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Primer: The Office of the Solicitor General quo warranto plea

Ina Reformina, ABS-CBN News

Posted at May 11 2018 07:26 AM | Updated as of May 11 2018 01:10 PM

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10/9/2018 Primer: The Office of the Solicitor General quo warranto plea | ABS-CBN News

Solicitor General Jose Calida. File/George Calvelo, ABS-CBN News

“The Constitution does not include ineligibility to public position as a ground for impeachment. No one can be convicted for ineligibility. The sole
purpose of impeachment proceedings is to hold a public officer accountable for wrongdoings committed in office. On the other hand, the quo warranto
proceedings instituted by the Solicitor General seeks to oust respondent because she is ineligible to be the Chief Justice.” — OSG

The Office of the Solicitor General (OSG) filed a petition for quo warranto dated March 2, 2018, questioning Chief Justice Ma. Lourdes Sereno’s
qualifications for the top judicial post.

“This is a petition for quo warranto under Section 5(1), Article VIII of the 1987 Constitution and Rule 66 of the Rules of Court seeking the ouster of
Respondent as Chief Justice of the Supreme Court of the Republic of the Philippines.

“The suit is being filed with this Honorable Court as an exception to the application of the doctrine of hierarchy of courts because the issues raised are of
transcendental importance.

“This is a case of first impression: it is unprecedented, involving as it does the highest position in the Judiciary. Plainly, no tribunal can best resolve it
than the Court,” the OSG said as it began its 34-page petition.

Solicitor General Jose Calida maintained that while Section 2, Article XI (ACCOUNTABILITY OF PUBLIC OFFICERS) of the 1987 Constitution
provides that impeachable officers may be removed on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust, these impeachable officers may also be ousted from office through quo warranto
proceedings because they are not excluded from such proceedings under Section 5(1), Article VIII (JUDICIAL DEPARTMENT) of the Constitution.

“In other words, the Solicitor General is not asking the court (SC) to remove respondent for impeachable offenses: it is not the concern of the petition.
Instead, the Solicitor General has good reason to believe that respondent has no authority to occupy the esteemed office of the Chief Justice of the
Republic of the Philippines: she had not shown that she possessed proven integrity, an indispensable qualification for appointment to the Judiciary
pursuant to Section 7(3), Article VIII of the 1987 Constitution,” the OSG said.

The OSG filed the petition due to Sereno’s non-compliance of the mandatory requirement of submission of Statements of Assets, Liabilities, and Net
Worth (SALNs) set forth by the Judicial and Bar Council (JBC), the body that screens applicants for posts in the judiciary, when she applied for the top
judicial post in 2012.

Sereno submitted only 3 SALNs when she applied for the chief justice post: 2009, 2010, and 2011. The JBC required the submission of all SALNs of an
applicant in government service; later the substantial compliance was set at 10 years prior to application to the top judicial post or from 2002 to 2011.

The reason for this minimum 10-year requirement is Section 8 of Republic Act No. 6713 (February 20, 1989. AN ACT ESTABLISHING A CODE OF
CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES), which states, “Any statement (SALN) filed under this
Act shall be available to the public for a period of ten (10) years after receipt of the statement. After such period, the statement may be destroyed unless
needed in an ongoing investigation. ”
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IMPEACHMENT NOT MANDATORY MEANS TO REMOVE IMPEACHABLE OFFICER

While Section 2, Article XI of the 1987 Constitution provides that impeachable officers “may be removed from office on impeachment for, and
conviction of…” the OSG said this “cannot be construed as having mandatory effect,” unlike its counterpart provision in the 1973 Constitution.

“Unlike the wordings of Section 1, Article IX of the 1935 Constitution and Section 2 of Article XIII of the 1973 Constitution, which both state, ‘shall be
removed from office on impeachment for, and conviction of,’ the present phraseology of Section 2, Article XI of the 1987 Constitution provides ‘may be
removed from office on impeachment for, and conviction of.’

“The use of the word ‘may’ in the provision is construed as permissive and operating to confer discretion. It cannot be construed as having mandatory
effect. Where the words of a statute (or the Constitution, for that matter) are clear, plain, and free from ambiguity, they must be given their literal
meaning and applied without attempted interpretation,” the OSG said.

In cases of ineligibility, the proper means is through quo warranto proceedings, the OSG explained.

GROSS MISREPRESENTATION

The OSG further accused Sereno of committing “gross misrepresentation before the JBC when she wrote to explain she could not produce her other
SALNs because she could ‘no longer retrieve them.’”

“Truth, however, is that she failed to file her SALN eleven times from 1986 to 2006,” Calida said.

Sereno’s submitted SALN’s committed falsehoods and “perjurious act,” said Calida:

Sereno’s SALN dated December 31, 1998 was filed only in 2003, or five years beyond the period required by law; her 2009 SALN reflects she was
holding the SC Associate Justice post, when it fact she was appointed to the high court only in August 2010’ when she resigned in June 2006 as a UP
professor, she should have submitted a SALN as of the same year, however, her 2006 SALN bears no stamp receipt from UP, was only signed on July
27, 2010, the same day she submitted it to the JBC.

“It appears that she fabricated her 2006 SALN in an attempt to submit a SALN to the JBC during her application for Associate Justice in 2010. These are
perjurious acts further bolster Sereno’s utter lack of integrity,” Calida said.

“Surely, the Solicitor General cannot just sit idly by and allow an unqualified person such as Respondent to continue occupying the highest seat in the
highest court of the land: that would be a dereliction of his duty under the Constitution.”

Calida reiterated his position that Sereno’s failure to file and submit her SALNs prove she “is not a person of proven integrity,” and “failed to prove her
integrity before the JBC.”

He stressed faithfully complying with the requirement of filing of SALNs is not an additional qualification to establish the integrity of magistrates of the
judiciary, rather it is an “implied” requirement.

STATE NOT BOUND BY ONE-YEAR PRESCRIPTIVE PERIOD

Section 11, Rule 66 of the Rules of Court provides that “a petition for quo warranto against a public officer or employee shall be filed within one year
after the cause of his ouster, or the right of the petitioner to hold such office or position, arose.”

The OSG, however, argued that under the maxim nullum tempus occurs regi (‘no time runs against the king’), prescription does not apply to the state,
does not apply in cases initiated by the Republic/government. In the Sereno quo warranto case, the OSG, as an entity of the state, is not bound by the rule
on prescription.

“This limitation… does not apply to the petitioner. It (OSG) has an imprescriptible right to bring a quo warranto petition….” the OSG said.

Assuming, for the sake of argument, that the one-year bar applies to the Republic, the OSG insisted the petition was filed within the reglementary period,
which it insists, began at the time of discovery of Sereno’s non-filing of SALNs during the House impeachment hearings.

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