Carpio: Sereno violated the Constitution

But should be removed through impeachment, not quo warranto

(Excerpts from dissenting opinion)

THIS quo warranto petition, filed by the Republic of the Philippines, represented by the Office of the Solicitor General (OSG), seeks to nullify the appointment of respondent Maria Lourdes P. A. Sereno as Chief Justice of the Supreme Court, an impeachable officer under Section 2, Article XI of the Constitution, for lack of proven integrity which is required under Section

7( 3), Article VIII of the Constitution for appointment to a judicial post. Petitioner asserts that respondent’s repeated failure to file her Statement of Assets, Liabilities, and Networth (SALN) as required by law shows lack of integrity.

No less than the Constitution mandates the filing of the SALN by all public officers and employees upon assumption of office and as often thereafter as may be required by law.

Respondent Chief Justice Sereno’s Situation

There is no dispute that respondent was a faculty member of the UP College of Law from 1986 to 2006. Being a government employee at the time, respondent was required to file the SALN annually.

The OSG claims that respondent “deliberately failed to file her SALN with her [government] employer, UP, eleven times in her twenty years as a law professor.” To prove its claim, the OSG submitted a Certification from the UP HRDO which stated that “based on the 201 files of [respondent] under the custody of the Information Management Section of the [UP HRDO], it was found that between the period 2000-2009 the SALN submission on file is as of December 31, 2002.” Further, in a Letter addressed to the OSG dated 6 March 2018, UP HRDO Director Escoto stated that only the SALNs of respondent for the years 1985, 1990, 1991, 1993, 1994, 1995, 1996, 1997, and 2002 were found in the UP HRDO records. The OSG likewise submitted a Certification from the Office of the Ombudsman Central Records Division which stated that “there is no SALN filed by MS. MARIA LOURDES A. SERENO for calendar years 1999 to 2009 except SALN ending December 1998 xx x.”

The submission by the OSG of the UP HRDO Certification and Letter and the Ombudsman Certification constitutes prima facie proof of respondent’s non-filing of her SALNs for a certain number of years during her employment at the UP College of Law. In other words, the OSG successfully satisfied the burden of proof by submitting the UP HRDO and Ombudsman Certifications which constituted prima facie evidence that respondent did not file her SALNs for the years 1986, 1987, 1988, 1992, 1999, 2000, 2001, 2003, 2004, 2005, and 2006, during which respondent was employed as a UP College of Law Professor. Thus, if uncontradicted, this prima facie evidence is considered sufficient to sustain respondent’s liability for non-filing of her SALNs. It is therefore incumbent upon respondent to rebut and overthrow the OSG’s prima facie evidence by presenting her own evidence to the contrary. In short, the burden of evidence now shifted to respondent to disprove the OSG’s evidence against her.

[In her 23 July 2012 letter to the JBC,] respondent made it appear that she had filed her SALNs with the UP HRDO during her employment as a UP College of Law Professor but she could no longer find her personal copies of her SALNs. Respondent manifested to this Court in her Memorandum that she “religiously filed her SALNs.” If indeed she had religiously filed her

SALNs but her personal copies were lost, she could easily have secured a Certification from the UP HRDO that she had filed her SALNs. The requirement to submit SALNs was announced through advertisement in a newspaper by the JBC. Respondent never secured a certification from the UP HRDO as to her SALNs on file in that office. Her failure to secure such certification exposes as a misrepresentation her claim that she could not find her SALNs. For how could she find her personal copies of her SALNs when there is no record that she filed her SALNs for the years 1986, 1987, 1988, 1992, 1999, 2000, 2001, 2003, 2004, 2005, and 2006 with the UP HRDO?

Effect of Respondent’s Failure to File SALN within 30 days from Assuming Office

[ W]hen respondent was appointed as Associate Justice of the Supreme Court and assumed such position on 16 August 2010, respondent was duty-bound to submit a SALN in the prescribed form and within the period specifically required by the Constitution, law, and rules.

Since respondent took her oath and assumed her position as Associate Justice of the Supreme Court on 16 August 2010, she was required to file under oath her SALN within thirty (30) days after assumption of office, or until 15 September 2010, and the statements must be reckoned as of her first day of service, pursuant to the relevant provisions on SALN filing.

However, respondent failed to file a SALN containing sworn statements reckoned as of her first day of service within thirty (30) days after assuming office. While she allegedly submitted an “entry SALN” on 16 September 2010, it was unsubscribed and the statements of her assets, liabilities and net worth were reckoned as of 31 December 2009, and not as of her first day of service, or as of 16 August 2010.

The Constitution, law, and rules clearly require that the sworn entry SALN “must be reckoned as of his/her first day of service” and must be filed “within thirty (30) days after assumption of office.” Evidently, respondent failed to file under oath a SALN reckoned as of her first day of service, or as of 16 August 2010, within the prescribed period of thirty (30) days after her assumption of office. In other words, respondent failed to file the required SALN upon her assumption to office, which is a clear violation of Section 17, Article XI of the Constitution. In light of her previous failure to file her SALNs for several years while she was a UP College of Law Professor, her failure to file her SALN upon assuming office in 2010 as Associate Justice of this Court constitutes culpable violation of the Constitution, a violation committed while she was already serving as an impeachable officer.

