By Marcial Bonifacio

9/17/26

My friends and countrymen, the impeachment trial of Vice President Sara Duterte (about which I have written separately in The Case for the Conviction of Vice President Sara Duterte) has arrived at a constitutional crossroads. On September 16, 2026, the twenty-sixth day of trial, four retired Supreme Court justices appeared before the Senate impeachment court as amici curiae to address one question of profound consequence: Must sixteen votes remain the fixed and immutable threshold for conviction, or does the Constitution permit a flexible computation based on the number of senators who are actually qualified to participate? The answer to this question will determine not only the outcome of this trial but the meaning of impeachment itself in our Republic.

Two interpretations of the Constitution are now before the Senate impeachment court, and the distinction between them rests on a question as old as legal reasoning itself: Does one follow the literal words of the law, or the reason behind them? The first is the literal or fixed interpretation, grounded in the principle of verba legis, which holds that when the text of the law is clear, it must be applied as written without interpretation. Article XI, Section 3(6) requires the concurrence of two-thirds of all the members of the Senate, and "all the members" means the full twenty-four seats regardless of who occupies them, who is present, or who is legally capable of participating. Under this reading, sixteen votes are required for conviction under all circumstances. The second is the contextual or functional interpretation, grounded in the principle of ratio legis est anima, which holds that the reason of the law is its soul. The phrase "two-thirds of all the members" must be read alongside other constitutional provisions and practical realities, and the denominator must reflect the number of senators who are qualified and able to discharge their duties as judges, not the number of seats that nominally exist. Under this reading, the threshold adjusts to reflect the actual composition of the court. The question is whether the Senate impeachment court will follow the dead letter or the living purpose of the Constitution.

Filipino voters who find this debate unfamiliar should consider how our own Constitution was modeled. Article I, Section 3 of the United States Constitution provides that "no Person shall be convicted without the Concurrence of two thirds of the Members present." The critical word is "present." The American framers understood that a conviction threshold must account for the real composition of the body sitting in judgment, not an abstract number on a roster. The Philippine Constitution of 1987 uses the phrase "all the Members of the Senate" rather than "Members present," and it is precisely this difference in language that has produced the current dispute. However, three former chief justices of our Supreme Court have now concluded that the Philippine phrase, properly interpreted, does not require the rigid result that its critics claim. Indeed, Davide, who helped write the 1987 provision, testified that the Philippine framers intended the same functional result that the American framers achieved with the word "present": a senator who cannot participate in the trial cannot be counted toward the threshold for conviction.

Former Chief Justice Hilario Davide Jr., a framer of the 1987 Constitution, submitted a memorandum stating that the basis of computing the two-thirds must be the number of senators who are qualified to vote, "not the 24 in the present Senate." Davide specified that the framers of the 1935, 1973, and 1987 Constitutions could never have intended to include in the phrase "all the Members of the Senate" those who are outside the jurisdiction of the Philippines, whose whereabouts are unknown, who are in hiding to avoid arrest, or who suffer from legal impediments or restraints that render them incapable of exercising their duties. Davide's position is not without precedent in Philippine jurisprudence. In Avelino v. Cuenco (83 Phil. 17, 1949), the Supreme Court treated the Senate's effective membership as twenty-three instead of twenty-four because Senator Tomas Confesor was in the United States and beyond the Senate's ability to compel attendance, and Senator Vicente Sotto was confined on medical leave. The Court ruled that twelve senators constituted a valid majority of twenty-three. Although Davide himself noted that the Avelino case is "not directly applicable in impeachment cases" because it concerned quorum for ordinary legislative business, he concluded that by analogy it provides guiding light for the present question. The principle is the same: a senator who cannot be compelled to participate cannot be counted as though he had participated.

