When rules become the crisis
The best outcome, therefore, is not a constitutionally convenient victory for either faction. It is a process whose legitimacy can survive the result.
Text size
The best outcome, therefore, is not a constitutionally convenient victory for either faction. It is a process whose legitimacy can survive the result.
Amid growing talk that a Senate majority may amend its impeachment rules to account for senators who may be unable to participate in the proceedings, a constitutional controversy with consequences reaching far beyond the fate of the Vice President may be in the making.
The impeachment trial of Vice President Sara Duterte may yet become something larger than a judgment on one public official. It may become a test of whether the Philippines can still rely on the Constitution when political fear is at its greatest.
The controversy is deceptively simple. The Constitution provides that no person may be convicted in an impeachment case without the concurrence of two-thirds of all the members of the Senate. In a Senate of 24, that has traditionally meant 16 votes.
But what happens when not all 24 senators can participate?
Suppose one senator is effectively unavailable because he is abroad and beyond the reach of the Senate. Suppose two senators are detained on non-bailable charges and cannot attend. Suppose another is in hiding or otherwise unavailable. The Senate is then faced with a practical question that could have extraordinary constitutional and political consequences.
Can the Senate, exercising its constitutional authority to promulgate rules for impeachment, declare that the two-thirds requirement should be computed on the basis of the senators actually able to participate?
If 20 senators are effectively available, two-thirds would mean 14 votes instead of 16.
That difference of two votes could determine not only the fate of a Vice President. It could influence the 2028 presidential election and, perhaps, the political direction of the country.
The Senate would undoubtedly have an argument. The Constitution gives each chamber the power to determine the rules of its proceedings. It also specifically directs Congress to promulgate rules on impeachment to effectively carry out the purposes of the constitutional provision.
Why, it may ask, should an impeachment trial be effectively controlled by senators who cannot participate? Why should an accused be shielded by the inability of four senators to cast a vote?
But there is an equally powerful — and perhaps stronger —constitutional argument on the other side.
The Constitution does not say two-thirds of those present. It does not say two-thirds of those participating. It does not say two-thirds of those physically able to vote.
It says two-thirds of all the Members of the Senate. The difference is fundamental.
If the Senate can redefine who is counted in the constitutional denominator, then a constitutional supermajority could potentially be changed by a Senate rule. The question therefore is not merely one of arithmetic. It is whether a constitutional command can be adjusted by procedure when circumstances make compliance politically inconvenient.
That issue is likely to reach the Supreme Court through a petition alleging grave abuse of discretion. And there lies another danger.
What if the Court takes too long?
Imagine a Vice President convicted by 14 votes under a new Senate rule. She is removed from office and disqualified from future public office. Her supporters protest that the Constitution required 16 votes. The case then reaches the Supreme Court.
Does the conviction remain effective while the Court deliberates? If so, the country may endure months of political uncertainty. If the Court later reverses the conviction, the constitutional and political consequences would be immense.
That is why the Supreme Court should not wait until after a final judgment of conviction to confront the issue, if the Senate actually adopts a rule changing the denominator for the required two-thirds vote.
A constitutional question this fundamental deserves swift judicial resolution.
The Court should not decide whether Vice President Duterte ought to be convicted. That is the Senate’s responsibility under the Constitution. Neither should the Court substitute its political judgment for that of elected senators.
But the Court has the responsibility to determine whether the Senate remains within the constitutional boundaries of its power.
There is too much at stake to allow ambiguity to persist until after the political damage has been done.
For one faction, a Duterte return to power in 2028 is feared as an invitation to reprisal. There are those who believe a future Duterte administration would relentlessly pursue those seen as responsible for the political persecution, corruption, or destruction of the Duterte family’s political fortunes.
For another faction, acquittal is feared as a step toward the Vice President’s eventual ascent to the presidency. They see in her possible victory the risk of selective justice and vengeance disguised as accountability.
Both fears are real in the minds of those who hold them. Both sides believe that losing could expose them to political retaliation. And so the temptation arises to settle the political future now — through impeachment.
But that would be the wrong lesson.
A conviction engineered through a questionable change in the voting threshold would not bring peace. It could create an even deeper crisis of legitimacy. Duterte supporters would see not merely a political defeat but a constitutional manipulation.
Conversely, an acquittal achieved through an unquestioned constitutional process should not be treated as a license for revenge or a declaration that all allegations of wrongdoing have disappeared. Impeachment is not the only mechanism of accountability.
The country must also prepare for the possibility of either side winning in 2028.
If the present political coalition or its allies retain power, a large segment of the population may believe that corruption has been protected and the powerful remain beyond accountability. Dissent could continue.
If the Duterte camp returns, another large segment may fear that political power will be used to pursue rivals through selective prosecution and relentless retaliation. Dissent could likewise continue.
Either way, the economy, public trust, and national stability would become casualties of an endless political war.
The best outcome, therefore, is not a constitutionally convenient victory for either faction. It is a process whose legitimacy can survive the result.
The Senate should not manipulate the constitutional arithmetic. The accused should receive a full and fair trial. The evidence should be publicly tested. Senators should explain their votes.
And if the Senate adopts a rule that affects the meaning of the constitutional two-thirds requirement, the Supreme Court should resolve the question with deliberate speed.
The country needs a constitutional exit from the cycle of political vengeance.
The question should not be whether we can prevent a Duterte from returning to power, or protect the present political order from its feared consequences.
The question is whether Filipinos can still agree that no one — president, vice president, senator, political dynasty, or ruling coalition — is above the Constitution.
In the end, the most dangerous crisis may not be whether the Vice President is convicted or acquitted.
It may be whether the rules are changed because too many people fear what will happen if the Constitution is allowed to take its course.
