Sara Duterte trial recap, Sept. 16: Friends of the court

MANILA, Philippines — Impeachment has been tagged as a numbers game. Today, the Senate impeachment court made that literal, pausing its regular programming to hear four legal luminaries weigh in on two questions: Who counts, and how many?

On Wednesday, September 16, retired Chief Justices Artemio Panganiban and Reynato Puno and retired Associate Justice Adolfo Azcuna appeared in person as amici curiae, or friends of the court. Retired Chief Justice Hilario Davide Jr., who recently underwent a medical procedure, sent his views in a written memorandum. 

The amici were asked to help resolve three issues raised in Sen. Erwin Tulfo's appeal of Escudero's ruling that 16 of 24 senators are needed to convict. 

The first is whether "all the members of the Senate" in the Constitution's two-thirds rule means all 24 senators or only those legally and physically able to take part. 

The second is whether Avelino v. Cuenco, a 1949 Supreme Court ruling that excluded a senator beyond the chamber's reach from a quorum count, applies to senators who are detained, abroad, suspended, or whose whereabouts are unknown. 

The third is whether a senator-judge who did not attend or substantially take part in the trial may still vote on the verdict.

Here's a summary of where the retired justices stood on each question.

Question 1: In voting to convict, is it a fixed 16 or a moving number?

On the central question, the amici split three to one. Davide, Panganiban and Puno said the two-thirds should be based on senators who can actually take part and hear witnesses in the proceedings. Azcuna held that all 24 senators must be counted unless a seat becomes permanently vacant.

Davide: Count only those qualified to vote

Davide, a delegate to the 1971 Constitutional Convention and a member of the 1986 Constitutional Commission, wrote that the framers never argued over the phrase. "There was no debate on this subject during the deliberations in both the 1973 Convention and the Constitutional Commission of 1986," he said. 

The framers assumed "members" meant senators able to perform their duties, he said, and any other reading would "tolerate an absurdity, and perpetuate an injustice."

Davide listed senators he said should be left out of the count: those who resigned or were expelled, those with serious mental or physical incapacity, those outside the country, in hiding, or whose whereabouts are unknown, and those under legal restraint, including senators charged with plunder or graft. 

"Clearly then, 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," he wrote.

Panganiban: 16 holds only 'in the abstract' and court must act in favor of justice 

In his opening remarks, Panganiban granted that a literal reading yields 16 votes. But "reality ... changes the denominator in mathematics," he said. 

"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."

Panganiban reminded senators they are "not jurists" and are called upon "to decide as lawmakers." He urged them to read the Constitution with the common sense of the people, guided by "two fundamental standards, namely truth and fairness." 

"You are tasked with a constitutional duty that cannot always be reduced to abstract arithmetic. Neither can such duty be performed in the shadows of absence nor from legal impediments," he said.

Sen. Erwin Tulfo later, during his turn for questions, posed a hypothetical to the amici. He posed a scenario where several senators are unable to attend through no choice of their own, whether because of illness, detention, or other circumstances, leaving too few to reach 16 votes. 

He asked whether the purpose of impeachment still supports "maintaining a fixed 16-vote requirement even if the Senate cannot realistically exercise its power to decide the case."

"You have given an example of why 16 should not be fixed," Panganiban said. If only 16 senators remained, he said, a fixed threshold would demand a unanimous vote. 

"That means that all 16 must vote unanimously. I don't think so," he said. "Otherwise, you'll have to immobilize the Senate as a source of justice for our people."

"Legalities do not matter very much because our people are not lawyers. They're not jurists. They are not used to objecting to leading questions or misleading questions. They're not used to technicalities. In fact, technicalities to them merely delay justice," Panganiban said.

Puno: 'Two-thirds' is a fraction, not a fixed 16

Puno rejected a literal reading of the two-thirds rule. "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," he said.

"However, if that is the intent, Article XI, Section 3 should have simply stated that the number of votes to convict is 16, period," Puno said. "By using two-thirds, the number of votes to convict will have to move depending on certain factors."

A strict literal reading, he warned, "may result in absurdities and may result in injustices which will defeat the purpose of the Constitution."

Puno said he follows a "contextual and functional" reading, which gives senators "the flexibility to consider circumstances that will legally prevent a senator from functioning as a member of this court."

Azcuna: 'All' means all

Azcuna was the lone dissenter in the advice given to the court. 

"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. 

He argued that a supermajority protects officials from removal by a passing partisan majority. "Requiring two-thirds forces conviction to rest on a coalition that cuts across ordinary partisan lines, which is precisely the point," he said.

Answering a defense question, he said a count based on the full membership guards against a ruling faction jailing or charging senators to secure a conviction. "It can still be manipulated but it's not as easy," he said.

Question 2: Does the 1949 Avelino ruling apply?

Avelino v. Cuenco arose from a 1949 fight over the Senate presidency. With one senator hospitalized and another in the United States, 12 senators elected Mariano Cuenco as Senate president. 

