By Benjamin Cuaresma
MANILA — Retired Chief Justice Hilario Davide Jr. has challenged the use of a fixed 16-vote threshold in Vice President Sara Duterte’s impeachment trial, arguing that the constitutional two-thirds requirement should be based on senators who are legally and physically qualified to vote—not automatically on all 24 members of the Senate.
Davide submitted the position in a memorandum entered into the impeachment court record Wednesday as senator-judges sought legal guidance on the meaning of the constitutional phrase “two-thirds of all the Members of the Senate.”
The Constitution provides that an impeached official may not be convicted without the concurrence of two-thirds of all Senate members.
But Davide said the term “Members” cannot simply be treated as the Senate’s full numerical roster when some senators may be legally or physically incapable of exercising their duties.
“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, who participated in the constitutional drafting processes that produced the 1973 and 1987 Charters, said the framers could not have intended the provision to include senators who are incapable of performing their official functions.
He cited lawmakers who have resigned or been expelled, those suffering from incapacitating conditions, senators outside Philippine jurisdiction, those whose whereabouts are unknown, and those subject to legal restraints that prevent them from exercising their powers as public officials.
The same principle, he said, could apply to senators facing criminal cases or serving sentences.
Davide argued that counting such individuals as part of the denominator despite their inability to perform their senatorial duties would contradict the purpose of the constitutional provision.
Davide also addressed whether a senator-judge who failed to attend or substantially participate in the impeachment proceedings should still be permitted to vote on the final judgment.
A senator-judge who never attended any session of the impeachment court or performed the duties of a senator-judge, he said, should be considered to have never participated in the proceedings.
For those who attended but did not substantially participate, Davide left the matter to their “conscience and sense of duty.”
He stressed that senator-judges are expected to be present during proceedings, listen to witnesses and consider the evidence before them.
The dispute centers on whether “two-thirds of all the Members of the Senate” means two-thirds of the Senate’s full 24-member composition or two-thirds of senators who remain legally qualified and capable of participating in the impeachment vote.
Under a full 24-member computation, two-thirds means 16 votes.
Davide’s memorandum advances a different interpretation: the denominator should reflect only senators who are qualified to exercise their voting powers.
The question is now before the impeachment court as senator-judges weigh competing legal interpretations of a constitutional provision that could directly determine the number of votes required for a conviction.
For the Senate impeachment court, the issue is no longer simply arithmetic. It is a question of who legally counts when the Constitution says “all Members of the Senate.”
ia/xf
