The impeachment case of Vice President Sara Duterte has revived yet another constitutional numbers game. But numbers and debates aside, I firmly believe that a major turning point in this political saga lies in the pretrial that concluded on June 25 and laid the cornerstones before the trial proper begins on July 6 and the votes to be cast at the end of the trial.
AT THE OUTSET, LET ME POINT OUT THE CONSTITUTIONAL GUIDANCE: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.” (Article XI, Section 3[6]). In the 24-member Senate (acting as the Impeachment Court), this translates academically to the magic number of 16. On this threshold number, let me share two eminent views from my fellow Supreme Court retirees.
Retired Senior Associate Justice (SAJ) Antonio T. Carpio contends that the votes required to convict are based on “all members of the Senate” who remain legally qualified to perform their sworn duties. In his view, the preventive suspension of Sen. Jinggoy Estrada removes him from the computation because, per Trillanes v. Pimentel (June 27, 2008, per J. Carpio Morales, en banc), a suspended official cannot hold public office; therefore, he cannot act as a senator-judge.
SAJ Carpio also maintains that Sen. Ronald “Bato” dela Rosa, who has been hiding and evading an arrest warrant from the International Criminal Court, cannot yet be excluded from the count because he has not been formally arrested or placed under preventive detention.
In contrast, retired Justice Adolfo S. Azcuna, a distinguished framer of the 1987 Constitution, argues that should Sen. Dela Rosa be judicially declared a fugitive from justice and disentitled to his seat, his status would amount to a “constructive resignation.”
WITH DUE RESPECT, THE THRESHOLD TO CONVICT WOULD BECOME VITAL ONLY after the trial is finished and after the votes are cast. If the votes to convict are 16 or more, then any discussion of the threshold would be academic. However, if this figure is less than 16, then the required denominator would become crucial. At the present though, what infinitely matter more are the pretrial and later, the trial proper.
Tiu v. Middleton (July 19, 1999, Third Division, a decision I had the honor of writing for the Court) referred to “pre-trial [a]s an essential device for the speedy disposition of disputes.” During this period, both the prosecution and the defense lay their cards on the table to avoid surprises and delays during the trial proper.
Note, however, that an impeachment case is sui generis—a class of its own kind. For example, the impeachment pretrial does not permit amicable settlements, as in civil cases, or plea bargaining, as in criminal cases. A more jugular question than the voting threshold is what would happen should VP Sara resign amid the pretrial and trial. Well, that issue deserves a full column. For now, let us look at the means, not yet the end.
The “Notice of Pre-Trial Conference,” issued on June 9 by Senate President Sherwin Gatchalian, sought—among others—to secure: (1) a stipulation of facts and a simplification of issues; (2) the marking of documentary or real evidence and waiver of objections or admissions to evidence; (3) the number and identities of witnesses of both the defense and the prosecution (including “Mary Grace Piattos”); and (4) such other matters as will promote a fair and expeditious trial.
FAITHFULLY ADHERING TO THE PRETRIAL GUIDELINES, the prosecution and the defense revealed their witnesses and exhibits and established the paper trail of their respective positions. A well-executed pretrial ensures that when the senator-judges finally sit, they will judge based on clear, unvarnished facts rather than on useless debates on technicalities or evidentiary loopholes.
Therefore, why was there so much ado about the marking of the so-called “BIR Green Box” that necessitated written comments from the opposing parties? After all, the purpose of marking is simply to identify it as a piece of prosecution evidence–a clerical job that does not involve the exercise of judicial discretion. Of course, its opening, admissibility, relevance, credibility, and weight would be addressed to the sound discretion of the SIC.
Per Senate Secretary Renato Bantug, who acts as the SIC’s clerk of court, the prosecution asked for 62 trial days, and the defense, 30 days or a total of 92 days. If held three days a week (the Senate needs also to legislate and to conduct committee hearings), the trial, Bantug estimated, would take at least seven months to finish. Looks like a long journey before the SIC would reach its final judgment. Unless some unusual events happen, the prosecutors walk out, or VP Sara resigns.
In sum, the true strength of a nation lies not in the perceived infallibility of its leaders, but in the integrity of the institutions ready to correct the frailties of those in power. Whether the Senate can summon that integrity when it convenes on July 6 will be revealed in due time. Until then, both the prosecution and the defense bear the shared responsibility of laying the procedural foundations to end the saga.
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