Former Chief Justice Reynato Puno rejected a standalone literal reading of Article XI, Section 3(6). He observed that if the framers had intended a fixed number, they would have written "sixteen" rather than employing a fraction. As Puno stated, "By using two-thirds, the number of votes to convict will have to move depending on certain factors," including which senators are legally and physically capable of participating. Puno further cautioned that wrongfully excluding a senator-judge from participating could expose the entire proceeding and any eventual verdict to Supreme Court review and possible nullification. This caution deserves honest acknowledgment, for it cuts in both directions. If the Senate wrongfully excludes a senator-judge who should have been counted, a conviction could be voided. If the Senate wrongfully includes a senator-judge who should have been excluded, an acquittal could be challenged on the same grounds. The solution is not to avoid the question but to answer it correctly, which is precisely why Puno advocated for what he called a "contextual and functional interpretation of the Constitution" rather than a mechanical recitation of the number twenty-four.

Former Chief Justice Artemio Panganiban described the impeachment trial as sui generis, possessing both legal and political character. He questioned whether it would be fair to allow senators who are traveling abroad or hiding "in the dark corners of the world" to participate in the final vote when others have spent their time hearing arguments and examining evidence. He urged senators who have failed to actively participate to consider inhibiting themselves from the proceedings. Panganiban also stressed that the threshold question is not for the Supreme Court to decide. It is for the Senate itself, as the sole judge of impeachment cases, to resolve. That distinction matters. The Senate is not waiting for permission. It is exercising a power that the Constitution exclusively confers upon it.

Retired Senior Associate Justice Antonio Carpio, though not among the four amici curiae who appeared on September 16, has independently and consistently argued the same position since before the trial began. Carpio maintained that the phrase "all members of the Senate" refers only to those who remain qualified to perform the functions of a senator, and he applied that principle to three specific cases: Senators Rodante Marcoleta and Jinggoy Estrada, both detained on separate plunder charges, and Senator Ronald dela Rosa, who never took the oath as a senator-judge. As Carpio stated plainly, "If you cannot hold office, you cannot vote." Under his computation, only twenty-one senators are presently qualified to be counted, which would reduce the two-thirds threshold to fourteen votes. The arithmetic is not arbitrary. It follows directly from the constitutional principle that membership requires the capacity to serve. The constitutional standard of two-thirds does not change. The fraction remains identical. Only the number of qualified members to whom the fraction applies changes.

The lone dissenter among the amici curiae was retired Associate Justice Adolfo Azcuna, who insisted that "all means all" and that the constitutionally mandated two-thirds vote must be computed on the basis of all twenty-four senators without exception. He argued that a threshold must be fixed and determinable from the start, not subject to adjustment depending on how many senators are present on any given day. Azcuna illustrated the concern with arithmetic: if only twenty senators were counted, two-thirds would amount to roughly thirteen or fourteen votes, substantially below sixteen. He concluded that such a reduction would undermine the very nature of a supermajority requirement. Presiding Officer Francis Escudero, in his July 6 ruling, adopted the same position, citing the Supreme Court's ruling in Bayan v. Zamora (2000), which held that despite only twenty-three incumbent senators at the time, the constitutional requirement still meant at least sixteen affirmative votes. However, Bayan v. Zamora concerned a vacant seat, not senators who are detained, in hiding, or legally incapacitated. A vacancy means no occupant exists. The present situation is fundamentally different: the occupants exist but cannot serve, which is the precise category that Davide, Puno, and Panganiban addressed in their opinions. It should also be noted that during the impeachment trial of President Joseph Estrada in 2000, there were only twenty-two sitting senators, and confusion arose among lawmakers over whether fifteen or sixteen votes were needed for conviction. Davide himself served as presiding officer of that trial, which ended not in a conviction vote but in a walkout by the prosecution and mass public protest that forced Estrada from office. The threshold question was never formally answered. It has been deferred, not resolved.

Justice Azcuna's position, while internally consistent, does not withstand scrutiny against the realities of the present Senate. Several senator-judges cannot regularly attend the proceedings: Senators Jinggoy Estrada and Rodante Marcoleta are detained on separate plunder charges, Senator Ronald dela Rosa has evaded public life amid an active International Criminal Court arrest warrant and never took the oath as a senator-judge, and Senator Loren Legarda is on extended medical leave abroad with no confirmed date of return. To count those absent or legally incapacitated senators in the denominator is to grant them a de facto vote against conviction without their ever hearing a single witness, examining a single document, or deliberating upon a single article of impeachment. The Constitution does not confer that power upon an empty chair. A fixed threshold of sixteen under such circumstances does not protect the integrity of the supermajority requirement. Quite to the contrary, it weaponizes absenteeism. Any faction seeking to shield an impeached official from conviction need only ensure that enough allied senators remain absent, detained, or beyond the jurisdiction of the Senate to make sixteen votes arithmetically impossible. That is not constitutional governance. That is constitutional sabotage.

