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Four amici curiae or "friends of the court" on Wednesday offered their legal opinions to help the Senate impeachment court settle a question: What is the least number of votes needed to convict Vice President Sara Duterte? Maria Tan, Jonathan Cellona, and Mark Demayo, ABS-CBN News/File
MANILA — Four amici curiae or "friends of the court" on Wednesday offered their legal opinions to help the Senate impeachment court resolve questions surrounding the conviction threshold following absences from several members of the 24-seat chamber.
Here is the transcript of their speeches.
RETIRED CHIEF JUSTICE HILARIO G. DAVIDE, JR MEMORANDUM
(SYNOPSIS RELAYED TO THE COURT BY CLERK OF COURT RENATO BANTUG)
NUMBER ONE, WHETHER THE PHRASE “ALL MEMBERS OF THE SENATE” IN ARTICLE XI, SEC. 3 (6) OF THE CONSTITUTION SHOULD REFER TO THE SENATE'S FULL MEMBERSHIP OF TWENTY-FOUR SENATORS OR ONLY TO THOSE WHO ARE LEGALLY AND PHYSICALLY CAPACITATED TO PARTICIPATE AND VOTE ON THE FINAL QUESTION IN AN IMPEACHMENT TRIAL.
I was one of the Delegates to the 1971 Constitutional Convention which drafted the 1973 Constitution, and one of the Commissioners of the Constitutional Commission of 1986 which drafted the 1987 Constitution of the Philippines. There was no debate on this subject during the deliberations in both the 1973 Convention and in the Constitutional Commission of 1986. It was presumed and assumed that when the Constitution mentioned “two-thirds” of all the Members of the Batasang Pambansa in the 1973 Constitution and of the Senate in the 1987 Constitution, or three-fourths of all the Members of the Senate in the 1935 Constitution, the word MEMBERS refers to LIVING PERSONS WHO ARE NOT SUFFERING FROM ANY MENTAL, PHYSICAL OR HEALTH CONDITIONS WHICH RENDER THEM INCAPABLE OF EXERCISING THEIR POWERS OR PERFORMING THEIR DUTIES AS SENATORS, OR WHO ARE PHOHIBITED TO DO SO BY REASON OF SOME LEGAL RESTRAINTS OR IMPEDIMENTS. THIS IS THE SPIRIT OF THE PROVISION. It could not be otherwise. Any interpretation to the contrary would defy reason, logic and common sense; tolerate an absurdity; and perpetuate an injustice.
The framers of the Constitutions of 1935, 1973 and 1987 could never have intended to include in “ALL MEMBERS” Senators in a given Congress the following: (1) those who have resigned or have been expelled; (2) those who suffer from any mental infirmity as, for instance, those in any state of insanity or who are suffering from Alzheimer; (3) those who are suffering from any physical incapacity, such as the deaf and the dumb, the blind, or those in hospitals or at home suffering from terminal cancer or are in comatose condition, or under tracheotomy; (4) those who cannot participate in the hearings and deliberations on the impeachment, such as those who are outside the jurisdiction of the Philippines, or whose whereabouts are unknown or in hiding to avoid arrests; and (5) those who by reason of some legal impediments or restraints, cannot exercise or perform their rights and privileges as a public official or, more specifically, as a Senator.
The last group include those who are charged in court for Plunder defined in and penalized by Republic Act No. 7080, approved on July 12, 1991; and for violation of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019); and those who are facing criminal charges in court or have been convicted and are serving their sentence.
We also have decisions of the Supreme Court which clearly decree that public officers facing criminal cases in court cannot, during the pendency of their cases, practice their profession nor hold office, elective or appointive while in detention.
CLEARLY THEN, THE BASIS OF COMPUTING THE TWO-THIRDS MUST BE THE NUMBER OF SENATORS WHO ARE QUALIFIED TO VOTE. NOT THE TWENTY-FOUR (24) IN THE PRESENT SENATE. ALL THOSE DISQUALIFIED BY REASON OF CAUSES EARLIER MENTIONED SHOULD NOT BE INCLUDED.
