Not knowing exactly what Justice Samuel Martires” said or wrote or ruled in regard to Overall Deputy Ombudsman Carandang, I can only rely on the report that the new Ombudsman has decided to let the Decision of the Office of the President “take its course,” trusting that “ODO Carandang knows the law and knows how to proceed.” Some find that dangerous if not demeaning obsequiousness to the Palace. I do not. Justice Martires has simply been conducting himself according to the STRUCTURE of government.
R.A. 6770 gave the President power to remove a Deputy Ombudsman. NOWHERE does the 1987 Constitution provide that a Deputy Ombudsman may be removed ONLY by the Ombudsman. That is a conclusion some have drawn.
In the consolidated cases of Gonzales v. Office of the President and Sulit v. Ochoa (2012), an evenly divided Supreme Court dismissed the petition challenging the constitutionality of R.A. 6770 insofar as the removal of a Deputy Ombudsman is concerned. Justice Bernabe was the ponente. Concurring with her, Carpio, J. reasoned persuasively:
“The Deputy Ombudsman and the Special Prosecutor are not among the impeachable officers under the 1987 Constitution. Thus, as expressly provided in Section 2, Article XI of the Constitution, they “may be removed from office as provided by law.” Congress, pursuant to this constitutional provision and in the exercise of its plenary power, enacted the Ombudsman Act, conferring on the President the power to remove the Deputy Ombudsman and the Special Prosecutor as provided in Section 8(2) of the Ombudsman Act.
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A completely “independent” body is alien to our constitutional system. There is no office that is insulated from a possible correction from another office. The executive, legislative and judicial branches of government operate through the system of checks and balances. All independent constitutional bodies are subject to review by the courts. A fiscally autonomous body is subject to audit by the Commission on Audit, and Congress cannot be compelled to appropriate a bigger budget than that of the previous fiscal year.
Section 8(2) of the Ombudsman Act is consistent with our system of checks and balances. The provision is a narrow form of delegation which empowers the President to remove only two officers in the Office of the Ombudsman, i.e. the Deputy Ombudsman and the Special Prosecutor. The proposition that an external disciplinary authority compromises the Ombudsman’s independence fails to recognize that the Constitution expressly authorizes Congress to determine the mode of removal of all non-impeachable officers and employees. It also fails to recognize that under a system of checks and balances, an external disciplinary authority is desirable and is often the norm.”
In summary: Congress has the power to determine how non-impeachable officers are to be removed from office. Republic Act No. 6770 conferred this power on the President. Hence, the President has the power to remove a Deputy Ombudsman.
In 2014, upon Motion for Reconsideration, the Court revisited its decision. By a vote of 8-7 it decided in favor of declaring R.A. 6770 unconstitutional in respect to the removal of the Deputy Ombudsman by the President.
No textual authority was given. All that was advanced was the argument from the “independence of the Ombudsman”—an argument already squarely refuted by Justice Bernabe’s earlier ponencia and Justice Carpio’s concurring opinion.
This time, Justice Bernabe dissented and wrote convincingly:
“The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful or arguable implication; a law shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt. The presumption is always in favor of constitutionality. To doubt is to sustain. x x x.
Applying this framework, Section 8(2) of RA 6770, both with respect to the OP’s disciplinary authority ver the Special Prosecutor and the Deputy Ombudsmen, should be upheld in its entirety since it has not been shown that said provision “clearly and unequivocally” offends any constitutional principle. By constitutional design, disciplinary authority over non-impeachable officers, such as the Special Prosecutor and Deputy Ombudsmen, was left to be determined by future legislation. This much is clear from the text of the Constitution. Section 2, Article XI of the 1987 Constitution explicitly provides that non-impeachable officers may be removed from office as may be provided by law:
Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.
While Section 5, Article XI of the 1987 Constitution “created the independent Office of the Ombudsman” – the provision which is the legal anchor of the majority’s position on this matter – the Constitution neither defines what this principle of Ombudsman independence means nor prohibits the office’s subjection to an external disciplining authority. Meanwhile, what is discoverable from the deliberations of the Constitutional Commission on Article XI, particularly those which are quoted in the ponencia, is that the Office of the Ombudsman was merely intended to be a separate office from the Executive. This idea of organizational separation was meant to obviate the Executive Department from exercising the encompassing powers of control and supervision over the Office of the Ombudsman. It is only in this regard that the Office of the Ombudsman was deemed by the Framers as independent.”
In summary: The supposed independence of the Office of the Ombudsman does not render the Deputy Ombudsman impervious to the disciplinary power of the President considering that such disciplinary has been conferred on the President by law. The argument from “independence of the Ombudsman” is too nebulous a position against a clear exercise of legislative authority.
It should bear stressing that jurisprudence does not constitute law—although it is part of the legal system of the Philippines, and Justice Martires correctly appreciates the tenuousness of a doctrine laid down on motion for reconsideration by a plurality of one vote of the court—and the powerful arguments against the plurality opinion.
In fact, the new Ombudsman’s position is perfectly in accord with the doctrine of residual power enunciated by the same Supreme Court in Marcos v. Manglapus (1989), where, through Madame Justice Irene Cortes, the Court ruled:
“It would not be accurate, however, to state that executive power is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country’s foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of executive power. Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive. “
In summary: Whatever pertains to the execution of laws and the functioning of government is a power enjoyed by the President unless the Constitution withholds such a power from him. Where is the provision withholding the power to dismiss a deputy ombudsman textually provided?
Said otherwise, Ombudsman Samuel Martires is inviting the Overall Deputy Ombudsman to ask the Supreme Court to revisit its position, and this time render a clear and convincing ruling on this disputed subject.
What can be wrong, suspicious, much less malicious in that?