Puno: Constitution’s ⅔ vote is flexible depending on certain factors

MANILA, Philippines — Retired Supreme Court Chief Justice Reynato Puno asserted on Wednesday that the 1987 Constitution’s provision on the number of votes required to convict an impeachable officer is flexible, “depending on certain factors.”

Puno, acting as an amicus curiae (friend of the court), expressed his views to the Senate impeachment court as it reconsiders whether to uphold the 16-vote requirement needed to convict Vice President Sara Duterte, despite three absent senator-judges. 

“It is inappropriate to give Article 11, Section 3-6 of the Constitution a standalone literal reading. If we give this kind of reading to Article 11, Section 3-6, the threshold of 16 senators to convict will be fixed and immutable,” Puno pointed out.

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Puno was answering the court’s question on whether or not the phrase “all members of the Senate” in Article 11, Section 3, Paragraph 6 of the Constitution should refer to the chamber’s full membership of 24 senators.

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“However, if that is the intent, Article 11, Section 3-6 should have simply stated that the number of votes to convict is 16. But Article 11, Section 3-6 did not say so. Instead, the language used a fraction,” he told the senator-judges.

“It says 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 declared. 

Puno further emphasized that a “strict, standalone, literal interpretation of the provision may “result in absurdities and may result in injustices, which will defeat the purpose of the Constitution.”

READ: Law dean: 16-vote threshold not fixed, Senate has power to decide

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In interpreting the Constitution, contextually and functionally, Puno said the senators are, therefore, granted “the flexibility to consider circumstances that will legally prevent a senator from functioning as a member of the Senate.”

“This approach will give the senators the right to consider whether senators who are already dead, resigned, or expelled should still be counted in determining two-thirds of all the members of the Senate,” he noted.

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“Also, this approach will enable senators to consider whether senators who are legally incapacitated, like senators charged with plunder, like senators under preventive suspension, should still be counted in determining the number of votes to convict,” the former chief magistrate explained.

In determining whether or not senators who were unable to substantially participate in the impeachment proceedings should be able to cast a vote, Puno urged the court to consider that judges in Regional Trial Courts (RTC), the Court of Appeals, and the Supreme Court are allowed to make decisions based on witnesses’ testimonies as transcribed in stenographic notes.

The former chief justice cited an example: “To determine the facts of a case, a judge need not personally see the demeanor of a witness, although that is ideal.”

“Thus, an RTC judge who succeeds another RTC judge can decide cases left by the latter, even if the succeeding judge did not personally hear some of the witnesses who have previously testified,” Puno told the court.

Moreover, for former chief magistrate repeatedly highlighted the need for the respondents to be tried by independent, fair and impartial courts.

He did not only cite the 1987 Constitution, but also the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights — international resolutions signed and ratified by the Philippines.

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“To allow a member senator, to try and decide an impeachment case, who is not fair and impartial, to subject a respondent in an impeachment case, to allow him to be tried and judged by a tribunal who is not independent or by a tribunal who is biased and prejudiced – will have far-reaching consequences,” the retired chief justice stated. /apl