NUMBER TWO, WHETHER OR NOT THE CASE OF JOSE AVELINO V. MARIANO J. CUENCO (G.R. NO. L-2821, 4 MARCH 1949), PARTICULARLY ITS TREATMENT OF MEMBERS BEYOND THE COERCIVE JURISDICTION OF THE SENATE, APPLIES IN DETERMINING WHETHER SENATORS WHO ARE DETAINED, ABROAD, SUSPENDED, OR WHOSE WHEREABOUTS ARE UNKNOWN, ARE INCLUDED IN THE PHRASE “ALL THE MEMBERS OF THE SENATE” FOR PURPOSES OF THE TWO-THIRDS VOTE REQUIRED UNDER ARTICLE XI, SEC 3(6) OF THE CONSTITUTION.
The primary question that confronts us in this issue is whether the decision in Avelino vs. Cuenco is applicable in Impeachment cases. The undersigned respectfully submits that it is not directly applicable in Impeachment cases. However, by analogy, it may only provide some guiding light. It was a divided Supreme Court of eleven members – a Chief Justice and ten Associate Justices (Sec. 4, Article VIII, 1935 Constitution).
The matter in issue in this Avelino vs. Cuenco case was purely relative to the determination of quorum in a Senate exclusively acting as a legislative body, and performing exclusively legislative functions, and not as an Impeachment Court.
At the session of the Senate on February 21, 1949, Senators Sotto and Confesor were absent. The first was confined in a hospital and the second was in the United States. Effectively then there were only 22 Senators. A majority of the 22 Senators would only be 12. Respondent Cuenco was elected by 12.
May this decision in Avelino vs. Cuenco be applied in a Senate acting as an Impeachment Court? The Impeachment Court can consider this as having a persuasive value. Nevertheless, in light of the disquisitions above on the first issue, we now can conclude that those who are detained, abroad, suspended or whose whereabouts are unknown cannot be included, or must be excluded, from the phrase “all the Members of the Senate.”
Number three, WHETHER OR NOT A SENATOR-JUDGE WHO DID NOT ATTEND OR SUBSTANTIALLY PARTICIPATE IN THE IMPEACHMENT PROCEEDINGS AS TO, AMONG OTHERS, PROPOUND QUESTIONS TO AND OBSERVE THE DEMEANOR OF WITNESSES, MAY NEVERTHELESS VALIDLY CAST A VOTE ON THE FINAL QUESTION IN AN IMPEACHMENT TRIAL.
This issue is not easy to answer.
Nevertheless, the undersigned will do so with the preliminary statement that the Senators, now addressed as Judges, in an impeachment case are, in conscience, duty-bound to think, believe, act and behave as Judges in the contemplation of the Constitution. They are thus to have in their favor the presumption that they possess or must possess the virtues of “proven competence, integrity, probity and independence. ” These are what the Constitution requires of a justice or judge under Section 7, Paragraph 3 of Article VIII of our 1987 Constitution.
Each must, as well, be guided by the Oath of Office he or she took as a
Senator-Judge. Accordingly, a Senator-Judge who did not attend any session of the Court for any reason whatsoever or who never acted or performed the duties as a Senator-Judge must be deemed to have never participated in the performance of the duties as such. He should belong to the category of those who are outside the jurisdiction of the Philippines or in a foreign country or one whose whereabouts are unknown.
As to those who did not substantially participate in the impeachment proceedings, the undersigned leaves this matter to the conscience and sense of duty to those involved. They must never forget that they are public officials who are solemnly bound to observe and practice Section I of Article XI of the Constitution on Accountability of Public Officers, which reads: “Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.”
I wish to underscore, however, that failure to ask questions on the witnesses is not proof of non-participation. As judges, they should even refrain from asking questions except to clarify a point. Judges are to be present at all times and to listen to and reflect on the testimonies of witnesses.
RETIRED CHIEF JUSTICE ARTEMIO V. PANGANIBAN
Since I will submit a copy of my written brief to you, your Honors, and together with my column on the Philippine Daily Inquirer, August 17, 2026. Titled "Two-thirds," I will confine my remarks today to only four points.
