A Constitutional Question From a Law Student’s Perspective
Does the Constitution always require 16 votes to convict an impeachable official, or can that number change when some senators are detained, suspended, or otherwise unable to perform their duties?
Four retired Supreme Court justices have offered different perspectives on this question. Former Chief Justices Hilario Davide Jr. and Artemio Panganiban have raised arguments concerning the actual capacity of senators to participate. Former Chief Justice Reynato Puno has emphasized the Senate’s constitutional authority to try and decide impeachment cases, while retired Justice Adolfo Azcuna maintains that the required vote must be computed from all 24 senators.
I have been in law school for only a little over two months. I am neither a lawyer nor an expert in constitutional law. What follows is simply my attempt to apply what I have learned so far about constitutional interpretation and statutory construction.
The disagreement raises a question that interests me: Do we really need to amend the Constitution to settle this issue?
I do not believe that an amendment is necessarily required. A disagreement about what the Constitution means does not automatically mean that its text needs to be changed. Before considering an amendment, we must first determine whether the existing provision can resolve the controversy through constitutional interpretation.
The Real Problem: What Does “All the Members of the Senate” Mean?
Article XI, Section 3(6) of the 1987 Constitution provides:
“No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”
The fraction is clear. Two-thirds of 24 senators is 16. The controversy arises when some senators are detained, suspended, or otherwise unable to participate in an impeachment trial.
The fraction remains two-thirds. What is disputed is the denominator, or the total number of senators from which the required votes must be computed.
Senator Panfilo Lacson raised a hypothetical situation that illustrates this predicament. Suppose only 15 senators remain available to perform their duties as senator-judges because the other nine are beyond the Senate’s coercive powers. All 15 participate in the trial, examine the evidence, and unanimously vote to convict.
If the denominator remains 24, the required 16 votes become mathematically impossible to obtain. However, if the denominator is reduced to 15, only 10 votes would be required for conviction.
We must also distinguish an actual vacancy from a senator’s temporary inability to perform official duties. A senator who dies, resigns, or is removed from office no longer occupies the position. A senator who is merely absent, detained, or suspended may still retain membership in the Senate.
These circumstances do not necessarily have the same legal consequences. Physical absence does not automatically terminate membership, just as continued membership does not necessarily establish an unrestricted right to participate in every proceeding.
This brings us to the precise constitutional question: Does “all the Members of the Senate” refer to everyone who legally holds office as a senator, only those legally qualified to exercise the impeachment function, or another measure supported by the Constitution?
That is the meaning we must determine before deciding how many votes are constitutionally required for conviction.
Constitutional Construction: Interpret Before We Amend
Interpretation determines what the Constitution means. Amendment changes what the Constitution provides.
These are two different legal exercises. When a constitutional provision becomes the subject of disagreement, the first question is whether its existing language can resolve the issue through constitutional interpretation.
Constitutional construction provides the principles for doing so. It requires us to examine the words of the Constitution, their context, and the purpose of the provision without disregarding what the Constitution expressly commands.
Two Philippine Supreme Court cases help explain how these principles may apply to the present controversy.
Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012
Interestingly, Senator Francis Escudero, who now serves as a senator-judge, was himself a respondent in Chavez v. Judicial and Bar Council. He and Representative Niel Tupas Jr. defended an interpretation based partly on an alleged oversight by the framers. The Supreme Court rejected their position, emphasizing that constitutional construction cannot be used to insert provisions that the Constitution does not contain.
They argued that the framers might have overlooked the need to adjust the provision when the proposed legislature changed from unicameral to bicameral.
The Supreme Court rejected that argument. Article VIII, Section 8(1) expressly provides for “a representative of the Congress.” The Court held that this means only one representative, not two.
The Court explained that it cannot correct the Constitution by inserting something that its text does not provide. If two congressional representatives are desired, the remedy is a constitutional amendment.
