Of Empty Chairs and Full Powers
Sara Duterte’s Impeachment, the Senator-Judges,
and the Constitutional Burden of Attendance
The constitutional controversy now confronting the Senate impeachment court has been presented, perhaps inevitably, as a dispute over arithmetic. Article XI of the 1987 Constitution requires the concurrence of two-thirds of all members of the Senate for conviction in an impeachment trial. Since the Senate is constitutionally composed of twenty-four members, the conventional calculation produces sixteen votes. Presiding Officer Francis Escudero adopted that construction when the trial of Vice President Sara Duterte began. Yet the subsequent inability or failure of several senators to participate has exposed a problem which arithmetic alone cannot answer: whether the Constitution intended the numerical composition of the Senate to remain wholly detached from the legal and practical capacity of its members to perform the judicial function assigned to them.
The four retired Supreme Court justices invited as amici curiae did not merely provide competing formulas for determining the denominator. Their respective positions disclosed several different theories of constitutional government. Retired Associate Justice Adolfo Azcuna defended what may be called the institutional-textual view: membership itself determines the denominator, and so long as a senator remains legally a member of the Senate, that senator continues to count in computing the two-thirds requirement. Retired Chief Justices Hilario Davide Jr., Artemio Panganiban and Reynato Puno, though differing among themselves in important respects, questioned whether constitutional interpretation could stop at that formal proposition when certain members are legally restrained, physically unavailable or substantially absent from the very proceedings in which they are expected to exercise judgment.
Azcuna’s proposition is intellectually stronger than its critics sometimes admit. “As long as they are members of the Senate, they constitute the denominator in computing the threshold of two-thirds because all means all,” he said. The argument is founded upon an essentially conservative understanding of constitutional safeguards. A supermajority requirement was not placed in the Constitution for decorative purposes. It exists precisely to make removal difficult and to prevent impeachment from being converted into an instrument by which an ordinary legislative majority disposes of a constitutional officer whom it dislikes. Azcuna therefore warned that “the supermajority rule protects against factional and partisan abuse,” because conviction should rest upon an agreement wider than the combination ordinarily sufficient to legislate, organize the chamber or control its committees. In this reading, twenty-four is not merely the number of chairs physically occupied on a particular afternoon; it is the constitutional size of the institution whose extraordinary power is being exercised.
There is an important principle here. Constitutional safeguards should not become variable quantities whenever their application causes political inconvenience. If two-thirds of the Senate means sixteen when the chamber is complete and politically tranquil, it would be dangerous to permit a temporary configuration of absence, detention, illness or political estrangement automatically to produce a smaller constitutional threshold. Such a doctrine could itself become susceptible to manipulation. A faction interested in conviction might discover that strategic nonattendance by several members conveniently reduces the votes required. Any interpretation which permits the constitutional protection of an accused official to depend upon attendance tactics must therefore be approached with considerable caution.
Yet the opposite construction produces difficulties no less serious. If every sitting senator must count regardless of whether he is legally capable of performing the functions of a senator-judge, absence itself may begin to exercise political force. A member who hears no witness, examines no exhibit and participates in no proceeding may nevertheless increase the number of affirmative votes required from those who actually do. The empty chair would not formally vote for acquittal, but it could have an equivalent numerical consequence. What was designed as a supermajority safeguard could then become something different: a system under which incapacity, evasion or deliberate nonparticipation acquires the constitutional value of a negative vote.
It is this difficulty which gives Davide’s intervention particular significance. His position was that the phrase “all the Members of the Senate” cannot be interpreted as though membership were an abstraction unaffected by legal disability. Senators who have resigned or been expelled plainly cannot count. More controversially, Davide argued that those who are detained, suspended, beyond the jurisdiction, missing or otherwise legally incapable of exercising their senatorial functions may likewise have to be excluded from the denominator. He invoked jurisprudence stating that “the performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison.” From this he drew a broader proposition: public office does not suspend the ordinary operation of law merely because the detained official happens to possess important responsibilities.
