For Davide, 16 votes not necessarily required to convict Sara Duterte

MANILA, Philippines — Retired chief justice Hilario Davide Jr. argued that the two-thirds threshold in Vice President Sara Duterte's impeachment trial should be based only on senators qualified and able to vote, rather than automatically on all 24 Senate seats.

Davide's position was contained in a memorandum submitted as amicus curiae, or friend of the court, which was read before the Senate impeachment court on Wednesday, September 16.

He argued that senators facing legal or physical restraints that prevent them from participating in the trial should be excluded from the denominator used to determine the two-thirds vote required for conviction.

Davide, who was a delegate to the 1971 Constitutional Convention and a member of the 1986 Constitutional Commission, said the framers did not specifically debate the meaning of "all the members of the Senate" in the impeachment provision.

But he said they understood "members" to mean senators capable of performing their duties.

Any other interpretation, Davide wrote, would "tolerate an absurdity, and perpetuate an injustice."

Under his interpretation, senators who have resigned or been expelled would not be counted.

He argued that the same should apply to senators unable to participate because of serious physical or mental incapacity, citing examples such as coma or terminal illness.

Davide also said senators who are outside the country, in hiding or whose whereabouts are unknown should be excluded from the count.

He further argued that senators under legal restraint should not form part of the voting body, including those detained while facing plunder or graft charges, those facing other criminal cases under circumstances preventing them from performing their duties, and those convicted and serving sentence.

Davide cited Supreme Court rulings holding that public officials in detention cannot exercise the functions of their office while detained.

Davide also addressed the 1949 Supreme Court ruling in *Avelino v. Cuenco*, which has figured in arguments over how the Senate should count its membership.

He said the case was not directly controlling because it dealt with quorum during an ordinary Senate session rather than the constitutionally required vote in an impeachment trial.

Davide nevertheless said the ruling had persuasive value.

In Avelino, two senators were absent, one confined in a hospital and another in the United States. Davide said this effectively left 22 senators capable of acting, making 12 the majority that elected Mariano Cuenco as Senate president.

Applying that reasoning to the impeachment court, Davide argued that senators who are detained, abroad, suspended or otherwise unable to take part in the proceedings should not be counted when determining the voting threshold.

The Senate impeachment court is considering an appeal of presiding officer Chiz Escudero's earlier ruling that 16 votes, or two-thirds of the full 24-member Senate, are required to convict Duterte.

Davide is one of four former Supreme Court justices tapped as amici curiae to advise the impeachment court on the constitutional question.

Retired Chief Justices Artemio Panganiban and Reynato Puno and retired Associate Justice Adolf Azcuna were also invited to give their views. Davide submitted a written memorandum instead of appearing personally. — Based on reports from Cristina Chi and Martin Ramos

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