FOR the past three weeks, or to be exact, since the June 3 session that resulted in the ouster of Sen. Allan Peter Cayetano as Senate president and the election of Sen. Sherwin Gatchalian as Senate pro tempore, I have been constantly discussing the provisions of the Constitution with some of my lawyer friends to determine the required number of votes not only to elect a Senate president but also to convict an impeached official.
With the framers of the 1987 Constitution fixing the number of Senate members at 24, and at the same time making it clear that a majority vote of all members is needed to elect an SP and a two-thirds vote of all members to convict an impeached official, it would have been easy to interpret that 13 votes are required to elect and 16 votes to convict.
However, I believe it should not be interpreted that way. For if the framers of the Constitution really meant it that way, they should have simply put the numbers 13 and 16. But they did not.
For the House of Representatives, they also used the phrases “majority votes of all members are needed to elect a speaker, and one-third votes of all members to impeach an official,” but they understandably did not fix the number of House members in anticipation of more congressional districts being created, which in turn would lead to an increase in party-list representations as the latter constitute 20 percent of the House membership.
But having fixed the number of Senate members, the framers of the Constitution could have simply put 13 and 16 which they did not. I believe this could be due to unforeseeable events they were anticipating in the future — suspension, removal or anything.
While the Supreme Court in 1949, in the case of Avelino v. Cuenco, allowed the then Senate to elect an acting Senate president by virtue of a quorum of 12 because another Senate member was unavailable, it stopped short of allowing them to elect a permanent SP in recognition of the constitutional provision already present in the 1935 Constitution.
However, the said high court ruling was only based on a temporary premise — the absence of a Senate member who was out of the country. The situation we are facing now hinges on a very different ground. If the pronouncements of the Ombudsman, the Department of Justice, and other groups push through, we would even have a Senate with fewer than 16 senators.
Right now, we have two senators who are beyond the authority and capacity of the Senate to compel to attend. Sen. Ronald de la Rosa is a fugitive in hiding while Sen. Jinggoy Estrada has been suspended and is currently behind bars on charges of plunder in connection with his alleged involvement in the flood control project scam.
The Ombudsman is said to be readying charges against Senators Chiz Escudero and Joel Villanueva also for graft and plunder in connection with their alleged involvement in the flood control project scam.
Sen. Christopher “Bong” Go is said to be waiting for his warrant of arrest from the International Criminal Court for his alleged participation in extrajudicial killings said to have been perpetrated during the Duterte administration.
Sen. Rodante Marcoleta is also facing indirect bribery and plunder charges for admitting to have received P75 million in campaign donations while sitting as a member of the House of Representatives.
The DOJ is said to be planning to charge Cayetano and Sen. Robin Padilla for obstruction of justice and aiding and abetting a fugitive in connection with de la Rosa’s escape while under Senate protective custody.
The Villar siblings are also being eyed for possible charges for alleged insider trading, flood control project anomalies and delay in the construction of the LRT extension. As the former bodyguards of fugitive ex-congressman Zaldy Co have already implicated Sen. Mark Villar in their statement, claiming they delivered his own share of the maletas, the narrative could still change to actual receipt of the maletas should the lawmaker shift allegiance to the new Senate majority.
And lastly, according to a representative from Amlig Antique whom I interview in my teleradyo program, they are preparing to file charges against Sen. Loren Legarda for her alleged involvement in anomalous infrastructure projects when she served as congresswoman in her congressional district in Antique from 2019 to 2022.
So now, we have two senators who cannot be compelled to attend sessions and the impeachment trial, and nine others who could be possibly facing charges, imprisonment and suspension. If those cases push through, we would be left with only 13 functioning senators. What is the point then of pushing through with the impeachment trial if we have fewer than 16 functioning senators, the required number to convict based on some sectors’ interpretation?
The Constitution states a special election can be called in case a vacancy in the Senate occurs but under two conditions: first, the vacancy is permanent and second the vacancy occurs not less than 18 months before the regular election.
The current situation fails to meet the first requirement as even if charges are slapped against these senators, their absence in the Senate is still not yet permanent pending the filing of charges against them and the subsequent results of their cases.
While the cases against the nine other senators have yet to be filed, the possibility of having a lesser number of senators which would affect the computation of the two-thirds votes required to convict would be greatly affected.
It seems the Supreme Court needs to clarify this constitutional provision before the Senate impeachment trial commences to avoid confusion.
