The Philippine Judicial Academy's Adolfo Azcuna during the house hearing on the probable cause of impeachment of Chief Justice Maria Lourdes Sereno on February 27, 2018. Mark Demayo, ABS-CBN News/File
MANILA — Retired Supreme Court Associate Justice Adolfo Azcuna maintained Wednesday 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.
Azcuna was among the amici curiae or "friends of the court" selected by the Senate to offer legal opinions on the voting threshold needed to convict an impeached official in connection with Vice President Sara Duterte's impeachment trial.
"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.
He was referring to Section 3(6), Article XI of the 1987 Constitution which states: "No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate."
The provision has raised questions over the conviction threshold because some senators have been largely absent from the impeachment proceedings, prompting debate over whether they should be counted as part of "all the Members of the Senate."
For Azcuna, the two-thirds threshold should still be based on all members of the 24-person Senate, given the gravity of impeachment.
"A decision this consequential and a decision this hard to undo warrants a higher threshold of agreement than routine business," he said, describing the higher impeachment threshold as a "supermajority."
"The Senate, sitting as an impeachment court, is exercising a quasi-judicial function layered on top of a political one and the gravity of such function justifies a heightened standard of proof of consensus," he added.
He said a supermajority rule ensures against "factional and partisan abuse" because a "simple majority threshold" could make impeachment conviction "achievable by whichever coalition happens to control the chamber at any given moment."
"The clause deliberately anchors the threshold to two-thirds of all the members of the Senate, not merely the two-thirds of a quorum present at trial," he said.
Raising his point on the Supreme Court case Avelino v. Cuenco, Azcuna said the decision in the case was not applicable in the Senate impeachment court because "it was decided on the basis of the 1935 Constitution where the wording involved is different."
"It involved quorum and the quorum requirement under the 1935 Constitution says majority of the Senate, it didn't say all the members," he said.
Azcuna also left it up to the senator-judges to decide whether a colleague "did not attend or substantially participate" in the proceedings could vote.
"I believe, Your Honor, that this is an internal matter that should be decided by the Senate according to its own wisdom," he said.
LIVE UPDATES: Vice President Sara Duterte's Impeachment Trial (Day 26)
But for Azcuna, a senator participated in the trial but missed only "some of the trial" should still be allowed to cast a vote.
"I would allow such a person to vote because this tribunal is a tribunal of record. The proceedings are recorded. Someone who is absent in some of the trials can easily check what the witnesses testified to based on the transcript," he said.
The impeachment court is also set to hold oral arguments on September 23 to hear the views of the prosecution and defense, followed by a vote by the senator-judges on the matter.
Sen. Ronald dela Rosa has been absent from the proceedings after he went into hiding while being wanted by the International Criminal Court for his role in President Rodrigo Duterte's drug war.
Sen. Jinggoy Estrada and Sen. Rodante Marcoleta are currently in detention over plunder cases, while Sen. Loren Legarda is on medical leave.
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