Senate impeachment court may have to vote twice on 'conviction threshold' issue

The Senate impeachment court may have to vote twice to settle the number of votes needed to convict Vice President Sara Duterte, even if senator-judges first overturn presiding officer Francis “Chiz” Escudero’s existing “hard 16” ruling.

Impeachment court spokesperson Reginald Tongol said Monday the first question before senator-judges would be whether to grant Senator-judge Erwin Tulfo’s appeal of Escudero’s July 6 ruling requiring 16 votes, or two-thirds of the 24-member Senate, for conviction.

“If magkaroon ng majority vote na i-reverse yung ruling, then hindi na 16, hard 16 ang magiging count for the final vote (If there is a majority vote to reverse the ruling, then 16, or the hard 16, will no longer be the count for the final vote). Now, what number that is, we don't know,” Tongol said in an televised interview.

He said a second determination may be necessary to establish the new denominator because senators who are not presently participating in the trial are in different circumstances.

“Baka magkaroon ng next vote again on that matter (There may have to be another vote on that matter),” he said.

Tongol said the court may have to distinguish among a senator who has taken the impeachment oath but is absent or on medical leave, one who is detained and facing suspension in a criminal case, and another who is beyond the Senate’s reach.

Those distinctions could determine whether particular members remain part of the base from which the constitutional two-thirds requirement is computed.

The impeachment court is set to hear amici curiae, or friends of the court, on Wednesday before the prosecution and defense present oral arguments on Sept. 23.

Tongol said the court is targeting a vote on Tulfo’s appeal after the Sept. 23 arguments, although the exact formulation of the question to be submitted to senator-judges has yet to be finalized.

Escudero to cast vote

Tongol also clarified that Escudero will participate in the vote despite being the presiding officer whose ruling is under appeal.

He said his earlier reference to the Senate’s parliamentary practice, where the presiding officer ordinarily abstains unless his vote becomes decisive, does not prevent Escudero from voting as a senator-judge.

“Siya ay gagamitin niya yung kanyang karapatang bumoto bilang senator-judge din naman (He will exercise his right to vote because he is also a senator-judge),” Tongol said.

He explained that the impeachment proceeding involves a judicial and deliberative function in which each senator-judge may participate in resolving the appeal.

With 20 senator-judges currently active, Tongol acknowledged that 11 votes could constitute a majority if all 20 form the voting base, but stressed that the court has yet to decide exactly how the appeal and any succeeding threshold question will be framed.

“We don't want to preempt the senator-judges on how the votes will happen,” he said.

Tulfo has maintained that his appeal is not intended to lower the threshold for Duterte’s conviction but to clarify whether senators unable to participate should continue to be counted among “all the Members of the Senate” under the Constitution.