Notes on ousting a Supreme Court Justice or Chief Justice by Quo Warranto

if on mobile device, pls click “Listen in browser” on the soundcloud pod below to play …

 

 

Notes on ousting a Supreme Court Justice or Chief Justice by Quo Warranto

(may ginagawa po ako pero isiningit ko lang po ito nang mabilis)

      Under the Constitution of the Philippines, the qualifications to be a member of the Supreme Court are: 1.Must be a natural-born citizen; 2.Must be at least 40 years old; 3.Must have engaged in the practice of law for at least 15 years or must have been a judge for 15 years.

      Here is the verbatim provision of the Constitution on the qualifications to be a member of the Supreme Court (in itals and blue font) :
Art. VIII, Section 7. (1) No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.
Quo warranto proceedings under the Rules of Court to oust a public official from office may lie when the public official “usurps, intrudes into, or unlawfully holds a public office…”, as follows (in itals and blue font):
      Rule 66. Quo Warranto. Section 1.Action by Government against individuals. — An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:
     (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;
     (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or
        (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

xxx Section 11. Limitations. — Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose, nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioner’s right to the office in question. 
In order words, in order that quo warranto proceedings can be instituted to oust a public official from the office he/she holds, it must be shown that said public official is unlawfully holding such public office.
A public official is considered to be holding a public post illegally if he/she was never legally qualified to hold such office. The legal qualification is found, obviously, in the law. In the case of members of the Supreme Court, the legal qualifications are found in the Constitution, Article VII Section 7 aforequoted.
In other words, a member of the Supreme Court is considered to be holding his/her post illegally if he/she did not meet the qualifications set forth in the Constitution when he/she was appointed to the post, namely the following qualifications as stated earlier: 1.Must be a natural-born citizen; 2.Must be at least 40 years old; 3.Must have engaged in the practice of law for at least 15 years or must have been a judge for 15 years.
In other words, the Chief Justice or any Justice of the Supreme Court may be “quo warrantoed” if: 1.Not a natural-born citizen; or 2.Younger than 40 years old when appointed; or 3.Does not have at least 15 years of law practice or 15 years of experience as a judge.
There is no allegation in the quo warranto petition filed by the Solicitor General that the Chief Justice is any of these. For that matter, there seems to be no showing anywhere that any member of the Supreme Court is any of these.
Hence, the petition is dismissable on its face.
If the quo warranto petition is entertained by the Supreme Court, then any Justice of the Supreme Court, any incumbent President of the Republic, any Senator, Congressman, governor, judge, mayor, etcetera, is “quo-warrantoable” or can be “quo warrantoed” at any time and for any ground outside of  lack of the legal qualifications of such public official. 

     It will result in the apocalyptic spectacle of thousands of quo warranto petitions being filed against all government officials for grounds other than not having legal qualifications — a wreaking of havoc upon the Constitution and a figurative wrecking ball upon the Rules of Court.

Just in: “CJ Sereno goes on indefinite leave after SC en banc confrontation” -Ina Reformina of ABS-CBN) tweets

if on mobile device, pls click “Listen in browser” on the soundcloud pod below:

first posted at 12:16pm: “CJ Sereno goes on indefinite leave after SC en banc confrontation” -Ina Reformina of ABS-CBN) tweeted, citing an unnamed source. Blog admin has not independently confirmed this item.

Disbursement Acceleration Program (DAP): Constitutional law issues: Realignment versus technical malversation

     You know what? There are actually constitutional law issues with how the President used the newly exposed so-called Disbursement Acceleration Program or DAP.

     According to Budget Secretary Butch Abad, they’re from savings.

      The funds given to the senators, exposed by accidental, ex-future “whistleblower” Jinggoy (my god, I can’t believe I said  whistleblower,  but I put in in quotes! And I said accidental! And ex-future because he stopped short, hindi nya tinuloy-tuloy.  He thought it was a simple case of bribery in exchange for convicting CJ Corona. I bet he didn’t realize there were constitutional law issues. And requisites. And if the President did not comply with the constitutional requirements, it’s an open-and-shut case of technical malversation. And a violation of the constitution. Now he has something to leverage with for the plunder case) totalled 1.107 billion pesos. The P1.107 B was  released to the senators at, at least,  P50 million pesos apiece; supposedly from savings of various government agencies.

    Presumably, these savings, if true, accrued the previous year, 2012, and/ or 2011, when the concept of DAP was introduced in the national budget, according to the budget secretary.

      Now… they – the DBM, the Palace spokespersons, the Palace lawyers, etc. etc., have not itemized , upon demand or upon questions from the news media,  what these government agencies are,  whence the so-called savings were taken.  They are still listing them down daw. Why are they taking a long time to produce the list?

