Week 12 of Vice President Sara Duterte's Impeachment Trial Part 2

Week 12 of Vice President Sara Duterte's impeachment trial featured only two days of testimony. The third day was devoted to discussing and voting on the conviction voting threshold. The constitution says 2/3 of the Senate has to vote to convict for a conviction to stand. That is not in question. What is in question is does "2/3 of the Senate" mean the total number of Senators elected to office, which is 26, or does that mean the total number of Senators eligible to participate in the trial? The Senate voted for the latter. 

https://www.pna.gov.ph/articles/1284670

The Senate impeachment court on Wednesday overturned its earlier ruling requiring 16 votes to convict Vice President Sara Duterte, adopting instead a formula that will count only senators who are legally and factually capable of participating when judgment is rendered.

By a 13-1 vote, with six senator-judges not participating, the court granted Senator-Judge Erwin Tulfo’s appeal challenging presiding officer Francis “Chiz” Escudero’s July 6 interpretation that the constitutional requirement of two-thirds of “all the Members of the Senate” meant 16 votes based on a 24-member chamber.

Tulfo raised the issue on Sept. 8 amid questions over whether senators unable to participate should remain part of the voting base.

Under the new controlling ruling, the denominator will exclude senators who are detained or suspended or otherwise legally restrained from performing their functions; sought by authorities with unknown whereabouts; physically or medically incapacitated; beyond the Senate’s coercive processes; or similarly situated.

“The phrase ‘all members of the Senate’ shall refer to those members who, at the time of the vote, remain legally and factually capable of participating in the proceedings,” Escudero said in restating the ruling adopted by the court.

Senator-Judges Alan Peter Cayetano, Pia Cayetano, Christopher Lawrence “Bong” Go, Imee Marcos, Camille Villar, and Robinhood Padilla did not participate in the threshold vote.

Escudero cast the lone negative vote.

Although he disagreed with the majority, Escudero said he would implement the ruling in succeeding proceedings.

“The presiding officer, after all, is not the court. He is merely the custodian of the process, not the proprietor of its outcome,” he said.

“This is the essence of democracy – that disagreement be preserved without obstruction and that lawful result be obeyed without resentment,” he added.

The ruling does not automatically set a new numerical threshold.

Escudero said the impeachment court must first determine, based on “competent and sufficient evidence,” whether any senator falls within the five categories for exclusion.

The remaining qualified members will then form the denominator from which the two-thirds requirement will be calculated.

The court also settled a separate mathematical question raised during Wednesday’s oral arguments: any fractional result will be rounded up to the next whole vote, even when the fraction is below 0.5.

Escudero cited as an example a 20-member denominator, where two-thirds is 13.33. Since 13 votes would fall below the constitutional requirement, 14 votes would be needed to convict.

The presiding officer also limited the ruling to Duterte’s trial, declaring it pro hac vice, or "for this occasion" only.

“This is a ruling, not an amendment of the rules,” Escudero said, adding that it would have no binding effect on future impeachment courts and could only serve as “persuasive guidance.”

The Sept. 23 vote followed a two-week review that included the opinions of amici curiae and oral arguments from the prosecution and defense on how the constitutional phrase “all the Members of the Senate” should be applied.

The new formula will govern the eventual conviction vote on the articles of impeachment against Duterte unless subsequently altered through judicial or other lawful proceedings.

Escudero notes that this it not an amendment of the rules but applies only to this particular situation. The situation of course being two Senators are in jail and one is on the lam because of a warrant for his arrest before the ICC. This is by no means a normal situation but one of their own making. 

If Sara is convicted by less than 16 votes she will surely appeal to the Supreme Court. Representative Diokono says until then there is no appeal to be made. 

https://www.pna.gov.ph/articles/1284657

House prosecutor Chel Diokno of Akbayan Party-list said on Wednesday a Supreme Court (SC) challenge over the impeachment voting threshold would become ripe only if the Senate convicts Vice President Sara Z. Duterte with fewer than 16 votes.

Diokno stated the position during questioning by Senator-Judge Alan Peter Cayetano, who asked whether the Senate Impeachment Court or the SC should settle the threshold dispute.

“Your Honor, I believe that the matter is not yet justiciable and cannot yet be brought to the Supreme Court,” Diokno said.

The prosecutor said the issue remained hypothetical before a verdict because no one yet knew how many votes would be cast for conviction.

“If, for example, the votes come out to 16 or more, then there is no issue to bring to the Supreme Court,” Diokno said.

“If a petition is filed now, the Supreme Court, in my view, could easily say, ‘You haven’t voted yet,’” he added.

Diokno then identified the event that, in his view, would create an actual controversy suitable for Supreme Court review.

“The only time this case will be justiciable to bring up to the Supreme Court is when an actual vote is done, and a number less than 16 is arrived at, and that is deemed sufficient to convict,” he said.