Vice President Duterte's spokesperson, Salvador Paolo Panelo Jr., warned that lowering the sixteen-vote threshold could invite the sitting government to target senators expected to vote against its preferred outcome. This argument sounds reasonable in the abstract but collapses upon contact with the facts. The question before the impeachment court is not whether the government may target senators. The question is whether senators who are unable or unwilling to perform their constitutional duty as judges should nevertheless be counted as though they had performed it. If Panelo's concern is political interference, the remedy is to protect each senator-judge's independence, not to count non-participating senators in the denominator so that conviction becomes structurally impossible. Former Senator Richard Gordon has articulated a position that exposes the deeper problem with the defense's posture. As Gordon himself declared, "Hindi itinatakda ng Konstitusyon ang 16 na boto para sa paghatol sa impeachment," which translates to: the Constitution does not fix sixteen votes for conviction in impeachment. Gordon has also described Vice President Duterte as an official who behaves as though she is owed her standing in public life, yet the impeachment clause exists precisely to hold powerful officials to account. A conviction threshold that becomes unreachable due to the voluntary or involuntary absence of allied senators does not preserve the constitutional order. It dismantles it.

The contextual interpretation is the correct one, for four reasons. First, it reflects the stated intent of a framer of the Constitution itself. Davide did not speculate about what the framers might have intended. He told the Senate what they intended, because he was among those who wrote the provision. Second, it prevents the absurdity that Panganiban identified. If five senators were to die and three were to resign, leaving only sixteen members, the literal interpretation would require all sixteen remaining senators to vote for conviction, a unanimity requirement that no constitution in the world imposes for impeachment. Third, it prevents the manipulation that Puno warned against. A wrongful exclusion or a wrongful inclusion of a senator-judge in the count could expose the entire proceeding to Supreme Court nullification. The contextual interpretation, applied honestly, addresses that risk by requiring the Senate to determine the composition of its court based on legal qualification rather than political convenience. Fourth, it produces a concrete and defensible result when applied to the present Senate. Carpio has done the arithmetic that Azcuna warns against, and the arithmetic holds: three senators who are detained or who never took the oath as senator-judges cannot be counted among those qualified to vote, reducing the denominator to twenty-one and the threshold to fourteen. That is not a weakening of the supermajority requirement. It is the honest application of the supermajority requirement to the Senate as it actually exists.

The Senate impeachment court is not a legislature counting heads for a quorum. It is a constitutional tribunal sitting in judgment of the second highest official of the Republic. Its members must have heard the evidence, examined the witnesses, and deliberated upon the articles before casting their votes. To count senators who have done none of those things in the denominator is to make a mockery of the trial itself.

My friends and countrymen, the Senate must not surrender its own judgment to a mathematical fiction. The Constitution grants the Senate the sole power to try and decide all cases of impeachment. That power carries with it the duty to determine, honestly and without manipulation, who among its members is qualified to exercise it. The three former chief justices and Justice Carpio have shown the way. The Senate must follow. And we, the citizens who entrusted our sovereignty to these institutions, must hold every senator-judge accountable for the vote that is to come.

Long live the rule of law, and long live the Republic of the Philippines!

By Marcial Bonifacio

8/14/26

Updated:

9/2/26

My friends and countrymen, this is an explainer to Vice President Sara Duterte's impeachment trial, which I have written about in The Case for the Conviction of Vice President Sara Duterte. On the fifteenth day of the impeachment trial, a single Facebook post from a lawyer, one with no seat on the bench and no witness stand to answer from, threatened, for a moment, to become the day's biggest story. House private prosecutor Amando Virgil Ligutan posted a general statement about courtroom procedure. The defense called it a violation of Rule 18. Days later, the presiding officer delivered a ruling that reshaped how every lawyer, senator, and the Vice President herself must now conduct themselves outside the chamber. Before any citizen judges whether a Facebook post can derail a trial of this magnitude, the rule itself deserves a plain explanation.

