As pointed out in the first part of this essay, the historical precedents do not support Sereno’s insistence that Justices Teresita Leonardo-de Castro, Diosdado Peralta, Lucas Bersamin, Samuel Martires, Noel Tijam and Francis Jardeleza should have inhibited themselves from further participating in the resolution of the quo warranto case filed by Solicitor General Jose Calida against her in the Supreme Court.
To continue, there are many other precedents which ought to be cited.
Before he was appointed Associate Justice of the Supreme Court in 1967, Chief Justice Enrique M. Fernando was the legal counsel of President Ferdinand Marcos. Despite his obviously close ties with Marcos, Fernando did not inhibit himself in the numerous constitutional cases brought against the Marcos administration before and during martial law. Even the most rabid anti-Marcos litigants did not seek his inhibition.
Unknown to many, Fernando even voted against the validity of the 1973 Constitution, despite his close ties with Marcos. Fernando was also a staunch defender of the Supreme Court’s power of judicial review, a position that went against the views of known pro-Marcos justices.
Chief Justice Claudio Teehankee was appointed Associate Justice of the Supreme Court in 1968. Prior to that, he served as the personal lawyer of Ferdinand Marcos even before the latter was elected president.
During the 1965 presidential campaign, the Macapagal administration ordered the Board of Censors for Motion Pictures to ban the public exhibition of the Marcos biographical film “Iginuhit ng Tadhana.” As the legal counsel of then Senator Marcos, Teehankee argued the case in court and succeeded in getting the ban lifted.
Before his appointment by President Marcos to the Supreme Court, Teehankee was Marcos’ secretary of Justice. That appointment, of course, made Teehankee an alter ego of Marcos.
Like Fernando, Teehankee did not inhibit himself in the numerous constitutional cases filed in the Supreme Court against the Marcos administration—despite Teehankee’s having been a Marcos alter ego.
Another precedent pertains to Justice Vicente Abad Santos. Prior to his appointment to the Supreme Court in 1979, Abad Santos was the secretary of Justice of President Marcos.
Despite his having been the alter ego of Marcos, Abad Santos did not inhibit himself in any of the many constitutional cases filed against the Marcos administration.
Again, if the Sereno argument were to be sustained, Fernando, Teehankee and Abad Santos should never have participated in any of the constitutional cases filed against the Marcos regime.
If accepting an invitation from the House of Representatives to testify before the justice committee of the House, as the six justices in Sereno’s must-inhibit list did, is a ground for demanding the inhibition of the same six justices in the quo warranto petition, then there was more pronounced ground for Fernando, Teehankee and Abad Santos to inhibit themselves in the anti-Marcos cases in the Supreme Court because they were either the personal lawyers of Marcos (like Fernando and Teehankee) or his political alter egos (such as Teehankee and Abad Santos).
Considering that Fernando, Teehankee and Abad Santos did not inhibit themselves, then with greater reason the six justices assailed by Sereno should not do so.
Even from a practical perspective, Sereno’s insistence that the six justices should recluse is untenable.
With Chief Justice Sereno on compulsory leave, only 14 justices actively participated in the deliberations in the quo warranto petition against Sereno. That means the vote of at least eight justices will be necessary to grant the petition. If the six justices questioned by Sereno were to inhibit themselves, that will leave only eight justices to decide the case. That also means a unanimous vote of the eight will be needed to grant the petition, inasmuch as a minimum of eight votes are needed for a doctrinal ruling in Constitutional Law. Thus, one dissenting vote in the eight is all Sereno will need in order to defeat the petition.
If Sereno were to have her way, then that one dissenting vote, one in 15, and which is not even a tenth of the entire membership of the Supreme Court, will be enough to shape Philippine jurisprudence on this controversial issue involving the Constitution and the highest judicial office in the land.
Certainly, that will not be good for jurisprudence. In fact, that will be the baldest form of tyranny of the minority—something that should not exist in a functioning democracy. In Constitutional Law, as in other fields of Law, the participation of as many justices as possible is the ideal option.
Being lawyers, Sereno and her legal advisers ought to know that.
As it is, the vote in the quo warranto case is a close eight-six. Had the six justices in Sereno’s must-inhibit list inhibited themselves, that would have resulted in a six-two vote against the petition, thus causing its dismissal. The dismissal, in turn, will not be a doctrinal (legally binding and precedent setting) ruling because it does not have the concurrence of a majority of the justices of the Supreme Court. A dismissal of a case done not on the merits of the case but on a mere technicality will not help Sereno, and the issue regarding the validity of her appointment will continue to haunt her.
On its face, the inhibition argument raised by Sereno looks convincing. Not everything that is apparent, however, is real.
In the long run, however, the argument regarding inhibition in the quo warranto case is devoid of weight and merit. It also underscores the fact that the Sereno camp has run out of substantial arguments and has resorted to technicalities.
One columnist put it succinctly —Sereno is not the Supreme Court, and she is not the entire judicial department of the government. Her misplaced insistence on mantras like “the independence of the judiciary” and her self-serving repudiation of existing procedural remedies like quo warranto, which is authorized under the Constitution and the rules promulgated by the Supreme Court, brought her to the end of her road..