What role the word ‘may’ played in Sereno’s ouster

In ousting Chief Justice Maria Lourdes Sereno, the Supreme Court (SC) decided that the Constitution also allows the removal of an impeachable officer through other means, in this case, the quo warranto action.

Reading the Constitution as prohibiting a remedy other than impeachment -- such as a quo warranto action -- is "to deprive the State of a remedy to correct a 'public wrong' arising from defective or void appointments," the SC said.

On Friday, the high court made a landmark decision when it expelled Sereno, a declared "enemy" of President Rodrigo Duterte, for "unlawfully" holding her post.

Voting 8-6, the SC granted the petition for quo warranto filed by Solicitor General Jose Calida in behalf of the Republic of the Philippines, which charged Sereno with lack of integrity over an alleged incomplete filing of her Statements of Assets, Liabilities and Net Worth.

These numbers must not be confused with the 9-5 vote on the issue of whether or not Calida's petition was the "proper remedy" to oust Sereno. Before her ouster, she also faced possible impeachment at the House of Representatives.

How the SC came to its decision required, in part, semantics. At the outset, the tribunal's majority interpreted a constitutional provision that provides for the mode for how impeachable officers can be unseated.

Section 2, Article XI of the 1987 Constitution states:

"The President, the Vice-President, 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."

"We hold, therefore, that by its tenor, Section 2, Article XI of the Constitution allows the institution of a quo warranto action against an impeachable officer," read the 153-page ruling penned by Associate Justice Noel Tijam.

Tijam is one of the six justices that Sereno asked to recuse from the quo warranto proceedings due to alleged bias.

"After all, a quo warranto petition is predicated on grounds distinct from those of impeachment. The former questions the validity of a public officer's appointment while the latter indicts him for the so-called impeachable offenses without questioning his title to the office he holds," the ruling said.

It further stated that the provision's "absolute" enumeration of impeachable offenses is "not equivalent" to saying that this list of grounds for impeachment is the "complete statement of the causes of removal from office."

'Mere possibility'

Referencing the SC's decisions on Bayan V. Romulo in 2011 and Muñoz v Commission on Elections in 2006, Tijam's ponencia said Section 2, Article XI used the "permissive" word "may," which "in statutory construction, denotes discretion and cannot be construed as having a mandatory effect."

"It is a settled rule of legal hermeneutics that if the language under consideration is plain, it is neither necessary nor permissible to resort to extrinsic aids, like the records of the constitutional convention, for its interpretation," the ruling said.

"We have consistently held that the term ‘may’ is indicative of a mere possibility, an opportunity or an option. The grantee of that opportunity is vested with a right or faculty which he has the option to exercise. An option to remove by impeachment admits of an alternative mode of effecting the removal," it added.

More, it referenced American author Burke Shartel who wrote, in the context of the US Constitution, that the provision on impeachment "ought not to be taken as a tacit prohibition of removal by other methods."

On the other hand, Associate Justice Marvic Leonen, one of the six dissenters against Sereno's ouster, said that while the Constitution does not say impeachable "may only" be ousted through impeachment, this should not immediately be taken to mean "that another process - like quo warranto - was possible."

"The context of the provision should be taken into consideration," Leonen said in his dissenting opinion.

"To focus on the dictionary meaning of the word 'may' precludes the importance of the entire document. It provides a myopic and unhistorical view of the framework on which our legal order rests. It supplants sovereign intent to the linguistic whims of those who craft dictionaries," he wrote.

The Constitution says the president, the vice president, members of the Supreme Court and the constitutional commissions on elections, audit, and civil service, and the Ombudsman are impeachable.

Critics of Calida's petition had warned that voting for the quo warranto petition would render vulnerable several government officials. Former solicitor general Florin Hilbay, for one, said the success of Calida's oust-Sereno bid would "open a can of worms."

"You can question anybody else’s appointment or election if that person is an impeachable official," he said in a television interview in March.

Sereno herself had painted a grim scenario if Calida won: “It is effectively dictatorship, because the future of so many, the rights of so many, are being held in the hands of the solicitor general and his boss,” she said late April.

