14 or 16? Charter framer settles the impeachment math

By Francis Allan L. Angelo

MANILA – A framer of the 1987 Constitution said the two-thirds vote required to convict an impeached official should be counted from the senator-judges actually present at the trial, and not from the full 24-member Senate.

Rene Sarmiento, a lawyer and member of the 1986 Constitutional Commission that drafted the charter, opened an interview with DZMM on Thursday, Sept. 10, by stating his position without qualification.

“Sasabihin ko ang posisyon ko: two-thirds of all those present,” he said. (I will state my position: two-thirds of all those present.)

He said three separate grounds support that reading: legal, constitutional, and historical.

The text and the trial

On the first ground, Sarmiento pointed to the constitutional provision vesting in the Senate, as he quoted it, the sole power to try and decide all impeachment cases.

The operative word, he said, is “try.”

“When we say try, trial court po ‘yan,” he said. (When we say try, that is a trial court.)

He said a trial court cannot function with empty seats, because a judge has to watch the witnesses in the room.

“Sa trial court po, dapat po nandiyan ang huwes para makita po ang kilos, hakbang, mannerismo, ang smile — lahat-lahat po ng testigo at ng mga abogado,” he said. (In a trial court, the judge must be there to see the movements, the bearing, the mannerisms, the smile — everything about the witnesses and the lawyers.)

“So kailangan po sa impeachment court ay nandiyan po ang huwes para to observe all the deportment and behavior. Kung wala po, we cannot call it an impeachment court,” he added. (So in an impeachment court, the judge must be there to observe all the deportment and behavior. If they are absent, we cannot call it an impeachment court.)

He tied the requirement to the purpose behind the provision.

“At dapat kailangan po ang two-thirds present, because the intention of the Constitution is to have an active and functioning court,” Sarmiento said.

Two rulings on ‘all members’

For his second ground, Sarmiento cited two Supreme Court decisions that interpreted the phrase “all members of the court.”

He named Fuentes v. Director of Prisons, decided in 1924, and a later ruling, People v. Soriano, which he said affirmed it.

Both cases turned on who had to sign a death sentence under a rule requiring all members of the court to sign the judgment.

“Ang lengguwahe po ay ‘all members of the court.’ Sa ating Constitution, sa impeachment, ‘all members of the Senate,'” he said. (The language there is “all members of the court.” In our Constitution, on impeachment, it is “all members of the Senate.”)

He said the Supreme Court read that phrase to mean only the judges who heard the case through.

“Ang sabi nila, ‘all those present who tried and decided the case,'” he said. (What they said was, “all those present who tried and decided the case.”)

“It should be an active and functioning court. Wala pong absent, wala pong nasa ibang bansa, etc. — para sabihing ‘all members present,'” he added. (No one absent, no one in another country, and so on — for it to be said that all members are present.)

“It is an authoritative decision of the Supreme Court,” Sarmiento said of the ruling.

A borrowed provision

His third ground was historical. He traced the two-thirds requirement to the 1787 U.S. Constitution.

“Ito pong provision, two-thirds po, ay halaw po — galing po sa US 1787 Constitution. Ano po nakalagay doon? ‘Two-thirds of all the members present,'” he said. (This provision, the two-thirds, was drawn from the 1787 US Constitution. What does it say there? “Two-thirds of all the members present.”)

Sarmiento acknowledged that the word “present” did not carry over into the Philippine charters of 1935, 1973, and 1987, which instead used the phrase “all the Members of the Senate.”

He argued that the origin of the provision, and not the later phrasing on its own, should govern how it is read.

“Sa tingin ko po, balikan po natin ‘yung kasaysayan at pinagmulan, ‘yung nanay ng provision na ito,” he said. (In my view, let us go back to the history and the origin, the mother of this provision.)

