Law benders will pay

The Senate impeachment court violated the Constitution by lowering the number of votes needed for a verdict, which the Basic Law does not allow.

The rule, a constitutional expert said, is short and explicit. Article XI provides that no person shall be convicted without the concurrence of two-thirds of “all the members of the Senate.” With 24 senators, that means 16 votes.

When the Senate impeachment court allows the threshold to fall to a smaller number, such as 14, it effectively changes the requirement written into the Constitution — something that, the expert argued, cannot be done by the Senate itself.

The phrase “all the members,” he stressed, means the entire membership of the Senate, not merely those present or participating in the vote.

The Filipino people submitted and ratified the provision and should therefore understand it according to the ordinary meaning of the words they approved.

The Constitution, in this view, does not become less binding because circumstances make its prescribed threshold more difficult to meet. Its words must mean what they say. The Senate court amended the Constitution in that sense. By lowering the threshold, it signaled that 16 votes were too hard to gather, which involved weighing what is wise rather than what is written.

Such a decision should be put to the people in an amendment, which is the process set out in the Constitution. The Senate judges cannot skip that process when they find the rule inconvenient.

The high bar was the framers’ choice, and the courts should not treat it as a defect.

Impeachment is an extraordinary remedy, and the Constitution requires a supermajority in such cases so broad agreement across parties can be achieved before anyone can be removed.

Those who hold the highest offices, such as the President, the Vice President and the members of the Supreme Court, deserve this care.

The whole nation chose the President and Vice President, and those wearing the cloak of justice are meant to distance themselves from political pressure. If a small group of senators could remove them, the design would fail.

If the framers intended the rules to be interpreted later, they knew how to write a looser provision when they wanted to. The United States Constitution calls for two-thirds of the members present, and the Philippine Constitution uses the word “present” elsewhere, such as in the rule on recording votes in the journal.

The Constitution also made clear that the Supreme Court decides by a majority of the members who took part and voted. The framers thus knew the words for a smaller count and used them where they meant them.

For the impeachment vote, they chose “all the members,” and that choice must be given its full weight. Nobody may add the missing words afterward.

In a precedent case, the Commission on Elections, which has seven members, had five take part in a vote. Three of them agreed on a decision, and the body said this was enough. The high tribunal struck it down and held that a majority of all the members meant at least four.

The number of participants did not matter. The same reasoning applies with greater force to the Senate, where the text is just as plain and the stakes are higher.

The argument that the members of the 1986 Constitutional Commission could not have foreseen senators in jail or in hiding does not help those who lowered the count.

No one can foresee everything, and that is why a constitution sets rules meant to fit the case.

The framers wrote that no person shall be convicted without two-thirds of all the members, and that rule already covers every situation, whether or not they anticipated it.

The trial of Chief Justice Renato Corona, which involved only 23 senators, changed nothing. The vote was enough in that case, so the question never arose.

A once-simple rule has become complicated, opening the door to inconsistent and potentially unfair results.

One senator may have taken the oath but attended only half of the hearings. Another may have attended every session but fallen ill on the day of the vote. Each scenario leaves the court with the same difficult question: Who counts toward the constitutional threshold?

The presiding officer may say that the ruling applies only to the trial of Vice President Sara Duterte, but a wrong ruling does not become right because it was used once.