That proposition has substantial republican pedigree. Philippine political life has too often encouraged the opposite understanding—that election converts office into a species of personal property, accompanied by privileges which survive even when the officer is unable or unwilling to perform the corresponding duties. The constitutional language of public office, however, points in another direction. Office exists for the performance of public functions. Its authority is fiduciary rather than proprietary. The citizen elected to the Senate receives extensive powers precisely because those powers are to be exercised for constitutional purposes; he does not acquire a private entitlement to deploy the prestige of his position whenever useful while asking the state to disregard circumstances that make the performance of that position impossible.
The issue becomes particularly important because attendance is not foreign to the constitutional understanding of legislative duty. In ordinary legislative proceedings, the Constitution permits a smaller number of members to compel the attendance of absent colleagues in such manner and under such penalties as the chamber may provide. The Senate also possesses disciplinary authority over its members. These provisions do not by themselves resolve an impeachment question, because the Senate sitting as an impeachment court performs a function distinct from ordinary legislation. They nevertheless demonstrate that Philippine constitutionalism has never regarded attendance as a matter of purely private discretion. Membership carries an institutional expectation of presence, and the chamber has been given means by which that expectation may be enforced.
Panganiban brought this question into sharper relief by moving beyond the denominator and asking what judgment itself requires. His argument was not merely that some absent senators should be excluded because their presence is numerically inconvenient. He asked whether it is fair, or even faithful to the adjudicative character of impeachment, for senators who have not attended the proceedings to exercise the same final voting power as colleagues who have heard the evidence and studied the submissions.
“Thus the Senate must hear the prosecution and the defense witnesses as it already does, allow their counsels to argue verbally and in writing, and study their presentations deeply,” Panganiban said. “Only thereafter should it issue its orders and decisions. In this connection, is it truthful and fair to allow senators to cast their votes despite being absent from the proceedings?”
His examples were deliberately vivid. He referred to senators who might be “looking at the pyramids along the Nile,” shopping in Paris or riding gondolas in Venice while their colleagues remained inside the chamber performing the tedious work of adjudication. He extended the problem to those who are hiding, detained, hospitalized, abroad or otherwise unable to examine documentary evidence or observe witnesses. Behind the picturesque imagery lay a conventional judicial principle: the authority to decide derives not simply from possession of office but from engagement with the record upon which the decision is supposed to rest.
“You are tasked with a constitutional duty that cannot always be reduced to abstract arithmetic, neither can such duty be performed in the shadows of absence nor from legal impediments,” Panganiban said. “Indeed, meaningful adjudication requires active participation in the search for truth and fairness.”
This should not be mistaken for the crude proposition that only a senator physically present at every moment of testimony may vote. Puno’s observations are important precisely because they prevent such an argument from becoming doctrinaire. Judges in ordinary courts sometimes decide matters from transcripts, affidavits and records even when they did not personally hear every witness. Modern adjudication could scarcely function otherwise. Davide similarly emphasized that a senator’s failure to interrogate witnesses is not evidence of nonparticipation, observing that judges should often refrain from questioning except where clarification is necessary. A senator who has quietly attended, read the record and considered the arguments may have participated more seriously than one who has filled hours with questions intended principally for political display.
The relevant distinction therefore lies not between physical visibility and invisibility, nor between senators who speak and senators who remain silent. It lies between genuine performance of adjudicative duty and the attempt to retain adjudicative power without undertaking the work necessary to exercise it responsibly. The Senate must eventually determine how much participation satisfies that duty, but it cannot avoid defining the relationship altogether.
The controversy becomes politically more charged because the absent senators are not neutral abstractions. Rodante Marcoleta and Jinggoy Estrada are detained while facing plunder cases. Ronald “Bato” dela Rosa has remained beyond the reach of the impeachment proceedings while facing an International Criminal Court arrest warrant arising from alleged crimes against humanity in the drug war. These circumstances are separate from the accusations against Duterte and do not establish the guilt of any senator concerned. They nevertheless create a practical constitutional question because the chamber must decide whether members constrained by criminal process, international process or voluntary absence continue to exercise the same impeachment powers as colleagues who are present and participating.
