Because I like to nerd about legislative practice and procedure, the foregoing are some thoughts on what happened in the Senate on Tuesday evening.

Following the resumption of session after the senators’ closed-door caucus, Sen. Rodante Marcoleta moved an amendment to the Rules of the Senate. The proposed amendment reads:

“Allow a senator for justifiable reasons to attend and participate in the session through teleconference, video conference, or other reliable forms of remote or electronic means, using appropriate information and communications technology.”

Notably, Sen. Marcoleta moved the said amendment on May 11. The plenary then referred it to the Committee on Rules to “discuss the matter.” Tonight, Sen. Marcoleta moved anew for the approval of the proposed amendment.

Immediately, the Minority Bloc objected to the proposal. According to the Minority, the Committee on Rules has not yet reported on the matter as it remains vacant (following the Senate coup last May 11). Moreover, assuming that the need for a committee report or resolution may be dispensed with, the Rules of the Senate require that the vote on the amendment must occur one day after the proponent moved the amendment. This position was forwarded by Sen. Juan Miguel Zubiri and reiterated by Sen. Risa Hontiveros.

On the other hand, the Majority contended that the vote tonight was just a preliminary move to allow debate on the merits of the proposed amendment. They argued that the one-day rule was complied with as Sen. Marcoleta’s motion was first introduced on May 11. Thus, Senate President Alan Peter Cayetano moved to divide the house.

The exchange got heated to the point that Sen. Marcoleta criticized the position taken by Sen. Hontiveros, implying that she does not have a legal background to make a sound interpretation of the Senate rules. Sen. Erwin Tulfo immediately made a point of order that the remarks of Sen. Marcoleta were unparliamentary. The presiding officer, Sen. Loren Legarda, immediately suspended session (and so, the live feed was also cut off).

When the session resumed a few moments later, the minority leader, Sen. Tito Sotto III, moved to adjourn the session and call the roll. Apparently, the entire minority bloc, save for its leader, walked out of the session.

On the rules change

Under the current Senate rules, a rule change may be done in two ways:

  1. At the start of each Congress, the senate president may endorse the Rules to the appropriate committee for amendment or revision. In which case, the committee must report out the matter, usually via a committee report and a proposed Senate resolution.
  2. The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval (rule 51, § 136).

What’s relevant for us is the second mode of amendment. Indeed, the text of the rule is clear: a senator presents or submits a proposed amendment via a motion. Then, the following day, the Senate can take it up and a simple majority of those present can approve it.

We turn to precedent. The only time the Senate used the second mode to amend its current rules was in May 2018. On May 16, 2018, then majority leader, Sen. Sotto, moved an amendment to the Senate rules that would’ve clarified when are substitute bills deemed read a first time. Sen. Sotto manifested that he would not yet move for the approval of the amendment to give senators time to study it. Then, on May 21, 2018, Sen. Zubiri (who was then the majority leader) moved to approve the amendment, and it was agreed to.

But what complicates the matter is the fact that Senate President Cayetano referred the proposed amendment to the Committee on Rules which, until now, remains vacant. Parenthetically, every standing committee shall “submit a report on all matters transmitted to them” (rule 11, § 24). This is the mainstream route by which matters referred to a committee is sent back to the plenary. In this case, the members of the Committee on Rules have not yet been elected. Thus, it’s physically impossible to have a report on the matter of the amendment.

Yet it appears that this rule remains more of an ornament in the Senate rules. Last week, Sen. Robin Padilla introduced Proposed Senate Res. No. 394, which commends the Philippine National Barebow Team for winning in the 2026 Barebow Asia Championship. During the reference of business, the measure was referred to the Committee on Rules. Moments later, Sen. Joel Villanueva “moved to consider” the same resolution. At that point, the resolution remained at the committee level—the Committee on Rules has not yet reported the matter back. Nevertheless, the Senate took up the measure and approved it.

From the foregoing, the practice of the Senate is to simply take back the measure from the committee via these motions to consider. While this is erroneous, precedents of the chamber form part of its own rules (rule 50, § 135).

The proper route is for the Senate to utilize a discharge motion. Should any committee fail to render a report on any bill or resolution referred to it within 30 session days after such reference, five senators may move in writing for the inclusion in the plenary’s agenda of the matter referred (rule 11, § 31). Of course, this is cumbersome and it means waiting months before it may even be utilized.

Another possible route is to take up the measure under suspension of rules. Under this path, a majority of senators—there being a quorum—may approve a motion presented by the Committee on Rules to suspend the rules (rule 48, § 121). If passed, the chamber may ignore the rules on how to amend the rules altogether and just pass Sen. Marcoleta’ amendment. This, however, is predicated on two conditions: that there’s a duly constituted Committee on Rules (we have none), and a quorum. And that brings me to my next point.

An Avelino v. Cuenco déjà vu?

Right now, the calculus does not favor the Majority. Thirteen senators constitute the Majority, while 11 are in the minority. However, with the absence of Sen. Ronald Dela Rosa, the Majority can only, for now, produce 12 warm bodies at most (unless Sen. Dela Rosa suddenly shows up).

From the point of view of the constitution, this is worrisome. Under the constitution, a majority of each House shall constitute a quorum to validly transact business. Without a quorum, the Senate cannot do anything, except to adjourn or arrest the absent senators (rule 35, § 99). See illustrative example below.

Precedents, such as Avelino v. Cuenco (83 Phil. 17 (1949)), hold that the quorum must mean majority of senators who can be reached by “coercive processes.” Thus, in Avelino, the Supreme Court excluded Sen. Tomas Confesor, who was in the United States, in computing the quorum. Avelino tells us that computing the quorum is based on senators who are in the country as the chamber’s coercive powers are only effective within the Philippine territory.

Applied in the Majority’s predicament, we’re not so sure where Sen. Dela Rosa is. We don’t know where he is hiding—whether here or abroad. In any case, the senate president’s control of the Senate is in danger because once the entire Minority Bloc walks out of the chamber, only 12 will remain—which is one body short of an unquestionable quorum. Sen. Cayetano may be occupying the Office of the Senate President, but his bloc is deprived of any power to legislate.

There are two ways by which the senate president can get out of this conundrum. First, he can present proof that Sen. Dela Rosa is abroad already. In such a case, the basis for a quorum goes down to 23 senators. In this case, the Majority’s 12 senators can validly transact business. But this is unlikely because Sen. Dela Rosa will never reveal his location to the Interpol, right? Second, the Senate leadership can compel attendance of the absent senators. That means arresting them, which has never been done in the Philippine Senate’s history.

Updated: