Chiz Escudero explains how to compute for two-thirds vote in Sara Duterte impeachment trial

Senate impeachment court presiding officer Francis "Chiz" Escudero on Wednesday said that two-thirds of all members of the Senate qualified to vote will be the voting threshold needed to convict Vice President Sara Duterte.

Escudero made the explanation after the Senate impeachment court approved Senator Erwin Tulfo’s motion to clarify the basis for determining the number of votes needed for conviction, given that four of the 24 senator-judges have been unable to participate in the proceedings.

Escudero said that the following Senators will be excluded from the senator-judges qualified to vote:

• detained and/or suspended or otherwise legally restrained from exercising the functions of a senator;
• persons sought by authorities whose whereabouts are unknown;
• those suffering from a physical or medical incapacity;
• those beyond the coercive processes of the Senate; and
• others similarly situated.

Escudero, however, said that such determination of who are the senator-judges qualified to vote for the conviction or acquittal of Duterte will come at a later time.

“The impeachment court shall determine on the basis of competent and sufficient evidence whether a member falls within any of the five circumstances mentioned in the new controlling ruling. The remaining members shall then constitute the denominator from which the required two thirds concurrence shall be computed,” Escudero said.

When the computation of two-thirds results in a fraction, Escudero said the number of votes required for conviction will be rounded up to the next higher whole number, even if the fraction is less than 0.5.

“For example, if the denominator is 20, two thirds is 13 and one third or 13.33. If we round it down to 13, 13 votes would fall short of the constitutionally required two-thirds concurrence, which is 13.33. Since a fraction of a vote is impossible, as there is no fraction of a senator, 13.33, again by way of example only, [the threshold] must be rounded up to 14 votes, the next higher whole number, to ensure that the votes for conviction constitute at least two-thirds of the relevant membership,” Escudero said.

Likewise, Escudero said that the lowered threshold is only applicable for the impeachment trial of Duterte, given that a decision of an impeachment court does not bind the impeachment court that will convene in the future, unlike in regular court proceedings.

“This ruling and interpretation of the court shall operate pro hac vice, or for this occasion only. It shall not constitute a binding precedent in any future impeachment proceedings. This is a ruling, not an amendment of the rules. As such, it has no binding but merely persuasive effect on future impeachment proceedings, the hands of whom we cannot shackle as there is no stare decisis as between impeachment courts,” Escudero said.

“Further, the circumstances that gave rise to this ruling [of lowered threshold] are extraordinary. Before and the chair hopes that it shall never happen again,” he added.

Article XI, Section 3(6) of the Constitution does not specify a fixed number of votes for conviction. Instead, it states that “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

The same constitutional provision also states that “The Senate shall have the sole power to try and decide all cases of impeachment.”

In a separate interview, Tulfo stressed that the Senate impeachment court did not violate the Constitution because the two-thirds requirement remains in place, with the calculation based on the senator-judges qualified to vote.

“We did not lower the threshold because it’s still two-thirds. We did not change the Constitution,” Tulfo said.

The defense team of Vice President Duterte said it would bring the issue of the new threshold before the Supreme Court, arguing that the ruling sets a dangerous precedent.

In response, Senate impeachment court spokesperson Regie Tongol said the remedy is available to the defense.

“The remedy of Rule 65 on petition for certiorari is available to all parties. But for them to make that appeal, kailangan na maipakita na merong grave abuse of discretion amounting to lack or excess of jurisdiction of a certain government branch, in this case, the Senate impeachment court,” Tongol said.

(They would have to show that there had been grave abuse of discretion amounting to lack or excess of jurisdiction.)

The Constitution, however, does not state a number but reads “no [impeachable] person shall be convicted without the concurrence of two-thirds of all the members of the Senate.”

Article 11, Section 6 of the Constitution states that "No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate."

The same constitutional provision also states that "The Senate shall have the sole power to try and decide all cases of impeachment."

Absent judges

Senators Jinggoy Estrada and Rodante Marcoleta are detained on plunder and other related charges due to their alleged involvement in flood control and undeclared campaign donations, respectively.

Senator Ronald "Bato" dela Rosa, on the other hand, is nowhere to be found amid a standing warrant of arrest issued against him by the International Criminal Court due to his alleged involvement in the drug war deaths during the Rodrigo Duterte administration.

Senator Loren Legarda, for her part, is on an extended medical leave abroad due to a lung ailment. —KG/MCG, GMA News