Lawyer Rene Sarmiento, one of the framers of the 1987 Constitution, said the fundamental law of the land is a “living” document and called for a flexible and pragmatic approach in interpreting its provision on the two-thirds vote of all members when voting to convict in an impeachment trial.
Speaking on Bilyonaryo News Channel’s “On Point,” Sarmiento said only those who are present should be counted in determining the baseline.
Sarmiento said the issue of whether “all members” refers to the 24 senators or present senators was actually never discussed by the constitutional commission. What they did was copy the provision from the earlier Constitution.
But he subscribes to the view of statesman Claro M. Recto that a constitution is a “living” and “breathing” constitution.
“If you want to achieve a workable democracy, a society that is just and humane, the interpretation should be flexible,” he said.
He also said the framers of the Constitution only copied the provision on the impeachment vote in the earlier charter because at that time, they were thinking of a Senate that was “fully active and functioning.”
They did not contemplate a situation where there are senators who are absent, fugitives from justice, detained, or abroad, he said.
“That’s why Chief Justice [Hilario] Davide was correct. There are those unqualified to vote, and therefore should not be allowed to vote,” he said.
He said the Constitution is not perfect, which is why it should be a living one that feels the pulse of the times.
“That was, I think, the flaw of the framers of the Constitution. We never envisioned a kind of Senate which has this kind of record. But what we have to do now is to be pragmatic. In the words of Recto, to bring about a living and dynamic Constitution sensitive to the pulse of the times,” he said.
Sarmiento said he considers the “textualist” approach to interpreting the baseline for the two-thirds vote to convict to be “too strict” and does not envision a “workable democracy.”
He said it should be balanced with the values of public accountability.
“If we stick to the high bar threshold of two-thirds of all the members, meaning 16, that is too high a bar and that will contradict Article 11 on the public accountability of public officers. We cannot make accountable a public officer,” he said.
“That’s why the approach should be the pragmatic approach. What will bring about a workable democracy in today’s realities? And to me, the flexibility should be followed,” he added.