This ruling offers an important lesson for the impeachment controversy. We cannot simply exclude certain senators from the voting base because doing so would produce a more convenient result. Any exclusion must have a sound constitutional basis.
However, Chavez does not decide whether detained or suspended senators should be counted when computing the votes required for impeachment conviction.
Avelino v. Cuenco, 83 Phil. 17 (1949)
This case involved a dispute over the election of Mariano Cuenco as Senate President. One issue was whether 12 senators constituted a quorum when the Senate had 24 members.
The Court considered the absence of Senator Tomas Confesor, who was in the United States and beyond the Senate’s immediate coercive powers.
Four justices reasoned that Confesor could be excluded from the computation, leaving 23 senators. Under that approach, 12 constituted a majority and satisfied the quorum requirement.
Other justices disagreed. They maintained that absence abroad did not terminate a senator’s membership and should not reduce the number required for a quorum.
The Court ultimately upheld Cuenco’s election, although the justices did not agree on a single rationale for the quorum question.
The case is relevant because it shows how the Court confronted a constitutional voting-base question involving a senator who could not readily participate.
However, we must recognize an important distinction. Avelino concerned the quorum necessary for the Senate to conduct business. The present controversy concerns the number of affirmative votes required to convict an impeachable official.
A quorum determines whether a legislative body may validly conduct business. A supermajority determines whether a particular decision receives the constitutionally required number of votes.
Thus, Avelino provides relevant reasoning, but it does not automatically settle the impeachment question.
Both cases remind me of three principles we discussed in our Statutory Construction class.
The first is verba legis, which requires us to give effect to the plain and ordinary meaning of the words used in the law.
The second is ratio legis est anima, which recognizes that the reason or spirit of the law is its soul. Understanding why a provision exists helps us determine its intended meaning.
The third is ut magis valeat quam pereat, which favors an interpretation that gives effect to a legal provision rather than renders it meaningless or inoperative.
Although we studied these principles in the context of statutory construction, they also provide useful guidance in constitutional interpretation. Their application, however, must remain consistent with the Constitution’s text and applicable jurisprudence.
These principles do not automatically establish which interpretation of the impeachment voting requirement is correct. Rather, they provide a framework for examining the competing interpretations without changing the constitutional text.
Interpreting the Constitution means giving effect to what it already provides. It does not give us the authority to add words simply because we prefer a different result.
Applying Constitutional Construction to the Impeachment Dilemma
The disagreement among the retired Supreme Court justices shows that the same constitutional provision can produce different interpretations.
The question is how the principles of constitutional construction apply to these competing views and which institution has the authority to resolve the dispute.
The Argument for Counting All 24 Senators
Retired Justice Adolfo Azcuna maintains that the phrase “all the Members of the Senate” refers to the Senate’s entire membership, not merely those who are present or able to vote.
Under this interpretation, a senator does not cease to be a member simply because of detention, suspension, or absence. If all 24 Senate seats remain occupied, 16 affirmative votes are required for conviction.
This interpretation also considers the purpose of the two-thirds requirement. Impeachment is an extraordinary constitutional process that can remove a public official from office. Requiring a supermajority prevents conviction by a simple majority and demands broader agreement among senators.
The argument is that the Constitution deliberately makes conviction difficult. Reducing the voting base merely because some senators cannot participate could weaken that safeguard.
However, this interpretation raises a question when circumstances make it impossible to obtain the required number of votes, regardless of how the participating senators decide.
The Argument for a Changing Denominator
Former Chief Justices Hilario Davide Jr., Artemio Panganiban, and Reynato Puno presented different arguments that leave room for the required number of votes to change under certain circumstances.
Davide focused on whether senators are legally and physically capable of performing their duties. Panganiban emphasized actual circumstances and meaningful participation in the trial. Puno stressed the Senate’s sole constitutional power to try and decide impeachment cases.
Their arguments raise a common concern: Should the Senate’s constitutional power to decide an impeachment case become impossible to exercise because some senators cannot perform their duties?
