Former Chief Justice and constitutionalist Hilario Davide: Only qualified senators should vote in VP trial

The two-thirds threshold in Vice President Sara Duterte’s impeachment trial should be computed from senators legally and physically qualified to cast a vote, rather than automatically from the Senate’s full 24-member roster, retired chief justice Hilario Davide Jr. said Wednesday.

The Constitution provides that no impeached official may be convicted without the concurrence of two-thirds of all Senate members.

Davide laid down the position in a memorandum read into the Senate impeachment court record as senator-judges heard amici curiae on the meaning of “all the Members of the Senate” under Article XI, Section 3(6) of the Constitution.

As one of the framers of the delegates of the 1971 Constitutional Convention who drafted the 1973 Constitution, and one of the Commissioners of the Constitutional Commission of 1986 who drafted the 1987 Constitution, Davide said there was no debate on this subject.

“It was presumed and assumed that when the Constitution mentioned ‘two-thirds’ of all the Members of the Batasang Pambansa in the 1973 Constitution and of the Senate in the 1987 Constitution, or three-fourths of all the Members of the Senate in the 1935 Constitution, the word MEMBERS refers to living persons who are not suffering from any mental, physical or health conditions, which render them incapable of exercising their powers or performing their duties as senators, or who are prohibited to do so by reason of some legal restraints or impediments,” he said.

“This is the spirit of the provision. It could not be otherwise. Any interpretation to the contrary would defy reason, logic and common sense; tolerate an absurdity; and perpetuate an injustice,” he stressed.

He said the framers of the Constitutions of 1935, 1973, and 1987 could never have intended to include in “All Members” Senators in a given Congress those who have resigned or have been expelled; those who suffer from any mental infirmity; those who are suffering from any physical incapacity; those who cannot participate in the hearings and deliberations on the impeachment such as those who are outside the jurisdiction of the Philippines, or whose whereabouts are unknown or in hiding to avoid arrests; and those who by reason of some legal impediments or restraints, cannot exercise or perform their rights and privileges as a public official or, more specifically, as a Senator.

Davide said the last group include those who are charged in court for plunder, and those who are facing criminal charges in court or have been convicted and are serving their sentence.

“Clearly then, the basis of computing the two-thirds must be the number of senators who are qualified to vote, not the 24 in the present Senate,” Davide said.

Supreme Court jurisprudence has previously recognized that election to the Senate does not by itself free a detained lawmaker from the restrictions of detention.

In Trillanes IV v. Pimentel, the high court dealt with then-senator Antonio Trillanes IV’s request to leave detention to attend Senate sessions and perform legislative functions.

The case, however, did not involve impeachment or determine how a detained senator should be counted in an impeachment voting threshold.

As to whether or not a senator-judge who did not attend or substantially participate in the impeachment proceedings may cast a vote on the final question in an impeachment trial, Davide said each senator-judge must be guided by the Oath of Office he or she took as a Senator-Judge.

“Accordingly, a Senator-Judge who did not attend any session of the Court for any reason whatsoever or who never acted or performed the duties as a Senator-Judge must be deemed to have never participated in the performance of the duties as such,” he said.

Davide said he or she should belong to the category of those who are outside the jurisdiction of the Philippines or in a foreign country or one whose whereabouts are unknown.

“As to those who did not substantially participate in the impeachment proceedings, the undersigned leaves this matter to the conscience and sense of duty to those involved,” he said, emphasizing that judges are to be present at all times and to listen to and reflect on the testimonies of witnesses.

• Wilnard Bacelonia and Jose Cielito Reganit / Philippine News Agency