Two-thirds

By Dean Jose Mari B.F.U. Tirol

The Senate has the sole power to try and decide all cases of impeachment, and when sitting for that purpose, the Senators shall be on oath or affirmation; no person shall be convicted without the concurrence of two-thirds of all the Members of the Senate (Constitution, Article XI, Section 3 [6]). The Senate is composed of twenty-four Members (Art. VI, Sec. 2).

The Senate is presently constituted as an Impeachment Court to conduct a trial over, and thereafter render a decision on the four charges against the Vice President enumerated in the articles of impeachment: misuse of confidential funds, unexplained wealth, bribery, and grave threats. A finding of guilt in one will be sufficient to remove her from office.

Two questions: how will the Senator-Judges determine the Vice President’s guilt? How many Senator-Judges need to vote in order for her to be removed from office?

As to the first, the Constitution does not set any quantum of evidence or burden of proof for conviction. And the Senate’s Rules of Procedure on Impeachment Trials does not prescribe a specific standard of evidence. Thus the Senator-Judges, in determining whether or not the Vice President is guilty, are not required to utilize any of the quantums of evidence (from substantial evidence, to preponderance of evidence, to clear and convincing evidence, to proof beyond reasonable doubt) that apply to administrative and judicial proceedings.

The Senator-Judges essentially have free rein as to whether or not, in their belief, the totality of the evidence to be presented will be sufficient to establish the guilt of the Vice President. But this does not mean that they are free to act as they please. The Constitution requires them to take their oath or affirmation as Senator-Judges; they must attend the trial for the reception of the parties’ evidence. For it is only by appreciating the evidence that they will be able to form their own opinions and conclusions concerning the four charges. And pursuant thereto perform their Constitutional obligation to cast their vote, whether to convict or to acquit.

As to the second, the threshold required to convict is a fraction, not a specific number. While there is no dispute about the fraction required for conviction (two-thirds), there is no unanimity about the specific number upon which it shall be based. In other words, what is meant by the phrase “all the Members of the Senate” in the impeachment trial?

While impeachment is a politico – judicial process in the legislative branch, any issue concerning the interpretation of the Constitution is within the exclusive realm of the judiciary, i.e. the Supreme Court.

The Supreme Court has not interpreted the two-thirds requirement for impeachment. But notably, the same phrase “two-thirds of all the Members of the Senate” appears in Art. VII, Sec. 21 of the Constitution as the threshold for a treaty or international agreement to be valid and effective.

In Bayan v. Executive Secretary (2000) the Supreme Court held that insofar as the Senate’s concurrence is concerned, two-thirds is “not less than sixteen (16) members, favorably acting on the proposal.”

Since the phrase “two-thirds of all the Members of the Senate” appears in both Art. VII, Sec. 21 and Art. XI, Secs. 2 and 3 of the Constitution, it would be easy to conclude that the two-thirds = 16 formula in Bayan automatically applicable to impeachment trials. The well-established rule in constitutional construction provides that no one provision of the Constitution is to be separated from all the others. But the rule also recognizes that the Constitution’s sections bearing on a particular subject should be considered and interpreted together.

While Bayan resolved the role of the Senate in international relations, impeachment is something else entirely: accountability and fitness to remain in office. The phrase “two-thirds of all the Members of the Senate” common to two separate provisions of the Constitution, cannot be detached from the said provisions’ particular subjects and purposes, which are different from each other. Their distinct contexts and dissimilar applications need no elaboration, and render it incorrect, unreasonable, and even absurd to invoke Bayan in impeachment trials.

The duty of the Senator-Judges is to hear the evidence and, based thereon, to decide. Since they cannot decline to render judgment, the inaction of those who failed to vote and/or have not taken their oath or affirmation, and of those who abstained, cannot be counted as votes for acquittal.

After all, the Constitution, a continuously operative charter of government, should not be interpreted as demanding the impossible or the impracticable; unreasonable or absurd consequences, if possible, should be avoided (Civil Liberties Union v. Executive Secretary [1991]). A literal interpretation is to be rejected if it would be unjust or lead to absurd results (Automotive Parts v. Lingad [1969]).

This is akin to the internal rules of another collegial court: the Supreme Court. Under Rule 12 Section 1(a) thereof, all decisions and actions in Court en banc cases shall be made upon the concurrence of the majority of the Members of the Court who actually took part in the deliberations on the issue or issues involved and voted on them.

All parties, not just the respondent Vice President, are entitled to due process. The two-thirds threshold in impeachment trials must be based on nothing more than the total number of actual votes, whether to convict or to acquit, cast by Senator-Judges who had taken their oaths or affirmations and who were actually present during trial. This is logical, legal, and gives full life to the principle of accountability of public officers.