The Senate impeachment court can still change the current voting threshold of 16 senators to convict Vice President Sara Duterte, according to three former chief justices of the Supreme Court.
Hilario Davide Jr., Artemio V. Panganiban, and Reynato S. Puno said the number of votes to remove an impeached official should not be fixed at 16, which the court‘s presiding officer, Sen. Francis Escudero, set at the start of Duterte’s impeachment trial.
The fourth, retired Supreme Court Associate Justice Adolfo Azcuna, stuck with the figure, saying this comprises the constitutionally required two-thirds of the 24 senators.
3 issues
Except for Davide, who is recovering from a medical procedure, the former top high court officials appeared before the impeachment court on Wednesday, Sept. 16, as amici curiae (“friends of the court”) upon the invitation of the senator-judges to share their legal expertise on three questions:
• Whether the phrase “all members of the Senate” in Article XI, Section 3(6) of the Constitution should refer to the Senate’s full membership of 24 senators or only those who are legally and physically capacitated to participate and vote on the final question in an impeachment trial
• Whether the case of Jose Avelino vs. Mariano J. Cuenco, particularly its treatment of members beyond the coercive jurisdiction of the Senate, applies in determining whether senators who are detained, abroad or suspended, or whose whereabouts are unknown are included in the phrase “all the members of the Senate” for purposes of the two-thirds vote required
• Whether or not a senator-judge who did not attend or substantially participate in the impeachment proceedings, as to, among others, propound questions to and observe the demeanor of witnesses, may nevertheless validly cast a vote on the final question in an impeachment trial
Of the 24 senators, four have been unable to attend the impeachment trial, which has held 26 hearings so far.
Senators Jinggoy Estrada and Rodante Marcoleta are currently detained for their respective plunder cases, Sen. Ronald “Bato” dela Rosa is in hiding after the International Criminal Court had issued an arrest warrant for the crimes against humanity case filed against him and former president Rodrigo Duterte in relation to the drug war, and Sen. Loren Legarda has been on medical leave abroad for over a month now.
Voting threshold
Escudero told the court he had earlier ruled on a 16-vote threshold so that the issue could be raised in the Supreme Court.
“The primary reason why I dared to decide on the voting threshold was in the hope that someone would raise this matter to the high court for final decision,” he said in Filipino.
He said he did not want to see the issue raised to the high court after the impeachment court had finished deliberating on the evidence presented by both prosecution and defense, and voting on it.
“I don’t think the country and people deserve for the issue to be prolonged longer than it should be,” Escudero said, prompting Panganiban to say he agreed.
A synopsis of the legal memorandum prepared by Davide was read in court, with the former chief justice opining that “the basis of computing the two-thirds must be the number of senators who are qualified to vote, not the 24 in the present Senate.”
1973, 1987 Constitutions
“All those disqualified by reason of causes earlier mentioned should not be included,” said Davide, who was a member of the constitutional bodies that drafted the 1973 and 1987 Constitutions.
He said that in the two charters, Senate members are referred to as “living persons who are not suffering from any mental, physical or health conditions which render them incapable of exercising their powers or performing their duties as senators, or who are prohibited to do so by reason of some legal restraints or impediments.”
For his part, Panganiban said two-thirds of 24 is 16 and, as such, 16 votes are needed to convict “if we must use mathematics.” He said mathematics is “an exact science in the abstract,” but added that it is “not always in reality.”
“Reality, sometimes, Your Honors, changes the denominator in mathematics. In the same way, constitutional interpretation cannot always stop at abstract mathematics. We must look at the intent and the purpose of constitutional provisions, the circumstances in which they operate, and the goals they seek to achieve,” he said.
‘Justice for our people’
Senator-judges should interpret the Constitution “in accordance with their mandates as representatives of the people, especially reflecting the common sense of the people, guided by two fundamental standards, namely truth and fairness,” Panganiban said.
He also said that, using these two standards, the Senate’s decision “is final and unappealable.” The high court can only review a Senate decision if the chamber commits grave abuse of discretion, he pointed out.
Entertaining questions from the senator-judges, Panganiban observed that the questions raised and answers they seek “are from the point of view of the senators.”
“I would like to say that on my part, I am talking about justice for our people. What do our people expect from you? It’s not legalism, it’s not judicial conduct. It’s justice for our people,” he said.
“I speak from the point of view of those of our people, not from the point of view of the judges,” Panganiban said.
Puno agreed that the Senate, as an impeachment court, “possesses the power to interpret the meaning and nuances” of the constitutional provision that “no person shall be convicted without the concurrence of two-thirds of all members of the Senate.”
Citing Article XI, Section 36 of the Constitution, Puno said the Senate is the “only body that can try and decide all cases involving impeachment,” and it can “promulgate the rules that will govern the trial and decision of impeachment cases.”
‘Literal meaning’
He disagreed with a “stand-alone literal reading” of the 16-vote threshold to convict an impeached official, as this would be “fixed and immutable.”
“However, if that is the intent, [this provision] should have simply stated that the number of votes to convict is 16, period,” Puno said. He noted that this provision did not say this, and “instead, the language used a fraction” or “two-thirds of all members of the Senate.”
“By using two-thirds, the number of votes to convict will have to move depending on certain factors,” he said, adding that this was a “contextual and functional interpretation of the Constitution.”
Panganiban said this approach will give senators the right to consider whether senators who are already dead, resigned, expelled, or legally incapacitated, such as being charged with plunder or under preventive suspension, “should still be counted in determining two-thirds of all the members of the court.”
In contrast, Azcuna said that “as long as they are members of the Senate, they constitute the denominator in computing the threshold of two-thirds because all means all.”
He said that because of the gravity of the impeachment court’s quasi-judicial function, it needs a “heightened standard of proof of consensus.”
‘Supermajority rule’
“The supermajority rule protects against factional and partisan abuse,” Azcuna said. “A simple majority threshold should make impeachment conviction achievable by whichever coalition happens to control the chamber at any given moment, collapsing the distinction between removable for cause and removable because we have the votes.”
He added: “Basing the denominator on only those who actually participate and are present can effectively reduce the two-thirds to a simple majority.” A threshold, he insisted, “must be fixed, not variable” and “determinable from the start.”
Whether a senator who did not substantially participate in the impeachment trial can cast his final vote, Azcuna said it is up to the Senate to decide “according to its wisdom.” CS
