Honorable Senate President Gatchalian, Honorable Senate Presiding Officer Escudero, Honorable Senator-Judges, my esteemed colleagues when we’re in the Supreme Court. The Prosecution and Defense Panels, good morning and thank you for the invitation for the first ever Amicus Curiae, invited by an impeachment court in our history. I am here to answer the questions as a friend of the court, representing neither party and expressing my personal opinion on the constitutional and legal issues propounded by the advisory of the court to me.
Your Honors, the first question is whether the phrase, “all the members of the Senate,” in Article 11, Section 3, Subsection 6 of the 1987 Constitution, should refer to the Senate’s full membership of 24 senators or only to those who are legally and physically capacitated to participate and vote on the final question in an impeachment trial. I respectfully submit, Your Honors, that the reference in this provision is to all members of the Senate. As long as they are members of the Senate, they constitute the denominator in computing the threshold of two-thirds because all means all.
To start with, Your Honors, impeachment is a political-judicial hybrid exercise. It is not an ordinary voting procedure. Impeachment removes a sitting, popularly accountable official, often directly elected before the end of a fixed term. Unlike ordinary legislation, Your Honors, which can be revised, amended or repealed, a conviction in an impeachment case is final and largely irreversible.The official is removed and in many systems, disqualified from future office. A decision this consequential and a decision this hard to undo warrants a higher threshold of agreement than routine business–just as constitutional amendments, treaty ratification,and expulsion of a sitting senator require super majorities.
The Senate sitting as an impeachment court is exercising a quasi-judicial function layered on top of a political one. And the gravity of such function justifies a heightened standard of proof of consensus.The supermajority rule protects against factional and partisan abuse.The framers of the “supermajority impeachment clause” were reacting to a specific fear that impeachment could become a tool for a transient legislative majority to remove a political rival or an official from a disfavored party, effectively overturning an election result through legislative fiat rather than through the ballot box. A simple majority threshold, Your Honor, should make impeachment conviction achievable by whichever coalition happens to control the chamber at any given moment, collapsing the distinction between removable for cause and removable because we have the votes.
Requiring two-thirds, forces conviction to rest on a coalition that cuts across ordinary partisan lines, which is precisely the point. It signals that the wrongdoing is serious and broadly, not merely factionally, recognized. It preserves separation of powers and checks legislative overreach. Impeachment already concentrates significant powers on the legislature. It is simultaneously the accuser, the prosecutor, and the judge. Without an internal check, the concentration of powers would allow the legislative branch to dominate the executive and the judicial branches simply by threatening or wielding removal. The two-thirds requirement functions as an internal check. It disperses the power to convict widely enough that no single faction, however large, can unilaterally topple another branch of government. In this sense, the supermajority rule is not an obstacle to accountability. It is part of the system of accountability assuring that the impeachment power itself is exercised responsibly. It encourages deliberation over expediency, a conviction requiring broad consensus, compels senators to sustain a case that persuades across functional lines which in turn incentivizes a more thorough evidence-based process rather than a rushed or emotionally charged one.
Lowering the threshold to simple majority would reward speed and numbers over persuasion and proof and would make the trial phase in the Senate largely redundant. If the outcome is preordained by whichever party holds a bare majority, the trial becomes a formality rather than a genuine deliberative check.
Finally, Your Honors, the two-thirds of all members, all members, stand their guards against a thin and unrepresentative conviction. The clause…deliberately anchors the threshold to two-thirds of all the members of the Senate, not merely the two-thirds of a quorum present at trial. This is a stricter and more demanding base than the rule that governs ordinary legislation because the difference is intentional rather than accidental.
In conclusion, Your Honors, what we mean by supermajority is that the vote needed to convict must be more than simple majority. It cannot be one-half plus one. In our case, our framers of the Constitution, not just 1987, way back 1935, wants it to be two-thirds, in the case of 1935, three-fourths of all the members of the Senate, all. That is because we need a supermajority because of the gravity of the exercise. Basing the denominator on only those who actually participate and are present can effectively reduce the two-thirds to a simple majority. For example, if there’s only 20 who are participating, two-thirds of 20 would effectively become 13 or 14. So that would be really simple majority. That is not the purpose of the internal check of a threshold. A threshold must be fixed, not variable. It must be determinable from the start. It cannot be something that will be figured out as we go along depending on how many are present. So the two-thirds concurrence requirement is not a technicality, it’s not a flow of drafting. It reflects a deliberate judgment that impeachment conviction, final,disqualifying, and capable of overturning the choice of the electorate, should require a demonstrate cross-factional consensus rather than the assent of a bare majority. It is this future more than any other that keeps impeachment a remedy for genuine and serious misconduct rather than a routine weapon of partisan competition.
For these reasons, this humble representation sustains the view that no person shall be convicted in an impeachment case without the concurrence of two-thirds of all the members of the Senate.
As to the other questions, Your Honor, the Avelino v. Cuenco case is not applicable here because…To start with, it was decided on the basis of the 1935 Constitution where the wording involved was different. It involved quorum and the quorum requirement under the 1935 Constitution says majority of the Senate. It didn’t say all the members, yes, majority of the Senate. And so it’s not applicable whatever interpretation of that majority of the Senate for purposes of quorum is different from the two-thirds of all the members of the Senate required in impeachment cases. As to whether or not, a difficult question, someone, one of you, who has not attended all the hearings, I will quote it. “Whether or not a senator-judge who did not attend or substantially participate in the impeachment proceedings asked among others profound questions to and observed the demeanor of witnesses may nevertheless validly cast a vote on the final question in an impeachment trial.” I believe, Your Honor, that this is an internal matter that should be decided by the Senate according to its own wisdom.
The voting, this voting now, this is not computation of the threshold whether or not such a member was not attended all the hearings, but presumably has taken an oath and is part of the central judges participating in the trial, but missed some of the trials, may nevertheless cast a vote. If there is no rule in the Senate as to that, what is my opinion? I think, Your Honor, in case of doubt, I would allow such a person to vote because this tribunal is a tribunal of record. The proceedings are recorded. Someone who fails or absent in some of the trials can easily check what the witnesses testified to based on the transcript. Moreover, most of the evidence here is documentary so someone who has not appeared in some of the hearings can check on the documents involved. So personally, I would decide in favor of allowing such a senator-judge to vote according to, of course, the conscience of such judge. Remember that a senator-judge participating in an impeachment case takes an oath. What does that oath say? The oath says that the Senator-Judge swears to render impartial judgment according to the Constitution and the laws of the Philippines. If he or she feels that he or she can render impartial judgment, honestly, according to the Constitution and the laws, then even if he missed one or two, or maybe even substantially, most of the hearings were still…Based on the record, he or she feels that she can honestly judge the respondent, I would allow. But that’s me. This is, I said, internal matter for the Senate to decide, according to a rule it may adopt on its basis.Thank you again, Your Honour, respectfully submitted.#
