By Atty. Florante A. Zagada.
I am saddened by the decision of the majority senators in their votes yesterday to allow them to vote to adjust the threshold votes below 16 based on the ATTENDANCE of members in deciding whether to convict or acquit VP Sara.
As a lawyer and professor of law, I believe that the said decision is constitutionally infirm and questionable for the following reasons: One: The majority senators are amending and re-writing the Phil. Constitution and they are not allowed to do so by the Constitution itself. Art XI, Sec. 3 (6) of the Philippine Constitution in no uncertain terms provides that in impeachment proceedings, “No person shall be convicted without the concurrence of TWO-THIRD VOTES of ALL MEMBERS of the Senate. To convict an impeachable public official, what is the required number of votes? The concurrence or agreement or approval of 2/3 VOTES of all its MEMBERS.
The law does not say, 16 votes although it is the 2/3 votes of ALL 24 MEMBERS. To convict, it is possible that the votes maybe lower than 16 votes but the Constitution provides that it should be based on MEMBERSHIP and NOT on ATTENDANCE. I repeat MEMBERSHIP and NOT the ATTENDANCE during the voting to impeach the impeachable officer.
The problem we have today in the Senate is the interpretation of that provision (Art XI, Sec. 6 (6). But there is no problem in interpreting the provision. Even if you are not a lawyer or skilled in law, if there are 24 members in the Senate, the required number of votes is 16 votes to convict. Apply the rule on interpretation recognized by law as VERBA LEGIS. Interpret the law in its ordinary meaning. Do not qualify or resort to other sources to interpret it. Do not resort to convenience, practicality, pragmatic approach or even wisdom to change its meaning.
We have a doctrine in law or legal maxim, “DURA LEX SED LEX.” The law maybe hard or harsh or difficult but it is still the law. But if you are not comfortable with the effect of that law, CHANGE or AMEND or REPEAL that law through legal process (Constitutional Convention, Constituent Assembly, People’s Initiative) and not by whims or caprices by the senators in Senate voting based on their political beliefs and biases. Two: THE PRESENT MEMBERSHIP OF THE SENATE IS STILL 24 SENATORS. How many Philippine senators elected by the people do we have today? My answer is still 24 senators.
There is no vacancy yet in the present composition of the Senate. How can we reduce the number of senators so that the 16 votes (2/3 of the 24) maybe reduced? When there is vacancy and this occurs when the sitting senator DIES, RESIGNS, BECOMES PERMANENTLY INCAPACITATED, IS DULY REMOVED FROM THE OFFICE either through disqualification, expulsion for disorderly conduct or behavior (requires 2/3 votes also) or by impeachment or even election to another office.
Are Senators Estrada and Marcoleta who are in jail, Dela Rosa who is in hiding and Sen. Legarda who is on medical leave still incumbent senators? YES! They remain to be so because they are not yet legally removed based on the foregoing causes of vacancy. Should they still included in the counting in voting? YES, because they are still MEMBERS OF THE SENATE.
The Constitution clearly says that the 2/3 votes is based on MEMBERSHIP. If it is otherwise, the framers would have stated that the 2/3 votes shall be based on the senators PRESENT or ATTENDING and not on membership if that was truly the intent. Thus, even if Senators Marcoleta, Estrada, De La Rosa and Legarda are not attending the Senate hearing because of their cases and legal conditions, they are not yet stripped of their official position as senators. In fact, they are not yet convicted.
In the eyes of the law, THEY ARE PRESUMED INNOCENT until their guilt is proven in court. Three: THE SENATORS DETAINED AND ON MEDICAL LEAVE SHOULD STILL BE COUNTED AND EVEN ALLOWED TO VOTE. Many argue that the detained senators cannot vote because they are not attending the Senate hearing? First, let us know the reason why they cannot attend. Obviously, not because they do not want to. In fact they are very much willing but this government with all its power, resources hastily built non-bailable cases against them apparently to silence them and to put them behind bars while many of the allies of the present government in the Congress and Senate who are positively identified to have been involved in flood control projects anomally are still free and roaming around.
The investigation of their corruption cases moves in snail pace while Marcoleta and Estrada who are known critics of the administration were immediately sent to prison. Even Sen. Legarda is being threatened with a non-bailable offense. Why just now? Why did not the government file these cases before? The timing is really bad and suspicious. You cannot blame me and some people to think that these cases are all politically motivated. I do not condone corruption in the government whoever the offenders are. I want and pray that they suffer for their crimes and sins to God and people. But I hate CORRUPTION IN THE SAME WAY I HATE SELECTIVE JUSTICE and POLITICAL PERSECUTION.
Selective justice is no justice of all. It is also a corruption dressed in politics. We are not born yesterday to notice this in the present politics. It is my submission that the detained senators should be allowed to vote and be counted in the voting to acquit or convict VP Sara. If the detention prisoners at the city jail or BJMP or those in jail whose cases are still on appeal are allowed to vote in a popular or national or local elections to choose the leaders of this country, why not count and allow them to vote as well?
Remember that suspension of rights of office and absolute or temporary disqualification to hold public office are ACCESSORY PENALTIES under the Revised Penal Code that can only be implemented or enforced when the public officers are convicted by FINAL JUDGMENT. Are these detained senators already convicted to disqualify them? Where is the PRESUMPTION OF INNOCENCE guaranteed by the Constitution afforded to all accused of a crime? Yes, Senators Marcoleta and Estrada are in jail and detained and cannot post a bail but they are in jail not to punish them or because they are guilty but only to secure their attendance in court during hearings because of the gravity of the accusation against them.
Again, ACCUSATION IS NOT EQUIVALENT TO PROOF or even GUILT. The basic rule is that mere allegation is not evidence and is not equivalent to proof. (De Jesus vs. Guerrero, G.R Bo. 171491, Sept. 4, 2009) It is the burden of the government to prove the guilt of the accused beyond reasonable doubt. It is not the burden of the accused to prove his innocence. Four: CAN THE DETAINED SENATORS BE ALLOWED TO VOTE EVEN IF THEY ARE NOT ATTENDING THE SENATE HEARING BECAUSE OF NON-BAILABLE OFFENSE? I believe so. It does not mean that when a senator cannot attend physically the hearing at the Senate, he or she is less qualified to vote than those who are attending.
We are no longer living in a Jurassic world. We are now living in an advanced technology. All information now can be obtained through internet especially social media. As a professor law, I often conduct online classes to law students during the pandemic and even now and many of them already passed the bar although I met them only few times and even during the exam. Do not tell me that only those physically present in the Senate can intelligently vote than those senators who are not attending because of their difficult condition.
I bet that you who are reading my post can even vote more intelligently if you were allowed to vote than most senators physically present in the Senate. Just by watching the social media, TV or radio broadcast today, you can already form an intelligent judgment. If I am not mistaken TV and radio are allowed in jail and it is impossible that these senators are ignorant about what is going in on the Senate today. With the education and intelligence of these non-attending senators, they are more knowledgeable than most of us even lawyers to the issue being deliberated and argued in the Senate.
CONCLUSION: Personally, I am a neutral observer in politics. I am neither DDS or BBM nor LENI’s follower or fanatic. I am a faithful, dedicated and fanatic servant of the Lord Jesus Christ. Jesus is my idol. Jesus is my true politician. I am a citizen of heaven and also of the Philippines. I am also a litigation lawyer, professor of law at PCU College of Law-Dasmarinas City. But I am for JUSTICE and for the RULE OF LAW. Glory to God.