What Rule 18 Actually Says

Rule 18 of the Senate's impeachment rules prohibits senators, House prosecutors, defense counsels, private counsels, and witnesses from making public comments or disclosures about the merits of a pending impeachment trial. In plainer terms, everyone with a formal role in the trial is barred from arguing their case anywhere except inside the Senate chamber itself. This is a version of what Philippine law more broadly calls the sub judice rule, a principle that prohibits public commentary on matters still awaiting a court's judgment, precisely so that public opinion, media pressure, or courtroom theater performed outside the courtroom cannot substitute for the evidence and arguments a tribunal is supposed to weigh on its own.

This is a concern the American founders themselves anticipated, long before Facebook existed to test it. Alexander Hamilton, writing in Federalist No. 65 in 1788 to defend the Constitution's design for trying impeachments, warned that such trials would rarely be decided on evidence alone, since the charges almost always touch matters that divide the public into rival camps before a single witness testifies. Hamilton's fear was that the accused's fate would turn on the comparative strength of the two parties rather than a fair demonstration of guilt or innocence, with the community choosing sides long before the tribunal rendered its verdict. Rule 18 answers a version of the same fear Hamilton raised two centuries earlier: that a trial conducted partly in public argument, rather than wholly within the chamber built to weigh it, ceases to be a trial in any meaningful sense at all.

The purpose is straightforward. A trial's integrity depends on the judges deciding the case based on what happens inside the proceeding, not on what lawyers post to their followers while the gavel is still in session. Impeachment court spokesperson Regie Tongol, addressing a separate Rule 18 controversy earlier in this same trial, put the principle plainly: senator-judges "are even more covered" by the rule than the lawyers arguing before them, since impeachment is inherently a political process, and any appearance that a judge has already formed an opinion risks damaging public confidence in the verdict itself.

What Actually Happened on Day 15

The controversy began during a heated cross-examination exchange between private prosecutor Lorna Kapunan and defense counsel Kristine Ferrer, in which Ferrer appeared to argue that misleading questions were permissible during cross-examination. At 11:29 that morning, Ligutan posted to Facebook a reminder that "misleading questions are not allowed even in cross-examination."

Lead defense counsel Sheila Sison raised the issue in a formal manifestation before the court, arguing the post mischaracterized Ferrer's courtroom position, disrespected a fellow member of the bar, and violated Rule 18's ban on public commentary about the case's merits. Ligutan defended himself to reporters afterward, saying his post named no one and referenced no case, and that he was confident he knew exactly where the line was and had not crossed it.

Presiding Officer Francis Escudero did not rule from the bench that day. He told the floor he had directed the clerk of court to monitor counsels' public statements throughout the week, and observed that one side had been "crossing the line many, many times." He promised a formal ruling, and delivered it several trial days later, on Day 19.

This Was Not the First Time

Weeks earlier, in June, Senator Robin Padilla, one of the senator-judges hearing the case, posted on Facebook defending his own courtroom questions about the authenticity of video evidence presented at trial. Tongol, the court spokesperson, confirmed that senator-judges are bound by Rule 18 as well, and warned that public statements suggesting bias could undermine confidence in the court's eventual decision. The Ligutan controversy is therefore not an isolated incident but the second public test of the same rule within a single trial, a pattern worth watching as the proceedings continue.

The Ruling, When It Came

Escudero's ruling arrived on Day 19, August 26, and came in three parts. First, rather than punish anyone for what had already been said, he wiped the record clean of every prior sub judice comment, Ligutan's post included, but made clear the reset would not repeat: "From this point forward, however, Rule 18 shall be strictly enforced and be given full force and effect." Second, he set a two-strike structure going forward: a first violation earns a public reprimand and admonition in open court, while a second or later violation carries a fine of up to ₱30,000 and, for lawyers, the possibility of the incident being referred to the Integrated Bar of the Philippines and the Supreme Court for professional discipline. Third, he ruled that alleged violations by senator-judges themselves would not be policed by the impeachment court directly, but referred instead to the Senate Committee on Ethics and Privileges, so that disciplining a fellow judge would not distract the trial from its actual purpose.

