Sara Duterte camp weighs Supreme Court challenge to impeachment vote threshold

The camp of Vice President Sara Duterte is considering asking the Supreme Court to review the Senate impeachment court’s decision to change how the two-thirds conviction threshold in her impeachment trial will be calculated.

Duterte spokesperson and lawyer Salvador Paolo Panelo Jr. said Wednesday, Sept. 23, that the defense is looking into filing a petition for certiorari, arguing that the Senate impeachment court may have committed grave abuse of discretion when it overturned an earlier ruling setting the threshold at 16 votes.

The Senate impeachment court voted 13-1 to reverse Presiding Officer Francis “Chiz” Escudero’s July ruling that two-thirds of the full 24-member Senate, or 16 votes, was required to convict Duterte. Six senator-judges did not participate in Wednesday’s vote.

Under the new ruling, the phrase “all the Members of the Senate” will refer to senators who are “legally and factually capable” of participating in the impeachment proceedings when the judgment is rendered.

Senators who are detained, suspended or otherwise legally restrained from performing their functions may be excluded from the voting base. The ruling also covers senators whose whereabouts are unknown because they are being sought by authorities, those who are physically or medically incapacitated, and those beyond the Senate’s coercive processes.

The two-thirds requirement itself remains unchanged. The dispute centers on which senators should be included when determining the number from which the two-thirds is calculated.

For example, Escudero said that if 20 senators are determined to be legally and factually capable of participating, two-thirds would be 13.33. The number would be rounded up, requiring 14 votes to convict.

The new ruling applies specifically to Duterte’s impeachment trial and does not establish a permanent rule for future impeachment proceedings.

Panelo said the defense believes the Constitution is explicit on the requirement.

“I don’t think it’s just unfavorable to the Vice President. I think it’s unfavorable to all Filipinos because they changed the Constitution,” he said in a mix of English and Tagalog.

He pointed to Article XI, Section 3(6) of the 1987 Constitution, which provides that an impeached official cannot be convicted without the concurrence of “two-thirds of all the Members of the Senate.”

“It’s a sad day, not just for the Vice President’s camp, but for all Filipinos,” he said.

Panelo said a certiorari petition would ask the Supreme Court to determine whether the impeachment court acted with grave abuse of discretion in revisiting its earlier interpretation of the voting requirement.

“That means that if there’s grave abuse of discretion, the Senate Impeachment Court loses its jurisdiction,” Panelo said.

The defense has maintained that it will continue participating in the impeachment proceedings while reserving its right to challenge the threshold ruling before another forum.

Lead defense counsel Sheila Sison earlier said the team would participate in the trial ad cautelam, or without conceding the impeachment court’s continued jurisdiction.

“All it means is, do not consider our appearance here before the Senate Impeachment Trial Court as an admission or recognition that you still have jurisdiction or the power to continue with this trial,” Panelo said.

“Because if they file a petition for certiorari, it would mean that the position of Vice President Sara’s camp is that there was grave abuse of discretion and that the Senate has already lost its power or jurisdiction,” he added.

The defense had previously told the impeachment court that it would continue taking part in the proceedings while reserving its right to pursue legal remedies against the threshold ruling.

The Senate impeachment court’s decision came after weeks of arguments over whether senators who cannot participate in the proceedings should still be counted in determining the two-thirds requirement.

The court’s new formula will govern the eventual conviction vote unless it is subsequently changed through judicial or other lawful proceedings.