Avelino v Cuenco

n February 18, 1949, Senator Lorenzo Taada invoked his right to speak
on the senate floor to formulate charges against the then Senate
President Jose Avelino. He requested to do so on the next session (Feb. 21,
1949). On the next session day however, Avelino delayed the opening of
the session for about two hours. Upon insistent demand by Taada,
Mariano Cuenco, Prospero Sanidad and other Senators, Avelino was forced
to open session. He however, together with his allies initiated all dilatory
and delaying tactics to forestall Taada from delivering his piece. Motions
being raised by Taada et al were being blocked by Avelino and his allies
and they even ruled Taada and Sanidad, among others, as being out of
order. Avelinos camp then moved to adjourn the session due to the
disorder. Sanidad however countered and they requested the said
adjournment to be placed in voting. Avelino just banged his gavel and he
hurriedly left his chair and he was immediately followed by his followers.
Senator Tomas Cabili then stood up, and asked that it be made of record
it was so made that the deliberate abandonment of the Chair by the
Avelino, made it incumbent upon Senate President Pro-tempore Melencio
Arranz and the remaining members of the Senate to continue the session
in order not to paralyze the functions of the Senate. Taada was
subsequently recognized to deliver his speech. Later, Arranz yielded to
Sanidads Resolution (No. 68) that Cuenco be elected as the Senate
President. This was unanimously approved and was even recognized by
the President of the Philippines the following day. Cuenco took his oath of
office thereafter. Avelino then filed a quo warranto proceeding before the
SC to declare him as the rightful Senate President.
ISSUE: Whether or not the SC can take cognizance of the case.
HELD: No. By a vote of 6 to 4, the SC held that they cannot take
cognizance of the case. This is in view of the separation of powers, the
political nature of the controversy and the constitutional grant to the
Senate of the power to elect its own president, which power should not be
interfered with, nor taken over, by the judiciary. The SC should abstain in
this case because the selection of the presiding officer affects only the
Senators themselves who are at liberty at any time to choose their
officers, change or reinstate them. Anyway, if, as the petition must imply

to be acceptable, the majority of the Senators want petitioner to preside,

his remedy lies in the Senate Session Hall not in the Supreme Court.
Supposed the SC can take cognizance of the case, what will be
the resolution?
There is unanimity in the view that the session under Senator Arranz was
a continuation of the morning session and that a minority of ten senators
(Avelino et al) may not, by leaving the Hall, prevent the other (Cuenco et
al) twelve senators from passing a resolution that met with their
unanimous endorsement. The answer might be different had the
resolution been approved only by ten or less.
**Two senators were not present that time. Sen. Soto was in a hospital
while Sen. Confesor was in the USA.
Is the rump session (presided by Cuenco) a continuation of the
morning session (presided by Avelino)? Are there two sessions in
one day? Was there a quorum constituting such session?
The second session is a continuation of the morning session as evidenced
by the minutes entered into the journal. There were 23 senators
considered to be in session that time (including Soto, excluding Confesor).
Hence, twelve senators constitute a majority of the Senate of twenty three
senators. When the Constitution declares that a majority of each House
shall constitute a quorum, the House does not mean all the members.
Even a majority of all the members constitute the House. There is a
difference between a majority of all the members of the House and a
majority of the House, the latter requiring less number than the first.
Therefore an absolute majority (12) of all the members of the Senate less
one (23), constitutes constitutional majority of the Senate for the purpose
of a quorum. Furthermore, even if the twelve did not constitute a quorum,
they could have ordered the arrest of one, at least, of the absent
members; if one had been so arrested, there would be no doubt Quorum
then, and Senator Cuenco would have been elected just the same
inasmuch as there would be eleven for Cuenco, one against and one
abstained.
MOTION FOR RECONSIDERATION (filed by Avelino on March 14, 1949)

Avelino and his group (11 senators in all) insist that the SC take
cognizance of the case and that they are willing to bind themselves to the
decision of the SC whether it be right or wrong. Avelino contends that
there is no constitutional quorum when Cuenco was elected president.
There are 24 senators in all. Two are absentee senators; one being
confined and the other abroad but this does not change the number of
senators nor does it change the majority which if mathematically
construed is + 1; in this case 12 (half of 24) plus 1 or 13 NOT 12. There
being only 12 senators when Cuenco was elected unanimously there was
no quorum.
The Supreme Court, by a vote of seven resolved to assume jurisdiction
over the case in the light of subsequent events which justify its
intervention. The Chief Justice agrees with the result of the majoritys
pronouncement on 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 Cuencos 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 Avelinos persistent efforts to block all avenues to constitutional
processes. For this reason, the SC believes that the Cuenco group has
done enough to satisfy the requirements of the Constitution and that the
majoritys ruling is in conformity with substantial justice and with the
requirements of public interest. Therefore Cuenco has been legally elected
as Senate President and the petition is dismissed.
Justice Feria: (Concurring)
Art. 3 (4) Title VI of the Constitution of 1935 provided that the majority of
all the members of the National Assembly constitute a quorum to do
business and the fact that said provision was amended in the
Constitution of 1939, so as to read a majority of each House shall
constitute a quorum to do business, shows the intention of the framers
of the Constitution to base the majority, not on the number fixed
or provided for in the Constitution, but on actual members or
incumbents, and this must be limited to actual members who are
not incapacitated to discharge their duties by reason of death,

incapacity, or absence from the jurisdiction of the house or for

other causes which make attendance of the member concerned
impossible, even through coercive process which each house is
empowered to issue to compel its members to attend the session
in order to constitute a quorum. That the amendment was intentional
or made for some purpose, and not a mere oversight, or for considering
the use of the words of all the members as unnecessary, is evidenced
by the fact that Sec. 5 (5) Title VI of the original Constitution which
required concurrence of two-thirds of the members of the National
Assembly to expel a member was amended by Sec. 10 (3) Article VI of
the present Constitution, so as to require the concurrence of two-thirds of
all the members of each House. Therefore, as Senator Confesor was in
the United States and absent from the jurisdiction of the Senate, the
actual members of the Senate at its session of February 21, 1949, were
twenty-three (23) and therefore 12 constituted a majority.