The Senate Impeachment Court’s decision to enlist retired Supreme Court Justices—including Hilario Davide Jr., Artemio Panganiban, Reynato Puno, and Adolfo Azcuna—as amici curiae (friends of the court) marks a critical moment in the impeachment proceedings against Vice President Sara Duterte.
Facing a challenge regarding whether the conviction baseline should adjust due to the absence or legal incapacity of four senator-judges, the Senate has rightly turned to judicial luminaries to clarify a fundamental question of constitutional math.
At the core of the debate is Article XI, Section 3(6) of the 1987 Constitution, which provides:
“No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”
To resolve whether “all the Members” dictates a permanent denominator of 24 (yielding 16 votes) or a shifting base of active participants, we turn to the classic canons of constitutional construction articulated in Francisco v. House of Representatives (2003):
- Verba Legis (Plain Meaning): Words must be given their ordinary, everyday meaning unless technical terms are used. The text specifically mandates two-thirds of “all the Members,” not “those present and voting”—a deliberate textual choice that separates it from standard legislative voting requirements.
- Legis Est Anima (Intent of the Framers and the People): When ambiguity is asserted, courts look to the reason and spirit of the provision, prioritized by how the adopting public understood it.
- Ut Magis Valeat Quam Pereat (Interpretation as a Whole): The Constitution must be construed as a single, integrated instrument where no clause is read to defeat or contradict another.
Departure from the U.S. Model
The significance of the phrase “all the Members” becomes even clearer when contrasted with the United States Constitution, from which much of the Philippine impeachment structure was originally patterned. Article I, Section 3 of the U.S. Constitution provides that “no Person shall be convicted without the Concurrence of two thirds of the Members present.”
This distinction is profound. The framers of the 1987 Philippine Constitution deliberately departed from the American model by dropping “members present” and adopting the stricter denominator of “all the Members of the Senate.”
Under the U.S. rule, absences or non-participation reduce the denominator, lowering the number of votes needed to convict. Under the Philippine design, because the base remains fixed at the total membership, any absence or abstention functionally operates as a negative vote. This intentional deviation underscores a deliberate choice to erect a higher institutional barrier against conviction.
Quorum vs. Impeachment Threshold
A common point of confusion stems from conflating quorum requirements with the conviction threshold. Under Article VI, Section 16(2), a majority of each House constitutes a quorum to do business. In legislative history—most notably traced back to Avelino v. Cuenco (1949)—courts and legislative bodies have applied flexible quorum baselines or the “doctrine of shifting majority,” adjusting the denominator for routine business based on members within the Senate’s actual reach or legal capacity.
However, quorum rules exist to prevent ordinary legislative work from stalling. The impeachment threshold serves a different function: it ensures that removing a constitutional officer requires a decisive, unshakeable consensus. No temporary quorum fluctuation can lower the supermajority explicitly fixed by the Charter.
The Supreme Court Interpretation: Bayan v. Zamora
The Philippine Supreme Court directly interpreted the phrase “two-thirds of all the Members” of the Senate in the case of Bayan v. Zamora (2000), alongside Bayan Muna v. Romulo (2011). Interpreting Article VII, Section 21 regarding Senate concurrence in treaties—which uses the identical voting standard—the High Tribunal held that “all the Members” refers strictly to the total constitutional composition of the body.
During the concurrence vote for the Visiting Forces Agreement (VFA), only 23 senators were sitting due to a vacancy. The Supreme Court clarified that two-thirds of the total 24 constitutional members remained 16 votes. The denominator of 24 remained rigid, completely bypassing standard quorum variations. Applying verba legis, jurisprudence establishes that when the Constitution specifies “all the Members,” the baseline is anchored to the full constitutional roster of 24, regardless of vacancies, suspensions, or absences.
The Intent of the Framers
This textual interpretation matches the intent recorded in the deliberations of the 1986 Constitutional Commission. An exchange between Commissioners Adolfo Azcuna and Hilario Davide Jr. reflects this exact framework:
Mr. Davide: “The intent is to make the conviction standard very high because it involves the removal of the highest officials of the land. It requires two-thirds of all the Members.”
Mr. Azcuna: “Therefore, if a Member is absent, or unable to vote, that absence does not lower the number of affirmative votes required to convict. The denominator is fixed by the Constitution. An absence effectively operates as a negative vote because it fails to contribute to the absolute two-thirds required of the entire body.”
The framers chose a rigid denominator to prevent ruling factions from manipulating voting thresholds by engineering the absence, detention, or suspension of opposition members.
As the Senate listens to the wisdom of its amici curiae, we must anchor ourselves to a fundamental truth: the Constitution is not a piece of clay to be remolded whenever political fortunes shift. It is an anchor built to keep the republic steady in the storm. Bending the law to engineer a convenient political outcome does not just decide a single trial—it weakens the foundation of our entire democracy. Constitutional rules do not exist to serve the passions of the moment; they exist precisely to restrain us when the stakes are highest.
*Enrique BUKO dela Cruz, Jr. is the Dean of the College of Law of Baliuag University. He earned his Juris Doctor with honors from UST Manila and his LLM with Distinction from the London Metropolitan University, UK as a Chevening Scholar of the British Council in 2005. He completed an Executive Program on Leadership at the KSG, Harvard University in 2002 and the Future Leaders Program from the National University of Singapore (NUS) Business School in 2022.