Did Lozano perchance get his premise aright?
I am inquiring into the premise of Oliver Lozano’s action—the very man well known for the jumping the gun on almost every potentially explosive legal contention. And so in asking whether his premise might be right, I do not have Meilou Serreno in mind. I am interested in an issue of legal theory: Whether or not quo warranto or any action questioning the validity of the appointment of an impeachable official should be given due course, or summarily shoved aside.
The president of the Republic of the Philippines is an impeachable official. So is the vice president. But there is nothing to prevent a defeated candidate for either office from filing a quo warranto action against the proclaimed and even incumbent official, questioning the legality of his election and the consequent validity of the proclamation. Miriam Defensor-Santiago questioned the incumbency of Fidel Ramos. Bongbong Marcos is questioning the assumption of Leni Robredo to the office of vice president—and no one has ever suggested that because the office-holders can be removed only by impeachment, they are beyond any action for quo warranto or any equivalent writ that questions the validity of their election and proclamation.
Why should there be another rule for appointed though impeachable officials? In fact, elected officials should be more difficult to remove from office, precisely because of the sovereign act of the people by which they receive their mandates. But, as the law stands, when a competent court or tribunal finds their elections void—for any reason set forth in the law—they can be compelled to relinquish office to their constitutional or statutory successors. In the case of appointive but impeachable officials, their appointments should be as open to legal scrutiny as other officials. If there is preponderant evidence to establish that their appointments are attended by one constitutional or statutory infirmity or the other, then what is there to prevent a competent court from so declaring the nullity of their appointments?
One will notice that in Article XI of the Constitution, on the accountability of public officers, “invalidity of appointment” or “irregularity of election” is not a ground for impeachment. And the obvious reason is because you use impeachment against an official who has been legitimately elected or appointed. But when the very election or appointment is questioned, you use another device for that: under the rules, the writs of quo warranto or certiorari (where it is alleged that the appointing officer gravely abused discretion) are available.
So much as we might dislike admitting it, Oliver Lozano might have it right this time—not in respect to Meilou Serreno necessarily, but in respect to the legal premise that the validity of the appointment of an impeachable official is an justiciable question that the courts may lawfully pass upon. And that is the joy as well as the excitement of legal theory. One does not have to be an advocate for anyone. One has merely to raise and to wrestle with a knotty question of law and jurisprudence—and leave the working out of practical consequences and its effects on persons and personalities to those who make it their business to take upon themselves the travails of others, for a fee!