Yesterday, Your Lawyer Says has given you a digest of the landmark case of Republic v. Sereno.

In a
153-page decision penned by Justice Tijam, it was lengthily explained why quo warranto is a remedy
allowed by law to oust an impeachable officer for disqualifications arising before her appointment.

Today, we tackle the equally enlightening and interesting dissent of Justice Marvic Leonen, this time,
in a question-and-answer format. Note that this is according to J. Leonen’s dissenting opinion, and
although it cited jurisprudence, following the supremacy of the Constitution.

Q: Why is granting a quo warranto petition unconstitutional against a si ing impeachable official
like the Chief Justice?

Quo warranto, as used in this case, will amount to a “removal” of an impeachable public officer.
The only constitutional way to remove an impeachable public officer is through impeachment.

Q: But the PET rules provide that the President and the Vice President, both impeachable officials,
may be removed by quo warranto as well. How do you reconcile this?

This is only an exception. It is true that a verified petition for quo warranto contesting the election of
the President or Vice-President on the ground of ineligibility or disloyalty to the Republic of the
Philippines may be filed by any registered voter who has voted in the election concerned within ten
days after the proclamation of the winner[i].

However, being the exception, this does not mean that it is applicable to all impeachable officials.
[yourlawyersays]

First, among the impeachable officers, the President and the Vice President are the only ones elected
by the public. The rest are appointed officials. The reason behind allowing quo warranto against the
President and the Vice President within ten days is that an impeachment proceeding is highly
politicized, and therefore, it may be more difficult to initiate proceedings against elective officials who
are members of the ruling political party in Congress. Therefore, a quo warranto may prosper which
may be heard by a non-political court.

Second, the process of presenting a protest against the President and Vice President is uniquely
provided by the Constitution: “The Supreme Court, si ing en banc, shall be the sole judge of all
contests relating to the election, returns, qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.” [ii] There is no such provision for members of the Court nor of
the Constitutional Commissions.

Third, we consider the vast difference in the qualifications required of each office.

“Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately preceding such election.

Section 3. There shall be a Vice-President who shall have the same qualifications and term of office
and be elected with and in the same manner as the President. He may be removed from office in the
same manner as the President.[iii]

The Constitution does not provide any other qualifications. Thus, any person who fulfills these
minimum requirements will be considered a candidate, and such qualifications are easily discernible
by the Court, and
 y
In contrast, Members of the Supreme Court and the Ombudsman must not only possess the minimum
requirements under the Constitution, but must also undergo a rigorous ve ing process by the Judicial
and Bar Council (JBC).

Under the Rules[iv], an applicant must submit an application to the JBC within 90 days from a
vacancy. The applications are then thoroughly examined by the Council, which looks into the
candidates’ “educational preparation, relevant experience, work performance and performance
ratings.” The Council then deliberates and conducts a final voting on nominations.

Members of Constitutional Commissions, on the other hand, are appointed with the consent of the
Commission on Appointments[v]

Therefore, any judicial re-evaluation is not warranted considering the already stringent requirements
put forth by the Constitution as already evaluated and screened by the JBC and the Commission on
Appointments, as the case may be.

[READ: Republic v. Sereno – Case Digest]

Q: The Constitution provides that the SC has the power of supervision over JBC. Therefore, it can
review decisions by the JBC, perhaps via quo warranto. Is this stand correct?

No. The stand is not correct. [yourlawyersays]

The Judicial and Bar Council has the sole constitutional mandate of preparing a short list of nominees
for the President. Once a candidate has undergone the rigorous application process of the JBC, the
candidate is considered qualified for the position. To hold otherwise would be to render inutile the
constitutional mandates of the JBC. The removal of an impeachable officer was meant to be difficult
and cumbersome since it will only be on the basis of impeachable offenses commi ed while in
office, not any disqualification prior to appointment.

The JBC is a separate constitutional organ, invested with the necessary authority in the performance
and execution of the limited and specific function assigned to it by the Constitution. The grant of
power is intended to be complete and unimpaired[vi].

Moreover, the power of supervision is the authority to ensure that the rules are followed, but without
the power to lay down rules nor the discretion to modify or replace them. If the rules are not
observed, the power of supervision involves the authority to order the work done or re-done.
Supervising officials may not prescribe the manner by which an act is to be done. They have no
judgment on that ma er except to see that the rules are followed.[vii]

In the same manner that the Court cannot dictate on the lower courts on how they should decide cases
except through the appeal and review process provided by the Rules of Court, so also cannot the
Court intervene in the JBC ‘s authority to discharge its principal function.[viii]

Q: What is the intention behind making JBC an independent constitutional body?

