The Ombudsman should be impeached

posted February 03, 2018 at 12:01 am
by  Tony La Viña
One of the grounds of impeachment is culpable violation of the Constitution. If the Ombudsman implements President Duterte’s order to suspend Overall Deputy Ombudsman Arthur Carandang, she will be culpably violating the Constitution and therefore she should be impeached. Conversely, if the President insists on enforcing a law that has already been declared unconstitutional by the Supreme Court, he is culpably violating the Constitution and can be subject to impeachment.

The battle lines have been drawn. Malacañang is bent on enforcing the 90-day suspension order against Carandang for releasing bank records of President Duterte and his family in connection with the accusation of plunder hurled by Senator Sonny Trillanes IV, President Duterte’s implacable nemesis. The Palace seems resolute in carrying out the suspension order even as the Supreme Court, through its spokesperson Theodore Te, points out that the controversy as to whether the deputy Ombudsman is under the disciplinary powers of the Chief Executive has long been settled by the High Court in the 2014 case of Emilio Gonzales III, Deputy Ombudsman for Military and Other Law Enforcement Officers.

In the 2014 case of Emilio Gonzales III, the Supreme Court, speaking through Associate Justice Brion, emphasized the need for independence of the constitutional commission, including the Office of the Ombudsman, from any external interference, specifically from the executive. In the words of Brion: “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.”

For this reason, the Court declared unconstitutional Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman). Specifically, the Court ruled 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, places at serious 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.

It is true that the Supreme Court can revisit the doctrine it established in Gonzales. But even if it did, the new doctrine can only apply prospectively. Section 8 (2) has already been declared unconstitutional. It cannot be resurrected by judicial fiat. There is no new law that is subject to constitutional inquiry. Congress must enact Section 8 (2) again for a new case to be litigated. And just the same, a new doctrine will still be prospective.

Any form of political control by the Executive over the Ombudsman and her deputies would diminish its independence and would erode the principle of checks and balances, the bedrock of our constitutional democracy. The Executive cannot run roughshod over the categorical and clear-cut pronouncement by the Supreme Court to the effect that the Deputy Ombudsman cannot be subject to the disciplinary powers of the President. To insist in doing so is to thumb its nose at the Constitution and all sacred principles incorporated therein, like checks and balances.

Ombudsman Conchita Carpio-Morales is well within her constitutional right not to enforce the suspension order. She cannot be expected to fully trust her deputies and her subordinate officers if at anytime they can be pressured and controlled from powers external to her office. As it is, she herself is now subject to all sorts of pressure and intimidation, not the least of which is the threat of impeachment simply because she has demonstrated, true to her constitutional mandate, independent-mindedness and grim determination to safeguard and preserve the boundaries of her constitutional duty.

The argument advanced by Solicitor General Jose Calida that the Constitution does not bar the President from disciplining a deputy ombudsman stands on shaky ground. While it is true that Congress is vested with authority to determine how and in what manner non-impeachable officials, including the deputy Ombudsman, are to be removed, this does not mean that it can repose the authority to whosoever it pleases.

At all times, the Constitution is anchored on certain sacred core principles such as checks and balances, which subsumes in its concept the independence of the Office of the Ombudsman.

The present administration, propped up by the overwhelming numbers in Congress, has the penchant of flexing its muscles if only to demonize and emasculate its perceived opponents to advance its political agenda. The experience of the Commission on Human Rights after the House threatened to give it a measly P1,000 budget is a perfect example. Indeed, it is difficult to conceptualize when the Office of the Ombudsman, vested with the delicate and vital functions of pinpointing responsibility and recommending sanctions, can truly remain independent and effective when the Sword of Damocles hover over her head and those of her subordinate officials and alter egos who are relentlessly being subject to undue influence and intimidation from extraneous forces for doing their job.

As the Constitution says —Public service is public trust. Every public official, from the highest to the lowest, owes his position to the people whom he must at all times be accountable to, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. No one, not even the highest of official of the land, is immune from accountability. Although the President is immune from suit during his tenure and can be removed only through impeachment, it remains his legal and moral duty to obey with utmost fidelity the rule of law. In the end, the people’s will as embodied in the Constitution, is the undisputed sovereign. And to be subject to constant public scrutiny is part of the territory.

Yesterday Feb. 2, we celebrated the 31st year of the ratification of the 1987 Constitution. It is still our Constitution and we should respect it. The Ombudsman has committed to do so. I hope the President and his men will do the same.

Facebook: Professor Tony La Viña or deantonylavs Twitter: tonylavs

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