The four former Supreme Court justices invited by the Senate impeachment court as amici curiae have finished their job.
On September 23, after hearing the final arguments of the prosecution and defense, the senator-judges are expected to vote on the contentious question that has hung over the impeachment proceedings:
Does the two-thirds requirement mean a fixed 16 votes, or can the number change depending on which senators are legally qualified to participate?
For me, the former magistrates did exactly what they were supposed to do.
They did not come before the impeachment court to dictate an answer. They came to illuminate a constitutional question that has become unusually complicated by the absence or inability of several senator-judges to participate in the proceedings.
And perhaps most importantly, they did not all agree.
Former Chief Justice Hilario Davide Jr., through a memorandum, said the basis for computing two-thirds should be the number of senators qualified to vote, rather than automatically using all 24 members of the Senate. Former Chief Justice Artemio Panganiban cautioned that constitutional interpretation cannot always be reduced to abstract mathematics and that circumstances surrounding the exercise of the Senate’s constitutional duty must also be considered.
Former Chief Justice Reynato Puno offered perhaps the most direct challenge to treating 16 as an immutable number.
His point was simple but consequential: the Constitution says “two-thirds”, a fraction. It does not say “16 votes, period.” For Puno, that wording means the number could move depending on circumstances that legally affect a senator’s ability to function as a member of the impeachment court.
Then came retired Associate Justice Adolfo Azcuna, who took the opposing position.
For Azcuna, the constitutional language is equally straightforward: “all the Members of the Senate” means all. As long as a senator remains a member of the Senate, that senator belongs in the denominator. Under that interpretation, the 24-member Senate means a fixed 16-vote requirement.
That disagreement, to my mind, is precisely why the exercise was valuable.
The amici curiae were not there to give the senator-judges a politically convenient answer. They gave them legal arguments to examine, challenge and weigh.
They opened different doors.
Now the senator-judges must decide which constitutional interpretation they find persuasive.
And that is where the responsibility ultimately belongs.
The September 23 vote should not be reduced to a contest over arithmetic. Nor should the opinions of the retired justices be treated as marching orders. They are legal guidance from experienced constitutional jurists — nothing more, and nothing less.
The Senate impeachment court must now exercise its own constitutional judgment.
Whatever happens on September 23, the decision should belong unmistakably to the senator-judges who have taken an oath to try and decide the impeachment case.
The four amici curiae have done their part.
They have shed light on the constitutional road.
Now, it is the senator-judges who must decide where that road leads.
So what is two-thirds of 21 active senators?
The answer is: 14.
The number of active senators presented herein may yet vary in the next few weeks if and when certain cases are formally filed and arrest warrants are served.
Abangan!
