OSG urges SC to junk petition vs Sara impeachment voting threshold

The Office of the Solicitor General (OSG) has asked the Supreme Court to dismiss the petition filed by Senators Robin Padilla and Christopher Lawrence “Bong” Go challenging the Senate impeachment court's revised voting threshold for the conviction of Vice President Sara Duterte.

In a 47-page comment filed Wednesday, Solicitor General Darlene Berberabe argued that the petition lacks merit and is premature, maintaining that the Senate has the constitutional authority to determine its impeachment procedures.

The OSG also opposed the petitioners' request for a temporary restraining order (TRO) or status quo ante order that would suspend the impeachment court's 23 September ruling.

Berberabe argued that the Supreme Court should not interfere with the Senate's exercise of its constitutional mandate to try and decide impeachment cases.

The OSG also questioned the petitioners' legal standing, saying they failed to establish a clear right or personal injury arising from the disputed ruling.

It pointed out that Duterte, the official directly affected by the impeachment proceedings, was not among the petitioners and had reserved her own legal remedies.

The controversy stems from the Senate impeachment court's decision to revise how the two-thirds vote required for conviction is calculated.

Under the 1987 Constitution, an impeached official may be convicted only with the concurrence of two-thirds of all Senate members.

On 23 September, the impeachment court overturned an earlier ruling by presiding officer Sen. Francis Escudero requiring 16 votes from the 24-member chamber.

Instead, the court ruled that the voting threshold would be calculated based on senators who remain legally and factually capable of participating in the proceedings when the verdict is taken.

“The phrase ‘all Members of the Senate’ shall refer to those members who, at the time of the vote, remain legally and factually capable of participating in the proceedings,” Escudero said in announcing the ruling.

The impeachment court identified five circumstances that could justify excluding a senator from the counting base, including detention or legal restraint, unknown whereabouts while being sought by authorities, physical or medical incapacity, being beyond the Senate's coercive processes, or other comparable circumstances.

Any exclusion must first be supported by competent and sufficient evidence.

If only 20 senators are determined eligible to participate, the required two-thirds vote would be 14 rather than 16.

Padilla and Go, however, argued that the Constitution explicitly requires the concurrence of two-thirds of all 24 incumbent senators, regardless of their ability to participate.

They maintained that the impeachment court cannot effectively amend the constitutional requirement through an appeal filed by a senator-judge.

The petitioners also questioned the timing of the reversal, noting that the appeal was filed on 8 September, or 64 days after prosecutors began presenting evidence against Duterte.

They argued that overturning Escudero's 6 July ruling violated due process and equal protection guarantees.

The OSG countered that the Senate had merely interpreted the constitutional provision rather than amended it.

“Without such a rule, non-participating senators would be counted as though they had performed functions and as if they had voted for acquittal,” the OSG said.

It maintained that the revised formula was neither arbitrary nor oppressive because it accounted for circumstances in which public officials could not legally or physically perform their duties.

“The Constitution should not be read to require the Senate to treat such senators as having participated when, in fact, they did not,” the OSG added.

The petition remains pending before the Supreme Court as Duterte's impeachment trial is scheduled to resume on 9 November.