The appointment to a particular public office of one who is not qualified for that office is void ab initio, or void from the very beginning. As
pointed out in this column last week, the legal recourse against a void appointment is a petition for quo warranto filed in court by the solicitor general.
An impeachment proceeding presupposes that the public officer sought to be impeached was validly appointed to the public office. If the appointment is void to begin with, quo warranto, not impeachment, is the proper legal remedy—even against an impeachable officer.
Sadly, many politicians and opinion leaders who do not understand Constitutional Law have mistakenly condemned Calida’s petition for quo warranto as an illegal shortcut in lieu of impeachment. Some of them even likened quo warranto to a disbarment suit against an impeachable official, which cannot be filed against a sitting justice of the Supreme Court.
To repeat, they are mistaken.
A disbarment suit against an incumbent justice of Supreme Court assumes that the appointment of the justice is valid. Since an impeachable official whose appointment is valid may be removed only by impeachment, a disbarment suit is, indeed, an illegal shortcut to remove the justice from office.
Quo warranto is not a shortcut in lieu of impeachment because the questioned appointment in a quo warranto proceeding is void. Legally speaking, a void appointment means nobody was validly appointed. Therefore, quo warranto does not oust anyone from office, precisely because when the appointment is void, there is nobody to oust from office in the first place.
Impeachment is removal from office for specific wrongdoing. Since a void appointment is not among the grounds for impeachment enumerated in the Constitution, a justice of the Supreme Court whose appointment is void cannot even be removed by impeachment.
Last week, this column discussed the petition for quo warranto filed in the Supreme Court by Solicitor General Jose Calida against Chief Justice Maria Lourdes Sereno. Calida contends that the appointment of Sereno as chief justice in 2012 is void because she failed to comply with a requirement imposed by the Judicial and Bar Council—submit her statement of assets, liabilities and net worth for the ten years prior to her appointment as chief justice.
Assuming that Sereno did not comply with the JBC’s SALN submission requirement, does her non-compliance render her appointment as chief justice void?
To answer that question, it must be ascertained if the JBC may add to the qualifications imposed by the Constitution for appointment to the Supreme Court. The submission of the SALN is not among those qualifications listed in the Constitution. Can the JBC add to that list?
As pointed out in this column last week, the JBC does not have the power to add to that list. The inference is that the JBC’s requirement that Sereno submit her SALN for ten years prior to 2012 is not a constitutional mandate but one imposed by the JBC.
That inference, however, is belied by Section 17, Article XI of the Constitution, which requires all public officers, including justices of the Supreme Court, to submit their SALN every year, and on time. This means that the SALN submission imposed by the JBC on Sereno is mandated by the Constitution itself.
Since Sereno was a professor of law in the University of the Philippines and an associate justice of the Supreme Court prior to her 2012 appointment as chief justice, then she was already covered by the constitutional mandate to submit her SALN annually even before she was appointed chief justice. If, as alleged by Calida, Sereno failed to do so, then Sereno failed to comply with a continuing requirement imposed on her by the Constitution at the time she was appointed chief justice.
Non-compliance with a requirement explicitly mandated by the Constitution renders any right or claim to public office unwarranted and, therefore, void. Accordingly, Calida may argue that Sereno’s non-compliance with the SALN submission requirement imposed on her by the Constitution and by the JBC is enough legal basis to declare her 2012 appointment as chief justice void.
Earlier on, it was reported that Sereno was unable to submit to the JBC her SALN (covering the 10-year period prior to her appointment as chief justice) because some of her SALN for the years she was a UP professor were missing. Surprisingly, Sereno’s camp recently announced that Sereno’s SALN for that ten-year period are complete after all, and that Sereno will submit them at the “appropriate forum.”
Sereno, however, was required to submit the required SALN to the JBC in 2012. Will a belated compliance cure the alleged defects in her appointment as chief justice in 2012? The answer is in the negative.
If one who was appointed to public office did not comply with a requirement imposed upon him at the time of his appointment, then the appointment is necessarily void ab initio. Being void from the beginning, the appointment was doomed from the start, and it cannot be validated by a subsequent event. Restated, there is nothing to validate in a void appointment.
The fact that the Constitution and the Anti-Graft and Corrupt Practices Act explicitly require top officials of the country, including justices of the Supreme Court, to submit their SALN on an annual basis, and considering that the Constitution itself mandates that the SALN shall be disclosed to the public, the obligation of a justice to submit his SALN should not be treated as an ordinary documentary requirement. The SALN’s explicit mention in the Constitution underscores that its submission has the character of constitutional policy.
This means that the non-submission of an appointee’s SALN at the time it is required from the appointee undoubtedly renders his appointment constitutionally infirm and defective from the start, and that belated compliance with the requirement should not be allowed to cure that constitutional infirmity.
To hold otherwise is to allow a mockery of constitutional policy.