Carandang case: Impeachment for Morales or Duterte?

MANILA, Philippines – In the standoff to suspend Overall Deputy Ombudsman Melchor Arthur Carandang, who committed an unconstitutional act? The one who ordered the suspension, or the one defying it?

Lawyer Jacinto "Jing" Paras, newly-appointed labor undersecretary, is appealing to lawmakers to sign their names on the impeachment complaint against Ombudsman Conchita Carpio Morales that they filed before the House of Representatives. It has not moved since it lacks the required endorsement.

“If indeed they are allies of the President, then there is no more obstacle to sign and endorse the impeachment complaint against Morales, otherwise, Morales will continue to be arrogant and defiant, and will undermine the powers of the President,” Paras said.

Law professor Tony La Viña said that if President Rodrigo Duterte insists on enforcing a provision in law that has been voided by the Supreme Court, then he is committing a possibly impeachable offense.

Malacañang issued the suspension order against Carandang despite a ruling by the Supreme Court in 2014 that declared unconstitutional the provision in the Ombudsman law which previously gave the President the power to discipline Deputy Ombudsmen.

“The current law now is that the Deputy Ombudsman is not under his disciplinary authority as ruled by the Supreme Court. The President took an oath to implement our laws faithfully. If he acts contrary to that in the Carandang case, he is violating his oath of office and culpably violating the constitution. That is theoretically impeachable,” La Viña said.

La Viña added: “I emphasize theoretical because enough members of the House of Representatives must agree to send articles of impeachment to the Senate for trial."

Of course under the law, there cannot be an impeachment complaint against Duterte until the one-year ban has passed since Magdalo Representative Gary Alejano filed the first complaint in March 2017.

Unconstitutional

Former Solicitor General Florin Hilbay, a professor in Constitutional Law, agreed that the suspension order against Carandang was an “unconstitutional act.”

“That is culpable violation of the constitutionally guaranteed independence of the Ombudsman as interpreted by the Supreme Court,” Hilbay said.

Chief Presidential Legal Counsel Salvador Panelo defended the suspension by saying all official acts enjoy presumption of legality – an established rule in Philippine jurisprudence.

“That presumption stays until a court of competent jurisdiction declares it’s unconstitutional,” Panelo said in a mix of English and Filipino.

Panelo and the rest of Palace officials are confident that the Supreme Court will reverse its rule. (READ: Malacañang on Carandang: 'There is only one President')

“True, the SC can reverse its 2014 decision – but that is also beside the point. No public official, not even the President, can adopt a 'violate-the-law-now, seek-reversal-later' attitude when its comes to decisions of the SC. That attitude is incompatible with his constitutional obligation to enforce the law: it is the antithesis of the rule of law,” Hilbay said.

La Viña and Hilbay agree that Morales’ defiance is simply the Ombudsman following the law.

“She is following the Constitution scrupulously. She should be impeached if she implements the order of Malacañang,” La Viña said.

Carandang

“The unconstitutional act is tainted by a personal conflict of interest. The President is acting not to protect a beleaguered citizen from abuse of power by the Ombudsman; he is acting to protect himself. This act cannot pass any standard of fairness,” Hilbay said.

Carandang was suspended for alleged illegal disclosure of bank details of the President and the first family. Carandang is the head investigator of the alleged ill-gotten wealth of the Dutertes.

Paras was among those who filed the complaint against Carandang before Malacañang, dismissing as an outright lie Carandang’s disclosure that records show a transactions of almost a billion pesos.

“This defense by Morales of Carandang clearly shows that Morales has sanctioned Carandang to lie to the public on Duterte’s bank account and made herself a party to lies being spread against the President thereby causing undue injury to the latter,” said Paras.

Supreme Court

Constitutional law professor Dan Gatmaytan said that Malacañang got exactly what they wanted, which was to create a controversy for the Supreme Court to rule on.

Malacañang is relying on the fact that the tight voting of 8-7 in 2014 can be easily reversed.

Panelo even dropped a hint to Duterte appointees Associate Justices Noel Tijam, Samuel Martires, Alexander Gesmundo and Andres Reyes Jr: “So apat ang bagong appointees so, hindi natin malalaman kung ano ang takbo ng mga utak nila (There are 4 new appointees, we don’t know how their minds work.”

