Their submissions came as the Senate reconsiders whether the Constitution requires two-thirds of the full 24-member Senate — 16 votes — or two-thirds of the senators legally and functionally able to participate in the impeachment trial.
At stake is not simply the arithmetic of 24 senators, the three former chief justices said. It is whether a senator who is legally unable, physically unable or has not meaningfully participated in the proceedings should nevertheless be counted in determining the number of votes needed to convict.
Who are the “members”?
Davide addressed that question by starting with the Constitution’s choice of the word “members.” A delegate to the 1971 Constitutional Convention and member of the 1986 Constitutional Commission, Davide said there was no debate on the issue during the drafting of the 1973 and 1987 Constitutions.
He said it was presumed that “members” referred to living senators capable of exercising their powers and performing their duties, and not those prevented from doing so by physical or legal restraints.
“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.
Davide also drew a distinction between senators who never participated in the proceedings and those who were present but took a limited role.
“Accordingly, 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 said.
For those who did not substantially participate, Davide left the matter to their “conscience and sense of duty.” He cautioned, however, against equating a failure to question witnesses with nonparticipation.
“I wish to underscore, however, that failure to ask questions on the witnesses is not proof of non-participation,” Davide said, adding that judges should primarily be present, listen to testimony and reflect on the evidence.
The question of who qualifies as a participating member, however, also raised a broader issue: whether the constitutional requirement can be satisfied by senators who have not actually taken part in the search for evidence and truth that an impeachment trial requires. That was the point Panganiban pressed before the court.
Reality changes the denominator
Panganiban similarly rejected treating the two-thirds requirement as an abstract calculation of 16 out of 24. “Read literally, it is 16 of 24, but only ‘in the abstract. Reality, sometimes, changes the denominator in mathematics,’” Panganiban said.
He claimed a senator who has not meaningfully participated in the proceedings should not be allowed to vote on Duterte’s fate. Truth in an impeachment trial, Panganiban said, comes from examining evidence and hearing witnesses testify, including their “body language, tone of voice, and spontaneity.”
He invoked the ancient Greek statesman Themistocles: “Strike me as you may, but hear me first.”
“Meaningful adjudication requires active participation in this search for truth and fairness,” the former chief justice added.
He questioned the fairness of allowing senators who are abroad, detained, hospitalized, in hiding or otherwise absent to vote when they have not examined the documents or heard testimony presented during the trial.
Panganiban contrasted those “sweating it out” in the session hall with absent senators who may be sightseeing abroad or otherwise away from the proceedings.
That emphasis on actual participation led back to the arithmetic at the heart of the dispute: if the number of senators who can meaningfully function as impeachment judges changes, does the two-thirds calculation necessarily remain fixed?
‘16, period’
Puno, meanwhile, answered that question by challenging the premise that the Constitution intended to establish an immutable number of votes.
“If it is a fixed number, then the Constitution should have simply stated that the number of votes to convict is 16, period. By using two-thirds, the number of votes to convict will have to move depending on certain factors,” he said.
He said a strict literal reading could produce results that undermine the purpose of the Constitution. He instead endorsed what he called a “contextual and functional interpretation.”
Under this approach, the provision should not be read in isolation but in relation to other constitutional provisions and the purpose of the impeachment process. It would also allow the impeachment court to account for circumstances that legally prevent a senator from functioning as a member of the court.
Those differences are central to the constitutional dispute: whether an absent senator remains a “member” for purposes of calculating the two-thirds requirement, and whether inability to participate has the same effect as never having joined the impeachment court.
Senate’s ‘sole’ power
For Puno, however, the question goes beyond how the Senate counts its members. It also concerns who has the constitutional authority to settle the meaning of the two-thirds requirement in the first place.
He said the answer lies in Article XI of the Constitution, which gives the Senate the “sole power to try and decide” impeachment cases.
“Please note the use of the word ‘sole,’ which means the only body that can try and decide all cases involving impeachment. 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,” Puno said.
Puno likewise rejected the view that the impeachment court is subordinate to the Supreme Court in exercising its constitutional impeachment function.
For him, the High Court could intervene if the impeachment court takes unconstitutional action, including unjustifiably denying a senator the right to sit as a judge.
“In discharging this judicial power, the Senate Impeachment Court is not under the Supreme Court. Nowhere does it appear in Article VIII that the Supreme Court can review how the Senate Impeachment Court should decide impeachment cases,” he said.
“I warn that the review by the Supreme Court can result in the annulment of the proceedings in an impeachment case, in the nullity of the decision, in the dismissal of the case against any respondent,” Puno added.
“Not all the actions taken by the Senate Impeachment Court in the exercise of its sole power to try and decide impeachment cases are political in character,” he added.