Jurisprudence on Failure to File SALN

Respondent harps on the case of Concerned Taxpayer v. Doblada, Jr. to justify her claim that she is not liable for non- filing of SALN since she religiously filed her SALNs while she was teaching in UP.

In Doblada, the Office of the Court Administrator (OCA) issued a certification that Doblada had no SALNs on file for certain years, including for 2000. Doblada claimed he filed all his SALNs through the Clerk of Court. Doblada presented a letter from the Clerk of Court certifying that the latter transmitted to the OCA Doblada’s SALN for 2000. The Clerk of Court is tasked to forward all SALNs filed with his office to the OCA which is the custodian of SALNs for lower courts. The Clerk of Court merely collects for the OCA. The Court held that the OCA certification is not conclusive, and Doblada could not be held liable for non-filing of his SALNs.

In Doblada, the OCA certification satisfied the burden of proof that Doblada did not file his SALNs for a number of years, and thus, the burden of evidence shifted to Doblada. However, the Clerk of Court letter, a countervailing evidence submitted by Doblada, was sufficient to shift back the burden of evidence because the Clerk of Court letter cast doubt on the record keeping of the OCA insofar as Doblada’s SALNs were concerned. In short, the OCA Certification did not constitute conclusive evidence that Doblada did not file his SALNs, precisely because it was discredited by the Clerk of Court letter, and thus, Doblada could not be held liable for non- filing of his SALNs.

In the present case, the Doblada doctrine cannot apply because respondent did not file any countervailing evidence to cast doubt on the record keeping of the UP HRDO. Respondent should have presented a certification from the Secretary of the UP College of Law that she submitted all her SALNs with the College Secretary during her entire employment with the UP College of Law.

Jurisdiction to Remove an Impeachable Officer

Section 2, Article XI of the Constitution provides: “The President, the VicePresident, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.”

According to the ponente, “the language of Section 2, Article XI of the Constitution does not foreclose a quo warranto action against impeachable officers. x x x. To construe Section 2, Article XI of the Constitution as proscribing a quo warranto petition is to deprive the State of a remedy to correct a ‘public wrong’ arising from defective or void appointments.”

The ponente posits that “while impeachment concerns actions that make the officer unfit to continue exercising his or her office, quo warranto involves matters that render him or her ineligible to hold the position to begin with. “This is erroneous.

Section 2, Article XI of the Constitution expressly provides the mode of removal from office of “the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman.” Removal from office of these public officers shall only be by impeachment, and not through any other mode.

The provision mandating removal only by impeachment is “the Constitution’s strongest guarantee of security of tenure. The guarantee effectively blocks the use of other legal ways of ousting an officer.”

The House impeaches, and the Senate convicts. This is the only method allowed under the Constitution to remove a member of this Court. To allow any other method is to re-write the Constitution. To permit this quo warranto petition to remove an incumbent member of this Court is to violate the Constitution.

The grounds for impeachment are: culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, and betrayal of public trust.

The catch-all phrase “betrayal of public trust” covers every conceivable misconduct by an impeachable officer, whether committed while in government service before the appointment, at the time of application for the office, or after appointment to office. Any misrepresentation on material matters at the time of application for office is an integrity issue subsumed under the phrase “betrayal of public trust.”

As I pointed out earlier, the repeated failure to file SALNs constitutes culpable violation of the Constitution and betrayal of public trust, grounds for removing an impeachable officer. While the failure to file SALN s may also raise questions on the integrity, and thus the qualification, of an

applicant for Justice of the Supreme Court, the relevant applicable violation, for purposes of removing such impeachable officer once already in office, is culpable violation of the Constitution and betrayal of public trust. Only Congress, through the impeachment process, can remove an impeachable officer on these grounds.

If a court finds that an impeachable officer has committed an impeachable act, the court should refer the matter to Congress, for Congress to exercise its exclusive mandate to remove from office impeachable officers. No court, not even this Court, can assume the exclusive mandate of Congress to remove impeachable officers from office.

Such a decision will put this Court on a collision course with Congress if subsequently an impeachment complaint for plagiarism is filed with Congress against the sitting Justice. Incidentally, an impeachment complaint has already been filed in the House of Representatives involving the same complaint subject of this administrative case. If the House of Representatives decides to take cognizance of the complaint and initiates an impeachment based on the same administrative complaint that this Court had already dismissed as baseless, then this Court would have created a constitutional crisis that could only weaken the public’s faith in the primacy of the Constitution.

Thus, this Court should treat the present quo warranto petition as an administrative investigation by this Court of one of its members. The resolution of this Court should be to refer its findings and recommendation against respondent to Congress.