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Senate vs. Ermita , GR 169777, April 20, 2006

FACTS:This is a petition for certiorari and prohibition proffer that the Presidenthas abused power by issuing E.O. 464 Ensuring Observance of thePrinciples of Separation of Powers, Adherence to the Rule on ExecutivePrivilege and Respect for the Rights of Public Officials Appearing inLegislative Inquiries in Aid of Legislation Under the Constitution, and forOther Purposes. Petitioners pray for its declaration as null and void for

being unconstitutional.In the exercise of its legislat ive power, the Senate of the Philippines,through its various Senate Committees, conducts inquiries orinvestigations in aid of legislation which call for, inter alia, the attendanceof officials and employees of the executive department, bureaus, andoffices including those employed in Government Owned and ControlledCorporations, the Armed Forces of the Philippines (AFP), and thePhilippine National Police (PNP).The Committee of the Senate issued invitations to various officials of theExecutive Department for them to appear as resource speakers in a publichearing on the railway project, others on the issues of massive electionfraud in the Philippine elections, wire tapping, and the role of military inthe so-called Gloriagate Scandal.Said officials were not able to attend due to lack of consent from thePresident as provided by E.O. 464, Section 3 which requires all the publicofficials enumerated in Section 2(b) to secure the consent of the Presidentprior to appearing before either house of Congress.

ISSUE:Is Section 3 of E.O. 464, which requires all the public officials, enumeratedin Section 2(b) to secure the consent of the President prior to appearing

before either house of Congress, valid and constitutional?

RULING:No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered

by the executive privilege. The doctrine of executive privilege is premised

on the fact that certain information must, as a matter of necessity, be keptconfidential in pursuit of the public interest. The privilege being, bydefinition, an exemption from the obligation to disclose information, inthis case to Congress, the necessity must be of such high degree as tooutweigh the public interest in enforcing that obligation in a particularcase.Congress undoubtedly has a right to information from the executive

branch whenever it is sought in aid of legislation. If the executive branchwithholds such information on the ground that it is privileged, it must soassert it and state the reason therefor and why it must be respected.The infirm provisions of E.O. 464, however, allow the executive branch toevade congressional requests for information without need of clearlyasserting a right to do so and/or proffering its reasons therefor. By themere expedient of invoking said provisions, the power of Congress toconduct inquiries in aid of legislation is frustrated.

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 senatefloor to formulate charges against the then Senate President Avelino. Herequest to do so on the next session (21 Feb 1949). On the next sessionhowever, Avelino delayed the opening of the session for about two hours.Upon insistent demand by Taada, Cuenco and Sanidad and others,

Avelino was forced to open session. He however, together with his alliesinitiated all dilatory and delaying tactics to forestall Taada from deliveringhis piece. Motions being raised by Taada et al were being blocked by

Avelino and his allies and they even ruled Taada and Sanidad, amongothers, as being out of order. Avelinos camp then moved to adjourn thesession due to the disorder. Sanidad however countered and theyrequested the said adjournment to be placed in voting. Avelino just

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banged his gavel and he hurriedly left his chair and he was immediatelyfollowed by his followers. Senator Cabili then stood up, and asked that itbe made of record it was so made that the deliberate abandonmentof the Chair by the Avelino, made it incumbent upon Senate President Pro-

tempore Arranz and the remaining members of the Senate to continue thesession in order not to paralyze the functions of the Senate. Tanada wassubsequently recognized to deliver his speech. Later, Arranz yielded toSanidads Resolution (No. 68) that Cuenco be elected as the Senate

President. This was unanimously approved and was even recognized bythe President of the Philippines the following day. Cuenco took his oath ofoffice thereafter. Avelino then filed a quo warranto proceeding before theSC 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 case. This is in view of the separation of powers, the political natureof the controversy and the constitutional grant to the Senate of the powerto elect its own president, which power should not be interfered with, nortaken over, by the judiciary. The SC should abstain in this case becausethe selection of the presiding officer affects only the Senators themselveswho are at liberty at any time to choose their officers, change or reinstatethem. Anyway, if, as the petition must imply to be acceptable, the majorityof the Senators want petitioner to preside, his remedy lies in the SenateSession Hall not in the Supreme Court.

