No eraser for Charter

Bending the law has reared its ugly head again after a majority of Senate court members voted yesterday to lower the sixteen-vote threshold required to convict Vice President Sara Duterte, confirming the fear that a supermajority fixed by the Constitution could, under enough pressure, be recomputed into something more manageable.

Presiding officer Senator Francis Escudero said the vote rewrote the formula as a two-thirds vote based not on all 24 members of the Senate but only on those senator-judges “legally and factually capable” of participating at the time of voting.

Senators who are detained, suspended, or otherwise legally restrained from performing their functions are not included.

Those sought by authorities whose whereabouts are unknown, those suffering physical or medical incapacity, anyone beyond the Senate’s coercive processes, and, in the catch-all that should trouble anyone reading it closely, “others similarly situated,” are not included in the computation.

The controversial move created a mechanism that does exactly what the distinguished friends of the court warned against. It makes the denominator negotiable, which legal experts said is a law-bender that can extend to a Charter change vote.

Lowering the bar introduces the huge danger of rewriting the rules mid-trial and, worse, amending the Constitution.

When a text as foundational as Article XI, Section 3 fixes a threshold, it does so to prevent the anomaly of a sitting majority altering it whenever it is convenient. To pull down the denominator so that twenty senators present yields a “supermajority” of less than the 16 that the Constitution actually demands of a full chamber.

Allowing the requirement to shift from all members to those present would let the tribunal, whenever the vote runs short, redraw the finish line.

The Senate court moving the impeachment goal post after the trial is underway is clearly an abuse that the framers of the Charter sought to preempt with the supermajority clause, since a rule that bends to whichever coalition currently controls the floor dismantles such a safeguard.

Amid the Palace minions’ efforts, the arithmetic has shifted. The same pressure that would loosen the threshold has trained itself on the senator-judges presumed inclined toward acquittal, thus creating a supermajority by attrition.

It is this convergence, a shrinking quorum feeding a lower threshold, while the senators most likely to resist conviction are individually targeted, that has driven the defense to declare its continued participation ad cautelam, or taking part with extreme caution, as a hedge against the possibility that fairness has already left the building.

Retired Associate Justice Adolfo Azcuna, who helped write the 1987 Constitution, has offered the amicus argument that the two-thirds rule exists not as a technicality but as a safeguard against the peculiar danger of removing an official the electorate itself installed.

A conviction in an impeachment cannot be reversed; the official is gone, and in most schemes barred from returning — a verdict as final as it gets. That finality mirrors the stakes of a constitutional amendment or a treaty ratification, which also require broad concurrence.

A Senate conviction based on a lower threshold would override the principle that every Filipino’s vote carries equal weight, achieving on the Senate floor what the ballot box could not.

Reducing the required number of votes and then describing the resulting figure as “two-thirds” would turn the impeachment trial into a numbers game, where the outcome would depend on who is present rather than on the constitutional threshold prescribed for conviction.

The number of votes required to convict is not merely an internal matter for the Senate to settle at its convenience. It is the one element of the impeachment process that the Constitution has already expressly fixed: the concurrence of two-thirds of all members of the Senate.

Ultimately, constitutional questions arising from the proceedings may be brought before the Supreme Court, whose judicial power includes determining whether any branch or instrumentality of government has committed grave abuse of discretion amounting to lack or excess of jurisdiction.

The Senate impeachment court may interpret the Constitution in carrying out its functions, but it cannot simply rewrite a threshold that the Charter itself has specified.