The 16-vote threshold set for the conviction of Vice President Duterte is expected to stand, with little chance that the Senate impeachment court will scale it back mid-trial, as floated by the prosecution, citing the frequent absenteeism of some senator-judges. 

Impeachment court spokesperson Reginald Tongol, a lawyer, warned that the proposal being put forward by the prosecution is “dangerous” as it would require the court to amend its rules while the trial is already underway, which he said is “not allowed.” 

“We are not just playing here for the convenience of the parties to change the rules mid-trial,” Tongol told reporters in a virtual briefing. “The impeachment court does not act for the convenience of either the prosecution or the defense. It is acting to uphold the due process requirements under the law.”

Tongol said the ruling by the impeachment court presiding officer, Chiz Escudero, upholding the threshold at 16, remains “set in stone” unless a party challenges its legality before the Supreme Court, which could overturn it.

Another way to contest the verdict is if the majority of the senator-judges decide to strike it down or reverse it, though Tongol mentioned that it is unclear whether the Senate impeachment court would still allow it, given that typical courts impose a strict window for appeal.

“No one [challenged it] on July 6. It is now unclear under the rules if that is still [subject to appeal or whether] anytime within the 90 days of trial, it can still be appealed,” he averred.

Escudero had already settled the legal debate on the conviction threshold as early as the start of the trial on 6 July. 

He maintained that 16 affirmative votes are non-negotiable for a guilty verdict, regardless of how many senators are present in the trial. 

The decision came amid differing interpretations of whether the constitutionally mandated two-thirds of the 24-member Senate required to convict an impeached official still applies, since three senators are unable to attend the trial and are unlikely to cast their votes. 

The number of senator-judges has fallen from 24 to 21 following the arrests of Senators Jinggoy Estrada and Rodante Marcoleta, both on plunder charges. Senator Bato dela Rosa, meanwhile, remains in hiding amid an outstanding warrant from the International Criminal Court.

Aside from them, Senator-judges Alan Cayetano and Loren Legarda have been notably absent from the proceedings for three days and nine days, respectively. 

Legarda has, to date, extended her medical leave, which began on 3 August, amid a preliminary investigation by the Ombudsman.

House prosecution spokesperson and private legal counsel Benjamin Tolosa Jr. said the frequent absences of some senator-judges in the trial could prompt the court to reconsider the ruling. 

Tongol, however, expressed reservations about the proposal, saying Escudero’s ruling was anchored in 2000 Supreme Court jurisprudence (Bayan v. Zamora), which held that the Senate is composed of 24 members.

Furthermore, he warned that amending the rules mid-trial runs contrary to the intent of the framers of the Constitution, who deliberately made the impeachment process difficult.

“Because the impeachment court will necessarily cancel the mandate of the people who elected the impeachable officer, that’s why it is made extra hard,” Tongol stressed.

“Two-thirds is not a simple majority. It was the intention of the framers of the Constitution to make it hard for impeachment to happen,” he added. 

Article XI, Section 3(6) of the Constitution sets the required number of votes to convict an impeached official at 16, which is equivalent to two-thirds of the 24-member Senate.

A conviction carries a penalty of removal from office and perpetual disqualification from holding office, which could derail Duterte’s presidential bid in the 2028 elections. 

Legal experts are divided on the matter, while most senators, including Senate President Win Gatchalian and some of his allies, believe that the constitutionally mandated 16 votes will take precedence regardless of how many senators are present during the trial.