Headstart: Ex-SC Justice Antonio Carpio on cases vs senators, Gatchalian vs Cayetano, 'quorum of 12'

[0:00] All right, we have with us this morning, former Supreme Court Associate Justice Antonio Carpio. [0:06] Justice Carpio, good morning to you, sir. [0:09] Good morning, Karen. Good morning to our viewers. [0:12] All right. I want us to be as objective as we can be when it comes to the Constitution on this. [0:19] All right. Can 12 members of the Senate actually elect, right? [0:30] Or even a Senate pro-tempore or a Senate president? [0:38] Thank you, Karen. The short answer is yes, under the present circumstances. [0:45] Why is that? [0:46] Let me explain. There are two rules involved in the present situation, a general rule and a specific rule. [0:55] The general rule is that a public official under preventive detention for a criminal offense filed in court cannot hold public office while in preventive detention. [1:11] That is Trillanes v. Pimentel. [1:13] Trillanes was charged with coup d'etat, non-bailable offense, and he wanted to attend the Senate sessions to vote in the Senate proceedings. [1:24] But the Supreme Court said, no, because you are under preventive detention, you cannot hold public office. [1:33] And that follows an old case, People v. Meseda. [1:39] So that is a general rule. [1:41] But there is a specific rule involving two situations. [1:45] Under the Anti-Graft and Corrupt Practices Act, Republic Act 3019, it says a public official charged in court for any violation of the Anti-Graft and Corrupt Practices Act shall be suspended from office while the case is pending in court. [2:06] That means, since it says any violation of the Anti-Graft and Corrupt Practices Act, so even if the penalty does not reach reclusion perpetua, it's just, let's say, 12 years imprisonment and bail can be granted as a matter of right, it says any violation. [2:32] So it means any kind of offense under the Anti-Graft and Corrupt Practices Act, the public official shall be suspended from office while the case is pending in court. [2:46] This is several cases already, and the latest is Bunye v. Scarial. [2:51] That's the first rule. [2:52] There is a second rule, and it involves a later law that adopted this particular rule in the Anti-Graft and Corrupt Practices Act. [3:05] The Plunder Law came later, but it has a provision similar to the Anti-Graft and Corrupt Practices Act. [3:13] Section 5 says any public official charged in court for any violation, any violation of the Plunder Law shall be suspended from office while the case is pending in court. [3:26] So even if a person charged under the Plunder Law is granted bail, he is suspended from office. [3:37] What is the rationale for the suspension under the Anti-Graft and Corrupt Practices Act and under the Plunder Law for any kind of offense? [3:48] The reason is to prevent that public official from influencing the witnesses against him. [3:54] And normally, the witnesses are subordinate employees of that public official. [3:59] So you have these two rules. [4:01] You apply this now to the present situation. [4:03] There is one official senator who was already arrested on that day when the Senate held its session. [4:13] He was already charged with Plunder. [4:18] And the penalty is reclusion perpetua. [4:27] That means it's not bailable if evidence of guilt is strong. [4:30] But whatever the case is, he was charged under the Plunder Law. [4:35] So that means he shall be suspended from office while the case is pending in court. [4:42] So Senator Gingoy Estrada is now suspended because the court has repeatedly held that this is mandatory. [4:52] This suspension under the Anti-Graft and Corrupt Practices Act, which was incorporated in the Plunder Law, is mandatory. [5:02] And that means it's automatic the moment you are charged in court before the syndicate. [5:08] So under the general rule, while you are under preventive detention, you cannot hold public office. [5:19] So Gingoy cannot hold public office while he is under preventive detention. [5:24] He is under preventive detention. [5:26] Now, under the specific rule, under the Plunder Law, he shall be suspended from office while the case is pending. [5:34] So the question is, if a senator cannot hold office because there's a case against