By Ade S. Fajardo
Vice President Sara Duterte-Carpio’s impeachment is undergoing pre-trial proceedings in the Senate. Trial proper is projected to begin in the first week of July.
This early, one question is being raised. How many senators are needed to convict the respondent in light of the fact that two senators are currently inactive in deliberations?
Senator Jinggoy Estrada is a detention prisoner and is about to undergo trial for plunder charges before the Sandiganbayan. He is also under preventive suspension.
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Senator Ronald “Bato” dela Rosa is nowhere to be found.
He is the subject of a manhunt pursuant to a warrant of arrest issued by the International Criminal Court. His escape from the Senate is well documented.
The recent changes to the Senate leadership have stymied efforts to amend its rules ostensibly to accommodate online participation and voting. If these senators cannot participate in the impeachment hearings, on what basis will they vote?
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Former Supreme Court Justice Adolfo Azcuna quotes the Constitution which says that no person shall be convicted without the vote of two-thirds of all the members of the Senate.
Azcuna believes that in computing the 2/3, we must include all 24 senators, thereby requiring 16 affirmative votes to convict. As long as they remain members of the Senate, even if abroad, sick or detained, they are included in computing 2/3.
This is the so-called “fixed supermajority” under the Constitution, so written to ensure that removals of the highest officials of the land are backed by a bigger mandate.
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Justice Azcuna also argues that a flexible voting threshold is “subject to manipulation.”
The Constitution should protect high ranking officials from easy removal through such manipulation which can prevent some senators from being able to participate in the proceedings.
At least five other senators are facing possibly non-bailable cases in the Ombudsman which can ripen into indictments at the Sandiganbayan: Chiz Escudero, Joel Villanueva, Rodante Marcoleta, Mark Villar, and Bong Go.
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Should all of them get indicted the active members of the Senate will shrink to 17.
Under the supermajority rule, Sara’s defense team need only to convince two senators to vote for acquittal.
This is easy, given the composition of the current minority led by erstwhile Senate President Alan Peter Cayetano — assuming that the VP has its support as a political bloc.
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Former Justice Antonio Carpio presents an alternative view:
The number of senators needed to convict Sara in her impeachment trial could fall below 16 votes depending on how many members of the Senate are legally qualified to participate in the proceedings.
A senator under preventive suspension cannot hold public office and therefore cannot act as a senator-judge in an impeachment proceeding.
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“If you cannot hold public office, you cannot vote,” Carpio said.
Whose opinion will hold when the Senate finally passes judgment on the merits of the impeachment complaint?
Judicial interpretation can be avoided if a conviction is handed down by 16 senators./WDJ