THE number of senators needed to convict Vice President Sara Duterte in her impeachment trial could fall below the constitutionally cited 16 votes depending on how many members of the Senate are legally qualified to participate in the proceedings, former Supreme Court Associate Justice Antonio Carpio said over the weekend.
Carpio said that the two-thirds voting requirement under the Constitution is based on the total membership of the Senate, but the actual number of votes required for conviction may change if some senators are unable to sit as impeachment judges.
The Senate is scheduled to convene as an impeachment court on July 6 to hear the case against Duterte.
Under the Constitution, conviction in an impeachment trial requires the vote of two-thirds of all members of the Senate, which currently means 16 votes out of the 24-member chamber.
But Carpio argued that the phrase “all members of the Senate” refers only to those who remain qualified to perform the functions of a senator, including participating in an impeachment trial.
He cited the case of Sen. Jinggoy Estrada, who remains a sitting senator but is currently detained and under preventive suspension by the Sandiganbayan.
Carpio said Estrada’s suspension could remove him from the computation because a senator under preventive suspension cannot hold public office and therefore cannot act as a senator-judge in an impeachment proceeding.
“According to the Supreme Court, you cannot hold public office. If you cannot hold public office, you cannot vote,” Carpio said, citing the Supreme Court ruling in the case of Trillanes vs. Pimentel.
He added that to participate in an impeachment trial, “you must be a senator first.”
With Estrada potentially excluded from the count, Carpio said the number of senators considered in the computation could already be reduced.
However, he distinguished the situation of Sen. Ronald dela Rosa, who has been in hiding after the International Criminal Court (ICC) issued an arrest warrant linked to alleged crimes against humanity during the previous administration’s war on drugs.
Carpio said dela Rosa cannot yet be removed from the Senate count because he has not been arrested and placed under preventive detention.
“He hasn’t actually been arrested, so you cannot say he cannot vote because he is not yet in preventive detention,” Carpio said in Filipino and English. He added that dela Rosa must still be given the benefit of the doubt that he could appear.
Former Supreme Court Associate Justice Adolfo Azcuna, however, raised a different view, saying dela Rosa could be excluded from the computation if he is considered a fugitive.
Azcuna said being a fugitive could be treated as a form of “constructive resignation” because the senator would have effectively removed himself from the legal system.
If dela Rosa is excluded from the count, the number of votes needed for conviction could drop further to 15, according to Azcuna’s interpretation.
Dela Rosa has been linked by the ICC to former president Rodrigo Duterte’s alleged crimes against humanity case. The National Bureau of Investigation earlier said it was verifying reports about his whereabouts, including claims that he had been seen traveling, but officials said such reports could also be misleading.
Carpio maintained that the impeachment vote threshold should not automatically be considered fixed at 16 because circumstances affecting the composition of the Senate could alter the computation, including legal disqualifications, death or resignation of members.
Meanwhile, Carpio warned that the impeachment proceedings could face delays if the Senate impeachment court grants a motion to dismiss filed by Duterte’s defense team.
He said the prosecution could bring the matter before the Supreme Court, which could prolong the process before the actual trial proceeds.