him, and he is suspended from office because there's a Plunder case against him, can he vote in the... [5:56] Let's talk about that vote. [5:59] The Senate leadership. [6:00] The change of leadership first. [6:03] Can he vote? [6:03] Will he be counted in determining the quorum? [6:08] Is a quorum based on 24 senators or is now 23 minus Gingoy Estrada? [6:15] Minus pa ba to? [6:16] If you are suspended from office... [6:17] Minus pa ba to? [6:18] If... [6:18] No, saka na si ba to? [6:21] Differentation. [6:22] If you are suspended from office, that means you cannot exercise the functions and powers of that office. [6:30] And one of the function and power is to vote, to attend the session. [6:36] You cannot exercise that. [6:38] You are suspended from office. [6:41] Now, also, under the first rule, in the Trillianes versus Pimental Ruling, while in preventive detention, you cannot hold office. [6:53] So, under these two rules, Gingoy cannot hold office, cannot exercise the functions and powers of his office. [7:05] So, will you count Gingoy in determining the majority of the Senate? [7:14] Because in the change of leadership, lower leadership outside of the Senate president, it just says, the Constitution just says majority of the Senate. [7:28] But in the rules of the Senate, it says majority of all the members of the Senate. [7:32] Let's tackle first the majority of the Senate. [7:35] My position is, you cannot include Gingoy because he has been suspended. [7:42] He cannot exercise the right to vote in any proceeding in the Senate. [7:48] And he cannot hold public office under the Trillianes doctrine. [7:54] So, he cannot be counted. [7:57] So, there are only 23 voting members of the Senate, and 12 is a majority. [8:04] That's the quorum. [8:05] So, now, can the Senate rules prevail over this, over the provision of the law, the plunder law? [8:20] I don't think the Senate rule can change the plunder law. [8:23] That the moment it is pending in court, the public official shall be suspended from office, and this is mandatory. [8:31] So, that rule cannot prevail over the law, because the law is higher than the Senate rule. [8:47] Uh-oh. [8:47] Uh-oh. [8:48] All right. [8:48] So, my position is that the change of leadership up to the Senate pro tempore is valid, because there was a quorum. [8:58] The quorum is based on 24, 12 is a majority. [9:03] So, there was a quorum. [9:04] They can properly declare all positions vacant. [9:08] So, all positions are vacant, and they elected, but they did not elect the Senate president, [9:14] because they were still in doubt whether it is a majority of all, the 24, or a majority of the voting. [9:23] Now, that is not yet resolved, because they did not vote. [9:28] So, bottom line, the election of the pro tempore down is valid. [9:34] What they did, because they had the majority, the law, the Constitution, and the jurisprudence only requires a majority of a quorum to pass a resolution or a law in the Senate. [9:49] But they all voted, the 12 of them. [9:51] Okay, sir. [9:52] So, you cannot be questioned. [9:53] Now, so, the next question is, can the present Senate, as constituted now, the 12, under the Gachalian faction, together with the Chief Scudero, [10:08] can they elect the Senate president? [10:12] That's the question now. [10:13] For me, that's the remaining issue. [10:15] Yeah, yeah. [10:16] I believe that they can, because when the Constitution says the Senate president shall be elected by a majority of all the members of the Senate, [10:27] all refers to those who can vote and are not legally disqualified from voting. [10:32] Because if the senator, like Jim Goy, is legally disqualified, you cannot count his vote. [10:41] So, the 23 is the base number of senators for purposes of electing the Senate president. [10:50] So, a majority of 23 is 12. [10:52] So, they can meet. [10:54] The next time they meet, they can elect validly the Senate president because you do not count a senator who has been legally disqualified to vote. [11:07] Because he was automatically suspended and this is mandatory according to several decisions of the Supreme Court. [11:16] The latest is Bunye v. Scurial. [11:19] Oo. [11:20] Okay. [11:21] So, ang lumalabas ngayon, nagbabanggit kayo ng mas maraming disisyon ng korte other than