JOSE AVELINO, petitioner, vs. MARIANO J. CUENCO, respondent.

No. L-2821. March 4, 1949

Facts:
 When Senator Lorenzo M. Tanada announced and reserved in open session of the Senate that
he would make his one-hour privilege, it was known that formal charges would be filed against
Senate President and petitioner Jose Avelino.
 Hours before opening of the session, Senators Tanada and Prospero Sanidad registered in the
Office of the Secretary of the Senate a resolution in which charges were preferred against the
petitioner.
 Although a sufficient number of senators to constitute a quorum were at the Senate session hall
before the scheduled time for the session to begin and in spite of the fact that petitioner was
already in his office, petitioner deliberately delayed his appearance at the session hall.
 When finally petitioner ascended the rostrum, he did not immediately open the session but
instead requested from the Secretary a copy of the resolution and read it slowly and then called
and conferred with his followers, Senators Francisco and Tirona.
 When the meeting was finally called to order and all 22 senators were present (Senator Confesor
was in the US and Senator Sotto was seriously ill and confined in a hospital), there was a
premeditated plan and conspiracy of petitioner and his followers to make use of all sorts of
dilatory tactics to prevent Senator Tanada from delivering his privilege speech on the charges
filed against petitioner.
 Senator Tanada repeatedly took the floor to claim his right to deliver his 1 hour privilege speech
in support of the charges against petitioner, but the latter, then presiding, continually ignored him
and announced that he would order the arrest of any senator who would speak without being
previously recognized by him.
 Afterwards, Senator Pablo Angeles David moved for the adjournment of the session but Senator
Sanidad registered his opposition and when David reiterated his motion for adjournment and
Sanidad again reiterated his opposition, suddenly petitioner abandoned the Chair and hurriedly
walked out of the session hall with his 9 followers.
 When the remaining senators continued the session abandoned by petitioner, Senator Melecio
Arranza, as senate pro-tempore took the Chair and proceeded with the session.
 Arranz then suggested that respondent, Mariano Cuenco, be designated to preside over the
session.
 Senator Tanada then after being recognized by the Chair who was finally able to deliver his
privilege speech, move for the immediate consideration and approval of Resolution No. 68 on
charges against petitioner Avelino and it was unanimously approved.
 Senator Sanidad then introduced Resolution No. 67 declaring vacant the position of the President
of the Senate and designating the Honorable Mariano Jesus Cuenco Acting President of the
Senate.
 Resolution was unanimously approved and respondent Cuenco immediately took his office.
 The next day, the President of the Philippines recognized the respondent as acting president of
the Philippine Senate.
 Petitioner then filed a petition asking the Court to declare him the rightful President of the
Philippine Senate and oust respondent.

Issues:
1) Whether or not the Supreme Court has jurisdiction over the subject-matter
2) Whether or not respondent has been legally elected (supposing SC has jurisdiction)

Held*:
1) No. 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 is a power not be
interfered with, nor taken over, by the judiciary. The petitioner’s remedy lies in the Senate
Session Hall, not the Supreme Court. Furthermore, the recognition accorded by the Chief
 Executive to the respondent makes it advisable, more than ever, to adopt the hands-off policy
wisely enunciated by this Court in matters of similar nature.
2) Yes. If the session under Senator Arranz was a continuation of the morning session, the
resolutions are validly constituted. 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. In this case, supposing the
Court has jurisdiction, the resolutions were validly constituted because the minutes 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.

*Resolution by a vote of 6 justices against 4 to deny the petition

Concurring and Dissenting: Moran, C.J.

1) Yes, the Court has jurisdiction over the case. The issue involves a constitutional question which
cannot be validly decided either by the Cuenco group or by the Avelino group separately, for, if
the Cuenco group has no quorum, the Avelino group has decidedly less. The anomalous
situation will continue while the conflict remains unsettled, and the conflict will remain unsettled
while this Court refuses to intervene.
2) No, respondent Cuenco has not been legally elected as acting President of the Senate. Although
petitioner's adjournment of the session was illegal, such illegality cannot be countered with an
other illegality. The session wherein respondent was elected as acting President of the Senate
was illegal because when Senator Mabanag raised the question of a quorum and the roll was
called, only twelve senators were present. In the Philippines there are twenty four sena tors, and
therefore, the quorum must be thirteen.

