Number of votes to convict the VP

By Michael Henry Yusingco, LL.M

We have a burning constitutional debate in our hands. It is about the last sentence of Article XI, Section 3 (6), “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.” Pertinently, the phrase “two-thirds of all the Members of the Senate” is repeated verbatim in the Senate Rules of Procedure on the Impeachment Trial. So, many are now arguing about what this line means for the impeachment of Vice President Sara Duterte.

The debate is specifically about how the voting threshold for convicting the impeached official should be determined. There are competing interpretations of the relevant constitutional provision. The two rules of interpretation in conflict are the following: 1) the plain-meaning rule or verba legis and 2) the no absurdity rule.

For the first rule, reference is made to Bolos vs. Bolos which provides:

“A cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. There is only room for application. As the statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is what is known as the plain-meaning rule or verba legis.”

Following this rule, the phrase “of all the Members of the Senate” would be interpreted in its literal sense. All members mean 24 senators because that is how many the “Members of the Senate” are as clearly provided in Article VI, Section 2: “The Senate shall be composed of twenty-four Senators…”

2/3 of 24 is 16. Thus, if verba legis is to be adhered to, the voting threshold to convict an impeached official is 16 votes. It will always be 16 regardless of how many senators are actually present during the impeachment trial. If only 23 senators sit as judges, 16 will still be the required number for conviction. If only 15 senator-judges conduct the trial, the plain-meaning rule will insist that 16 is still the conviction threshold.

The foregoing situation is very possible given that quite a number of senators can soon become detention prisoners or fugitives. Pertinently, this scenario will open the door to the absurd state of affairs wherein all 15 senator-judges voting to convict will not actually meet the conviction threshold. Despite the unanimous conviction vote, the impeached official will still get away scot-free.

This brings us to the second rule, explained in People of the Philippines vs. Panfilo M. Lacson:

“This Court should not adopt an interpretation of a statute which produces absurd, unreasonable, unjust, or oppressive results if such interpretation could be avoided. Time and again, this Court has decreed that statutes are to be construed in light of the purposes to be achieved and the evils sought to be remedied. In construing a statute, the reason for the enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose.”

Knowing that applying the verba legis rule can actually produce an absurd and unreasonable result, it cannot be used in interpreting the phrase “of all the Members of the Senate”. The no absurdity rule is more appropriate in this instance in order to respect “the intended scope and purpose” of the impeachment process. Which is to hold the highest officials of the land accountable after due trial.

Therefore, the voting threshold to convict cannot be fixed at 16 votes. The required number of votes for conviction has to be computed on the basis of the number of senator-judges actually present during the trial. This calculus is based on common-sense and precludes the occurrence of an absurd scenario like the one described earlier.

Obviously, the Senate will take a first crack at this constitutional debate. Any time now, they will have to revise their rules to clarify what conviction threshold they plan to apply in the impeachment trial of Vice President Sara Duterte. But whatever they do, this matter will most certainly be elevated to the Supreme Court for a final and definitive resolution.