The phantom menace

Both the House of Representatives and the Senate adjourned sine die on June 3, ending the first regular session of the 20th Congress. They won’t reconvene until July 27, when the second regular session will begin with the election of officers and then a joint session for President Marcos’ State of the Nation Address to Congress. In the meantime, neither chamber can hold plenary sessions, and no laws can be passed. The activities of both chambers are limited to committee hearings and meetings of the Commission on Appointments to confirm or reject executive appointments, while bicameral committees can continue to monitor, for oversight purposes, executive programs and implementation of the laws. Of course, the President, for his part, can call Congress to a special session to tackle specific legislation considered urgent.

The Senate’s adjournment took place when Senate President Pro Tempore Sherwin Gatchalian, as acting Senate president, gaveled the session to a close on June 3. Not to be outdone, the “king without a kingdom,” as former Sen. Franklin Drilon calls him, Sen. Alan Peter Cayetano, issued a memorandum to his rump (senator-supporters, that is) saying he was declaring an adjournment sine die. Except it seems no legislature on Earth (definitely not American ones from whom we borrowed our parliamentary practices) does so by letter, as it requires a session where the appropriate motions can be made and approved first.

It’s like that American editorial cartoon that showed former President Ferdinand Marcos Sr., fist raised, as a bored American customs agent in Honolulu told him, “Yes, Mr. Marcos, aside from martial law, do you have anything to declare?”

The Palace has made noises that President Marcos might call Congress to a special session; in any case, the existing Cayetano-era impeachment trial schedule calls for the trial proper to begin on July 6, with hearings from 2 p.m. onward until July 22. After the State of the Nation Address, hearings will be from 3 p.m. onward starting July 28. Two questions arise: how many senators will be left when the trial begins or when the new session starts? And what to do about the phantom menace that is Cayetano?

When it comes to the detained, the Supreme Court permits no flexibility. Former Senior Associate Justice Antonio Carpio reminds us that the Supreme Court has ruled that a detained prisoner “cannot practice their profession nor engage in any business or occupation, or hold office, elective or appointive while in detention.” Tony Laviña, who quoted constitutional law professor Carlo Cruz, added, “members of the Congress who are in jail cannot fully function as legislators. They may propose bills (such as the case of former senator Leila de Lima). But they generally cannot attend and vote in sessions. (People v. Jalosjos, Trillanes v. Pimentel).”

Since there remains the distinct possibility that up to nine senators are in danger of ending up in jail here at home or abroad, while remaining in office but unable to do their jobs, Cruz dares to suggest the time has come to reconsider how we interpret the Constitution’s language. Specifically, the phrase “all of the members” which, he says, “is generally set as a standard under the Constitution for the exercise by the Congress of quite a number of its powers which require votes.”

Simply put, if you insist, despite their absence, that all senators should be counted in computing specific requirements, such as the two-thirds required for conviction in an impeachment trial, you would have the absurd situation where that verdict would be an impossibility not because of the evidence, but for sheer lack of warm bodies. In fact, he lists five instances where the Senate would find it impossible to discharge its constitutional responsibilities for lack of members able to vote: participate in a declaration of war; give its concurrence to treaties; achieve a quorum or elect its officers; expel colleagues; or convict in an impeachment.

Since Avelino v. Cuenco has become famous again, we forget there were two decisions: the first was more conservative and the second, more categorical. On March 4, 1949, it said it didn’t want to rule on Avelino questioning Cuenco’s assumption of the Senate presidency, but if it did, it believed a valid quorum existed. On March 14, 1949, upon a motion for reconsideration, the Supreme Court categorically announced there was a quorum and Cuenco was validly elected.

A large chunk of the resolution summarized the chief justice’s views: “The Chief agrees with the result of the majority’s pronouncement of the quorum upon the ground that, under the peculiar circumstances of the case, the constitutional requirement in that regard has become a mere formalism, it appearing from the evidence that any new session with a quorum would result in the respondent’s election as Senate President, and that the Cuenco group, taking cue from the dissenting opinions, has been trying to satisfy such formalism by issuing compulsory processes against senators of the Avelino group, but to no avail, because of the latter’s persistent efforts to block all avenues to constitutional processes. For this reason, he believes that the group has done enough to satisfy the requirements of the Constitution and that the majority’s ruling is in conformity with substantial justice and with the requirements of public interest.”

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