EXPLAINER: How SC majority tried to close all doors for ousted Sereno

Lian Buan

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EXPLAINER: How SC majority tried to close all doors for ousted Sereno
The 153-page ponencia of Associate Justice Noel Tijam effectively assures Sereno's ouster – even if Congress tries to intervene

MANILA, Philippines – The Supreme Court (SC) majority ousted their chief justice Maria Lourdes Sereno, and did so in a way that tries to close all doors to her reclaiming the position.

In the ponencia written by Associate Justice Noel Tijam, and concurred in by 7 other justices, the SC majority said that while Congress had parallel jurisdiction over Sereno’s ouster, the High Court is in a better position to decide their peer’s fate.

Constitutional law experts see a window for Congress – either the House of Representatives or the Senate – to intervene, but even if that happens, the SC majority had already made findings that she committed an impeachable offense.

There is no way out for Sereno in this landmark decision that dissenter Associate Justice Marvic Leonen called a “legal abomination”.

Congress jurisdiction

This is the basic question: is the Constitution clear that Sereno as an impeachable officer can be removed only by impeachment?

Section 2, Article XI of the Constitution says: 

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. 

Tijam’s ponencia argued that the word “may” means there could be an “alternative.”

“We have consistently held that the term ‘may’ is indicative of a mere possibility, an opportunity or an option. The grantee of that opportunity is vested with a right or faculty which he has the option to exercise. An option to remove by impeachment admits of an alternative mode of effecting the removal,” the main decision said.

Acknowledging that impeachment is in fact what is stated on the Constitution, Tijam said that a quo warranto procedure could exist simultaneously with an impeachment process.

“The Court’s exercise of its jurisdiction over quo warranto proceedings does not preclude Congress from enforcing its own prerogative of determining probable cause for impeachment, to craft and transmit the Articles of Impeachment, nor will it preclude [the] Senate from exercising its constitutionally committed power of impeachment,” the decision said. (READ: SC: Sereno can be disbarred for sub judice)

This raises the question: can the House now resume the process, and in the event of an impeachment, can the Senate still go on with trial?

In an earlier interview, constitutional law professor Dan Gatmaytan said it is unlikely, but possible. 

“Independently of what the Court did, Congress can say, wait a minute this is our job, we’re going to impeach her and try her, and they might have a different result,” Gatmaytan said. (READ: After SC ousts her, what can Sereno do now?)

Quo warranto vs impeachment

The SC decision does not bar Congress from proceeding, but it makes a strong case that the quo warranto is superior to an impeachment in Sereno’s case.

“The impeachment tribunal cannot be expected to rule on the validity or constitutionality of the Chief Justice’s appointment, nor can their ruling be of jurisprudential binding effect to this Court. To authorize Congress to rule on public officials’ eligibility would disturb the system of checks and balances as it would dilute the judicial power of courts, upon which jurisdiction is exclusively vested to rule on actions for quo warranto,” the decision said.

And if Congress does in fact decide to proceed to trial, House prosecutors are already armed with SC findings that Sereno committed an impeachable offense.

There were two aspects in the petition filed by Solicitor General Jose Calida:

  1. Sereno did not file some of her Statements of Assets, Liabilities, and Net Worth or SALNs, therefore she violated the Constitution and the law
  2. Sereno did not submit these SALNs to the Judicial and Bar Council (JBC) as required, therefore she was never qualified to be Chief Justice

Clearly, the SC majority decided that non-submission was equivalent to lack of integrity which invalidates Sereno’s appointment.

But the SC went a step further and determined whether she really filed her SALNs. Sereno’s main argument, citing Taxpayer vs Doblada, is that the non-existence of SALNs on file is not enough evidence to say that the SALNs were never filed.

The SC majority said that in a quo warranto proceeding, the burden of proof is actually on the accused. So when Calida presented certifications from the University of the Philippines (UP) that they had no records of some of her SALNs, the burden of proof shifted to Sereno to prove otherwise.

“However, what respondent merely offered in response to the Republic’s evidence is an unsubstantiated claim that she had filed all her SALNs. Without admissible documentary and testimonial support, this bare and uncorroborated assertion scarcely overcomes the Republic’s case,” the decision said.

The decision said clearly, for potential House prosecutors to use, “Such failure to file and to submit the SALNs to the JBC, is a clear violation not only of the JBC rules, but also of the law and the Constitution.”

Senior Associate Justice Antonio Carpio is one of the 6 dissenters. He said that the quo warranto petition should be dismissed for it is impeachment that is the right process to remove a chief justice. But he also agreed that Sereno violated the Constitution in not filing these SALNs.

Carpio said in his dissenting opinion: “The repeated non-filing of SALN therefore constitutes culpable violation of the Constitution and betrayal of public trust, which are grounds for impeachment under the Constitution.”

Let the impeachment proceed

People will ask: if justices believed she committed an impeachable offense, then why not just let the impeachment trial proceed?

It’s also Sereno’s challenge. “Hayaan niyo pong ang impeachment trial sa Senado ang maghusga kung ako ay bababa o hindi. Makailang ulit ko namang sinabi na kapag ako ay na-convict ng Senado, matapos ang isang trial ay bababa ako, walang problema ‘yan,” she said at her press conference on Friday, May 11, after the vote.

(Let the impeachment trial at the Senate decide if I should step down or not. I’ve said it repeatedly that if I’m convicted after a trial, I will step down, I don’t have a problem with that.)

There’s no clear intent from either the House or Senate to intervene at this point, but if they do, Gatmaytan said: “That is what you call a crisis, it wouldn’t look good but it wouldn’t be the first time because lately we’ve been seeing a lot of that.”

Gatmaytan said it was upon the SC to avoid a constitutional crisis by dismissing the quo warranto petition.

But the SC majority said they would be abandoning their duty if they did not carry on with the quo warranto.

“Neither [is] the possibility of the occurrence of a constitutional crisis a reason for the Court to abandon its positive constitutional duty to take cognizance of a case over which it enjoys jurisdiction and is not otherwise legally disqualified,” the main decision said.

Because quo warranto is unprecedented, Tijam’s ponencia clarified the guidelines to be used from now on:

  1. It is for an ineligible public official whose questionable acts were done before appointment or election
  2. If the questionable acts happened in the incumbency of a validly appointed/elected term, quo warranto will not apply

The SC made history and created new rules that are now part of the laws of the land.

Dissenter Associate Justice Benjamin Caguioa had biting words for the landmark decision: “This case is nothing more than cheap trickery couched as some gaudy innovation.” 

As for Sereno, she appears to be in fighting form. Where she plans to take her battle, the country and its institutions remains to be seen. – Rappler.com

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.