3 of 4 ex-SC justices agree conviction threshold not fixed at 16

MANILA, Philippines — Three out of the four retired Supreme Court justices invited as “amici curiae” or “friends of the court” to Vice President Sara Duterte’s impeachment trial on Wednesday agreed that the minimum number of votes needed for conviction is not automatically set at 16.

The three who expressed similar views were former Supreme Court chief justices.

This count came as the former magistrates expressed their positions on whether “all members of the Senate” refers to the full 24-member Senate or only those who are legally and physically capable of voting.

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When the impeachment trial began on July 6, Presiding Officer Francis “Chiz” Escudero had ruled that Duterte’s conviction will require 16 votes, as prescribed in the Constitution.

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Article XI, Section 3(6) of the 1987 Constitution states that “The Senate shall have the sole power to try and decide all cases of impeachment…”

“No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate,” the charter stated.

Four senators have, so far, been unable to attend Duterte’s trial – Senators Jinggoy Estrada, Rodante Marcoleta, Ronald dela Rosa and Loren Legarda.

Sen. Erwin Tulfo previously moved to revisit the constitutional provision, asking whether 24 should be the base or only the 20 who are physically present in the trial.

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Before voting on the matter, the Senate, as an impeachment court, consulted four legal luminaries on the 25th day of Duterte’s trial – former Chief Justices Hilario Davide Jr., Artemio Panganiban, Reynato Puno and former Associate Justice Adolfo Azcuna.

Not automatic 24

According to Retired Chief Justice Hilario Davide Jr., “all members” should not automatically mean all 24 senators.

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In his legal memorandum read in court, Davide said the framers of the 1935, 1973 and 1987 Constitutions could not have intended the term to include senators who had resigned or been expelled, those who are physically or mentally incapacitated, those who cannot participate because they are abroad or their whereabouts are unknown, and those legally restrained from exercising their duties as senators.

He told the senator-judges that the basis for computing the two-thirds requirement should, therefore, be the number of senators who are qualified to vote.

Retired Chief Justices Artemio Panganiban and Reynato Puno echoed Davide’s position.

They presented two schools of thoughts, or ways to interpret Article 11, Section 3(6) of the 1987 Constitution, a literal and a contextual interpretation.

Panganiban acknowledged that under a literal reading of the Constitution, two-thirds of the 24-member Senate is 16.

However, he said that constitutional interpretation cannot always be reduced to “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,” Panganiban said during the trial.

For his part, Puno said he does not subscribe to a strictly literal interpretation that would make 16 an immutable (never changing) number. 

According to the former chief magistrate, if the intent was to fix and make 16 immutable, the law could have been written as 16 if they wanted it that way, period.

“By using two-thirds, the number of votes to convict will have to move depending on certain factors,” Puno emphasized.

He warned the court: “A strict, stand-alone, literal interpretation of Article 11 Section 3(6) may result in absurdities and may result in injustices which will defeat the purpose of the Constitution.”

Puno also emphasized that the Senate as an impeachment court, not the Supreme Court, “possesses the ‘sole’ power to interpret” and even promulgate rules relating to the impeachment.

‘All means all’

Coming up with an opposing view, Retired Supreme Court Associate Justice Adolfo Azcuna took the position that “all members” refers to all 24 senators who remain members of the Senate.

“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 argued that the two-thirds requirement is intended as a supermajority and that basing the computation only on participating senators could lower the threshold. 

“The supermajority rule protects against factional and partisan abuse,” he told the senator-judges.

“The framers of the ‘supermajority impeachment clause’ were reacting to a specific fear that impeachment could become a tool for a transient legislative majority to remove a political rival or an official from a disfavored party, effectively overturning an election result through legislative fiat rather than through the ballot box,” he warned.

“Requiring two-thirds, forces conviction to rest on a coalition that cuts across ordinary partisan lines, which is precisely the point,” Azcuna noted.

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“It signals that the wrongdoing is serious and broadly, not merely factionally, recognized,” he explained further. /apl