A Chief Injustice – Points to consider and reconsider about Republic vs.

Sereno
Micah Stefan Dagaerag
Honest Engagements

Filipinos barely read. And it doesn’t help that one of the most important decisions of the
Supreme Court in our lifetime is 153 pages long, in language that intimidates and
overwhelms even the most patient English major.

There are so many things to say about the controversial Republic vs. Sereno, decided 11 May
2018 wherein the Supreme Court effectively ousted Chief Justice Maria Lourdes Sereno upon
petition of quo warranto by Solicitor General Jose Calida. Most in the legal profession were
stunned. The prevailing orthodoxy among lawyers and law students had been that high
officials such as the Chief Justice could only be removed from office through impeachment.

So, the Sereno decision arrived as progressive reformation for some, and damnable heresy
for the rest. Unfortunately, and inasmuch as I disagree with the good Solicitor General, the
top lawyer of the government was not totally devoid of merit in his legal argumentation. That
is why I thought it more beneficial and helpful that the approach of this article be to explore
the respective strengths of the cases presented by both sides.

Strengths in the case of the Solicitor General

1. Quo warranto is not merely a procedural rule. It’s true that there is no actual law from
our legislature on quo warranto, and that such proceeding can be found in the Rules of Court,
which is a set of procedures laid down by the Supreme Court, not Congress. However, we
didn’t need a law on quo warranto anymore as our courts began borrowing this practice
from the United States during the Commonwealth era (Abeto vs. Rodas, 3 November 1948,
82 Phil. 5).

The 1997 Rules of Civil Procedure, which includes the procedure for quo warranto, merely
codified and systematized how courts (including the Supreme Court) already practiced and
applied the proceeding. Make no mistake, quo warranto in the Rules has the equivalent force
and effect of statutory laws from Congress.

2. Despite being an impeachable official, the Chief Justice may legally be removed via
quo warranto. The champion argument of Sereno (and the main legal point of the dissenting
justices) is that as one of those officials specifically enumerated in the 1987 Constitution that
can only be removed by impeachment (Art. IX, Sec. 2), it would be a violation of the
Constitution to oust the Chief Justice in a quo warranto proceeding.

I’m not sure why they chose to run this as their main banner of attack. It is far from being
their strongest argument, as all you need to do to dismantle it is to find a previous instance
wherein quo warranto was allowed by the Supreme Court to oust an “impeachable” officer.
And wouldn’t you know it, the past returns to haunt us in the form of Nacionalista Party vs.
De Vera.

This case, mentioned several times in the Sereno decision, was decided by the Supreme Court
in 1949 under the 1935 Constitution. This had to do with then Chairperson of the
Commission on Elections Vicente de Vera, whose validity of appointment as COMELEC Chair
was questioned by the Nacionalista Party. Now, despite the fact that under the 1935
Constitution, “[t]he Chairman and the other Members of the Commission on Elections may
be removed from office only by impeachment” (Art. X, Sec. 1, emphasis mine), the Supreme
Court ruled that quo warranto would be the proper remedy to oust the COMELEC Chair due
to some irregularity in the appointment.

Did the Court err in this decision? Apparently not. For if the high officer commits an act
during his or her tenure as such officer that constitutes culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust, the
allowed remedy is impeachment. However, if there was some irregularity tainting the
validity of the officer’s assumption into the position, the proper remedy is quo warranto.
Hence, in dSereno, the deciding majority of the Supreme Court justices really laid down no
new doctrine, neither did they reverse any established case law. There was no radical turn
in order to accommodate certain political agendas. All they needed to do was apply what was
actually already available to them.

3. It did appear that Sereno did not live up to the moral and ethical standard expected
(indeed, required) of a Chief Justice. Art. VIII, Sec. 7(3) provides that, “[a] Member of the
Judiciary must be a person of proven competence, integrity, probity, and independence.” The
Solicitor General, in anchoring his quo warranto petition, argued that Sereno, at the time her
application for Chief Justice was processed by the Judicial and Bar Council (JBC), failed to
possess such required integrity because of her missing and problematic Statements of
Assets, Liabilities, and Net Worth (SALNs) during her years teaching in the University of the
Philippines and for when she handled certain cases for the government.

