San Beda Graduate School of Law Dean Fr. Ranhilio Aquino submitted a memorandum to the Senate Impeachment Court on the voting threshold in Vice President Sara Duterte’s trial and said the number to convict is not fixed at 16.
Presiding Officer Sen. Francis Escudero said that the Impeachment Court shall consider the points raised by Aquino, pursuant to its rules that allow it to receive and consider position papers from non-parties who have demonstrated expertise on the issue.
In his memorandum, Aquino said the Senate itself can decide on the number of votes required to convict, or what constitutes the two-thirds of all members as required by the Constitution,
He said the Senate has primary jurisdiction over the matter due to the express grant of exclusive constitutional power.
Suggesting that the matter be brought to the Supreme Court to be resolved is “misplaced deference to a co-equal and coordinate branch,” he said.
“Hastily referring the matter to the Supreme Court implies a hesitation to allow the Senate to interpret the Constitution. There is no principle in constitutional law that makes the interpretation of the fundamental law the exclusive preserve of the judiciary,” he said.
Aquino also said the number of votes required to convict need not be set at 16, which is two-thirds of the Senate’s 24-member total membership.
He said the premise of the sentence “No person shall be convicted without the concurrence of two-thirds of all Members of the Senate” is that those who vote are those who tried the case.
He said this is supported by the Senate rules, which presume that the senators voting in the trial participated in the deliberations since they are given the opportunity to explain their vote.
“There can be nothing to explain if the senator concerned was never part of the deliberations,” he said.
He also said that a rule in legal interpretation is avoiding absurd results.
This would be the case if there were a fixed number to interpret “two-thirds of all members,” he said.
He said that if nine senators were to resign, be incapacitated, or perish, then nobody could be convicted in an impeachment trial regardless of the strength of the evidence.
If the vote to convict is fixed at 16, then absent senators would be allowed to judge proceedings they never participated in, which would not be fair, he said.
“More importantly, if sixteen (16) were a fixed number for conviction, then every absent member would, in effect, be casting a vote of acquittal – and this would be the height not only of absurdity but of unfairness,” he said.