May 22, 2018, 4:42 am
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A lawyer-blogger’s view on the quo warranto petition vs Sereno (2)

Here’s the concluding part of a brief on the quo warranto petition filed by Solicitor General Jose Calida to oust Supreme Court Justice Lourdes Sereno by a lawyer who blogs under the name saxnviolins.

Saxnviolins said if he had been invited amicus curiae (friend of the Court), he would have submitted the following opinion:

“The petition points to the Rules of Court on the Presidential Electoral Tribunal, for the basis for the acquisition of jurisdiction by the Supreme Court over one of its own members, when it states:

Although theaforecited rules pertain to the President and Vice President, said rules may be applied by analogy. The Court recognizes the availability of quo warranto against an impeachable officer. Hence, Respondent cannot claim that as Chief Justice, she can only be removed by impeachment under Section 2, Article XI of the Constitution. (Page 11, par. 34).

“That argument is below the dignity, of even a law student. It is elementary that jurisdiction is conferred by law (MaricrisDolot v. Hon. Ramon Paje G.R. No. 199199 - August 27, 2013). There is no country where jurisdiction is conferred “by analogy”. In the case of the presidential elections, the Constitution created the Presidential Electoral Tribunal, and conferred on it, power over “all contests relating to the election, returns, and qualifications of the President or Vice- President,” The Constitution also granted the Supreme Court, as Presidential Electoral Tribunal, the power to “promulgate its rules for the purpose”. (Article VII, Section 4). 

“The power to promulgate rules are only “for the purpose” of deciding “all contests relating to the election, returns, and qualifications of the President or Vice- President,” The Constitution does not confer on the Supreme Court the power to remove one of its own members. The purpose stated by the Constitution, is fatal to the argument of power by analogy. 

“The Rules cited by the Petition also declares what the PET’s implied powers are, as follows:

Rule 7. Express and implied powers. - The Tribunal shall exercise all powers expressly vested in it by the Constitution or by law, and such other powers as may be inherent, necessary or incidental thereto for the accomplishment of its purposes and functions. (R6)

“Note that in the title of Rule 7, the Supreme Court declares that it has Express and implied powers. Then in the text of Rule 7, it states it is has “such other powers as may be inherent, necessary or incidental thereto for the accomplishment of its purposes and functions”, mirroring the purposes stated in the Constitution. So the implied powers stated in the title of Rule 7 are the inherent powers for the purpose of deciding ““all contests relating to the election, returns, and qualifications of the President or Vice- President,” That does not include the function of determining the validity of the appointment one of its members. 

“It is also axiomatic that what is expressed prevails over what is implied. The express declaration by the Constitution, and the Rules of the Presidential Electoral Tribunal, negate any inference of “power by analogy”.

“More damning to the argument of “powers by analogy” is the enumeration of the inherent (implied) powers under Rule 8:

Rule 8. Inherent powers. - The Tribunal shall have the following inherent powers:

(a) Preserve and enforce in proceedings before it or before any of its Divisions or officials acting under its authority;

(b) Administer or cause to be administered oaths in any contest before it, and in any order matter where it may be necessary in the exercise of its powers;

(c) Compel the attendance of witnesses and production of evidence in any contest before it.

(d) Compel obedience to its decisions, resolutions, orders and processes;

(e) Control its processes and amend its decisions, resolutions or orders to make them conformable to law and justice;

(f) Authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original copy thereof, and to restore and supply deficiencies in its records and proceedings; and

(g) Promulgate its own rules of procedure and amend or revise the same (R7)

“There is nothing there regarding the determination of the validity of the appointment of one of its own members. Expressiouniusestexclusioalterius.. What is enumerated excludes that which is not enumerated. 

“Finally, the issue of appointments is a political question, left to the political branches of government. By political question here, we do not mean political in the street sense of “namumulitika”, signifying partisanship. By political question is meant the wisdom of making a choice – choosing between one candidate over the other (President and Congress – Commission on Appointments); choosing between going to war or not (Congress); or choosing between withdrawing from a treaty or not (President only).

Congress – Commission on Appointments); choosing between going to war or not (Congress); or choosing between withdrawing from a treaty or not (President only).

The appointment of members of the Supreme Court is a political question, and that choice is left to the discretion of a political branch (Office of the President). Were the Supreme Court to invalidate the appointment, it would be supplanting its judgment for that of the President; a power it has no authority to wield. A political decision must be exercised by a political branch.It is for that reason that the framers of the Constitution conferred the power to determine whether the President made a wise choice or not, on another political branch (Congress). 

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (Luego v. Civil Service Commission; G.R. NO. L-69137 - August 5, 1986)

“Another reason for the lack of jurisdiction by the Supreme Court over this petition, is the fact that the Supreme Court has no power to try (determine) facts. It may rule on findings of fact of trial courts, amending, modifying or reversing them, in an appeal. But it has no power to make findings of fact in the first instance. The question of whether an appointee is qualified or not, is a factual question. In other quo warranto cases, the proceedings are commenced at tribunals with fact-finding power; either trial courts, or the COMELEC. In the case of impeachable officers, the Constitution confers the fact-finding power on the Senate. 

“The Supreme Court may only review the proceedings, when legal questions are concerned, such as the question of the legality of the subpoena ducestecum issued by the Senate (Enrile as President Officer) in the impeachment case of Renato Corona. The Supreme Court issued a TRO on the order of Senator Enrile. 

“The petition strains to confer on itself, a Constitutional issue by citing Funa v. Villar But Funa ruled on the Constitutional issue of what constitutes a “reappointment”. It was not an issue of qualifications of the appointee. The Supreme Court held:

A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment to the position of Chairman for the unexpired portion of the term of the departing chairman. …….

The appointment of then Commissioner Reynaldo A. Villar to the position of Chairman of the Commission on Audit to replace Guillermo N. Carague, whose term of office as such chairman has expired, is hereby declared UNCONSTITUTIONAL ……

“The petition next cites the case of Nacionalista Party v. De Vera. That case ruled on the Constitutional issue of whether or not the promotion to Chairman of a sitting COA commissioner, is a “reappointment”, which is prohibited by the Constitution. 

“Neither of the above cases questioned the qualifications of the appointee. Here, there is no Constitutional issue being presented. The substantive basis of the petition questions the qualifications of the appointee. 

“Professor Sereno taught full-time, and it is difficult to find a retired RTC judge who remembers her appearance in court. As a professor, she did not display the intellectual heft of Justice Serafin Cuevas, Justice Vicente Mendoza, or Professor HaydeeYorac. I believe, therefore, that there were candidates better qualified than her. But that belief must yield to my fealty to the Constitution; even if the incidental beneficiary is a minimally qualified appointee. 

“The Republic has survived Ferdinand Marcos, Gloria Arroyo, and Benigno Aquino III; all Presidents, with almost limitless power. I am certain that it can survive the term of an unqualified Chief Justice, especially because the Court, en banc, can effectively check her actions. But the Republic cannot survive the erosion of Constitutional boundaries. This shortcut will yield greater mischief than the good that irregular removal seeks to achieve. One can only point to the mischief wrought by the removal of Joseph Estrada, for the then, seeming good of ascension by Gloria Arroyo. That disaster was also occasioned by a Court with good intentions, but with no fealty to the Constitution. 

“For the above reasons, it is respectfully prayed that the petition for quo warranto be dismissed for lack of jurisdiction.”

***

Blog:www.ellentordesillas.com
Email:ellentordesillas@gmail.com
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