Former Chief Justice Hilario Davide attends the Integrated bar of the Philippines (IBP) National Convention at the SMX Aura in Taguig City, Friday, July 13, 2018. Jonathan Cellona, ABS-CBN News/File
MANILA — Retired Supreme Court Chief Justice Hilario Davide Jr. said Wednesday that senators facing plunder charges or whose whereabouts are unknown should not be counted in determining the votes needed to convict an impeached official.
Davide was among the amici curiae, or friends of the court, who offered legal advice on the voting threshold in Vice President Sara Duterte’s impeachment case.
Unable to attend Wednesday's impeachment court session, Davide submitted a legal memorandum, a synopsis of which was read by Clerk of Court Renato Bantug.
Interpreting the phrase “all the Members of the Senate” under Section 3(6), Article XI of the 1987 Constitution, Davide said it excludes senators who cannot participate in impeachment hearings and deliberations because they are outside Philippine jurisdiction, their whereabouts are unknown, or they are in hiding.
He said the term also excludes senators who, “by reason of some legal impediments or restraints, cannot exercise or perform their rights and privileges,” including those facing plunder charges in court.
Also excluded are senators who have resigned or been expelled, or are unable to serve due to mental infirmity or physical incapacity.
"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, as read by Bantug.
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The impeachment court summoned amici curiae as it sought to resolve the issue recently raised by Sen. Erwin Tulfo, who asked whether senators who have not been present in the impeachment trial would still be allowed to vote on Duterte's acquittal or conviction.
Specifically, Tulfo sought to clarify Section 3(6), Article XI of the Constitution which states: "No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate."
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," Davide left the matter "to the conscience and sense of duty to those involved."
Davide also offered his interpretation of the Supreme Court case Avelino v. Cuenco, which he said was "not directly applicable in impeachment cases" but "may only provide some guiding light."
The decision in the case "was purely relative to the determination of quorum in a Senate exclusively acting as a legislative body," and not as an impeachment court.
The issue on conviction threshold is being tackled as some senators have largely been absent from the trial, including Sen. Ronald dela Rosa, who is in hiding for 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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