Marcoleta has insisted upon his continued status and voting authority as a senator-judge despite detention and has favored the retention of the sixteen-vote requirement. His position can be defended in institutional terms: he was elected, has not been removed from office, and therefore remains constitutionally part of the Senate. Yet the same facts inevitably invite a political interpretation, especially because the mathematical consequence of retaining all twenty-four members in the denominator makes conviction more difficult. Critics therefore see the claim of institutional completeness as politically convenient to Duterte’s defense.
A similar partisan reading surrounds other senators identified, fairly or unfairly, with positions sympathetic to the vice president. Imee Marcos has repeatedly adopted positions which Duterte’s critics interpret as favorable to the defense. Members of the Villar family have likewise been associated with political formations and procedural positions viewed as friendly to Duterte. Loren Legarda has raised institutional and evidentiary objections which some partisans interpret in the same fashion, although it would be unwarranted to conclude from those interventions alone that every question she raises is reducible to support for acquittal. Political alignment, procedural skepticism and legal interpretation may overlap without being identical.
The distinction matters because a constitutional rule cannot be responsibly constructed upon allegations of motive. A senator may sincerely believe that twenty-four must remain the denominator and simultaneously prefer Duterte’s acquittal. Another may sincerely favor excluding legally incapacitated members and simultaneously desire conviction. The coincidence between legal interpretation and political advantage does not by itself prove bad faith. Indeed, most constitutional disputes arise precisely because principled arguments have distributive political consequences.
What the Senate must guard against is not political preference as such—politicians are not expected to cease having political commitments—but the adaptation of constitutional rules to produce a desired partisan result. The proper test of any proposed doctrine is whether its advocates would continue to defend it if the political alignments were reversed. If several absent senators were firmly opposed to Duterte, would those who now insist that every member must count still insist upon twenty-four as the denominator? If an administration used dubious criminal proceedings to detain hostile senators on the eve of an impeachment vote, would proponents of excluding detained members remain equally comfortable with reducing the threshold?
Those counterfactuals demonstrate why the question cannot be settled by determining which interpretation presently favors which faction. Constitutional law worthy of the name must be capable of surviving a change of government.
This returns the discussion to the concept of institutional completeness. There is an understandable desire within the Senate to maintain the proposition that it remains a twenty-four-member constitutional body notwithstanding the legal difficulties of particular members. Institutions depend upon continuity, and the temporary incapacity of individual officeholders should not casually dissolve the structure of the chamber. Yet institutional continuity cannot be reduced to maintaining a complete list of names while disregarding whether those names correspond to functioning members capable of performing the duty at issue.
A Senate which insists upon being counted as complete must confront what completeness requires in practice. If all twenty-four members remain constitutionally relevant because membership continues despite detention, absence or other impediments, then the institution has reason to insist with equal seriousness that members who can lawfully participate actually do so. Otherwise the concept becomes asymmetrical: membership remains absolute when it increases the threshold for conviction but becomes optional when attendance, study, deliberation and submission to lawful process are considered.
This asymmetry becomes especially difficult where members are themselves under accusation or restraint by the state. No democratic legal order should presume guilt from accusation. Detention before conviction must remain subject to judicial scrutiny, and criminal process must never be manipulated merely to alter legislative arithmetic. A government capable of neutralizing opposition senators through convenient prosecutions would pose an obvious danger to impeachment as an independent constitutional mechanism.
But the converse is equally troublesome. Election cannot create an automatic exemption from the consequences of valid legal process. A senator detained pursuant to lawful judicial authority cannot simply say that his constitutional importance requires the ordinary rules applicable to other detainees to be relaxed whenever an important vote arises. Ordinary citizens in detention also possess employment, dependents, contractual responsibilities and public obligations which confinement prevents them from fulfilling. Representative government would be difficult to defend if election alone transformed this general consequence of detention into a privilege from which legislators were uniquely exempt.
