Retired Chief Justice Hilario Davide, one of the framers of the 1987 Constitution, said the two-thirds threshold to convict in an impeachment trial must be based on the number of senators qualified to vote, not the 24 members of the present Senate.
Davide said those disqualified should not be included, as it would defy logic and reason to count senators who are out of the country or detained in determining the basis of the two-thirds.
Davide is one of the amici curiae tapped by the Impeachment Court to share his views on the issue and his memorandum on the issue was the first to be heard by the court.
He submitted a memorandum as he is unable to go to the Senate. The other amici curiae will address the Impeachment Court today.
Davide said that during the deliberations in the 1973 Constitutional Convention and in the Constitutional Commission of 1986, there was no debate on the two-thirds issue.
He said it was presumed and assumed that the word “members” refers to living persons who are not suffering from mental, physical, or health conditions that make them incapable of exercising their duties, or those who are prohibited from doing so through legal restraints or impediments.
“This is the spirit of the provision. It could not be otherwise. Any interpretation to the contrary would defy reason, logic and common sense; tolerate an absurdity; and perpetuate an injustice,” he said.
He said the framers of the 1935, 1973, and 1987 Constitutions could never have intended to include in the phrase “all members” those who have resigned or been expelled; those suffering from mental infirmity or physical incapacity; those outside the jurisdiction of the Philippines or who are in hiding to avoid arrests; and those who are facing some legal restraint, such as those charged with plunder.
He noted that the Supreme Court has handed down decisions stating that public officers facing criminal cases in court cannot practice their profession during the pendency of their cases or hold office while in detention.
“Clearly, then, the basis of computing the two-thirds must be the number of senators who are qualified to vote,” he said.
Davide also said the Supreme Court ruling in Avelino v Cuenco, which determined the Senate majority based on members within the Senate’s reach, is not directly applicable in impeachment cases.
But he said it may provide some “guiding light” by analogy.
He said senator-judges who did not attend the sessions or who never performed the duties of a judge must be deemed to have never participated in the performance of the duties.
“You should belong to the category of those who are outside the jurisdiction of the Philippines, or in a foreign country, or one whose whereabouts are unknown,” he said.