POINT ONE. As it’s generally known, an impeachment trial in the Senate is sui generis, Latin words that mean of its own kind or unique. It has both legal and political connotations. Pursuant to its legal character, the honorable senators conduct the trial in accordance with the law and evidence and the rules of court. Witnesses are examined by eagle-eyed lawyers ready to overwhelm them. Our people see senators garbed in their majestic crimson robes, lawyers arguing as if they were in a judicial courtroom. Politically, on the other hand, the composition is not confined to lawyers or jurists. Rather, its membership is open to elected political leaders who need not obtain formal legal education, need not pass the excruciating bar examination and need not be scrutinized by the Judicial and Bar Council. Your honors are not sitting here as justices or lawyers. Truly, the Constitution does not require you to be lawyers or jurists. Neither are your honors expected to act like jurists or lawyers.
Notably, senators in the United States of America trying impeachment cases do not ape judges. They do not even wear judicial robes. Instead, they are garbed in their normal attire. But in this hall, you have deemed it necessary and proper that you are garbed in judicial robes. That's why, in my case, I want to honor also this honorable court by being garbed in my judicial robe.
POINT TWO. The Constitution, as has been stated by the honorable presiding officer, states and I quote, The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the senator shall be on oath or affirmation, which already have done. And then critically, no person shall be convicted without the concurrence of two-thirds of all the members of the Senate. Close quotation.
How do judges and justices interpret the provisions of the Constitution and for that matter, of laws. There are two major ways or methods. The first method is called verba legis. Words are plainly read and given their ordinary meanings. In such cases, there is, to quote the Supreme Court of the Philippines, no need for interpretation but only application of the provisions. Close quotation. The Senate, as we all know, has 24 members under the Constitution. Two-thirds of 24 is mathematically 16. Therefore, 16 votes are necessary to convict. If we must use mathematics. Indeed, mathematics, Your Honors, is an exact science in the abstract. To repeat, in the abstract. Why? Because 2 plus 2 is always 4 in the abstract. Three plus 3 equals 6. Two times 10 equals always 20. Therefore, 24 multiplied by two-thirds is always 16 in the abstract. But not always in reality. There's a difference between abstraction and reality. For example, your honors, very simple. One small drop of water when put together with another small drop of water may become one bigger drop of water. So in reality, it is one big drop of water.
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.
Which brings us to the second method of interpretation, the ratio legis est anima or to quote the Supreme Court, the reason of the law is the soul of the law. Close quotation. The text must be understood within its constitutional ambiance. To shorten my presentation as we have time limits, I will leave it to my more learned retired colleagues, here present, the jurisprudence on these two ways of interpretation. However, Your Honors, I have included in the footnotes of my presentation the jurisprudence beginning with the 1924 case of Fuentes versus Director of Prisons and the often quoted 1949 case of Avelino versus Cuenco, which is only the second, not the first, Your Honor, on this issue. Although in the case of Fuentes, this was decided prior to the Constitution, but under the Jones Law, which was the enabling act of the Philippines at that time in 1924. From the case of Avelino versus Cuenco, there are several other cases, up to the 2026 case of Generillo versus Senate. With which your honors must be familiar, since it also involves the present Senate and the present Vice President.
Relevantly, your honors may ask, should the interpretation of the drafters of the Constitution prevail? With due respect, not necessarily. In our Constitutional allocation and separation of powers and the principle of checks and balances, the makers of the law are not the final authorities on interpretation. That delicate task is lodged in an independent branch of government, the judiciary, and in the present case, the Honorable Senate.
POINT THREE. Which of the two modes of interpretation should the Senate use in discharging its constitutional duty to try and decide impeachment cases? I respectfully submit, Your Honors, that it is neither. Repeat. Neither of the two. Why? Because, as I already said, senators are not jurists. They are not even lawyers. Some of you may be lawyers, but you're not called here to decide as lawyers. You're called upon by the Constitution to decide as lawmakers. In fact, Your Honors, you need not even use language or methods of magistrates with due respect. You are elected as representatives at large of the entire electorate. You are the co-equals of the justices of the Supreme Court. So how then should the Constitution be interpreted by the Honorable Senators?
