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Quo vadis quo warranto?

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Jemy Gatdula

Being Right

law

It’s interesting that the very people who keep screaming “protect the Supreme Court’s independence” can’t stand it when the Court decides to act independently from what they want.

Take the quo warranto proceedings against Supreme Court Chief Justice Maria Lourdes Sereno.

Now, perhaps it’s the sign of the times that a disclaimer is necessary: this article will not dwell on the propriety of removing Sereno from office.

Instead, this article discusses whether or not a quo warranto proceeding is a proper mode of removal for a sitting Justice of the Supreme Court.

It is this column’s considered contention that the answer is yes.

Article XI.2 of the Constitution provides: “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.”

One reason why some insist in interpreting Article XI.2 as an exclusive provision, i.e., that the officials enumerated above can only be removed by impeachment is — with all due respect — Fr. Joaquin Bernas, the noted constitutionalist and member of the 1986 Constitutional Commission. In his 2009 book on constitutional law, he declared that “members of the Supreme Court are removable only by impeachment.” His cited basis was the foregoing Article XI.2.

Yet, it can also be argued that said Art. XI.2 merely mentions one mode of removal, hence “may be removed from office, on impeachment.” Note the presence of “may” (in the 1935 and 1973 constitutions it was “shall”) but the absence of the word “only.” The language thereof doesn’t preclude other modes of removal.

A practical and textual reading of the Constitution, in its entirety, backs up this interpretation.

Art. VIII.11 states that a justice stays in office “during good behavior until they reached the age of 70 years or become incapacitated to discharge the duties of their office.” That provision alone suggests three different and other causes and modes of separation from office.

Then there’s Art. VIII.7.3 (“A member of the Judiciary must be a person of proven competence, integrity, probity, and independence”), which can be interpreted as a continuing requirement.

To insist in the impeachment only argument is to make the foregoing Art. VIII provisions inutile.

Even the President can be removed by modes other than impeachment: Art. VII is replete with alternative modes, including the Cabinet getting rid of the president by way of Art. VII.11:

“Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

If memory serves, certain provisions (or “variations”) of Art. VII.11 have been applied (or at least attempted) with then presidents Joseph Estrada and Gloria Arroyo.

The argument is made that removal of a justice by quo warranto is not in the Constitution. But also not in the Constitution is a justice’s resignation or death. Yet both are commonsensically proper grounds for separation from office.

Quo warranto can be arguably considered because it speaks to the manner of obtaining the office. If the president, to illustrate, does not follow proper process or qualifications in appointing a justice, impeachment cannot be the proper method of removal as the questionable acts were done not by the office holder but by the appointer.

Fr. Ranhilio Aquino, dean of the San Beda Graduate School of Law, in an article for another publication, give another example: “The Constitution requires that the Commission on Elections chair, an impeachable official, be a Member of the Bar. If the appointee faked his membership, or faked his credentials and was nevertheless appointed, is it not obvious that quo warranto would lie to declare that his appointment was wrongful and that therefore he would have no right to occupy office?”

Certain legal luminaries argue that quo warranto cannot be filed after one year from assumption of office. But what the relevant provision, Rule of Court No. 66, Section 11, actually says is that quo warranto is improper “unless the same be commenced within one (1) year after the cause of such ouster”. In the present case, the cause of ouster in this case was the discovery of missing SALNs, which happened less than a year ago.

Finally, note that the Constitution contains no express prohibition on quo warranto vis-à-vis Supreme Court justices.

Cynics have proffered the argument that allowing quo warranto proceedings on Article XI.2 officials would result in only paragons being appointed or elected to high office.

To that, I reply: I certainly hope so.

 

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

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