Chilling effect

On 23 September, the Senate impeachment court voted 13–1 to change how it counts the votes needed to convict Vice President Sara Duterte. The Constitution requires the concurrence of two-thirds of all Senate members. Until that vote, the impeachment court understood this to mean 16 of 24 senators. It now says the count may exclude senators who are legally or factually unable to participate when judgment is rendered.

The difference is substantial. If all 24 senators count, conviction requires 16 votes. If only 20 qualify, 14 votes would suffice. No senator has yet been excluded under the new ruling, so the final number remains unsettled. Duterte denies the allegations against her, and this voting dispute says nothing about her guilt or innocence.

There is a reasonable argument for the change. A senator who is incapacitated, legally barred from serving, or is beyond the Senate’s reach cannot perform the duties of a senator-judge. Three former chief justices agreed that the constitutional count may reflect that reality. Former Associate Justice Adolfo Azcuna disagreed, arguing that all sitting senators must count because the high threshold protects elected officials against removal by a temporary political majority.

This is where the ruling has a chilling effect. The Senate has not amended the Constitution, and its decision applies to this impeachment trial alone. But the Constitution sets voting thresholds for other consequential acts, including overriding a presidential veto and the Senate’s concurrence in treaties. If lawmakers can redefine who counts as “all members” during one contested proceeding, what prevents a future majority from pressing a similar interpretation when another threshold stands in its way?

The answer cannot depend on which side we favor today. Any senator’s exclusion must rest on evidence and a rule announced before the final vote. Missing earlier hearings should not, by itself, erase an elected senator from the count. We should demand a standard that can be defended just as firmly when the political parties change.

The retired justices have offered valuable guidance, but their views cannot bind the country. The Supreme Court generally cannot issue an advisory opinion on request; it decides actual cases. Petitions challenging the Senate ruling have already been filed. The Court should resolve the constitutional question promptly if it finds the dispute properly before it, preferably before the Senate votes on a verdict.

Politics will always be a numbers game, but the rules for counting those numbers must not become another political weapon. If a conviction or acquittal rests on a disputed count, the argument may outlast the impeachment trial itself. We should settle this question before a contest over votes becomes a constitutional crisis.

For comments, email him at darren.dejesus@gmail.com.