(Statement of law deans, professors of juridical science and political theorists on the Senate)
Our people are confused — and they are weary of the incessant wrangling that threatens the credibility of an institution essential to the workings of our democracy. The employees of the Senate, we surmise reasonably, must be even more confused — and troubled. Whose orders are they to follow?
We consider it our obligation as professors of law and the juridical sciences to lend whatever clarity we can to a muddled situation. We will do so in as direct a manner as possible.
Hardly has it ever happened that legislative business could not proceed because of the deliberate refusal of some members of the Senate to appear at the Session Hall for the conduct of legislative business. It was profoundly disturbing and confusing to us and to the entire nation.
Was there a quorum on June 3?
Section 16, paragraph 2 of Article VI of the 1987 Constitution defines a quorum as “a majority of each House” for the purpose of
doing business.
While 24 senators were elected, one of them, Ronald “Bato” de la Rosa, has been in hiding — his whereabouts unknown. To insist that he should be counted in determining a majority for purposes of quorum is to accord someone who is evading arrest and the processes of law, and deliberately putting himself beyond the reach of any legal coercion, the power to hold the entire legislature hostage. It is a choice between insistence on numbers over the functioning of the Legislative Branch of government. Certainly, it could not have been the intent of the framers of the Constitution to give any member either of the House of Representatives or the Senate the power to cause a deadlock that makes all legislative business impossible. Then, of course, there is the fact that Senator Jinggoy Estrada is currently under detention and is factually unable to participate in the proceedings of
the Senate.
When, in Avelino v. Cuenco. G.R. 2821 (March 4, 1949), the Supreme Court was asked to rule on the constitutionality of a Senate session with only twelve senators, the Court ruled:
“In fine, all the four justices agree that the Court being confronted with the practical situation that of the twenty three senators who may participate in the Senate deliberations in the days immediately after this decision, twelve senators will support Senator Cuenco and, at most, eleven will side with Senator Avelino, it would be most injudicious to declare the latter as the rightful President of the Senate, that office being essentially one that depends exclusively upon the will of the majority of the senators, the rule of the Senate about tenure of the President of that body being amenable at any time by that majority. And at any session hereafter held with thirteen or more senators, in order to avoid all controversy arising from the divergence of opinion here about quorum and for the benefit of all concerned, the said twelve senators who approved the resolutions herein involved could ratify all their acts and thereby place them beyond the shadow of a doubt.”
Even without addressing the question of the election of a Senate President, what this pronouncement of the Supreme Court calls attention to is its sensitivity to political realities — and the political reality is that 12 chose to appear to discharge their duties as senators, while 11 chose to stay away, shirking from their bounden duty!
Furthermore, this is not the first time that 12 is considered a quorum. On May 5, 2015, then Senate President Franklin Drilon declared a quorum of 12 senators out of 17 “available” senators, the rest being “unavailable” by reason of absence from the country or detention. This was not unconstitutional. It was allowing function to prevail over literal insistence on a given number.
When the Constitution requires a “majority of each House” it contemplates a majority of the members actually deliberating and voting on measures. This is where citing once more the functional approach of the Supreme Court is apropos:
“ …and thirdly because in view of the absence from the country of Senator Tomas Confesor twelve senators constitute a majority of the Senate of twelve three senators. When the Constitution declares that a majority of “each House” shall constitute a quorum, “the House: does not mean “all” the members. Even a majority of all the members constitute “the House”. (Missouri Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There is a difference between a majority of “the House“, the latter requiring less number than the first. Therefore an absolute majority (12) of all the members of the Senate less one (23), constitutes constitutional majority of the Senate for the purpose of a quorum.”
Nobody claims that 12 = 13
The question has been asked: Since when has 12 become 13, and the plain answer is NEVER, but the premise is mistaken, because it assumes that 13 is the magic number for a quorum. That would be so were the membership of the Senate undisturbed. Let it be assumed ex hypothesi that one senator is deceased, and we would have the same situation where 12 report for a session and 11 do not, would it be insisted that 24 remains the reckoning number for determining quorum?
While Mr. de la Rosa is not deceased, his attendance cannot be compelled and therefore he is really not an “available” member of the Senate.
Has the 1987 Constitution rendered Avelino obsolescent?
Avelino was decided under the aegis of the 1935 Constitution and in respect to the Senate, that Constitution provided:
Section 2. The Senate shall be composed of twenty-four Senators who shall be chosen at large by the qualified electors of the Philippines, as may be provided by law.
Therefore, whatever rule was laid down in respect to quorum in the Avelino case continues to apply because the composition of the Senate has remained unchanged.
A political decision
Since 12 of 23 senators have decided that Senator Sherwin Gatchalian is President Pro-Tempore of the Senate, then certainly there is no way that one who can count on only 11 votes in his support — including his own — can continue to assert his leadership over a body, majority of whose members have repudiated him.
We call on our legislators to act as true statesmen and to return to the urgent business to which the Senate must attend, among the most important of which is the conduct of the impeachment trial of the Vice-President. We call on those who have so far caused the Senate sessions to stall to desist from derailing the trial of the Vice-President.