By constitutional design, the Supreme Court should wisely resist temptations to participate, directly
or indirectly, in the nomination and appointment process of any of its members. In reality, nomination
to this court carries with it the political and personal pressures from the supporters of strong
contenders. This court is wisely shaded from these stresses. We know that the quality of the rule of
law is reduced when any member of this court succumbs to pressure.[ix]
The separation of powers inherent in our Constitution is a rational check against abuse and the
monopolization of all legal powers. The Supreme Court should not nullify any act of any
constitutional organ unless there is grave abuse of discretion. The breach of a constitutional provision
should be clearly shown and the necessity for the declaration of nullity should be compelling.[x]

Therefore, in order to come within the scope of judicial review, the Constitution requires not merely
abuse of discretion but grave abuse of discretion. The constitutional transgression must be nothing
less than “arbitrary, capricious and whimsical,”[xi] which is not present in this case.

Q: Didn’t the Constitution use the word “may be removed” under Article XI, Section 2?

Yes. The Constitution used the word “may be removed”, to wit: [yourlawyersays]

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.

However, when construing the meaning of the Constitution, it is not only the literal meaning of words
and phrases that should be taken into consideration. What must be included in the consideration are
the context of the words and phrases (1) within the entire document, (2) in the light of the textual
history as seen in past Constitutions ratified by our people, (3) within the meaning of precedents of
this Court, and (4) in the light of contemporary circumstances, which may not have been in the
contemplation of those who ratified the Constitution. The Constitution should, therefore, be
appreciated and read as a singular, whole unit – ut magis valeat quam pereat.[xii]

Note that the framers did not use “SHALL be removed” because removal is not mandatory; the
framers did not likewise use “MAY ALSO be removed” to denote that other processes are available.
Admi edly, the framers also did not use the phrase “may ONLY be removed from office” However,
the absence of the word “only” should not immediately lead to the conclusion that another process –
like quo warranto -was possible.

To focus on the dictionary meaning of the word “may” precludes the importance of the entire
document. It supplants sovereign intent to the linguistic whims of those who craft dictionaries.

Q: What then is the sovereign intent?

The sovereign intent is to make impeachment the exclusive way of removing a si ing impeachable
official.

[READ: Republic v. Sereno – Case Digest]

Q: Prove that it is the sovereign intent.

First, we consider who are the impeachable officials in the Constitution. The process of removal
through impeachment and conviction is reserved only for some officials, notably: (1) The President;
(2) The Vice President; (3) Members of the Supreme Court; (4) Members of the Constitutional
Commissions; and (5) The Ombudsman.[xiii]
The officers enumerated head significant Constitutional organs, hence, the need to be independent of
other Constitutional organs. They play vital functions in the government that the Constitution must
enable him to exercise his duties and functions without any hindrance or distraction, thereby giving
his office and the country the undivided a ention that they deserve.

Second, we consider the processes involved. The removal of an impeachable officer is achieved by
providing a deliberately cumbersome and tedious procedure of removal, and that is, impeachment.
The Constitution provides the vote required: One-third of all the members of the House of
Representatives is required to impeach, and thus, to file the Articles of Impeachment. Two-thirds of all
the members of the Senate are required to convict. A time limit is even provided: No impeachment
proceedings shall be initiated against the same official more than once within a period of one year.
[xiv]

The tediousness of the process and the time limit provided is intended not only to avoid harassment
suits against the impeachable officer, i.e., that numerous suits will be thrown against an officer no
ma er how baseless, but also to prevent the disruption of public service. Imagine: if numerous
impeachment complaints are filed after the other, impeachable officers would be unable to do their
official functions and duties. In addition, the numbers required from a collective body (House of
Representatives and Senate) were clearly designed to ensure that the removal of the impeachable
public officers requires a modicum of political will from the elected representatives in both
Congressional chambers. This, again, was a process to shield the heads of the Constitutional
departments, Constitutional Commissions, and the Ombudsman with an added layer of assurance
against suits that could be maliciously filed by disgruntled parties, and therefore, diminish the
independence and resolve of the impeachable officers.[yourlawyersays]

Third, we consider the offenses involved. the grounds for impeachment are weighty and serious, thus:
(1) Culpable violation of the Constitution; (2) Treason; (3) Bribery; (4) Graft and Corruption; and (5)
Betrayal of the Public Trust[xv]. The list is exclusive. In excluding other crimes, the intent to shield the
impeachable officers from malicious or bothersome suits is palpable. Clearly, mistakes will be made
by public officials. But, while in office, it is indisputable that some level of immunity is given to the
official, that is why impeachment is the most difficult and cumbersome mode of removing a public
officer from office[xvi].

