VP Sara impeachment trial: Ex-justices split on vote ruling

CEBU, Philippines — Four former Supreme Court magistrates invited as amici curiae, or “friends of the court,” by the Senate impeachment court Wednesday split over whether the two-thirds threshold to convict an impeached official is fixed at 16 of 24 senators.

Retired Chief Justices Artemio Panganiban, Reynato Puno and Hilario Davide Jr., and retired Associate Justice Adolfo Azcuna gave their positions on how to interpret the 1987 Constitution's impeachment clause requiring “two-thirds of all the Members of the Senate” for conviction. Davide submitted his position in writing, while the other three appeared before the senator-judges.

Only Azcuna maintained that the provision requires a fixed 16 votes, regardless of senators who are detained, sick or otherwise unable to participate in the trial.

Panganiban quoted the legal maxim “ratio legis est anima (the reason of the law is the soul of the law),” describing the mathematical equation of “two-thirds” of all members as an “abstract science” that must be adjusted to “reality.”

Showing his flair for writing as a newspaper columnist after retiring from the bench, Panganiban likened the threshold vote to a “small drop of water, when put together with another small drop of water, may become in reality one bigger drop of water.”

“Reality sometimes changes the denominator in mathematics,” Panganiban said, adding: “constitutional interpretation cannot always stop at abstract mathematics.”

“We must look at the intent and purpose of the constitutional provisions, the circumstances in which they operate, and the goals they seek to achieve,” Panganiban said.

Puno said the impeachment conviction clause should not be read based on its “text” alone, but in its “context.”

“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,” Puno said.

Puno pointed out that the 1987 Constitution did not explicitly set the number of votes needed to convict at 16, and said it is “inappropriate” to give the impeachment clause a “stand-alone literal reading” that sets the number of votes needed to convict as “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,” Puno said.

Puno said he subscribes to the “school of thought” for “contextual and functional interpretation” of the conviction clause, which should be interpreted “not in isolation but in relation to other provisions of the Constitution in order to give light to its purpose.”

A “functional” reading would allow the senator-judges to consider their current situation, with four senators unable to participate because of legal or health-related circumstances, Puno said.

“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,” Puno said.

“As well expressed in various decisions of the Supreme Court, the provisions of the Constitution should not be interpreted narrowly or pedantically, for the prescriptions therein are not mathematical formulas,” he added.

Puno said a “strict, stand-alone, literal interpretation” of the conviction clause “may result in absurdities and may result in injustices which will defeat the purpose of the Constitution.”

In his written position, Davide, a member of the 1986 Constitutional Commission that drafted the 1987 Constitution, defined “all members of the Senate” as those 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 prohibited 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,” Davide said.

Azcuna, the only one among the four to take the contrary position, said “all members of the Senate” can only mean 24.

“All means all,” Azcuna said.

Azcuna said the requirement of 16 votes to convict was intended to make impeachment more difficult and prevent it from being abused by a political “supermajority” seeking to remove an impeachable official despite the latter's electoral mandate.

“The framers of supermajority-impeachment clauses 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,” Azcuna said.

Azcuna said the two-thirds threshold serves as an “internal check” to prevent the legislative branch from “dominating” the executive and judicial branches “by threatening or wielding removal.”

“The two-thirds requirement functions as that internal check: it disperses the power to convict widely enough that no single faction, however large, can unilaterally topple another branch of government,” Azcuna said.

“In this sense, the supermajority rule is not an obstacle to accountability - it is part of the system of accountability, ensuring that the impeachment power itself is exercised responsibly,” he added.

Senate decides threshold

The former chief justices also said the Senate's final verdict in an impeachment case is generally final and cannot be appealed to the Supreme Court, except in cases of “grave” abuse of discretion.

Panganiban told the senator-judges that the Senate's authority to try and decide Vice President Sara Duterte's impeachment is broad and should not be bogged down by strict legalism.

"Is the judgment of the Senate based on truth and fairness appealable to the Supreme Court? My respectful answer is a big no," Panganiban stated.

"The Senate's decision is final and unappealable,” he added, saying the Senate is the “Supreme Court of impeachment(s).”

He clarified that the High Tribunal can intervene if the Senate commits grave abuse of discretion, which jurisprudence defines as a “capricious, whimsical, or arbitrary exercise of judgment.”

"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," the former chief magistrate explained.

Panganiban urged the senator-judges to act as lawmakers representing the people rather than attempting to function as jurists or magistrates.

He emphasized that the impeachment tribunal is a sui generis (unique) body that blends legal and political processes.

"To me, legalities do not matter very much because our people are not lawyers. They are not jurists. They are not used to objecting to leading questions or misleading questions. They are not used to technicalities," Panganiban told the chamber.

"The important thing for the Senate, in my humble opinion, is that the Senate is able to answer the call for truth and fairness. Never mind the technicalities, the truth and fairness,” he added.

He argued that if the framers of the Constitution wanted a purely legal proceeding governed by strict judicial technicalities, they would have assigned the power of impeachment to the Supreme Court.

Puno explicitly said the Senate Impeachment Court has the “sole” power to interpret the constitutional provision requiring the concurrence of two-thirds of all members of the Senate.

"In discharging this judicial power, the Senate Impeachment Court is not under the Supreme Court," Puno said, rejecting the notion that the High Court should dictate the threshold.

"Nowhere does it explicitly appear in Article 7 [Judicial Department] that the Supreme Court can review the rules of the Senate Impeachment Court,” he added.

Puno said determining whether to adjust the threshold to exclude absent or detained lawmakers is a “political question” that falls within the discretion of the senator-judges.

However, he echoed Panganiban's warning that the Supreme Court could strike down the proceedings as unconstitutional if the Senate's internal rules deny the respondent due process, including the right to be judged by fair and impartial judges.

The Senate impeachment court is expected to hear the positions of the prosecution and defense on the threshold issue on Sept. 23 before deciding how the two-thirds requirement should be computed. — Philippine Star News Service /FPL (FREEMAN)