what's commonly quoted, [11:30] which is the 1949, the Avelino v. Cuenco, the 1949 decision, is after that, there are so many other decisions. [11:41] So, ang tanong ito, the Article 6, Section 16, Paragraph 1 of the 1987 Constitution, [11:48] that Senator Loren Legarda, Senator Alan Cayetano, keep quoting, [11:53] mandating the Senate shall elect its president by a majority. [11:58] Kasi meron pa silang educational video na inilalabas sa IG nila. [12:04] Majority vote of all its members. [12:08] Are you saying that because Jingoy has a plunder case, a malversation case, [12:15] he will not be counted as a member? [12:18] I think that's where the technicality lies. [12:23] Who can you consider as all its members? [12:27] Sinasabi ng Cayetano faction, [12:29] bakit? [12:29] Senador pa rin naman yung mga yun ha, hindi pa yung guilty. [12:33] Si Batos, senador pa rin yun ha, hindi pa naman siya na-arresto. [12:37] Diba? [12:38] So, who can we describe as members? [12:43] Kung hindi pa ko nito. [12:44] If you are dead, senator, you just die, I don't think you can be counted [12:50] because you cannot vote anymore. [12:53] Now, if you are legally disqualified under a law like the plunder law [13:00] and also under jurisprudence, under Trillianes v. Pimentel, [13:06] you cannot hold office and you are suspended from office. [13:10] I don't think you should be counted because if you cannot hold office, [13:16] how can you vote? [13:18] If you cannot hold the office of senator, how can you vote as senator? [13:22] If you are suspended as a senator, how can you vote as senator? [13:27] Oo, you're right. [13:29] You're right. [13:30] Kasi hindi ito nakita ng mga, ano ha, Justice Carpio, [13:34] kayo lang ang nag-mention nito na under Section 5 of Republic Act 7080. [13:42] Kahit hindi pa guilty ang official, basta lang nakasuhan, [13:48] suspended na from preventing office. [13:51] Yes. [13:52] You are suspended from office. [13:54] That means you cannot go to your office. [13:56] That means you cannot exercise the functions and powers of your office. [14:05] Yeah. [14:06] Oo. [14:07] Kasi ang perpetual disqualification only comes under Section 2 [14:12] when the officer is convicted. [14:15] Yes. [14:15] Yung perpetual na. [14:17] Ito preventive ito eh. [14:18] Dahil the reason for this is so that you will not influence the witnesses against you. [14:24] And normally, the witnesses against you are your subordinate employees. [14:28] Yes. [14:29] Okay. [14:30] So this is clear. [14:31] It's shocking why nobody's mentioned this. [14:34] Only you. [14:35] Why is that? [14:36] Well, I went over it. [14:43] And I had to go over it because I had to talk to some people also. [14:49] Yeah. [14:49] Because, you know, there have been so many statements already declaring [14:53] that the Gachalian Block, what they did was illegal. [14:58] And yet, not one lawyer has mentioned why Jingoy cannot be counted as a member [15:04] at this point under the plunder law. [15:07] All right. [15:07] That's one. [15:08] Now, let's say Bato. [15:10] Okay? [15:11] Si Bato. [15:12] Now, of course, nung lumipat si Cheese Escudero, [15:15] if you count out Jingoy, [15:17] kung hindi lumipat si Cheese, [15:18] they would have been 11-11. [15:20] Pero lumipat si Cheese, naging 12, [15:23] wala si Jingoy, wala si Bato, [15:25] so 10 sila ngayon. [15:27] What about Bato? [15:29] Is Bato still considered a member? [15:32] Well, because the case of Bato is still pending. [15:38] The main issue, whether the warrant of arrest is valid, [15:42] is still pending. [15:43] But the Supreme Court refused to issue a TRO [15:48] so he can really be arrested. [15:50] The problem with Bato is if he shows up at the Senate, [15:53] he will be arrested. [15:54] So physically, he cannot vote. [15:57] But it doesn't matter because there is already a quorum [16:00] with Jingoy out because Jingoy is officially cannot hold office [16:08] and he is officially suspended from office. [16:11] Then that solves the problem already. [16:14] By one vote. [16:15] Okay. [16:17] Alright. [16:17] So ngayon, moving forward is this. [16:21] Paano ang July 6th, sir? [16:23] Eh ang presiding officer, [16:25] Alan Cayetano has said, [16:26] I will preside. [16:28] Isipin niyo po ito, no? [16:29] Magkikita-kita sila