Sans TRO, VP trial to proceed despite possible absence of minority senators, defense: Gatchalian

Vice President Sara Duterte’s impeachment trial will proceed as scheduled, even in the absence of her defense lawyers, unless the Supreme Court issues a temporary restraining order (TRO) stopping the proceedings, Senate President Win Gatchalian asserted Friday. 

Gatchalian’s remarks came after speculations that the defense may possibly boycott Monday’s trial and subsequent proceedings in protest of the Senate impeachment court’s 23 September decision amending the required two-thirds vote for conviction amid the absence of several senator-judges, who are either detained or in hiding. 

Defense lead counsel Sheila Sison hinted that they will elevate the new threshold to the SC, with the team’s spokesperson and member Michael Poa confirming that seeking a TRO from the SC was also an “option.”

“There is no TRO, so we will proceed...Our responsibility is to try and reach a decision. So, as long as we have a quorum, we will have a trial,” Gatchalian told reporters in Filipino in an ambush interview.

The Senate leader implied that the potential absence of Duterte’s lawyers has no bearing on the trial, noting that the impeachment court is bound by its constitutional mandate regardless of whether their opposing colleagues also skip the proceedings. 

Recall that the minority, led by Senator Alan Cayetano, boycotted the voting on Wednesday after failing to halt a motion to revisit the 6 July ruling by Presiding Officer Chiz Escudero that set the conviction threshold at 16, based on the 24-member Senate, as early as the start of the trial.

Like the defense, Cayetano and allies argued that the absence of their minority peers—Senators Jinggoy Estrada, Rodante Marcoleta, Bato dela Rosa, and Loren Legarda—does not automatically create a vacancy warranting an amendment to the 16-vote threshold. 

They did not participate in the vote, but it still passed 13-1. Senator Mark Villar was the lone member of the minority to join the majority led by Gatchalian to lower the bar for Duterte’s conviction. 

Escudero, though allied with the majority, cast the sole dissenting vote to overturn his previous decision. 

Despite this, Gatchalian said the minority has given no indication that it will boycott the trial on Monday. 

Similarly, Cayetano confirmed that no such discussion had taken place, though he admitted the Senate opposition bloc is still “grieving” over the decision on threshold. 

“We truly feel that if there is to be a reinterpretation of that matter, it should come from the Supreme Court. We also believe that fairness is compromised when such a change occurs in the middle of the trial. That said, there is a process to follow. So far, there have been no discussions about not participating,” the minority leader told reporters partly in Filipino in a separate interview. 

Even before the defense takes legal action, the impeachment court's decision has already met pushback from supporters of the VP, with the first filed by former Executive Secretary Vic Rodriguez on Thursday. 

Rodriguez, President Marcos Jr.’s then campaign manager and chief of staff before allying himself with the opposition, petitioned the high court to issue a TRO and nullify the impeachment court’s decision.

Cayetano expressed hope that the SC will hand down a decision on it as soon as possible, warning that the issue at stake is not limited to impeachment but could also affect the entire Senate's procedures and allow the approval of treaties, and even Charter change, without the concurrence of the supermajority. 

Under the present ruling, the impeachment court will base the two-thirds requirement on the concurrence of members who, at the time of voting, are legally and factually capable of participating in the impeachment proceedings.

As a result, senator-judges who are detained, suspended, suffering from physical or medical incapacity, whose whereabouts are unknown, and beyond the Senate’s coercive reach will be excluded in the computation. 

Gatchalian and his allies denied that they lower the bar, claiming that the impeachment court still upheld the constitutionally mandated two-thirds requirement for a conviction because the new decision did not bar their absent colleagues from casting their votes on the day of judgment, tentatively set for December.

He said that minority senators could vote as long as they were physically present in the impeachment courtroom, and that even senator-judges who are present for the entire trial but are no-shows on judgment day can be excluded from voting.

Senators Jinggoy Estrada and Rodante Marcoleta are both detained on plunder charges, while Senator Bato dela Rosa remains in hiding as he evades an International Criminal Court warrant. They have been unable to attend Duterte’s trial since it began on 6 July. 

Senator Loren Legarda, meanwhile, has missed the proceedings since 3 August after going on a medical leave abroad. She has since extended her leave amid a preliminary investigation by the Ombudsman into plunder and graft complaints.