Ex-Justice Azcuna: If Dela Rosa is a fugitive, Senate vote count may change — ANC

[0:00] And the trial will definitely be held. [0:04] And on the issue or on the matter of the conviction threshold justice, [0:09] many are saying that the required 16 votes can be lowered to 15 or even 14 [0:17] because two senators are currently unable to physically come to the Senate. [0:21] They are Senators Ronald De La Rosa and Senator Jingoy Estrada. [0:25] Do you agree with the observation or with the position that the threshold can be lowered? [0:33] Personally, my view is that the voting threshold is based on the number of members of the Senate. [0:42] Whether or not those members are present or able to actively participate, [0:48] as long as they remain members of the Senate, they should be counted in computing the two-thirds. [0:54] So right now, the number for me is still 16 because the Senators who are unable to participate remain members of the Senate. [1:08] But the argument of the House prosecution team is that how can Senators who are not able to physically come to the Senate [1:15] to participate in the trial render critical judgment or render proper judgment if they do not see the trial personally? [1:26] Yes, I understand that argument. [1:29] But the Constitution does not exclude members who are unable to participate in counting the two-thirds. [1:39] There is a reason for that, and that is to make sure that the process is not very easily obtained. [1:53] So to protect the tenure of our highest officials, the Constitution is very strict that the two-thirds vote, [2:03] that the two-thirds must be based on the entire Senate membership. [2:12] But there is another view, of course, that says that we should exclude those who cannot actively participate in computing the two-thirds. [2:23] But my view is that it's the entire membership. [2:28] The only possible exception to my view, in my view, is the case of Senator De La Rosa, whom we call Bato. [2:37] So, if he is judged a fugitive, he can be considered, in my view, as resigned, constructive resignation, [2:46] because being a fugitive entails running away from the legal system. [2:52] And if one runs away from the legal system, he relinquishes all membership in that system. [3:00] And therefore, he may be considered as having resigned, constructive resignation. [3:05] If that is so, if he is declared fugitive and disentitled, there is a doctrine of disentitlement in case of fugitive, [3:14] and therefore no longer a member of the legal system that he is denouncing by being a fugitive, [3:23] then it's minus one. [3:25] And if it becomes 24 minus one, 23, two-thirds of that will become 15, [3:32] because in computing, you ignore fractions. [3:36] It would be 15 plus a fraction. [3:38] So, if you exclude Senator De La Rosa for being a fugitive and considered resigned, [3:44] no longer a senator, then you have 15 to convict. [3:49] Okay. [3:49] If, in the remote possibility, Senator De La Rosa suddenly shows up, [3:55] cooperates with authority, gets jailed, [3:58] can he be counted, can the number be then 24? [4:04] In that case, then he ceases to be a fugitive, [4:08] he submits to the legal system, [4:11] and even if he's detained, he remains a senator. [4:13] So, in my computation, that would still be included in the computation two-thirds, [4:22] and 16 would still be required. [4:24] I see. [4:26] And should the Senate, would it be better for the Senate to ask for permission for Senator Jengoy Estrada [4:32] to participate, even though he has been preventively suspended by the Sandigan Bayan? [4:37] And if Senator De La Rosa submits to the law, [4:41] would it be better for the Senate to also ask for permission in order for De La Rosa [4:45] to participate in the impeachment trial? [4:49] The participation in the trial is different from the inclusion and the computation of the vote to convict. [4:57] So, even if they are not allowed to participate, [5:02] they are still included in computing the two-thirds vote, [5:06] because they are still members of the Senate. [5:09] Now, their participation away from the Senate premises [5:16] is not allowed under the present rules. [5:19] They do not allow video participation. [5:23] So, unless they are allowed to physically attend the proceedings, [5:31] they will not be able to participate. [5:33] And, of course, it's possible for the Senate to request that detained senators be allowed, [5:41] be brought physically to allow them to attend. [5:45] That is possible. [5:46] It