Deciding not to decide | Inquirer Opinion
With Due Respect

Deciding not to decide

The Supreme Court effectively decided not to decide at this time the issue of whether or not to pulverize the quo warranto (QW) sword of Damocles hanging above the heads of its justices.

If that sentence is difficult to understand, let me give a short background. Recall that in three columns on April 18, May 16, and June 6, I respectfully opined that before allowing Justice Edgardo L. delos Santos to retire optionally prior to his 70th birthday on June 12, 2022 and granting him full retirement benefits, the Court should first resolve the petition to oust him via QW.


Recall also that the Court dismissed the said QW petition due to procedural errors (“wrong remedy… failure to pay docket fees… etc.”). Subsequently, a new petition for certiorari basically alleging the same grounds as the earlier QW petition was filed against him.

In my said columns, I urged the Court to treat the new petition as a motion for reconsideration (MR) of the dismissed QW petition and to decide it on its merits by reversing the doctrine in Republic v. Sereno (May 18, 2018) authorizing the removal of justices via QW.


I humbly asked the Court to “restore the shroud granted by the Constitution to the Supreme Court to protect its independence: Justices may be removed only by impeachment and only for the grounds clearly provided therein.”

Though the Court indeed treated the new petition for certiorari as an MR of the old one for QW, nonetheless, it dismissed the MR via a short shrift on the same procedural grounds. The Court, with due respect, placed more value on procedural technicalities than on a substantive decision to free its members from the risk of being ousted via QW and to restore impeachment as the only process to remove them from office.

Fortunately, the Court did not rule out a future possibility that when and if a proper petition is filed, it would then face the issue squarely and decide the case on its merits. That possibility, in my humble view, may arise in at least three ways.

The first is if and when a new procedurally-correct petition for QW is filed in the Court against an incumbent member. To oust via QW, the vote of only a majority of the justices without need of a trial-type hearing is enough.

In contrast, impeachment requires a majority vote of the House committee on justice to determine the sufficiency in form and substance of the complaint for impeachment. Thereafter, by majority vote also, it may send the articles of impeachment to the plenary session of the whole House.

Should the said articles obtain “at least one-third of all the Members of the House,” they would be sent to the Senate which would conduct a “trial.” Under the Constitution, “No person shall be convicted without the concurrence of two-thirds of all (its) Members”—at least 16 of the 24 senators. Clearly, the congressional process to remove a justice is more careful, cautious, and rigorous compared with the process in the Court.

The second is if and when a petition is filed to restore Maria Lourdes P. A. Sereno to her former post as CJ on the ground that the decision in Republic v. Sereno was void ab initio for having been issued with grave abuse of discretion and for being unconstitutional.


Note that the Constitution does not mention, and the framers never discussed, QW as a method to remove justices. Neither did it expressly authorize the failure to file SALNs as a ground to remove them.

Yet, the Court ousted its chief via QW for her failure to file SALNs prior to her incumbency without a Senate-style trial, and by a simple majority only (8-6, the CJ inhibited) of its members.

The third is if and when Congress passes a law repealing the QW doctrine on the arguable theory that jurisprudence forms part of the law of the land which can be repealed or modified by Congress, and that the QW doctrine does not constitute an interpretation of the Constitution over which the Court is supreme. As I said, this is arguable and may not happen at all. However, should it happen, a petition to test the new law’s validity can then be filed in the Court.

In sum, I respectfully disagree with the short shrift accorded by the Court to the QW petition challenging the qualifications of Justice Delos Santos. Nonetheless, the Court has spoken, and this ancient retiree (and everyone else for that matter) is bound by its verdict. And as we always say in the Court, we can agree to disagree without being disagreeable, and we can differ without being difficult.

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TAGS: Artemio V. Panganiban, Edgardo L. delos Santos, quo warranto petition, Supreme Court, With Due Respect
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