MANILA, Philippines — Retired Supreme Court Associate Justice Adolfo Azcuna said an impeached official could not be convicted if only 15 of the Senate’s 24 members were available to participate because the Constitution requires the concurrence of two-thirds of all senators for a conviction.
Azcuna shared his opinion when the Senate Impeachment Court consulted former Supreme Court justices tagged amici curiae or friends of the court on Wednesday regarding constitutional issues surrounding the impeachment trial of Vice President Sara Duterte.
Sen. Panfilo Lacson asked Azcuna to consider a hypothetical situation in which nine of the 24 senators became stranded abroad because of a prolonged war, leaving only 15 senators available to participate even though all 24 remained Senate members.
“Where will fairness to the Filipino people go in such a situation?” Lacson asked, stressing that he was not suggesting that the respondent was guilty but was raising a hypothetical question about how fairness could be ensured if only 15 senators were available and capable of participating.
Lacson said he believed the framers of the 1987 Constitution could not have anticipated the current circumstances, in which he said one senator-judge was in hiding, two were detained without bail and one was abroad.
“I agree with former Chief Justice Reynato Puno that we cannot be so rigid as to fix the voting threshold to 16, which is two-thirds of 24 senator-judges,” the senator said.
Azcuna however said that if only 15 senators remained available while the Senate still legally consisted of 24 members, “there can be no conviction” because the Constitution requires the concurrence of two-thirds of all Senate members.
He compared the situation to a Supreme Court case in which the justices fail to obtain the votes required to declare a law unconstitutional.
“In that case, under your rules, if you cannot get the 16, it’s an acquittal. A judgment of acquittal will be entered,” Azcuna said.
He clarified that such an acquittal would not necessarily mean that a majority of participating senators had voted to acquit the respondent.
The Constitution provides that no impeached official may be convicted without the concurrence of two-thirds of “all the members of the Senate.”
Azcuna acknowledged that applying the 16-vote requirement under extraordinary circumstances could result in an impeachment case failing to produce a conviction.
He described this as the possible “price” of maintaining a supermajority requirement for conviction.
He added that impeachment is not the only mechanism for accountability, citing criminal proceedings, forfeiture cases and elections.
Lacson, meanwhile, argued that circumstances involving senators being unavailable because they are in hiding, detained without bail or unable to return from abroad may demonstrate why the constitutional voting threshold could be subject to debate as circumstances change.
Retired Chief Justice Artemio Panganiban took a different view, saying the Senate should still be able to resolve an impeachment case with the senators who are present.
“Fairness can be rendered by two-thirds of those present. It’s not necessary that 16 should vote in favor, because it’s impossible to get 16,” Panganiban said.