Cayetano referred to an earlier ruling by the presiding officer and asked why the issue could not already be brought before the Supreme Court. Diokno maintained that an earlier threshold ruling would not replace the need for an actual verdict whose validity turned on the disputed number.

Diokno repeated that Supreme Court review would become ripe only after an actual vote created a concrete dispute over the constitutional count.

Cayetano sought clarification on whether Diokno meant a vote on the threshold or the final determination of guilt. Diokno answered: “The vote on the verdict, Your Honor.”

The distinction keeps the Senate’s ongoing proceedings separate from a later court challenge.

The Senate Impeachment Court must first perform the constitutional task assigned to it: conduct the trial, resolve questions arising during the proceedings, and vote on the Articles of Impeachment.

“Only after that vote would it be clear whether the threshold dispute changed the outcome. A conviction supported by 16 or more votes would not present the same controversy as a conviction declared on fewer than 16,” Diokno noted.

Diokno’s position was that courts decide actual disputes, not a threshold question that may become irrelevant once the senator-judges cast their votes.

The exchange also addressed a separate institutional question: whether the impeachment court could order the Sandiganbayan to produce senators detained under its authority so they could attend the trial.

Diokno said the Sandiganbayan retained jurisdiction over both the criminal cases and the detained accused.

“That is a matter that the Sandiganbayan should decide because they have jurisdiction over the case as well as the person of the accused,” he said.

“While this Court may make its sentiments known to the Sandiganbayan, ultimately it is that court that should make that decision.”

Diokno’s answers drew a line between the powers of the institutions involved: the Senate Impeachment Court controls its rules and decides the impeachment case; the Sandiganbayan controls the criminal proceedings and persons under its jurisdiction; the Supreme Court may later review a concrete constitutional controversy if the final vote makes the disputed threshold decisive.

Until then, Diokno said, the impeachment court must continue performing the role assigned to it by the Constitution.

He had earlier told Cayetano that the authority to hear and decide impeachment cases rests with the Senate sitting as an impeachment court.

There are two issues brought up here. One is whether the Sandiganbayan can be impelled to allow the two detained Senators to participate in the trial. That is up to the Sandiganbayan. The second is that "the Senate Impeachment Court controls its rules and decides the impeachment case." Which would seem to allow for amending rules as the circumstances allow. Two months ago there was the very real possibility that several Senators could be detained and thus prevented from participating in the trial. 

Lacson noted that 10 senators are under investigation by the Office of the Ombudsman over alleged flood control anomalies.

If, hypothetically, at least nine senators are preventively suspended in connection with the flood control scandal, Lacson said there may not be enough numbers to produce a clear verdict.

Under impeachment court rules, at least 16 votes are needed for a conviction.

“What if nine senators are detained and 15 are left in the impeachment court? How will there be a clear decision to convict or acquit? Does it mean automatic acquittal because only 15 are available to vote? To me, it should not,” Lacson said.

“If they are preventively suspended, we will respect the decision of the courts. But maybe we can make a motion for the purpose of the impeachment trial to stay their suspension or interpret their suspension to apply only to their legislative functions as senators, but not to their duties as senator judges,” he added.

“Otherwise, it’s going to be a crisis. There might as well be no impeachment trial because there would be a foregone conclusion due to only 15 senator judges available,” he said.

https://newsinfo.inquirer.net/2246263/lacson-more-detentions-of-senators-to-affect-vp-trial

Of course this is a crisis of their own making due to being involved in corruption to one degree or another. 

Two days before the vote detained Senator Marcoleta said the would not participate in the trial if the Constitution was "desecrated."

https://newsinfo.inquirer.net/2309164/marcoleta-wont-join-duterte-trial-if-constitution-is-desecrated

Detained Sen. Rodante Marcoleta on Monday said he no longer intends to join the impeachment trial of Vice President Sara Duterte, citing constitutional concerns over the proceedings.

Marcoleta, who has been unable to attend a single day of Duterte’s trial, also reiterated his opposition to the designation of Sen. Francis Escudero as the Senate Impeachment Court’s presiding officer.

“I am no longer inclined to seek participation in the impeachment trial of Vice President Sara Duterte, including its eventual deliberations leading to the voting, if the Impeachment Court ultimately proceeds in a way that will desecrate the Constitution,” Marcoleta said in a post on his Facebook page.

“The records of the 1986 Constitutional Commission confirm that the framers intended the Senate President alone to preside over impeachment trials, except when the President of the Philippines is on trial,” he added.

The senator issued the statement after the impeachment court last Wednesday heard the positions of amici curiae, or “friends of the court,” on the 16-vote threshold needed for conviction, as Marcoleta and three other senators have so far been absent from the proceedings.

Marcoleta has been detained over a plunder case stemming from an alleged P75 million campaign donation he received while serving as a party-list representative.

