Abella cites wrong jurisprudence over Duterte’s supposed power to discipline Deputy Ombudsman

October 2, 2017

Can President Rodrigo Duterte create a commission to investigate the Ombudsman?

For Presidential Spokesperson Ernesto Abella, citing a decision of the Supreme Court, said he could.

But apparently, Abella cited a jurisprudence which says the contrary.

"Well, as has been pointed out, the principal stated in the Supreme Court decision dated 28 January 2014 with GR Numbers 196231 and 196232, Wendell Barreras --- Barreras-Sulit vs Paquito Ochoa et al and Emilio Gonzales III vs Office of the President, respectively, where the court clearly stated that while the Ombudsman --- Office of the Ombudsman retains the power to discipline, their duty --- to discipline their deputy, OMB and special prosecutor --- the President also has concurrent authority to also to exercise discipline. Disciplinary action," he said.

However, upon checking the two consolidated cases, the Supreme Court stated that the president has no disciplinary authority over the deputy ombudsman.

In the consolidated cases, whose decision was penned by former Associate Justice Arturo Brion, the Court declared as unconstitutional Section 8(2) of Republic Act No. 6770, otherwise known as the "Ombudsman Act of 1989."

The pertinent section provides, "A Deputy or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process."

But the unconstitutionality of that provision was applicable only insofar as the Deputy Ombudsman is concerned, the Court said.

Voting 8-7 in as far as the Office of the Special Prosecutor was concerned, the high court maintained the validity of Section 8(2) of RA No. 6770.

"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 Court said in the case of Gonzales vs Office of the President.

The Supreme Court explained that 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," it said.

"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," it further explained.

In Barreras-Sulit vs Ochoa, the Court said it "did not consider the Office of the Special Prosecutor to be constitutiotonally within the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the Constitution."

The Office of the Ombudsman, through Overall Deputy Ombudsman Arthur Carandang, has been investigating the alleged hidden wealth of the President and his family.

Duterte denied the allegation, but he threatened to create a commission to probe the alleged corruption of the officials in the Office of the Ombudsman, particularly Carandang. Celerina Monte/DMS