Impeachment court to hear oral arguments on voting threshold

Senator-judges on Wednesday will hear oral arguments from the impeachment prosecution and defense on the voting threshold needed to convict or acquit Vice President Sara Duterte.

According to Article XI, Section 3(6) of the 1987 Constitution, no person may be convicted in an impeachment trial without the concurrence of “two-thirds of all the Members of the Senate.”

Two-thirds of the 24-man Senate translates to 16 votes. 

However, two senators — Jinggoy Estrada and Rodante Marcoleta — were jailed on plunder charges before the trial while a third senator, Bato Dela Rosa, has been in hiding since November due to an International Criminal Court warrant for his arrest.

Batangas Second District Rep. Gerville Luistro, lead House prosecutor, earlier said the positions presented by three of four amici curiae or friends of the court —  ex-chief justices Reynato Puno, Artemio Panganiban and Hilario Davide Jr. — were “favorable for the prosecution.”

Davide said senators facing plunder charges or whose whereabouts are unknown should not be counted in determining the votes needed to convict an impeached official.

“Clearly then, the basis of computing of the two-thirds must be the number of senators who are qualified to vote, not the 24 in the present Senate. All disqualified by reason of causes earlier mentioned should not be included,” Davide said in his memorandum’s synopsis.

For Davide, a senator-judge who did not attend any court session “must be deemed to have never participated in the performance of the duties,” and should be included in the category of those outside of Philippine jurisdiction, in a foreign country and one whose whereabouts are unknown.

For senators who did not “substantially participate” in the proceedings, Davide left the matter “to the conscience and sense of duty to those involved.”

Panganiban said senator-judges should be guided by truth and fairness in resolving the conviction threshold question.

“Is it truthful and fair to allow senators to cast their votes despite being absent from the proceedings? Is it fair and truthful should the senators be allowed to vote, though they were there in hiding, abroad, legally detained, sick, hospitalized, or otherwise absent, and have not been able to access and examine the documents? Have not heard the testimonies, and have not observed the demeanor of the witnesses?” said Panganiban.

For Puno, the Senate impeachment court has the authority to interpret the constitutional provisions governing impeachment proceedings, including the rule on the number of votes needed to convict an impeached official.

“With all due respect to others with contrary opinions, I do not subscribe to the first school of thought in interpreting Article XI, Section 3(6) of the Constitution. This school of thought espouses the textualist approach. Its proponents give a provision of the Constitution a literal reading, a reading that is isolated from other related provisions of the Constitution,” Puno said.

“I respectfully submit, however, that it is inappropriate to give Article 11, Section 3(6) a stand-alone literal reading.”

Puno pointed out that the Constitution did not expressly say that 16 votes are required to convict.

But retired Supreme Court justice Adolfo Azcuna maintained that all senators should be counted in determining the voting threshold in impeachment cases, saying conviction requires a higher “proof of consensus” that guards against abuse.

“I respectfully submit, Your Honors, that the reference in this provision is to all members. As long as they are members of the Senate, they constitute the denominator and computing the threshold of two-thirds, because all means all,” Azcuna said.