Former senator Rene Saguisag, Duterte’s fellow Bedan lawyer, calls this an “arrogant and presumptuous move.”

“They are bragging that they can hold the Supreme Court by the balls,” Saguisag said.

Asked if he thinks it can be a ground for impeachment against Duterte, Saguisag said: “Impeached by lackeys? Tell me another.”

Saguisag said that we have a “gangster government” that gets whatever they want.

Can anybody stop them? “The people,” Saguisag said. – Rappler.com

May the President remove Deputy Ombudsman and Special Ombudsman?

source:   Gonzales vs OP, G.R. No. 196231 (January 28, 2014) En banc

BRION, J.:

We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012 Decision1 which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of Republic Act (RA) No. 6770.2

In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him the penalty of dismissal.

I. ANTECEDENTS
II. COURT’S RULING

On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman. (As the full explanation of the Court’s vote describes below, this conclusion does not apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman which does not include the Office of the Special Prosecutor under the Constitution. The prevailing ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario Victor Leonen).

A. Preliminary considerations:
B. The Deputy Ombudsman: Constitutional Issue

a. The Philippine Ombudsman
b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence

Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions shares certain characteristics – they do not owe their existence to any act of Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution intended that these "independent" bodies be insulated from political pressure to the extent that the absence of "independence" would result in the impairment of their core functions.

xxx xxx xxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but is similar in degree and kind – to the independence similarly guaranteed by the Constitution to the Constitutional Commissions since all these offices fill the political interstices of a republican democracy that are crucial to its existence and proper functioning.

c. Section 8(2) of RA No. 6770 vesting disciplinary authority in the President over the Deputy Ombudsman violates the independence of the Office of the Ombudsman and is thus unconstitutional

Our discussions, particularly the Court’s expressed caution against presidential interference with the constitutional commissions, on one hand, and those expressed by the framers of the 1987 Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the independence of the Office of the Ombudsman.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and balances that the creation of an Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her complete trust in her subordinate officials who are not as independent as she is, if only because they are subject to pressures and controls external to her Office. This need for complete trust is true in an ideal setting and truer still in a young democracy like the Philippines where graft and corruption is still a major problem for the government. For these reasons, Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be declared void.

d. The mutual-protection argument for crafting Section 8(2)of RA No. 6770

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of an external check against the Deputy Ombudsman would result in mutual protection between the Ombudsman and her Deputies.

While the preceding discussion already suffices to address this concern, it should be added that this concern stands on shaky grounds since it ignores the existing checks and balances already in place. On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari. The same attempt can likewise subject her to impeachment.

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose judges and employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less questionable. The Members of the Court themselves may be subjected to the impeachment power of Congress.

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible. At the same time, the Court remains consistent with its established rulings - that the independence granted to the Constitutional Commissions bars any undue interference from either the Executive or Congress – and is in full accord with constitutional intent.

e. Congress’ power determines the manner and causes for the removal of non-impeachable officers is not a carte blanch authority

C. The Deputy Ombudsman: The Dismissal Issue
D. The Special Prosecutor: The Constitutional Issue

a. The Office of the President’s finding of gross negligence has no legal and factual leg to stand on

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special Prosecutor, the weight of the foregoing discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in jurisprudence.

Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an organic component of the Office of the Ombudsman and by granting the Ombudsman control and supervision over that office.105 This power of control and supervision includes vesting the Office of the Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem fit.1âwphi1 Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which include investigation and prosecution of officials in the Executive Department.

 xxx xxx xxx

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the same grant of independence under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation of the independence of the Office of the Ombudsman.

However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the Constitution.

 

WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL.


source:   Gonzales vs OP, G.R. No. 196231 (September 4, 2012) En banc

The Court's Ruling

Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate that the President has no disciplinary jurisdiction over them considering that the Office of the Ombudsman to which they belong is clothed with constitutional independence and that they, as Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of said office.

The Court is not convinced.

 The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special Prose-cutor is not exclusive.

By granting express statutory power to the President to remove a Deputy Ombudsman and a
Special Prosecutor, Congress merely filled an obvious gap in the law.

The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is
Implied from his Power to Appoint.

Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the
Independence of the Office of the Ombudsman.

Petitioner Gonzales may not be removed from office where the questioned acts, falling short of
constitutional standards, do not constitute betrayal of public trust.