Senate President Win Gatchalian ruled out petitioning the Sandiganbayan to allow detained Sen. Jinggoy Estrada to attend the upcoming impeachment trial of Vice President Sara Duterte, despite Sen. Ping Lacson’s concern that his absence could affect the vote count.

“We cannot file [a petition with] the Sandigan because we are not a party of interest. It’s between the respondent and the state. We’re not involved in that,” Gatchalian told reporters in his first briefing as Senate President.

On Tuesday, Estrada was slapped with a 90-day preventive suspension by the Sandiganbayan over the graft and plunder charges he is facing tied to alleged anomalous flood control projects.

This effectively bars Estrada from performing his legislative duties pending the investigation.

According to Gatchalian, the suspension is not limited to Estrada’s role as a legislator but also applies to his role as a senator-judge in the impeachment trial of Vice President Duterte.

Over the weekend, Lacson raised concerns that Estrada’s prolonged detention, the continued hiding of Sen. Ronald “Bato” dela Rosa, and the possibility of the suspension of several of their colleagues could further reduce the number of senator-judges in the impeachment trial, making it impossible to meet the required voting threshold.

Article XI, Section 3(6) of the Constitution sets the required number of votes to convict an impeached official at 16, equivalent to two-thirds of the 24-member Senate.

No waiver

Lacson’s remarks followed Ombudsman Jesus Crispin Remulla’s earlier announcement that approximately nine to 10 senators are under investigation for alleged involvement in the multibillion-peso flood control scandal.

Lacson feared this could put the Senate impeachment court in a crisis, given that the Constitution mandates 16 votes to convict an impeached official.

Because of this, he suggested that the Senate file a motion asking the Sandiganbayan to allow detained senators to participate in the impeachment trial in person under police escort unless there is a preventive suspension by the Ombudsman.

Former Supreme Court Associate Justice Adolfo Azcuna explained to DAILY TRIBUNE that a preventive suspension is mandatory and therefore cannot be waived.

He, however, described Lacson’s proposal of petitioning the Ombudsman to delay their   preventive suspension to allow senators to attend the trial as “far-fetched but possible.”

Threshold 

Azcuna, one of the framers of the 1987 Constitution, maintained that the “Senate cannot lower the threshold for conviction unless it expels a member or possibly declares him or her as resigned.”

He emphasized, however, that several legal experts from their group, called “Citizens’ Jury,” are of the view “that those unable to actively participate should not be included in the count.”

As for absent senators, their votes are automatically counted as abstentions, according to Azcuna.

Some legal experts and House prosecutors have argued that the threshold should be calculated based on the actual number of participating senator-judges.

This stemmed from concerns that the potential absence of several senators due to threats of arrest or suspension could leave the Senate mathematically incapable of reaching the mandatory 16-vote threshold.

Despite potential challenges to the vote count, Gatchalian confirmed that the Senate is making no effort to urge the Sandiganbayan to allow Estrada to participate in the trial scheduled for 6 July.

The Senate leader also reiterated that the conviction threshold remains fixed at 16 votes, regardless of how many senators attend the trial.

A conviction carries the penalty of removal from office and perpetual disqualification from holding public office.