A lawyer-blogger’s view on the quo warranto petition vs Sereno

A lawyer-friend who goes by the name of “saxnviolins” in my blog sent me a helpful brief on the petition for quo warranto filed before the Supreme Court by Solicitor General Jose Calida to oust Chief Justice Maria Lourdes A. Sereno.

Saxnviolins said had he been invited to be amicus curiae (friend of the Court) on quo warranto petition, he would have submitted the following opinion:

The petition for quo warrranto seeks the ouster of Professor Maria Lourdes Sereno for being disqualified from appointment to the Supreme Court. In response to the anticipated issue of whether or not impeachment is the only means to remove a member of the Supreme Court, the petition states:

The petition for quo warranto against Respondent should be differentiated from the impeachment proceedings against her at the House of Representatives. The writ of quo warranto is being sought to question the validity of her appointment; in turn, the impeachment complaint accuses her of committing culpable violation of the Constitution and betrayal of public trust while in office. Stated differently, the petitioner is seeking her ouster from her office because she did not prove her integrity as an applicant for the position. The complainant in the impeachment proceedings wants her removed as the sitting Chief Justice for impeachable offenses. (Page 11, par. 31).

The petition seeks to distinguish between acts performed before the appointment (quo warranto) and acts performed after appointment (impeachment). There is no such distinction, however, in the text of the Constitution, which reads:

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Note that there is no time frame for the prohibited acts as basis for impeachment. So one may be impeached for said acts (treason, bribery and betrayal of public trust) even if the acts were committed prior to appointment.

If impeachment were to be limited to acts committed “while in office”, the Constitution would have so stated, like Section 248 of the Administrative Code of the 50s, which used the phrase “misconduct in office” (Arsenio Lacson v. Mariano Roque, Executive Secretary G.R. No. L-6225 – January 10, 1953). That phrase was also used in Section 60 of Batas Pambansa 337 (Francisco Lecaroz v. Hon. Jaime Ferrer G.R. No. 77918 – July 27, 1987).

Is there precedent for this interpretation? Yes. The case of Federal Judge Thomas Porteus, Jr. who was impeached for making false statements about his past to obtain the office of United States District Court Judge. Article IV of the Articles of Impeachment states:

In 1994, in connection with his nomination to be a judge of the United States District Court for the Eastern District of Louisiana, G. Thomas Porteous, Jr., knowingly made material false statements about his past to both the United States Senate and to the Federal Bureau of Investigation in order to obtain the office of United States District Court Judge.

Judge Porteus was impeached by a unanimous vote of 423 by the House, and removed by a vote of 90-6 by the Senate of the United States of America.

The petition also implies a distinction because this petition was filed “to question the validity of her appointment”, while impeachment is for the purpose of removing an impeachable officer for acts committed “while in office”. But what is the purpose of quo warranto proceedings? “The authorities are agreed that quo warranto is the remedy to try the right to an office or franchise and to oust the holder from its enjoyment…. (Flaviano Lota v. CA G.R. No. L-14803 -June 30, 1961.

The term oust means “to put out; to eject; to remove or deprive.” (Black’s Law Dictionary, 2nd Ed.) So the purpose of this petition is the same; to remove an occupant from office. But this occupant, as the Constitution states, is removable by impeachment.

It may be argued, as was written by Fr. Ranhilo Aquino, that the Constitution did not state that impeachment is the only means to remove impeachable officers. The reverend scholar fails to remember that the specific prevails over the general. The provisions on impeachment specify the power of Congress to remove specific officers. The provisions on quo warranto, however, confer a general power over all officials. The Constitutional provision, therefore, must prevail, not only because it is specific, but because the Rules of Court, are subordinate to the highest law of the land.

The Supreme Court, has in fact, declared that impeachment is the only means to remove impeachable officers, when it held:

The broad power of the New Constitution vests the respondent court [Sandiganbayan] with jurisdiction over “public officers and employees, including those in government-owned or controlled corporations.” There are exceptions, however, like constitutional officers, particularly those declared to be removed by impeachment. Section 2, Article XIII of the 1973 Constitution provides:

Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption.”

Thus, the above provision proscribes [prohibits] removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office, would be violative of the clear mandate of the fundamental law. (A.M. No. 88-4-5433 – pril 15, 1988).

The above case was interpreting the 1973 Constitution, which did not employ the term “only”, in stating that: “The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office….”

The petition points to the Rules of Court on the Presidential Electoral Tribunal, for the basis for the acquisition of jurisdiction by the Supreme Court over one of its own members, when it states:

Although the aforecited rules pertain to the President and Vice President, said rules may be applied by analogy. The Court recognizes the availability of quo warranto against an impeachable officer. Hence, Respondent cannot claim that as Chief Justice, she can only be removed by impeachment under Section 2, Article XI of the Constitution. (Page 11, par. 34).

That argument is below the dignity, of even a law student. It is elementary that jurisdiction is conferred by law (Maricris Dolot v. Hon. Ramon Paje G.R. No. 199199 – August 27, 2013). There is no country where jurisdiction is conferred “by analogy”. In the case of the presidential elections, the Constitution created the Presidential Electoral Tribunal, and conferred on it, power over “all contests relating to the election, returns, and qualifications of the President or Vice- President,” The Constitution also granted the Supreme Court, as Presidential Electoral Tribunal, the power to “promulgate its rules for the purpose”. (Article VII, Section 4).

The power to promulgate rules are only “for the purpose” of deciding “all contests relating to the election, returns, and qualifications of the President or Vice- President,” The Constitution does not confer on the Supreme Court the power to remove one of its own members. The purpose stated by the Constitution, is fatal to the argument of power by analogy.

