Four former Supreme Court justices appeared as amici curiae on the burning constitutional question: Is 16 votes required to convict an impeachable official?
Here's where they stand:
1. CHIEF JUSTICE HILARIO DAVIDE JR.
Davide took the clearest position that 16 should not automatically be treated as fixed in every circumstance.
His view is that the two-thirds requirement should be computed from senators who are legally and physically qualified and capable of participating and voting.
In other words, the fraction is fixed. The denominator may depend on reality.
Davide also discussed the possible relevance of Avelino v. Cuenco, where the Supreme Court considered senators who were absent because of circumstances that prevented them from performing their functions.
His basic warning is simple: If a senator is legally or physically incapable of performing the duties of a senator-judge, should that senator automatically remain part of the voting denominator?
For Davide, the Constitution should not be interpreted in a way that produces an absurd or unjust result.
2. CHIEF JUSTICE ARTEMIO PANGANIBAN
Panganiban focused on a different but related point: Constitutional interpretation cannot always stop at abstract mathematics.
Two-thirds of 24 is, mathematically, 16.
But Panganiban emphasized that "reality" can change the denominator, and that constitutional interpretation must consider the actual circumstances in which the constitutional provision operates.
He also raised a fundamental question about participation: Can a senator meaningfully judge an impeachment case if he or she did not attend the proceedings, hear the witnesses, examine the evidence, or participate in the search for truth?
For Panganiban, meaningful adjudication requires active participation.
He therefore emphasized truth, fairness, the purpose of impeachment, and the need for the senator-judges to actually engage with the evidence before rendering judgment.
3. CHIEF JUSTICE REYNATO PUNO
Puno's emphasis is institutional.
The Constitution gives the Senate the SOLE power to try and decide impeachment cases. That means the Senate impeachment court has the primary responsibility to resolve questions arising from the exercise of that constitutional power.
And when the Supreme Court is asked to review the Senate's action, the review is not simply an opportunity for the Court to substitute its own judgment for that of the impeachment court. The Supreme Court can intervene only when there is grave abuse of discretion amounting to lack or excess of jurisdiction.
In short, the Constitution gives the impeachment power to the Senate. The Supreme Court's role is not to become the Senate's substitute impeachment court.
Puno also focused on the actual constitutional language. The Constitution did not simply say "16 votes." It said: "Two-thirds of all the Members of the Senate." And for Puno, that distinction matters.
4. JUSTICE ADOLFO AZCUNA
Azcuna takes the clearest opposing position: ALL MEANS ALL.
The phrase “all the Members of the Senate” was deliberately chosen because impeachment is supposed to be difficult. The Constitution requires two-thirds of all 24 senators = 16 votes, not merely two-thirds of those who happen to participate.
The supermajority requirement serves as a constitutional safeguard against impeachment becoming a political weapon wielded by a temporary faction or simple majority.
And for Azcuna, the denominator does not fluctuate depending on attendance. A senator remains part of "all the Members" unless that senator dies, resigns, or is removed from office.
MY TAKE
What strikes me is this: Three of the four retired justices (Davide, Panganiban and Puno) leave room for the proposition that 16 is NOT an immutable number under every possible circumstance.
Their reasoning differs. Davide looks at who is qualified and capable of voting. Panganiban looks at reality and meaningful participation. Puno looks at the Senate's sole constitutional power to try and decide impeachment cases.
Taken together, these views leave room for the Senate impeachment court to determine what the Constitution requires under the actual circumstances before it.
Azcuna, however, takes the opposite view.
His interpretation is legally sound and textually grounded. "All the Members of the Senate" means all 24. Two-thirds means 16. Period.
But here is where I respectfully have difficulty with such interpretation. It is so rigid that, under certain extreme circumstances, it can produce an absurdity, and even an impossibility.
Imagine Senator Lacson’s hypothetical: only 15 senators remain functioning as senator-judges because the other nine are outside the coercive powers of the Senate.
All 15 participate.
All 15 hear the evidence.
All 15 study the records.
All 15 vote to convict.
Still no conviction because 16 is mathematically impossible.
At that point, the constitutional requirement ceases to be merely difficult. It becomes impossible to fulfill.
For me, the Constitution should be interpreted in a manner that gives effect to its provisions, not one that renders a constitutional power incapable of being exercised when extraordinary circumstances arise.
The Constitution was written not merely for today's 24 senators, or for the circumstances of this particular impeachment trial. It was written to govern all circumstances that may arise in the future.
For me, that is the constitutional problem with treating 16 as an immutable number.
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