Legal experts have called on the Supreme Court (SC) to settle the dispute over the number of votes required for the conviction of an impeached official before the current Senate trial reaches a verdict.

The vote that could determine whether Vice President Sara Duterte is removed from office or acquitted is being subject to interpretation as some members of the upper chamber face legal issues, prompting former Senate President Franklin Drilon on Saturday to urge the SC to intervene and settle the dispute that has the potential of sparking a constitutional crisis.

Drilon warned that a constitutional complication could happen if the Senate’s final vote falls under the disputed threshold, opening the door to legal challenges regardless of the trial’s outcome.

“Ultimately, it is the Supreme Court that will determine the required number of votes,” Drilon said in a radio interview.

“The Supreme Court should resolve the issue now because if it waits until the very end, it could lead to confusion and conflict,” he added.

The controversy erupted last week after Senate President Francis Escudero, presiding officer of the impeachment court, ruled that 16 guilty votes would be required to convict Duterte, despite only 21 senator-judges currently being able to participate in the proceedings.

Escudero based his ruling on Article XI of the 1987 Constitution, which states that “no person shall be convicted without the concurrence of two-thirds of all the members of the Senate” — interpreting “all members” to mean the chamber’s full complement of 24 senators.

However, Senators Rodante Marcoleta and Jinggoy Estrada are in detention after separate courts ordered their arrest on non-bailable plunder charges. At the same time, Senator Ronald dela Rosa is in hiding after the International Criminal Court issued a warrant for his arrest over his alleged role in former President Rodrigo Duterte’s anti-drug war

If only 21 senators can vote, some legal experts contend the constitutional threshold should effectively fall to 14 votes instead of 16.

Under Escudero’s interpretation, however, the prosecutors would still need 16 votes — meaning they would have to secure the votes of more than two-thirds of the participating senators.

Drilon said the uncertainty should not be allowed to persist until the trial’s conclusion.

He suggested that either the Senate impeachment court or Duterte herself immediately seek guidance from the Supreme Court on how the constitutional provision should be interpreted.

“We should ask the Supreme Court for its opinion on which interpretation is correct and what the basis should be for determining the required two-thirds vote,” he said.

Senate court can rule

Senator Panfilo Lacson chimed in, saying it should be the impeachment court that will settle the issue early, as he believes the matter should be resolved before the trial reaches the judgment stage to avoid legal complications.

The senator’s remarks came after the impeachment court wrapped up its first week of proceedings, which focused largely on procedural issues.

On the first hearing day, the senator-judges elected Escudero as presiding officer, formally adopted the Rules of Procedure on Impeachment Trials, and resolved several preliminary motions, including questions on the presiding officer, the number of votes required for conviction, and motions filed by both the prosecution and defense.

Lacson said he agrees that 16 votes are needed to convict Duterte, but stressed that the constitutional threshold should be settled before the impeachment court reaches a verdict.

He acknowledged that anyone can question the Senate’s interpretation with the Supreme Court.

3 solons’ votes central issue

House prosecutor Leila de Lima said resolving the threshold number would be pivotal.

“Yes, we have three senators who are not here at the moment. One is in hiding as a fugitive from justice. The other two are detained. One of them has already tried to ask for permission,” the congresswoman said.

“Now, at the time of the voting, will the situation still be the same? Will we still have those three? So far, those three will still not be able to vote because they are not here. They’re not physically present,” she added.

De Lima noted that the three senators — Dela Rosa, Marcoleta, and Estrada — are not functioning as senator-judges in the impeachment trial due to their absence from the proceedings.

“The main question is, is that correct under those circumstances? Is it fair? Is it just? Is it reasonable? Is it logical? That they will be counted in the functional base number?” the prosecution panel member said, questioning whether the functional base for the impeachment vote should still be 24 senators despite the absence of the three senator-judges from the trial.

The congresswoman, meanwhile, said the functional or numerical base for the two-thirds vote could be 24, 23, or 22.

“It depends on who actually participated and how many actually took part in the trial,” De Lima said.

She added that the discussion is whether the votes of those who are absent could be considered an essential or effective acquittal if they are still included in the count, and if the total number remains at 24.

“But if they are no longer included in the count for computing the two-thirds vote, then they have no vote,” the House prosecutor said.

De Lima reiterated that the votes of the senators who are currently absent cannot be construed as an effective acquittal.

“So those are critical issues, and they cannot yet be resolved because there is such a thing as the doctrine of ripeness. Courts can only settle constitutional questions in the presence of an actual or fully developed controversy,” she said.

“There is still no fully developed controversy because the voting has not yet taken place. We still do not know how many will actually vote. Because if it reaches 16, then there is no issue,” the prosecutor added.