Ex-CJ Panganiban: What if only 16 senators can vote in impeachment?

MANILA, Philippines — Former Chief Justice Artemio Panganiban questioned the argument that all 24 senators should vote in an impeachment case, asking what would happen if only 16 senator-judges remain able to vote.

During the Senate Impeachment Court’s discussions on proposals to lower the vote threshold for convicting Vice President Sara Duterte, Panganiban was asked by Senator-judge Erwin Tulfo what would happen if the 16 votes required under the 1987 Constitution were practically “impossible to obtain.”

Panganiban said Tulfo’s statements clearly show why the perception that 16 votes are fixed as the number needed to convict an impeached official is flawed.

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“You have given an example of why 16 should not be fixed. If, for example, just an example, five … senators die, three senators resign, that means there are only 16 left; that means that all 16 must vote unanimously? I don’t think so,” Panganiban said.

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“It’s because two-thirds is still two-thirds of 16. Two-thirds of those remaining can vote. Otherwise, you’ll have to immobilize the Senate as a source of justice for our people,” he added.

Panganiban also said that even if the Senate’s membership falls to 16 or even 15, he believes that the senator-judges can examine witnesses and evidence and eventually render justice.

“The important thing for the Senate, in my opinion, in my humble opinion, is that the Senate is able to answer the call for truth and fairness, never mind the technicalities… Even if only three of you render that, and our people are happy, then you would have rendered service to our people,” he explained.

The former chief justice noted that if the Constitution preferred a technical and legalistic trial, impeachment cases should have been referred to the Supreme Court.

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“If our people wanted technicalities and legalities, then the Constitution should have said the Supreme Court shall be the body that will determine impeachment cases. But that is not what was done; that’s why, for me — even if I was a former chief justice of the Supreme Court — I do not believe that the laws and procedures followed by the Supreme Court should be used,” he explained.

“Because if that is what the Constitution wants, to follow what the Supreme Court does, what the lawyers do, then the Constitution should have stated that the impeachment cases will be decided by the Supreme Court,” he added.

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Panganiban’s speech and answers to the senator-judges’ questions leaned toward making the exact number of votes needed to convict an impeachable official more flexible.

READ: Panganiban: Is it fair to let those who hide, enjoy abroad, join trial?

At one point, he said that while mathematics will always be about exact computations, realities must also be considered in navigating proposals to lower the number of votes needed for a conviction.

He said this view is anchored on two methods of interpreting laws of the land — from the literal meaning, or verba legis, to the reason why the law was written, or ratio legis est anima.

Verba legis, Panganiban said, means reading the law according to its ordinary meaning. Applied here, Article XI, Section 3(5) of the 1987 Constitution would mean that an impeachable official would be convicted by a two-thirds vote, or 16 of 24 members.

But Panganiban noted that there is also ratio legis est anima, which takes reality into account in interpreting the law.

READ: Panganiban: 16 votes needed to convict, but realities also matter

As of this writing, three senators have missed a significant portion of the trial: Senators Jinggoy Estrada, Rodante Marcoleta, and Ronald dela Rosa.

Estrada and Marcoleta have been detained over plunder, while dela Rosa has evaded the public eye amid an arrest order from the International Criminal Court.

Senator Loren Legarda, on the other hand, left the country in early August, when the prosecution team was just beginning to present witnesses and evidence for Article I of the Articles of Impeachment, or the allegation that confidential funds within Duterte’s offices were misused.

If four members of the Senate Impeachment Court are not allowed to vote for Duterte’s case, then the number of votes needed to convict Duterte will go down from 16 to 14.

Last June 15, lead public prosecutor and Batangas Rep. Gerville Luistro said that the vote threshold for convicting Duterte in her impeachment trial should be reduced from 16 to 14 if more senators become unable to participate in the trial, as there are possible complaints against several members of the Senate.

READ: Luistro sees lower conviction vote if Senate numbers fall

Private prosecutor Benjamin Tolosa said the prosecution team’s goal is to build a case with overwhelming evidence that can convict Duterte, regardless of how the constitutional provision on the vote threshold is interpreted.

During a press briefing last June 22, Tolosa was asked to elaborate on his earlier statement about the defense panel seeking an immediate discussion on the votes needed to convict Duterte.

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Tolosa declined to say whether there is a need to lower the number of votes needed to convict Duterte, but said they intend to ensure a “compelling case” that can sustain a conviction, whatever the number is. /mcm