RETIRED Chief Justice Hilario G. Davide Jr. on Wednesday explained to the Senate Impeachment Court that the constitutional phrase “all the Members of the Senate” should not be read as a fixed count of 24 senators when some members are legally or physically unable to participate and vote.
In a memorandum submitted during the impeachment trial of Vice President Sara Z. Duterte, Davide addressed three questions placed before the court: the basis for computing the two-thirds vote for conviction, whether the Avelino v. Cuenco ruling applies, and whether a senator-judge who did not attend or substantially participate may still vote on the final question.
Davide began by citing the Constitution’s impeachment voting rule: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.” But he said the word “Members” must be read according to the purpose of the provision, not in a way that produces an unjust or absurd result.
According to Davide, the framers could not have meant to include senators who are alive in title but unable, unavailable, or legally barred from performing senatorial functions. He wrote that “members refer to living persons who are not suffering from any mental, physical, or health conditions” that render them unable to perform their duties, or those not under legal restraints or impediments.
He said this reading follows the “spirit of the provision,” adding that any opposite interpretation “would defy reason, logic and common sense; tolerate an absurdity; and perpetuate an injustice.”
Davide listed those who should not be counted: senators who resigned or were expelled, those with serious mental or physical incapacity, those outside the Philippines, those whose whereabouts are unknown or who are in hiding, and those legally restrained from exercising their rights and privileges as senators.
His conclusion was direct: “Clearly then, the basis of computing the two-thirds must be the number of senators who are qualified to vote. Not the twenty-four (24) in the present Senate.”
On the second issue, Davide said the 1949 case of Avelino v. Cuenco does not directly govern an impeachment trial. That case involved quorum in the Senate acting as a legislative body, not as an impeachment court.
“The undersigned respectfully submits that it is not directly applicable in impeachment cases,” Davide wrote. “However, by analogy, it may only provide some guiding light.”
Still, he said the reasoning may support excluding senators who cannot be reached or cannot act. Davide concluded that “those who are detained, abroad, suspended or whose whereabouts are unknown cannot be included, or must be excluded” from the phrase “all the Members of the Senate” for purposes of the two-thirds vote.
On the third question, Davide said a senator-judge who never attended any session or never performed the duties of a senator-judge should be treated as having never participated. He said such a senator should fall in the same category as one outside the jurisdiction of the Philippines or whose whereabouts are unknown.
For senator-judges who attended but did not substantially participate, Davide left the matter to their conscience and sense of duty. He stressed, however, that silence during hearings is not the same as absence.
“I wish to underscore, however, that failure to ask questions on the witnesses is not proof of non-participation,” Davide wrote. “As judges, they should even refrain from asking questions except to clarify a point.”
Davide said senator-judges must be present, listen, and reflect on the testimony before voting. He anchored that duty on the Constitution’s command on public office: “Public office is a public trust. Public officers and employees must, at all times, be accountable to the people.”
metrosundaily
