Two-thirds

Sen. Francis “Chiz” Escudero, the presiding officer of the Senate impeachment court, has ruled that 16 votes—in a chamber of 24—are needed to convict and remove Vice President Sara Duterte, regardless of whether some senators are detained, in hiding, sick, or otherwise unable to participate in the proceedings. His position appears to be anchored on a literal understanding of the Constitution: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

I AM NOT A POLITICIAN AND CANNOT DIVINE THE SENATE’S POLITICAL WISDOM in computing its math. But I can offer a legal and judicial perspective on how the Supreme Court determines its majority—on how it ascertains the voting denominator when resolving cases.

To be precise, the Court does not always compute its majority from its full complement of 15 members. The Internal Rules of the Court provide that an en banc case requires a quorum of at least eight members, and a decision on a case is attained with the “concurrence of the majority of the Members of the Court who actually took part in the deliberations” and voted thereon. Consequently, the computation of the mathematical denominator shifts depending on ACTIVE participation. Let me cite some examples:

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One, let us consider the notorious flip-flops in “League of Cities v. Comelec” (Dec. 21, 2009, per J. Presbitero J. Velasco Jr., en banc). After initially declaring the “Cityhood Laws” unconstitutional in 2008 through a narrow 6-5 vote, the Court reversed course in 2009 by declaring them constitutional via a 6-4 vote. The reversal succeeded because two vacancies and three abstentions reduced the denominator to only 10 justices. A year later, the Court, voting 7-6, reinstated its original ruling (of unconstitutionality) using the denominator of 13 because two justices “took no part.”

Two, the Court in “Cruz v. DENR Secretary” (Dec. 6, 2000, per curiam) illustrated again how this changing denominator can alter outcomes, showing how a case is often “won or lost on the basis of one vote.” Thus, when the constitutionality of the Indigenous Peoples’ Rights Act of 1997 was challenged in that case, the Court en banc had only 14 members due to the retirement of J. Fidel P. Purisima. The vote was deadlocked at 7-7. Failing to obtain a majority of the 14 justices (which is eight), the petition was deemed unmeritorious and the constitutionality of the law was thereby upheld.

Three, citing the Cruz case, the Court in “De Castro v. Judicial and Bar Council” (Mar. 17, 2010, per J., later CJ Lucas P. Bersamin, en banc) emphasized that the constitutional prohibition on midnight presidential appointments does not extend to the appointment of the members of the judiciary.

Moreover, the Court stressed that “[m]ore than the vote, Court deliberation is the core of the decision-making process, and one voice less is not only a vote less but a contributed opinion, an observation, or a cautionary word less for the Court.” It added that a court without a chief justice is not a whole Supreme Court with only 14 members who could not effectively act and vote on critical matters that “may gravely affect the nation.”

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BE THAT AS IT MAY, THESE EXAMPLES DO NOT NECESSARILY ANSWER the question we are taking up. Unlike the Supreme Court, which reviews only questions of law on facts proven in the trial courts, or admitted as true by the parties, or otherwise “judicially noticed,” the Senate impeachment court conducts riveting, if not entertaining, trials, receives evidence, hears witnesses, and observes their demeanor on the stand to excavate the facts.

To stress, the Supreme Court is not a trier of facts. Its function is limited to reviewing errors of law that may have been committed by the lower courts and/or determining whether a governmental act has been attended by grave abuse of discretion amounting to lack or excess of jurisdiction.

Thus, the analogy I propose is not for the Senate to follow blindly the Court’s method of ascertaining the voting denominator. Rather, my thesis is that the two-thirds voting requirement cannot be understood or enforced without first identifying the correct mathematical denominator.

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THE TWO-THIRDS RULING OF ESCUDERO IS NOT WRITTEN IN STONE. He could reverse himself at any time, or the impeachment court can reverse or modify his ruling at the proper time. I believe that such ruling is merely interlocutory and does not become final until the decision is reached. Moreover, its reversal or modification requires only a simple majority, not two-thirds.

Nonetheless, the issue will impel the highest tribunal to act only after it determines that the Senate committed grave abuse of discretion. If it was merely discharging its constitutional prerogatives, as contradistinguished from “gravely” abusing its discretion, the Court will not interfere.

At bottom, though granted the power to chart its own course, the impeachment court remains susceptible to the shifting moods of public sentiment. It is therefore the duty of the Supreme Court to anchor, when properly petitioned, the exercise of such power to the rule of law and not to concede it to unreliable partisan passion.

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