Rule 66 of the Rules of Court states that an action for quo warranto -- Latin for "by what authority" -- may be started by a verified petition brought in behalf of the Republic against, among others, "a person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise."

Sereno's interpretation of 'may'

In her court filings seeking Calida's petition for lack of jurisdiction, Sereno asserted that she, a member of the SC and therefore an impeachable officer, could only be removed via impeachment.

Her references were Section 2, Article XI of the Constitution, as well as the Court's decisions on at least four cases, one of which --  "In Re: First Endorsement from Hon. Gonzales" -- was also cited by Senior Associate Justice Antonio Carpio, also a dissenter of her ouster, in his separate opinion.

"The use of the word 'may' in a statute does not always imply that the rule is merely permissive. Neither does 'may' denote non-exclusivity, or that impeachable officers may be removed by means other than impeachment," Sereno argued in her memorandum, one of her last filings against the quo warranto petition.

"In order to understand the true meaning of the word 'may,' one must consider the entire provision, its nature, its object and the consequences that would follow from construing it one way or the other,” she said.

Rebutting Sereno, Calida raised what Tijam's ponencia states: the word "may" is "permissive." Besides, he said, the 1935 and the 1973 Constitution both used the words "shall" and "only."

"Plainly stated, the 1987 Constitution does not state that impeachment is the sole method of removing an impeachable officer. The primary source from which to ascertain constitutional intent or purpose is the language of the constitution itself," Calida said in his own memorandum.

Now ruling, the SC also rejected Sereno's argument that the word "may" qualifies only the imposable penalty at the end of an impeachment trial, such that conviction may lead to lesser penalties than removal from office.

"The ultimate penalty of removal is imposed owing to the serious nature of the impeachable offenses," the ruling stated.

Extending SC powers

In this landmark decision, the SC held that the courts should be able look into the validity of appointments --- even those of impeachable officers.

"To subscribe to the view that appointments or election of impeachable officers are outside judicial review is to cleanse their appointments or election of any possible defect pertaining to the Constitutionally-prescribed qualifications which cannot otherwise be raised in an impeachment proceeding," Tijam's ponencia said.

"To hold otherwise is to allow an absurd situation where the appointment of an impeachable officer cannot be questioned even when, for instance, he or she has been determined to be of foreign nationality or, in offices where Bar membership is a qualification, when he or she fraudulently represented to be a member of the Bar."

If this "absurd" scenario played out, an otherwise "clearly disqualified" officer could continue performing his or her functions, unless the offenses were grounds for impeachment, the SC said.

"Such would result in permitting unqualified and ineligible public officials to continue occupying key positions, exercising sensitive sovereign functions until they are successfully removed from office through impeachment. This could not have been the intent of the framers of the Constitution," it held.

Sereno is expected to appeal her colleagues' decision. As pointed out by at least two law experts and court observers, the 8-6 verdict that booted her out would take just one vote to swing.

Sereno, a former associate justice, private lawyer, and law professor, was the 24th Chief Justice of the Philippines -- the first woman and the second youngest person to hold the post.

She was 52 when she was appointed by then President Benigno Aquino III in 2012. Had she not been ousted, and provided that she would not be impeached and convicted, she would have led the judiciary for 18 years, or until 2030, when she reaches the mandatory retirement age of 70.

The SC Public Information Office has released the main decision and separate opinions on the unprecedented case of Sereno's ouster. They can be accessed through the SC website. —ALG, GMA News

RELATED LINKS:

Main decision

• SC: Sereno failed to file SALNs, unfit to be Chief Justice
• 6 justices weren't biased against Sereno —SC ouster decision

Concurring opinion

• De Castro: Sereno appointment is void due to lies, deception
• Martires denies ‘faith shaming’ Sereno: I’d be crazier than her if I did that

Dissenting opinions

• Caguioa on Sereno ouster: SC committed suicide without honor
• Leonen: Quo warranto a legal abomination
• Carpio: SC rewrote constitution with Sereno ouster