[OPINION] What does ‘two-thirds of all members’ mean? What a difference a word makes! - Rappler

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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.

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.

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, several legal scholars and former jurists have posited that, in view of the peculiar circumstances, senators who have not attended the impeachment proceedings should not be counted in the denominator, to decide the two 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.

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.)

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.

The 1935 Constitution omitted the word “present.” Unfortunately, there is no legislative history to the 1934 Constitutional Convention that explains the rationale of this omission. Did the 1934 delegates, led by Convention President Clara M. Recto intend to be stricter? Or was it just an accidental omission?

Since the 1935 Constitution, there have been two others: the 1973 Constitution2 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, 92 years later, we now ponder the question, what do these words mean?

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.)

Thus, this two-thirds voting requirement was conceived by the framers of the US Constitution and adopted by the delegates to the 1934 Constitutional Convention.

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. Accused of drunkenness, blasphemy on the bench, Judge Pickering did not appear at his trial.  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 then again, since the US Constitution required “concurrence by two-thirds of the Members present,” there was no controversy.

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.

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 have been justified.

In the end, the controversy could simply be explained and put to rest as “scrivener’s error.”  That is, “a case in which the words of a legislative text diverge from what Congress meant to say.”  

It is a “mistake of expression” as opposed to a lapse of “legislative wisdom.” – 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.