The same principle applies, although in a different form, to a senator who avoids legal process. The existence of an accusation or warrant does not establish guilt, and the rights of the accused remain intact. But due process does not logically entail that a legislator may remain outside the effective reach of legal institutions while simultaneously demanding that his office be treated as fully operative for every constitutional calculation. If voluntary absence has no consequence for membership, participation or the denominator, political actors may acquire an incentive to convert evasion itself into a procedural strategy.
The solution therefore cannot simply be the mechanical exclusion of inconvenient members. The categories of absence must be distinguished. Serious illness is different from deliberate flight. Hospitalization differs from political travel. Detention under judicial order differs from unexplained nonattendance. Suspension differs from resignation. A senator who has participated substantially but misses several hearings presents a different case from one who has never attended at all. Constitutional interpretation is weakened, not strengthened, when all these circumstances are collapsed into the single word “absent.”
A workable institutional rule would accordingly have to address both attendance and legal capacity. If the Senate determines that all twenty-four members remain within the constitutional denominator until death, resignation, expulsion or formal vacancy, it should consider corresponding rules governing compulsory attendance, justified absence, access to the record and the minimum participation necessary before a senator may cast a final impeachment vote. Where members can lawfully be compelled to attend, institutional completeness may reasonably demand compulsion. Where they are legally detained, the chamber must determine whether participation can be accommodated without granting privileges incompatible with the ordinary operation of criminal justice. Where attendance is genuinely impossible, the rules should identify whether the member nevertheless remains entitled to vote after reviewing the complete record.
Conversely, if the Senate adopts Davide’s functional interpretation and concludes that certain legally disabled members do not belong in the denominator, the grounds for exclusion must be defined with similar care. A vague doctrine allowing the presiding officer or a temporary majority to decide who is “capable” of voting would be more dangerous than the problem it seeks to solve. Any rule of exclusion must be narrow, objective and prospective enough that the majority could not manipulate it merely to obtain the required number.
The old case of Avelino v. Cuenco remains useful mainly because it reminds us that constitutional language about membership and quorum has always had to contend with the untidy circumstances of actual legislators. The Senate contemplated by constitutional text is stable and complete; the Senate encountered by history is composed of men and women who become ill, travel abroad, resign, are detained, refuse to attend or disappear from effective jurisdiction. Avelino does not mechanically resolve impeachment under the 1987 Constitution, as the amici broadly recognized, but it demonstrates why literalism and institutional reality cannot be wholly separated.
There is consequently an element of both conservatism and egalitarianism in the more demanding understanding of legislative duty. The conservative element insists that constitutional procedures cannot be rewritten in the middle of a political conflict simply because one faction dislikes their consequences. The egalitarian element insists that election does not create a privileged legal caste entitled to enjoy authority without exposure to the obligations and restraints applicable to public officers and citizens generally.
These principles are not contradictory. They become compatible once public office is understood not as property but as an institution whose powers exist for defined purposes. A senator does not lose legal rights merely because he holds office; neither does he acquire an unrestricted constitutional immunity from the ordinary consequences of his conduct. The protection of senatorial independence should preserve the capacity of legislators to deliberate and vote without intimidation. It should not be enlarged into a doctrine under which an officeholder may disregard lawful restraints while continuing to insist that the Republic count his absent seat whenever the arithmetic is politically useful.
This is why the present controversy should ultimately be treated as an institutional problem rather than merely a Duterte problem. The vice president will eventually be convicted or acquitted according to the evidence and whatever threshold the Senate determines the Constitution requires. The amici’s debate does not properly answer that substantive question. Its importance lies elsewhere: it has exposed the absence of a sufficiently developed doctrine connecting senatorial membership with senatorial participation when the chamber exercises its impeachment power.
Those who insist that the Senate must appear complete are therefore entitled to demand the preservation of its full constitutional identity. But that demand carries a reciprocal obligation. If twenty-four senators must be counted because twenty-four senators constitute the institution, then the Senate must explain what it expects those twenty-four senators to do. It cannot indefinitely maintain that every member has full constitutional significance for determining the denominator while treating attendance and participation as matters left almost entirely to political preference.
