Former Integrated Bar of the Philippines President Domingo Cayosa said senators unable to participate in Vice President Sara Duterte’s impeachment trial should not be able to vote when the time comes to hand down the verdict, in the interest of fairness.
Cayosa said that the two-thirds vote to convict requirement in the trial should be based on the number of participating senators.
He also said the Senate has the power to interpret the basis of the two-thirds requirement, amid competing interpretations of the constitutional provision.
Presiding Officer Sen. Francis Escudero earlier said the two-thirds requirement is 16, based on the total number of senators, which is 24.
But this has been questioned by Sen. Erwin Tulfo, who asked whether non-participating senators should be counted and said that there could be an “acquittal by default.”
Senators Jinggoy Estrada and Rodante Marcoleta are detained over their plunder cases, Sen. Loren Legarda is on medical leave, while Sen. Ronald Dela Rosa is in hiding.
Cayosa said there are rules on fundamental due process.
“One rule in fundamental due process, which is fairness, is that a judge cannot participate in deciding a case where he was not involved or where he did not participate,” he said on Bilyonaryo News Channel’s “On Point.”
“There is no court or no judge in our country in different branches of government, or in the whole world, where an absentee judge or a judge who did not participate in the deliberation would be allowed to vote,” he added.
He noted that in the Supreme Court, justices who are on leave are not counted in the ruling.
Cayosa said that with regard to Estrada and Marcoleta, who are detained, their participation in the impeachment trial would depend on the Sandiganbayan granting them permission.
He said that even if the Senate approves a rule allowing them to join in the impeachment trial online, the ultimate decision on their participation rests with the court.
The Senate rules do not allow online participation in the impeachment trial.
But should the Senate amend the rules and allow it, Cayosa said Dela Rosa could participate and vote in the proceedings while evading his arrest warrant from the International Criminal Court.
As for Legarda, who is on medical leave, he said that if online voting is allowed, she should be allowed to participate as long as she is capable of reviewing the previous proceedings and can intelligently make her own independent decision.