'Truth, fairness': Ex-CJ Panganiban questions fixed impeachment math

MANILA, Philippines — Retired Chief Justice Artemio Panganiban said the 16-vote threshold to convict Vice President Sara Duterte should not be treated as a fixed number.

Appearing before the Senate impeachment court on Wednesday, September 16 as an amicus curiae, or friend of the court, Panganiban said the constitutional requirement of "two-thirds of all the members of the Senate" translates to 16 of 24 senators only "in the abstract."

The calculation, he argued, "cannot always be reduced to abstract arithmetic."

Panganiban said senators should approach the constitutional provision with "common sense," guided by "truth and fairness," rather than rely exclusively on either a literal reading of the text or the intent of its framers.

He noted that senator-judges are not sitting as ordinary jurists but as elected representatives exercising the Senate's constitutional power to try impeachment cases.

Should absent senators vote?

Panganiban also questioned whether senators who have not participated in the proceedings should be allowed to cast a vote on Duterte's guilt or innocence.

He said determining the truth in an impeachment trial requires studying evidence and hearing witnesses in person, including observing their body language, tone of voice and spontaneity.

Fairness likewise requires hearing all sides before reaching judgment, he said, quoting the ancient Greek statesman Themistocles: "Strike me as you may, but hear me first."

Panganiban then raised the cases of senators who may be in hiding, abroad, detained, sick, hospitalized or otherwise absent from the proceedings.

Such senators, he said, would not have examined the documents presented to the court, heard the testimony or personally observed the witnesses.

"Meaningful adjudication requires active participation in this search for truth and fairness," Panganiban said.

In one of the sharpest parts of his presentation, he contrasted senators "sweating it out" inside the session hall with absent members who could be sightseeing by the Nile, shopping in Paris, riding gondolas in Venice or "deliberately hiding in the dark corners of the world."

He did not name any senator.

Panganiban's position adds another argument against automatically treating two-thirds of the Senate as a fixed 16 votes, although he did not, in the portions of his presentation summarized Wednesday morning, prescribe a specific alternative number.

Senate has final say

Panganiban also argued that the Senate itself has the final word on an impeachment verdict.

He said the Constitution provides no route for appealing a Senate judgment in an impeachment trial to the Supreme Court.

The high court may intervene only when the Senate commits grave abuse of discretion, he said, such as a capricious, whimsical or arbitrary exercise of judgment amounting to lack or excess of jurisdiction.

The Supreme Court cannot step in simply because it disagrees with the wisdom of the Senate's decision, Panganiban added.

The former chief justice is one of four retired Supreme Court justices tapped as amici curiae, or friends of the court, to advise senator-judges on the disputed voting threshold.

Retired Chief Justice Hilario Davide Jr., who submitted a written memorandum, separately argued that the two-thirds requirement should be based on senators legally and physically qualified to vote rather than automatically on the full 24-member Senate. — Based on reports from Cristina Chi and Martin Ramos