Who Are “All the Members of the Senate”?

Rethinking the Two-Thirds Impeachment Threshold Under the 1987 Constitution

The impeachment of a Vice-President presents a constitutional question that appears mathematical on its face but is, in reality, fundamentally a question of constitutional interpretation:

What exactly does the Constitution mean when it requires “the concurrence of two-thirds of all the Members of the Senate” for a conviction in an impeachment case?

The answer matters.

If “all the Members” refers to the Senate’s constitutionally established membership, the denominator remains fixed notwithstanding the temporary absence or inability of individual senators to vote.

If, however, “all the Members” refers only to those who are legally capable of participating and voting in the impeachment proceeding, then circumstances such as incarceration, physical absence, or other forms of legal incapacity could potentially affect the denominator.

The question, therefore, is not simply whether two-thirds is required. The question is: two-thirds of whom?

I. The constitutional text

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 language is notable.

The Constitution did not say “two-thirds of the Members present.”

It did not say “two-thirds of those voting.”

It did not say “two-thirds of the Members participating in the trial.”

It says “two-thirds of all the Members of the Senate.”

That textual choice should matter.

The Senate consists of 24 members under Article VI, Section 2 of the Constitution. Thus, under an ordinary textual reading, two-thirds of a full Senate of 24 is 16.

The difficulty arises when one or more senators cannot participate.

Suppose, for example, that one senator is abroad. Another is detained pursuant to a criminal case. Another is physically incapacitated. Are they still “Members of the Senate” for purposes of Article XI, Section 3(6)?

That is where the constitutional debate begins.

II. The first approach: “all Members” means all persons legally holding Senate office

The textual approach begins with the actual words of the Constitution.

“All the Members” is a comprehensive expression.

A senator does not cease to be a senator merely because that senator is absent from the Philippines. Neither does physical absence ordinarily terminate one’s tenure of office.

The same distinction should arguably apply to an incarcerated senator.

The relevant question is not:

“Can this senator vote today?”

The more fundamental question is:

“Does this person still legally hold the office of Senator?”

These are different questions.

Membership is a legal status.

Voting capacity is an incident of that status.

Consequently, inability to exercise one particular function should not necessarily be equated with loss of membership.

Under this interpretation, the denominator remains 24 unless the membership of the Senate itself has been legally reduced.

A vacancy is therefore fundamentally different from an absence.

If a senator resigns, dies, is removed from office, or otherwise ceases legally to hold the office, there may be an actual vacancy.

But if the senator remains legally a senator and is merely unable to participate, the argument is that the senator remains part of “all the Members.”

This interpretation gives independent meaning to the constitutional phrase.

The Constitution itself knows how to distinguish between “all Members” and “Members present.”

Article VI, Section 16(2), for example, provides that a majority of each House constitutes a quorum, while a smaller number may compel the attendance of absent Members.

The Constitution therefore expressly recognizes the distinction between membership and presence.

That distinction becomes important in impeachment.

III. The functional approach: constitutional provisions must be given effect, not merely read literally

The opposing argument begins with a different premise.

Constitutions are not interpreted in isolation.

Their provisions must be read together and given practical effect.

Under this approach, the purpose of the two-thirds requirement is not merely to produce an arithmetical number. It is to require a substantial consensus among the senators who actually constitute the impeachment court at the time the judgment is rendered.

Suppose a Senate has 24 seats, but several senators are legally incapable of participating in the trial.

Requiring 16 affirmative votes despite the absence or legal incapacity of several members could, under this argument, produce a result that does not accurately reflect the constitutionally functioning Senate.

The question then becomes whether “all the Members” should be understood in a purely numerical sense or in a functional constitutional sense.

This argument invokes a familiar principle of constitutional construction:

A constitutional provision should not be interpreted in a manner that defeats its purpose or renders its operation impractical.

The functionalist position therefore asks:

What was the Constitution designed to accomplish through the two-thirds requirement?

If the answer is to prevent conviction based upon a narrow or temporary majority, then perhaps the denominator should correspond to the senators who are legally capable of participating in the adjudicative process.

But this argument encounters an immediate textual difficulty.

The Constitution did not use the phrase “all Members capable of voting.”

It used “all the Members of the Senate.”

That distinction cannot simply be ignored.

