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KWEBA ni BAROK

CONSTITUTIONAL ORIGAMI: HOW CARPIO TURNED 24 SENATORS INTO 21

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Louis ‘Barok’ Biraogo

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When ‘All the Members’ Suddenly Means ‘Some of the Members’: A Masterclass in Selective Textualism

By Louis ‘Barok’ C. Biraogo — September 19, 2026

SO let me understand the logic here. The 1987 Constitution of the Republic of the Philippines (the Constitution) says “no person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.” The Senate has twenty-four members. Two-thirds of twenty-four is sixteen. This is arithmetic a Grade 5 student in Basilan could do with a broken abacus.

And yet, here we are in September 2026, watching retired Supreme Court Justice Antonio Carpio, Senate President Escudero, and a gaggle of former chief magistrates perform constitutional origami so elaborate it would make a Japanese paper-folding champion weep.

Carpio—retired SC Associate Justice, self-appointed guardian of constitutional virtue, unofficial mathematician-in-chief—has declared that only 21 senators are qualified to vote in Sara Duterte’s impeachment trial. The magic number, he says, is 14. Not 16.

Why? Senator Rodante Marcoleta is detained. Senator Jinggoy Estrada is detained. Senator Ronald “Bato” dela Rosa is hiding from the International Criminal Court (ICC) and never took the senator-judge oath.

Just like that, the denominator shrinks from 24 to 21, and the threshold drops from 16 to 14. The prosecution’s burden just got lighter by two votes. The Republic just got one step closer to a constitutional crisis that will make Oakwood look like a barrio fiesta.

They Couldn’t Get 16 Votes—So They Changed the Math. Mid-Trial. With a Magic Wand.

THE ARITHMETIC OF ABSENCE

Article XI, Section 3(6): “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

Twenty-four senators. Two-thirds is 16. Simple. Elegant. Unambiguous. The kind of provision a first-year law student could parse after three bottles of Red Horse.

But Carpio says “all the Members” means all members qualified to vote. Marcoleta and Estrada are “automatically and mandatorily suspended” under Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) and Republic Act No. 7080 (Plunder Law). Dela Rosa never took the oath.

Therefore: 24 minus 3 equals 21. Two-thirds of 21 is 14. Conviction just became two votes easier.

I am not a constitutional scholar. I am a blogger with a laptop, a cynical disposition, and profound suspicion of anyone who discovers a convenient constitutional loophole at precisely the moment it is most politically useful.

The impeachment of Sara Duterte is a live political battle with enormous stakes: the Vice Presidency, the 2028 election, the Marcos-Duterte rivalry, the Duterte dynasty, the soul of Philippine democracy. And we are supposed to believe the constitutional threshold is not fixed but variable—shifting depending on who is detained, who is hiding, and who forgot to raise their right hand.

This is not constitutional interpretation. This is constitutional engineering. And the engineers are not even pretending otherwise.

THE OATH THAT WASN’T

Article XI, Section 3(6): “When sitting for that purpose, the Senators shall be on oath or affirmation.”

Dela Rosa never took the senator-judge oath. He has been in hiding since May 14, 2026, evading an ICC warrant for alleged crimes against humanity related to Rodrigo Duterte’s drug war.

Carpio’s argument: no oath, no vote. No vote, no denominator.

On its face, compelling. The Constitution does require the oath. Dela Rosa is not on oath. He is not sitting. He is not even in the country.

But the Constitution does not say failure to take the oath removes a senator from the Senate. The oath is a condition for participation, not membership.

Dela Rosa is still a senator. Elected by millions. He holds the office. Being a fugitive from the ICC does not erase his constitutional status. It makes him a terrible senator, a disgrace to the institution, probably a war criminal. But not not a senator.

If the Constitution wanted to exclude unsworn or absent senators, it could have said so. It said “all the Members of the Senate.” All. Not “all who show up.” Not “all who take the oath.” Not “all who are not hiding from international arrest warrants.”

All.

Carpio’s reading requires us to believe “all” is flexible, subject to revision based on personal circumstances. This is not textualism. This is selective textualism—reading the Constitution like a menu where you order only the dishes you like.

THE SUSPENSION SIDESHOW

Marcoleta and Estrada are facing plunder charges. Both detained. Both subject to mandatory preventive suspension under RA 3019 and RA 7080.

