Does convicting Vice President Sara Duterte really need 16 votes? That question's splitting legal minds ahead of her impeachment trial, set to start in July.
The Constitution says two-thirds of all Senate members must agree to convict. With 24 senators, basic math gives you 16. But a growing number of lawyers say that number might not be set in stone — because some senators can't actually show up to vote.
So far, Senator Jinggoy Estrada's in detention over non-bailable plunder and graft charges linked to the flood control corruption scandal. He's suspended from office. That means he can't vote, according to retired Supreme Court Justice Antonio Carpio.
"Since Estrada is under preventive detention and suspended from office, he cannot exercise the functions and powers of his office, which includes the right to vote as senator," Carpio told Rappler.
Other legal heavyweights agree. Abdiel Dan Fajardo, former president of the Integrated Bar of the Philippines, points to two laws that automatically suspend public officers charged with graft or plunder: Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) and Republic Act No. 7080 (Plunder Law). He also cites a second scenario — preventive detention for any non-bailable offense.
Fajardo backs his argument with two Supreme Court rulings: People v. Maceda and Trillanes v. Pimentel. Both say prisoners under preventive detention or serving final sentence cannot hold elective office or vote.
University of the Philippines College of Law associate dean Paolo Tamase finds Carpio's argument persuasive. He says the "conventional view" could make some Senate functions impossible if too many members can't serve. But Tamase also urges caution. "There is wisdom in the conventional view that all efforts towards consensus-building should be exhausted," he told Rappler. "With two senators being 'non-functioning' so far, I think we should stick to the commonly understood way of counting votes. For now."
House lead prosecutor Jinky Luistro has her own take. She believes the threshold should depend on how many senator-judges actually participate. "If you can attend, if you can participate, if you can vote, then you're representing the interests of the Filipino people. But if you're beyond the reach of any coercive measures, and you didn't attend, and you didn't vote, why should you be counted?" she said, calling it her personal opinion.
But Acting Senate President Win Gatchalian isn't budging. On June 10, he declared that the threshold stays at 16. "It will remain 16 votes regardless of how many senators attend the trial, which bloc controls the chamber, or who presides over the impeachment court," he said.
Gatchalian's predecessor, Alan Peter Cayetano — who's still contesting his ouster as Senate president — has warned that some might try to lower the number, just like he claims happened when he was removed.
With the trial just weeks away, this legal tug-of-war could shape everything. If the emerging view wins, the bar for conviction drops. If it doesn't, the prosecution needs every single one of those 16 votes — no matter who's in detention.