World

Davide Says Two-Thirds Vote for Duterte Conviction Should Exclude Incapacitated Senators

By Philstar.com

MANILA, Philippines — Retired Chief Justice Hilario Davide Jr. has argued that the two-thirds vote required to convict Vice President Sara Duterte in her impeachment trial should be calculated based only on senators who are qualified and able to vote, not automatically on all 24 Senate seats.

Davide's position was presented in a memorandum submitted as amicus curiae, or friend of the court, which was read before the Senate impeachment court on Wednesday, September 16.

He contended that senators facing legal or physical restraints preventing them from participating in the trial should be excluded from the count used to determine the two-thirds threshold needed for conviction.

Davide, a delegate to the 1971 Constitutional Convention and a member of the 1986 Constitutional Commission, said the framers of the Constitution did not specifically debate the meaning of "all the members of the Senate" in the impeachment provision. However, he said they understood "members" to refer to senators capable of performing their duties. Interpreting it otherwise, he wrote, would "tolerate an absurdity, and perpetuate an injustice."

Under his interpretation, senators who have resigned or been expelled would not be included in the count. He said the same principle should apply to senators unable to participate due to serious physical or mental incapacity, such as being in a coma or suffering from terminal illness.

Davide also said senators who are abroad, in hiding, or whose whereabouts are unknown should be excluded from the count. He further argued that senators under legal restraint should not be considered part of the voting body — this includes those detained on plunder or graft charges, those facing other criminal cases that prevent them from performing their duties, and those already convicted and serving sentences.

He cited Supreme Court rulings stating that public officials in detention cannot exercise the functions of their office while detained.

Davide also referenced the 1949 Supreme Court case Avelino v. Cuenco, which has been cited in debates over how the Senate should count its membership. He noted the case was not directly applicable since it involved quorum during a regular Senate session rather than the constitutionally mandated vote in an impeachment trial, but said it still carried persuasive value.

In that case, two senators were absent — one hospitalized and another in the United States — leaving 22 senators capable of acting, with 12 constituting the majority that elected Mariano Cuenco as Senate president. Applying similar reasoning to the current impeachment proceedings, Davide argued that senators who are detained, abroad, suspended, or otherwise unable to participate should not be included when calculating the voting threshold.

The Senate impeachment court is currently reviewing an appeal against presiding officer Chiz Escudero's earlier ruling that 16 votes — two-thirds of the full 24-member Senate — are required to convict Duterte.

Davide is one of four retired Supreme Court justices invited to serve as amici curiae to advise the impeachment court on this constitutional issue. The others are retired Chief Justices Artemio Panganiban and Reynato Puno, and retired Associate Justice Adolf Azcuna. Davide submitted his views in writing rather than appearing in person.