CIVIL LAW Dean Nilo Divina echoed the “concern” that the lower quorum threshold used in the recent Senate leadership change unintentionally weakened constitutional guardrails, as he weighed in on the power struggle in the upper chamber.
But the Supreme Court could have the final say on the matter, Divina wrote in a newspaper column, expressing hope that any ruling would “strengthen democratic institutions and rule of law.”
In his opinion piece published in the Daily Tribune on June 7, Divina summarized the opposing positions: first, the strict reading of the 1987 Constitution that required a majority of 13 of all 24 senators to elect the chamber’s officers, and second, the 1949 Avelino v. Cuenco ruling that allowed a lower threshold of 12 members due to some senators falling outside of the Senate’s coercive jurisdiction.
“The concern is that reducing the denominator from the entire membership to a smaller functional membership may inadvertently alter the constitutional balance,” Divina wrote.
“A requirement intended to secure the concurrence of a majority of all members could effectively be satisfied by a much smaller number of legislators simply because others are unable — or made unable — to participate,” he added.
On June 3, a bloc of 12 senators installed Sen. Sherwin Gatchalian as Senate president pro tempore (for the time being) and acting Senate president, believing their numbers were enough following the arrest of Sen. Jinggoy Estrada for plunder and with Sen. Ronald “Bato” Dela Rosa in hiding to evade an arrest warrant from the International Criminal Court for crimes against humanity.
The Gatchalian bloc declared a quorum, citing the Avelino case and its application in May 2015, when three senators were detained on corruption charges.
Turning to his expertise, Divina said corporate law offered a “useful analogy,” as it determines the required number of members present to establish a quorum for ordinary and extraordinary corporate acts, ranging from mergers to company dissolution.
“The Revised Corporation Code is somewhat clearer than the Constitution on the matter. It expressly defines quorum for board meetings as a majority of the directors as fixed in the articles of incorporation,” he said.
“In other words, not all decisions are created equal. The more significant the action, the greater the consensus required. Whether that same principle should influence constitutional interpretation is ultimately a matter on which reasonable minds may differ,” he added.
Divina said the Senate impasse required judicial clarification or could be considered a political question for the Senate itself to resolve.
“Whether the Court chooses to intervene or to exercise judicial restraint, one hopes that its action strengthens both democratic institutions and the rule of law,” he said. “Again, in the Supreme Court we trust.”
On June 4, the Integrated Bar of the Philippines said the election of Gatchalian was “lawful” and “valid,” citing the Avelino case.
A group of deans and professors from various law schools said in a statement on the same day that the Senate quorum declared on June 3 was valid, also citing the Avelino ruling.
