WHEN 16 IS NOT 16: Senate rewrites impeach math

The Senate, sitting as an impeachment court, on Wednesday voted to change the basis for calculating the conviction threshold in Vice President Sara Duterte’s impeachment trial, reducing the number of votes needed to convict from 16 to 14.

The court voted 13 in favor, one against, with six abstentions, on Senator Erwin Tulfo’s earlier motion to revisit the threshold rule.

The vote overturned Presiding Officer Chiz Escudero’s 6 July ruling that 16 votes, or two-thirds of the full 24-member Senate, were required for conviction.

Under the new interpretation, only the senator-judges who are legally and factually capable of participating in the proceedings will be counted in determining the base number for the two-thirds threshold.

With 20 senator-judges able to participate, two-thirds of that would be 13.33, which would be rounded up to 14 votes.

Escudero voted against changing his July ruling, reaffirming his position that Article XI, Section 3(6) of the Constitution requires the vote of two-thirds of all the members of the Senate to convict an impeached official.

“The Chair stands by his 6 July ruling. Article XI, Section 3(6) of the Constitution must be given its plain and literal meaning. The Chair finds no basis in the constitutional text for interpreting it otherwise,” Escudero told the Senate court.

He said the court’s new interpretation would operate “pro hac vice,” or “for this occasion only,” and would not bind future impeachment proceedings.

“This has never happened before, and the Chair hopes that it shall never happen again,” he said.

He cited four reasons for rejecting alternative interpretations of the voting requirement.

First, Escudero noted that the word “present” was intentionally omitted from the Constitution, even though it appeared in the US version from which the provision was derived.

“The word ‘present’ was omitted from the 1935 Constitution, even if it was originally contained in the first complete draft of the 1934 Constitutional Convention. And it was never restored in the 1973 nor the 1987 Constitutions,” he said.

“In other words, the word ‘present’ was intentionally omitted and has been absent from our Constitution ever since. What the Constitution has omitted, for me, cannot now be restored by interpretation,” he added.

Second, Escudero said Senate membership should not be confused with a senator’s ability or eligibility to vote. A senator’s absence or incapacity, he said, does not change the fact that the Senate is composed of 24 members under Article VI, Section 2.

Third, he warned that lowering the denominator would create fractional votes and what he described as absurd outcomes.

Escudero said that if the denominator were reduced to as few as four members from 24 senators, the number of votes needed to convict would fall more often than the number needed to acquit.

“The conviction threshold falls 13 times, while the acquittal threshold falls only seven times. In other words, a variable denominator makes it easier to secure a judgement of conviction compared to a judgement of acquittal,” he said.

Fourth, Escudero invoked the principle of “in dubio pro reo,” which directs that genuine doubt be resolved in favor of the accused. He said conviction should not be made easier by implication or inference when constitutional doubt remains.

“Terminating an elected mandate before the end of its term is among the most drastic acts our constitutional democracy can undertake. Therefore, when the Constitution fixes the conditions and number for imposing a judgment of conviction, those conditions should not be relaxed by implication, nor should the number rise or fall according to the contingencies of the day,” he said.

The issue was reopened after Tulfo had questioned how the phrase “all the Members of the Senate” should apply when some senator-judges were unable to participate in the proceedings.

The new interpretation excludes senator-judges who are detained, suspended, suffering from physical or medical incapacity, whose whereabouts are unknown, or who are beyond the Senate’s coercive reach.

The decision was opposed by several members of the minority bloc. Senators Alan Cayetano, Pia Cayetano, Bong Go, Imee Marcos, Robin Padilla and Camille Villar did not participate in the vote, while Mark Villar was the lone minority member to vote in favor of reversing the July ruling.

The threshold dispute centers on Article XI, Section 3(6) of the 1987 Constitution which requires the concurrence of two-thirds of all the members of the Senate to convict an impeached official.