MANILA, Philippines — Three retired Supreme Court justices told the Senate impeachment court Wednesday that the two-thirds vote required to convict an impeached official should not automatically remain fixed at 16, while retired Associate Justice Adolfo Azcuna argued that the Constitution requires the full 24-member Senate to serve as the basis for computation.
Retired Chief Justices Hilario Davide Jr., Artemio Panganiban and Reynato Puno, along with Azcuna, appeared as amici curiae, or friends of the court, as senator-judges considered Senator-judge Erwin Tulfo’s challenge to Presiding Officer Francis “Chiz” Escudero’s preliminary ruling that 16 votes are needed to convict Vice President Sara Duterte.
Article XI, Section 3(6) of the 1987 Constitution states that an impeached official cannot face conviction “without the concurrence of two-thirds of all the members of the Senate.”
The dispute centers on whether “all the members” refers to the Senate’s full 24-member membership or only senators who can legally and physically participate in the proceedings.
Davide: Count senators qualified to vote
Davide, who submitted a memorandum to the impeachment court, said senators who cannot perform their constitutional duties should not form part of the denominator.
He identified senators who have resigned or been expelled, are physically or mentally incapacitated, are outside Philippine jurisdiction, are in hiding or are legally barred from performing their duties.
“Those who are detained, abroad, suspended or whose whereabouts are unknown cannot be included, or must be excluded, from the phrase ‘all the members of the Senate,’” Davide said in his memorandum.
He added that the court should base the two-thirds calculation on senators who are qualified to vote rather than automatically using the full 24-member Senate.
Davide said the framers of the Constitution did not specifically debate the issue but presumed that “members” referred to senators capable of exercising their powers and duties.
Panganiban: Two-thirds should reflect reality
Panganiban acknowledged that a literal reading of the Constitution would require 16 votes because the Senate has 24 members. However, he said constitutional interpretation should not rely solely on “abstract mathematics.”
“Reality, sometimes, Your Honors, changes the denominator in mathematics,” Panganiban told the court.
He gave a hypothetical situation in which five senators died and three resigned, leaving only 16 members.
“If there are only 16 left, does that mean all 16 must vote unanimously? I don’t think so,” Panganiban said.
He argued that the two-thirds requirement should apply to senators who remain able to vote. Otherwise, he said, the Senate could become unable to perform its role in resolving impeachment cases.
Panganiban also questioned whether senators who did not attend hearings should participate in the final vote after missing testimony, evidence and witness examinations.
Senator-judge Joel Villanueva asked whether a detained senator remains part of the denominator because detention does not automatically remove the senator from office.
Panganiban said a detained senator remains a member of the Senate but distinguished membership from the ability to exercise Senate functions.
Villanueva warned that either interpretation could invite abuse.
“No senator should be able to manufacture a veto by disappearing, but no majority should be able to manufacture a conviction by deleting opponents from the denominator,” Villanueva said.
Panganiban replied that the Senate should focus on delivering justice to the public.
Puno rejects fixed 16-vote threshold
Puno also rejected a strictly literal interpretation of the two-thirds requirement.
“If we give this kind of reading to Article XI, Section 3(6), the threshold of 16 senators to convict will be fixed and immutable,” Puno said.
He noted that the Constitution used a fraction rather than a specific number.
“If that is the intent, Article XI, Section 3(6) should have simply stated that the number of votes to convict is 16,” he said.
Puno advocated a “contextual and functional” interpretation that would allow the Senate to consider whether senators who are dead, resigned, expelled, legally incapacitated or under preventive suspension should count in the denominator.
However, Puno differed from Panganiban on whether a senator must personally attend every hearing to vote. He said senator-judges could evaluate the evidence through the official record, similar to judges in regular courts who review transcripts.
Puno stressed that Duterte must receive proceedings before an independent, fair and impartial tribunal.
Azcuna: ‘All means all’
Azcuna took the opposing position, saying the Constitution’s wording requires the Senate to use its full membership when calculating the threshold.
“As long as they are members of the Senate, they constitute the denominator in computing the threshold of two-thirds because all means all,” Azcuna said.
He maintained that the threshold should not change depending on attendance.
Azcuna nevertheless distinguished the denominator issue from the question of whether an absent senator may vote. He said a senator who missed hearings could still vote after reviewing the record, provided the senator could reach an impartial judgment.
He also said the Senate should decide the procedural issue according to its own judgment.
Amici distinguish quorum from impeachment threshold
The senator-judges also asked the retired justices about the 1949 Supreme Court case Avelino v. Cuenco, which involved a Senate leadership dispute and the chamber’s ability to transact business when some senators were absent.
The amici said the case primarily concerned quorum, while the current dispute involves the affirmative vote needed to convict an impeached official.
A quorum determines whether the Senate can conduct business. It does not necessarily determine how many votes the chamber needs to convict in an impeachment case.
The central question remains whether an absent senator should count in the denominator even if the senator cannot or does not participate in the proceedings.
Justices address due process concerns
Senator-judge Francis “Kiko” Pangilinan asked whether changing Escudero’s preliminary ruling after the trial had begun would violate Duterte’s right to due process.
Panganiban said no violation had occurred because the Senate had not yet conducted the final vote.
Puno similarly said reconsidering the interpretation would not amount to changing the rule itself.
Azcuna said the threshold issue concerned procedure and that procedural interpretations could apply even after proceedings had started.
Aquino warns fixed threshold could favor acquittal
San Beda University Graduate School of Law Dean Fr. Ranhilio Aquino separately submitted a position paper arguing that the 16-vote threshold should not remain fixed when senators have not participated in the proceedings.
Although Aquino was not among the four invited amici, the impeachment court agreed to consider his memorandum and provide copies to the senator-judges, prosecution and defense.
Aquino cited the Senate’s constitutional authority to try and decide impeachment cases and the chamber’s rules requiring senators to hear the case, deliberate and explain their votes.
He warned that a fixed 16-vote threshold could allow senators who did not participate in the proceedings to influence the outcome.
“Every absent member would, in effect, be casting a vote of acquittal,” Aquino wrote.
The Senate impeachment court is scheduled to hear arguments from the prosecution and defense on the threshold issue on Sept. 23. Until the court acts on Tulfo’s challenge, Escudero’s preliminary ruling requiring 16 votes remains in effect.