For ex-SC justice, Bato's absence matters more than Jinggoy's suspension

MANILA, Philippines — Sen. Bato dela Rosa's possible status as a fugitive, not Sen. Jinggoy Estrada's preventive suspension, is the "only possible exception" former Supreme Court Associate Justice Adolfo Azcuna sees to the Senate's full-membership rule in an impeachment trial.

Speaking in an ANC interview over the weekend, Azcuna said the Constitution requires the concurrence of two-thirds of all members of the Senate to convict in an impeachment trial. In a 24-member Senate, that normally means 16 votes are needed.

Azcuna said the rule should be applied strictly, but Dela Rosa's case could raise a different question if he is judged a fugitive.

"The only possible exception in my view is the case of Senator Dela Rosa, whom we call Bato, if he is judged a fugitive, he can be considered in my view as resigned constructive resignation because being a fugitive entails running away from the legal system," Azcuna said.

"And if one runs away from the legal system, he relinquishes all membership in that system," he added.

Azcuna said the doctrine of disentitlement could apply if Dela Rosa is officially treated as a fugitive. Under that principle, he said, someone who flees from the legal system may be deemed to have given up the benefits of belonging to it.

If Dela Rosa is excluded from the Senate membership count on that theory, Azcuna said the number of votes needed to convict could drop from 16 to 15.

Dela Rosa has been in hiding while facing an arrest warrant from the International Criminal Court over alleged crimes against humanity in connection with the Duterte administration's drug war. The senator has denied wrongdoing.

The ICC case covers alleged killings committed during the drug war of former President Rodrigo Duterte. Dela Rosa, a close Duterte ally, served as Philippine National Police chief during the early years of the campaign.

The distinction makes Dela Rosa's case the key issue in Azcuna's view, while Estrada's suspension is a separate matter.

The Sandiganbayan on June 16 ordered Estrada preventively suspended for 90 days in connection with a pending graft case over the flood control scandal. But a preventive suspension does not raise the same question of whether a senator should be removed from the membership count for purposes of the two-thirds impeachment threshold.