The 1987 Constitution (Article XI, Section 3[6]) states that in impeachment cases, “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.” Who would have thought, when the Constitution was submitted for ratification, that it would one day be necessary to clarify what “all the Members of the Senate” means? Does it mean every senator, regardless of circumstance? Or does it exclude those who, for one reason or another, cannot take part in the trial?
At the start of the impeachment trial of Vice President Sara Duterte, the presiding officer, Sen. Francis Escudero, made it clear that two-thirds meant 16 of the Senate’s 24 members. Eleven weeks later, with four senators unable to attend (Jinggoy Estrada and Rodante Marcoleta in detention, Ronald “Bato” dela Rosa in hiding, Loren Legarda on medical leave), the question arose whether “all the Members” is a fixed number or a movable denominator.
On Sept. 23, the impeachment court ruled, 13-1, that the phrase refers only to senators “legally and factually” capable of participating at the time of the vote. With 20 senators counted, conviction would now require 14 votes instead of 16.
Whatever the final verdict, the ruling has made it harder for any outcome to be seen as resting on the evidence alone. Should Duterte be convicted by 14 or 15 votes, her supporters will call it persecution by arithmetic. Should the Supreme Court restore the fixed 16, an acquittal despite 14 or 15 votes to convict will be decried by her critics as absolution by technicality.
This is not to say the case against Duterte has collapsed. Clearly, it has not. But this episode raises the question of what trials are for.
We usually think a trial exists primarily to produce a decision. But deciding is probably the easy part. A trial must also produce the tacit acceptance of those on the losing side. It achieves this, first of all, by drawing them into the process. The contending parties argue within rules fixed in advance, play their assigned roles, and submit to an outcome no one knows until the end. Having taken part, the loser finds it hard to claim afterward that the game was rigged.
The Sept. 23 ruling put this basic understanding under severe stress. There are serious arguments for the new reading: a rigidly fixed denominator could, in principle, make conviction impossible. It is the timing that is the problem. A rule fixed at the start, before anyone knows how it will fall, is part of the rules of fairness. A rule changed midway, when the likely count can already be gleaned, looks like a preview of the decision.
The court then declared that its ruling applies pro hac vice, for this occasion only, and binds no future impeachment court. Presumably this was meant to show that the senators were not rewriting the Constitution. But since, as Escudero himself noted, no impeachment court binds another anyway, the disclaimer added nothing in law. Its only effect was to suggest that the new reading was made for one case.
Still, the trial goes on, and the defense has yet to present its case. The six senator-judges who stayed away from the vote have not walked out of the trial. Nor has the defense: Duterte’s lawyers remain, while reserving the right to question the ruling before the Supreme Court. And the new interpretation matters only within a narrow band. If 16 or more senator-judges vote to convict, or fewer than 14, the denominator is irrelevant. Only a vote of 14 or 15 makes the counting rule decisive.
We have been here before. In January 2001, the impeachment trial of then President Joseph Estrada broke down when the senator-judges voted 11-10 against opening an envelope said to contain damning bank records. The prosecutors walked out, and Edsa 2 accomplished what the Senate did not. The Supreme Court later treated Estrada’s departure as a resignation, affirming Gloria Macapagal Arroyo’s succession. When Estrada was arrested months later, his supporters massed in what became Edsa 3. The protest ended in a bloody clash with the police, but the high court’s decision held.
Contested outcomes rarely win universal assent, and they do not need to. What they need is for resistance to fail to undo them. A decision gravely disputed at the time can, over the years, simply become the way things were settled.
The dispute over the denominator does not strip this trial of legitimacy, though it has narrowed the margin within which the verdict can speak for itself. The more decisive the vote, in either direction, the less the counting rule will matter, and the more the evidence will. Whatever the outcome, the question of accountability will not rest on the verdict alone. It will rest as firmly on what the nation has heard and seen: testimony given under oath, and evidence entered on the record.
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