The issue becomes particularly sensitive when the senators concerned are identified with one side of the impeachment dispute. Marcoleta’s insistence upon participation from detention, dela Rosa’s continued absence, and the positions taken by senators regarded as sympathetic to Duterte will understandably be read by opponents as efforts to preserve a defensive bloc around the vice president. Their supporters will answer that excluding those senators would itself amount to manipulating the institutional composition of the court. Both interpretations are politically intelligible, but neither supplies a sufficient constitutional rule.
What the Senate requires is a doctrine which makes such partisan calculations less important. Members should know before the next impeachment, and regardless of the identity of the accused, whether unjustified nonattendance can be sanctioned; whether a senator legally detained remains entitled to vote; whether a member who has never participated may enter only for judgment; whether examination of transcripts can cure substantial absence; and whether legal incapacity alters the denominator. Clear rules would not remove politics from impeachment, which is impossible, but they would narrow the field within which political convenience may masquerade as constitutional interpretation.
The deeper question raised by the amici is therefore not simply whether sixteen votes are required. It is whether the Constitution’s grant of power to senator-judges presupposes an enforceable conception of duty. The constitutional authority to compel attendance in ordinary Senate business suggests that the answer cannot be that presence is wholly voluntary. The judicial character of impeachment suggests that participation cannot be entirely nominal. The principle of equality before the law suggests that detention, legal restraint and criminal accusation cannot be neutralized merely because the person affected possesses an electorally valuable office.
At the same time, those principles must be administered in a manner which prevents the executive, the prosecution or a Senate majority from manufacturing incapacity in order to change the result. The institutional objective should therefore be neither to preserve sixteen votes at all costs nor to reduce the denominator whenever absence becomes inconvenient. It should be to ensure that no faction gains an artificial advantage from either strategic absence or opportunistic exclusion.
A mature Senate would address this problem by making the obligations of membership as definite as the privileges of membership. Senators who can attend should ordinarily be required to attend proceedings in which they exercise the power of judgment. Those unable to attend should fall within clearly defined categories of justified absence, legal incapacity or substantial participation through the official record. Those subject to lawful detention should not receive extraordinary privileges solely because political arithmetic makes their presence desirable, although procedures consistent with judicial orders may be considered where the law permits them. Those who deliberately remain outside lawful process should not be allowed automatically to convert that circumstance into an indefinitely consequence-free constitutional position.
Such an arrangement would preserve Azcuna’s legitimate concern that impeachment not be made easier through casual manipulation of the denominator while taking seriously Davide’s insistence that legal capacity matters, Panganiban’s demand for meaningful participation and Puno’s warning that adjudication need not depend upon theatrical physical presence at every moment. Properly understood, the four positions are not merely mutually exclusive answers to a numerical puzzle. Together they reveal the elements of a more coherent institutional doctrine.
The Republic would gain little from settling this dispute merely by declaring either that “all means all” or that sixteen is not immutable. Those formulations are beginnings rather than conclusions. The more durable settlement would define the constitutional relationship between membership, capacity, participation and legal accountability, so that future senator-judges cannot select whichever understanding happens to protect their faction at the time.
If the Senate wishes to insist upon its completeness as an institution, it must be willing to require completeness in function as well as in enumeration. The point is not to punish absence as though physical presence were itself a moral virtue, nor to treat accusation as guilt. It is to prevent public office from becoming a peculiar arrangement in which the holder may invoke every privilege attached to membership while declining, evading or becoming legally unable to perform the duty for which that membership is constitutionally important.
That question will remain after Sara Duterte’s trial is over. It concerns not merely the fate of one vice president or one alignment of senators, but the older republican problem of whether legislative power is something an officeholder owns or something he is obligated to exercise under law. A constitutional order which answers that question clearly will be better protected both against partisan prosecution and against partisan evasion, because it will have established in advance that the authority to judge carries with it a corresponding obligation to be present in law, to engage seriously with the record, and to accept the legal consequences which attach to the officeholder as surely as the constitutional privileges of office do.