THE Senate, sitting as an impeachment court, has ultimately decided on who among its members can vote in the proceedings now pending before it. In a carefully worded ruling read by Presiding Officer Sen. Francis “Chiz” Escudero, it says two-thirds of “all members who, at the time of the vote, remain legally and factually capable of participating in the proceedings.”
Thirteen senator-judges voted that only 20 of them can vote, and that number will be the denominator from where two-thirds will be computed. Ergo, it will no longer be 16 out of all 24 senators, but only 14 out of 20. It excluded four “members who are detained or suspended or otherwise legally restrained from exercising the functions of a senator; persons sought by authorities whose whereabouts are unknown, suffering from physical or medical incapacity, beyond the coercive processes of the Senate, and others similarly situated.”
But this decision and interpretation of the impeachment court, Escudero reads, applies pro hac vice, or only for this case of impeachment against Vice President Sara Duterte.
In calling it a “ruling and not an amendment in the rules,” the impeachment court was hair-splitting. It attempts to deny that it, in effect, amended the 1987 Constitution.
Historical antecedent
To objectively examine the opposing views of how the phrase “all Members” found in Article XI Section 3(6) of the 1987 Constitution is to be interpreted, we should resist branding those who are opposed to or concur with the lowering of the voting threshold as either pro- or anti-Duterte. We should look at how impeachment began and evolved under our jurisdiction.
Our laws that hold accountable certain high-ranking government officials in an impeachment process found inspiration from the United States Constitution that provides “x x x And No person shall be convicted Concurrence of two-thirds of all its Members (of the Senate) present.” But our earlier Constitutions, be it the 1935 (which requires three-fourths of all the members of the Senate) or the 1973 (which requires two-thirds), particularly differ from the Americans when it did not adopt the word “present.” Neither did the framers specify that the denominator should pertain only to all members who participated in the hearing.
Therefore, by all intents and purposes, the framers of the Constitution intended “all” to be all — no qualifications as to presence, detention, or sickness restricting actual participation in the hearing. Because there were specific instances that the framers, in their wisdom, provided distinctions. For example, they provided that “majority of each House” shall constitute a quorum to do business (Article VI, Section 16(2)); that the concurrence of “two-thirds of all its members” is needed to suspend or expel a colleague (Article VI, Section 16(3)).
It was the wise discretion of the framers to require the concurrence of two-thirds of “all the Members” of the Senate to determine the validity and effectiveness of a treaty or international agreement entered into by the president (Article VII, Section 21). And in determining the constitutionality of such treaties and international or executive agreements, the “majority vote” of all members (of the Supreme Court) “who actually took part” in the deliberation shall be the threshold (Article VIII, Section 4(2)).
Expediency in an exigency
There is a tendency for any of the parties to resort to legal interpretation of the law even when its language is plain and unmistakable. That happens when its application fails to conform to the desired result; when a party wanted the law to be interpreted in its favor. That happened before in the interpretation of the word “forthwith,” referring to the immediacy for the impeachment trial to proceed. It happened again in the recent “ruling of the impeachment court” interpreting the word “all” with respect to members of the Senate.
The 1987 Constitution requires a vote of at least one-third of all the members of the House (of Representatives) to affirm or override a committee resolution with the articles of impeachment. It also requires a vote of one-third of all House members is needed to transmit to the Senate the articles of impeachment.
Yet, in both cases, there were no questions or issues raised with regard to the meaning of required vote of one-third of “all members” as the threshold. Probably because the threshold was not that high; and that the garnered votes were more than enough to transmit the articles of impeachment to the Senate.
But when it became apparent that a guilty verdict seems difficult to attain in the Senate impeachment court that the exigency of interpreting who may vote came to fore.
Instances of selective fidelity? And there are others
There was once a need to determine who would take the place of Sen. Sherwin Gatchalian, as he renounced the customary practice of Senate presidents presiding in an impeachment trial. Until they voted for Escudero, the Senate could have requested the chief justice of the Supreme Court to take over. But it did not invoke an interpretation that a chief justice may also be allowed to preside in the vice president’s trial. After all, being the second in the line of succession, the vice president possesses all the qualifications required of a president. The Senate opted not because that is not what the Constitution says.
The confirmation required by the Commission on Appointments for officers of the Armed Forces of the Philippines with the rank of colonel and higher does not apply to officers with equivalent ranks in the Philippine National Police or the Philippine Coast Guard. Yet, the parity of going through the same process of confirmation was not invoked, despite the absence of reasonable distinction, because that is not what the Constitution says.
Lawyer Christian Monsod, one of the framers of the 1987 Constitution, agrees with the impeachment court’s decision of altering the denominator from 24 to 20, saying the framers failed to anticipate the present situation.
This is the same Monsod who admitted to failing to define what is a political dynasty and left to Congress the passing of a law that bans relatives up to the fourth civil degree of consanguinity or affinity from holding positions in all levels of government. And when asked in an interview why the framers did not, he answered poignantly that they committed two mistakes: they overestimated the spirit of the 1986 EDSA Revolution and underestimated the greed of the politicians.
These confessions of mistakes or shortsightedness can only be corrected by amendments to the Constitution, not by its interpretation by the legislature.
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