I will be undiplomatic as heck: all those who say that the recent events in the Senate, where 12 senators constituted themselves as a quorum to do business, declared all positions vacant and then elected a new set of officers (except the Senate President) was legal, on the strength of the 1949 case of Avelino v. Cuenco, are either lazy, comprehension-challenged, or mentally dishonest. I have another word in mind that starts with “s,” but that would be unkind.

You see, aside from the fact that Avelino was decided using the 1935 Constitution as a guide, it is not an easy case to distill. A casual reading simply will not do. To start with, the petition in Avelino was DISMISSED on the ground that it was a political question, thus the Supreme Court declined to intervene in a matter purely internal to the Senate. This is because the expanded jurisdiction of the SC — as found in Article VI, Sec. 1 in today’s Charter — did not yet exist.

To be sure, the question of quorum was raised and fully argued, but NO majority decision was arrived at. A divided SC vote was a stalemate — four to four — with two magistrates (Montemayor and Reyes) demurring to give an opinion on the question. This did not change on a motion for reconsideration — the deadlock remained, with additional separate opinions from Chief Justice Moran and Justices Feria and Perfecto.

Again, in the final act, NO majority vote on the quorum issue was attained, and thus, there was NO binding precedent. Avelino may be the law of the case as far as the election of Cuenco as Senate President was concerned, but it established NO doctrine.

In fact, even Justice Feria, whose opinion is being cited as the basis for the “twelve-is-a-majority” theory of the Gatchalian group, laid down narrowly defined conditions when the denominator of twenty-four may be reduced: by death, incapacity and absence from the jurisdiction of the House. Take note, NOT mere physical absence, but being absent because abroad.

Fast forward to 2026. The framers of the new (1987) Constitution introduced subtle yet meaningful changes to the majority rule in the Legislature. Hence, Section 16 of Article VI thereof provides that the Senate “shall elect its President xxx by a majority vote of ALL its respective members.

Fr. Joaquin Bernas, renowned constitutionalist and one of the authors of the Fundamental Law, said in his commentaries thereto (which is practically required reading for all law students), that the Constitutional Commission wanted a 13/24 minimum for the SP because, being third in the line of constitutional succession, they (Commissioners) wanted a bigger group with a bigger representation to choose him or her. By “all the members of the Senate,” those who wrote the Constitution meant a literal count, not a quorum of those present.

“All the members” means 24 senators, as fixed by Article VI, Sec. 2. A 13-man minimum even with vacancies and absences. Now, those “ulalos” who say that the 13-man majority refers only to the election of the SP evidently failed to read Rule II, Sec. 2 of the Senate rules, which extended the constitutional rule to all officers of the Senate. As I’ve said, they’re lazy.

It is all simple arithmetic. Just as in rape, in the Constitution, NO means NO.