When the impeachment trial of Vice President Sara Duterte kicked off on July 6, one of the first orders of business of presiding officer Chiz Escudero was to settle the conviction threshold debate.

The issue of how many votes are needed to secure a guilty verdict against the Vice President emerged after some legal experts, and even prosecutors themselves, floated the suggestion to lower the conviction threshold as more senators find themselves unable to participate in the trial.

Senators Rodante Marcoleta and Jinggoy Estrada are in jail over non-bailable plunder cases, while Senator Ronald “Bato” dela Rosa is in hiding amid an active International Criminal Court warrant over his role in the Duterte bloody drug war.

What the Constitution states is: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

The traditional view is that the phrase “all members” refers to 24 senators, in accordance with Article VI, Section 2 of the charter. But an emerging view argues that in determining a majority or a quorum in the Senate, those disqualified by law because of suspension from office cannot be counted.

Escudero’s position

Escudero set the voting threshold to 16.

He cited Bayan v Zamora, a Supreme Court ruling in 2000, which stemmed from various various groups’ petition questioning the constitutionality of the Visiting Forces Agreement (VFA), a treaty that establishes the framework on the deployment of American soldiers in the Philippines.

The VFA came in response to the expiration of the Philippine-US Military Bases Agreement in 1991. Article XVIII, Section 25 of the 1987 Constitution states that upon expiration, American troops and facilities will only be allowed in the Philippines under a new treaty that must be “concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum,” among other requirements.

In upholding the constitutionality of the VFA, the Supreme Court emphasized the required two-thirds vote of all members of the Senate to enable the treaty.

The ruling also cites Article VII, Section 21, which states: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”

The Senate, on May 27, 1999, concurred with then-president Joseph Estrada’s ratification of the VFA by a two-thirds vote.

In 1999, there were only 23 out of 24 senators. Gloria Macapagal Arroyo, who topped the senatorial race in 1995 and whose term was not supposed to expire until 2021, vacated her seat in 1998 after winning the vice presidential election.

Despite the Senate lacking one member, the Supreme Court in Bayan v Zamora said that the Senate “shall be composed of 24 senators.”

“Without a tinge of doubt, two-thirds of this figure, or not less than 16 members, favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there were actually 23 incumbent senators at the time the voting was made, will not alter in any significant way the circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on this figure of actual members,” the ruling read.

“In this regard, the fundamental law is clear that two-thirds of the 24 senators, or at least 16 favorable votes, suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty,” it added.

This ruling was used by Escudero to justify his interpretation of the impeachment court conviction threshold.

“It behooves all of us to observe the same fidelity with the Constitution in this trial, which affects not only a mere ratification of a treaty, but more so affects the substantial rights of the respondent, and the sovereign will of the people,” Escudero said.

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The senator-judge added that any party who disagrees may seek judicial relief.

“Should the Supreme Court…render a different ruling on this question other than what the court stated, this court and this representation shall faithfully abide by that ruling,” Escudero said.

Escudero noted that his decision constitutes a ruling by the impeachment court, and pointed out the following trial day that it was not objected to by any member.

Senator-judge Alan Cayetano also put on record that the impeachment court’s position is that one senator only loses his membership when they die, when they are removed by finality, or when they resign.

Trial lead prosecutor Jinky Luistro, who previously suggested lowering the conviction threshold to 14, acknowledged after the trial day on June 6 that the topic is highly debatable.

“It is clear…for the prosecution, regardless of how we interpret the threshold, we are committed to present the evidence and conclude with a successful result of this impeachment trial,” she said.

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Prosecution spokesman Benjamin “Jay” Tolosa Jr. said on July 8 that their team has yet to discuss whether or not to raise the issue before the Supreme Court. – Rappler.com