Former Chief Justice Puno: 16 votes to convict Duterte not ‘fixed and immutable’

Retired Chief Justice Reynato Puno on Wednesday said the number of votes needed to convict Vice President Sara Duterte in her impeachment trial should not automatically be fixed at 16.

Puno argued that the Constitution’s two-thirds requirement allows the threshold to change depending on circumstances affecting the Senate’s membership.

The retired chief justice made the argument before the Senate sitting as an impeachment court as senator-judges considered whether all 24 senators should form the basis for determining the two-thirds vote required for conviction.

He said the Constitution deliberately expressed the requirement as a fraction rather than specifying a fixed number of votes.

“If we give this kind of reading to Article 11, Section 3(6), the threshold of 16 Senators to convict will be fixed and immutable. However, if that is the intent, Article 11, Section 3(6) should have simply stated that the number of votes to convict is 16, period,” Puno said.

“Instead, the language used a fraction. It says two-thirds of all members of the Senate,” he said. “By using two-thirds, the number of votes to convict will have to move depending on certain factors.”

Puno said the provision should be interpreted together with other constitutional rules governing the Senate and the ability of its members to perform their official duties.

He rejected an approach that would treat the impeachment provision as a standalone mathematical formula, saying such an interpretation could fail to account for situations in which senators are legally unable to function as members of the chamber.

Among the circumstances Puno identified were the death, resignation or expulsion of a senator. He also cited legal incapacity, including preventive suspension, as a factor that could affect the number of senators who should be counted for purposes of the two-thirds requirement.

He said the Senate should therefore examine whether a senator remains legally capable of performing the functions of the office when determining the applicable voting threshold.

“It is functional because it will give the Senators the flexibility to consider circumstances that will legally prevent a Senator from functioning as a member of the Senate,” he said.

Puno said he subscribed to the constitutional interpretation that considers the broader context and practical operation of constitutional provisions rather than relying solely on their literal wording.

“For these reasons, I join the School of Thought that espouses what is known as contextual and functional interpretation of the Constitution,” Puno said.

He warned that applying the impeachment provision in isolation could lead to results that are inconsistent with the Constitution’s purpose.

“The provisions of the Constitution should not be interpreted narrowly or pedantically, for the prescriptions therein are not mathematical formulas.”

Puno’s position came as the impeachment court considers how to determine the voting base for Duterte’s trial, particularly whether senators who are unable to legally or physically participate should be included in the computation of the two-thirds requirement.