Senate weighs Duterte impeachment threshold as four judges stay away

MANILA, Philippines — The Senate impeachment court is set to vote Wednesday, September 23, on one of the most consequential questions of the trial against Vice President Sara Duterte: how many votes are needed to convict her.

Senator-judges will hold a caucus on Monday, September 21, to discuss the issue, according to Senator Panfilo “Ping” Lacson. The vote could reshape the entire trial, and its outcome will likely determine whether Duterte can be removed from office.

“The Impeachment Court will not rush the resolution of this constitutional threshold. Doctrinal accuracy and constitutional exactitude take precedence over speed,” impeachment court spokesperson Reginald Tongol said.

What is the 16-vote threshold dispute?

Under Article XI, Section 3(6) of the 1987 Constitution, the Senate has the sole power to try impeachment cases. Conviction requires at least two-thirds of all Senate members, which translates to 16 votes out of 24.

But with four senator-judges absent, the question has become divisive. Senator Erwin Tulfo asked the court to revisit the voting basis, arguing that the threshold should perhaps be computed differently when members cannot participate.

The four absent senator-judges are:

• Loren Legarda, on extended medical leave abroad due to lung illness
• Ronald “Bato” dela Rosa, in hiding due to an arrest warrant from the International Criminal Court (ICC)
• Rodante Marcoleta, detained on plunder charges
• Jinggoy Estrada, also detained on separate plunder charges

With only 20 active senator-judges, a conviction would require fewer votes if the threshold is based on those present and participating.

What did the retired Supreme Court justices say?

The Senate impeachment court invited four retired Supreme Court justices as amici curiae, or “friends of the court,” to provide legal opinions on the matter.

Three of them — retired Chief Justices Reynato Puno, Hilario Davide Jr., and Artemio Panganiban — took the position that the number of votes needed to remove the impeached official is not fixed at 16. Retired Associate Justice Adolf Azcuna, however, maintained that the voting basis should be anchored on the entire membership of the Senate.

“The framers of the Constitution of 1935, 1973, and 1986 would never have intended to include in ‘all members’... those who cannot participate in the hearings and deliberations on the impeachment, such as those outside the jurisdiction of the Philippines, or whose whereabouts are unknown or are in hiding to avoid arrest,” Davide stated in a written position read by the Senate secretary.

How will the senators vote on the threshold?

A simple majority is needed to overturn the threshold, Tongol said. With 20 active senator-judges, that means 11 votes are needed to amend the voting threshold.

However, the impeachment court has yet to decide how the appeal and any succeeding threshold questions would be framed.

“We don’t want to preempt the senator-judges on how the votes will happen,” Tongol added.

Lacson said the court may defer its September 23 scheduled voting if senator-judges need more time to weigh the arguments from both the prosecution and defense panels.

“I’d rather wait for oral arguments on Wednesday. The prosecution and defense will share their ideas and arguments and I believe it would be best to listen to them first so we will have a wider and deeper perspective on the issue,” Lacson said in a mix of English and Filipino.

Why does this matter for the impeachment trial?

The threshold question is not just procedural. It could determine whether the impeachment trial succeeds or fails. If the threshold is lowered to two-thirds of active members, Duterte would need only about 13 or 14 votes to be convicted, a much easier bar to clear. If the 16-vote requirement stands, the prosecution faces a steeper climb.

The trial is being watched closely across the archipelago, from Manila to Mindanao, as it touches on the balance of power between the executive and legislative branches, and on the accountability of the country’s highest officials.

What happens next?

The caucus on Monday will set the stage. Oral arguments from both sides will follow, and senator-judges will then pose questions before voting. A decision could come as early as Wednesday, or later if more deliberation is needed.

For now, the country waits. As Lacson put it, listening first is the wiser path. The stakes are too high for haste.

— With reports from Rappler