In my humble opinion, in accordance with their mandate as representatives of the people, especially reflecting the common sense of the people, guided by two fundamental standards, namely truth and fairness. Truth and fairness. The standard of truth that is culled from facts extracted, one, from studying and verifying the documents and papers submitted by the parties and two, from hearing witnesses and observing their demeanor on the stand in front of you. The tweaks of their eyes, their body language, the tone of their voices, and the spontaneity of their answers. By watching and listening to them face to face, your Honors would know whether the witnesses are telling the truth, the whole truth, and nothing but the truth. Fairness, on the other hand, demands that we hear before we condemn, and that all sides are given the opportunity to explain their language and actions. It is what lawyers call due process, and what ordinary people believe as fairness. As the Greek philosopher, Themistocles, who was not a lawyer, once said, and I quote, “Strike me as you may, but hear me first.” Truly, I respectfully submit that active participation and independent evaluation of the evidence are essential to discharge the Senate's and the senators' constitutional responsibility.
POINT FOUR. Is the judgment of the Senate based on truth and fairness appealable to the Supreme Court? My respectful answer is a big no. Because there is no constitutional provision allowing such an appeal. The Senate's decision is final and unappealable.The only way by which the court can review a Senate decision or order is when the Senate commits grave abuse of discretion. Repeat: Not just ordinary abuse of discretion, but grave abuse of discretion. Grave abuse of discretion, Your Honors, is not defined by the Constitution. But jurisprudence characterizes it as, if I may quote, “capricious or whimsical or arbitrary exercise of judgment amounting to lack or excess of jurisdiction.” In simpler terms, the court does not review the Senate's judgment, merely because the court disagrees with the judgment, merely because the court disagrees with the wisdom of the judgment. No, judicial review arises only when the Senate exercises its power in a capricious, whimsical, or arbitrary manner, thereby going beyond the limits of its constitutional authority. Thus, the Senate must hear the prosecution and the defense witnesses, as it already does, allow their councils to argue verbally and in writing, and study their presentations deeply. Only thereafter should it issue its orders and decisions. In this connection, 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?
To put it more picturesquely, Your Honor, 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, everyone here in this hall, is sweating it out, listening to sometimes irrelevant and loquacious lawyers or to humble an ancient amicus curiae like me.
To conclude, Your Honors, may I say that you are tasked with a constitutional duty that cannot always be reduced to abstract arithmetic. Neither can such duty be performed in the shadows of absence, nor from legal impediments. As the elected representatives of the Filipino people, Your Honors mandate, in my humble opinion, demands a commonsensical, commonsensical, I repeat commonsensical interpretation of the Constitution. Indeed, meaningful adjudication requires active participation in the search for truth and fairness. I respectfully submit that only in this manner can your honors ensure a verdict that is fair to the parties, fair to your honors' peers, and ultimately fair to our sovereign people. Maraming salamat po muli sa inyong paanyaya at masusing pakikinig sa inyong abang lingkod. Maraming salamat po.
RETIRED SUPREME COURT CHIEF JUSTICE REYNATO PUNO
I thank your honors for the invitation to speak before you as an amicus. I humbly apologize for not preparing a PowerPoint presentation. I was able to write out my thoughts on the issues confronting us only late last night. I will be happy, however, to submit a more extended, amicus brief if required by your honors.
Before expressing my view on the proper interpretation of Article 11, Section 3.6 of the 1987 Constitution, let me address a vital issue raised by even some members of this court. The question is asked, whether this impeachment court has any power to interpret the meaning of that sentence, “No person shall be convicted without the concurrence of two-thirds of all the members of the Senate.”
My respectful submission, Your Honors, is that the Senate as an impeachment court possesses the power to interpret the meaning and nuances of that sentence. That power is derived from Articles 11, Section 3.6 of the Constitution itself, which expressly provides “The Senate shall have the sole power to try and decide all cases involving impeachment. Please note the use of the word ‘sole,’ which means the only body that can try and decide all cases involving impeachment.”
The sole power to try and decide necessarily includes the lesser power to promulgate the rules that will govern the trial and decision of impeachment cases. The objection is made that given that power to interpret, the senator-judges may change the literal meaning of the number of judges that can convict and therefore violate the Constitution. Again, with due respect, the literal interpretation of the threshold number of votes to convict is just one school of interpretation that follows the principle verba legis non est recedendum. Meaning, from the words of the law, there shall be no departure.
But your honors, there is another school of thought that follows a different approach when interpreting a constitutional provision. The proponents of this school of thought adopt the contextual approach or the holistic approach which requires the interpretation of other related and relevant provisions of the Constitution to determine the intent and purpose of the people. Both interpretations have constitutional support.
