Counting empty chairs
If we insist that conviction still requires 16 votes, the three senators who cannot participate are effectively being counted on the side of acquittal.
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If we insist that conviction still requires 16 votes, the three senators who cannot participate are effectively being counted on the side of acquittal.
For months, one number has been treated as sacred gospel in the impeachment trial of Vice President Sara Duterte: 16.
The reason is obvious. Article XI, Section 3(6) of the Constitution says no person may be convicted without the concurrence of “two-thirds of all the Members of the Senate.” The Senate has 24 members. Two-thirds of 24 is 16. Simple arithmetic, end of discussion.
Except perhaps it should not be.
The Senate we have today is operating under circumstances no previous impeachment court had confronted. Senators Jinggoy Estrada and Rodante Marcoleta are both detained on plunder charges, with Estrada already suspended from office and Marcoleta facing preventive suspension under the Plunder Law.
Senator Bato dela Rosa remains a fugitive from an ICC arrest warrant and has been in hiding for months. This leaves 21 senators actually capable of sitting as judges.
Here is the problem. If we insist that conviction still requires 16 votes, the three senators who cannot participate are effectively being counted on the side of acquittal. They cannot hear the evidence. They cannot deliberate. They cannot vote to convict. Yet their existence still raises the number required for conviction.
We need to ask: Does that really make any constitutional sense?
There is already disagreement among respected lawyers. Former Justice Adolfo Azcuna takes the strict textual position: “all the Members” means all 24, so 16 remains the magic number.
Former Justice Antonio Carpio has argued otherwise, at least for senators legally suspended from office. Other lawyers have similarly suggested that the proper denominator should be those actually entitled to cast a vote.
That disagreement alone should tell the Senate something. This is not a question with an easy answer.
And the situation could become even stranger. Other senators face legal complaints or investigations. Senator Alan Cayetano is facing investigation over alleged flood control anomalies in Taguig, with evidence already turned over to the Ombudsman.
Senator Robin Padilla is facing charges for obstruction of justice. Senator Loren Legarda recently left the country on medical leave, with some question as to when, or if, she will return.
I will not pretend that an investigation or temporary absence is the same thing as detention or legal suspension. It plainly is not. But the broader point remains: the number of senators able to participate through the end of this trial may even be lower than 21.
So let’s imagine, for the sake of argument, that only 18 senators are legally capable of voting when judgment comes. Should 15 of them voting to convict still result in acquittal because six colleagues who could not even participate remained part of an abstract denominator of 24?
That would be an unusual outcome indeed. And a strange take on what we consider “democracy.”
The Senate had encountered a similar problem before in determining quorum. In Avelino v. Cuenco, the Supreme Court recognized that membership cannot always be treated as a purely mathematical abstraction when some senators are beyond the chamber’s power to compel attendance. Impeachment uses different constitutional language, so Avelino does not automatically answer this question. But its practical wisdom should at least inform the discussion.
The Senate should settle this soon, and certainly before the day the votes are cast for conviction or acquittal. Maybe, after a full debate, 16 remains the correct answer. Fine. But it should be the product of serious constitutional reasoning, not arithmetic that was simply assumed and never questioned before the trial began.
On my part, the guiding principle should be straightforward: An impeachment verdict should be determined by senators who heard the case and are legally able to vote. Not by empty chairs.
