The quorum debate

The quorum debate | Daily Tribune

At first glance, the phrase appears straightforward. A Senate composed of 24 members would seemingly require 13 votes whenever the Constitution calls for the concurrence of a majority of all its members. Under this view, vacancies, suspensions, detentions or other circumstances affecting individual senators do not alter the denominator. The Constitution speaks of the institution itself, not merely those present or capable of voting at a particular moment.

Proponents of this interpretation argue that constitutional voting thresholds are intended to ensure broad institutional consensus. To allow the denominator to fluctuate depending on temporary circumstances may dilute safeguards that the Constitution deliberately imposed. They maintain that the phrase “all its members” refers to the entire membership of the chamber as constituted by law and not merely those who happen to be available to vote.

The contrary view finds support in jurisprudence.

In Avelino v. Cuenco, the Supreme Court confronted a controversy involving the election of the Senate President. The Court observed that senators who were outside the Senate’s coercive jurisdiction could not be counted for purposes of determining the requisite majority. In effect, the Court recognized that there are circumstances where certain members may be excluded from the computation because they are beyond the body’s practical ability to compel attendance.

Those who advocate a functional approach draw support from this ruling. They argue that constitutional provisions should not be interpreted in a manner that renders governmental institutions incapable of functioning. If members who are legally or physically incapable of participating must nevertheless be included in the denominator, a relatively small number of absentees could frustrate the exercise of constitutional powers. Such an interpretation, they contend, elevates form over substance and may paralyze the legislative process.

The opposing camp responds that Avelino should be read narrowly and in the context of the peculiar circumstances presented in that case. They caution against extending the doctrine beyond its factual setting, particularly where doing so would effectively reduce constitutional voting thresholds.

This concern becomes even more pronounced when viewed through the lens of minority rights. In highly polarized political environments, members of the opposition may become subjects of criminal investigations or prosecutions. Some may even face charges involving non-bailable offenses that prevent them from participating in legislative proceedings for extended periods.

Whether such prosecutions are justified or politically motivated is beside the point. The concern is that reducing the denominator from the entire membership to a smaller functional membership may inadvertently alter the constitutional balance. 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.

To many, that result appears inconsistent with the purpose of constitutional safeguards, which are often designed precisely for difficult and contentious times rather than ordinary ones.

Interestingly, corporate law offers a useful analogy. In fact, 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. The Code likewise distinguishes and specifically enumerates ordinary and extraordinary corporate acts.

As a general rule, once a quorum exists at a board meeting, the act of a majority of those present is sufficient to bind the corporation. However, the law expressly requires a majority of the entire board — or even higher voting thresholds involving stockholders — for fundamental actions such as mergers, consolidations, amendments to the articles of incorporation, the disposition of substantially all corporate assets, dissolution and similar corporate acts.

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.

As the debate continues, I find myself appreciating my role as a corporate lawyer and academician more than my interest in politics. Corporate law often provides clearer guideposts and more predictable outcomes. Constitutional controversies, by contrast, frequently involve competing values and principles for which there are no easy answers.

Ultimately, the matter may call for judicial clarification. Equally plausible, however, is the view that the issue pertains to the Senate’s internal governance and is therefore a political question best left to the institution itself. 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.

Again, in the Supreme Court we trust.

For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cad@divinalaw.com.