Next, Your Honors, let me address the thesis that the Supreme Court alone has the power to interpret Article 11, Section 3.6 of the Constitution. Again, this thought requires a proper understanding of the constitutional provision giving the Senate the sole power to try and decide impeachment cases.
The power granted to the Senate impeachment court by the Constitution is judicial power, the power to adjudicate. The power to decide cases. In discharging this judicial power, the Senate impeachment court is not under the Supreme Court. The senator judges are not like the judges of the regular courts of law who are all under the supervision of the Supreme Court. It is for this reason, Your Honors, that the Senate impeachment court was granted judicial power under Article 11, Section 3.7 of the Constitution entitled Accountability of Public Officers.
Its judicial power was not granted under Article 7 of the Constitution entitled Judicial Department. Article 7 entitled Judicial Department contains an exhaustive discussion of the powers of the Supreme Court. Nowhere does it explicitly appear in Article 7 that the Supreme Court can review the rules of the Senate impeachment court. Nowhere does it appear in Article 7. That the Supreme Court can review how the Senate should conduct its trial. Nowhere does it appear in Article 7 that the Supreme Court can review the evidence of the parties given in the impeachment court. Nowhere does it appear in Article 7 that the Supreme Court can review how the Senate impeachment court should decide impeachment cases.
In general, your honors, all these questions are to be resolved alone by the Senate impeachment court because it is the sole judge to try and decide impeachment cases.
The decisions of the Senate impeachment court on these matters are what we call political questions. Questions that are addressed to the wisdom of the senator judges. Questions that are policy matters which the senator judges alone should decide. Having said that, your honors, let me, however, emphasize that not all the actions taken by the Senate impeachment court in the exercise of its sole power to try and decide impeachment cases are political in character.
There are certain actions which cannot be categorized as political in character. And these actions can be reviewed and struck down by the Supreme Court as unconstitutional. And therefore, null and void.
One such action, Your Honor, is when the Senate impeachment court unjustifiably denies some of its members the right to sit as judges in the impeachment court. Another is an action of the impeachment court that denies a respondent the right to be judged by fair and impartial judges. The denial of these rights will violate the respondent's right to both substantive and procedural due process guaranteed by the Constitution. The denial of these rights is reviewable by the Supreme Court. They do not involve political questions. And again, I warn that the review by the Supreme Court can result in the annulment of the proceedings in an impeachment case, in the nullity of the decision, in the dismissal of the case against any respondent.
I stress all these, your honors, to emphasize the importance of correctly interpreting the meaning of the word members in Article 11 Section 3 of the Constitution which provides “No person shall be convicted without the concurrence of two-thirds of all the members of the Senate.”
Your Honors, let me now proceed to discuss the three questions posed to us as amici.
The first question is whether the phrase “All members of the Senate” in Article 11, Section 3.6 of the Constitution, should refer to the Senate's full membership of 24 senators or only to those who are legally and physically capacitated to participate and vote on the final question in an impeachment trial.
With all due respect to others with contrary opinion, I do not subscribe to the first school of thought in interpreting Article 11, 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. Its origin is traced to the Latin maxim, index animi sermo, or speech is the index of intention.
I respectfully submit, however, that it is inappropriate to give Article 11, Section 3 (6), a stand-alone literal reading. If we give this kind of reading to Article 11, Section 3 (6), the threshold of 16 senators to convict will be fixed and immutable. However, if that is the intent, Article 11, Section 3.6 should have simply stated, that the number of votes to convict is 16, period. But Article 11, 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. But more than that, your honors, a strict, stand-alone, literal interpretation of Article 11, Section 3.6 may result in absurdities and may result in injustices which will defeat the purpose of the Constitution.
For these reasons, I join the school of thought that espouses what is known as contextual and functional interpretation of the Constitution. This interpretation is contextual because Article 11 Section 3.6 is interpreted not in isolation but in relation to other provisions of the Constitution in order to give light to its purpose. It is functional, because it will give the senators the flexibility to consider circumstances that will legally prevent a senator from functioning as a member of the Senate.