IV. The critical distinction: membership versus capacity to vote

In my view, the strongest way to frame the controversy is not whether an absent senator “counts.”

The better question is whether the senator remains a member.

That distinction allows us to separate three concepts:

1. Membership in the Senate;
2. Physical presence during the impeachment proceeding; and
3. Legal capacity to cast a vote.

They are not necessarily synonymous.

A senator may be a member but absent.

A senator may be a member but temporarily unable to vote.

A senator may be a member but legally prevented from participating in a particular proceeding.

Yet none of these circumstances necessarily establishes that the person has ceased to be a senator.

This suggests a potentially important constitutional rule:

The denominator should ordinarily follow legal membership, not voting availability.

Otherwise, “all the Members” risks becoming “all Members who are presently able to vote,” which is language the Constitution does not contain.

V. What happens when a senator is convicted of a crime?

This presents an even more interesting problem.

A criminal conviction does not necessarily answer the impeachment denominator question by itself.

The critical issue is whether the conviction legally terminates the senator’s tenure or creates a legal disqualification that vacates the office.

If the senator remains legally entitled to occupy the office, then there is a substantial textual argument that the senator remains one of “all the Members of the Senate.”

But if the conviction results in a legally effective loss of office, then the situation is different.

The relevant event would no longer be mere inability to vote.

It would be the termination of membership itself.

That distinction may provide a workable constitutional line:

A temporary disability affects participation.

A legal termination of office affects membership.

Only the latter should ordinarily affect the denominator.

VI. But what about impeachment’s punitive consequences?

This is where our earlier discussion becomes particularly interesting.

Impeachment is unquestionably different from an ordinary legislative vote.

Article XI, Section 3(7) provides that judgment in impeachment cases may extend to:

1. removal from office; and
2. disqualification to hold any office under the Republic of the Philippines.

The consequences are therefore serious.

They may permanently affect a person’s ability to hold public office.

Moreover, the Constitution itself uses the word “convicted.”

These characteristics understandably invite comparison with criminal proceedings.

There is, however, an important qualification.

The Supreme Court’s 2025 decision in Duterte v. House of Representatives expressly rejected the characterization of impeachment as a purely political process. The Court held that impeachment is primarily a legal and constitutional procedure with political characteristics, and that constitutional due process applies throughout the process.

This is significant.

It strengthens the argument that impeachment cannot simply be treated as an ordinary political vote.

At the same time, the Court has emphasized that impeachment is sui generis and constitutionally distinct from an ordinary criminal prosecution.

Thus, the better argument is not:

“Because impeachment is punitive, criminal-law rules automatically apply.”

Rather:

“Because impeachment is a constitutional adjudicative process carrying extraordinary consequences, its express constitutional safeguards should be given their full force.”

That is a considerably stronger proposition.

VII. The “strict construction” argument

One could therefore argue that the two-thirds requirement should be strictly observed.

But there is an important distinction between strict construction and construction in favor of the accused.

In criminal law, the principle of strict construction of penal statutes operates because the State is imposing criminal punishment.

Impeachment is different.

The Constitution itself establishes the proceeding, the grounds, the tribunal, the voting requirement, and the permissible judgment.

Consequently, the safer constitutional argument is not to import the rule of lenity wholesale into impeachment.

Rather, it is to insist that when the Constitution establishes a supermajority safeguard, neither Congress nor the impeachment court should dilute that safeguard through interpretation.

The burden of obtaining the constitutionally required two-thirds vote belongs to those seeking conviction.

That does not necessarily mean that every ambiguity must be resolved in favor of the respondent.

It means that the Constitution’s express threshold cannot be reduced merely because achieving it becomes politically or practically difficult.

VIII. The 2025 Supreme Court decision makes this debate even more significant

The Supreme Court’s decision in Duterte v. House of Representatives is particularly relevant because the Court expressly recognized that impeachment exists within a political environment but remains governed by constitutional and legal requirements.

The Court stated that the impeachment process is “primarily a legal and constitutional procedure but with political characteristics.” It further held that due process applies to the impeachment process and that legal issues involving impeachment are subject to judicial review.

This changes the analytical landscape.

The question of the denominator is therefore not necessarily something that can be dismissed as a purely political question.

If the Constitution says two-thirds of “all the Members,” determining who legally constitutes “all the Members” is a question of constitutional interpretation.

