[OPINION] What does ‘two-thirds of all members’ mean? What a difference 2 words make!

In the ongoing impeachment of the Philippine Vice President, Sara Duterte, the question of the moment is what does “concurrence of 2/3 of all the Members of the Senate mean”? Specifically, in the current context where, for many unrelated reasons, some senators have not attended (in whole or in part) the ongoing impeachment proceedings.

Article IX, Section 3, Paragraph 6 of the 1987 Constitution states:

The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (Underscoring supplied.)

Based on the language, it seems clear what the required vote is: two-thirds of the 24 members of the Senate — or at least 16 — must vote for impeachment.  

However, in view of the peculiar circumstances, legal scholars and former jurists have argued that senators who have not attended the impeachment proceedings should not be counted in the denominator in computing the two-thirds vote requirement.

Prior to the 1935 Constitution, the Philippines did not have a republican form of government. Under the Tydings-McDuffie Act, the drafting, approval, and ratification of a constitution was a key requirement on the path to Philippine independence and self-rule. In drafting the constitution, the 1935 Constitutional Convention likely looked to the US Constitution for guidance, including the impeachment process.

Article 1, Section 3, Clause 7 of the US Constitution provides:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two-thirds of the Members present. (Underscoring supplied.)

Nonetheless, the drafters of the 1935 Philippine Constitution adopted a slightly different language:

Section 3. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without the concurrence of three-fourths of all the Members of the Senate. (Underscoring supplied.)

The 1935 Constitution made two changes:

• It added “ALL” before the phrase “the Members of the Senate;” and
• It omitted “PRESENT” after the phrase “the Members of the Senate.”

Did the 1934 delegates, led by Convention president Claro M. Recto intend a stricter and higher bar? Or were these just inadvertent changes?

Since the 1935 Constitution, there have been two others: the 1973 Constitution and the current 1987 Constitution. Both have adopted and carried over the original language. Both constituent bodies let the difference from the US Constitution stand.  So, 91 years later, we now ponder the question, what do these words mean?

With respect to the rationale for the two-thirds requirement, a succinct review of the US Constitution sheds light:

The English and colonial history thus informed the Framers’ consideration and adoption of impeachment procedures at the Constitutional Convention. In some ways, the Framers adopted the general framework of impeachment inherited from English practice. The English Parliamentary structure of a bicameral legislature — dividing the power of impeachment between the “lower” house, which impeached individuals, and an “upper” house, which tried them — was replicated in the federal system with the power to impeach given to the House of Representatives and the power to try impeachments assigned to the Senate.

Influenced by the impeachment experiences in the colonies, the Framers ultimately adopted an “Americanized” impeachment practice with a republican character distinct from English practice. The Framers’ choices narrowed the scope of impeachable offenses and persons subject to impeachment as compared to English practice.

For example, the Constitution set up an impeachment mechanism exclusively geared toward holding public officials, including the President, accountable. This system contrasted with the English practice of impeachment, which could extend to any individual save the Crown and was not limited to removal from office, but could lead to a variety of punishments. Likewise, the Framers adopted a requirement of a two-thirds majority vote for conviction on impeachment charges, shielding the process somewhat from naked partisan control. This protocol also differed from the English practice, which allowed conviction on a simple majority vote.

In England, the Crown could also pardon individuals following an impeachment conviction. In contrast, the Framers restricted the pardon power from being applied to impeachments, rendering the impeachment process essentially unchecked by the executive branch. Ultimately, the Framers’ choices in crafting the Constitution’s impeachment provisions provide Congress with a crucial check on the other branches of the federal government and inform the Constitution’s separation of powers. (Underscoring supplied.)

The two-thirds voting requirement was an entirely American creation designed to protect the process from partisan monopoly by the majority. This is consistent with the “checks-and-balances” approach by the US framers.

In the US political context, the impeachment clause has been invoked many times. In fact, the very first one involving a federal officer is most informative to the Duterte impeachment trial.

John Pickering, a federal district judge, was impeached by the House of Representatives in 1803 and convicted by the Senate on March 12, 1804. He was accused of drunkenness and blasphemy on the bench. Following debate in closed session, the Senate voted to allow evidence of Judge Pickering’s insanity, drunkenness, and behavior on the bench. 

During the trial, objections to the framing of the question at issue caused several senators to withdraw from the trial. Also, the Senate rejected a resolution to disqualify three senators, who were previously in the House and had voted to impeach Judge Pickering, from participating in the impeachment trial.

Because of the refusal by some senators to sit as jurors, the two-thirds vote needed was based on less than the full Senate. But since the US Constitution required “concurrence by two-thirds of the Members present,” there was no controversy.

Final thoughts

Given that the origin of the provision dates back to 1934, and the short timeframe given to the 1986 Commission to complete its work, it is unlikely that the drafters of the current Constitution gave it more than a passing thought. Most likely, they surmised the prior language was good enough. After all, if it ain’t broke, don’t fix it. Boy, did we find out!  

Indeed, in his legal memorandum, retired chief justice Hilario Davide Jr. confirmed that there was no debate on the phrase “all members of the Senate” during the deliberations of the 1971 Constitutional Convention and the 1986 Constitutional Commission. Perhaps the next step is to examine the records of deliberations by the 1934 Constitutional Convention for any glimpse of guidance.

So we are back to where we started. What does the following sentence mean? No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

On its face, the addition “ALL” and deletion of “PRESENT” supports the plain reading that the denominator is always 24. The divergence from the more favorable US constitutional language does not — by and of itself — support a situational interpretation based on current events. Ironically, if the 1934 framers simply carried over the US constitutional language, this more expansive reading would be the correct reading.

In the end, the controversy could simply be explained and put to rest as “scrivener’s error.” 

“[A] case in which the words of a legislative text diverge from what Congress meant to say.” That is, a “mistake of expression” as opposed to a lapse of “legislative wisdom.” Otherwise, under the drama of the Duterte proceedings, the impeachment clause is a toothless tiger. – Rappler.com

Ben R. Olivas is a lawyer who was admitted to the Philippine Bar in 1988 and the California Bar in 2009. He was a partner at DLA Piper LLP in Silicon Valley from 2008 to 2025 and previously served as a partner at PricewaterhouseCoopers LLP in Silicon Valley from 1993 to 2008. He began his legal career as an associate at Romulo Law Office from 1988 to 1991. Olivas earned his law degree from Ateneo Law School in 1988 and master’s degrees in Corporation Law and Taxation from New York University in 1992 and 1993, respectively. He retired from DLA Piper in 2025 and lives in the San Francisco Bay Area.