Supposed the SC can take cognizance of the case, what will bethe resolution?

There is unanimity in the view that the session under Senator Arranz wasa 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 etal) twelve senators from passing a resolution that met with theirunanimous 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 hospitalwhile Sen. Confesor was in the USA.

Is the rump session (presided by Cuenco) a continuation of themorning session (presided by Avelino)? Are there two sessions inone day? Was there a quorum constituting such session?

The second session is a continuation of the morning session as evidencedby the minutes entered into the journal. There were 23 senatorsconsidered to be in session that time (including Soto, excluding Confesor).Hence, twelve senators constitute a majority of the Senate of twenty threesenators. When the Constitution declares that a majority of each Houseshall 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 amajority of the House, the latter requiring less number than the first.

Therefore an absolute majority (12) of all the members of the Senate lessone (23), constitutes constitutional majority of the Senate for the purposeof a quorum. Furthermore, even if the twelve did not constitute a quorum,they could have ordered the arrest of one, at least, of the absentmembers; if one had been so arrested, there would be no doubt Quorumthen, and Senator Cuenco would have been elected just the sameinasmuch as there would be eleven for Cuenco, one against and oneabstained.

MOTION FOR RECONSIDERATION (filed by Avelino on March 14,

1949)

Avelino and his group (11 senators in all) insist that the SC takecognizance of the case and that they are willing to bind themselves to thedecision of the SC whether it be right or wrong. Avelino contends that

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there is no constitutional quorum when Cuenco was elected president.There are 24 senators in all. Two are absentee senators; one beingconfined and the other abroad but this does not change the number ofsenators nor does it change the majority which if mathematically

construed is + 1; in this case 12 (half of 24) plus 1 or 13 NOT 12.There being only 12 senators when Cuenco was elected unanimously therewas no quorum.

The Supreme Court, by a vote of seven resolved to assume jurisdictionover the case in the light of subsequent events which justify itsintervention. The Chief Justice agrees with the result of the majoritys

pronouncement on the quorum upon the ground that, under the peculiarcircumstances of the case, the constitutional requirement in that regardhas become a mere formalism, it appearing from the evidence that anynew session with a quorum would result in Cuencos election as Senate

President, and that the Cuenco group, taking cue from the dissentingopinions, has been trying to satisfy such formalism by issuing compulsoryprocesses against senators of the Avelino group, but to no avail, becauseof the Avelinos persistent efforts to block all avenues to constitutionalprocesses. For this reason, the SC believes that the Cuenco group hasdone enough to satisfy the requirements of the Constitution and that themajoritys ruling is in conformity with substantial justice and with the

requirements of public interest. Therefore Cuenco has been legally electedas 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 dobusiness 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 quorumto do business, shows the intention of the framers of the Constitutionto base the majority, not on the number fixed or provided for inthe Constitution, but on actual members or incumbents, and this

must be limited to actual members who are not incapacitated todischarge their duties by reason of death, incapacity, or absencefrom the jurisdiction of the house or for other causes which makeattendance of the member concerned impossible, even through

coercive process which each house is empowered to issue tocompel its members to attend the session in order to constitute aquorum. That the amendment was intentional or made for somepurpose, 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 oftwo-thirds of the members of the National Assembly to expel a memberwas amended by Sec. 10 (3) Article VI of the present Constitution, so asto require the concurrence of two-thirds of all the members of eachHouse. Therefore, as Senator Confesor was in the United States andabsent from the jurisdiction of the Senate, the actual members of theSenate at its session of February 21, 1949, were twenty-three (23) andtherefore 12 constituted a majority.