Avelino vs Cuenco on January 4, 2012 Political Law Election of Members/Quorum/Adjournment/Minutes On 18 Feb 1949, Senator Taada invoked his right

to speak on the senate floor to f ormulate charges against the then Senate President Avelino. He request to do so on the next session (21 Feb 1949). On the next session however, Avelino delayed the opening of the session for about two hours. Upon insistent demand by Taada, C uenco and Sanidad and others, Avelino was forced to open session. He however, to gether 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 bl ocked by Avelino and his allies and they even ruled Taada and Sanidad, among othe rs, as being out of order. Avelino s camp then moved to adjourn the session due t o the disorder. Sanidad however countered and they requested the said adjournmen t to be placed in voting. Avelino just banged his gavel and he hurriedly left hi s chair and he was immediately followed by his followers. Senator Cabili then st ood up, and asked that it be made of record it was so made that the deliberate a bandonment of the Chair by the Avelino, made it incumbent upon Senate President Pro-tempore Arranz and the remaining members of the Senate to continue the sessi on in order not to paralyze the functions of the Senate. Tanada was subsequently recognized to deliver his speech. Later, Arranz yielded to Sanidad s Resolution ( No. 68) that Cuenco be elected as the Senate President. This was unanimously app roved 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 warran to 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: By a vote of 6 to 4, the SC held that they cannot take cognizance of the c ase. This is in view of the separation of powers, the political nature of the co ntroversy and the constitutional grant to the Senate of the power to elect its o wn 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 presi ding 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 pr eside, 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 conti nuation of the morning session and that a minority of ten senators (Avelino et a l) may not, by leaving the Hall, prevent the other (Cuenco et al) twelve senator s from passing a resolution that met with their unanimous endorsement. The answe r 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 cons tituting 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 ses sion that time (including Soto, excluding Confesor). Hence, twelve senators cons titute 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 . Ther e is a difference between a majority of all the members of the House and a majorit

y of the House , the latter requiring less number than the first. Therefore an abso lute majority (12) of all the members of the Senate less one (23), constitutes c onstitutional majority of the Senate for the purpose of a quorum. Furthermore, e ven if the twelve did not constitute a quorum, they could have ordered the arres t of one, at least, of the absent members; if one had been so arrested, there wo uld 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 abstaine d. 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 cha nge the number of senators nor does it change the majority which if mathematical ly construed is + 1; in this case 12 (half of 24) plus 1 or 13 NOT 12. There bei ng 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 c ase in the light of subsequent events which justify its intervention. The Chief Justice agrees with the result of the majority s pronouncement on the quorum upon the ground that, under the peculiar circumstances of the case, the constitutiona l requirement in that regard has become a mere formalism, it appearing from the evidence that any new session with a quorum would result in Cuenco s election as S enate President, and that the Cuenco group, taking cue from the dissenting opini ons, has been trying to satisfy such formalism by issuing compulsory processes a gainst senators of the Avelino group, but to no avail, because of the Avelino s pe rsistent efforts to block all avenues to constitutional processes. For this reas on, the SC believes that the Cuenco group has done enough to satisfy the require ments of the Constitution and that the majority s ruling is in conformity with sub stantial 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 inten tion 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 discharg e 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 i mpossible, 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. Tha t the amendment was intentional or made for some purpose, and not a mere oversig ht, 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 whic h required concurrence of two-thirds of the members of the National Assembly to e xpel 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 . T herefore, as Senator Confesor was in the United States and absent from the juris diction of the Senate, the actual members of the Senate at its session of Februa ry 21, 1949, were twenty-three (23) and therefore 12 constituted a majority.