Wednesday, January 14, 2009

Quo warranto

In the case of FERDINAND S. TOPACIO vs. ASSOCIATE JUSTICE OF THE SANDIGANBAYAN GREGORY SANTOS ONG and THE OFFICE OF THE SOLICITOR GENERAL, EN BANC, G.R. No. 179895, December 18, 2008, the Supreme Court dismissed a petition for certiorari and prohibition which sought to prevent Justice Gregory Ong from exercising the powers, duties and responsibilities of a Sandiganbayan Associate Justice.

May I digest the decision below, for legal research purpose of the visitors of this blog.

It will be recalled that in the related case of Kilosbayan Foundation v. Ermita, G.R. No. 177721, July 3, 2007, 526 SCRA 353, the Court, by Decision of July 3, 2007, enjoined Ong “from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the position and discharging the functions of that office, until he shall have successfully completed all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship.”

On July 9, 2007, Ong immediately filed with the Regional Trial Court (RTC) of Pasig City a Petition for the “amendment/ correction/ supplementation or annotation of an entry in [his] Certificate of Birth,” docketed as S.P. Proc No. 11767-SJ, “Gregory Santos Ong v. The Civil Registrar of San Juan, Metro Manila, et al.”

Going back to the instant petition, in 2007, the petitioner implored respondent Office of the Solicitor General (OSG) to initiate a quo warranto proceeding against Justice Ong in the latter’s capacity as an incumbent Associate Justice of the Sandiganbayan. Invoking paragraph 1, Section 7, Article VIII of the Constitution in conjunction with the Court’s Decision in Kilosbayan Foundation v. Ermita, petitioner points out that natural-born citizenship is also a qualification for appointment as member of the Sandiganbayan and that Ong has failed to meet the citizenship requirement from the time of his appointment as such in October 1998.

The OSG informed petitioner that it “cannot favorably act on [his] request for the filing of a quo warranto petition until the [RTC] case shall have been terminated with finality.” In the instant petition, the petitioner assails the position of the OSG as being tainted with grave abuse of discretion, aside from Justice Ong’s continuous discharge of judicial functions.

Justice Ong states that Kilosbayan Foundation v. Ermita did not annul or declare null his appointment as Justice of the Supreme Court, but merely enjoined him from accepting his appointment, and that there is no definitive pronouncement therein that he is not a natural-born Filipino. He informs that he, nonetheless, voluntarily relinquished the appointment to the Supreme Court out of judicial statesmanship.

By Manifestation and Motion to Dismiss of January 3, 2008, Ong informs that the RTC, by Decision of October 24, 2007, already granted his petition and recognized him as a natural-born citizen. The Decision having, to him, become final, he caused the corresponding annotation thereof on his Certificate of Birth.

The parties mirrored the issues in the pending petitions for certiorari in G.R. No. 180543, “Kilosbayan Foundation, et al. v. Leoncio M. Janolo, Jr., et al,” filed with this Court and in CA-G.R. SP No. 102318, “Ferdinand S. Topacio v. Leoncio M. Janolo, Jr., et al.,” filed with the appellate court, both of which assail, inter alia, the RTC October 24, 2007 Decision.

The Supreme Court held that on the issue of whether the OSG committed grave abuse of discretion in deferring the filing of a petition for quo warranto, the Court ruled in the negative.

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. [Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348, 363-364].

The Court appreciated no abuse of discretion, much less, a grave one, on the part of the OSG in deferring action on the filing of a quo warranto case until after the RTC case has been terminated with finality. A decision is not deemed tainted with grave abuse of discretion simply because the affected party disagrees with it.

The Solicitor General is the counsel of the government, its agencies and instrumentalities, and its officials or agents. In the discharge of its task, the Solicitor General must see to it that the best interest of the government is upheld within the limits set by law.

The pertinent rules of Rule 66 on quo warranto provide:

SECTION 1. Action by Government against individuals. – An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

SEC. 2. When Solicitor General or public prosecutor must commence action. ─ The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action.

SEC. 3. When Solicitor General or public prosecutor may commence action with permission of court. ─ The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. (Italics and emphasis in the original)

In the exercise of sound discretion, the Solicitor General may suspend or turn down the institution of an action for quo warranto where there are just and valid reasons. (Amante v. Hilado, 67 Phil. 338 (1939); cf Gumaru v. Quirino State College, G.R. No.164196, June 22, 2007, 525 SCRA 412, 423 holding that the Solicitor General cannot refuse to represent the government without a just and valid reason; cf. Commission on Elections v. Court of Appeals, G.R. No. 108120, January 26, 1994, 229 SCRA 501 even insofar as control over criminal cases before appellate courts is concerned). Thus, in Gonzales v. Chavez, G.R. No. 97351, February 4, 1992, 205 SCRA 816, the Court ruled:

Like the Attorney-General of the United States who has absolute discretion in choosing whether to prosecute or not to prosecute or to abandon a prosecution already started, our own Solicitor General may even dismiss, abandon, discontinue or compromise suits either with or without stipulation with the other party. Abandonment of a case, however, does not mean that the Solicitor General may just drop it without any legal and valid reasons, for the discretion given him is not unlimited. Its exercise must be, not only within the parameters get by law but with the best interest of the State as the ultimate goal.


