Sweet 16 dilemma
Many were taken aback when Presiding Officer Chiz Escudero immediately said that the minimum number of votes needed to convict is 16.
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Many were taken aback when Presiding Officer Chiz Escudero immediately said that the minimum number of votes needed to convict is 16.
The tendency of the Supreme Court (SC) to sidestep the merits of politically charged cases by allowing them to ripen into mootness rather than ruling squarely on them may also apply to the quandary over the crucial number of votes required to convict Vice President Sara Duterte.
Article XI, Section 3(6) of the Constitution provides: “The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”
The actual interpretive friction is not over the text but over what “all the Members” means when several members cannot physically participate.
The prevailing traditional reading treats “all the Members” as an absolute calculation, meaning all 24 elected senators.
Another school of thought, backed by retired Senior Associate Justice Antonio Carpio, maintains that only participating senators should be counted.
Many were taken aback when Presiding Officer Chiz Escudero immediately said that the minimum number of votes needed to convict is 16, “unless the SC says otherwise.”
Escudero based his position on a 2000 case involving the constitutionality of the Visiting Forces Agreement.
Despite the Senate having only 23 incumbent senators instead of 24 at the time, the Court declared that two-thirds of the constitutional membership, or not fewer than 16 members acting favorably on the proposal, was required to comply with the voting requirement.
The Court went further, stating explicitly that the actual number of sitting senators would not alter the calculation, “even if the two-thirds vote requirement is based on this figure of actual members,” meaning the SC had fixed the denominator at 24 regardless of a vacancy.
Lawyer Salvador Paolo Panelo Jr., managing partner of Panelo Law Office, said that while Escudero’s statement may be music to VP Sara’s camp, and to anyone who respects the Constitution, the mystery remains: “Why did the majority give up on lowering the threshold so easily?”
It seems they had been building toward lowering the threshold by jailing Senators Jinggoy Estrada and Rodante Marcoleta, while pursuing Bato dela Rosa and threatening Joel Villanueva and Chiz Escudero.
“The possible answer is frightening. It could be that Malacañang realized that convicting at fewer than 16 votes is questionable and susceptible to reversal by the High Court, so they will get 16 votes the hard way through a case built up against minority senators and threaten them with jail time,” he explained.
Panelo believes that by announcing 16 as the correct number this early, Malacañang can be confident it has a clear pathway to the threshold.
The alternative possibility, he added, is that Malacañang is confident it can secure an SC decision declaring that fewer than 16 votes is valid.
If the Supreme Court follows its past practice, however, it could take a ready-made exit on mootness by waiting until the impeachment trial concludes and the final vote count is known before dismissing any petition questioning the required voting threshold.
Former Supreme Court Associate Justice Antonio Carpio has argued that, in determining a majority or quorum, senators who are legally disqualified from participating should be excluded from the base count.
The Court also has two petitions before it that predate the trial, one filed by Vice President Sara Duterte herself and another by lawyer Israelito Torreon and his co-petitioners, both challenging various aspects of the impeachment proceedings.
Those cases could provide a vehicle for resolving the threshold issue, which is a difficult question only the SC can settle.
Should the Court decline to address the question on the merits and instead take refuge in mootness, it risks squandering an opportunity to help settle a political and constitutional dispute that has continued to deepen.
