Retired Supreme Court Associate Justice Adolfo Azcuna said Congress could pass a law requiring the Sandiganbayan to allow senators detained while facing pending charges to participate in the impeachment trial in order to prevent detention from affecting the vote.
Azcuna said senators who are not yet convicted and still hold their posts are counted in the threshold for determining the two-thirds vote to convict, but they cannot vote.
“One way of remedying that is to pass a law saying that any senator who is detained may still participate in the proceedings, may be allowed to participate,” Azcuna, speaking as an amicus curiae, told the Impeachment Court on Wednesday.
He said there is actually no law that bars their participation, but they cannot join the proceedings unless the Sandiganbayan allows them.
“So pass a law saying that the person who is obliged to attend the impeachment proceedings must be allowed to attend. After all they are not yet guilty, they are presumed innocent. There’s no final judgment against them,” he said.
He said a law requiring the Sandiganbayan to come and participate in the impeachment proceedings would be valid.
He made the statement in response to a question from Sen. Joel Villanueva on what could be done to prevent efforts to manipulate or sabotage the numbers in the impeachment vote.
Villanueva said that if the denominator for determining the two-thirds vote to convict is set at 24, as Azcuna had contended, then deliberate absence or refusal to take the oath could be used as a veto.
He also said that if a senator’s absence would lower the denominator for the vote to convict, then an artificial majority could be manufactured by excluding certain members.
Azcuna was one of the amici curiae tapped by the Impeachment Court to shed light on what should be the basis for determining the two-thirds vote to convict in Vice President Sara Duterte’s impeachment trial.
Azcuna is the only retired magistrate to take the position that the vote is fixed at 16, which is two-thirds of the 24 current members of the Senate.
The other amici curiae said it should be based on the number of members who are actually participating in the proceedings.