Who's who: 4 ex-justices to guide Senate on votes needed to convict VP Sara

MANILA, Philippines — Three former chief justices and a retired associate justice, two of whom helped write the 1987 Constitution, will advise the Senate impeachment court next week on a key question hanging over the trial of Vice President Sara Duterte: how many votes should it take to convict?

Presiding Officer Sen. Chiz Escudero chose retired Chief Justices Artemio Panganiban, Reynato Puno and Hilario Davide Jr., and retired Associate Justice Adolfo Azcuna, as amici curiae, or "friends of the court," based on their credentials, their Supreme Court decisions and legal writings, their role in framing the Constitution, and their "known impartiality," impeachment court spokesperson Reginald Tongol said Friday, September 11.

Panganiban, Puno and Azcuna will appear in person on September 16, a day the court will exclusively devote to hearing the experts.

Davide, who cannot attend, will submit a legal memorandum to be read on the floor.

The four will help the court resolve Sen. Erwin Tulfo's appeal of Escudero's day one ruling that conviction requires 16 votes, or two-thirds of all 24 senators. 

Tulfo has questioned whether that base of 24 should hold while four senator-judges have not been taking part in the trial: Sen. Loren Legarda, on medical leave abroad; Sen. Ronald "Bato" dela Rosa, who is at large and wanted for arrest by the International Criminal Court; and Sens. Jinggoy Estrada and Rodante Marcoleta, who are detained on plunder charges.

Lowering the threshold from the base 24 means a conviction (requiring two-thirds) or acquittal (requiring just one-third) would require fewer votes.

"When we refer to all members, who exactly are we counting?" Tulfo asked on Tuesday.

Tongol said three of the four once headed the Supreme Court, while two—Davide and Azcuna—were framers of the 1987 Constitution.

He said Azcuna, the lone associate justice in the group, was included because he was vice chair of the Constitutional Commission's committee on accountability of public officers and also served as vice chair to Davide on the committee on the legislative.

The impeachment court does not know where each of the retired justices stand on the issue of the vote threshold, Tongol said. 

The four have rarely spoken on the issue in interviews or in public. This one of the factors the presiding officer and senator-judges considered when selecting them, Tongol added.

Escudero consulted both the prosecution and the defense on the process of selecting the experts, and the parties informally suggested names, Tongol added.

"There was no time to vet each person, each of their positions, because the positions of these amici curiae are not publicly available," he said in a mix of Filipino and English.

The list may still grow beyond the four as Escudero may still invite more amici curiae after further research, or if senator-judges ask for additions to be made, Tongol said. 

Responding to comments that the amici curiae are all male, Tongol said the court is going through records to find women who could be invited, with possible developments this weekend.

Artemio V. Panganiban was the country's 21st chief justice, serving from December 2005 until his retirement at 70  in December 2006. He had been an associate justice since 1995.  

Reynato S. Puno succeeded him as the 22nd chief justice, serving from December 2006 until his mandatory retirement in May 2010. He joined the court as an associate justice in 1993. 

Under his leadership, the Supreme Court adopted the writ of amparo in 2007 as a remedy against extrajudicial killings and enforced disappearances. In 2018, he chaired the Duterte administration's Consultative Committee to review the 1987 Constitution.

Hilario G. Davide Jr. was the 20th chief justice, from November 1998 to December 2005. He is best known for having presided over the impeachment trial of then-President Joseph Estrada in 2000 to 2001. 

Adolfo S. Azcuna was an associate justice from October 2002 to February 2009. He was a delegate to the 1971 Constitutional Convention and a member of the 1986 Constitutional Commission, and served former President Corazon Aquino as presidential legal counsel, press secretary and spokesperson.  

Tongol said the session will run like oral arguments and is expected to last from 10 a.m. to 2:30 p.m. 

Each expert will present in turn and Davide's memorandum will be read, and then the floor will then open to senator-judges for questions.

Senators may direct a question to a specific justice, including asking one to respond to another's view. Tongol said senator-judges will likely get two rounds of two minutes each.

The prosecution and defense cannot address the justices directly, but Tongol said they may send written questions to Escudero, who will read them after all senator-judges have asked theirs.  

The justices were asked to address three issues: whether Escudero's ruling can be appealed; whether the 24-member base can be lowered or is "set in stone"; and the effect of Avelino v. Cuenco, the 1949 quorum case Tulfo cited, in relation to Bayan v. Zamora, on which Escudero based his ruling.

Whether the Senate or the Supreme Court should settle the threshold is not among the written questions, but Tongol said it is sure to be raised and discussed.

The public may also send their own questions through their senators or the Senate's Facebook page, Tongol said, adding that he would read them and pass them on to Escudero.

On September 23, the prosecution and defense will present oral arguments before senator-judges vote on Tulfo's appeal. 

Tongol said a tie would mean the appeal fails and Escudero's 16-vote ruling stands.

Tongol acknowledged criticism that reopening the threshold signals a push to convict Duterte.

But he said senator-judges have legitimate questions of their own, with some favoring a "functional" reading of the Constitution over strictly basing on the literal meaning of the text. 

Senators want to "finally put a nail in the coffin" on the issue, Tongol said.

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