Davide and Puno said the ruling can guide the court even if it does not settle the question. Azcuna said it does not apply at all.

Davide: Not directly applicable, but has 'persuasive value'

Davide wrote that the ruling "is not directly applicable in impeachment cases. However, by analogy, it may only provide some guiding light."

He pointed out that the case dealt only with a quorum "in a Senate exclusively acting as a legislative body and performing exclusively legislative functions, and not as an impeachment court."

Still, "the Impeachment Court can consider this as having persuasive value," Davide wrote.

Puno: Not 'a perfect precedent,' but 'one of the tests'

"Strictly speaking, Your Honors, the Avelino case cannot be cited as a perfect precedent that will resolve the problem of how to properly interpret Article XI, Section 3(6) of the 1987 Constitution," Puno said.

He gave four reasons: it settled a quorum issue and not an impeachment vote issue, it referred to the 1935 Constitution, it dealt only with a senator outside the Senate's power to compel attendance, and its core reasoning "is not as solid, not as clear, as it has to be deduced from the different opinions of the participating justices."

"Be that as it may ... its treatment of a member beyond the coercive jurisdiction of the Senate can be used as one of the tests," Puno said.

Azcuna: 'It's not applicable'

Azcuna rejected the ruling outright as it was decided based on the 1935 Constitution and involved a quorum rule that required only a majority of the Senate.

"It didn't say all the members, just majority of the Senate. And so it's not applicable," Azcuna said.

Question 3: Can senator-judges who missed the trial still vote?

The amici were most divided on this question. Davide and Panganiban said senator-judges who stay away from the trial should not be counted in the final vote. 

Puno and Azcuna said senators could rely on the record, meaning transcripts and recordings of witness presentations, as well as documents submitted, to make their decision.

Davide: Never attending means never participating

A senator-judge who never attended the trial "must be deemed to have never participated in the performance of duties as such," Davide wrote.  

For those who attended only partly, Davide "leaves this matter to the conscience and sense of duty of those involved." 

He added that "failure to ask questions of the witness is not proof of non-participation," but "judges are to be present at all times and to listen to and reflect on the testimony of witnesses."

Panganiban: 'They should not dare vote'

Panganiban argued that the impeachment court works like a trial court, so senators must see witnesses for themselves. "The Supreme Court is a review court; it's not a trial court. But this court, the Senate acting as an impeachment court, is a trial court because you want to know the truth first — not from records, but from your experience," he said.

"If they are not in a position to know the truth, then they should not dare vote and participate because that will be unfairness to our people," Panganiban said.

Asked by Sen. Risa Hontiveros about senator-judges who willfully stay away, he said: "If you cannot, then you shouldn't be counted because you will be diminishing the effort and the voice of those who are here present, trying to find the truth and trying to be fair."

Puno: Seeing witnesses is 'ideal,' not required

Puno called the question "just a subset of the requirements of fair and impartial judges and independent tribunal."

"To determine the facts of a case, a judge need not personally see the demeanor of a witness, although that is ideal," he said. 

Appellate and Supreme Court justices, he noted, "just review the testimonies of witnesses reflected in the records of the case."

Puno also suggested detained senators could follow the trial from detention. "They can see the witnesses testifying, they can be provided with the transcripts," he said.

Azcuna: 'In case of doubt, I would allow such a person to vote'

Azcuna called the matter "an internal matter that should be decided by the Senate according to its own wisdom." Absent a Senate rule, he would lean toward allowing such a vote.

"In case of doubt, I would allow such a person to vote, because this tribunal is a tribunal of record," Azcuna said.

"If he or she feels that he or she can render impartial judgment honestly according to the Constitution and the laws, then even if he missed one or two, or maybe even substantially most of the hearings, but still based on the record he or she feels that he can honestly judge the respondent, I would allow," he said.

Reminder for the impeachment court: It can interpret the Constitution

Puno reminded the court that it does not need to leave the meaning of the two-thirds rule to the Supreme Court. 

He was responding to some senator-judges who had questioned whether the court could interpret the provision at all.

"My respectful submission is that the Senate as an impeachment court possesses the power to interpret the meaning and nuances of that sentence," Puno said, citing the Constitution's grant to the Senate of the "sole power to try and decide" impeachment cases.  

"The decisions of the Senate impeachment court on these matters are what we call political questions — questions that are addressed to the wisdom of the senator-judge, questions that are policy matters which the senator-judges alone should decide," he said.

Responding to a question by Sen. Ping Lacson, on whether the impeachment court can avoid being accused of grave abuse of discretion by the High Court, Panganiban answered court has been "prudent." 

"Your questions are very piercing, intelligent, enlightening, edifying, and we are here to give you our honest opinion on what courses of action are open to you," he said. 

"As I said, you are the Supreme Court of impeachment. Your will shall prevail," he said.