The Rules cited by the Petition also declares what the PET’s implied powers are, as follows:

Rule 7. Express and implied powers. – The Tribunal shall exercise all powers expressly vested in it by the Constitution or by law, and such other powers as may be inherent, necessary or incidental thereto for the accomplishment of its purposes and functions. (R6)

Note that in the title of Rule 7, the Supreme Court declares that it has Express and implied powers. Then in the text of Rule 7, it states it is has “such other powers as may be inherent, necessary or incidental thereto for the accomplishment of its purposes and functions”, mirroring the purposes stated in the Constitution. So the implied powers stated in the title of Rule 7 are the inherent powers for the purpose of deciding ““all contests relating to the election, returns, and qualifications of the President or Vice- President,” That does not include the function of determining the validity of the appointment one of its members.

It is also axiomatic that what is expressed prevails over what is implied. The express declaration by the Constitution, and the Rules of the Presidential Electoral Tribunal, negate any inference of “power by analogy”.

More damning to the argument of “powers by analogy” is the enumeration of the inherent (implied) powers under Rule 8:

Rule 8. Inherent powers. – The Tribunal shall have the following inherent powers:

(a) Preserve and enforce in proceedings before it or before any of its Divisions or officials acting under its authority;

(b) Administer or cause to be administered oaths in any contest before it, and in any order matter where it may be necessary in the exercise of its powers;

(c) Compel the attendance of witnesses and production of evidence in any contest before it.

(d) Compel obedience to its decisions, resolutions, orders and processes;

(e) Control its processes and amend its decisions, resolutions or orders to make them conformable to law and justice;

(f) Authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original copy thereof, and to restore and supply deficiencies in its records and proceedings; and

(g) Promulgate its own rules of procedure and amend or revise the same (R7)

There is nothing there regarding the determination of the validity of the appointment of one of its own members. Expressio unius est exclusio alterius.. What is enumerated excludes that which is not enumerated.

Finally, the issue of appointments is a political question, left to the political branches of government. By political question here, we do not mean political in the street sense of “namumulitika”, signifying partisanship. By political question is meant the wisdom of making a choice – choosing between one candidate over the other (President and Congress – Commission on Appointments); choosing between going to war or not (Congress); or choosing between withdrawing from a treaty or not (President only).
The appointment of members of the Supreme Court is a political question, and that choice is left to the discretion of a political branch (Office of the President). Were the Supreme Court to invalidate the appointment, it would be supplanting its judgment for that of the President; a power it has no authority to wield. A political decision must be exercised by a political branch. It is for that reason that the framers of the Constitution conferred the power to determine whether the President made a wise choice or not, on another political branch (Congress).

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (Luego v. Civil Service Commission; G.R. NO. L-69137 – August 5, 1986)

Another reason for the lack of jurisdiction by the Supreme Court over this petition, is the fact that the Supreme Court has no power to try (determine) facts. It may rule on findings of fact of trial courts, amending, modifying or reversing them, in an appeal. But it has no power to make findings of fact in the first instance. The question of whether an appointee is qualified or not, is a factual question. In other quo warranto cases, the proceedings are commenced at tribunals with fact-finding power; either trial courts, or the COMELEC. In the case of impeachable officers, the Constitution confers the fact-finding power on the Senate.

The Supreme Court may only review the proceedings, when legal questions are concerned, such as the question of the legality of the subpoena duces tecum issued by the Senate (Enrile as President Officer) in the impeachment case of Renato Corona. The Supreme Court issued a TRO on the order of Senator Enrile.

The petition strains to confer on itself, a Constitutional issue by citing Funa v. Villar But Funa ruled on the Constitutional issue of what constitutes a “reappointment”. It was not an issue of qualifications of the appointee. The Supreme Court held:

A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment to the position of Chairman for the unexpired portion of the term of the departing chairman. …….

The appointment of then Commissioner Reynaldo A. Villar to the position of Chairman of the Commission on Audit to replace Guillermo N. Carague, whose term of office as such chairman has expired, is hereby declared UNCONSTITUTIONAL ……

The petition next cites the case of Nacionalista Party v. De Vera. That case ruled on the Constitutional issue of whether or not the promotion to Chairman of a sitting COA commissioner, is a “reappointment”, which is prohibited by the Constitution.

Neither of the above cases questioned the qualifications of the appointee. Here, there is no Constitutional issue being presented. The substantive basis of the petition questions the qualifications of the appointee.

Professor Sereno taught full-time, and it is difficult to find a retired RTC judge who remembers her appearance in court. As a professor, she did not display the intellectual heft of Justice Serafin Cuevas, Justice Vicente Mendoza, or Professor Haydee Yorac. I believe, therefore, that there were candidates better qualified than her. But that belief must yield to my fealty to the Constitution; even if the incidental beneficiary is a minimally qualified appointee.

The Republic has survived Ferdinand Marcos, Gloria Arroyo, and Benigno Aquino III; all Presidents, with almost limitless power. I am certain that it can survive the term of an unqualified Chief Justice, especially because the Court, en banc, can effectively check her actions. But the Republic cannot survive the erosion of Constitutional boundaries. This shortcut will yield greater mischief than the good that irregular removal seeks to achieve. One can only point to the mischief wrought by the removal of Joseph Estrada, for the then, seeming good of ascension by Gloria Arroyo. That disaster was also occasioned by a Court with good intentions, but with no fealty to the Constitution.

For the above reasons, it is respectfully prayed that the petition for quo warranto be dismissed for lack of jurisdiction.