    The manner by which the Office of thePresident re-allocated the funds should be examined, because the funds were juggled.

      The Palace spokesperson said that the President realigned the savings based on Article VI ( Legislative Department), Section 25, paragraph 5, as follows:

      Article VI Sec. 25 para. [5]: “No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law from their respective offices from savings in other items of their respective appropriations.”

       Get your pens and papers —  constitutional law construction (interpretation). This is a provision found under the article on the  legislature, not the executive, granting powers to the legislature and the limits to those powers.

      Section 25, paragraph 5 states that Congress cannot pass a law that authorizes any transfer of appropriations – that’s the general rule. Except that: “the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law,”   be authorized to add funds to (or to “augment”)  any item in their office from savings of other items in the appropriation for their office.

      Since this is an exception, it is construed strictissimi juris or strictly in conformity with the terms of the provision.  The policy of the Consitution as stated in said provision, is not to allow any law that authorizes the transfer of appropriations; except that the heads of the three branches of government (and the constitutional commissions) can, by law, be allowed to use up savings from one agency to another within their branch of the government.  In case of doubt or dispute, the grant of authority will be interpreted strictly, to conform with the terms of the grant.

     Therefore, the constitutional requisites must be complied with for the act to be considered as being in conformity with the Constitution, to wit:

     First:  Were there savings? Are all the savings from agencies under the Office of the President? (I think they can hurdle this).

    Second, the constitution requires a law authorizing the President. Budget Secretary Abad said the DAP was introduced in the 2011 national budget or the 2011 General Appropriations Act. That’s a law, but what were the exact terms  of the DAP provision  in the 2011 GAA? Is it in conformity with the terms of Section 25 par. 5, i.e., to augment an item under the President’s office from savings from other items in his office?

     Third, if it’s in the 2011 GAA, was it re-enacted in the 2012 GAA? The 2011 GAA lapses after the budget year. It is  a “law”  for that year, legalizing all appropriations for that year – unless re-enacted in full. Since the distribution to the senators occurred in 2012,  was it re-enacted in the 2012? If re-enacted in 2012, what were its terms?

     Let’s presume the provision in the GAA authorizing the President to re-distribute the DAP was couched in general terms, such as: to “ramp up spending and help accelerate economic expansion”, etc.. Since this is a motherhood statement, we go back to the constitutional provision.

     That’s the fourth requisite: It must be:  “to augment any item in the general appropriations law from their respective offices…”(Art. VI.  Sec. 25, par. 5). “(T)o augment any item” means to add funds to the item. And “from their respective offices” refers to the office of each of the officials named in the provision:  “the  President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions…” (Art. VI.  Sec. 25, par. 5).

      In other words, the President may be authorized to augment any item under his office,  or add funds to any item under his office, sourced  from  “savings in other items of their respective appropriations.” (Art. VI.  Sec. 25, par. 5).  In other words: He can be authorized by law to use savings from one agency to another agency all under the Office of the President.

      A simple illustration would be: If the Department of Tourism has savings of, say, ten million pesos, the President, under the DAP provision, can realign it to the building of schoolhouses and put it under the Department of Education (but for this, the DAP provision would have to be re-enacted for the succeeding year).

      Here in the 2012 distribution of the DAP, the President realigned it to… the senators. Assuming the act conforms with the other requirements of the constitutional provision, does it conform with the constitutional requisite that it should be “to augment any item in the general appropriations law from their respective offices…”(Art. VI.  Sec. 25, par. 5).

      The Palace can argue, but the senators named implementing agencies, which were government agencies under the Office of the President.

      But it was  given to the senators. It is only by accident that some of the funds went to implementing agencies.

    If it does not conform to the requisites of the Constitution, then you’re looking at the Revised Penal Code (Art. 220 on technical malversation, which is easier to prove than bribery, just produce the documents realigning the funds without authority and show damage); you’re also looking at disallowances: the 1.107 billion pesos has to be paid off the pockets of the government official who authorized  the realignment; and  — i hate to say this, I really do – but if it does not conform with the constitutional requisites, you’re looking at a violation of the Constitution and whether or not it’s culpable – I hate to say that, I hope nag-ingat kayo nang ginawa nyo ito (i hope you were careful when you juggled this).

     (sorry i wrote this… in my posts two weeks ago, i justified the President’s exercise of the commander-in-chief powers in the way he directly supervised the armed forces during the Zamboanga standoff… i had nothing to post today and there was a constitutional law issue … and no one was spelling out in detail this particular constitutional law issue arising from the act of the President at realigning funds from agencies under his Office to the senators’ pockets, ehe, er, to the senators.)