Thus, Your Honors, 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. Also, this approach will enable the Senators to consider whether
Senators who are legally incapacitated, like the senators charged with plunder, like senators under preventive suspension, should still be counted in determining the number of votes to convict, that is, two-thirds of all the members of the Senate.
As well expressed in various decisions of our Supreme Court, the provisions of the Constitution should not be interpreted narrowly or pedantically for the prescriptions therein are not mathematical formulas. Hence, its words are not to be construed to yield fixed and rigid answers but as impressed with the necessary attributes of flexibility and accommodation to enable them to meet adequately what problems have in store.
Let me go to the second issue. Whether or not the case of Jose Avelino versus Mariano Cuenco, particularly its treatment of members beyond the coercive jurisdiction of the Senate, applies in determining whether senators who are detained, abroad, suspended, or whose whereabouts are unknown are included in the phrase “All the members of the Senate” for purposes of the two-thirds vote required under Article 11, Section 3.6 of the Constitution.
Strictly speaking, Your Honors, the Avelino case cannot be cited as a perfect precedent that will resolve the problem of how to properly interpret Article 11, Section 3.6 of the 1987 Constitution. First, what was resolved in Avelino is the right number to constitute a quorum, not the right number to convict a respondent in an impeachment case.
Second, what was interpreted in Avelino is a constitutional provision that is differently worded, that is, “a majority of each house shall constitute a quorum to do business, etc.”
Third, Avelino addressed only the problem of an absent senator outside the coercive jurisdiction of the Senate. And fourth, The ratio decidendi of the Avelino decision is not as solid, not as clear, as it has to be deduced from the different opinions of the participating justices. Be that as it may, your honors, its treatment of a member beyond the coercive jurisdiction of the Senate can be used as one of the tests in interpreting Article 11, Section 3.6 of the 1987 Constitution. It fits the approach of the contextualist, functionalist school of thought that disfavors the literal approach which straightjackets and prevents the use of other relevant provisions of the Constitution as additional lens to discover its spirit and intent.
I go, Your Honors, to the last and the third issue: Whether or not a senator-judge who did not attend or substantially participate in the impeachment proceedings, as to among others, propound questions too and observe the demeanor of witness may nevertheless validly cast a vote on the final question in an impeachment trial.
To reiterate, the primary reason why I adhere to the contextual functional school of thought is because of its holistic approach in interpreting a particular provision of the Constitution. This school of thought teaches us that the meaning of a particular word should be understood in the light of other provisions in the Constitution relevant to it.
Thus, the word member, member senators, who will determine the guilt or innocence of a respondent in an impeachment case must be understood in the light of the function that they will discharge. More specifically, they will be acting as judges to try and decide impeachment cases. As judges, they must possess special qualifications. They must be independent, fair, and impartial. This is demanded by the due process provision of the Constitution, which, Your Honors, is found in a different article of the Constitution. That is Article 3, Section 1, which provides, “No person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied the equal protection of the laws.”
A respondent in an impeachment case is also entitled to be tied by an independent and impartial tribunal. This right is universally recognized. Article 10 of the “Universal Declaration of Human Rights” provides “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal.” This right to an independent and impartial tribunal is also mandated by the “International Covenant on Civil and Political Rights” in its Article 14(1).
The Philippines is a signatory to these two documents already ratified by all civilized nations. They are parts of international law and we are duly bound to implement them. For this reason, Article 2, Section 2 of our 1987 Constitution provides “the Philippines adopts the generally accepted principles of international law as part of the law of the land.” Again, Your Honors, these requirements of fair and impartial judges and independent tribunal are provided in different articles of the 1987 Constitution. You will not find this in Article 11, Section 3 (6) of the Constitution. And so my respectful submission is that they should be considered in determining the proper meaning of the word member who will try and decide impeachment cases or so on to Article 11, Section 3.6 of the Constitution. Your Honors, to allow a member senator to try and decide an impeachment case who is not fair and impartial, to subject a respondent in an impeachment case and to allow him to be tried and adjudged by a tribunal that is not independent or by a tribunal that is biased and prejudiced will have far-reaching consequences.
The whole proceedings can be challenged as a patent nullity, including any judgment of conviction on the ground of denial of substantive and procedural due process. To quote our Supreme Court, “such a judgment is an outlaw that should be slain at sight.”
