Ex-SC justices tapped on Sara impeachment vote threshold

The Senate Impeachment Court has turned to four former Supreme Court justices for legal guidance as it confronts a potentially decisive constitutional question in Vice President Sara Duterte’s impeachment trial: Must conviction always require 16 votes, even when some of the Senate’s 24 members cannot participate?

Retired Chief Justices Artemio Panganiban and Reynato Puno and retired Associate Justice Adolf Azcuna have been invited to appear as amici curiae, or “friends of the court,” when the impeachment court takes up the issue on Sept. 16.

Former Chief Justice Hilario Davide Jr. will instead submit a legal memorandum to the court.

Impeachment court spokesperson Atty. Regie Tongol said the Office of the Clerk of Court began issuing orders Sept. 10 for the appointment of the amici curiae.

“The Impeachment Court is not leaving constitutional math to guesswork or chance,” Tongol said.

The invited jurists will not represent either the House prosecution panel or Duterte.

Instead, amici curiae are independent legal experts asked by a court or tribunal to provide assistance on difficult questions of law.

Only senator-judges will be permitted to ask them clarificatory questions during the Sept. 16 proceedings. They will not be subjected to cross-examination by the prosecution or defense.

Why the number 16 is being challenged

The controversy arose from an appeal by Senator-Judge Erwin Tulfo questioning how the constitutional voting requirement should operate when several senators are unable to participate in the trial.

Article XI, Section 3(6) of the 1987 Constitution provides that the Senate has the “sole power to try and decide all cases of impeachment” and that no person may be convicted without the concurrence of “two-thirds of all the Members of the Senate.”

The Senate is constitutionally composed of 24 members.

Under the straightforward interpretation adopted by impeachment court Presiding Officer Francis Escudero at the start of Duterte’s trial in July, two-thirds of 24 is 16.

Thus, Duterte cannot be convicted on any article of impeachment unless at least 16 senator-judges vote guilty.

Tulfo is not directly asking the court to simply lower that threshold.

He wants the impeachment court to determine who should count as part of the voting base when senators are legally or practically unable to participate in the proceedings.

“The question there is not that I am saying the threshold should be lowered because others think that is the target. No,” Tulfo said Wednesday.

“The point is that we have colleagues who are not here. The question is, should they be included in the count?” he added.

Four senators complicate the arithmetic

Tulfo raised the issue because four senator-judges have been unavailable for different reasons.

In his manifestation, Tulfo told the impeachment court that one senator was on medical leave abroad, another was in hiding, while two others were under the custody of either the Sandiganbayan or Bureau of Jail Management and Penology.

“The present reality, however, is that some of our members are beyond the coercive power or jurisdiction of the Senate,” Tulfo told the court.

He asked who among the Senate’s members could “validly cast their votes” if the final judgment were held while those circumstances persisted.

That creates a constitutional question with enormous practical consequences.

If the denominator remains the full 24-member Senate, Duterte needs 16 guilty votes to be convicted regardless of how many senators actually participate.

If the court concludes that senators legally incapable of participating should be excluded from the voting base, the required number could potentially fall.

That is precisely why the dispute is more consequential than a procedural disagreement.

It could determine the number of votes required to remove the vice president from office.

Constitution says ‘all the Members’

The strongest argument for retaining 16 is the Constitution’s choice of words.

It does not say two-thirds of senators “present,” two-thirds of those “voting,” or two-thirds of a quorum. It expressly requires “two-thirds of all the Members of the Senate.”

Escudero relied on that language when he ruled at the opening of the trial that 16 votes would be required for conviction.

He said those disagreeing with his interpretation could challenge the matter, including before the Supreme Court.

Tulfo’s appeal raises a different question: What does “all the Members” mean when a senator remains a member of the Senate but is incapable of performing the judicial function required in an impeachment trial?

That distinction between membership, attendance and capacity to participate is now at the heart of the dispute.

Quorum is not necessarily conviction threshold

Another legal issue the former justices may have to address is whether jurisprudence concerning a Senate quorum can be applied to impeachment voting.

Tulfo has raised the situation of senators who are beyond the Senate’s coercive jurisdiction.

Philippine jurisprudence has recognized circumstances in which determining a legislative quorum can take account of members who cannot legally or physically participate.

But an impeachment conviction presents a different constitutional provision.

A quorum determines whether a body can conduct business.

The two-thirds requirement determines whether an impeached official can actually be convicted and removed.

Whether legal principles governing one calculation can alter the other is among the questions the impeachment court must resolve.

Why these four former justices matter

The selection of Panganiban, Puno, Azcuna and Davide brings considerable constitutional experience into the proceedings.

Davide’s participation carries particular historical significance.

As chief justice, he presided over the Senate impeachment trial of President Joseph Estrada in 2000 and 2001 — the first presidential impeachment trial in Philippine history to reach actual proceedings before the Senate.

Panganiban, Puno and Azcuna also participated in one of the Supreme Court’s landmark impeachment decisions.

In the 2003 case Francisco Jr. v. House of Representatives, the Supreme Court interpreted the Constitution’s one-year prohibition against initiating more than one impeachment proceeding against the same official.

The case arose from efforts to impeach Davide himself.

That history is especially notable because Panganiban, Puno and Azcuna later became outspoken participants in the legal debate surrounding Duterte’s earlier impeachment proceedings.

Their role on Sept. 16, however, will be different.

They are being invited to assist the impeachment court on a specific constitutional question rather than advocate for either Duterte or the House prosecutors.

A question that could reach Supreme Court

Some senator-judges have already suggested that the Supreme Court may ultimately have to settle the dispute.

Sen. JV Ejercito said he would prefer Supreme Court guidance, while other senators have raised similar concerns about the impeachment court itself interpreting a constitutional provision that could determine the outcome of the case.

The Constitution nevertheless grants the Senate the “sole power to try and decide all cases of impeachment,” giving the Senate broad authority over impeachment trials.

At the same time, previous Supreme Court decisions have established that constitutional limits governing impeachment can be subjected to judicial review.

The tension between those principles — the Senate’s exclusive trial power and the Supreme Court’s authority to interpret the Constitution — could become important if either side eventually challenges the impeachment court’s ruling.

Sept. 23 could settle the numbers

After hearing the former justices Sept. 16, the impeachment court is scheduled to hear oral arguments from the House prosecution panel and Duterte’s defense team on Sept. 23.

Both sides will be allowed to argue their interpretations of the constitutional requirement before the senator-judges decide Tulfo’s appeal.

Until that vote occurs, Escudero’s original ruling remains in effect. For now, the threshold is 16 votes to convict.

The eventual decision could reach far beyond Duterte’s case. It could establish how future Philippine impeachment courts count votes when vacancies, detention, illness, absence or other circumstances prevent some senators from participating — effectively determining whether the Constitution’s two-thirds requirement is an immutable number based on the full Senate or a threshold that can change with the legal composition of the tribunal.

For Duterte, however, the consequences are immediate.

A conviction on an article of impeachment would remove her from office, while the Senate may also impose disqualification from holding public office.

Duterte has denied the allegations against her and is contesting the charges before the impeachment court.