‘All members,’ deliberate
Any steps taken toward the American ‘present members’ standard as functionally erasing the difference the 1987 framers went out of their way to create would need amending the Charter.
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Any steps taken toward the American ‘present members’ standard as functionally erasing the difference the 1987 framers went out of their way to create would need amending the Charter.
The Senate court has the sole power to try and decide impeachment cases, including interpreting what the Constitution means when it set the conviction threshold at two-thirds of all its members. But that power ends there.
According to retired Supreme Court Associate Justice Adolfo Azcuna, one of the framers of the 1987 Constitution and an amicus curiae in the ongoing Sara Duterte impeachment trial whose submission carries particular weight, the Senate’s power to interpret the Constitution falls well short of the power to amend it.
Lowering the threshold to a proportion of the senators present or voting would cross that constitutional line, Azcuna said in an interview after the landmark consultation to guide the Senate impeachment court.
The framers of the Constitution could easily have copied the American model, which requires only two-thirds of the senators “present” to convict, but instead the 1986 Constitutional Commission deliberately chose to require two-thirds of the entire membership.
Azcuna argued that reinterpreting the phrase to mean only “present” or “voting” senators would not clarify the provision but quietly rewrite it.
The provision was crafted that way because the framers of the Charter wanted to avoid removing a popularly elected official by a thin, rather than broad, majority.
Currently, several senator-judges cannot participate — two are detained, one is in hiding, and another is abroad for medical reasons — raising the practical question of whether the threshold should shrink as the number of senators available to vote declines. The absences are also being pointed to as part of the effort to rig the vote.
Azcuna’s amicus brief carried real weight, since he was present when the provision was written and he later sat on the Supreme Court that clarified how such fractions are to be computed.
While a senator who is absent, detained, or in hiding cannot vote, Azcuna insisted that the members of the chamber do not vanish from the Constitution’s count, because membership in the Senate and the right to vote are two separate things.
Absence removes the ability to vote but not membership, so an absent senator is still counted among the twenty-four, and two-thirds of that number is sixteen, not some lower figure based on who happens to be physically able to attend.
Given that each senator represents a slice of the national electorate that voted them into office, Azcuna warned that treating an absent senator as no longer part of the base for computing the threshold would effectively disenfranchise the voters behind that senator, transferring their share of the decision to whoever remains in the chamber.
Further, although the Senate may decide internal questions, such as whether a senator who attended only part of the trial may still cast a vote after reviewing the transcript, Azcuna drew a firm distinction between that discretion and the threshold.
One is a matter of Senate procedure, while the other is a fixed constitutional requirement that no amount of interpretation can move.
Any steps taken toward the American “present members” standard as functionally erasing the difference the 1987 framers went out of their way to create would need amending the Charter.
The Senate court may interpret gray areas of the Constitution for the purpose of the trial but Azcuna said the two-thirds of all members requirement is not one of them.
The text does not say “present,” it says “all members,” and an interpretation, however creative, cannot turn the white shade black simply because the Senate’s current composition makes sixteen votes inconvenient to reach.
Despite the Senate court’s sole authority over impeachment, it is not free to cross the constitutional boundary.
