The Freedom Constitution points to 13, not 12

The ongoing circus in the Philippine Senate is dividing Filipinos once again as they watch two rival blocs each claiming legitimate leadership. The question really is: which claim carries greater legal weight?

On group is led by Senator Alan Peter Cayetano, while the other group is supporting Senator Win Gatchalian. Both camps invoke legal authorities to justify their positions. Cayetano’s group anchors its claim on the 1987 Constitution, while Gatchalian’s bloc relies on the Supreme Court’s 1949 ruling in Avelino v. Cuenco GR No.L-2821.

The issue ultimately boils down to numbers, considering that a majority is computed as one-half of the number of senators plus one.

Cayetano was elected by 13 senators last May 11. His camp argues that this satisfies the constitutional requirement under Article VI, Section 16(1) of the 1987 Constitution, which provides that the Senate shall elect its president “by a majority vote of all its Members.” Since the Senate consists of 24 members, a majority is 13.

Gatchalian, meanwhile, was elected as Senate president pro tempore by 12 senators last June 3. His supporters contend his election is legitimate as only 22 senators should be counted because Senator Ronald “Bato” dela Rosa is hiding and Senator Jinggoy Estrada is under detention. Under this theory, 12 constitute a majority.

The dispute therefore raises a critical question: Should the denominator be 24 or 22?

The stronger legal argument appears to favor the use of 24.

The Constitution is unequivocal in requiring a majority vote “of all its Members.” The phrase leaves a little room for interpretation. As long as a senator remains a member of the Senate, he or she must be included in the computation.

At present, neither Dela Rosa nor Estrada has ceased to be a senator. Neither has died, resigned, been expelled, or been permanently incapacitated. Their seats remain occupied. Estrada still enjoys the Constitutional presumption of innocence under Article 3 section 14. Indeed, during the roll call in the session conducted by the Gatchalian bloc on June 3, both senators’ names were called, implicitly recognizing that they remain members of the Senate.

The same principle is reflected in the Senate Rules, which likewise speak of elections by a majority of all senators. Following this interpretation, Senator Loren Legarda remains the legitimate Senate president pro tempore pursuant to Rule II, Section 2 of the Senate Rules.

The Gatchalian bloc’s reliance on Avelino v. Cuenco deserves careful consideration but may not be controlling under present circumstances.

First, the factual circumstances in Avelino were different. The Supreme Court actually didn’t take congnizance of that case as it considered a political question. It only gave an obiter dictum or opinion. There, the computation was based on 23 senators because Senator Tomas Confesor was in the United States and beyond the coercive authority of the Senate.

It is noteworthy that today, no senator is beyond Philippine jurisdiction.

Second, the case was decided under the 1935 Constitution, which did not contain the explicit prepositional phrase “of all its Members” now found in the 1987 Constitution. The textual difference is significant. The present Constitution is an offshoot of our bad experience during martial law under the dictatorship of Ferdinand Marcos Sr. So that we will not succumb to another dictator president such phrase is purposely inserted to ensure an independent Senate.

For these reasons, the constitutional argument advanced by the Cayetano bloc presently appears to have greater legal weight. But when the Gatchalian bloc succeeds in persuading one more senator to join its side, thereby securing the support of at least 13 senators, the legal landscape would immediately change.

As for how it would persuade or threaten that senator to switch camps, and whether such actions are moral, just, or fair is a separate question.