Senate scraps fixed 16-vote threshold in Sara Duterte impeachment

MANILA, Philippines (Updated 2:54 p.m.) — The Senate impeachment court has lowered the bar needed to convict Vice President Sara Duterte, ruling that senators unable to take part in her trial will no longer count toward the two-thirds required by the Constitution. 

Senators voted 13-1 to overturn the ruling made by Presiding Officer Sen. Chiz Escudero on the opening of the trial in July, which set conviction at 16 votes based on a Senate membership of 24. 

Six minority members, including Minority Leader Sen. Alan Peter Cayetano, did not participate in the vote and had refused to re-enter the chamber after the lunch break. 

Escudero cast the lone dissenting vote to back his own ruling. Only Sen. Mark Villar among the minority senators was seen inside the plenary hall when voting resumed.

"The chair takes exception to this decision. The chair nonetheless accepts it as a decision of this court, and is bound to give it effect," Escudero said after the vote.

"The presiding officer, after all, is not the court. He is merely the custodian of the process, not the proprietor of its outcome," he added. "This is the essence of democracy, that disagreement be preserved without obstruction and that lawful resolve be obeyed without resentment."

Under the new ruling, "all the members of the Senate" will refer only to senators who, at the time of the vote, are "legally and factually capable" of taking part in the trial. 

The count will exclude senators who are detained, suspended or otherwise legally barred from performing their functions; those sought by authorities whose whereabouts are unknown; those with a physical or medical incapacity; those beyond the Senate's coercive processes; and others "similarly situated."

The ruling does not set a new base number that will replace the total default 24. 

Escudero said the court will decide, "on the basis of competent and sufficient evidence," which senators fall under the five categories. The senators who remain will form the base for computing two-thirds.

Any fraction will be rounded up, Escudero said. If 20 senators remain, two-thirds is 13.33, so 14 votes would be needed to convict. 

The ruling applies only to Duterte's trial and will not bind future impeachment courts, Escudero ruled. 

"It has never happened before, and the chair hopes that it shall never happen again," Escudero said.

Four senators are currently unable to attend the trial are Bato dela Rosa, who is in hiding from an International Criminal Court arrest warrant; Jinggoy Estrada and Rodante Marcoleta, who are detained on nonbailable plunder charges before the Sandiganbayan; and Loren Legarda, who is abroad on extended medical leave. 

The vote today indicates a greater number of senators favored the reading of the Constitution that most of the retired justices who advised the court (amici curiae) urged: that two-thirds should be based on senators who can actually perform their function, not on a fixed count of all 24 seats.

Cayetano earlier failed in his attempt to stop the vote from taking place. He had put forward a motion seeking to challenge the court on whether it had any business revisiting the threshold question.

But senators had voted 13-6 with one abstention to shoot down Cayetano's appeal.

Lead defense counsel Sheila Sison, shortly after the vote on Wednesday afternoon, told the court the defense would keep taking part in the trial, but reserved every right to challenge the ruling.

Sison read from the Supreme Court's 2024 decision Duterte v. House of Representatives, quoting its warning that impeachment is a legal process bound by the Constitution and that those who conduct it are as accountable as the official on trial.

Duterte "does not shrink from accountability, nor does she fear the outcome of this impeachment trial," Sison said. "She asked for nothing spectacular from this court. Only the most essential and basic guarantees due to every individual: fairness and impartiality."

The defense will take part ad cautelam, or with caution, she said, and reserves the right to exhaust all available legal remedies. 

Defense counsel Michael Poa had signaled earlier in the day during the oral arguments that they would likely take it up with the Supreme Court. — with a report from Ian Laqui

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