Cow dung called‘pro hac vice’
If 16 votes can be reduced when the presiding coalition finds it inconvenient, then the same logic transfers cleanly to any other provision built on a fixed denominator.
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If 16 votes can be reduced when the presiding coalition finds it inconvenient, then the same logic transfers cleanly to any other provision built on a fixed denominator.
Clinging to the “sui generis,” or unique, characteristic of the Senate court, the defenders of the ruling argued that redefining “all the members” for purposes of the two-thirds vote applies only to the trial of Vice President Sara Duterte.
It is a tidy argument but is the most dangerous part of the questionable ruling because it asks the public to accept that a constitutional denominator is not fixed.
Presiding Officer Chiz Escudero emphasized that the impeachment court’s threshold interpretation would operate “pro hac vice,” or “for this occasion only,” and would not bind future impeachment proceedings.
A constitutional provision that can be waived “for this occasion” has already stopped functioning as a fixed threshold and has become, instead, a variable available to whichever majority happens to be counting the votes.
This is precisely the opening that a chamber long resistant to Charter change (Cha-cha or constitutional amendments) and an administration eager for it would need.
Consider what “only for this occasion” actually licenses once accepted as a legitimate mode of constitutional interpretation. It becomes a precedent for exceptions, since nothing in the phrase limits its future invocation in an impeachment.
If 16 votes can be reduced when the presiding coalition finds it inconvenient, then the same logic transfers cleanly to any other provision set to a fixed denominator, including Article XVII’s requirement that three-fourths of all members of Congress, voting jointly or separately as prescribed, may approve any constitutional amendment proposed through a constituent assembly.
Charter change efforts have stalled for years precisely because that threshold holds — because it cannot be talked down by resolution.
The administration-controlled House has repeatedly found the Senate an obstacle it cannot simply outvote.
A ruling that treats “two-thirds of all the members” as negotiable “for this occasion” hands any future majority in the House or Senate the exact interpretive tool it needs to declare its own occasion.
Thus, it can redefine its own denominator and manufacture the supermajority that the Constitution prescribes.
The purpose of fixing a defined threshold to the total membership of a body, rather than to those present, participating, or otherwise convenient to count, is to remove any discretion.
The framers wrote “all the members,” not “the members in attendance” or “the members eligible to vote on this occasion,” so that a chamber could never rig the count.
Once a court accepts that “all the members” can mean something narrower, it has conceded that the denominator is a matter of interpretation rather than arithmetic.
There is no constitutional mechanism by which an exception can be sealed off from a precedent.
For years, proposals to ease Article XVII’s amendment thresholds — separate voting versus joint voting, three-fourths of all members versus three-fourths of those present — have failed precisely because the Senate insisted the numbers meant what they said.
An impeachment court composed of the same senators who have resisted that dilution cannot now credibly argue that denominators are elastic when it suits an impeachment outcome, while insisting they are fixed when it suits resistance to Cha-cha.
Either “all the members” is a fixed, immovable figure everywhere it appears in the Constitution, or it is subject to interpretation.
The impeachment court cannot have it both ways without conceding that the number is fixed only until someone with enough votes decides otherwise.
“Pro hac vice” is, after all, a phrase borrowed from ordinary litigation, where it sensibly limits a lawyer’s admission to practice in a jurisdiction to a particular case or occasion.
It has no place as a principle of constitutional interpretation. A Constitution that binds only “pro hac vice” does not bind at all.
It merely waits for the next occasion to be renegotiated.