Your honors, the particular issue raised in the third question is whether or not a senator-judge who did not attend or substantially participate as to among others propound questions too and observe the demeanor of witnesses can vote whether to convict or acquit a respondent in an impeachment case.
This our question now, your honors, is just a subset of the requirements of fair and impartial judges and independent tribunal, requirements demanded by due process. I will not tarry on this subset for lack of time. But I ask your honors to take into consideration the following principles and practices to determine the facts of a case: A judge need not personally see the demeanor of a witness, although that is ideal. Thus, an RTC judge who succeeds another RTC judge can decide the cases left by the latter, even if the succeeding judge did not personally hear some of the witnesses who have previously testified. The succeeding judge can rely on the testimony of witnesses as reflected in the transcripts of stenographic notes.
So it is with justices of the Court of Appeals. So it is with justices of the Supreme Court. They just review the testimonies of witnesses reflected in the records of the case. Among others, the transcripts, the affidavits, and other documentary evidence. Also, Your Honors, may consider that today, witnesses are allowed to give their testimonies online. Case law tells us that testimonies given online do not violate the right of an accused to confront witnesses against him on a face-to-face basis.
Your Honors, we cannot exhaust discussing all the constitutional dimensions of Article 11, Section 3.6 of the Constitution. They involve issues of first impression. The deliberations of the 1935, 1973, and 1987 constitutions did not discuss the issues now before us. More so with the decisions of foreign courts with comparative provisions in their constitutions. And this, Your Honors, includes decisions of the International Court of Justice and decisions of the International Criminal Court.
As I stated, Your Honors, there is no correct or wrong decision on these issues. There is only a preferred decision. Marami pong salamat.
RETIRED SUPREME COURT JUSTICE ADOLFO S. AZCUNA
Honorable Senate President Gatchalian, Honorable Senate Presiding Officer Escudero, Honorable Senator-Judges, my esteemed colleagues when we're in the Supreme Court. The Prosecution and Defense Panels, good morning and thank you for the invitation for the first ever Amicus Curiae, invited by an impeachment court in our history. I am here to answer the questions as a friend of the court, representing neither party and expressing my personal opinion on the constitutional and legal issues propounded by the advisory of the court to me. Your Honors, the first question is whether the phrase, “all the members of the Senate,” in Article 11, Section 3, Subsection 6 of the 1987 Constitution, should refer to the Senate's full membership of 24 senators or only to those who are legally and physically capacitated to participate and vote on the final question in an impeachment trial. I respectfully submit, Your Honors, that the reference in this provision is to all members of the Senate. As long as they are members of the Senate, they constitute the denominator in computing the threshold of two-thirds because all means all. To start with, Your Honors, impeachment is a political-judicial hybrid exercise. It is not an ordinary voting procedure. Impeachment removes a sitting, popularly accountable official, often directly elected before the end of a fixed term. Unlike ordinary legislation, Your Honors, which can be revised, amended or repealed, a conviction in an impeachment case is final and largely irreversible. The official is removed and in many systems, disqualified from future office. A decision this consequential and a decision this hard to undo warrants a higher threshold of agreement than routine business – just as constitutional amendments, treaty ratification, and expulsion of a sitting senator require super majorities. 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. The supermajority rule protects against factional and partisan abuse. The framers of the “supermajority impeachment clause” were reacting to a specific fear that impeachment could become a tool for a transient legislative majority to remove a political rival or an official from a disfavored party, effectively overturning an election result through legislative fiat rather than through the ballot box. A simple majority threshold, Your Honor, should make impeachment conviction achievable by whichever coalition happens to control the chamber at any given moment, collapsing the distinction between removable for cause and removable because we have the votes.
