Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-2821             March 4, 1949

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

Vicente J. Francisco for petitioner.

Office of the Solicitor General Felix Angelo Bautista, Ramon Diokno and Lorenzo M.
Tañada for respondent.
Teehankee, Fernando, Sunico & Rodrigo; Vera, Montesines & Navarro; Felixberto M.
Serrano and Vicente del Rosario as amici curiae.

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. Does the Supreme Court have jurisdiction over the subject-matter?

2. If it is has, were resolution Nos. 68 and 67 validly approved?

3. Whether or not the petitioner be granted to declare him the rightful President
of the Philippines Senate and oust respondent.

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.
1. 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.
2. 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, by a vote of 6 to 4, 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.

Supposing that the Court has jurisdiction, 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 may not, by leaving the Hall, prevent the other 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.

If the rump session was not a continuation of the morning session, was it validly
constituted? In other words, was there the majority required by the Constitution for the
transaction of the business of the Senate? Justice Paras, Feria, Pablo and Bengzon say
there was, firstly because 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 twelve 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". (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, all the four justice agree that 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.