04/06/2026
Why Avelino vs. Cuenco (G.R. No. L-2821, March 4, 1949) is invalid basis to declare a Senate quorum based on 12 senators
Facts: On February 21, 1949, then Senator Lorenzo Tañada was scheduled to provide a privileged speech to expose alleged corruption by then Senate President Jose Avelino, the petitioner in the case. 22 Senators were present during the Senate session, with 2 others absent (Senator Tomas Confessor was in the U.S.; Senator Vicente Sotto was confined in a hospital). After employing several delaying tactics to prevent Senator Tañada's privileged speech, Senator Avelino adjourned the session over the objection of some Senators, then proceeded to walk out with 9 other Senators. Immediately after, the remaining 12 senators allowed Senator Tañada to give his privileged speech, and unanimously approved a resolution declaring the position of Senate President vacant, and designating Senator Cuenco as Acting President of the Senate.
Senator Avelino filed a petition for quo warranto with the Supreme Court (SC) to recognize him as the true Senate President, and to oust Senator Cuenco, primarily on the ground that the remaining 12 senators did not constitute a quorum to legally oust him and elect a new Senate President.
The SC (then composed of 11 justices) denied the petition, voting 6-4, with 1 no participation.
1. The ruling in Avelino that 12 senators constituted a valid quorum because of the absence of 2 senators was an OBITER DICTUM. It does not set an official precedent because it was only an opinion that was not strictly necessary to resolve the case. The key ruling of the SC in Avelino was that the SC had no jurisdiction to resolve the petition because it involved a “political question,” holding that election of Senate officers is the exclusive domain of the Senators.
Parenthetically, the "political question" doctrine should not bar the SC from intervening in the Senate leadership crisis today, because unlike in 1949, the SC has expanded certiorari jurisdiction under Article VIII, Section 1 of the 1987 Constitution, which gives it the duty and power "...to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” This has significantly diluted the political question doctrine.
2. The “quorum of 12” ruling is not even the majority opinion of the SC. While 6 justices voted to deny the petition, only 4 justices agreed with the proposition that 12 senators constituted a valid quorum. The other 2 justices that voted to deny the petition held that it was not necessary to rule on the quorum issue because the SC had no jurisdiction. The 4 justices that dissented were unanimous in saying that 13 senators is required for a quorum. Accordingly, the actual tally of the SC in Avelino vs. Cuenco on the quorum issue was 4-4. In short, not binding.
3. The “quorum of 12” ruling was not even the main “obiter dictum” ruling. It was that a quorum existed because there was a quorum when the Senate session began, and the 12 remaining Senators merely continued the session, to wit: “Supposing that the Court has jurisdiction, there is unanimity (of the 4 justices) 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 x x x.”
For the Senate session on June 3, 2026 where Senator Sherwin Gatchalian was designated Senate President Pro Tempore and Acting Senate President, there was no quorum of at least 13 senators from the start.
4. The “quorum of 12” ruling in Avelino v. Cuenco where 4 justices opined that the phrase in Article VI, Section 10(2) of the 1935 Constitution [now Article VI, Section 16(1) of the 1987 Constitution] that “[a] majority of each house shall constitute a quorum to do business,” does not mean “a majority of ALL members” is no longer tenable. This is in view of Rule II, Section 2 of the current Rules of the Senate which expressly provides that: “The officers of the Senate shall be elected by the majority vote of ALL ITS MEMBERS.”
Under Article VI, Section 16(3) of the 1987 Philippine Constitution, the Senate has the explicit constitutional power to promulgate its own rules on its proceedings (including the election of its officers), and these rules are controlling and binding. In this connection, the SC has repeatedly held that this provision grants the Senate full discretionary authority over its rules, which are generally exempt from judicial interference.
In Linconn U. Ong v. Senate of the Philippines (G.R. No. 257401, March 28, 2023), the Court ruled: “As a rule, the Legislature is given a wide latitude to enact its own rules in view of Section 16(3), Article VI of the 1987 Constitution. In Spouses Dela Paz (Ret.) v. Senate Committee on Foreign Relations (598 Phil. 981, 2009), the Court said: ‘This provision has been traditionally construed as a grant of full discretionary authority to the Houses of Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power is generally exempt from judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process.’
There is nothing arbitrary or unconstitutional with Rule II, Section 2 of the Rules of the Senate, which is therefore binding even on the SC.
