[Newsstand] The strongest argument for determining two-thirds impeachment vote

• The conviction threshold for impeaching Vice President Sara Duterte is debated, with some arguing it should be interpreted as variable rather than a fixed number of 16 senators due to constitutional language.
• Dean Mel Sta. Maria emphasizes that senators must take an oath to serve as judges in the impeachment court, suggesting that only those who have taken the oath should be counted towards the two-thirds requirement for conviction.
• Senator Chiz Escudero's interpretation of the threshold as requiring 16 votes is challenged, with the argument that the Senate can decide this matter internally rather than relying on the Supreme Court.

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How many votes are needed to convict Vice President Sara Duterte on any of the four articles of impeachment? Over two days last week, Dean Mel Sta. Maria revisited the issue. He had already spoken on the matter before, and had made a strong argument for considering the conviction threshold not as static (a fixed number of 16 senators) but as variable (because of the “two-thirds” language of the Constitution).

Inspired by an insight of Ateneo Law School constitutional law professor Leo Camacho, Sta. Maria focused on the significance of a qualifying phrase in the constitutional provision on impeachment. To this writer, who has worked for decades in the trenches of the English language, the qualification seems to me to be the very crux of the matter.

The pertinent provision is Article XI, Section 3 (6) of the 1987 Constitution, which in its entirely reads as follows:

“The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

The qualifying phrase is the opening clause of the second sentence: “When sitting for that purpose” — that is, when the Senate transforms itself into an impeachment court. This, Sta. Maria argues, is the key.

Listen to him:

“When we examine Section 3 (6) [of] Article Xl, the first sentence describes the forum where the impeachment trial will occur: THE SENATE. Then the second sentence provides the transformation process. It says that when senators take their role in the impeachment court as judges, they shall take  their ‘oath or affirmation.’ This oath or affirmation is the prerequisite ‘while sitting for that purpose,’ meaning while participating as judges in the impeachment court. ‘Sitting’ easily connotes presence.

“The law is therefore clear. A senator cannot be transformed into a judge without taking his oath or affirmation. These two are the sustaining elements during the duration of the proceedings that shall allow them to be judges. Without the oath or affirmation, they are senators as legislators but not judges in the impeachment court.”

Threshold issue

The number of votes needed to convict Duterte, or indeed any impeachable official, is one of three threshold issues the presiding officer of the impeachment court, Senator Chiz Escudero, addressed on July 6, the first day of the impeachment trial and the day he was elected to preside. (READ: What’s the legal basis for Escudero’s 16-vote threshold in impeachment trial?)

“On the first issue, the Constitution provides that no person shall be convicted without the concurrence of two-thirds of all the members of the Senate. With 24 members of the Senate, a literal interpretation of this means that conviction requires the affirmative vote of at least 16 senator-judges.”

Senator-judges who disagree, Escudero said, can run to the Supreme Court. “This is the prevailing law today, and whether we agree with it or not, we must abide by it. However, those who disagree are not without recourse, because this is without prejudice to the right of any party who holds a different view to seek judicial relief.” 

On the second day of the trial, Senator Ping Lacson asked whether Escudero’s reading of this threshold issue was, as the Journal phrased it, “a personal legal opinion or a ruling of the Impeachment Court.” Escudero said it was a ruling of “the Chair” (and therefore of the court); since it was unchallenged, it is in effect. 

This literal interpretation remains the ruling of the impeachment court, though a person with legal standing can still raise it to the Supreme Court. 

But, as Sta. Maria’s analysis makes clear, it is a literal but incomplete interpretation. In the Constitution’s own language, the phrase “all the Members of the Senate” has already been qualified by “senators [who] shall be on oath or affirmation.” And senators take that oath or make that affirmation only “when [the Senate is] sitting for that purpose” of conducting an impeachment trial.

It does not make sense to include senators who are not on oath or affirmation as among “all the Members of the Senate” who will decide on the impeachment case. I use “sense” in its ordinary-language meaning, which is how I and many millions of Filipinos read and understood the provisions of the Constitution when ratifying it in 1987. (I was teaching in Cagayan de Oro then, and took part in workshops and forums discussing the draft charter.)

To non-lawyers like me, Sta. Maria’s legal analysis is immediately clarifying. The Senate needs to convert itself into an impeachment court before it can hear an impeachment case; senators elected as legislators need to undergo a process that will transform them into judges. That process of transformation happens when the Senate sits for the specific purpose of hearing the impeachment case; senators become senator-judges when they take an oath or make an affirmation.

Why should senators who failed to do either — because they were sick, or in detention, or in hiding — be considered as senator-judges? In the particular context of Article XI, Sec. 3 (6), “all the Members of the Senate” must refer to senators who are judges by oath or affirmation.

In a comment he posted as a reply to Sta. Maria, the former Supreme Court justice and member of the 1986 Constitutional Commission, the formidable Adolf Azcuna, suggested another reading. “You could also say that the reason it says two-thirds of all the members of the Senate is to exclude the Chief Justice from the computation.”

He was referring to the express provision that, when it is the president of the Philippines who is on trial, it must be the chief justice of the Supreme Court who will serve as presiding officer of the impeachment court. But, to me (again, as a heavy user of the English language, not as a lawyer), this reading seems superfluous, because the language of our Constitution (in contrast to the language of the US Constitution, where our impeachment conventions come from) very specifically provides that, “When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote.” 

If the chief justice cannot vote, why would he or she be included in “the computation”?

No Supreme Court

I think ordinary-language interpretation is important because that’s how fundamental laws should be read: as intelligible to ordinary citizens. Unlike ordinary laws passed by Congress, a constitution needs to be ratified by a majority of the people (only a few of whom are lawyers) before it can take effect. 

The same dynamic applies in the Senate; a majority of senators are non-lawyers. 

Presiding Officer Escudero skipped a pivotal step when he said “any party who holds a different view” can petition the Supreme Court. Why file a petition when the senator-judges can decide among themselves to settle the issue?

The Senate’s Rules of Impeachment allow “a Member of the Senate” to ask for a “formal vote” regarding “questions of evidence,” with the vote to be decided (since the standard is not defined in the rules) by simple majority. The very same rules were amended to allow the election of a presiding officer who is not the Senate president, again by simple majority. And the impeachment court elected Escudero as presiding officer by a vote of 12 to 8.

Instead of running to the Supreme Court, senator-judges would be well within their rights to call for a vote in the impeachment court to decide the issue of the conviction threshold. First, relying on the Supreme Court to decide definitively on such a basic standard — how many votes are needed to convict an impeached official — is to dilute “the sole power” given by the Constitution to the Senate “to try and decide all cases of impeachment.”

Second, questioning the ruling of the chair is expressly provided for in the Rules of Impeachment.

Third, the issue can be decided at a strategic stage in the trial, to minimize the possibility of Supreme Court interference.

And, fourth, the fact that three senators are unable to serve as senator-judges is a matter of extreme relevance. They remain senators until their term ends or unless they are expelled from the Senate; but because they are not in a position to take the oath or make the affirmation, they are not senator-judges. You don’t need 16 votes in the Senate to recognize that — just a simple majority. – Rappler.com

Veteran journalist John Nery is a Rappler columnist. He anchors Rappler’s special coverage of the Duterte impeachment trial and, every Wednesday, hosts In the Public Square with John Nery.