Former Far Eastern University law dean Mel Sta. Maria said the two-thirds vote to convict in an impeachment case is not set at 16 and can vary based on the actual number of senators who are actually participating in the proceedings.
Sta. Maria said this is supported by the provisions of the Constitution itself, as he warned of a “legal absurdity” that could arise when the absence of members is taken as a vote to acquit.
In a Facebook post, Sta. Maria said the phrase “two-thirds of all the members” for the vote to convict should not be viewed in isolation as he contended that literal presence is required for a senator to be counted.
He pointed out that Section 3 (6) Article Xl of the Constitution also states: “The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation.”
He said the phrase “when sitting for that purpose” means that the phrase “all members” refers to senators who have taken their oath to sit as judges in the trial and are actually participating in the proceedings.
“Isolating ‘all the Members’ from its contextual surroundings (the whole of Section 3 [6]) produces a legal absurdity: every absent, recused, or incapacitated senator is automatically converted into a vote for acquittal. The Constitution cannot be interpreted to allow non-participation to dictate a judicial outcome,” he said.
He said that when the people voted to ratify the Constitution, they understood “sitting for that purpose” in its literal sense.
“The voters who ratified the Constitution intended for impeachment to be a real trial conducted by actual, present judges—making literal presence an indispensable prerequisite for counting toward the two-thirds threshold,” he said.
This is why senators who are not “sitting for that purpose” or not actually participating should not be counted when determining the two-thirds vote to convict, he said.
He also said that without taking the oath for the trial, a senator cannot be a judge and should not be counted.
“The law is therefore clear. A senator cannot be transformed into a judge without taking his oath or affirmation. These two are the sustaining elements during the duration of the proceedings that shall allow them to be judges. Without the oath or affirmation, they are senators as legislators but not judges in the impeachment court,” he said.
Sen. Ronald Dela Rosa who is in hiding, and Sen. Jinggoy Estrada, who was arrested for a plunder case, were not present when the senators took their oaths as judges for the impeachment trial.