Q: Why is this level of immunity given to impeachable officials?

Difficult decisions will be made by the President, members of the Supreme Court, members of the
Constitutional Commissions, and the Ombudsman. In their decisions, there will be powerful perhaps
even moneyed individuals who will be affected adversely. Certainly, the ideal should be that all the
impeachable officers will decide on the basis of both principle and public good without fear of the
detriment that will be felt by the losing parties. Structurally, the Constitution should be read as
providing the incentive for them to do their duties.

If Justices may be removed by any other way aside from impeachment, Members of the Supreme
Court would be vulnerable to all manner of charges which might be brought against them by
unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek
to affect the exercise of judicial authority by the Court[xvii] A “simpler process for judicial removal,
even one under the control of judges themselves, would eviscerate the independence of the
individuals on the bench.”[xviii]

Q: Why is independence important in the Judiciary?

For courts to be able to discharge their functions, impartiality is required. Impartiality

Judicial independence has been described as a “vital mechanism that empowers judges to make
decisions that may be unpopular but nonetheless correct.”[xx] It is necessary “that there should be a
judiciary endowed with substantial and independent powers and secure against all corrupting or
perverting influences; secure, also, against the arbitrary authority of the administrative heads of the
government.”[xxi]

Q: What is the purpose of the Judiciary in the first place that it is important that they be
independent?

Courts are the sanctuaries of rights. Courts clarify the content of governmental powers most
especially in the context of our fundamental rights. They are the sanctuaries for law. Courts are the
soul of the government.

The Judiciary is the final arbiter of conflicts between and among the branches and different
instrumentalities of the government. It has the duty to determine the proper allocation of
governmental power and to guarantee “that no one branch or agency of the government transcends
the Constitution, which is the source of all authority.”[xxii] Moreover, the Judiciary acts as the
guardian of the fundamental rights and freedoms guaranteed under the Bill of Rights[xxiii]

Therefore, considering the Judiciary is publicly perceived “as the authority of what is proper and just,
[xxiv]” and taking into account its vital role in protecting fundamental freedoms, both decisional
independence and institutional independence must be preserved.[xxv]

Q: How is judicial independence achieved by the current Constitution?

The Constitution vests the power to promulgate rules regarding pleading, practice, and procedure,
and rules concerning admission to the Bar exclusively on the Supreme Court. This is in stark contrast
with the 1935 and 1973 Constitutions[xxvi], which granted Congress the authority to “repeal, alter or
supplement” such rules.

The grant of fiscal autonomy to the Judiciary[xxvii] and the prohibition on Congress from diminishing
the scope of the Supreme Court’s constitutionally defined jurisdiction[xxviii] and from passing a law
that would, in effect, undermine the security of tenure of its Members are among the other
constitutional guarantees of judicial independence.

The selection and appointment process to the Judiciary is an appropriate measure by which judicial
independence may be advanced. It must be noted that before the 1987 Constitution, it is both the
Congress and the President which appoints justices of the Supreme Court. Under our current
Constitution, it is the Judicial and Bar Council, an independent Constitutional creation, which makes a
shortlist of appointees from which the President will choose. The Judicial and Bar Council’s creation
under the 1987 Constitution was revolutionary as it was seen as a way to “insulate the process of
judicial appointments from partisan politics”[xxix] and “de-politicize” the entire Judiciary.[xxx] [T]he
intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the
purpose of buying votes in a coming presidential election, or of satisfying partisan considerations.

Q: How is entertaining and granting a petition for quo warranto against a member of the Supreme
Court an impairment of judicial independence?

First, it impairs the independence of a justice vis-a-vis another justice and even against the Court’s
majority.

