Here’s what amici curiae say about the impeachment voting threshold

MANILA, Philippines — Four retired Supreme Court justices on Wednesday weighed in on the constitutional questions surrounding the voting threshold in Vice President Sara Duterte’s impeachment trial.

On Wednesday, the 26th day of Duterte’s trial, the four offered their positions on the three questions the impeachment court posed to guide the senator-judges before they vote on whether to overturn the 16-vote threshold set by Presiding Officer Francis “Chiz” Escudero.

This, as Senator-Judge Erwin Tulfo previously asked to revisit the ruling, noting the absence of several senators from the impeachment trial.

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READ: Amici curiae at hand, Senate impeachment court revisits vote threshold

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The first position heard in the trial was that of retired Chief Justice Hilario G. Davide Jr. Davide, unable to attend in person, submitted his position in a written legal memorandum, which Impeachment Clerk of Court Renato Bantug read. Notably. Davide

Next was Inquirer columnist and retired Chief Justice Artemio Panganiban.

Following him were Retired Chief Justice Reynato Puno and Supreme Court Associate Justice Adolfo Azcuna.

The Senate impeachment court had asked the amici curiae, or “friends of the court,” to address three questions and here’s what they had to say:

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On whether “all members of the Senate” refers to the full 24-member Senate or only those legally and physically capable of voting

According to Davide, “all members” should not automatically mean all 24 senators.

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He 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 said the basis for computing the two-thirds requirement should therefore be the number of senators who are qualified to vote.

Panganiban and Puno echoed this. The two presented two schools of thought, or ways to interpret Article 11, Section 3(6) of the 1987 Constitution.

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

For his part, Puno said he does not subscribe to a strictly literal interpretation that would make 16 immutable. 

According to Puno, 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 said.

He likewise added, “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.

With a different view, 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,” he 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. 

READ: Davide conviction rate must be based on senators-qualified to vote?

“The supermajority rule protects against factional and partisan abuse. 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. It signals that the wrongdoing is serious and broadly, not merely factionally, recognized,” he explained further.

On whether Avelino v. Cuenco applies to who should be counted for the two-thirds requirement

Meanwhile, for the second question, all four legal experts agreed that Avelino v. Cuenco is not directly applicable to the Senate sitting as an impeachment court.

Davide and Azcuna said that although it may have persuasive value, the case involved the Senate acting as a legislative body and dealt with quorum, not the number of votes required to convict in an impeachment case. 

Panganiban likewise said the case does not directly resolve the present issue because it was decided under the 1935 Constitution and concerned a differently worded provision on quorum.

In the same breath, Puno said that although it may serve as a guide, it was not a perfect precedent.

On Whether a senator-judge who did not attend or substantially participate in the impeachment proceedings may nevertheless validly cast a vote on the final question

Davide said a senator-judge who did not attend any session or never performed the duties of a senator-judge should be treated similarly to those who are outside the Philippines or whose whereabouts are unknown.

For those who did not substantially participate, however, he left the matter to their “conscience and sense of duty.” 

He also stressed that simply failing to ask questions of witnesses does not by itself prove nonparticipation, since judges may refrain from questioning witnesses except to clarify points. 

Meanwhile, Panganiban raised questions about the fairness of allowing senators to vote despite being absent from the proceedings and therefore not hearing the testimonies or examining the evidence firsthand.

He said the impeachment court’s constitutional duty “cannot always be reduced to abstract arithmetic” and called for a commonsensical interpretation of the Constitution, emphasizing active participation in the search for truth and fairness—that is, by studying and verifying the documents and papers submitted; and “from hearing their demeanor on the stand in front of you.”

For Puno, a judge does not necessarily have to personally observe the demeanor of a witness to decide a case.

READ: Panganiban: is it fair to let those who hide, enjoy abroad join trial?

He cited situations in regular courts where a succeeding judge may decide a case based on transcripts, affidavits and other records even without personally hearing the witness. He also stressed that senator-judges must be independent, fair and impartial. 

Lastly, Azcuna, who like Davide acknowledged how difficult to answer this question was, said he believes that “this is an internal matter that must be decided by the Senate according to its own wisdom.”

If there is no Senate rule prohibiting a senator-judge who missed hearings from voting, Azcuna, however, said he would personally allow the senator to vote as they review transcripts and records.

“I would decide in favor of allowing such senator-judge to vote according to, of course, the conscience of such judge. Remember that a senator-judge participating in an impeachment case takes an oath… The oath says that the senator-judge swears to render impartial judgement according to the Constitution and the laws of the Philippines,” he said.

“If he or she feels that he or she can render impartial judgment honestly according to the Constitution and the laws… then I would allow, but that’s me. This is an internal matter for the Senate to decide,” Azcuna added.

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Guided by these and the subsequent questions asked to the amici curiae this Wednesday, on Sept. 23, the defense and prosecution teams are expected to orally argue their positions on the conviction threshold before the senator-judges officially decide on the matter. /mr