Senator Ping Lacson on Sunday pushed back against criticisms accusing the Senate of pursuing a futile effort by tapping retired Supreme Court justices to resolve the debate over the voting threshold required to convict Vice President Sara Duterte, even as senator-judges have allegedly had their decisions predetermined.

Lacson derided the allegations as “unfair,” saying senator-judges actually spar over the threshold issue as they have different interpretations of Article XI, Section 3(6) of the 1987 Constitution. 

The provision sets the required number of votes to convict an impeached official at two-thirds, which is equivalent to 16 of the 24-member Senate.

“It doesn’t follow. We had a fellowship last week...Not everyone was present, but there were already differing positions regarding that matter. There was no fixed decision,” Lacson said in a radio interview in Filipino. 

“It is very unfair for those accusing us of engaging in a futile exercise, as if we are merely fooling the public, when we have already made up our minds,” he added. 

He, however, acknowledged that some senator-judges have already decided whether to convict the VP, even though her trial is still ongoing. 

“We can clearly see the leanings in the questions. At times, the tone of the questioning no longer seems like that of a senator-judge…I will no longer mention names,” Lacson remarked.

The impeachment court tapped retired Supreme Court chief justices Justices Artemio Panganiban, Reynato Puno, and Hilario Davide Jr., and retired associate Justice Adolfo Azcuna as amici curiae, or legal advisers to the impeachment court. The legal luminaries will offer their differing legal opinions to shed light on the highly consequential issue at the threshold, given the absence of four senators from the impeachment trial. 

Senators Jinggoy Estrada, Rodante Marcoleta—both detained on plunder charges—and Bato dela Rosa, who remains in hiding to evade an International Criminal Court warrant, have been unable to attend the trial since the beginning on 6 July. 

Senator Loren Legarda, meanwhile, has been on medical leave since 3 August amid a preliminary investigation by the Ombudsman into plunder and graft complaints. 

Critics have argued that their absence effectively altered the Senate’s composition and thereby necessitates lowering the base of conviction threshold from 24 to either 20 or 21. 

Retired Supreme Court senior associate justice Antonio Carpio on Friday said the base number should be 21 because Legarda remains part of the impeachment court despite her month-long absence from the proceedings.

Unlike Dela Rosa, Carpio explained that Legarda took her oath as a senator-judge, making her an eligible member who can participate in the voting.

Several senators had confirmed that they were in talks with Legarda, though Lacson noted that she never mentioned the date of her return.

As for Estrada and Marcoleta, who also took their oath before being detained, Carpio said they should be excluded from the count because they were suspended from performing their duties by law due to plunder.

Although they face the same criminal charges, only Estrada was slapped with a suspension by the Sandiganbayan. As a result, Marcoleta asserted his right to vote in a letter dated as early as 20 July.

The selection of the amici curiae was not a unilateral decision by Presiding Office Chiz Escudero, but a collective agreement of the defense and prosecution panels, according to Lacson. 

Lacson pushed back against criticisms that subjecting Escudero’s 6 July for review is long overdue, contending that the impeachment court rules differ from those of the Senate, and therefore the 48-hour window for a motion does not apply in this case.

He argued that opening it to debate does not automatically lower the threshold for conviction, noting that this is precisely why they need the legal opinion of constitutionalists. 

“If we interpret the language of the Constitution plainly, the provision requiring two-thirds of all members of the Senate is indeed clear. However, [a review is needed] due to evolving or developing circumstances that were unforeseen,” Lacson stressed.

Senator Pia Cayetano earlier warned that reconsidering Escudero’s 6 July ruling, which upheld the 16-vote conviction threshold, risks rendering it “unconstitutional,” since the Senate impeachment court had already handed down its decision and could only be reversed through a petition before the SC. 

Duterte’s camp and several lawyers supportive of her have objected to putting the issue of the threshold to a vote, contending that only the Supreme Court has the power to interpret the Constitution, not the impeachment court.

Senator Erwin Tulfo, who called for resolving the threshold issue earlier last week, warned that insisting on the voting basis being fixed at 24 amid the absence of four senator-judges will result in an “acquittal by default” regardless of how the evidence is presented.

As a result, the impeachment court scheduled a whole-day meeting with amici curiae for 16 September. The issue will be put to a vote by the senator-judges on 23 September, after the defense and prosecution panels have presented their respective positions in oral arguments, which will be held that day.

The impeachment court would need 11 affirmative votes from the current roster of 20 senator-judges to overturn the 6 July ruling and lower the conviction threshold to either 13 or 14.