Prosecutors want VP Sara to testify

THE House prosecution panel said on Tuesday it aims to present Vice President Sara Duterte before the Senate impeachment court as a witness in her own trial, arguing that her testimony would be relevant to the entire case. This followed the prosecution's announcement that it will no longer present the 15 remaining witnesses under Article I of Duterte's impeachment case, which covers the alleged misuse of confidential funds. 'All of these pawns and castles and horses and bishops point to only one person, and that accountable person is the vice president. And that is why, your honor, in lieu of presenting 15 other witnesses, we will be presenting the vice president herself,' private prosecutor Lorna Kapunan said. Kapunan said the prosecution originally intended to present 27 witnesses but believed its case had become clear after 12 witnesses and 4,750 documents were presented and identified. 'After a long meeting last night and towards this morning, just before this hearing, the prosecution, both public and private prosecutors, have decided to forego, your honors, not only with the witnesses subpoenaed for today but with all the remaining 15 witnesses,' Kapunan said. 'It is the prosecution's contention that the case has become very clear,' she added. Kapunan said the prosecution's evidence already includes thousands of documents identified through its witnesses. 'It is the prosecution's contention that the case has become very clear, not a conclusion of fact and law, but a conclusion based on 4,750 documents presented and identified by the 12 witnesses, 10 of whom were present in court,' she said. But the camp of Duterte opposed the prosecution's request to summon Duterte as a witness, insisting that the 1987 Constitution prohibits 'testimonial compulsion' of a witness. In her manifestation, lead defense counsel Sheila Sison said the prosecution's call for Duterte to appear personally in the impeachment trial is unnecessary, noting that the vice president is already represented by her lawyers. 'I think this matter and issue have been settled on Day One. And until now, it is clear that the respondent is here through her counsel. If the respondent is not interested in this trial, she would not have even sent her lawyers to defend her in this case,' Sison told the Senate impeachment court. Sison argued that compelling Duterte to testify would raise constitutional concerns, pointing specifically to the 1987 Constitution's protection against testimonial compulsion. 'The Constitution prohibits this kind of testimonial compulsion from the accused herself. I know the response will be this is sui generis, this is not exactly a purely criminal proceeding,' Sison said. 'But nonetheless, when Section 17, Article III of our 1987 Constitution put in that guarantee that no person shall be compelled to testify against himself or to be a witness or that there should not be a testimonial compulsion from the accused herself, it did not qualify that provision,' she added. Sison said this right is 'absolute' because 'this is not just a simple right, this is a fundamental right — this is a right emanating from the Constitution itself.' She also invoked the principle of protecting individual liberties, arguing that the impact of suppressing freedom remains the same regardless of the motives. 'The preservation of liberties does not depend on motives... a suppression of liberty has the same effect whether the suppressor is a reformer or an outlaw,' she added. Sison said the defense is reserving its right to file a formal written comment should the prosecution formally request a subpoena for Duterte. 'But just very briefly, I think that without me expounding or articulating on these principles, this court would be able to appreciate that there is an innate problem in that kind of request,' she added. Senate Presiding Officer Francis Escudero said the impeachment court would wait for the prosecution's formal motion before acting on any request to subpoena Duterte. Escudero said the matter could be subjected to oral arguments before the court issues a ruling. He also advised both the prosecution and defense not to formally rest on Article 1 until the court has determined whether additional witnesses should be presented. Without preempting his own ruling, Escudero pointed to the 2012 trial of then-chief justice Renato Corona, who took the witness stand as respondent. He said that while the chair may rule on whether the prosecution can call Duterte as a witness, nothing prevents the vice president from deciding, through her counsel, to appear voluntarily. 'Nothing prevents the respondent from deciding through her counsel to also appear should she wish to do so, basing it on Corona and what he did,' Escudero said. Sison replied that Corona's decision was voluntary, which she said makes it a different situation. She also reiterated that the defense would file its formal comment at the appropriate time. House lead prosecutor Rep. Gerville Luistro said the prosecution would submit to the court's direction. But she said that Filipinos have the right to hear Duterte personally answer the allegations in her impeachment trial, saying that the prosecution's proposal to present her as a witness serves transparency and accountability. 'It is important that the impeachment court, including the viewing public, witness how the respondent vice president answered to all these allegations because this is the spirit behind the provision of the Constitution on transparency and accountability, Your Honor,' Luistro said. Responding to the defense's invocation of Duterte's constitutional rights, Luistro said the Filipino people represented by the prosecution also have rights that deserve recognition in the proceedings. 