The Empty Chairs That Nearly Acquitted Sara Duterte

By Marcial Bonifacio

9/17/26

Updated:

9/30/26

My friends and countrymen, on September 23, 2026, the Senate impeachment court voted thirteen to one to lower the conviction threshold in the trial of Vice President Sara Duterte. The fixed requirement of sixteen votes, which Presiding Officer Francis Escudero had established on the opening day of trial, was overturned. The court ruled that the two-thirds requirement for conviction applies only to those senator-judges who are legally qualified to participate in the proceedings, not to the full twenty-four seats of the chamber. That vote followed a week of deliberation in which four retired Supreme Court justices appeared before the court as amici curiae, or "friends of the court," to advise on the constitutional question. This essay explains why the Senate ruled correctly, what constitutional principles compelled that result, and why every Filipino voter should understand what was at stake. I have written separately about the substantive case against the Vice President in The Case for the Conviction of Vice President Sara Duterte.

The Two Interpretations

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.

The American Precedent

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.

What the Framers Said

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.

Christian Monsod, a fellow member of the 1986 Constitutional Commission who chaired the Committee on Accountability of Public Officers that drafted the impeachment provisions of the 1987 Charter, confirmed the Senate's ruling in interviews with One News and dzBB radio on September 23 through 25. As Monsod stated plainly, "The denominator can be changed." Referring to Senators Estrada and Marcoleta, Monsod said, "They are only senators in name and not in substance." He further noted that Republic Act 7080, the Anti-Plunder Act, explicitly mandates that government officials charged with plunder shall be suspended from exercising the functions of their office, and that a fugitive from justice should likewise be excluded from the denominator "because once he is arrested, he is already prevented from exercising his power." When asked about Senator Alan Peter Cayetano's argument that the threshold should remain fixed at sixteen, Monsod replied: "He's wrong." Of Senator Camille Villar's emotional defense of her detained colleagues, Monsod said: "She does not understand the law." Monsod also affirmed that the framers did not anticipate the present situation, in which multiple senator-judges would be simultaneously incapacitated by detention, flight from justice, or prolonged medical absence. The failure to anticipate such a scenario does not mean the Constitution prohibits the Senate from addressing it. It means the Senate must exercise the interpretive authority that the Constitution grants it.

Rene Sarmiento, another member of the 1986 Constitutional Commission, stated in interviews with DZMM on September 11 and Bilyonaryo News Channel on September 16 that the framers built the impeachment court on the assumption that every senator seated as a judge would be, in his words, "present, active, functioning and participative." The drafters, Sarmiento acknowledged, "simply never pictured senator-judges who might be behind bars or evading arrest." That gap between the framers' assumption and the present reality is the origin of the dispute. Sarmiento's conclusion was direct: "Those beyond the coercive powers of the state, they should be excluded in the voting." He cited the American impeachment proceedings, in which only senators present at the trial cast the vote, and referenced Avelino v. Cuenco as a persuasive guide. Sarmiento also clarified where the authority to resolve the question resides, stating that the threshold is not for the presiding officer alone to determine: "It's not the presiding officer, who's Senator Escudero." It is for the Senate impeachment court as a whole.

What the Former Chief Justices Said

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, a Latin term meaning "of its own kind," 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. Hence, 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 Dissent

The lone dissenter among the amici curiae was retired Associate Justice Adolfo Azcuna, who served as vice chair of the same Committee on Accountability of Public Officers that Monsod chaired. Azcuna 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.

The defense has also invoked the 2012 impeachment trial of former Chief Justice Renato Corona. At the time of the Corona trial, only twenty-three senators sat because one seat was vacant after Benigno Aquino III won the presidency. The Senate applied the sixteen-vote threshold despite having only twenty-three members, and Corona was convicted twenty to three. Defense counsel Michael Poa cited this precedent to argue that the Senate has never lowered the threshold, even with fewer than twenty-four members. The argument fails on the same distinction. In 2012, the twenty-fourth seat was vacant. No occupant existed, and no senator was being counted in the denominator while simultaneously being unable to serve. The Corona precedent, properly understood, supports the contextual interpretation rather than the textual one. The Senate kept the threshold at sixteen in 2012 because all twenty-three sitting senators were qualified to participate. Had any of them been detained or in hiding, the question now before the court would have arisen then.

Why the Fixed Threshold Fails

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. The events of September 23 confirmed this danger in practice: six senator-judges from the minority bloc refused to cast a vote on the threshold question itself, and four others have been absent from the trial for months, meaning that ten of twenty-four senators have now declined or been unable to exercise their constitutional function as judges in this proceeding. That is not constitutional governance. That is constitutional sabotage.

The Defense Responds

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.

