Of all members of the Senate

By Michale Henry Yusingco, LL.M

Article XI, Section 3(6) is seemingly direct: ‘No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.’ The constitutional text does not say two-thirds of the senators ‘present’ or ‘participating’, nor does it explicitly reference 24 senators. The Presiding Officer, Senator Chiz Escudero, on the very first day of the impeachment trial ruled that this provision means the voting threshold for conviction is fixed at 16 votes. Simply, ‘all members of the Senate’ is also fixed at 24.

Interestingly, no senator questioned the Presiding Officer’s ruling at that time. He even mentioned that this matter is already a justiciable issue. Yet, no one, not even the prosecution team, elevated the controversy to the Supreme Court. After 20 plus hearing days, the impeachment court is set to deliberate on how the phrase ‘all members’ should be comprehended.  Obviously, the driving force behind this move is to lower the conviction threshold which was fixed at 16 votes on day 1. Senators realized only now that this is essentially unattainable.

The answer lies between two competing principles of constitutional interpretation. One is verba legis—the plain-meaning rule, which requires the words of the constitution to be understood according to their ordinary and categorical meaning. The other is the rule against absurdity and unreasonableness, which cautions against an interpretation that produces a result plainly inconsistent with the purpose or workable operation of the constitutional provision.

There is considerable force to the textual argument. A constitution is not merely a collection of policy aspirations. Its words establish institutional rules precisely because those rules are intended to constrain political actors. Moreover, verba legis is the standard way of interpreting the constitution. If the words are clear, then the only necessary response is to obey the command that they convey. This was fundamentally the basis of the Presiding Officer’s ruling on day 1.

But the opposing argument invokes a different constitutional principle: laws and the constitution should not be interpreted in a manner that produces absurd, unreasonable or self-defeating consequences. For instance, suppose 9 senators, for whatever reason, do not participate in the impeachment trial. This leaves only 15 senators conducting the trial. The absence of the 9 senators, again regardless of reason, makes conviction automatically impossible if verba legis is applied.

It can be argued, therefore, that scenario described above is an absurd and unreasonable situation that cannot be allowed to occur. Which then leaves the question of whether the phrase ‘all Members’ should be treated as an absolute textual command or understood in the context of the institutional and political realities of an impeachment tribunal? This is truly a constitutional debate that every Filipino should be reflecting on.

The verba legis position says: Do not rewrite the 1987 Constitution. If the framers intended two-thirds of participating senators, they could have said so. Courts and the Senate should not add words that the constitution does not contain. It cannot be emphasized enough that this is actually the default mentality that we all must have. Verba legis is the norm.

The anti-absurdity position responds: Do not interpret the 1987 Constitution mechanically in a way that defeats its purpose. Constitutional interpretation is not merely dictionary reading. The text must operate within the constitutional structure and achieve the function for which the provision exists. Admittedly, this rule can only be applied under extraordinary circumstances. Unfortunately, the current make-up of the Senate warrants consideration of this rule.

Notably, danger also lies on both sides. A purely literal interpretation could produce an unreasonable result in exceptional circumstances. But an overly purposive interpretation could be equally dangerous because it allows political actors to modify an express constitutional threshold whenever they believe the literal rule produces an inconvenient result. Truly, this constitutional conundrum is a vital civic learning opportunity for every Filipino.

Ultimately, this is a classic choice between fidelity to constitutional language or fidelity to constitutional purpose. Verba legis demands that the words be respected. The rule against absurdity demands that those words not be applied in a manner that makes the constitutional mechanism irrational or incapable of functioning. The challenge for the Senate is not simply to choose the interpretation that produces the preferred result. It must determine which interpretive principle better respects the 1987 Constitution itself.