It would be absurd to continue to use a positivist and formalist approach.

The impeachment court has reached a defining constitutional crossroads. Four retired justices arrived to help guide it. They spoke as amici curiae last September 16.

Former Chief Justice and framer of the 1987 Constitution Hilario Davide Jr. sent a written opinion. Retired Chief Justices Artemio Panganiban and Reynato Puno appeared before the Impeachment Court with retired Associate Justice Adolfo Azcuna who also helped write the current constitution,

The tribunal posed three closely connected legal questions. What does “all Members of the Senate” mean? Does Avelino v. Cuenco actually govern this dispute? May an absent senator-judge still cast a valid vote?

The phrase lives in Article XI, Section 3 itself. It sets the crucial two-thirds conviction vote. That single fraction can end an official’s tenure.

Davide firmly rejected any automatic sixteen-vote reading here. “All Members” should mean only the capable senators. Resignation, death, or removal can shrink the voting pool. Detention, suspension, and absence abroad clearly matter too. Such realities may reshape the working constitutional denominator.

He framed the whole trial as a judicial proceeding. The Senate sits there as a genuine impeachment court. He found Avelino persuasive only through careful analogy. Senator-judges must still weigh every piece of evidence.

Panganiban placed truth, fairness, and participation first. Sixteen of twenty-four holds only as pure arithmetic. Real impeachment trials plainly ask for far more. Judges must hear each living witness in person. They must carefully study every witness’s demeanor.

Tone and spontaneity often reveal otherwise hidden truth. An absent senator inevitably misses all these signals. That senator then lacks any real factual footing. Fair and truthful judgment becomes impossible from afar.

One jarring note in the proceeding was Panganiban’s sexist remarks during the interpellation of Senator Risa Hontiveros. He should apologize for that language and behavior which the Supreme Court has repeatedly censured.

Puno turned closely to the constitutional wording itself. The charter deliberately chose the fraction called two-thirds. That figure can plainly move with the circumstances.

Legally relevant events may change the final count. The required votes may therefore rise or fall. Puno also strongly defended the Senate’s own authority. It alone tries and decides all impeachment cases. The Supreme Court cannot simply displace that power.

Azcuna broke very sharply from the other three. “All Members” means the full twenty-four sitting senators. Absence or detention changes absolutely nothing here. Only death, resignation, or removal reduces true membership.

So the threshold holds firm at 16 votes. He wanted that number fixed from the start. Certainty, he argued, protects the entire process.

A shifting denominator could quietly invite dangerous manipulation. The supermajority shields officials from fleeting passing majorities. Azcuna carefully separated membership from present ability. An absent senator still counts within the total. Questions about actual voting can be handled apart.

All four then examined Avelino v. Cuenco closely. That older case concerned a simple Senate quorum. None of them treated it as directly controlling. Quorum and conviction plainly pose different legal problems.

Davide read it as a loose guiding analogy. Panganiban accepted it as merely gentle guidance. Puno noted its clear 1935 Constitution origins.

Azcuna dismissed its relevance the most forcefully here. He tied it strictly to legislative quorum questions.

The third question probed absent senator-judges quite directly. Panganiban said the unheard should simply stay silent. Davide separated true absence from merely light questioning. Puno again demanded informed, honest, careful judgment.

Azcuna kept closely to his firm membership rule. Membership itself confers the plain right to vote. Attendance never alters that basic constitutional entitlement.

So the whole heated debate circles one phrase. Two-thirds of exactly what number, precisely? The answer will shape every future impeachment.

Both readings claim deep fidelity to the charter. One prizes flexible fairness under hard circumstances. The other favors fixed and predictable certainty.

Fewer capable senators could lower the conviction bar. Davide, Panganiban, and Puno accept that real possibility. Azcuna fears it weakens the intended constitutional safeguard. A temporary majority might then remove an official.

Personally, I have always taught that two thirds of 24 is 16 and that is the necessary threshold for conviction. However, I did not anticipate the number of senators who would not be participating in the trial. In that context, it would be absurd to continue to use a positivist and formalist approach.

At the same time, we do not want an absurd situation where an official elected by the people can be removed by a vote of 12 senators or a lesser number (if the absent senators increase to 6 or more).

In any case, this decision is for the Senate to solely make. And I hope they make the right decision for the country.

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Originally published in Manila Standard on September 18, 2026