TRANSCRIPT: Prosecution, defense arguments on conviction threshold

MANILA — The prosecution and defense in the impeachment trial of Vice President Sara Duterte on Wednesday presented their respective positions on whether to adjust the minimum 16 votes required to convict the country’s second-highest official.

Presiding officer Sen. Francis “Chiz” Escudero earlier ruled that at least 16 votes are required to convict Duterte, equivalent to two-thirds of the 24-member Senate.

The ruling was based on Section 3(6), Article XI of the 1987 Constitution, which governs impeachment proceedings and states: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

But Sen. Erwin Tulfo later questioned whether “all the Members of the Senate” should include other senators — Ronald dela Rosa, Jinggoy Estrada, Rodante Marcoleta and Loren Legarda — who have largely been absent from the proceedings for various reasons.

Akbayan Rep. Chel Diokno presented the prosecution’s position, while lawyer Michael Poa presented the defense’s.

Below are the transcript of their speeches.

May it please the honorable court, let me state at the outset where the prosecution stands. The prosecution is confident in its case. We believe in our evidence and we trust the independent judgment of this honorable court. And whatever the threshold is, however this court decides the issue before it today, the prosecution will do its job. Malinaw ang obligasyon ng prosekusyon. Ilatag ang ebidensya, at patunayan ang mga paratang para makamit ang hustisya at pananagutan. Malinaw rin ang tungkulin ng hukumang ito: suriin ang ebidensya, timbangin ang mga argumento at magpasya ayon sa Konstitusyon at sa ating batas. Those responsibilities we respectfully submit belong together.

Last week, we heard four distinguished members of the honorable Supreme Court as amici curiae. Ang sabi nila on the meaning of the phrase ‘all members of the Senate’ ay iba-iba. Merong nagsulong ng verba legis — forgive my legalese, ratio legis, merong contextual and functional approach, at merong common sensical and rational interpretation. But perhaps, we can begin with the simplest formulation of the question.

The Constitution requires two-thirds. The question before this court, is two-thirds of how many. Four amici [curiae], different approaches, different reasoning, yet all are one in saying that the number to convict is not fixed at 16. All four have concluded, expressly or essentially that 16 is not an absolute number. It can change under certain circumstances. The prosecution does not intend to suggest which former justice has the best approach. Siyempre nasa korteng ito ang pagpapasya niyan. But perhaps you will allow me, on behalf of the prosecution, to share another lens through which the different views maybe considered. It is a principle that runs through our Constitution and I submit, is at the heart of our Constitution. It is also the principle or the very reason why this honorable court exists—and that is accountability.

Our 1987 Constitution may properly be understood in its essential respects as an accountability Constitution. Isang Saligang Batas ng pananagutan. That principle is explicit in Article 11 itself, the first section provides, it starts with the declaration, I quote: “public office is a public trust and it commands public officers to at all times be accountable to the people.”

These words are not incidental. They are about the Constitutional architecture in which impeachment operates. Government authority does not belong to those who temporarily exercise it. Galing iyan sa sambayanang Pilipino. Public officials exercise authority in trust for the people, and because power is held in trust for the people, power carries with it accountability.

Sa aking pananaw, ang pananagutan ay may dalawang panig or two sides. The first is answerability o pananagutan. Ang opisyal na pinagkatiwalaan ng kapangyarihan ay dapat humarap at sumagot kapag hiningi ng Konstitusyon. And the second is responsibility. The constitutional institutions entrusted with enforcing accountability must themselves responsibly perform the duties assigned to them. Acknowledging that the people have an interest in a process that functions according to the commands and safeguards of our accountability constitution.

The House is given the exclusive power to initiate impeachment cases, but the Senate, this august body, is given the sole power to try and decide them. And when senators sit for that purpose, the Constitution specifically requires them to take an oath or affirmation. Bakit po? Because you are not dealing with ordinary legislative business. You are exercising an extraordinary constitutional function as an impeachment court. And this is the only time in the Constitution that members of the Senate are required to take an oath separate from the oath they took when they assumed their office. Kayo po, you hear, you examine, you deliberate, and ultimately, you judge. 

Viewed through the lens of accountability, therefore, the threshold question is not merely, ‘ano ang pinakamadaling arithmetic.’ The question is: What interpretation faithfully allows the institutions involved to perform the responsibilities the Constitution has assigned to them, while respecting the safeguards the Constitution has itself imposed. That is the contribution of the accountability lens. Sa tingin ng prosecution, lubhang mahalaga ang aktibong partisipasyon ng hukom sa paglilitis, pagkilatis sa kaangkupan o fitness ng opisyal ang ginagawa sa impeachment trial.