The heart of judicial independence, it must be understood, is judicial individualism. The judiciary,
after all, is not a disembodied abstraction. It is composed of individual men and women who work
primarily on their own. The mental processes of the judges, then, are those of individuals and not of
cogs in a vast machine.[xxxi] Judges are required “to be independent from judicial colleagues in
respect of decisions which the judge is obliged to make independently.”[xxxii]

[READ: Republic v. Sereno – Case Digest]

Dissent is likewise welcomed. For the law to progress it must occasionally adopt views that were
previously in disfavor, and the intellectual foundations are often laid by the opinions of dissenting
judges. A dissent, said Hughes, “is an appeal to the brooding spirit of the law, to the intelligence of a
future day.[xxxiii]

Allowing a judicial mechanism for investigating judicial colleagues suppresses candor and
undermines the spirit and practice of collegiality that has been so entrenched in the Supreme Court. A
judge might see across the table not merely a working partner but a potential adversary. The dialogue
would continue, of course. In most cases no change would be detectable. But there would be an
inevitable loss of frankness if each participant feared that candor might one day build a case against
him.[xxxiv]

A judge who feels threatened by the perception that other judges are looking over his shoulder, not to
decide whether to reverse him but to consider the possibility of discipline, will perform his work with
a timidity and awkwardness damaging to the decision process. Judicial independence, like free
expression, is most crucial and most vulnerable in periods of intolerance, when the only hope of
protection lies in clear rules se ing for the bright lines that cannot be traversed.[xxxv]

What happens in a petition for quo warranto? We witness a spectacle where a Justice votes for the
ouster of her follow Justice. Therefore, the quo warranto must, in the very first place, not have been
entertained.

Second, it impairs the independence of the Supreme Court and the Judiciary as an institution.

We differentiate the tenure of government officials. The Executive and Legislative departments are
constitutional departments, but they are also political for being elected. The Constitutional
Commissions and the Ombudsman have fixed terms, and therefore, are subject to the choices of a
political administration. On the other hand, the justices of the Supreme Court serve under good
behavior and are to serve until the age of 70 years old.

Political departments respond to majorities. That is in their nature since they act with the next
elections in mind. On the other hand, the Supreme Court is not political in that way. By providing for
a term until the age of 70, the Constitution ensures that the vision of each member of the Court is for
the longer term, and therefore, that decisions are made, not merely to address pragmatic needs, but
long term principles as well. The Court is expected to be the last resort even in determining whether a
political majority has transgressed its constitutional power or a fundamental right of the minority. In
doing so, the Court may be counter-majoritarian but pro-Constitution or pro-principle.

Therefore, if we allow an easier way to remove a member of the Supreme Court, they will necessarily
yield to politics, rendering the Supreme Court a political body as well.

Third, it creates an imbalance of power. the Solicitor General, who is not even a constitutional officer,
is given awesome powers to remove impeachable officers – the Ombudsman, the heads of
Constitutional Commissiions, and the justices of the Supreme Court.

Fourth, it creates instability even among lower courts. Since quo warranto is within the concurrent
original jurisdiction of the Regional Trial Court, the Court of Appeals, and the Supreme Court, we will
be ushering in the phenomena of a trial court judge ousting a colleague from another branch or
another judicial region or a Court of Appeals division ousting another justice belonging to another
division or working in another region. The logical consequence is to diminish the concept of
professional collegiality and independence also among lower courts.

Fifth, this will take away this Court’s sole constitutional domain to discipline lower court judges. To
grant the petition for quo warranto would inexorably empower appellate court judges to exercise
discipline and control over lower courts through acting on Petitions for Quo Warranto against other
lower court judges.

Q: Is there any jurisprudential basis which states that it is only through impeachment that an
impeachable official may be removed?

Yes. In many cases[xxxvi], the SC dismissed disbarment cases against members of the Court and those
of the Constitutional Commissions who are required to be members of the Bar. Cuenco v. Fernan is
even explicit in stating: “Members of the Supreme Court must, under Article VIII (7) (1) of the
Constitution, be members of the Philippine Bar and may be removed from office only by
impeachment. To grant a complaint for disbarment of a Member of the Court during the Member’s
incumbency, would in effect be to circumvent and hence to ran afoul of the constitutional mandate
that Members of the Court may be removed from office only by impeachment for and conviction of
certain offenses listed in Article XI (2) of the Constitution.” [yourlawyersays]

Therefore, the rule is that impeachable officers are only removable by impeachment and no other
proceeding.

Q: Assuming that we can allow quo warranto can be allowed, is it still within the prescriptive
period?

No. Rule 66, Section 11 of the Rules of Court is clear and leaves no room for interpretation: Nothing
contained in this Rule shall be construed to authorize an action against a public officer or employee
for his ouster from office unless the same be commenced within one (1) year after the cause of such
ouster, or the right of the petitioner to hold such office or position, arose.