'We wish to invoke as well that even the Filipino people whom we represent are entitled to these constitutional rights,' she said. Luistro said the question of Duterte's participation should be discussed with the vice president herself. 'I would like to put on record that the manifestations made were premature because as a matter of fact, we haven't formalized yet the motion for the issuance of subpoena to the respondent vice president, Your Honor,' she said. Vote threshold to convict Also on the 23rd day of the trial, Senate impeachment court said it would decide whether the 24-member Senate should remain the fixed voting base for convicting or acquitting Duterte, after Senator-Judge Erwin Tulfo warned that counting senators who cannot participate could result in an 'acquittal by default.' Escudero on Tuesday treated Tulfo's manifestation as an appeal and motion for reconsideration of his earlier ruling that the constitutional voting requirement is based on all 24 senators, and that a two-thirds vote — or 16 votes — would be needed to convict the vice president. Rather than immediately putting the matter to a vote, Escudero said the court would seek the views of amici curiae, or friends of the court, and allow both the prosecution and defense to present oral arguments before the senator-judges decide the issue. The court is set to hear the amici curiae on Sept. 16, with no trial proceedings scheduled that day. Oral arguments from both parties are scheduled for Sept. 23, when the matter is also expected to be put to a vote. Each side will be given 15 minutes to present its position, while senator-judges may question the amici curiae through the presiding officer. Tulfo's appeal centers on the meaning of the phrase 'all members' in Article XI, Section 3, paragraph 6 of the 1987 Constitution, which provides that no person may be convicted in an impeachment case without the concurrence of two-thirds of all the members of the Senate. Tulfo asked whether 'all members' should necessarily mean all 24 senators even when some are absent, medically unavailable, detained, or otherwise beyond the Senate's coercive jurisdiction. 'Is it really for 24? We count the 24? Or do we only count those who are present right now, the 21?' Tulfo asked. He said he was not seeking to reduce the constitutional requirement for conviction but wanted the impeachment court to determine which senators should comprise the voting base. Escudero further asked whether lowering the base would affect both the two-thirds requirement for conviction and the one-third threshold for acquittal. Tulfo confirmed that this was part of his request. The issue has become more urgent as the trial calendar has been shortened by the prosecution's decision to drop several witnesses and streamline its presentation of evidence. Tulfo warned that keeping the voting base fixed at 24 could make conviction mathematically impossible if enough senators are unable to participate. He cited a hypothetical situation in which nine or more senators could be unavailable because of illness, suspension, resignation, death, imprisonment, hiding or medical treatment abroad. 'If we insist that the voting basis is fixed at 24... the absence of those senators, whether we like it or not, will result in an acquittal by default,' Tulfo said. Tulfo also cited conflicting legal views on the issue, noting that some former chief justices have supported using the full Senate membership while others have argued for counting only those present. Escudero's ruling on the first day of the trial relied in part on an 'obiter dictum' in Bayan Muna v. Zamora regarding the voting base. Tulfo, meanwhile, pointed to Avelino v. Cuenco, which he said the Senate has traditionally relied upon in determining quorum and the members within its coercive jurisdiction. Under the Senate impeachment rules, Escudero noted, an appeal or motion for reconsideration of a ruling by the chair is ordinarily decided without debate through ayes and nays. But given the constitutional implications of the issue, he said the court would allow a fuller examination before voting. The court's resolution of the threshold question could have a direct bearing on the outcome of Duterte's impeachment trial, particularly if some senator-judges remain unable to participate when the case reaches judgment. Only she can explain her SALN, bank records In a statement released after the trial ended Tuesday, Kabataan Party-list Rep. Renee Co on said the vice president should testify before the impeachment court to explain alleged irregularities in the use of confidential funds under her watch. Co said the alleged misuse of confidential funds could not have happened without a system involving agency personnel, echoing the prosecution's position that Duterte, as head of the agencies concerned, should account for the questioned spending. She also pointed to the fictitious names, a one-year-old listed as a recipient of confidential funds, signatures that all looked the same, and 'unreasonable' explanations for the disbursements. Co said Duterte's authority as vice president and former Education secretary placed responsibility on her to explain the alleged irregularities. 'She should testify before the impeachment court because she is the only one who can explain her SALN and bank records,' Co added, referring to her statement of assets, liabilities and net worth.