I USED to greatly admire retired Supreme Court Associate Justice Adolfo Azcuna. I regarded him as a thoughtful constitutionalist whose public service deserved respect. This is why listening to the positions he took as one of the amici curiae invited by the Senate, sitting as an impeachment court in the case of Vice President Sara Duterte, left me deeply disappointed.
Azcuna is entitled to his opinion. Differences in interpretation are inevitable, and civility requires that we respect them. But respect for a former justice cannot mean suspending critical judgment. His reputation makes scrutiny necessary. When someone of his stature advises the Senate on a question affecting the viability of impeachment, we are entitled to expect reasoning that is coherent, consistent and alive to constitutional consequences.
On those measures, Azcuna’s position failed.
He insisted that 16 votes are required to convict at all times. He treated 16 as effectively immutable even if fewer than 24 senators are legally qualified and capable of sitting as senator-judges. Yet he also acknowledged that if a senator dies, resigns or is removed, the denominator becomes 23. That concession demolishes the premise of immutability.
If the required number can change when the legal membership changes, then 16 is not fixed by the Constitution. The Constitution could have specified 16, but it did not. It required the concurrence of “two-thirds of all the Members of the Senate.” Azcuna’s own example confirms that the controlling rule is a fraction applied to the legally relevant membership, not a number permanently frozen at 16.
His reasoning then draws an inexplicable distinction. A dead, resigned or removed senator is excluded from the denominator, but a senator who cannot lawfully sit as a senator-judge supposedly remains included. Why? In either case, that person cannot receive evidence, deliberate or vote. For the constitutional function of trying an impeachment, the operative body consists of those legally qualified to sit, placed under oath or affirmation, and capable of rendering judgment.
Azcuna’s formula instead gives legal force to incapacity. It counts someone who cannot judge as though he had judged against conviction. It converts a missing senator-judge into a phantom vote for acquittal.
That is the central defect in his argument, and he never adequately resolved it.
If only 20 senators are legally qualified and sitting, two-thirds means 14. Under Azcuna’s fixed-16 view, the four unable to participate silently join the defense. They need not hear one witness, examine one document, confront one argument or explain one conclusion. Their absence produces the same practical effect as four votes against conviction.
Azcuna sought to justify this by saying that absent senators still represent portions of the electorate. This sounds democratic until one examines it. Yes, every senator retains a representative mandate. But representation is not a vote. An absent senator is not counted as voting “no” on a bill merely because citizens elected him. The electorate authorizes the senator to participate on their behalf. It does not authorize them to be absent and miss votes.
In an impeachment trial, this distinction is especially important. A senator-judge must take an oath, hear the case and decide. The voters represented by an absent senator are not honored by treating absence as acquittal. They are deprived of an actual judgment by their representative. Azcuna’s doctrine does not preserve their voice. It manufactures one for them, always in favor of the accused.
Most disturbing was Azcuna’s willingness to accept the miscarriage of accountability that his interpretation can produce as a price that must be paid. A price for what, exactly? What constitutional principle requires people to accept that an official may escape judgment because persons who never sat as judges are treated as though they voted to acquit?
This was where I expected Justice Azcuna to confront the absurd consequence of his position. Instead, he appeared to normalize it. A constitutional interpretation does not become sound merely because its harmful result is described as a necessary price. Before asking the public to pay, one must identify the value being purchased. Here, the accused gains an artificial numerical advantage, while the public loses an effective mechanism of accountability.
Azcuna also expressed concern that senators might be prevented from attending so that conviction could be engineered. But his fixed-16 rule merely reverses the opportunity for manipulation. If nonattendance counts against conviction, anyone trying to protect an impeached official has every incentive to induce, coerce, exploit or prolong absence. The rule he presents as protection against manipulation can become its instrument.
Worse, Azcuna’s reasoning benefits precisely those who want impeachment rendered useless. An incumbent facing strong evidence does not need to win the judgment of one-third of the senator-judges. The incumbent needs only enough empty chairs. Absence becomes more valuable than argument, evidence or innocence.
This is not a minor technical disagreement. It concerns whether impeachment remains an operational constitutional remedy. The supermajority requirement exists to prevent removal by a bare partisan majority. It should not be inflated into an impossible threshold by counting people who cannot lawfully act as judges. Due process protects the accused from conviction without the necessary votes. It does not entitle the accused to imaginary votes supplied by absence.
I find Azcuna’s position particularly disappointing because an amicus curiae is invited to assist the court, not to offer arithmetic detached from function and consequence. The task called for clarity. Instead, he offered a rule contradicted by his own acknowledgment that the denominator can change, a theory of representation that turns nonparticipation into a vote, and a concession that accountability may fail without explaining why such failure deserves constitutional protection.
I continue to respect Justice Azcuna’s years of service. But past distinction cannot insulate present arguments from criticism. Deference to stature is not constitutional analysis.
Sixteen is two-thirds of 24. It is not an eternal number, and Azcuna himself effectively admitted as much. Empty chairs do not deliberate. Absent senators do not vote. And no former justice, however respected, should ask the nation to accept their silence as acquittal and call the resulting failure of accountability a price worth paying.
The author is a professor at UP Los Baños and vice chairman of the board of PTVNI.