Paano ito gagawin ng senador na hindi naging hukom dahil hindi naman nakapag-oath? Paano rin ito gagawin ng hukom na wala naman sa mga pagdinig para masuri ang mga testigo at dokumento? Hindi ba ang utos ng Konstitusyon ay mapanagot sa taumbayan ang mga opisyal sa lahat ng panahon? Hindi ba sa impeachment case, ang kumakatawan sa taumbayan ay kayo, mga senator-judges? Kanino haharap at mananagot ang impeached official kung absent o hindi available ang huwes–sa bakanteng upuan at mesang malamig?

This calls to mind the ruling of the court in Avelino vs Cuenco. In this case, the court accepted 12 as sufficient for quorum, taking into account that a member is abroad or beyond the Senate’s coercive power. Of course, Avelino involved a legislative quorum under the 1935 Constitution, not the two-thirds vote for impeachment conviction. It does not decide this case, but it demonstrates why constitutional membership language must be interpreted with attention to the institutional circumstances. Hindi automatic na ang base o denominator ay laging 24.

Now, some may cite another case, Bayan vs Zamora, to support a fixed-number argument. However, that case of Bayan did not interpret the voting threshold requirement. In that case, the Supreme Court merely described rather than ruled upon the prevailing math. The reference to 16 votes in Bayan was merely an arithmetical illustration of compliance, not a doctrinal definition. In that case, mathematically, whether the Senate had 23 or 24 active members at that time, two-thirds of either number would still amount to 16 senators. 16 votes constituted unquestionable compliance under either metric. Ang ruling ng Supreme Court dito ay hindi pinal na hatol ukol sa threshold na maaaring mag-iba depende sa sitwasyon.

Let us imagine, as some of the amici curiae were asked at the last hearing or oral argument, a situation na may senador na hindi nakapag-oath for whatever reason, o kaya’y legally prevented from performing a senator’s job dahil nakakulong at suspended sa katungkulan dahil sa utos ng batas. Each of them cannot hear the evidence, deliberate, and vote. Their inability to participate is beyond dispute. And yet, if the denominator is fixed at 24, conviction would always require 16 votes. Absurd po ito. 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. That would be tantamount to an acquittal by default, a failure to arrive at the threshold number caused, not by the judgment of the incapacitated senators, but by their mere inclusion in the denominator.

This brings us now to a matter that has already entered the discussion. May nagsasabi na kung ibahin ng hukumang ito ang kanilang pasya sa isyung ito, mababago ang rules sa kalagitnaan nitong paglilitis. Sa aming paniniwala po ay hindi. The constitutional rule has not changed. Noong nagsimula ang trial, ngayong tumatakbo ang trial, at maging pagdating sa final vote, two-thirds pa rin ang requirement. What this court must determine is the constitutionally applicable membership given the Senate’s actual legal capacity to perform its impeachment function, mindful of the circumstances before the court. Ang pinagpapasyahan ay kung sino constitutionally ang dapat isama sa bilang.

But there is another misconception, if your honors please, that begs clarification. A change in the denominator should not be described as simply lowering the votes needed to convict. Why? Because the arithmetic moves in both directions. If 24 senators are counted, 16 votes are required to convict, nine votes prevent conviction. Now suppose the court determines that 20 senators should be counted. Two-thirds of 20 would require 14 votes to convict. But what is sometimes, if not often, omitted from this discussion is that seven votes would prevent conviction. So a different denominator does not guarantee conviction. It changes the arithmetic on both sides. Parehong panig ang naaapektuhan ng bilang. That is why the constitutional issue should not be reduced to, “binabaan ba ang boto para ma-convict?” The more accurate question is, “Ilan ang Constitutionally dapat bilangin?” Once that denominator is constitutionally determined, the fraction operates upon it. Two-thirds remains two-thirds. 

And this brings the matter back to us. The House prosecution panel also stands under the principle of accountability. Our responsibility is not to find the most favorable arithmetic. Our responsibility is to prove the articles of impeachment within the bounds of justice. Our responsibility in the prosecution does not change whether this court determines that the applicable numerical requirement is 16 or some other number. If the court determines 16, we present our evidence. If the court determines another number, we present the same evidence. Because the evidence does not become stronger or weaker depending upon the denominator. 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. And whatever the court decides, the prosecution will respect that decision. Because ultimately, two-thirds remains two-thirds. Ayan ang aming pananagutan, iyan din ang inaasahan ng taumbayan. Maraming, maraming salamat po, Your Honors.

Good morning, Mr. Senate President, Mr. Presiding Officer, Honorable Senator Judges, Panel of Prosecutors. May it please the Court. 