“Ano’ng intent ng framers of the US 1787 Constitution? For it to be an active impeachment court — an active, functioning impeachment court — meaning dapat nandoon po ‘yung mga huwes,” he said. (What was the intent of the framers of the 1787 US Constitution? For it to be an active impeachment court — an active, functioning impeachment court — meaning the judges have to be there.)

He closed the interview on the same conclusion he opened with.

“Para sa akin po — legal, constitutional, historical — two-thirds of all those present,” Sarmiento said.

He said the question could ultimately reach the Supreme Court as the final legal arbiter.

The math before the court

The interview came as the Senate impeachment court reopened the arithmetic of conviction in the trial of Vice President Sara Duterte.

Article XI, Section 3(6) of the 1987 Constitution provides that no impeached official may be convicted without the concurrence of two-thirds of all the members of the Senate.

The court has proceeded on the understanding that conviction requires 16 votes, a threshold impeachment court presiding officer Senator Francis “Chiz” Escudero set on July 6 on the reasoning that the charter fixes Senate membership at 24 regardless of vacancies or absences.

Four senator-judges are unable to sit. Jinggoy Estrada and Rodante Marcoleta are detained on nonbailable plunder charges before the Sandiganbayan, Ronald “Bato” dela Rosa has gone into hiding while facing an International Criminal Court arrest warrant, and Loren Legarda is abroad on extended medical leave.

Estrada, Marcoleta, and Dela Rosa have not attended a single day of the trial.

Senator-judge Erwin Tulfo asked the court on Tuesday, Sept. 8, to reconsider the threshold, framing the question as one of who is being counted.

“When we refer to all members, who exactly are we counting?” Tulfo asked during the proceedings.

Applied to the 20 senator-judges presently able to sit, a two-thirds requirement would translate to 14 votes rather than 16.

Escudero ruled that the matter requires thorough examination before the court resolves it, declining to settle it through the usual voice vote.

“Given the sensitive and serious nature of this issue and topic, we will be enlisting the opinion and assistance of amici curiae, or friends of the court so to speak, in order to give their opinion with respect to this issue,” Escudero said.

What happens next

The court on Thursday named four retired Supreme Court justices as amici curiae: former Chief Justices Artemio Panganiban, Reynato Puno, and Hilario Davide Jr., and former Associate Justice Adolfo Azcuna.

Panganiban, Puno, and Azcuna will appear before the court on Sept. 16, while Davide will submit a legal memorandum for the record, impeachment court spokesperson Reginald Tongol said.

Two of the four advisers sat with Sarmiento on the 1986 Constitutional Commission. Davide also presided over the impeachment trial of then President Joseph Estrada in 2000.

Tongol said the advisers would not be cross-examined because they are furnishing legal doctrine rather than factual evidence.

The prosecution and the defense are scheduled to argue the question on Sept. 23, with 15 minutes each, after which the senator-judges are expected to vote on whether to overturn Escudero’s ruling.

Legal opinion outside the chamber remains divided. Azcuna has argued for keeping the 16-vote threshold on the reasoning that absent members still count, retired Associate Justice Antonio Carpio has said the count should rest on the senators legally qualified to participate, and former Integrated Bar of the Philippines president Domingo Cayosa has said a fair and practical approach would lower it.

Background

The trial was on its 23rd day on Sept. 8, taking up Article I of the complaint, which accuses Duterte of misusing PHP 612.5 million in confidential funds.

The House of Representatives impeached Duterte a second time on May 11 by a vote of 257 to 25, transmitted the articles to the Senate on May 14, and the Senate convened as an impeachment court on May 18.

The first impeachment, lodged in February 2025, collapsed when the Supreme Court declared the articles unconstitutional in July of that year for violating the one-year bar on successive complaints.

A conviction would remove Duterte from office immediately and could carry perpetual disqualification from public office, and it would not bar separate criminal or civil proceedings against her.

Sarmiento served as a member of the 1986 Constitutional Commission, later sat as a commissioner of the Commission on Elections, and went on to chair the Parish Pastoral Council for Responsible Voting.