The question of whether the Senate impeachment court has any business deciding how many votes it needs to reach a verdict on Vice President Sara Duterte surfaced Tuesday, September 8, when Senator-Judge Pia Cayetano told her colleagues they should first settle whether the tribunal even holds that power before scheduling any deliberation on it.
Her intervention drew a line at the heart of the dispute: reading the meaning of a constitutional provision, she argued, falls to the Supreme Court and not to senators acting as a trial body. Cayetano pointed her fellow judges back to the ruling presiding officer Sen. Francis “Chiz” Escudero handed down on July 6, when he fixed the conviction requirement at 16 votes out of a 24-member base. “Your ruling, Mr. Presiding Officer, was made. Your ruling was if there’s anyone who questions it, then the recourse is to go to the Supreme Court,” she said.
The debate was set off by Senator-Judge Erwin Tulfo, who asked the court to revisit that threshold on the ground that four senator-judges cannot currently take part in the proceedings. Tulfo pressed for clarity on who should be counted toward the two-thirds needed to convict. “My question now is very basic: When we refer to all members, who exactly are we counting?” he said, adding that he also wanted to know whether an absent senator’s failure to appear would be treated as an automatic vote to acquit.
Tulfo’s concern, as reported by the Philippine Daily Inquirer, was that holding rigidly to a 24-vote base could hand Duterte an acquittal she did not earn on the merits. Should enough judges remain unable to cast ballots, he warned, the remaining fifteen could vote unanimously to convict and still fall short of sixteen — an outcome he described as an “acquittal by default.” He grounded the argument in Avelino v. Cuenco, which he said limits the counting to members the Senate can actually reach through its coercive power.
That reading did not go unchallenged. Cayetano disputed the premise that the chamber had ever adopted Avelino v. Cuenco as its governing rule. “This body did not agree to that. The now-minority does not agree to that. So, I just want to put that on the record clearly,” she said, cautioning against presenting one interpretation of a high court decision as though it were settled Senate practice. “There are many ways to interpret Supreme Court decisions, but let’s not make it appear that it is jurisprudence or it is the rule in the Senate,” she told the court.
Escudero, treating Tulfo’s move as an appeal of his earlier ruling, laid out a process rather than resolving it on the spot. He said the sensitivity of the matter ruled out a quick disposal by voice vote. Instead, the court will bring in amici curiae — outside legal experts, among them retired justices — to weigh in on September 16, followed by fifteen-minute oral arguments from each side on September 23 and a vote that same day. Escudero told the senators he had already floated names acceptable to both prosecution and defense but had not yet confirmed the experts’ availability.
The four judges at the center of the arithmetic are Sens. Loren Legarda, who has been abroad on extended medical leave; Ronald “Bato” dela Rosa, who has stayed away from the Senate since May while wanted under an International Criminal Court warrant; and Jinggoy Estrada and Rodante Marcoleta, both in detention on non-bailable plunder charges. Pangilinan and Cayetano separately brought up a request from Estrada and Marcoleta to be allowed to sit in on the trial, though Escudero noted that appeal had already been routed to the Senate in its legislative capacity rather than to the impeachment court.
Weighing in on the broader principle, Senator-Judge Robin Padilla reminded his colleagues of the oath they took and insisted the charter is not open to workarounds. Any change to the Constitution, he maintained, must move through the Senate Committee on Constitutional Amendments, warning that its provisions cannot be bent or bypassed.
