Azcuna warns vs lowering impeach court’s conviction base: ‘All means all’

MANILA, Philippines — Former Supreme Court Associate Justice Adolfo Azcuna believes that a two-thirds vote of the 24 senators is needed to convict in an impeachment trial.

He also warned against lowering the number to a simple majority.

Appearing in the Senate impeachment court on Wednesday as an amicus curiae or as a “friend of the court,” Azcuna pointed out that a constitutional provision on the voting conviction particularly uses the phrase “all members of the Senate.”

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“As long as they are members of the Senate, they constitute the denominator in computing the threshold of two-thirds – because all means all,” he stressed. 

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Noting that the impeachment process could not only result in the removal, but also a disqualification of an accountable official, Azcuna said that “a decision this hard to undo warrants a higher threshold of agreement than routine business, just as constitutional amendments, treaty ratification, and expulsion of a sitting senator require supermajorities.”

According to him, the framers of “the supermajority-impeachment clause” also feared that  impeachment could become “a tool for a transient legislative majority to remove a political rival or an official from a disfavored party, effectively overturning an election result through legislative fiat rather than through the ballot box.”

“A simple-majority threshold would make impeachment conviction achievable by whichever coalition happens to control the chamber at any given moment, collapsing the distinction between “removable for cause” and “removable because we have the votes,” he said.

Azcuna warned that lowering the threshold to a simple majority “would reward speed and numbers over persuasion and proof.”

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“In conclusion, Your Honors, what we mean by supermajority is that the vote needed to convict must be more than simple majority. It cannot be one-half plus one,” he told the senator-judges.

Because of the gravity of the impeachment process, he said the framers of the Constitution want the voting base to be two-thirds of the entire Senate membership.

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“Basing the denominator on only those who actually participate and are present can effectively reduce the two-thirds to a simple majority,” Azcuna said.

“For example, if there’s only 20 who are participating, two-thirds of 20 would effectively become 13 or 14 so that would be really simple majority. That’s not the purpose of the internal check of a threshold.”

“A threshold must be fixed, not variable. It must be determinable from the start. It can’t be something that will be figured out as we go along, depending on how many are present,” he further stressed.

In the end, Azcuna maintained that no person should be convicted in an impeachment case without the concurrence of two-thirds of all the members of the Senate.

As to the question whether a senator-judge who did not attend or substantially participate in the proceedings could still cast a vote on the final question in an impeachment trial,  the retired justice said the matter should be decided by the Senate according to its own wisdom.

If he were to be asked, however, Azcuna said those who missed the proceedings should still be allowed to vote since the proceedings are recorded anyway.

Aside from him, three retired Supreme Court justices—Artemio Panganiban, Reynato Puno and Hilario Davide Jr.—were invited as “amici curiae” or friends of the impeachment court trying the case of Vice President Sara Duterte.

Presiding Officer and Sen. Francis  Escudero had already previously ruled that conviction requires at least 16 votes or two-thirds of all 24 senator-judges.

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But Senator-judge Erwin Tulfo appealed the ruling last week, prompting the court to seek the help of the amici curiae. /apl