Upon receipt of a case certified to him, the Solicitor General exercises his discretion in the management of the case. He may start the prosecution of the case by filing the appropriate action in court or he may opt not to file the case at all. He may do everything within his legal authority but always conformably with the national interest and the policy of the government on the matter at hand.

According to the Court, it appeared that after studying the case, the Solicitor General saw the folly of re-litigating the same issue of Ong’s citizenship in the quo warranto case simultaneously with the RTC case, not to mention the consequent risk of forum-shopping. In any event, the OSG did not totally write finis to the issue as it merely advised petitioner to await the outcome of the RTC case.

By petitioner’s admission, what is at issue is Ong’s title to the office of Associate Justice of Sandiganbayan. He claims to have been constrained to file the present petition after the OSG refused to heed his request to institute a suit for quo warranto.

The Court sated that while denominated as a petition for certiorari and prohibition, the petition was actually in the nature of a quo warranto proceeding with respect to Justice Ong, for it effectively sought to declare null and void his appointment as an Associate Justice of the Sandiganbayan for being unconstitutional. While the petition professed to be one for certiorari and prohibition, petitioner adverted to a “quo warranto” aspect of the petition.

According to the Court, being a collateral attack on a public officer’s title, the present petition for certiorari and prohibition must be dismissed.

The title to a public office may not be contested except directly, by quo warranto proceedings; and it cannot be assailed collaterally, Gonzales v. COMELEC, et al., 129 Phil 7, 29 (1967), even through mandamus or a motion to annul or set aside order. [See also: Pilar v. Sec. of the DPWTC, et al., 125 Phil. 766 (1967); Gamboa, et al. v. CA, et al., 194 Phil. 624 (1981)]. In Nacionalista Party v. De Vera, 85 Phil. 126 (1949), the Court ruled that prohibition does not lie to inquire into the validity of the appointment of a public officer.

x x x [T]he writ of prohibition, even when directed against persons acting as judges or other judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon to perform any of the functions of the writ. If there is a court, judge or officer de facto, the title to the office and the right to act cannot be questioned by prohibition. If an intruder takes possession of a judicial office, the person dispossessed cannot obtain relief through a writ of prohibition commanding the alleged intruder to cease from performing judicial acts, since in its very nature prohibition is an improper remedy by which to determine the title to an office.

A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public office and to oust the holder from its enjoyment. [Sec. Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 302 (1998)]. It is brought against the person who is alleged to have usurped, intruded into, or unlawfully held or exercised the public office [Pilar v. Sec. of the DPWTC, et al., 125 Phil. 766 (1967)], and may be commenced by the Solicitor General or a public prosecutor, as the case may be, or by any person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another. [RULES OF COURT Rule 66, Sec. 5].


Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v. Flor, 5 Phil. 18 (1905), reiterated in the recent 2008 case of Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348, that for a quo warranto petition to be successful, the private person suing must show a clear right to the contested office. In fact, not even a mere preferential right to be appointed thereto can lend a modicum of legal ground to proceed with the action. [Vide Garcia v. Perez, 188 Phil. 43, 47 (1980)].


In the present case, petitioner presented no sufficient proof of a clear and indubitable franchise to the office of an Associate Justice of the Sandiganbayan. He in fact concedes that he was never entitled to assume the office of an Associate Justice of the Sandiganbayan.

In the instance in which the Petition for Quo Warranto is filed by an individual in his own name, he must be able to prove that he is entitled to the controverted public office, position, or franchise; otherwise, the holder of the same has a right to the undisturbed possession thereof. In actions for Quo Warranto to determine title to a public office, the complaint, to be sufficient in form, must show that the plaintiff is entitled to the office. In Garcia v. Perez, this Court ruled that the person instituting Quo Warranto proceedings on his own behalf, under Section 5, Rule 66 of the Rules of Court, must aver and be able to show that he is entitled to the office in dispute. Without such averment or evidence of such right, the action may be dismissed at any stage. (Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348, 366).

The rightful authority of a judge, in the full exercise of his public judicial functions, cannot be questioned by any merely private suitor, or by any other, except in the form especially provided by law. (Tayko v. Capistrano, 53 Phil. 866, 872 (1928)]. To uphold such action would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable mischief and hindrance to the efficient operation of the governmental machine.

The Court held that it was unwarranted to pass upon the citizenship of Justice Ong as this time. It stated that it could not, upon the authority of the present petition, determine said question without encroaching on and preempting the proceedings emanating from the RTC case. “Even petitioner clarifies that he is not presently seeking a resolution on Ong’s citizenship, even while he acknowledges the uncertainty of Ong’s natural-born citizenship”, it added.

A de facto officer is one who is in possession of the office and is discharging its duties under color of authority, and by color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer. If a person appointed to an office is subsequently declared ineligible therefor, his presumably valid appointment will give him color of title that will confer on him the status of a de facto officer [Regala v. Court of First Instance of Bataan, 77 Phil. 684 (1946)].

x x x A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. Accordingly, it is a well-established principle, dating back from the earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned. [Tayco v. Capistrano, supra at 872-873].

In fine, the Supreme Court declared that Justice Ong may turn out to be either a de jure officer who is deemed, in all respects, legally appointed and qualified and whose term of office has not expired, or a de facto officer who enjoys certain rights, among which is that his title to said office may not be contested except directly by writ of quo warranto, which contingencies all depend on the final outcome of the RTC case.

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