceda , and Trillanes v. Pimentel . These resolutions state: “All prisoners whether under preventive detention or serving final sentence cannot practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention.”

University of the Philippines College of Law associate dean and constitutional law professor Paolo Tamase said he finds the argument forwarded by Carpio persuasive.

“The conventional view opens the possibility to some Senate functions being incapable of being fulfilled — e.g., passing a treaty — if the functional members number lower than the thresholds required by the Constitution,” Tamase told Rappler.

Tamase, however, said the Senate has yet to reach an “extraordinary point” to accommodate this “emerging view.”

“I think we need recognize and accept that we are in unprecedented times in terms of the number of senators possibly facing criminal charges, plus the agenda of the Senate (e.g., impeachment). While the conventional view had made sense for the most part of our history, the emerging view seems persuasive if we intend a functional Senate and functional constitutional processes,” Tamase told Rappler.

“There is wisdom in the conventional view that all efforts towards consensus-building should be exhausted. With two senators being “non-functioning” so far, I think we should stick to the commonly understood way of counting votes. For now,” he added.

What prosecution, presiding officer say

House lead prosecutor Jinky Luistro believes that the conviction threshold should be dependent on the total senator-judges participating in the trial.

“If you can attend, if you can participate, if you can vote, then you are representing the interests of the Filipino people. But if you are beyond the reach of any coercive measures, and you did not attend, and you did not vote, why should you be counted for the purpose of determining the number of votes required?” Luistro said, adding that this is her personal opinion.

Senate President Pro Tempore and Acting Senate President Win Gatchalian, in a June 10 statement, already said that the conviction threshold should be set at 16.

“It will remain 16 votes regardless of how many senators attend the trial, which bloc controls the chamber, or who presides over the impeachment court,” he added.

Win’s predecessor, Alan Peter Cayetano, who is still contesting his ouster, previously warned of efforts to reduce the numbers needed to convict Duterte, supposedly similar to how he was unseated despite the Gatchalian bloc having only 12 votes.

The Gatchalian bloc used a 1949 Supreme Court ruling on quorum determination to kick out Cayetano from the Senate presidency…