Your Honors, the Supreme Court has reminded us time and time again that when the law is clear, there’s no room for interpretation. There is only room for application. Now, with those words in mind, perhaps, Your Honors, we should not complicate.

What the Constitution has made simple. The issue confronting us today boils down to one question: How many votes to convict?

The answer of the defense is straightforward and simple 16. Bakit po 16. Sing simulan po natin sa procedural aspect. 

Last July 6, 2026, on the very first day of trial, the presiding officer ruled that the voting threshold to convict is 16.

At that time, no senator judge of objected. No senator judge sought reconsideration. No senator judge appealed. Your Honors, that was over two months ago. Thereafter, witnesses were able to testify, evidence was presented, and the parties are already in the middle of trial, relying upon such ruling of the presiding officer.

So, if you want to know what you are doing, binuksan muli ang issue na ito at pagbotohan. 

Because, your honors, reading the rules on impeachment under Rule No. 6—wala nga pung nilagay na time frame within which a motion for reconsideration can be considered.

Naturally, because that should have been brought up at the earliest opportunity after mabigay po yung ruling. Pero hindi po nangyari yun. Basahin rin po natin yung mga rules that have suppletory effect—to these proceedings, for example, the Senate rules.

Rule 33 gives a senator two session days within which to seek reconsideration for a measure that has been approved. Obviously, legislative function is the function. But if you appeal it, the rule of impeachment proceedings, it will be two session days.

Now let’s look at the rules of court, for example, where parties are generally given 15 calendar days to file a motion for reconsideration. Kahit po yun, matagal na pung lumipas—pasong paso na rin po. 

And forgive me for going into the more technical aspect, even if we were to consider the ruling of the presiding officer as an interlocutory order, which the court may modify upon a finding of sufficient grounds.

Para po sa depensa, hindi narin po applicable yun, dahil wala naman pong sufficient ground, wala pong supervening event. 

Ang punto po namin, wala namang pung nung bago, mula July 6, 2026, hangang ng yung arao. Yung mga sinasabi po natin, na mga senador, na hindi nakapag participate, of course, with the exception of Senator Legarda, ay hindi narin po nakapag participate ng July 6, bago pa na issue yung ruling.

So one thing is clear. Nothing in the rules suggests that the ruling of the presiding officer.Officer may be challenged indefinitely or modified arbitrarily. Because, Your Honors, if you have a ruling that you have to issue a subpoena of bank records, you can’t get a book.

You can’t get a ruling that the presiding officer has to do with an objection. That should not be done because the parties must be able to to rely on the rulings of the presiding officer. Otherwise, Your Honors, that will run contrary to the basic principle of what is an orderly conduct of a fair trial.

Now, more significantly, kung ibaba ba po natin yung voting threshold, when trial is already underway, in fact, nasa kalagitnaan na po tayo, Your Honors, that will go beyond the procedural. That will already raise questions if the respondent vice president is being afforded due process guaranteed by the Constitution, due process which, according to the Supreme Court in Duterte v. H.O.R., must be present in every stage of the proceeding. 

At kahit isantabi muna natin yung mga procedural concerns na yan, pareho pa rin po yung sagot namin. 16. Let’s now proceed to the substantive aspect, and we will be raising five quick points.

First point, Your Honors. The language of the Constitution is clear. There’s no need for further interpretation. Under Article 11, Section 3, Paragraph 6, Nakasulat po dyan, no person shall be convicted without the concurrence of two thirds of all the members of the Senate.

The text states all members of the Senate. It does not say all members present. It does not say all members participating, and that distinction matters. Because kung susuriin po natin, yung U.S. Constitution, at dun po binase yung ating sariling Saligang Batas, dun po sa provision nila sa voting threshold to convict, nakasulat po dun, klarong-klaro, members present.

So if the framers of our Constitution wanted to adopt the same formulation, they could have easily done so, but they did not. In fact, Your Honors, kung susuriin din natin ang ibang provision ng ating constitution, merong pong provision na nagsasabing members present lamang. Pero pagdating po dito sa voting threshold to convict, iniwan po ng framers natin na all members of the Senate.

So what does that mean? We look at Article 6, Section 2, where it states that the Senate shall be composed of 24 senators. So, ibig sabihin po non, yung denominator, pagdating sa threshold, 24, unless magkaroon po ng vacancy.

And a vacancy only arises when there’s death, resignation, disqualification, or expulsion by a sitting senator. Wala pong ganung nangyayari ngayon. 

Absence, Your Honors, does not create a vacancy. Non-participation does not create a vacancy. Being detained because of criminal charges does not create a vacancy and therefore, Your Honors, the current formulation is 24 senators, two-thirds of which is 16. And that is not an arithmetic, that is simply advanced by the defense. That is an arithmetic that has been upheld by the Supreme Court in the case of Bayan v. Zamora. 

