The 1987 Constitution says that 2/3 of all the members of the Senate is required to convict or acquit the accused in an impeachment court. And, 2/3 of 24 = 16. Is this to be literally or contextually construed?
Let’s begin with literal construal of 2/3 of 24 = 16. There are 24 senators and it is always 24 in the impeachment trial. Thus, when the phrase “all members of the senate” is literally construed, 2/3 of them always gives 16, regardless of the surrounding circumstances. The literal construal rigidly sticks to the letter of the law and does not give way to any other form of construal.
In the context of the election, the number of senators is indeed 24. But in the current state of the senate, some senators are gone. Bato is in hiding. Estrada and Marcoleta are in prison. Legarda is out of the country for the so-called health reason. It can be said, then, that only 20 senators are “functioning” as senator-judges. From the literalist construal of the law, the “base” for the 2/3 of “all the members” of the senate must always be 24, even though some are no longer functioning as senators in general or senator-judges in particular. The “base” cannot be reduced to 20.
Is the literalist construal of the law logical? Shall the phrase “all the members” be strictly constituted with both the “functional” and “non-functional” members? Or, shall “all the members” constitute only the functional members? Or shall “all the members” constitute only the “non-functional” ones? (this one is clearly illogical).
The word “all” here needs to be analyzed further. Let’s distinguish “membership” and “functionality.” If the question is about the “membership” of the senate, then the word “all” does indeed make sense. All 24 are no doubt members of the senate. If the question is about “functionality” of the senators, then the word “all” does make sense only when applied to the functioning senators; but, logically, it does not make sense when it is inclusively applied to the non-functioning ones as well.
It now appears that the literalist construal of this law sticks to the concept of membership, without minding at all about the concept of functionality.
In the context of the ongoing impeachment trial, it is the “functionality” that is in question. It is because impeachment court is not about membership but about “functional act”: the judge-function of the senators. Therefore, the word “all” refers only to the actually functioning senator-judges. Those who are not functioning as senator-judges, because of absence due to different reasons, are not included in the word “all.” That is to say, the phrase “all the members” includes only those who are exercising the “functional act” of senator-judges.
The literalist construal of this law appears to be illogical because it sticks to the concept of “membership” instead of “functionality”; and, in this case, it is the latter that is in question.
The contextual construal of this law coincides with the concept of “functionality” of the senators: i.e., the functional act of being senator-judges. Now, since four senators are not “functioning” as required, in the context of impeachment trial—although they are members of the senate—they are logically not included in the concept “all members of the senate functioning as senator-judges.”
As former associate Justice Carpio said: “They are mandatorily suspended as members. They cannot attend sessions or vote any motion. How can they act as judges in an impeachment case? Legally, they cannot exercise the functions of a senator, so it does not make sense to include them in the count.”
Here, Carpio speaks of “function” from the legal point of view, and he seems to use it in general sense. Generally, for Carpio, a suspended senator is legally prohibited to function in all aspects of being senator, one of which is being a senator-judge in an impeachment court. Thus, from the legal point of view, the non-functioning senators—either by being prohibited by law or by being impeded by imprisonment or by being on leave due to one reason or another—should not and cannot be included in the concept “all members of the senate who are functioning as senator-judge.”
Now, 2/3 of 24: should it be literally or contextually construed? It is shown above that the literalist construal is illogical, because it is a question about “functionality” and not merely about “membership” of the senate.
The contextual construal is logically in consonance with the concept of “functionality.” It is logical to say that those who are not functioning as senator-judge cannot be included in the count, as former Associate Justice Carpio legally asserts.
Thus, to say that 2/3 of all the members (without qualification, i.e., both functioning and non-functioning = 24) is always 16 is to illogically stick to the concept of mere membership, disregarding the concept of functionality and legality. But, to say that 2/3 of all the members (with qualification, i.e., only the functioning ones = 20) is now 13 is to logically stick to the concept of functionality.
Literal or contextual construal? It depends upon the premise one takes into account: either the concept of membership or the concept of functionality of a senator. One can judge which concept is in line with logic and reality.
