Selling Dirt in the Case of Republic v. Sereno
A Commentary by Sen. Leila M. de Lima 22 May 2018

The primary issue in the case of Republic v. Sereno (G.R. 237428; May 11, 2018) is if impeachable officials as enumerated in the 1987 Constitution can be removed from office other than by impeachment. If answered in the negative, there would even be no discussion anymore on the other issues, like the timeliness of the quo warranto petition, the filing of SALNs as a test of integrity of judges and justices, the nature of the Judicial and Bar Council (JBC), and the power of the Supreme Court to void a decision of the JBC made five years ago. It is the most important issue in the case. However, the discussion in the majority opinion shows that it is also the least supported by legal authority.

Throughout the entire decision, there are four specific instances where the majority concluded that impeachable officials may not only be removed from office via impeachment, but also through quo warranto proceedings. In the very first assertion of this doctrine ever in Philippine jurisprudence, the majority of the Court said that "[a]side from the difference in their origin and nature, quo warranto and impeachment may proceed independently of each other as these remedies are distinct as to (1) jurisdiction (2) grounds, (3) applicable rules pertaining to initiation, filing and dismissal, and (4) limitations". (p.51, Decision)

This is the very first time ever in the history of the Philippine legal and justice system that this doctrine was asserted in jurisprudence. It has no citation. It is a bare-faced introduction of a new and completely alien doctrine devoid of any supporting authority whatsoever.

The second instance that this conclusion was made in the majority opinion was two pages after its introduction. The Court said that "[q]uo warranto and impeachment are, thus, not mutually exclusive remedies and may even proceed simultaneously". The Court proceeds to establish that "[t]he existence of other remedies against the usurper does not prevent the State from commencing a quo warranto proceeding". Unlike the first statement, this iteration is supported by a citation (a mere footnote), a 1976 California case involving a public utility company.

The third instance this conclusion was specifically asserted in the majority opinion, the Court said that logic and sound policy demand that the congressional power of impeachment be construed to be a concurrent, not an exclusive, power of removal. This second iteration is also supported by a citation, a 1930 article published in the Michigan Law Journal.

In the fourth instance the conclusion was declared, it was now made to appear to be a long-established doctrine in political and remedial law, on the basis of the 1976 California case and the 1930 US law school journal article. The Court said, with all finality, that borne out of a scholarly research of one 1976 California case as supported by a 1930 law school journal article, "[t]he courts should be able to inquire into the validity of appointments of impeachable officers". (p. 62, Decision)

The California case, Citizens Utilities Co. v. Superior Court, is the only case cited in the majority opinion to support the consolidated cases of Estrada v. Desierto and Estrada v. Macapagal-Arroyo, thus laying down the doctrine that quo warranto is concurrent with impeachment as a mode in removing impeachable officials. To be more precise, it is the very first authority cited by the majority as precedent to the Estrada cases, though the latter are hardly binding authority on the theory that quo warranto is a substitute for impeachment.

This case is not even about impeachable officials. It is about the authority to operate of a public water utility company in Alameda County, California. The contention was not even between the exclusive constitutional power of Congress to impeach high public officials and the power of the courts to oust them through quo warranto. The issue was on the power of the Superior Court of Alameda County to entertain a quo warranto petition filed by the California Attorney General against a public franchise-holder despite the assumption of jurisdiction by the Public Utilities Commission over matters used as grounds by the Attorney General in his quo warranto petition.

For several reasons, this is the worst authority ever to cite for a Supreme Court decision that seeks to supplant a constitutionally-engraved exclusive mandate of Congress. First, the California case was not even decided by the California Supreme Court or the US Supreme Court. It was decided by a mere division of the California Court of Appeals. Second, the Attorney General actually lost in this case. A writ of prohibition was actually issued preventing the Superior Court of Alameda County from further hearing the quo warranto petition filed by the Attorney General against the public utility company. According to the California Court of Appeals:

In the present case it is clear that the [Public Utility] Commission has assumed jurisdiction upon a related question germane to the operation of petitioner utility company and that it has acted on the particular question which is the subject of the quo warranto action. The matter upon which the Commission has assumed jurisdiction is cognate and germane to the regulation of public utilities. xxx

In sum, the Commission has assumed jurisdiction upon a question germane to the operation of petitioner, i.e., the adequacy of water service to consumers in petitioner's district. xxx

xxx Let a peremptory writ of prohibition issue restraining and prohibiting respondent court from taking any further proceedings in the action entitled "The People of the State of California v. Citizens Utilities Company of California," civil action No. 464534-2, pending in the Superior Court of the State of California for the County of Alameda, until the Public Utilities Commission has determined the matter presently before it xxx.

Citing a case where the Attorney General actually lost a quo warranto case is not exactly the best way to uphold the power of the Solicitor General to oust Sereno through a quo warranto case. If any, this case is clearly in support of the argument that Congress's assumption of jurisdiction over the charges against Sereno ousts the courts of jurisdiction to entertain a quo warranto case filed against her by the Solicitor General on the same grounds. That is what Citizens Utilities v. Superior Court of Alameda County actually states.

The second authority cited in the majority opinion is a 1930 Michigan Law Review article entitled "Federal Judges: Appointment, Supervision, and Removal: Some Possibilities under the Constitution" written by Burke W. Shartel. Shartel was a faculty member of the University of Michigan Law School from 1920 to 1958 and specialized on constitutional law and personal property law.

The Shartel article is an academic treatise on the non-exclusivity of impeachment as a mode of removing federal judges. Certainly, this is a very old article from 1930 that might no longer even reflect the current American legal discourse on the matter. The author himself admits that removal of impeachable federal judges other than by impeachment is a mere proposal for consideration. It is not hornbook doctrine in the US federal system. The proposal for non-exclusivity of impeachment contained in the article is not US Supreme Court doctrine.

To date, no US Supreme Court justice has ever been removed, whether by impeachment or any other mode. Only one has ever been impeached by the House but acquitted by the Senate. All the other impeachable federal judges ousted from office were removed by impeachment. Not a single one was removed by any other mode such as quo warranto.

This speaks volume on the value of Shartel's treatise on the removal of impeachable federal judges and US Supreme Court Justices in American jurisprudence. It was never adopted. It has no jurisprudential value whatsoever except for purposes of academic discussion. The problem is, our own Supreme Court decided to adopt it as its ultimate source and authority in supplanting Congress's exclusive constitutional mandate to remove impeachable officials. This is a 41-year old American law professor writing a legal paper in 1930 that would dictate the interpretation of the 1987 Philippine Constitution eighty-eight years after.

Citing a California Court of Appeals case involving a public utility water company where the Attorney General actually lost the quo warranto case on the ground of primary jurisdiction of another body, and a 1930 Michigan Law Review article whose treatise was never adopted in American jurisprudence, does not do justice to the 1986 Constitutional Commission deliberations and the Supreme Court cases of Cuenco v. Fernan, In re: Gonzalez, Jarque v. Desierto, Lecaroz v. Sandiganbayan, and Marcoleta v. Borra which hold that impeachable officials may only be removed by impeachment. The majority opinion in Republic v. Sereno has just held that in the interpretation of the 1987 Constitution, a 1976 California case on a public utility company and a 1930 American law school journal article should prevail over the deliberations of the 1986 Constitutional Commission and five Philippine Supreme Court decisions.

This is not only scraping the bottom of the barrel. It is simply just trying to sell us dirt. Justice Tijam should fire his researchers.