Manila: The two-thirds threshold in Vice President Sara Duterte's impeachment trial should be computed from senators legally and physically qualified to cast a vote, rather than automatically from the Senate's full 24-member roster, retired chief justice Hilario Davide Jr. said Wednesday. The Constitution provides that no impeached official may be convicted without the concurrence of two-thirds of all Senate members.
According to Philippines News Agency, Davide laid down this position in a memorandum read into the Senate impeachment court record as senator-judges heard amici curiae on the meaning of 'all the Members of the Senate' under Article XI, Section 3(6) of the Constitution. As one of the framers of the delegates of the 1971 Constitutional Convention who drafted the 1973 Constitution, and one of the Commissioners of the Constitutional Commission of 1986 who drafted the 1987 Constitution, Davide said there was no debate on this subject.
He noted, '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 prohibited to do so by reason of some legal restraints or impediments.'
Davide emphasized that this interpretation aligns with the spirit of the provision and that any contrary interpretation would defy reason, logic, and common sense. He argued that the framers of the Constitutions of 1935, 1973, and 1987 did not intend to include in 'All Members' those who have resigned, been expelled, or are incapacitated due to health conditions or legal restraints.
He further elaborated that a senator detained on charges such as plunder or facing criminal proceedings should not be considered in the count. 'Clearly then, the basis of computing the two-thirds must be the number of senators who are qualified to vote, not the 24 in the present Senate,' Davide stated.
The Supreme Court has previously acknowledged that election to the Senate does not exempt a detained lawmaker from detention restrictions. In Trillanes IV v. Pimentel, the court addressed then-senator Antonio Trillanes IV's request to attend Senate sessions while in detention, although it did not address impeachment voting thresholds.
Regarding senators who do not attend or substantially participate in impeachment proceedings, Davide advised that each senator-judge should be guided by their Oath of Office. He stated, '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 concluded by stating that those who did not participate substantially in the impeachment proceedings should rely on their conscience and sense of duty, asserting that judges must be present and attentive to witness testimonies.
