Ex-IBP president: Conviction vote can be lowered

The threshold of 16 votes for convicting Vice President Sara Duterte may be lowered to reflect who among the 24 senator-judges were present to participate in the impeachment trial, a constitutional law expert said on Saturday.

In an interview with the Inquirer, former Integrated Bar of the Philippines (IBP) president Domingo Cayosa said this would be the “fair and practical” reading of the 1987 Constitution as it is in accordance with the spirit of the Charter, which is “not restrictive.”

“When you construe a law, the Constitution in this case, you try to harmonize everything or interpret it in such a way that the law becomes operative or effective, not inutile,” he said over the phone, citing the principle of statutory construction.

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The operative concept, he added, that ties such an interpretation is the word “two-thirds” of all members of the Senate.

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“Looking at this wording, it is correct that two-thirds [of the current Senate] are 16 … but it looks like the intention is not an absolute number, it’s a relative number,” he noted.

Upon his election as presiding officer on the first day of the impeachment trial, Sen. Francis “Chiz” Escudero maintained that the chamber, sitting as an impeachment court, would need at least 16 votes to convict Duterte.

Nuance of interpretation

He made this declaration in the absence of three senators who are facing legal troubles: Sen. Ronald “Bato” dela Rosa remains in hiding in the face of an arrest warrant from the International Criminal Court; Sen. Jose “Jinggoy” Estrada has been detained and ordered suspended from office by the Sandiganbayan for plunder and graft charges; and Sen. Rodante Marcoleta was ordered arrested for his plunder charges, also in the antigraft court.

“These three are all alive and are not yet unseated by any of the constitutionally allowed modes of removal, so they are still senators,” Cayosa said. “Except when they transform themselves into an impeachment court, they all become judges.”

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He pointed out that this is where the nuance in interpreting the constitutional provision comes in “because how can you be a judge when you were not there, [and] you did not observe and participate.”

But if one is on the side of the defense, he added, a “simple and strictly literal” reading of the Charter would put the voting threshold at 16.

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When Sen. Panfilo “Ping” Lacson clarified with Escudero on the second day of impeachment whether the voting threshold was merely his opinion or a ruling of the Senate as an impeachment court, the latter noted that it may be deemed a “judiciable controversy,” or an issue that may be brought before the Supreme Court.

“I believe it may already be considered a justiciable controversy, although it is not for us to dictate that, but for the courts. Given that it is a ruling of the chair, not objected to nor appealed by any member of this court, it therefore stands,” Escudero responded, referring to the minimum required number of votes of 16 to declare a conviction.

Second witness

According to Cayosa, the manner by which Escudero spoke about the matter “emphasizes the reality that it is not yet final,” and that, on the contrary, it was just “his opinion.”

“They know that when you declare two-thirds of the remaining [senators], there will be chaos, and the opening of trial would be delayed,” he said, noting that the presiding officer chose to begin the proceedings with the presentation of evidence unhampered.

The former IBP official said the high tribunal may resolve the matter, but the problem is “when and will it be soon enough?”

‘Brick by brick’

The prosecution is set to call as its next witness National Bureau of Investigation regional director Jeremy Lotoc, who is expected to strengthen the testimonies and evidence on the alleged grave threats made by the Vice President against President Marcos, first lady Liza Araneta-Marcos and former Speaker Martin Romualdez, as contained in Article IV of the impeachment complaint.

“What will happen now [is lawyer] Jeremy Lotoc, who is a seasoned NBI investigator and NBI lawyer, will explain why and how the evidence was assessed,” said De Lima during a news forum in Quezon City.

She said the earlier testimonies by Senior Agent John Mark Calilung were important in authenticating the video recordings of Duterte’s threats, and Lotoc will be “corroborating as well as adding certain aspects” to it.

The prosecution also wants the House sergeant-at-arms, Capt. Belinda Bello and the Office of the Vice President’s chief of staff and Undersecretary Zuleika Lopez to take the stand this week.

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“The [start of the trial] is where the foundation needs to be established. Now we will see other features of the house. I think the public’s interest will intensify next week and in the next few weeks,” De Lima said. “Brick by brick, we’re going to make [the evidence] stronger against VP Sara.” —WITH A REPORT FROM DIANNE SAMPANG INQ