Not so simple

Last Wednesday, four retired Supreme Court justices gave the Senate something it badly needed: serious constitutional arguments instead of slogans.

The issue, of course, is the disputed two-thirds vote required to convict Vice President Sara Duterte in her impeachment trial. For months, 16 has been treated as the automatic answer. Twenty-four senators. Two-thirds. Sixteen. Case closed.

Except, after last week, it is even clearer that the case is not closed at all.

Three former chief justices — Hilario Davide Jr., Reynato Puno and Artemio Panganiban — took the position that the required number is not necessarily fixed at 16. Their reasoning was not identical, but they converged on one important point: senators who are legally unable to participate, who are not qualified to vote or who cannot meaningfully take part in the proceedings need not automatically remain part of the denominator.

Former Associate Justice Adolfo Azcuna disagreed. His reading was much stricter. “All the Members of the Senate,” he argued, means exactly that. Unless a senator has died, resigned, been removed from office or otherwise ceased to be a senator, that person remains part of the computation. Under present circumstances, that means 16. Fair enough. That is a serious textual argument.

But the hearing also demolished the notion that questioning the supposed “magic number” somehow amounts to inventing constitutional arithmetic for political convenience. When three former chief justices independently say the number can vary depending on who may legally participate, then clearly the matter deserves more than a dismissive shrug or shrill cries of “politically motivated.”

Just as important was another point that emerged from the hearing: this is a question the Senate impeachment court itself has authority to answer.

Puno and Panganiban were particularly clear that the impeachment court derives its power directly from the Constitution. It is not a lower court waiting for instructions from the Supreme Court. Even Azcuna treated interpretation of the voting threshold as a procedural matter that may be revisited while the case is pending.

That matters because some senators have already warned that changing the threshold now would amount to “changing the rules in the middle of the game.” But deciding what the Constitution actually requires is not necessarily the same thing as changing the rule. It may simply mean finally determining what the rule has always meant under circumstances nobody anticipated when the trial began.

This Wednesday, 23 September, the prosecution and defense are scheduled to present their respective positions in oral argument. A vote may follow, although some senator-judges have already suggested they may need more time to study the competing views.

And if the Senate ultimately rejects the fixed 16-vote rule, a trip to the Supreme Court seems almost inevitable.

Then another fascinating constitutional question will arise. The Constitution gives the Senate the “sole power to try and decide” impeachment cases. Will the Supreme Court review how a co-equal constitutional body interprets the voting rules governing that exclusive function? Or will it leave the matter for the Senate itself to resolve?

We will just have to wait and see. But after last Wednesday, one thing should already be clear: The answer was never as simple as dividing 24 by three and multiplying by two.