RETIRED Chief Justice Hilario Davide Jr. said the two-thirds vote needed to convict an impeached official should be computed from the number of senators qualified to vote, rather than the Senate’s full membership of 24.
In his written discussion of the voting requirement, the Argao, Cebu native Davide argued that senators who are detained, abroad, suspended or whose whereabouts are unknown should be excluded from the count used to determine the conviction threshold.
His interpretation would allow the number of votes required for conviction to fall below 16, depending on how many senators qualify to participate.
Article 11, Section 3(6) of the Constitution states that no person may be convicted without the concurrence of “two-thirds of all the Members of the Senate,” which translates to 16 votes when computed from 24 senators.
Davide addressed whether “all Members of the Senate” refers to the full membership or only those legally and physically capable of participating and voting on the final question in an impeachment trial.
He said the computation must be based on senators qualified to vote and must exclude those disqualified for the reasons discussed in his paper.
In his discussion of the voting threshold, Davide also examined the Supreme Court’s ruling in Avelino vs. Cuenco, a case involving Senate leadership and the number of senators needed for a majority.
He recounted that Senators Sotto and Confesor were absent from the Senate session on Feb. 21, 1949, because one was hospitalized and the other was in the United States.
Davide wrote that this left 22 senators for purposes of the computation, with 12 constituting a majority, and that Cuenco was elected by 12 votes.
“The Impeachment Court can consider this as having a persuasive value,” he wrote.
Davide concluded that “those who are detained, abroad, suspended or whose whereabouts are unknown cannot be included, or must be excluded, from the phrase ‘all the Members of the Senate.’”
Impeachment trial presiding officer
Davide served as presiding officer of the impeachment trial of then-President Joseph Estrada, whose trial hearings ran from Dec. 7, 2000, to Jan. 16, 2001.
Proceedings stalled after senator-judges voted 11-10 on Jan. 16 against opening a second envelope containing bank records alleged to link Estrada to a secret account, prompting the public and private prosecutors to walk out.
Davide granted a motion to postpone the proceedings indefinitely on Jan. 17, and the trial never reached a verdict.
The vote and walkout helped trigger mass protests against Estrada known as Edsa 2, with demonstrators gathering at the Edsa Shrine to demand his resignation.
On Jan. 20, 2001, Davide administered the presidential oath to then-Vice President Gloria Macapagal Arroyo at the Edsa Shrine, hours before Estrada and his family left Malacañang that afternoon.
Davide himself was impeached in 2003, when the House of Representatives filed an impeachment complaint against him while he was chief justice. The complaint was later dismissed by the House justice committee, which found it insufficient in substance. (KAL)