The story is admittedly quite complicated and puzzling as regards her missing SALNs.
Apparently, some were submitted, others were submitted but notarized years later, some
just couldn’t be found, and still others appeared to be deliberately withheld from the
Supreme Court until an opportune time. But what the Chief Justice needed to crawl out of
this hole alive was to simply produce all those documents, had she actually and dutifully
accomplished them. In any case, she was unable to. And now she has been made to pay for it.

Strengths in the case of the Chief Justice

The pleadings of the Solicitor General and of the Chief Justice aren’t readily available to the
public, so I don’t know comprehensively how both sides argued their points beyond what
the Sereno decision reveals. But this is where I think the Chief Justice should have focused
her defense, down to the nitty-gritty and technicalities of a quo warranto proceeding, instead
of continually reiterating the weaker point of being removable only by impeachment.

1. Quo warranto for an elective office is different from quo warranto for an appointive
office.
Case law establishes that quo warranto proceedings may either be for an elective office or
for an appointive office. In the 1929 case of Nuval vs. Guray, the Supreme Court distinguished
the two, saying, “In quo warranto relating to an elective office, the issue is the eligibility of
the candidate. In quo warranto relating to an appointive office, the issue is the legality of the
appointment” (emphasis mine).

Why is this distinction important? Remember that Sereno’s assumption into the position of
Chief Justice was an appointment by President Noynoy Aquino, not an election. And yet, the
whole point of the Sereno case is that she is ineligible for the office. The honorable Supreme
Court erred in its handling of the case. The rules (indeed, the laws) were misapplied, and is
akin to a mistrial.

In fact, in quo warranto relating to an appointive office, the Court “ought to declare who is
entitled to occupy the office” (Nuval vs. Guray). But there was no declaration as to who
should occupy the office in place of Sereno. The decision violates the laws on quo warranto
and must be voided upon a motion for reconsideration.

Curiously, in page 52 of the Sereno decision, there was actually a mention about quo
warranto for elective and appointive offices, but there was perplexingly no meaningful
discussion thereof. After a peripheral reference, it was ignored. Inexplicably. So, you can
observe what seemed like an obligatory shout-out to the law and jurisprudence on quo
warranto within the Philippine legal regime. But without actually being brought to bear upon
the case at hand, maybe it was included to do nothing more than add even more pages to an
already lengthy decision.

2. The Court erred in its expectation for a “good legal title”. Please allow me to quote
certain portions of the decision, for me to demonstrate my point with more fairness and
clarity. In page 105 the Court said:
 [S]ince the object of such proceedings is to test the actual right to the office, and
not merely a use color of right [sic], it is incumbent upon [Sereno] to show a good
legal title, and not merely a colorable one, for [s]he must rely wholly on the
strength of h[er] own title.

Sereno is called upon to show a good legal title for her being the Chief Justice. It is a fair
question, isn’t it? But, what might you expect such “good legal title” to be? Maybe her
appointment from President Aquino? Or maybe her being in the JBC’s shortlist of candidates
for Chief Justice prior to President Aquino’s choice within that shortlist?

Well, what the Court says literally in the next paragraph, in defining what that “good legal
title” might be is a little surprising, to wit:

With the submission of its evidence, including the Certifications from the U.P.
College of Law and the Ombudsman showing that [Sereno] did not file all her
SALNs, the Republic has made out a prima facie case that [Sereno] failed to
comply with the SALN law.

The Court seems to be saying that because Sereno failed to comply with the SALN law, she
did not have good legal title to her position as Chief Justice. This is problematic. What gives
good legal title for somebody to occupy an appointive office is the act of appointment by the
appointing authority. Mere compliance with the SALN law does not give any good legal title
to any position in the government.

The appointing authorities in this case considered her to be of sufficient integrity for the
position, and it has been more than 5 years since we have had Sereno as Chief Justice. Why
weren’t there any challenges to her appointment as early as 2012 when she succeeded
Renato Corona? Why wait this long? All of it just reeks of bad faith, and the majority justices
of the honorable Court were unfortunately unable or unwilling to catch the scent.

Afterthoughts
Whenever priests and pastors preach from the Bible, they can do only one of two things:
either they engage in exegesis (using your own words to teach what is in Scripture), or
eisegesis (using Scripture to teach your own words). The latter is demonstrated by the Devil
when he used no less than Scripture to tempt the Lord Jesus Christ into sinning. Jesus won
that battle in the wilderness, but unfortunately the Devil’s wisdom triumphed in Republic v.
Sereno.