AVELINO v.

CUENCO | 78

EN BANC
G.R. No. L-2821. March 4, 1949
JOSE AVELINO, petitioner, vs. MARIANO J. CUENCO, respondent.

TOPIC:
SECTION 15. The Congress shall convene once every year on the fourth Monday of July for its regular
session, unless a different date is fixed by law, and shall continue to be in session for such number of days as
it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays,
Sundays, and legal holidays. The President may call a special session at any time.

SECTION 16.
(1) The Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all
its respective Members. Each House shall choose such other officers as it may deem necessary.
(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from
day to day and may compel the attendance of absent Members in such manner, and under such penalties,
as such House may provide.
(3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and,
with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed sixty days.
(4) Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting
such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at
the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a
Record of its proceedings.
(5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more
than three days, nor to any other place than that in which the two Houses shall be sitting.

FACTS:
 In Senate session of February 18, 1949, Senator Lorenzo M. Tañada requested to deliver a speech on the
next session to formulate charges against Senate President Jose Avelino and was approved.
 On February 21, 1949, although there was already a quorum at 10:00 A.M., the petitioner did not appear
until 11:35 A.M. The Senate President followed by his supporters Senators Francisco and Tirona
deliberately conspired to delay, prevent, ignore and disrespect Senator Tañada.
 The petitioner, motu propio adjourned the session of the Senate and walked out with his six followers while
the rest remained.
 Senator Cabili stood and requested for the following incidents be recorded:
1. The deliberate abandonment of the Chair by the Senate President Avelino, made it incumbent
upon Senate President Pro-tempore Arranz and the remaining members of the Senate to continue the
session in order not to paralyze the functions of the Senate;
2. Senate President Pro-tempore Arranz suggested that respondent be designated to preside over
the session which suggestion was carried unanimously; and
3. The respondent, Senator Mariano Cuenco, thereupon took the Chair.
 Gregorio Abad was appointed Acting Secretary upon motion of Senator Arranz, because the Assistance
Secretary, who was then acting as Secretary, had followed the petitioner when the latter abandoned the
session.
 Senator Tañada, after being recognized by the Chair, delivered his privilege speech. Thereafter Senator
Sanidad read aloud the complete text of said Resolution (No. 68), and submitted his motion for approval
thereof and the same was unanimously approved.
 With Senate President Pro-tempore Arranz again occupying the Chair, after the respondent had yielded it
to him, Senator Sanidad introduced Resolution No. 67, entitled "Resolution declaring vacant the position of
the President of the Senate and designated the Honorable Mariano Jesus Cuenco Acting President of the
Senate."
 Put to a vote, the said resolution was unanimously approved.
 Senator Cuenco took the oath. The next day, President Quirino recognized the respondent as acting
president of the Philippines Senate.
 The petitioners, Senator Jose Avelino, in a quo warranto proceeding, asked the court to declare him the
rightful Senate President and oust the respondent, Mariano Cuenco, contending that the latter had not
been validly elected because twelve members did not constitute a quorum – the majority required of the
24-member Senate.

ISSUES:
1. Whether the Supreme Court have jurisdiction over the subject-matter.
2. Whether resolution Nos. 68 and 67 validly approved.
3. Whether the petitioner be granted to declare him the rightful President of the Philippines Senate and
oust respondent.
 AVELINO v. CUENCO | 78

RULING:
In the resolution of the case, the Court held that:
1. No. The Supreme Court has no jurisdiction over the case as it is against the doctrine of
separation of powers.

a. 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.
b. The court will not interfere in this case because the selection of the presiding officer affect only the
Senators themselves who are at liberty at any time to choose their officers, change or reinstate them. 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.

2. Yes, it was validly constituted, supposing that the Court has jurisdiction.
1. Justice Paras, Feria, Pablo and Bengzon say there was the majority required by the Constitution
for the transaction of the business of the Senate, because, firstly, the minute say so, secondly,
because at the beginning of such session there were at least fourteen senators including Senators
Pendatun and Lopez, and thirdly because in view of the absence from the country of Senator Tomas
Confesor twelve senators constitute a majority of the Senate of twenty-three senators.
2. 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 “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.
3. The Court adopts a hands-off policy on this matter.
1. The Court found it injudicious to declare the petitioner as the rightful President of the Senate,
since the office depends exclusively upon the will of the majority of the senators, the rule of the Senate
about tenure of the President of that body being amenable at any time by that majority.
2. At any session hereafter held with thirteen or more senators, in order to avoid all controversy
arising from the divergence of opinion here about quorum and for the benefit of all concerned, the said
twelve senators who approved the resolutions herein involved could ratify all their acts and thereby
place them beyond the shadow of a doubt.
 
Hence, the Supreme Court dismissed the petition on the ground as it involved a political
question. The Supreme Court 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.

The second question depends upon these sub-questions. (1) Was the session of the so-called rump
Senate a continuation of the session validly assembled with twenty two Senators in the morning of February
21, 1949?; (2) Was there a quorum in that session? Mr. Justice Montemayor and Mr. Justice Reyes deem it
useless, for the present to pass on these questions once it is held, as they do, that the Court has no jurisdiction
over the case. What follows is the opinion of the other four on those four on those sub-questions.

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". (Missouri
Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There is a difference between 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. Mr. Justice Pablo
believes furthermore than 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.

In fine, the Court being confronted with the practical situation that of the twenty three senators who may
participate in the Senate deliberations in the days immediately after this decision, twelve senators will support
Senator Cuenco and, at most, eleven will side with Senator Avelino, it would be most injudicious to declare the
latter as the rightful President of the Senate, that office being essentially one that depends exclusively upon the
will of the majority of the senators, the rule of the Senate about tenure of the President of that body being
amenable at any time by that majority. And at any session hereafter held with thirteen or more senators, in
order to avoid all controversy arising from the divergence of opinion here about quorum and for the benefit of
all concerned, the said twelve senators who approved the resolutions herein involved could ratify all their acts
and thereby place them beyond the shadow of a doubt.

As already stated, the six justices hereinabove mentioned voted to dismiss the petition. Without costs.