Carpio says: suspended from office, cannot exercise functions, cannot be counted.

This touches a genuine legal question: does preventive suspension remove a senator from the Senate, or merely prevent him from exercising functions while remaining a member?

The Sandiganbayan suspended Estrada “from his present position as senator and from any other public office.” Senate President Gatchalian, in a moment of clarity I am loath to credit him for, said the suspension covers Estrada’s role as senator-judge.

But suspension is not removal. It is temporary, preventive—”not a penalty,” as the Supreme Court itself has said. The suspended senator remains a senator. After 90 days, he returns, collects back pay, resumes duties.

If preventive suspension removed a senator from the Senate, the constitutional composition would be in constant flux depending on who is under investigation. This is absurd. And yet Carpio’s argument requires us to accept this absurdity as constitutional truth.

The counter-argument is straightforward: the Constitution speaks of “Members of the Senate,” not “senators currently permitted to perform legislative functions.” A suspended senator is still a member. His inability to vote does not reduce the denominator; it means he does not vote. The two-thirds requirement remains two-thirds of full membership.

If this seems unfair—if absent senators seem to cast “no” votes by non-participation—that is how supermajority requirements work. They make conviction difficult. They require broad consensus.

If the framers wanted a lower threshold when senators are absent, they would have written “two-thirds of the senators present and voting.” They did not. They wrote “two-thirds of all the Members.”

Carpio’s interpretation is not a correction of constitutional oversight. It is a rewriting to achieve a desired outcome.

THE CONVENIENT TIMING

The threshold controversy did not arise when the complaint was filed. Not when the Senate convened. Not when the oath was administered.

It arose after the trial began, after Escudero ruled 16 votes were required, after it became clear the prosecution might struggle to secure 16.

The timing is not coincidental. It is strategic.

If the prosecution cannot get 16 votes, the solution is not a better case. The solution is to change the math. Reduce the denominator. Lower the threshold.

This is not how the rule of law works. The rules do not bend to accommodate the prosecution’s weaknesses. The rules do not change mid-game because one team is losing.

Imagine if the NBA rules committee decided in the fourth quarter of Game 7 that three-pointers count as four—because the trailing team needed a comeback. Imagine the outrage. The accusations of rigging. The collapse of credibility.

That is what is happening here, except instead of a basketball game, it is the impeachment of a Vice President. And instead of a commissioner, it is a retired Supreme Court justice and a Senate President who apparently believe constitutional arithmetic is negotiable.

THE SUPREME COURT’S INEVITABLE INTERVENTION

This will end up in the Supreme Court. It always does.

The Court has historically been reluctant to interfere in impeachment. Impeachment is political, and the Constitution gives the Senate “the sole power to try and decide.” The Court has deferred to the Senate on procedural matters.

But the Court has also held impeachment is not entirely immune from judicial review. In Francisco v. House of Representatives, the Court said the Constitution did not leave impeachment entirely to Congress’s discretion. In Generillo v. Senate of the Philippines, the Court described impeachment as a “sui generis constitutional process” subject to constitutional boundaries.

So the Court could intervene. It could rule the Senate’s interpretation unconstitutional. It could rule the threshold is 16, full stop, regardless of who is suspended or absent or hiding from the ICC.

Or it could punt. Declare it a political question. Leave it to the Senate. Say the Senate has authority to interpret its own rules absent clear constitutional violation.

The problem with punting: it leaves the constitutional question unresolved. And an unresolved constitutional question in the middle of a presidential impeachment is not a recipe for stability. It is a recipe for perpetual challenge, perpetual uncertainty, perpetual political warfare.

If the Senate convicts with 14 votes and the Court declines to intervene, the conviction will be challenged as illegitimate. If the Senate acquits because the prosecution cannot get 16, the acquittal will be challenged as the product of an unconstitutional threshold.

Either way, legitimacy is compromised.

THE POLITICAL CALCULUS

This is not purely legal. It is political dressed in constitutional robes.

Sara Duterte is not just any impeached official. She is the daughter of a former president, heir to a political dynasty, leading contender for 2028. Her conviction or acquittal will shape the political landscape for years.

If convicted, the Duterte dynasty suffers a devastating blow. Rodrigo is already facing ICC trial. Sara’s conviction leaves the family without a viable national leader. Marcos consolidates power. 2028 is wide open.

