The constitutional two-thirds needed to remove an official through impeachment should be measured against the senators actually eligible to cast a vote rather than the Senate’s full roster of 24, retired Chief Justice Hilario Davide Jr. argued in a memorandum reaching the Senate Impeachment Court on Wednesday.
Serving as an amicus curiae, Davide urged the court to read the constitutional phrase “all the Members of the Senate” narrowly. Under his interpretation, any senator who is detained, out of the country, under suspension, or unaccounted for falls outside that count when the chamber calculates the fraction required for a guilty verdict.
“Clearly then, the basis of computing the two-thirds must be the number of senators who are qualified to vote, not the twenty-four (24) in the present Senate. All those disqualified by reason of causes earlier mentioned should not be included,” he wrote.
His credentials on the question are difficult to overstate. Davide sat as a delegate to the 1971 Constitutional Convention behind the 1973 charter, and later joined the body of commissioners who produced the 1987 Constitution — the very document whose impeachment provisions are now in dispute.
That constitutional pedigree is part of why the impeachment court sought outside legal minds in the first place. The tribunal turned to several former members of the judiciary as it wrestles with whether the 16-vote benchmark for conviction still holds when a portion of the Senate cannot take part in the proceedings.
