Forward0
By: Joy Aceron*
The removal of Supreme Court Chief Justice Ma. Lourdes Sereno from office is a serious blow to accountability. Sereno has been one of those calling out the abuses of the Duterte government. In doing so, the President has singled her out, like he did opposition Senator Leila de Lima, who is now in jail.
In a press briefing in April, Duterte declared that Sereno is “bad” for the country. “I am putting you on notice that I am now your enemy. And you have to be out of the Supreme Court,” Duterte told Sereno.(https://www.philstar.com/headlines/2018/04/09/1804326/duterte-tells-sereno-i-am-now-your-enemy#PZz2uQxQIh0IbZ9b.99)
In no time, in a 9-to-6 vote, Sereno has been removed as Supreme Court Chief Justice through the now-infamous "quo warranto" petition. (https://www.rappler.com/nation/202236-sereno-ousted-supreme-court-quo-warranto-decision)
The 1987 Constitution only provides for one means to remove any member of the Supreme Court, similar to the President, Vice President, the members of the Constitutional Commissions and the Ombudsman. This is through "impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." Article XI: Accountability of Public Officers Section 2).
The Solicitor General, who filed the quo warranto petition, raised that the Constitution did not limit the means to remove government officials to impeachment. There could be other means, such as ineligibility for position, the premise of the Solicitor General's quo warranto appeal. Such petition seeks to totally nullify the appointment of the concerned official on the basis of ineligibility or not being fit to hold the post s/he is occupying in the first place. (http://news.abs-cbn.com/news/05/11/18/primer-the-office-of-the-solicitor-general-quo-warranto-plea)
This paper argues that the quo warranto proposition is unconstitutional, abusive and has serious negative implications on accountability.
Only one way: impeachment, then conviction
If the Constitution meant to provide other means to remove Supreme Court (SC) justices or made the question of means open, it should have stated so. The provision on how to remove SC justices is not open-ended. It is not in anyway structured as an open-ended statement.
The provision on how to remove SC justices (including other highest officials) cited only one specific means: impeachment then conviction. The use of the word "may" qualifies/ refers to the specific means that the said provision provided/ enumerated. If the use of "may" meant that what it enumerated was just one of the means possible, the statement should have been open-ended, it should have said "and other means that madness could think of" or something (which the quo warranto is).
Since the Constitution did not leave any open-ended statement on the means, but instead provided a specific means, what it provided is the only means.
Over a hundred law professors, including deans and former deans of law schools in different parts of the country have stated so in an open statement:
“We, members of law faculties, express our deep concern at the move to unseat the Chief Justice of the Supreme Court by means other than by impeachment...We have been taught in the College of Law that the Constitution provides only one means to remove a sitting Chief Justice. That is by impeachment by the House of Representatives and conviction after trial in the Senate. Any other means would be unconstitutional...” (https://www.philstar.com/headlines/2018/05/10/1813940/law-deans-professors-join-call-quo-warranto-dismissal)
Implications on accountability
The granting of the quo warranto has dangerous ramifications on accountability efforts, which also warrants reflections on the ways and means we hold public officials to account.
While the proponents of the quo warranto petition may argue that such "new mode" opens up another possibility to ensure the integrity of public office, it is also an action that goes beyond what is provided in the Constitution or the existing legal order, as I argued above.
Going beyond what is legal is not always wrong. People power, for instance, that has been used by the Filipinos to remove two presidents in office - one, a dictator and another, facing serious allegations of corruption - can be argued as extra-constitutional or going beyond what is provided in the Constitution.
Expanding and/ or overcoming the legal limits to exact accountability from the powerful few on behalf of the people is progressive and must be encouraged. There is, however, a difference between the two (quo warranto mode and people power) in pushing/ overcoming the legal limits.
The quo warranto decision pushes the legal limits in favor of accountability controlled by those in government, who ultimately are in positions of power, who determine who is eligible/ qualify or not. The petition was filed by the Solicitor General and decided upon by the other Supreme Court justices. Such so-called accountability exercise was left in the hands of a few -- again.
The petition was premised mainly on technicalities accessible (and likely relevant) only to those in power. In this case, it was used to settle internal bickering and partisan squabbles, which is common in government. With such a means available to those in government, expect many quo warranto petitions in the future, which is not only disruptive and counter-productive, but also serves those who are in power.
The open statement of law professors has foreseen this too:
"It will expose those involved to the same vicious cycle of extrajudicial removal process which will subvert the constitutional check and balance and endanger judicial independence."
People power, on the hand, tilts the balance of power in favor of the people. People power is a means that people could use to hold those power to account, particularly power that has been abusive and monopolistic. It was used by Filipinos to hold their presidents to account when the existing political-legal system has failed to do so even after many abuses and human rights violations inflicted by the government against its own people.
The recent news marks the continuing decline of the democratic order in the Philippines. The recent perversion of accountability pushes the momentum of the monopolization of Executive power, which undermines checks and balances, potentially paving the way for a dictatorship. It posts a serious warning too in the work for accountability: accountability has been the means of the people to hold power to account, but now it is also being appropriated by those in power to stop dissent by the people and establish control over the people.
*Joy Aceron is Convenor-Director of G-Watch (www.g-watch.org) and a Research Fellow at Accountability Research Center (accountabilityresearch.org) based in the School of International Service of the American University.