Dun po, faced with identical language, two-thirds of all members of the Senate, sinabi po ng Supreme Court ang denominator ay 24—at yun po, treaty concurrence lamang ang pinag-uusapan. Paano pa po, pagdating sa impeachment that might result into the removal of the highest officials of the land?

At wag na po tayong lumayo, tingnan po natin yung ng yari dun sa impeachment trial against the former Chief Justice Renato Corona. Nung panahon po na yun, hindi po 24 ang senators, 23 lamang, because nanalo po sa pagkapangulo ang dating Sen. Noynoy Aquino. And even with that vacancy, hindi naman po binaba ang voting threshold. Sixteen votes pa rin to convict. 

Now, that begs the question. Bakit po pagdating kay former Chief Justice Corona, hindi binaba ang threshold? Pero pagdating sa impeachment laban sa Vice President Sara Duterte, kahit walang vacancy, pinag-uusapan yung pagbababa ng threshold. I will leave that question hanging with you, Your Honors.

To my second point, parati natin nari rinig yung Avelino vs. Cuenco, but that case simply does not apply because that case is about quorum. 

At yung pinag-uusapan, na coercive jurisdiction ng Senate, ay napag usapan lamang dal kung titi ng natin yung provision on quorum, specifically Article 6, Section 16, Paragraph 2, nakasulat po kasi don, that both houses have the power to compel the attendance of its members for purposes of quorum. Dito po sa impeachment wala pong ganun. So that is irrelevant. Your Honors, let us not use the rule on quorum to rewrite the constitutional provision for the voting threshold to convict.

To our third point, Your Honors, maaari bang bumoto ang mga hindi nagpa-participate? Well, to us respectfully, unless the impeachment court prohibits them from doing so, they can vote, because as mentioned last week, we are a court of records. Maaari naman pong basahin ang TSN or ng transcript. Maaring reviewing ang journals. Maaari nga pong mapanood ang nangyari sa trial through videos. 

Now, if that senator judge does not feel that he or she can render an impartial judgment, dahil nga absent po siya, well, Your Honors, hindi lang naman yes or no ang boto.  Pwede naman mag-abstain. Pwede naman mag-inhibit. But we have to emphasize that abstention or inhibition do not create vacancies, and therefore it should not affect the denominator. 

The denominator remains to be 24, two-thirds of which is 16. And 16, Your Honors, is not a figure that was chosen by the defense, it is the consequence of the constitutional language.

Ngayon, Your Honors, since we’re talking about consequences, that brings us to our fourth point. Your Honors, if we were to lower the threshold here, we will not be lowering the threshold in a vacuum. May consequences po yan. Marami pong constitutional provisions ang maapektuhan.

For example, yun pong pag-extend or pag-revoke ng martial law. Yun pong pag-expel ng isang membro ng senado. And more importantly, yun pong pag-amyenda mismo ng ating Saligang Batas.  For example, yun pong pag-extend or pag-revoke ng martial law. Yun pong pag-expel ng isang membro ng senado. And more importantly, yun pong pag-amyenda mismo ng ating Saligang Batas. Now are we going to also adjust the threshold in those provisions Because if we were to do that, hindi na po threshold ang tawag dun. Moving target na po yun para sa mga taong gustong mag benefit sa circumstances. 

To our final point, Your Honors, the two-thirds supermajority is obviously a constitutional safeguard for the respondent. It ensures na hindi po matatanggal ang matataas na oficial ng ating bansa dahil lang hindi niya kaalyado ang mayorya sa impeachment court. But in the same manner, it is also a constitutional safeguard for the senator-judges themselves. 

Because, Your Honor, if absence, detention would change the denominator, then, Your Honors, you will be opening yourselves up to being coerced, being intimidated, being threatened by those who wish to manipulate the result of the impeachment process.

Conversely, if we will stick with that denominator of membership, then, Your Honors, ‘yong pagiging absent will suddenly not matter. You will not be forced to leave the country just to change the denominator. There is nothing to gain by filing criminal charges to detain certain senators just to manipulate the result of the impeachment process. So, as you see, Your Honors, it’s a two-way safeguard. Ang super-majority based on membership sa denominator is really a safeguard para hindi po maabuso ang proseso.

And in closing, your honors, circumstances change, political alliances shift, majorities come and go, but at the end of the day, the Constitution must remain. While we understand that with everything that’s going on, some may say that this is inconvenient, but Your Honors, the Constitution is not tested merely when things are convenient. In fact, the Constitution is tested most when things are precisely inconvenient. And with that, we submit, Your Honors. Maraming-maraming salamat po.