How do I count thee? Let me show the ways

What does the Constitutional requirement of a two-thirds vote of all members of the Senate mean?

The Constitutional requirement that conviction in an impeachment trial must be supported by the vote of "two-thirds of all the Members of the Senate" has generated significant legal and political discussions in the Philippines. 

While the phrase appears straightforward, differing interpretations have come up recently due to the almost even divide between the perceived Duterte allies and pro-Administration senators, who will act as judges in the impeachment trial, set to start on July 6, 2026.

The issue becomes particularly significant because the required 2/3 conviction vote determines whether VP Sara Duterte may be removed from office or not. If convicted, VP Sara’s chance to be President in 2028 is gone, and so are the political fates of her avid supporters, some of whom are facing graft charges.

Article XI, Section 3(6) of the 1987 Constitution provides that "No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate." The constitutional text does not further define the phrase "all the Members of the Senate," leaving room for competing interpretations.

The Fixed-Membership Interpretation

Perhaps the most widely-accepted interpretation of the phrase "all the Members of the Senate" is the full constitutional membership of twenty-four (24) senators. Under this view, conviction would require sixteen affirmative votes regardless of vacancies, absences, abstentions, or recusals in the Senate.

This interpretation rests on three principal arguments: first, the Constitution expressly defines the Senate as consisting of twenty-four members. Therefore, the impeachment provision should therefore be read in conjunction with this

definition.

Second, the Constitution uses different language when it intends voting thresholds to be based on attendance or participation. The absence of such qualifying language suggests that the framers intended a fixed supermajority requirement.

Third, impeachment is an extraordinary constitutional mechanism designed to remove nationally elected or constitutionally protected officials, a reason for a demanding threshold to protect institutional stability.

The Actual-Membership Interpretation

A different interpretation focuses on the concept of actual membership rather than authorized membership. Under this interpretation, "all the Members of the Senate" means all senators who validly hold office at the time of the vote. 

If there are vacancies due to death, resignation, suspension, disqualification, or other causes, the total number of senators would be reduced accordingly. 

Advocates of this interpretation point to analogous rulings in legislative law where courts distinguish between authorized membership and actual membership. The rationale is that vacancies should not have the effect of increasing the voting burden imposed upon the Senate.

A variant of this interpretation seeks to apply the doctrine in the case of Avelino v Cuenco (G.R.No. L-2821, Mar 4, 1949). Hence, senators who are outside the coercive power of the Senate will not be included in the count. 

Sen. Bato, who is a fugitive from justice, may be considered outside the coercive power of the Senate at this time. So is Sen. Jinggoy Estrada who  is currently under detention by a different branch of government. 

If this interpretation is adopted, other senators allied with Duterte who are facing similar cases may also be excluded from the

count if they get arrested during the impeachment trial.

The Senator-Judge Interpretation

A more recent interpretation concerns abstentions and participation in the trial. This interpretation treats abstentions as having an effect on the denominator, since inability of a senator-judge to attend and participate in the impeachment trial means inability to make any wise decision at all or to vote for either acquittal or conviction.

Under Senate impeachment rules, senators take a special oath when sitting as an impeachment court. Hence, it may be argued that only senators who have taken the oath and have participated should be counted in determining the two-thirds requirement.

Why Does the Interpretation Matter?

As can be seen from this table, if less senators are included in the base count, the chances form conviction are also increased accordingly. While 2/3 is still a super-majority and a big hurdle, the number becomes more attainable, especially if those senators perceived to be allied with the Dutertes are excluded from the count.

No. of Senators Counted          2/3 Votes to Convict

                  24                                                       16

                  23                                                       16

                  22                                                       15

                  21                                                       14

                  20                                                       13

The conviction votes will depend on the final interpretation to be adopted. The defense team would naturally insist on the prevailing fixed number interpretation of 16 votes. The prosecution, while alleging they are confident of getting the sixteen votes, would also prefer a different interpretation to lower the fixed number of 16.

So, what is the correct count? Only the Supreme Court can make a definitive and final interpretation of the Constitutional

provision. If no one goes to the Supreme Court to ask for the correct interpretation, it is presumed that both the prosecution and defense are prepared to work to hurdle or thwart the required 16 conviction votes. 

Without a contrary SC decision, the strongest textual, historical, and structural reading of Article XI, Section 3(6) seems to point that "two-thirds of all the members of the Senate" means 16 votes out of a Senate constitutionally composed of 24 members.

Atty. Nena Radoc is a CPA-Lawyer-MBA with over 40 years of management experience in local and multinational companies.

Disclaimer: The opinions expressed by the author are her own and do not in any way reflect those of Paraluman News.