MANILA — Retired Chief Justice Hilario Davide Jr. has told the Senate impeachment court that the two-thirds vote required to convict an impeached official should be calculated based on the senators legally and physically qualified to participate in the final vote—not automatically from all 24 seats in the chamber.
Davide’s position was presented Wednesday, Sept. 16, as the Senate impeachment court examines a constitutional question that could affect the number of votes required to convict Vice President Sara Duterte.
Why the 16-Vote Question Matters
Article XI, Section 3(6) of the 1987 Constitution says that no person shall be convicted in an impeachment trial without the concurrence of two-thirds of all the Members of the Senate.
Because the Senate has 24 members, the conventional calculation produces a 16-vote threshold.
Davide argues that the phrase “all the Members of the Senate” should not necessarily include senators who are legally or physically unable to perform their duties and participate in the proceedings.
Under his interpretation, the number of votes required could fall below 16 if senators are excluded from the calculation because they cannot legally or physically participate.
Who Could Be Excluded?
In his written memorandum, Davide identified several circumstances that, in his view, could prevent a senator from being counted for purposes of the impeachment vote.
These include senators who have resigned or been expelled, as well as those suffering serious physical incapacity that prevents them from performing their duties.
He also discussed senators who are detained, suspended, outside the country, in hiding or whose whereabouts are unknown, depending on the circumstances preventing their participation.
Davide argued that counting senators who are incapable of participating could produce what he characterized in his memorandum as an unjust or unreasonable result.
Davide Cites a 1949 Supreme Court Case
The retired chief justice also examined Avelino v. Cuenco, a 1949 Supreme Court case involving the Senate’s leadership and the calculation of its voting strength.
Davide noted that two senators were absent at the time—one because he was hospitalized and another because he was in the United States. The Senate therefore operated with 22 senators capable of acting, and 12 votes were treated as sufficient for the action involved in that case.
However, Davide acknowledged that the case involved an ordinary Senate session, rather than an impeachment conviction, meaning it is not directly controlling on the constitutional question now before the impeachment court.
He nevertheless said the precedent could have persuasive value.
Four Former Justices Asked to Advise the Senate
Davide is one of four retired Supreme Court justices invited to serve as amici curiae, or “friends of the court,” and provide legal perspectives to the Senate impeachment court.
The other former justices include Artemio Panganiban, Reynato Puno and Adolf Azcuna.
Their participation reflects the significance of the constitutional question as the Senate considers how the voting requirement should be interpreted.
Former Chief Justice Panganiban has also questioned the idea of treating the 16-vote figure as automatically fixed under every possible circumstance, according to current reports.
The Senate Has Not Adopted Davide’s Interpretation
Davide’s memorandum is legal advice and interpretation, not a binding ruling.
The Senate impeachment court still has to determine how the constitutional language applies to the proceedings.
The court is reviewing an appeal of Presiding Officer Chiz Escudero’s earlier ruling that 16 votes—two-thirds of the full 24-member Senate—are required for conviction.
That means the debate over the denominator remains unresolved.
Why This Could Become a Major Turning Point
The dispute is ultimately about more than arithmetic.
At stake is how the Constitution’s phrase “two-thirds of all the Members of the Senate” should be interpreted when some senators are unable to participate.
If the court accepts Davide’s interpretation in circumstances where senators are legally or physically disqualified from participating, the number of votes necessary for conviction could be different from the traditional 16-vote calculation.
But that outcome is not yet established. The Senate impeachment court must still consider the competing legal arguments before making its own determination.
For now, Davide’s intervention has added a major constitutional dimension to an already closely watched impeachment proceeding.
The question facing the Senate is no longer simply how many senators will vote—it is first deciding exactly who should count when the Constitution’s two-thirds threshold is calculated.
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