On September 23, the prosecution and defense are scheduled to argue before the Senate Impeachment Court over a short but difficult phrase in the Constitution: conviction requires ‘two-thirds of all the Members of the Senate.’ The Constitution also gives the Senate the ‘sole power to try and decide’ impeachment cases.
Before the Senate decides, return to September 16, when four former Supreme Court Justices-Hilario Davide Jr., Artemio Panganiban, Reynato Puno, and Adolfo Azcuna-were asked three questions: Who belongs among ‘all the Members’? What guidance does Avelino v. Cuenco provide? And may a senator-judge who did not attend or substantially participate nevertheless cast the final vote?
Their answers were more nuanced than three against one.
Davide: Can this senator act?
Panganiban: Can this senator judge fairly?
Puno: Can the impeachment court itself still try and decide?
Azcuna: Is this person still legally a senator who must therefore count?
First: Who belongs in ‘all the members’?
Davide begins with the individual senator’s qualification and ability to act.
Holding office does not end his inquiry. The senator must also be legally and physically qualified to perform the duties of senator-judge. ‘Legally able’ means no legal restraint prevents the exercise of senatorial powers. ‘Physically or actually able’ means mental or physical incapacity, health conditions, or comparable circumstances do not prevent performance of those duties.
His question is: Can this senator, in law and in fact, act as a senator-judge?
Panganiban looks at the individual senator differently. Being able to act is not enough. The senator must also have meaningfully engaged with the evidence.
He accepts that two-thirds of 24 is mathematically 16. But impeachment is not merely arithmetic. It is judgment. A senator-judge must know the evidence sufficiently to search for truth and decide fairly.
His question is: Has this senator learned enough from the case to judge truthfully and fairly?
Puno changes the scale of the inquiry.
Davide and Panganiban look mainly at the individual senator. Puno steps backward and looks at the impeachment court as a whole. The Constitution gave the Senate the power not merely to hear an impeachment case, but to try and decide it. Puno asks whether a rigid interpretation of ‘all the Members’ could prevent the court from completing that task. He also stresses that the Constitution says ‘two-thirds,’ not the fixed number 16.
Take a simple illustration. Suppose only 15 senators were legally able to function as senator-judges. If the denominator remained rigidly 24, conviction would still require 16 votes. But only 15 could vote. Conviction would be impossible even if all 15 voted to convict. One constitutionally possible judgment would be closed off before the evidence finally determined the result.
Puno does not say the denominator should shrink whenever senators are absent. Mere absence is not necessarily inability; an absent senator may still study transcripts, recordings, exhibits, and the record. His narrower point is that the rule should not be applied so mechanically that the impeachment court cannot complete its duty to try and decide.
His question is: Can the impeachment court itself still finish its constitutional job?
Azcuna begins from the opposite direction: continuing membership and the purpose of the supermajority.
If a person legally remains a senator, Azcuna says, that senator remains within ‘all the Members.’ The Constitution deliberately requires a supermajority for conviction. Impeachment may remove a high constitutional officer before the end of a fixed term; where that officer was elected, removal can displace an electoral mandate. For Azcuna, the high threshold protects against removal by a temporary or passing partisan majority.
That is why he insists upon a stable denominator. If absence or participation can reduce the number who count, the number needed for conviction may fall with it. The constitutional protection would shrink as well.
His question is: Is this person still legally a senator-and, if so, must that senator remain counted in the deliberately high supermajority?
Second: What does Avelino v. Cuenco tell us?
Avelino concerned Senate quorum, not an impeachment conviction threshold. None of the four treated it as an automatic answer.
Davide saw possible guidance by analogy. Puno called it an imperfect precedent because it involved different language and circumstances. Panganiban placed it within a broader line of jurisprudence. Azcuna drew the sharpest distinction: Avelino dealt with quorum, while impeachment expressly requires two-thirds of ‘all the Members.’
Put simply: Avelino may help the Senate think. It does not do the Senate’s thinking for it.
Third: Who may validly vote?
Davide distinguishes complete nonparticipation from imperfect participation. Failure to ask questions does not itself prove nonparticipation; a senator-judge may listen and reflect without constantly intervening. But never participating presents a different problem.
Panganiban stresses truth and fairness. If a senator has not put himself in a position to know the evidence and make a fair judgment, he questions whether that senator should vote.
Puno distinguishes absence from inability to judge. Personal attendance at every hearing is not indispensable if the senator can fairly decide from transcripts, recordings, exhibits, and the record.
Azcuna makes perhaps the cleanest separation: Who counts and who may vote are different questions. A senator may remain a legal member-and therefore remain in the denominator-while separately deciding whether the record has been studied sufficiently to cast a responsible vote.
More than five centuries ago in Florence, Michelangelo faced the block of marble from which emerged the magnificent sculpture of David. Constitutional interpretation is not sculpture. An interpreter cannot carve whatever figure imagination prefers. The constitutional text remains both material and boundary.
But fine interpretation, like fine carving, depends upon seeing where one line ends and another begins.
On September 16, four distinguished jurists examined the same constitutional marble. Their different cuts revealed more clearly the constitutional questions within it.
On September 23 or thereafter, the Senate must decide which lines the Constitution itself will bear.
Only then can it answer the arithmetic.
First it must answer: Who counts?
Dr. Pablo Trillana III is a lawyer, author, former Chairman of the National Historical Institute (now the National Historical Commission of the Philippines), and a lifelong student of Philippine history and Rizal studies.