Dissenting: Perfecto, J.
1.) Yes. The questions raised in the petition, although political in nature, are justiciable because they
involve the enforcement of legal precepts, such as the provisions of the Constitution and of the
rules of the Senate. Because the legal questions raised in this case cannot be decided without
deciding also what is the truth on the controversial facts, by the very nature of things, the jurisdic
tion of the Supreme Court reached the settlement of the conflicting claims as to the real events. It
is true that the Senate is the only body that can determine from time to time who is and shall be
its President, but when the legal questions are raised in a litigation like in the present case, the
proper court has the function, the province and the responsibility to decide them. To shirk that
responsibility is to commit a dereliction of official duty. Courts of justice have jurisdiction and the
Supreme Court is the final arbiter.
2.) No. The adjournment declared by petitioner was arbitrary and illegal, thus, the resolution
declaring him acting president of the Senate was illegal. After petitioner and the 9 Senators
supporting him had walked out from the session hall, the Senate could not continue holding
session and transact business for lack of quorum. Furthermore, the majority in Article 6, Section
16, par. 2 (formerly sec. 10 sub-sec. 2 article 6) cannot be other than the majority of the actual
members of the Senate. The Senate was and actually is composed of 24 Senators, and a
majority of them cannot be less than thirteen.

Notes:
 Half of the membership (13 in the Senate and 153 in the House of Representatives) is needed to
muster a quorum. If someone contests the lack of quorum, a roll call shall be done, and if there
is indeed less than a majority of members present, the meeting shall be adjourned.
 4 members of the court believe there was no quorum, 4 believe there was quorum and 2
members declined to render their opinion because of refusal to assume jurisdiction and 1
member is absent from the PH
  Perfecto: The actions of the President of the Philippines cannot deprive the Supreme Court of the
jurisdiction vested in it by the Constitution. If the Congress of the Philippines, in which the
Legislative power is vested, cannot deprive the Supreme Court of its jurisdiction to decide
questions of law, much less can the President of the Philippines, on whom is vested the
Executive power, which in the philosophical and political hierarchy is of subordinate category to
that of the Legislative power, do so. The power to enact laws is higher than the power to
execute them.
 Resolution Ordering Investigation of Charges Filed Against Senate President Jose Avelino:
o Avelino delivered a speech wherein he advocated the protection or at least tolerance of
graft and corruption in the government, and placed the interest of grafters and corrupt
officials as supreme and above the welfare of the people
o Avelino defended abuses perpetrated by the Liberal Party men wherein they were being
investigated by Pres. Quirino on surplus property scandal and immigration quota racket in
which he says it is a desecration to the memory of late Pres. Manuel Roxas
o In his speech he justified that it was right for Liberals to commit frauds in the elections to
even up with frauds committed by the opposition (Nacionalistas)
o In first publication of said speech in the Manila Chronicle issue, Avelino asserted that said
report was a maliciously distorted presentation of his remarks and Manila Chronicle
stating in order to establish truth, Avelino should file a libel suit against them but Avelino
did not carry out his threat
o There were 4 checks totaling Php 566,405.60 which came into possession and control of
Avelino after he had assumed his office
o Avelino abused prerogatives of his office by seeking in several instances to interfere with
and influence some judges in deciding cases pending before them
 illegal adjournment and the walk out of the petitioner and his supporters from the session hall had
the purpose of defeating or, at least, delaying, action on the proposed investigation of the charges
against petitioner and of his impeding ouster, by the decisive votes of respondent's group of
Senators.
 "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." (Sec. 10, Sub-sec. 2 Article VI.) - Article 6,
Section 16, par. 2 in the 1987 Consti

V2:
 Knowing that Senator Lorenzo Tanada will file a resolution targeted against him, Senate
President and petitioner Jose Avelino and his partisans used dilatory tactics to prevent Senator
Tanada from delivering his privilege speech.
 Before Senator Tanada could be recognized to speak, one of the Avelino’s followers moved for
the adjournment of the session. Opposition to it was raised, and a subsequent move to submit the
motion to a vote was requested.
 No voting happened. Avelino just banged the gavel, declared the session adjourned, and walked
out of the session hall. He was followed by 9 senators. 12 remained who decided to proceed with
the session.
 Senator Tanada delivered his privilege speech, and Resolution No. 68 was submitted and
unanimously approved.
 Senator Prospero Sanidad introduced Resolution No 67, declaring the the Senate President
position vacant and designating Mariano Jesus Cuenco Acting Senate President. It was also
unanimously approved.
 The next day the President of the Philippines recognized respondent as the acting president of
the Philippine Senate.
 Petitioner filed a quo warranto petition asking the Court to declare him the rightful President of the
Philippine Senate and oust respondent.
 By vote of 6-4, the Supreme Court denied the petition.
 Saying the Court has no jurisdiction over the case as the selection of its officers depends on the
matter.