Meanwhile, Marcoleta also argued that the Senate cannot use its internal rules to change the voting threshold prescribed by the Constitution.

Marcoleta warned that proceeding under what he considers constitutionally infirm arrangements could taint the legitimacy of the trial and leave any resulting judgment vulnerable to constitutional challenge.

“The Senate’s sole power to try and decide impeachment cases is broad but exists only within the bounds fixed by the Constitution,” he said.

“I cannot even begin to think that we can achieve the constitutional accountability sought in this trial while openly — and with impunity — bastardizing the very Constitution from which that power arises,” the senator added.

Strong but empty words from Senator Marcoleta who is in jail and cannot participate in the trial even if he desired to do so. 

It is simply a matter of fact and public record that Marcoleta and Estrada are in jail on plunder charges. Saying that does not mean they are guilty. Senator Villar, who did not vote on the threshold issue, broke down in tears when the facts of Marcoleta and Estrada's cases were stated. 

https://mb.com.ph/2026/09/23/camille-villar-turns-emotional-amid-debates-on-trial-participation-of-detained-senators

Senator-judge Camille Villar turned emotional amid deliberations of the impeachment court on the participation of detained senators Jinggoy Estrada and Rodante Marcoleta in the ongoing trial of Vice President Sara Duterte.

Villar manifested her objection to Senator Erwin Tulfo's characterization of the detained senators, saying their absence was not voluntary and that they had not been convicted of the crimes for which they were charged.

“I think it is unfair to call them out that their crimes are plunder and theft because none of those senators have been convicted,” Villar said.

“As the youngest member of this august body, can we stop it? With these attacks on each other? We are Senators of the Philippines. Let us give each other due respect. Let’s give the Filipinos due respect,” she added.

Villar stressed that the senators who are absent have not been proven guilty.

“They are not plunderers, they are not robbers. They were not proven as such,” she said.

Tulfo subsequently apologized if his remarks had offended any of his colleagues but clarified that he did not say that the absent senators had been convicted of plunder.

“What I said is that they were charged with,” Tulfo said.

He maintained that his remarks were not intended as attacks but were meant to raise the factual issue of the senators' inability to participate in the impeachment proceedings and how their absence could affect the computation of the required vote.

“The issue of detained senators is so intertwined in the determination of denominator,” Tulfo said.

Tulfo also said he was raising questions that he had encountered from the public and on social media about how the two-thirds requirement should be computed given the current circumstances.

He said senators should consider the views of the public because they were elected to represent them.

“I am not here thinking only of myself, I'm thinking of what the people tell us because we represent those people,” Tulfo said.

Senator Erwin Tulfo on Wednesday renewed his call to revisit the computation of the two-thirds vote needed to convict Vice President Sara Duterte in her impeachment trial, citing the absence of four senators who are either abroad on medical leave, in hiding, or detained.

Tulfo raised the issue that the circumstances affecting the participation of some senators had changed since the proceedings began.

“The present realities that some of our members are beyond the coercive power or jurisdiction of the Senate,” Tulfo said, noting that one senator is on medical leave abroad with no definite return date, another is in hiding, and two others are under the custody of the Sandiganbayan or the Bureau of Jail Management and Penology.

He said these circumstances did not exist when the impeachment proceedings started.

Tulfo said the Senate should therefore examine whether the new circumstances affect the computation of the two-thirds vote required under Article XI, Section 3 of the 1987 Constitution.

He cited former Chief Justice Reynato Puno's position that the Constitution specifies a fraction rather than a fixed number for the required vote.

“Had the framers intended an immutable number, they would have expressly indicated a numerical figure,” Tulfo said, adding that the mathematical baseline could vary depending on factors affecting the composition of the Senate.

He contrasted the cases faced by senators during the period when the Constitution was being drafted with the criminal cases involving some senators today.

Senator-judge Alan Peter Cayetano said that he recognizes the point of Tulfo, stating that if the rules are amended and electronic participation is allowed, most of their arguments will go away.

His brother, Senator Mark Villar, believes that they have to keep in mind, the effects of the words that they use in this trial.

"Many of our colleagues for one reason or another, are unavailable. Some have cases, through no fault of their own of course," he said.

"But I think it’s important [to mind] the words that we use, in respect to our colleagues, who are not guilty yet, I think that’s a very good point," he added.

He stated that his sister is correct that they should be considerate of their colleagues, and he respects that, and that he just wants to make that point as well.

"I think it is very reasonable for us to give them that courtesy, that we refrain from saying things that have an adverse effect," he added.

This is simply amazing. The Villars are more worried about "the effect of words" than the fact that the three unavailable Senators, Estrada, Marcoleta, and Bato, are accused of serious crimes. Senator Mark Villar even goes so far as to declare they have cases "through no fault of their own!" He has just exonerated them and chalked up their cases to political persecution. Can the Villars really be trusted to be impartial judges when they make such asinine statments?