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MANILA, Philippines — Twelve senators could validly act on Senate leadership posts in the current bloc rivalry, former Senior Associate Justice Antonio Carpio said, arguing that Sen. Jinggoy Estrada should not be counted in determining the majority because of his pending plunder case and detention.
Carpio said the Gatchalian bloc had a valid quorum when it moved to reorganize Senate positions because the relevant count should be based on 23 senators, not the full 24.
"A majority of 23 is 12," Carpio said in an ANC "Headstart" interview on Monday, June 8.
Carpio said his position rests on two legal points: the Supreme Court doctrine that a public official under preventive detention cannot exercise public office, and the plunder law's provision on suspension of public officers charged in court.
"If you are suspended from office, that means you cannot exercise the functions and powers of that office, and one of those functions is to vote," Carpio said.
'All members' who can vote
The Senate leadership fight has turned on Article VI, Section 16 of the Constitution, which says the Senate president shall be elected by a majority vote of all its members and that a majority of each chamber shall constitute a quorum to do business.
Cayetano allies have argued that this requires 13 votes in a 24-member Senate.
Carpio, however, said "all" should mean senators who are legally qualified to vote. He said Estrada, who surrendered on June 1 over a plunder case involving alleged kickbacks from flood control projects, should be excluded from the voting base.
"My position is that you cannot include Jinggoy because he has been suspended. He cannot exercise the right to vote in any proceeding in the Senate, and he cannot hold public office under the Trillanes doctrine," Carpio said.
Carpio cited Trillanes v. Pimentel, where the Supreme Court denied then-Sen. Antonio Trillanes IV's plea to attend Senate sessions while in detention, and the plunder law's suspension provision for public officers facing criminal prosecution under a valid information.
Counting Sen. Bato dela Rosa, who has been absent and evading an International Criminal Court arrest warrant, is not even necessary in this case, Carpio said.
"The Supreme Court refused to issue a TRO, so he can really be arrested. The problem with Bato is, if he shows up at the Senate, he will be arrested. So physically, he cannot vote. But it doesn't matter, because there is already a quorum once Jinggoy is out," Carpio said.
Leadership vote
Carpio said the June 3 proceedings could stand even if the Senate presidency itself remained unresolved.
"So my position is that the change of leadership up to the Senate president pro tempore is valid because there was a quorum. The quorum is based on 23, and 12 is a majority," he said.
Carpio also said the 12 senators could elect a Senate president if a session is called, as the chamber is currently on recess.
"So assuming the President calls for a special session, can the 12 elect a new Senate president? My position is yes, because when the Constitution says the Senate president shall be elected by a majority of all the members of the Senate, 'all' means all those who can vote," he said.
Carpio's view is a legal opinion on the current dispute. The Supreme Court has not ruled on whether the 12 senators can validly elect a Senate president under the present circumstances.
Carpio said Alan Peter Cayetano, who was eased out as Senate president during the June 3 shakeup, should go to the Supreme Court if it intends to challenge the Gatchalian bloc's control of the chamber.
"What Cayetano should do is go to the Supreme Court because he will be at the losing end here. As of now, nobody recognizes him," he said. — Camille Diola