doon. [16:32] Walang bagong Senate President. [16:33] What a mess. [16:35] Right? [16:35] Justice Carpio, what a mess. [16:37] What's going to happen? [16:38] Well, the problem with that for Senator Cayetano [16:44] is the House recognizes the Gatchelian leadership. [16:48] So they will attend before the 12. [16:54] Because let us say both of them will be meeting separately, [17:02] the Gatchelian faction of 12 and the Cayetano faction of 10. [17:06] The House lawyers will go to the Gatchelian faction [17:13] and present their evidence there. [17:17] So nagkakaproblema si Cayetano [17:19] because the Gatchelian faction is recognized by the executive, [17:24] by the president, and recognized by the House. [17:27] So what Cayetano should do is go to the Supreme Court [17:30] because he will be at the losing end here [17:33] because as of now, nobody recognizes him. [17:38] You're right. [17:39] You're right. [17:40] And what is a title? [17:40] His only request is to go to the Supreme Court. [17:42] Yes. [17:43] Yeah. [17:43] Yeah. [17:44] Yeah. [17:44] And what's a title? [17:46] What's a title that you're claiming to have [17:49] if you're not recognized to be holding that position, right, [17:54] by a majority of who matter at this point? [18:00] So, pero, ngayon, ang labing dalawa, [18:04] including Cheese Escudero, [18:06] can they already vote for a Senate president? [18:10] Nakasine-Dia sila ngayon, naka-recess. [18:13] So paano yun, sir? [18:14] If the president calls for a special session, [18:18] then they can vote. [18:20] I see. [18:20] Because right now they are on recess [18:22] and they cannot hold a session. [18:24] So assuming the president calls for a special session, [18:27] can the 12 elect a new Senate president? [18:30] My position is yes. [18:32] Because when the Constitution says [18:36] the Senate president shall be elected [18:38] by a majority of all the members of the Senate, [18:42] all means all those who can vote. [18:45] Those who are disqualified. [18:47] It's obvious. [18:48] If you are disqualified, you don't count him. [18:51] O-o, o-o, o-o. [18:53] Which is why now, [18:56] it's easy to understand [18:57] why they were pushing, [19:00] some senators were pushing, [19:01] for electronic voting. [19:03] Na kahit wala sa yung physical presence sa floor, [19:08] ay pwede bumoto. [19:10] Well, but now because Jingoy is already physically detained, [19:14] and I think another senator will be physically detained [19:18] because it's a pending plunder. [19:20] Two plunder cases, [19:22] and the moment, [19:24] remember, [19:26] if you are charged with plunder, [19:28] even if you are granted bail, [19:31] you are still suspended from office. [19:34] Because the law says [19:35] any violation of the plunder law. [19:38] It doesn't mean that you violated, [19:43] your offense is punishable by reclusion perpetua, [19:49] because you are not entitled to bail [19:53] if you are charged with reclusion perpetua [19:56] and evidence of guilty of stone. [19:58] It's just any violation. [19:59] So kahit na less than reclusion perpetua, [20:05] even if you are granted bail, [20:09] you are still suspended [20:11] because the purpose is [20:12] you should not be allowed to influence [20:14] your subordinate employees. [20:16] If you are granted bail with more reason, [20:18] you will influence. [20:20] So that's their problem. [20:22] Once a criminal information of plunder [20:27] is filed with the Sandigan, [20:28] a warrant of arrest is issued, [20:30] they are automatically suspended. [20:32] It's mandatory. [20:34] They are automatically suspended from office. [20:37] And once they are suspended from office, [20:39] they should not be counted anymore. [20:41] They cannot vote. [20:42] Okay. [20:43] On that note, [20:44] I want to thank you so much [20:46] for joining me today. [20:47] I don't mean to cut you, Justice Carpio, [20:50] except that Senator Irwin Tulfo [20:53] will be holding [20:53] the Senate Blue Ribbon Committee hearing [20:56] at 9 in the morning in the Senate Live. [20:59] Thank you so much for joining me today. [21:01] That clarity, [21:02] that clarification. [21:03] Salamat po, sir. [21:05] Thank you, Karen. [21:06] Thank you to our viewers. [21:06] Thank you. [21:08] Thank you. [21:08] Thank you. [21:08] Thank you.