If acquitted, the dynasty survives. Sara remains viable. The Marcos-Duterte rivalry continues. Political instability persists.

Everyone knows this. Carpio knows it. Escudero knows it. The senators know it. The justices know it. The Filipino people know it.

The threshold question is not neutral legal inquiry. It is a weapon. The prosecution wants a lower threshold because it makes conviction easier. The defense wants a higher threshold because it makes conviction harder. Carpio provides intellectual cover for the prosecution. Azcuna provides intellectual cover for the defense.

And the Filipino people, as usual, watch from the sidelines, wondering whether the Constitution is sacred document or political plaything.

THE ABSURDITY OF IT ALL

The Constitution says “two-thirds of all the Members of the Senate.” Clear. Unambiguous. Does not require a law degree. Does not require a Supreme Court ruling. Does not require three former chief justices to debate its meaning.

Two-thirds of 24 is 16.

That is the law. That is the Constitution. That is the rule.

If the prosecution cannot get 16 votes, it should lose. If Sara Duterte cannot be convicted by 16 senators, she should be acquitted. The rules are the rules, and you play by them whether you like the outcome or not.

But that is not what is happening. People who do not like the rules are trying to change them. They are trying to reinterpret “all” to mean “some.” They are trying to redefine “Members of the Senate” to exclude senators they do not want to count. They are trying to lower the bar because they cannot clear it.

And they are doing this mid-trial, after the rules were established, after the oath was administered, after everyone started playing.

This is not constitutional interpretation. This is constitutional vandalism.

THE VERDICT ON THE THRESHOLD

Carpio’s argument is legally creative. Intellectually ambitious. In certain lights, defensible. There is genuine tension between the oath requirement and the “all Members” language. Reasonable people can disagree.

But legally creative, intellectually ambitious, and defensible are not the same as correct. Carpio is wrong.

The Constitution says “all the Members of the Senate.” Not “all present.” Not “all who took the oath.” Not “all who are not detained, suspended, or hiding from international arrest warrants.”

All. And all means all.

If the framers wanted a variable threshold, they would have written one. If they wanted to exclude suspended or absent senators, they would have said so. They chose a fixed, predictable, unambiguous number: two-thirds of 24. Sixteen.

Carpio’s interpretation may be convenient for the prosecution. Emotionally satisfying for those who want conviction. In some abstract sense, more “fair.” But it is not the Constitution. And in a constitutional democracy, that matters.

If we are going to impeach a Vice President, we should do it right. Follow the rules, even when they make it harder. Respect the text, even when inconvenient. Count all 24 senators, even when three are detained, hiding, or suspended.

Because if we start bending the Constitution to achieve political outcomes, we will never stop. And the next time, it will be our ox that gets gored.

EPILOGUE: THE GHOST OF AVELINO

The ghost of Avelino v. Cuenco hovers over this controversy. In that 1949 case, the Supreme Court held a quorum should be computed based on available members, not total membership. Carpio’s supporters cite this as precedent.

But Avelino was about quorum, not impeachment conviction. About whether the Senate could conduct business when members were absent. Not whether absent members should be counted in determining the conviction threshold.

The Constitution uses different language for quorum and impeachment conviction. For quorum: “a majority of all the Members.” For impeachment: “two-thirds of all the Members.” Same phrase, different contexts.

If Avelino tells us anything, it tells us “all the Members” can sometimes mean “all available.” But it does not tell us this applies to impeachment. And it certainly does not tell us the Senate can unilaterally redefine “all the Members” mid-trial to achieve a desired outcome.

The ghost of Avelino is not a precedent for Carpio’s position. It is a warning about functional interpretation. A reminder that bending rules to fit circumstances opens the door to manipulation, uncertainty, constitutional chaos.

The Senate should heed that warning. Stick to 16. Count all 24. Follow the Constitution, even when inconvenient.

Because the alternative is a constitutional crisis from which Philippine democracy may not recover.

Louis ‘Barok’ C. Biraogo is the author of the Kweba ni Barok blog, where he writes about Philippine politics, law, and the occasional absurdity of both. He has never been detained, suspended, or accused of plunder, but he has been accused of being overly cynical. He pleads guilty.

Key Citations

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B. News Reports

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