THIS has been a much-discussed topic lately — considering the impending impeachment trial of Vice President Sara Duterte, and there are experts ranged on either side of the divide: some, advocating a fixed number — 16, that being the numerical value of two-thirds of 24, the entire constitutional membership of the Senate; others arguing that the two-thirds required for conviction is not and cannot be a fixed number. I am of the latter persuasion.
That this is important is too obvious to need amplification. Are we merely being treated to what is projected to be a three-month “teleserye” with an already predictable conclusion, or is it a credible process of exacting accountability of the vice president of the Republic? There are disturbing signs that the defense is merely playing along, putting on a show of defending, but really assured of the numbers that guarantee an acquittal.
While the prosecution has been preparing in earnest, conscripting even lawyers in private practice to help it with its work, all that we have heard from defense counsel is a rehash of arguments repeatedly raised and repeatedly dismissed by those who know of what they speak. One of the common lines frequently replayed by the defense is that the House committee on justice had no jurisdiction to conduct a trial — despite the admirable diligence of Rep. Gerville Luistro in limiting the presentation and reception of evidence to what was needed to establish a prima facie case, sufficient to sustain the articles of impeachment. “Denial of due process” — that was the reason that the Supreme Court, in the 2025 petition filed by Duterte, voided the articles of impeachment — what, to me, was an egregious error and judicial intrusion into what was — and is — really a legislative function. Anyway, in light of what the Supreme Court required, the House committee on justice punctiliously went by the ruling of the court. And once more, the defense tries the same pretext for evasion: lack of due process — ridiculous, to say the least, when raised by a party repeatedly invited, summoned, afforded the opportunity to present evidence and petulantly refusing to do so!
I argue the proposition that the two-thirds that the Constitution required for conviction is not a fixed number on what are rather straightforward arguments.
First, if two-thirds were a fixed number, then assuming that nine senators would be on leave or perhaps medically incapacitated or, worse, deceased, all impeachment trials would be pointless because no matter that 15 would vote for conviction, an acquittal would be a matter of course — not because the prosecution fails to discharge its duty of establishing the culpability of the respondent, not because the respondent raises a valid defense, but because of the idolatry of a number. While one may think it unlikely for nine senators to be incapable of actually sitting as judges in an impeachment court, the mere possibility of its occurrence establishes the legal unacceptability of that “legal fundamentalism” that insists on a fixed number. In fact, assuming an unresolved election contest over the twenty-fourth slot in the Senate slate, would the denominator still be 24, simply because the Constitution provides that the Senate “should have” 24 members?
Second, the argument for a fixed number insists that 24 senators were elected — an undeniable fact from which, however, one cannot pass to the illogical conclusion that, at present, there still are 24 senators. One is a fugitive, fleeing from a standing warrant issued by an international tribunal which, if served, would send him outside the Philippines and place him in the custody of the International Criminal Court. Another is under detention, facing a plunder charge that does not allow him to post bail. He is restricted in what he can do by the rules governing “persons deprived of liberty” — and these include inability to leave the detention facility and even restrictions in regard to access to means of communication. “Member of the Senate” is not identical with “elected member of the Senate” — because one may have been elected to the Senate but subsequently become unable to fulfill the obligations as well as exercise the rights of membership.
Third, there is no court that reckons votes cast by looking to the constitutional or statutory number rather than to the actual membership. When the Supreme Court sits en banc, the majority of the court will mean the majority of those who participated in the deliberations, listened to the arguments and debated the issues. There is no court that counts absent or disabled members in the reckoning of the requisite number of votes.
“To try and decide” — that is what the Constitution assigns to the Senate in respect to impeachment proceedings, and both terms mean: to receive evidence, to weigh evidence, to test credibility, to deliberate on the issues and to come up with a reasoned resolution. And so, when the very same paragraph of Section 3, Article XI provides that “the concurrence of two-thirds of all Members of the Senate” shall be necessary to convict, “all Members of the Senate” should be read to mean those who did “try and decide.” Any other reading would allow for the anomaly of one who did not listen to the evidence, who had no chance to test veracity, who took no part in deliberations, to exercise power nonetheless over the outcome of a decision.
Once more, testing the plausibility of a proposition of law by taking it to the farthest limits of its applicability provides to be a useful logical procedure. Let it be supposed that out of sympathy for a respondent in an impeachment trial, 10 of the 24 senators would choose not to participate in proceedings, absenting themselves from the sessions of the impeachment court, taking no part in discussion and debate. Would it be reasonable to insist that the reckoning of two-thirds should include them who had chosen not to have anything to do with the trial of the case at all?
The lackadaisical performance of defense lawyers — gleaned from their jejune statements to the media and publicly made manifestations — has struck many observers and, considering that they come from supposedly reputable law firms, one fear is that they are not really be taking the proceedings seriously because, relying on numbers, a favorable outcome seems assured. The “second envelope” affair at the Estrada impeachment trial that sent people to the streets and caused Joseph Estrada to leave Malacañang through the Pasig River should be a reminder that there is some residual — and very real — power in the hands of the people when they are convinced that the established processes can no longer be counted on for fair and just results!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
