Political Law

Jose Avelino vs Mariano Cuenco

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G.R. No. L-2821 – 83 Phil. 17 – Political Law – The Legislative Department – Election of the Senate President

On February 18, 1949, Senator Lorenzo Tañada 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 Tañada, 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 Tañada from delivering his piece. Motions being raised by Tañada et al were being blocked by Avelino and his allies and they even ruled Tañada and Sanidad, among others, as being out of order. Avelino’s 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 allies. 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 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. Tañada 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 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 ½ + 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 majority’s 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 Cuenco’s 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 Avelino’s 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 majority’s 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.

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