Three ex-chief justices tell senators: reality changes the impeachment math

Three of the four amici curiae invited by the Senate Impeachment Court agreed Wednesday, Sept. 16, that the two-thirds vote required by the Constitution to convict an impeached official is not fixed at 16.

On Day 26 of Vice President Sara Duterte’s impeachment trial, retired Chief Justices Hilario Davide Jr., Artemio Panganiban, and Reynato Puno agreed that automatically requiring 16 votes, regardless of the number of senators able to serve, defies common sense, tolerates absurdity, and defeats the spirit of the 1987 Constitution.

The three said the count should account for senators unable to discharge their functions because of legal incapacity, detention, suspension, or other circumstances.

Article XI, Section 3(6) of the Constitution requires the concurrence of “two-thirds of all the Members of the Senate” for conviction. The former chief justices argued that this does not necessarily mean an immutable 16 votes in every circumstance.

The dispute arose after Presiding Officer Francis “Chiz” Escudero ruled at the start of the trial that conviction requires 16 affirmative votes.

Senator-Judge Erwin Tulfo challenged that interpretation because four senators have not been participating in the proceedings: Loren Legarda, who is on medical leave abroad; Ronald “Bato” dela Rosa, who is at large; and detained senators Jinggoy Estrada and Rodante Marcoleta.

Davide submitted a written memorandum instead of appearing personally. In the memorandum, read by Clerk of Court Renato Bantug Jr., he specified five categories of senators who should not be counted in voting.

“The basis of computing the two-thirds must be the number of Senators who are qualified to vote. Not the 24 in the present Senate. All those disqualified by reason of causes earlier mentioned should not be included,” Davide said.

According to Davide, those who should not be included in the voting baseline are senators who have resigned or been expelled, those suffering from mental infirmity, those who are physically incapacitated, those who are outside of Philippine jurisdiction, in hiding, or evading arrest, and those facing legal restraints, preventive suspension, or detention due to charges under the Anti-Graft and Corrupt Practices Act or the Plunder Law.

Any interpretation that automatically counts such senators, Davide wrote, could “tolerate an absurdity, and perpetuate an injustice.”

Davide cited the Supreme Court’s 1949 ruling in Avelino v. Cuenco, although he acknowledged that the case involved a Senate quorum dispute rather than impeachment. He argued that its treatment of senators actually capable of acting could still guide the impeachment court.

Puno urged the court to adopt a “contextual and functional interpretation” of the provision, warning that a rigid reading could lead to unacceptable consequences when senators are legally or physically unable to perform their duties.

“This approach will give the senators the right to consider whether senators who are already dead, resigned, or expelled should still be counted in determining two thirds of all the members of the Senate,” Puno said.

Puno stressed that if the framers intended to require exactly 16 votes under all circumstances, the Constitution could simply have stated that number.

“But Article XI, Section 3(6) did not say so. Instead, the language used a fraction. It says two-thirds of all members of the Senate. By using two thirds, the number of votes to convict will have to move depending on certain factors,” he said.

“This approach will enable the senators to consider whether senators who are legally incapacitated, like senators charged with plunder, like senators under preventive suspension, should still be counted in determining the number of votes to convict,” Puno added.

“Reality, sometimes, Your Honors, changes the denominator in mathematics. In the same way, constitutional interpretation cannot always stop at 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,” Puno said.

Panganiban said 16 votes represents two-thirds of 24 “in the abstract,” but argued that the constitutional calculation “cannot always be reduced to abstract arithmetic.” He urged senator-judges to consider “truth and fairness” and a commonsense reading of the Constitution.

He warned against allowing senators who cannot participate in the proceedings to automatically inflate the denominator, saying constitutional interpretation must account for fairness to both the impeached official and the Filipino people.

“Is it truthful and fair to the parties, to our country, and to our people to allow those abroad, those looking at the pyramids along the Nile, or shopping in the fashion houses of Paris, or riding the romantic gondolas of Venice, or deliberately hiding in the dark corners of the world while everyone here is sweating it out?” Panganiban said.

“Mathematics, Your Honors, is an exact science in the abstract, but not always in reality. There’s a difference between abstraction and reality,” Panganiban said.

Panganiban also raised a separate question: whether senators who have been absent from the proceedings should be allowed to decide Duterte’s guilt or innocence.

“Is it truthful and fair to allow senators to cast their votes despite being absent from the proceedings?” Panganiban asked.

He cited senators who may be in hiding, abroad, legally detained, sick, hospitalized, or otherwise absent and who therefore may not have personally examined the documents, heard testimony, or observed witnesses.

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

Retired Associate Justice Adolf Azcuna was also tapped to give his views.

The former justices are serving only as amici curiae, or friends of the court. Their opinions are advisory and do not themselves change Escudero’s ruling.

The prosecution and defense are scheduled to present oral arguments on Sept. 23 before senator-judges vote on whether to retain or overturn the 16-vote ruling.

The outcome could determine not only the arithmetic of Duterte’s trial but how the phrase “all the Members of the Senate” is applied when senators are unable to participate.