Requiring two-thirds forces conviction to rest on a coalition that cuts across ordinary partisan lines, which is precisely the point. It signals that the wrongdoing is serious and broadly, not merely factionally, recognized. It preserves separation of powers and checks legislative overreach. Impeachment already concentrates significant powers on the legislature. It is simultaneously the accuser, the prosecutor, and the judge. Without an internal check, the concentration of powers would allow the legislative branch to dominate the executive and the judicial branches simply by threatening or wielding removal. The two-thirds requirement functions as an internal check. It disperses the power to convict widely enough that no single faction, however large, can unilaterally topple another branch of government. In this sense, the supermajority rule is not an obstacle to accountability. It is part of the system of accountability assuring that the impeachment power itself is exercised responsibly. It encourages deliberation over expediency. A conviction requiring broad consensus compels senators to sustain a case that persuades across functional lines which in turn incentivizes a more thorough evidence-based process rather than a rushed or emotionally charged one. Lowering the threshold to simple majority would reward speed and numbers over persuasion and proof and would make the trial phase in the Senate largely redundant. If the outcome is preordained by whichever party holds a bare majority, the trial becomes a formality rather than a genuine deliberative check. Finally, Your Honors, the two-thirds of all members, all members, stand their guards against a thin and unrepresentative conviction. 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. This is a stricter and more demanding base than the rule that governs ordinary legislation because the difference is intentional rather than accidental. In conclusion, Your Honors, what we mean by supermajority is that the vote needed to convict must be more than simple majority. It cannot be one-half plus one. In our case, our framers of the Constitution, not just 1987, way back 1935, wants it to be two-thirds, in the case of 1935, three-fourths of all the members of the Senate, all. That is because we need a supermajority because of the gravity of the exercise.
Basing the denominator on only those who actually participate and are present can effectively reduce the two-thirds to a simple majority. For example, if there's only 20 who are participating, two-thirds of 20 would effectively become 13 or 14. So that would be really simple majority. That is not the purpose of the internal check of a threshold. A threshold must be fixed, not variable. It must be determinable from the start. It cannot be something that will be figured out as we go along depending on how many are present. So the two-thirds concurrence requirement is not a technicality, it's not a flow of drafting. It reflects a deliberate judgment that impeachment conviction, final, disqualifying, and capable of overturning the choice of the electorate, should require a demonstrated cross-factional consensus rather than the assent of a bare majority. It is this feature more than any other that keeps impeachment a remedy for genuine and serious misconduct rather than a routine weapon of partisan competition. For these reasons, this humble representation sustains the view that no person shall be convicted in an impeachment case without the concurrence of two-thirds of all the members of the Senate. As to the other questions, Your Honor, the Avelino v. Cuenco case is not applicable here because to start with, it was decided on the basis of the 1935 Constitution where the wording involved was different. It involved quorum and the quorum requirement under the 1935 Constitution says majority of the Senate. It didn't say all the members, yes, majority of the Senate. And so it's not applicable whatever interpretation of that majority of the Senate for purposes of quorum is different from the two-thirds of all the members of the Senate required in impeachment cases. As to whether or not, a difficult question, someone, one of you, who has not attended all the hearings, I will quote it. “Whether or not a senator-judge who did not attend or substantially participate in the impeachment proceedings asked among others profound questions to and observed the demeanor of witnesses may nevertheless validly cast a vote on the final question in an impeachment trial.” I believe, Your Honor, that this is an internal matter that should be decided by the Senate according to its own wisdom. The voting, this voting now, this is not computation of the threshold, whether or not such a member has not attended all the hearings, but presumably has taken an oath and is part of the Senator-Judges participating in the trial, but missed some of the trials, may nevertheless cast a vote. If there is no rule in the Senate as to that, what is my opinion? I think, Your Honor, in case of doubt, I would allow such a person to vote because this tribunal is a tribunal of record. The proceedings are recorded. Someone who fails or absent in some of the trials can easily check what the witnesses testified to based on the transcript. Moreover, most of the evidence here is documentary so someone who has not appeared in some of the hearings can check on the documents involved. So personally, I would decide in favor of allowing such a senator-judge to vote according to, of course, the conscience of such judge. Remember that a senator-judge participating in an impeachment case takes an oath. What does that oath say? The oath says that the Senator-Judge swears to render impartial judgment according to the Constitution and the laws of the Philippines. If he or she feels that he or she can render impartial judgment, honestly, according to the Constitution and the laws, then even if he missed one or two, or maybe even substantially, most of the hearings, but still, based on the record, he or she feels that he can honestly judge the respondent, I would allow. But that's me. This is, I said, internal matter for the Senate to decide, according to a rule it may adopt on this basis. Thank you again, Your Honors, respectfully submitted.