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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, & 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 settle a question: What is the least number of votes needed to convict Vice President Sara Duterte?
The Senate court is confronted with the difficult task of resolving questions surrounding the conviction threshold following absences from several members of the 24-seat chamber.
The crux of the matter lies in Article XI Section 3(6) of the 1987 Constitution, which states that no person should be convicted without the concurrence of two-thirds of all members of the Senate.
Some say the conviction threshold could be lowered because the constitution used the term "two-thirds" and that it is open to interpretation, but others argue that the number is fixed to 16 votes as the Senate is composed of 24 members.
Prosecutors need to secure a guilty verdict on at least one article of impeachment to convict Duterte and failure to do so will result in her acquittal.
Here are the views of retired Chief Justices Hilario Davide Jr., Artemio Panganiban, Reynato Puno and retired Associate Justice Adolfo Azcuna.
DAVIDE
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
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.
"Is it truthful and fair to the parties, to our country, and to our people, to allow those abroad? ... Can such duty be performed in the shadows of absence? Nor from legal impediments?" he said.
PUNO
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.
"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," Puno, said, referring to the charter's reminder that "No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate."
"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," he added.
"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."
"If we give this kind of reading to Article XI, Section 3(6), the threshold of 16 Senators to convict will be fixed and immutable."
Puno pointed out that the Constitution did not expressly say that 16 votes are required to convict.
"If that is the intent, Article XI, Section 3(6) should have simply stated that the number of votes to convict is 16, period. But Article XI, 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."
AZCUNA
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.
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." —With reports from Jaehwa Bernardo & Chalssea Kate Echegoyen, ABS-CBN News
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