depends on the Sandigan Bayan whether or not they allow such a, [5:53] in case there is such a petition. [5:55] So, lowering the threshold, Justice, [5:59] would you say that that would be against the Constitution? [6:05] The lowering of the threshold depends on your interpretation of the Constitution. [6:12] So, I would not say it's against. [6:15] The Supreme Court will be the final arbiter of what that threshold really means. [6:21] My own view is that it is based on actual membership. [6:26] Who are the members? [6:27] Even if they are abroad, detained, or sick, as long as they remain members. [6:31] The only exception is if they do not remain members, [6:34] if they are resigned, or they are removed, expelled, or if they pass away. [6:43] Those are the only exceptions. [6:45] At this point, do you see anything that can stop the impeachment trial from proceeding? [6:52] At this stage, I don't see any foreseeable event that will stop it. [6:59] It's all systems go, as I see it. [7:02] And what would be the best strategy for Vice President Sara Duterte [7:07] to give her defense or to show the public that she is not guilty, as she asserts? [7:12] I would not be in a position to advise the Vice President. [7:18] She has enough lawyers to advise her what would be her best strategy. [7:24] I only would like to pray for all parties involved. [7:30] And I am very happy to see that this is part of the accountability framework [7:36] that we have designed and put into Article 11 of our Constitution. [7:41] This whole process is a test whether or not we Filipinos [7:45] are capable of following our Constitution. [7:48] And for more than a month now, we all know that there has been intense political bickering [7:55] in the Senate. [7:57] Did you see this affecting the proceedings, the impeachment proceedings, in any way? [8:03] Pardon? [8:04] For the past more than a month now, Justice, [8:07] we know that the Senate has had intense political bickering [8:11] between the Cayetano bloc, the Gachalian bloc. [8:14] Did you see this affecting the impeachment process in any way? [8:19] I don't think it will derail. [8:23] It will affect in a way there will be conflicting discussions on the floor. [8:30] But I don't think it will derail the process itself. [8:36] It's part of the liberty body to have conflicting positions and views. [8:42] So I think the system can handle it. [8:45] As I said, this is a test of our ability to manage conflict [8:49] in situations that are critical to the survival of the nation. [8:56] And there is still a pending petition of the Cayetano bloc [9:00] before the Supreme Court questioning the June 3 session [9:03] led by the Gachalian bloc. [9:08] Do you see this affecting the current leadership, Justice? [9:11] What if the Supreme Court suddenly issues a temporary restraining order [9:16] in favor of the Cayetano bloc? [9:20] What will happen now with the Senate leadership of Gachalian? [9:26] The petition of former Senate President Cayetano [9:32] questioning who is the leader of the Senate, [9:40] to that extent is now moot and academic [9:43] because Senate President Gachalian has been elected by a majority of 13, [9:49] which even Senator Cayetano concedes [9:52] is the number required to elect a Senate president. [9:56] So that part of the petition is moot and academic. [9:59] And whether or not the Supreme Court will continue to entertain the petition [10:07] is up to the Supreme Court. [10:10] But in my view, the main issue is already moot and academic. [10:16] And I do not believe the Supreme Court will restrain the co-equal body [10:22] from proceeding from performing what is mandated by the Constitution for it to do. [10:28] So what will be the action of the Supreme Court regarding this? [10:33] It will still issue a decision probably, [10:36] dismissing the petition of Cayetano if it deems the petition moot and academic. [10:41] I do not want to preempt the court, [10:45] but in my view, the court would probably dismiss the petition for being moot and academic. [10:55] So we can say that the leadership of Senate President Nguyen Gachalian [11:00] will be smooth sailing, at least in terms of legality. [11:05] In my view, yes, because that has been backed by the required majority of 13 votes. [11:13] All right. And with that, we thank you very much, [11:16] former Supreme Court Associate Justice Adolfo Azkuna, for joining us. [11:20] Thank you, sir. [11:21] Thank you very much. [11:23] We'll take a quick break. Head start. We'll be right back.