She already has an unwavering core of seven: Alan Peter Cayetano, Pia Cayetano, Ronald “Bato” de la Rosa, Bong Go, Rodante Marcoleta, Imee Marcos and Robin Padilla.
Add to that Jinggoy Esrtada, who cannot forgive this administration for rushing the plunder charges against him and jailing him. Add Loren Legarda, as this regime’s plot to terrorize her — by filing charges against her and her son for the latter’s solar project — to vote against Sara has backfired. Legarda has assembled a strong defense team. Its head, former Ateneo dean Anthony la Viña, on a Facebook post convincingly outlined why, as he termed the suit being planned against her and her son as a condemnable weaponization of the law for political purposes.
That’s already nine voting to acquit her, so there are no 16 (two-thirds of Senate) senators voting to convict her, the constitutional requirement.
Not only that: Joel Villanueva and Miguel Zubiri seem to be leaning toward acquittal, based on their statements at the trial, so 11 will acquit her.
Room
Then there are senators Francis Escudero and JV Ejercito, whose terms expire in 2028. Neither has behaved as rabid anti-Sara partisans. Both therefore have room to calculate the electoral consequences of voting to remove a vice president who retains a huge political following.
Including these four, Sara would have 13 senators voting for acquittal — a majority that will embarrass the House of Representatives responsible for this vile project.
And that doesn’t even take into account Panfilo Lacson, Lito Lapid and Vicente Sotto III, who could conceivably abstain, avoiding an outright vote for Sara, which they could calculate as not outrightly defying Marcos but, at the same time, not angering the likely next president.
Their vote of acquittal would leave the three shameless Yellow-turned-Marcos-minions (senators Risa Hontiveros, Bam Aquino and Kiko Pimientel) plus the two rabidly pro-Marcos Tulfo brothers with just — surprise, surprise — an embarrassing five votes to convict Sara.
To avert this disaster, Tulfo wants, to use his notion of the legal system, to “bend the law,” claiming that senators who cannot participate in the impeachment trial should be excluded from the denominator used to calculate the two-thirds vote. He claims absurdly that retaining 24 as the denominator could produce an “acquittal by default.” The reality is that there are only five senators — him and his brother, plus the three shameless Aquino creations — who will vote to convict Sara, no matter that the overwhelming evidence and logic conclude she is innocent.
Arithmetic
Tulfo needs to review arithmetic, or even just read an elementary school textbook, to enlighten him that the denominator doesn’t necessarily solve the prosecution’s problem. It reduces both sides of the equation.
With 24 senators, 16 votes convict and nine block conviction. If the denominator falls to 21 with the two jailed senators and one evading an illegal international court banned from voting, 14 votes are necessary to convict — but only eight senators are needed to stop conviction.
In the unlikely scenario of Legarda evades attending the trial, the denominator becomes 20 senators: 13 would be needed to convict, while only eight are also needed to stop it. But didn’t my explanation and arithmetic above assert that Sara has already nine votes acquitting her, and at the best scenario, even 13?
There is, however, an even more fundamental objection and obstacle to Tulfo’s project. The Constitution itself and several decisions of the Supreme Court incontrovertibly do not permit a reduction of the 24 votes.
Article XI, Section 3(6) couldn’t be much clearer: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”
All
It doesn’t say two-thirds of senators present. It doesn’t say two-thirds of senators participating. It doesn’t say two-thirds of those who took their oath as senator-judges. It says “all the Members of the Senate.”
The Constitution knew perfectly well how to prescribe a participation-based formula when that was what its framers intended.
The framers weren’t ignorant of the difference between “all the members” and “all participating members.” Article VIII, Section 13, dealing with Supreme Court decisions, requires concurrence by members “who actually took part in the deliberations on the issues in the case and voted thereon.” The framers expressly specified actual participation there. They didn’t use that formulation for impeachment.
The comparison with the US Constitution is even more revealing. The American Constitution requires the concurrence of “two thirds of the Members present” to convict in an impeachment trial. Our Constitution omitted the word “present.”
That is not a trivial difference. The Philippine framers adopted a more demanding formulation. Instead of allowing the threshold to fluctuate with attendance or participation, they tied conviction to two-thirds of all Senate members.
Barrier
There is good reason for that exceptionally high barrier. Impeachment isn’t ordinary Senate business. It can overturn the mandate given by tens of millions of voters to a president or vice president. It can also remove an ombudsman, Supreme Court justice or constitutional commissioner whose independence from the political branches is precisely what the Constitution sought to protect.
Such officials were not intended to be removed by a temporarily depleted faction of the Senate.
Tulfo’s camp has invoked the Supreme Court’s old ruling in Avelino v. Cuenco. That case, however, arose from a dispute over the Senate presidency and the number of senators necessary to constitute a quorum when some senators were supposedly beyond the body’s coercive reach. Rules for selecting the Senate president are qualitatively different from rules to remove officials elected by tens of millions of Filipinos — in Sara’s case, 32 million.
Turning Avelino into authority for reducing the constitutional impeachment denominator would therefore require a gigantic leap: from determining whether the Senate can conduct ordinary business to determining how many votes are necessary to remove a nationally elected constitutional officer.
Tulfo’s hypothetical nevertheless has superficial appeal. Suppose, he says, five senators were killed, incapacitated or otherwise permanently unable to participate. Would the Constitution really require 16 votes when only 19 senators could possibly vote?
Yes — unless the Constitution provides otherwise.
That isn’t an absurdity. It is the consequence of an intentionally high constitutional barrier. Failure to obtain the required number means the prosecution failed to convict. The Constitution nowhere guarantees that every impeachment must be capable of producing a conviction regardless of circumstances. A hypothetical scenario can’t justify amending the Constitution.
Tulfo’s alternative even creates the more dangerous precedent.
Once “all the Members of the Senate” becomes a variable denominator, every future impeachment, especially if it is to the interest of the president, will goad attempts to reduce the number of senators. That really is the explanation for the weaponization of the law to throw two senators in jail, and to shanghai to the International Criminal Court former president Rodrigo Duterte, which became a precedent for de la Rosa to be similarly kidnapped. Why, Marcos’ de facto Gestapo are even training their sights on Senator Padilla.
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