And constitutional interpretation is ultimately a judicial function.

IX. The constitutional problem with reducing the denominator

There is another difficulty with reducing the denominator based upon voting capacity.

Consider a Senate of 24 members.

If all 24 are legally senators, but four are absent or unable to participate, should the denominator suddenly become 20?

If so, what happens when one returns?

Does the denominator change during the proceedings?

What if one senator becomes incapacitated after several days of trial?

What if a senator becomes legally disqualified halfway through the proceedings?

A purely functional approach potentially produces a moving denominator.

That creates uncertainty in a proceeding where the Constitution itself appears to establish a precise supermajority requirement.

By contrast, a membership-based approach creates a relatively objective rule.

The denominator changes only when the legal composition of the Senate changes.

That is considerably easier to administer.

X. The strongest counterargument

The opposing side can nevertheless argue that constitutional interpretation cannot be reduced to arithmetic.

The Constitution is designed to function.

If a senator is legally incapable of participating in an impeachment proceeding, counting that senator as though the senator were an active participant could arguably distort the constitutional process.

The purpose of the supermajority requirement, under this view, is to ensure substantial concurrence among the functioning members of the Senate.

The constitutional phrase “all the Members” could therefore be understood in context, particularly where strict literalism produces an outcome arguably inconsistent with the Senate’s ability to perform its constitutional function.

This is the strongest argument for a reduced denominator.

But it must overcome one fundamental textual obstacle:

The Constitution says “Members,” not “Members present and voting.”

XI. The better constitutional distinction: vacancy, not absence

A principled compromise may therefore lie in distinguishing vacancy from incapacity.

If a Senate seat is vacant, the person who previously occupied it is no longer a Member of the Senate.

The denominator consequently reflects the actual constitutional membership of the Senate.

But if the seat remains occupied by a senator who is merely absent, detained, abroad, or temporarily unable to participate, the person remains a Member.

The denominator therefore does not change.

This interpretation gives effect to both the text and the institutional purpose of the Constitution.

It also avoids an unstable denominator that changes depending upon who happens to be physically present at a particular moment.

XII. The real constitutional question

Ultimately, the controversy should not be reduced to:

“Should the denominator be 24?”

The deeper question is:

“What constitutional status must a senator possess to be included among ‘all the

Members of the Senate’?”

Once framed that way, the competing interpretations become clearer.

The textual approach says:

“Member” refers to legal membership in the Senate.

The functional approach says:

“Member” should be understood in light of the senator’s actual constitutional capacity to participate in the impeachment process.

The textual approach has the advantage of fidelity to the actual words chosen by the framers.

The functional approach has the advantage of attempting to preserve the practical purpose of the constitutional mechanism.

But there is a constitutional principle that should not be overlooked:

When the Constitution itself prescribes a supermajority, the political difficulty of obtaining that supermajority cannot, by itself, justify reducing the threshold.

The Constitution is supposed to constrain political power, not merely facilitate its exercise.

XIII. Conclusion

The phrase “two-thirds of all the Members of the Senate” is deceptively simple.

Two-thirds is mathematically precise.

“All the Members” is legally more complicated.

The better starting point is therefore not the number of senators who can physically vote, but the legal composition of the Senate at the time of the impeachment judgment.

Membership and voting capacity are not necessarily identical concepts.

A senator’s absence, incarceration, or temporary inability to participate does not necessarily terminate membership.

A vacancy or legally effective termination of office is different.

This distinction preserves the language of the Constitution while avoiding an elastic denominator that could change according to the circumstances of an individual impeachment trial.

More importantly, it respects the nature of impeachment as the Supreme Court now describes it: a sui generis constitutional process, primarily legal and constitutional in character, though conducted within a political environment.

The question, therefore, is not simply whether 16 senators can be found somewhere in the Senate chamber.

The constitutional question is whether the Constitution requires 16 votes from the Members of the Senate as legally constituted, or permits the denominator itself to be recalculated according to who happens to be capable of voting.

That is ultimately a question of constitutional text, structure, history, and purpose.

And until the Constitution itself says otherwise, there is a strong argument that “all the Members” means exactly what it says: all persons who legally remain Members of the Senate, not merely those who are present and presently capable of casting a vote.

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