Numbers question
The fate of an impeachment case should be determined by the people who actually sat as judges, listened to the witnesses, reviewed the evidence and are legally capable of voting.
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The fate of an impeachment case should be determined by the people who actually sat as judges, listened to the witnesses, reviewed the evidence and are legally capable of voting.
A few weeks ago, I argued that the Senate needed to settle one question long before it reaches the final vote in the impeachment trial of Vice President Sara Duterte: exactly how many votes are required to convict?
Last Tuesday, Senator Erwin Tulfo raised that very issue on the floor. The impeachment court will now hear amici curiae, or friends of the court, this Wednesday, 16 September, before hearing oral arguments and voting on the question on 23 September.
Good. This is precisely the discussion we should be having now, not while everyone is holding their breath on judgment day. The familiar answer, of course, is 16. 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.”
Twenty-four senators. Two-thirds. Sixteen. Simple enough.
Except our present situation is anything but simple. Four senators are presently not participating in the trial. Jinggoy Estrada and Rodante Marcoleta are detained on plunder charges. Bato de la Rosa remains in hiding from an ICC warrant. Loren Legarda has been abroad on medical leave.
If all 24 remain part of the denominator, their absence effectively operates as votes against conviction. They need not hear a witness, examine a document, or sit through a single day of trial. Their empty chairs still make conviction harder. And this deserves serious thought.
There is another sentence in the same constitutional provision that should not be ignored: “When sitting for that purpose, the Senators shall be on oath or affirmation.” That requirement exists for a reason. A senator does not simply wander into an impeachment trial with their ordinary legislative powers. He or she assumes a distinct constitutional role as a senator-judge.
This point is clearest with dela Rosa. He was the lone senator absent when the impeachment court was constituted in May and never took the senator-judge’s oath. If he never became a sworn member of the impeachment court, why should his absence count in computing the votes needed to decide the case?
The argument is less straightforward for Estrada and Marcoleta. Both took the oath before they were detained, so the oath requirement alone does not resolve their status. But neither has participated in the trial proper.
Legarda is, of course, another matter. But in her case, the question is simply this: Should a senator who left the country in the middle of the proceedings and has since remained abroad on an extended medical leave still be counted in the final vote?
Whether senators who cannot hear the evidence or cast a valid vote should nevertheless remain part of the constitutional denominator is precisely the question that must now be answered.
The American Constitution, from which our impeachment system substantially derives, avoids this problem by expressly requiring two-thirds of senators present. Ours says “all the members,” which is why the textual argument for 16 cannot simply be brushed aside. But neither should this strictly textual interpretation be immediately decisive, especially under these unprecedented circumstances.
Impeachment is ultimately about accountability. A rule that turns senators who cannot participate into automatic votes for acquittal risks defeating that purpose altogether.
So let the former justices speak. Let both sides argue. Let the senator-judges debate it fully, then decide well before the time to vote on a verdict rolls around.
My own guide remains simple: The fate of an impeachment case should be determined by the people who actually sat as judges, listened to the witnesses, reviewed the evidence and are legally capable of voting.
Those who never meaningfully participated in the trial should not determine, through their absence, how difficult conviction becomes.