Defense counsel Michael Poa, in his oral arguments on September 23, raised a broader constitutional objection: lowering the denominator in the impeachment threshold would carry consequences for other constitutional provisions that also require a two-thirds Senate vote, including the extension or revocation of martial law, the expulsion of a senator, and the amendment of the Constitution itself. The concern is legitimate in principle. In practice, the impeachment court addressed it directly. Presiding Officer Escudero ruled that the court's decision applies pro hac vice, meaning only to this impeachment proceeding, and will not bind future impeachment courts or other Senate functions. The threshold was adjusted for this trial because the specific conditions of this trial, detained, absent, and fugitive senator-judges, required it. That is not a precedent that rewrites the Constitution. It is a ruling that applies the Constitution to the facts before the court.

Senator Imee Marcos, one of the six senator-judges who refused to vote on the threshold question, stated the opposition's constitutional argument in its most forceful form: "Dapat natin bilangin ang mga boto ayon sa Saligang Batas, hindi natin dapat baguhin ang Saligang Batas ayon sa mga boto. Kabuktutan ito, kabaligtaran." The translation: "We should count the votes according to the Constitution, not change the Constitution according to the votes. This is corruption, this is inversion." The accusation is serious, and it deserves a direct answer. The contextual interpretation does not change the Constitution. It does not alter the two-thirds requirement. It corrects the denominator to which that requirement applies, based not on legislative amendment but on the factual reality that certain senators cannot discharge their constitutional function. Thus, the Constitution was not rewritten on September 23; the denominator was simply corrected.

House Prosecutor Representative Chel Diokno, in his oral arguments before the Senate impeachment court on September 23, 2026, stated the consequence plainly: a fixed denominator of twenty-four, applied to a Senate in which four members cannot participate, would amount to "an acquittal by default." As Diokno told the court, "Yes, the Constitution deliberately makes conviction harder by imposing the two-thirds requirement. But making it harder is not the same as making it depend on senators who are not judges, or who are incapable of acting as judges." Diokno further dismantled the premise that adjusting the denominator favors the prosecution. Excluding non-participating senators from the computation reduces the number of votes required on both sides. The threshold for conviction decreases, but so does the threshold for acquittal. The fraction remains two-thirds. The constitutional standard does not change. What changes is the number of qualified members to whom the standard applies. As Diokno stated, "The articles do not change. The burden, imposed upon the prosecution, does not change. In the same breath, the responsibility of this Court to render independent judgment remains the same. Whatever the Court decides, the prosecution will respect that decision. Because ultimately, two-thirds remains two-thirds."

Former Senator and delegate of the 1971 Constitutional Convention 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. On the contrary, it dismantles it.

The contextual interpretation is the correct one, for four reasons. First, it reflects the stated intent of the framers of the Constitution themselves. Four members of the 1986 Constitutional Commission have spoken publicly on this question: Davide, Monsod, Sarmiento, and Azcuna. Of the three who support the contextual interpretation, Davide authored the memorandum, Monsod chaired the committee that produced the impeachment clause, and Sarmiento acknowledged the gap between the framers' assumptions and the present reality and reached the same conclusion. Azcuna alone dissented. Davide did not speculate about what the framers might have intended. He told the Senate what they indubitably intended, because he was among those who wrote the provision. Monsod confirmed it. Sarmiento corroborated it. 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, and it holds. That is not a weakening of the supermajority requirement. Indeed, 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.

The Senate Votes

On September 23, 2026, the twenty-ninth day of trial, the Senate impeachment court voted on the question. Thirteen senator-judges voted to overturn Presiding Officer Escudero's July 6 ruling and to set the conviction threshold at two-thirds of those who are legally qualified to participate in the proceedings. Escudero cast the lone dissenting vote. Six senator-judges refused to vote at all: Senate Minority Leader Alan Peter Cayetano, Pia Cayetano, Imee Marcos, Bong Go, Camille Villar, and Robinhood Padilla. Before the threshold vote itself, the court had rejected Cayetano's motion to defer the issue and refer it to the Supreme Court, by the same margin of thirteen to six. Cayetano warned that changing the denominator could produce the equivalent of a "mistrial." The court was not persuaded.

Escudero's response to the vote deserves to be recorded in full, because it is the statement of an officer who disagrees with a ruling and nevertheless submits to the authority of the body he serves: "For the record, while the chair takes exception to this decision, the chair nonetheless accepts it as a judgment of this court and is bound to give it effect." That is the conduct of a presiding officer who understands that the sole power to try and decide impeachment cases belongs to the Senate as a whole, not to the chair alone.

The defense has indicated that an appeal to the Supreme Court remains a possibility. Diokno has responded that such a challenge would not be justiciable until after the Senate renders an actual verdict. Until then, the impeachment court's ruling stands.

My friends and countrymen, the Senate has answered the constitutional question that has hung over this trial since its opening day. It has determined, by an overwhelming margin, that a senator who cannot serve as a judge cannot be counted as though he had. The empty chairs will not cast votes. The three constitutional framers, three former chief justices, and Justice Carpio showed the way, and thirteen senator-judges followed. What remains is the trial itself, the evidence, the deliberation, and the verdict. We, the citizens who entrusted our sovereignty to these institutions, must now hold every senator-judge accountable not merely for the threshold vote that has passed, but for the conviction vote that is yet to come.

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