Experts agree: Supreme Court will have last say on Sereno

MANILA, Philippines – Legal experts believe that Chief Justice Maria Lourdes Sereno can only be removed via impeachment, but they all submit that the Supreme Court (SC) will have the last say.

The High Court can either let the impeachment proceedings in Congress take their course or set a precedent for a quo warranto removal.

“The Court is the final arbiter of the Constitution, they have the final say. You might want to disagree with the Supreme Court but they have the final say," said constitutional law professor and former solicitor general Florin Hilbay on ANC's Headstart.

"Ultimately, it is the SC that will say what the law is and what rules will apply. Only the current composition can decide whether the Court is going to be passive and exercise judicial restraint, or whether it is going to be an activist court that will set precedent and create another avenue for the removal of a sitting Chief Justice," said Integrated Bar of the Philippines (IBP) national president Abdiel Dan Elijah Fajardo.

Hilbay and Fajardo are of the position that Sereno can only be removed by impeachment.

Fajardo acknowledged that Sereno faces an uphill battle in convincing the SC to drop the quo warranto petition, as it is becoming more obvious that she doesn't enjoy the support of her colleagues on the bench, and even some SC employees.

"The Chief Justice is concededly unpopular among her colleagues. But then a strict application of the Constitution would have obviated attempts to whittle down its supremacy and further erode the independence of the judiciary as a whole," Fajardo said.

Comment order

Sereno's camp would have preferred that the SC did not entertain the petition at all.

For Fajardo, the SC's order for Sereno to comment does not mean anything yet.

"It was careful to say that the order was made without thereby giving due course to the petition. It may yet render a decision that will uphold the primacy of an impeachment tribunal," Fajardo said.

But a comment order is a comment order. The SC junked a similar petition filed by Oliver Lozano, yet wanted Sereno to answer the one filed by Solicitor General Jose Calida.

Associate Justice Marvic Leonen even voted that Calida's petition be dismissed outright but he was the lone dissenter.

Impeachment proceedings

The House of Representatives seems willing to wait for the Supreme Court  before they vote to impeach Sereno.

After the House committee on justice, the impeachment will go through the committee on rules to be included in the House calender, then it goes to the plenary for a final vote.

House Majority Leader Rodolfo Fariñas said that strictly speaking, they can have until October to vote – or they can have until October to wait for SC.

Sereno has to comment in 10 days. A reliable source said holding oral arguments after Sereno files her comment is on the table for the SC en banc.

If oral arguments are held, Fajardo said Sereno can argue that the SC has no jurisdiction over her. 

"[They can insist on jurisdiction first] before addressing the merits of the petition. But then, it is still the SC that will rule on it," Fajardo said.

Fajardo added that with the House's willingness to wait, the Senate as an impeachment court cannot assume jurisdiction "because it will only convene upon receipt of the articles of impeachment."

The Senate leadership believes the Senate has jurisdiction, and has prepared the robes to be used by the senator-judges.

LOOK: Senators’ robes for the possible impeachment trial of CJ Sereno @rapplerdotcom — Camille Elemia (@CamilleElemia) March 7, 2018


All the conflicting opinions are recipes of a crisis.

"It is the Constitution itself that might be undergoing a crisis," Fajardo said.

This crisis began when Calida entertained a letter by suspended lawyer Eligio Mallari, and filed the petition himself before the High Court.

"The Office of the Solicitor General seems to want to trailblaze jurisprudence by asking the SC to ignore the Constitution that allows the en banc to dismiss justices and judges of lower rank only," Fajardo said.

“If the Court rules that way, it opens up a potential can of worms, everybody's appointment can subjected to that kind of scrutiny, even non-constitutional requirements, you can question the election of the President by looking at certain filings he made at the Comelec, or whether he filed a SALN before,” Hilbay said.

What can avert this crisis? What can stop the SC from going down this path?

"The good sense of the justices," Hilbay said. –

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.