This is not merely a question of attendance. It is a constitutional question involving due process, fairness, and the integrity of the Senate sitting as an impeachment court.
And perhaps, ultimately, it is a question that only the Supreme Court (SC) can definitively resolve.
In a court of law, it would be difficult to imagine a judge deciding a case without holding a full-blown trial. A judge who did not hear the witnesses testify, did not examine the evidence and did not participate in the proceedings could hardly be expected to render a reasoned judgment.
The judge must know what transpired in the courtroom before deciding who is telling the truth, which evidence is credible, and whether the prosecution or plaintiff has established its case.
But impeachment is not an ordinary judicial proceeding.
The SC has repeatedly recognized that it is sui generis — a proceeding of its own kind. Under Article 11, Section 3 of the 1987 Constitution, the Senate has the sole power to try and decide impeachment cases, and senators sitting for that purpose take an oath or affirmation. The Constitution further provides that no person may be convicted without the concurrence of two-thirds of all members of the Senate.
Even if the Rules of Court do not automatically apply to impeachment, that does not mean that the principles of fairness and due process suddenly disappear.
The absentee judge problem makes the present impeachment trial constitutionally intriguing.
What happens when a senator-judge has missed substantial portions — or practically all — of the evidentiary proceedings?
Can that senator simply appear on the day of judgment, listen to the final arguments and then cast a vote to convict or acquit?
The Constitution is silent on whether a senator who is absent during the trial cannot vote. Neither does it expressly say that a senator must attend every hearing before being qualified to vote.
That silence is precisely what makes the question difficult.
The Senate’s impeachment rules govern the conduct of the trial, but the Constitution remains supreme. And the Constitution expressly commands that the senators, when sitting as an impeachment court, shall be under oath.
A senator-judge is not merely casting a political vote like voting on a bill. He or she is participating in a proceeding in which the Senate is exercising the constitutional power to try and decide an impeachment case.
So, how can a senator-judge responsibly decide the guilt or innocence of an impeached official if that senator did not personally hear the evidence upon which the decision is to be based?
Could the senator just read the official transcripts, review exhibits and consult the records? But is that equivalent to actually sitting through the trial?
That is the question.
The Senate is not an ordinary courtroom, so the defense may argue that an impeachment proceeding is fundamentally different from a criminal prosecution.
Admittedly, the senators are not professional judges. The Constitution entrusted impeachment to the political branch of government. It is a political exercise by the legislature to determine if a public officer committed an impeachable offense.
But what about the final vote?
This is a constitutional problem that may be even more significant.
Remember, Sen. Francis “Chiz” Escudero, when he assumed office as presiding officer, declared that 16 affirmative votes are necessary to convict Vice President Duterte.
Escudero based his interpretation on the constitutional language requiring the concurrence of two-thirds of all members of the Senate. With 24 senators, that means 16 votes.
But whether his interpretation is ultimately constitutionally correct is another matter.
Indeed, Sen. Panfilo Lacson raised the possibility of an SC review when he questioned whether Escudero’s statement on the 16-vote requirement was merely a legal opinion or an actual ruling of the impeachment court.
Consider the present scenario. The Senate is composed of 24 senators. But Senators Bato dela Rosa, Jinggoy Estrada and Rodante Marcoleta are not available, while several others have missed substantial parts of the proceedings.
Yet, when the final vote comes, the Constitution still requires 16 votes to convict.
Now imagine that only 20 or 21 senator-judges actually participate in the final vote.
Can a senator who did not attend much of the trial supply one of those crucial 16 votes?
Conversely, can an absent senator effectively help produce an acquittal simply by remaining away?
These are not theoretical questions anymore. They could determine the outcome of the impeachment case.
And this is why the Senate should not wait until the final voting day to confront the issue.
Should the Senate ask the SC?
The Senate majority — or the impeachment court itself — could ask the SC whether its existing rules adequately address the participation and voting rights of senator-judges who are absent for substantial portions of the trial.
The public deserves more than a numerical vote.
At the end of the day, an impeachment judgment should not merely be a mathematical exercise. The SC has said, in substance, that the political character of impeachment does not make constitutional safeguards irrelevant.
Sixteen senators voting may be enough under the Constitution to convict. But the public should also be entitled to ask: Did those 16 senator-judges actually hear the case?
The impeachment trial is supposed to determine whether an impeachable official should remain in office.
It should not itself become the constitutional controversy of the year.
The Senate must decide Sara Duterte’s fate — but before it does, it must make certain that the rules by which that fate is decided are beyond question.