Escudero grounded the ruling in two goals: protecting the public's right to information about the trial while preventing the public from prejudging its outcome, and shielding the proceedings from what court spokesperson Reginald Tongol later called "extrajudicial trial by publicity." Before turning to the lawyers, Escudero first reminded the senator-judges of their own oath to do impartial justice, a sequencing that placed the court's obligation to itself ahead of the obligation it was imposing on everyone else.

As for Ligutan specifically, Escudero's response to his self-defense, that he had been acting instinctively as a law teacher, was direct: a lawyer may keep teaching outside the proceedings, but must set that role aside while participating in the trial itself. Because his post fell under the clean-slate reset, no sanction followed. He is, however, now subject to the same two-strike framework as everyone else should it happen again.

In a detail that underscored exactly what the rule was built to prevent, lead prosecutor Gerville Luistro told the court that Duterte herself had posted a public statement about the trial at the very moment Escudero was reading his ruling aloud. Escudero's answer was that the new rule was already in force by then regardless: "prospectivity will still apply." He declined to let the statement's contents be read into the record, since doing so would itself mean discussing the case's merits in open court, and directed her own counsel to remind her of the rule going forward.

Two Honest Perspectives

Those who see merit in the defense's complaint argue that the timing and content of Ligutan's post make its target obvious even without naming names. A statement about misleading cross-examination questions, posted minutes after a public exchange in which the defense had just argued the opposite position, functions as public commentary on the case regardless of whether a name appears in the text. Under this reading, Rule 18 exists precisely to prevent lawyers from litigating their case in the court of public opinion between recesses, and a technical absence of names does not cure that.

Those unpersuaded by the complaint counter that Rule 18, as written, prohibits comment on the merits of the case, meaning the underlying facts, the guilt or innocence of the Vice President, the strength of the evidence, not general statements of settled legal principle. Representative Terry Ridon made this argument directly, asking whether the post named a person or discussed the case's merits and concluding it did neither. Under this reading, a lawyer restating a rule every law student learns in evidence class is teaching, not litigating, and treating every adjacent public statement as a Rule 18 violation would leave lawyers unable to discuss the law at all while a trial is ongoing.

Both readings rest on a genuine ambiguity in the rule itself: whether "the merits" means only direct commentary on guilt or innocence, or extends to any public statement whose obvious context relates to a specific courtroom dispute. Escudero's eventual ruling did not resolve that ambiguity so much as sidestep it, choosing to forgive the past uncertainty entirely rather than adjudicate whether Ligutan's specific post had crossed the line. What his ruling did resolve was the standard going forward: strict, two-strike enforcement, with no more room for the kind of good-faith argument Ligutan and Ridon had made.

Why This Matters Beyond the Courtroom

A citizen with no interest in impeachment law might reasonably ask why a lawyer's Facebook post deserves this much attention. The answer lies in a broader principle that touches every Filipino who has ever followed a court case in the news, or discussed one with a neighbor. Sub judice rules exist because trials are supposed to be decided by evidence presented and tested inside a courtroom, not by whichever side manages to dominate public conversation while the case is pending. The same principle that restrains Ligutan restrains a barangay official commenting publicly on a pending case against a political rival, or a company executive posting about ongoing litigation involving a competitor, or, for that matter, any citizen serving on a jury who might be tempted to discuss the case with family before a verdict is reached.

The Philippine Supreme Court took this principle seriously enough to formally rule, in a matter involving former Chief Justice Maria Lourdes Sereno, that a public official's campaign of public statements about her own pending case violated the same sub judice standard now at issue in Ligutan's post, showing that this is not a minor procedural nicety invented for this trial but an established doctrine with real consequences reaching all the way to the nation's highest court.

My friends and countrymen, whether one Facebook post crossed a legal line is, in the end, a narrower question than the principle it tests. The principle is this: that citizens are entitled to a verdict reached through evidence weighed in the open chamber, not through whichever lawyer's post gained the most shares before the next recess.

Long live the rule of law, and long live the Republic of the Philippines!