The reason behind this is that it is in the public’s best interest that questions regarding title to public
office be resolved and laid to rest as soon as possible. Public service demands stability and
consistency. In the same manner, public officers cannot rest easy with the threat of being unseated at
any time looming over their heads. It is not proper that the title to a public office be subjected to
 y g p p p j
continued uncertainty for the people’s interest requires that such right be determined as speedily as
possible. [xxxvii] A public officer cannot afford to be distracted from his or her duties. There must be
stability in the service so that public business may be unduly retarded; delays in the statement of the
right to positions in the service must be discouraged.[xxxviii] When public officers cannot do their
work effectively, it is not just the office that deteriorates. The nature of the office is such that it is the
public that is inconvenienced and ultimately suffers.

[READ: Republic v. Sereno – Case Digest]

Q: However, it has been established that prescription does not run against the State. How do you
counter this?

The majority refers to Article 1108(4) of the Civil Code to support their stand that the prescriptive
period for filing the quo warranto petition has not yet prescribed and will never prescribe because
prescription does not lie against the State. Such is false. [yourlawyersays]

Prescription, both acquisitive and extinctive, runs against juridical persons, except the State and its
subdivisions.[xxxix] However, Article 1108(4) refers to acquisitive and extinctive prescription as
regards the acquisition or ownership of real rights, and not prescription in general. Article 1108 can be
found in Book III of the Civil Code which relates to the different modes of acquiring ownership. It is
preposterous to include the position of Chief Justice within the coverage of Book III of the Civil Code,
since a public office is not a property right, hence, no proprietary title can a ach to it.[xl] Furthermore,
a quick review of jurisprudence[xli] shows that the phrase “Prescription does not lie against the State”
was limited to actions of reversion to the public domain of lands which were fraudulently granted to
private individuals and not in all actions instituted by the State.

Q: It is still in the best interest of the State to remove an improperly appointed official even beyond
one year. How do you counter this? [yourlawyersays]

In this particular instance, the act complained of was allegedly commi ed by the Council six (6) years
ago. Allowing an agent of the current administration to now question the previous administration’s
appointee would set a dangerous precedent. The current administration can just as easily undo all
judicial appointments made by a previous administration. This will not inspire public trust and
confidence in our institutions. The security of tenure of magistrates insulate them from the changing
political winds. Removing that security renders members of the Judiciary vulnerable to currying favor
with whichever political entity is in power, if only to guarantee that they remain in office until
retirement. The immeasurable repercussions of this will corrode the foundations of our institution, to
the ultimate detriment of the people.

Q: Does the non-submission of Statement of Assets, Liabilities, and Net Worth conclusively mean
a lack of integrity on the part of Sereno?

A: No. The Constitution provides the qualifications of the members of the Judiciary, but it also gives
the Judicial and Bar Council the latitude to promulgate its own set of rules and procedures to
effectively ensure its mandate to recommend only applicants of “proven competence, integrity,
probity and independence.[xlii] JBC-009, the rule in place during Sereno’s application and
appointment, shows that the determination of integrity is so much more nuanced than merely
submi ing documents like SALN or clearances from government agencies.
It is true that the submission of a Statement of Assets and Liabilities may be implied from Article XI,
Section 17. This finds its implementation in Section 8 of Republic Act No. 6713, or the Code of
Conduct and Ethical Standards for Public Officials and Employees, and Section 7 of Republic Act No.
3019, or the Anti-Graft and Corrupt Practices Act. However, a closer reading of the provision,
however, reveals that the constitutional requirement is for the submission of a Statement of Assets
and Liabilities upon assumption of office. On the other hand, RA No. 6713 and RA No. 3019
statutorily require government employees to submit their Statements of Assets and Liabilities on an
annual basis.

As practiced however, the JBC did not always require the submission of SALN as part of the
documentary requirements for applicants or recommendees to the Judiciary. It was only during the
vacancy left by Chief Justice Corona’s impeachment that the JBC required the submission of all
previous SALN for applicants in government service.

Clearly, the Judicial and Bar Council recognized that the SALN is merely a tool in determining if an
applicant possesses integrity and is not the actual measure of integrity. As a qualification, the term is
taken to refer to a virtue, such that, “integrity is the quality of person’s character.”[xliii]

The Supreme Court has likewise ruled before that mere misdeclaration of the SALN does not
automatically amount to dishonesty. Only when the accumulated wealth becomes manifestly
disproportionate to the employee’s income or other sources of income and the public officer/employee
fails to properly account or explain his other sources of income, does he become susceptible to
dishonesty because when a public officer takes an oath or office, he or she binds himself or herself to
faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily
for the benefit.[xliv]

To grant this petition is to effectively include another requirement for the selection of judges and
justices even though we are not constitutionally mandated to do so. Through this case, we now
require the submission of all the Statements of Assets and Liabilities of a candidate.