With the impending impeachment trial, a side legal issue is how many senators are needed to convict Vice President Sara Duterte. At first glance, the pertinent provision is clear, “No person shall be convicted without the concurrence of two-thirds of all the members of the Senate.” The number of senators is 24, and two-thirds of 24 is 16. But with two senators unable to participate in the trial, a new question arises: Will it be two-thirds of all the senators or two-thirds of those who can participate? If it is the latter, then 15 is the needed number.
Each of the two possible answers is supported by legal luminaries, who forward their own arguments. Those who say that the number remains 16 argue from the letter of the Constitution itself. They say that we cannot make distinctions where no distinction is made in the text. Opposed to this view is that the changing context, which was not foreseen by the Constitutional Commission, would necessitate at least another look at the provision.
I am not a lawyer but I will comment on this question from the perspective of a student of hermeneutics, or the philosophy of interpretation. I need to state from which perspective I am coming since some lawyers, in thinly veiled hubris, would engage in the weaponization of credentials and be dismissive of opinions of those without any legal training. Fortunately, such kind of lawyers are few. Indeed, the irony is that the more brilliant ones can explain concepts without resorting to esoteric jargon.
Coming from their lessons on statutory construction, many lawyers are of the belief that the only valid methodology of interpreting the law is to retrieve the meaning intended by the lawgiver. In other words, we need to know what it meant, before we determine what it means today. Thus, when a particular constitutional issue is raised, lawyers dig up the minutes of the Constitutional Commission.
If we give examples from another field, it is similar to saying any interpretation of Antoine de Exupery’s The Little Prince cannot be outside of the meaning which the author tried to convey.
But for students of hermeneutics, it is common to assert that while the original meaning is an important guide, we cannot be tied to it. The meaning of the text evolves and the author can no longer control how the text is understood. Let us take the passage, “you shall know the truth and the truth shall set you free.” It is likely that the original meaning was “you shall know Jesus the incarnation of the truth and he will set you free.” But now this passage is almost universally interpreted without any reference to our faith in Jesus. This is often taken to mean that acceptance of the truth is liberating.
Let us now go back to law. There are actually precedents when the courts decide beyond literality. Take the case of the ouster of President Estrada in 2001. In the 1987 Constitution, the President ceases to be such if or when 1. He dies; 2. He is convicted in an impeachment trial; 3. He resigns; 4. He is declared to be incapacitated. But none of these scenarios happened.
But the Supreme Court, in a decision penned by Justice Reynaldo Puno, concluded that Erap actively resigned. The decision said that we need to consider the whole context. But the problem was that particular historical context in 2001 could not have been foreseen by the Constitutional Commissioners in 1987. Thus, strictly speaking, active resignation was a novel concept.
My point is further buttressed by a concurring opinion of Justice Jose Vitug, “More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living testament and memorial of the sovereign will of the people…Certainly, this fundamental statement is not without meaning. Nourished by it, it grows and copes with changing milieu. The framers of the Constitution could not have anticipated all conditions that might arise in the aftermath of events… The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its restrictive letters and wordings, rather than the pulsating law that it is.”
Well now, could the framers of the Constitution have foreseen that one senator is in hiding and another is in prison?
Admittedly, there are still further questions which I could not answer due to limitations of space. For instance, how do we avoid relativism which says that any interpretation is just as good as the other? Let me simply say that the justices are there to determine whether an interpretation is part of the evolution of the meaning or an outright distortion.
