The bag of tricks

Every magic show rests on the audience who watch it. Wowed by the illusion, we applaud because we know it is a trick. But what happens when the stage is the Senate impeachment court and the audience never agreed to be deceived? The impeachment court has given us a vanishing coin. Then followed by an encore involving a rabbit from a hat.

What deserves attention is not merely how the tricks worked. But on how early the preparations may have begun.

It was on day one of the Senate impeachment trial on July 6 when Sen. Chiz Escudero declared – after being sworn in as presiding officer – that 16 votes were needed to convict Vice President Sara Duterte. This is in conformity with the two-thirds of a 24-member Senate. The announcement appeared to settle the constitutional requirement.

That was the coin. All eyes were on it. Less attention went to the hand holding it.

That constitutional requirement exists independently of any announcement by Escudero before the Senate impeachment court. There is already the question whether any duly elected Senators can be excluded from “all” because they cannot participate.

Escudero practically issued a ruling beforehand, citing the precedent case of Bayan vs. Zamora on the Visiting Forces Agreement (VFA) petition to quash it. The vote of 16 Senators was neither an invention nor a concession to the defense.

But announcing 16 as a ruling also placed an appealable decision between the impeachment court and the constitutional text. There was nothing inherently improper about that. Its significance became clearer when the ruling itself became the object of the challenge.

The impeachment court, as a collegial body, subsequently overturned Escudero’s interpretation. Whether that complied with the Constitution was a separate question. 

This after the impeachment proceedings went on and allowed Escudero’s ruling left unchallenged despite initial query raised by Sen. Panfilo Lacson. In reply to Lacson if the 16 Senators will be the impeachment court’s threshold, Escudero retorted in the affirmative. But he hastily added, unless otherwise someone challenges it before the Supreme Court (SC).

Was the 16 votes a “threshold” Escudero expected to hold – or a position he could announce but allow others to overturn?

After almost two months, Sen. Erwin Tulfo questioned anew whether 16 still applied with 4 minority bloc Senators currently unable to participate due to legal or non-legal problems. It was then the impeachment court decided to seek advice from “amici curiae,” composed of retired SC justices.

One of them, ex-Chief Justice Artemio Panganiban suggested that Escudero could change his position before the final vote. The advice could support the argument but did not settle the constitutional question.

Then on Sept. 23, Senate minority leader Alan Peter Cayetano challenged the impeachment court’s authority to proceed with the threshold vote. With his appeal set aside, Cayetano notified the body that he and the five remaining minority bloc Senators won’t participate in the voting whether or not to set aside the  threshold of 16 previously set by the presiding officer. Naturally, Escudero was the lone dissenter when the impeachment court overturned his earlier ruling, 13 votes to one.

The majority obtained a path to a lower voting threshold. Escudero retained a vote he could point to as proof that he had defended 16 as the two-thirds mandated by the Constitution. Was that simply where the proceedings led him. Or he had anticipated the outcome when he first announced the number?

Only the presiding officer can explain. It does establish though the eventual reversal was compatible with his remaining publicly on the side of the ruling being reversed. The impeachment court’s new approach counts Senators legally and physically capable of participating.

If that leaves 20, conviction requires 14. Escudero explained that exclusions would require sufficient evidence and that the ruling applied to this case without binding future impeachment courts. Those qualifications do not erase the institutional consequence. A ruling need not bind a future Senate to influence it. Once a majority has shown that the number counted can shrink while the excluded Senators retain their seats, another majority will remember how it was done.

Escudero voted to let the challenge proceed, then voted against its success.The majority overturned his ruling. Whether it could constitutionally lower the threshold is the question its vote did not settle.

With 16 gone, the performance had room for an encore.

Four senators were absent amid legal cases and other circumstances. The new ruling allowed inability to participate to become a basis for exclusion from the count. For purposes of the trick, space had been cleared in the hat to provide the illusion. Then came the question of what might be placed inside it.

On Sept. 18, the Ombudsman announced graft complaints involving the Villar family. Days later, siblings Senators Mark and Camille Villar parted ways in the threshold voting. He abstained on Cayetano’s appeal, then joined the majority in overturning the 16-vote threshold. Camille did not join him.        

The sequence invites an uncomfortable suspicion. Was legal pressure being used both to take Senators out of the count and to draw a useful vote from those who remained? First, empty the hat. Then place a rabbit inside. When the magician reaches in, out comes Sen. Mark who voted with the Senate majority bloc.

Sen. Mark’s vote did not establish how he would decide the impeachment case. It showed that the minority could be divided on a question central to its outcome. The Ombudsman’s cases must stand on their evidence. Mark’s vote must stand on his explanation. Neither should escape scrutiny simply because the audience has been invited to applaud.

None of this establishes the Vice President’s innocence. The evidence may justify conviction. If it does, the verdict should rest on a constitutional threshold whose legitimacy does not depend on who wins. Those are the suspicions, not an established but a faithful account of what happened. The timing does not prove that the complaints caused these votes.

Watch the hand – not the coin – that holds the bag of tricks.