Consider Senator Panfilo Lacson’s hypothetical discussed earlier. If only 15 senators can participate and all 15 vote to convict, a fixed requirement of 16 votes would make conviction impossible.
Under the alternative interpretation, the voting base may be adjusted to account for senators who are legally incapable of participating. The required two-thirds vote would then be computed using that adjusted denominator.
However, an undesirable or even seemingly absurd result does not automatically authorize us to disregard constitutional language. The exclusion of any senator must still be supported by a valid interpretation of the Constitution.
The issue is not simply whether a changing denominator produces a more practical result. It is whether the Constitution permits that interpretation.
How the Constitutional Dispute May Be Resolved
The Constitution gives the Senate the sole power to try and decide impeachment cases. In exercising that power, the Senate impeachment court must determine how the constitutional voting requirement applies to the circumstances before it.
However, the Senate’s authority does not necessarily place every constitutional question arising from impeachment beyond judicial review.
In Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, the Supreme Court ruled that impeachment proceedings are not entirely beyond its power of judicial review.
The Court recognized that although the House has the exclusive power to initiate impeachment cases and the Senate has the sole power to try and decide them, these powers must still be exercised within constitutional limits.
When a proper case establishes a constitutional violation or grave abuse of discretion amounting to lack or excess of jurisdiction, the Supreme Court may exercise judicial review.
This distinction matters. The Senate has the initial responsibility to determine and apply the voting requirement in its proceedings. The Supreme Court may subsequently examine a properly raised constitutional challenge, subject to the requirements for judicial review.
Judicial review does not mean that the Supreme Court becomes another impeachment court. Its role is to determine whether the constitutional boundaries governing the exercise of impeachment powers have been observed.
Neither institution may simply replace the constitutional requirement with a rule it considers more convenient.
The Senate must first resolve the voting question through a constitutionally supportable interpretation. If that determination is properly challenged on constitutional grounds, judicial review provides a possible means of resolving the dispute.
The existence of competing interpretations does not, by itself, establish that the Constitution must be amended. The constitutional process already provides mechanisms for determining whether an interpretation is legally permissible.
Why an Amendment Is Not Necessarily Required
I do not believe that a constitutional amendment is necessarily required to resolve this controversy. The Constitution already provides the voting requirement. What remains disputed is how that requirement should be understood and applied under extraordinary circumstances.
The first question is whether the existing provision can be given a legally supportable meaning through constitutional interpretation. If its text, context, purpose, and applicable jurisprudence can establish that meaning, the dispute may be resolved without changing the Constitution.
The second question is whether the proposed interpretation merely gives effect to the existing provision or introduces an exception that the Constitution does not permit.
This distinction is important. If excluding certain senators from the denominator is consistent with the Constitution’s meaning, applying that interpretation would not require an amendment. However, if the Constitution requires those senators to remain part of the voting base, an interpretation that excludes them would effectively change the constitutional rule.
Constitutional construction cannot be used as a substitute for constitutional amendment when the intended result contradicts the Constitution itself.
The third question is what additional purpose an amendment would serve if constitutional interpretation can already settle the controversy.
An amendment could expressly define which senators must be counted when determining the required votes for impeachment conviction. It could also establish specific rules for detention, suspension, vacancies, and other circumstances that may affect participation in future proceedings.
Such an amendment could provide greater clarity and reduce the possibility of similar disputes. However, the fact that an amendment is available does not automatically mean that it is necessary.
The present disagreement should first be addressed through the constitutional processes discussed earlier. If those processes establish a legally supportable interpretation, the controversy can be resolved under the existing Constitution.
An amendment remains an available option if the intention is to establish a different constitutional rule or expressly clarify the provision for the future.
For now, I maintain that the disagreement alone does not establish the necessity of an amendment. The proper meaning of the existing provision must first be determined.
Before we decide that the Constitution needs to be changed, we must first determine what it already means.
