Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 196231               September 4, 2012

EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deputy Executive Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ, and ATTY. CARLITOD. CATAYONG, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 196232

WENDELL BARRERAS-SULIT, Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF MALACAÑANG LEGAL AFFAIRS, Respondents.

D E C I S I O N

PERLAS-BERNABE, J.:

The Case

These two petitions have been consolidated not because they stem from the same factual milieu but because they raise a common thread of issues relating to the President's exercise of the power to remove from office herein petitioners who claim the protective cloak of independence of the constitutionally-created office to which they belong - the Office of the Ombudsman.

The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance of temporary restraining order or status quo order) which assails on jurisdictional grounds the Decision1 dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-460 dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition primarily seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy Ombudsman of the Office of the Ombudsman.

The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with application for issuance of a temporary restraining order or status quo order) seeking to annul, reverse and set aside (1) the undated Order2 requiring petitioner Wendell Barreras-Sulit to submit a written explanation with respect to alleged acts or omissions constituting serious/grave offenses in relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F. Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation,3 both issued by the Office of the President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special Prosecutor of the Office of the Ombudsman.

The facts from which these two cases separately took root are neither complicated nor unfamiliar.

In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial news accounts were fragmented it was not difficult to piece together the story on the hostage-taker, Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer attempting to secure his reinstatement in the police force and to restore the benefits of a life-long, and erstwhile bemedaled, service. The following day, broadsheets and tabloids were replete with stories not just of the deceased hostage-taker but also of the hostage victims, eight of whom died during the bungled police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign relation proportions. One newspaper headline ran the story in detail, as follows:

MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national television until last night.

Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m. Mendoza hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police force.

The hostage drama dragged on even after the driver of the bus managed to escape and told police that all the remaining passengers had been killed.

Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of the bus to immobilize it.

Police used hammers to smash windows, door and wind-shield but were met with intermittent fire from the hos-tage taker.

Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive. When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza was killed by a sniper.

Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders scampering for safety.

It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from inside the bus.

Mendoza hijacked the tourist bus in the morning and took the tourists hostage.

Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of the hostages during the drama that began at 10 a.m. and played out live on national television.

Live television footage showed Mendoza asking for food for those remaining in the bus, which was delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.

Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3 p.m. today." Another sign stuck to another window said "3 p.m. today deadlock."

Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake to correct a big wrong decision." A larger piece of paper on the front windshield was headed, "Release final decision," apparently referring to the case that led to his dismissal from the police force.

Negotiations dragged on even after Mendoza's self-imposed deadline.

Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the police force. "His problem was he was unjustly removed from service. There was no due process, no hearing, no com-plaint," Gregorio said.

Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front of national television. This triggered the crisis that eventually forced Mendoza to carry out his threat and kill the remaining hostages.

Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos, including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow communications with Mendoza in-side the bus, which was parked in front ofthe Quirino Grandstand.

Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered near the scene.

Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the deployment of crack police teams and snipers near the scene. A crisis man-agement committee had been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.

Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter to Mendoza.

MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-Internal Affairs Service and the Manila Regional Trial Court had already dismissed crim-inal cases against him.

The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken hostage. "Having worn his (police) uniform, of course there is no doubt that he already planned the hostage taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage, The Philippine Star, Updated August 24, 2010 12:00 AM, Val Rodri-guez.4

In a completely separate incident much earlier in time, more particularly in December of 2003, 28-year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States smuggling $100,000 from Manila by concealing the cash in their luggage and making false statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the rest of the charges against them and for being sentenced to time served. Inevitably, however, an investigation into the source of the smuggled currency conducted by US Federal Agents and the Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys' father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed Forces, had accumulated more than ₱ 300 Million during his active military service. Plunder and Anti-Money Laundering cases were eventually filed against Major General Garcia, his wife and their two sons before the Sandiganbayan.

G.R. No. 196231

Sometime in 2008, a formal charge5 for Grave Misconduct (robbery, grave threats, robbery extortion and physical injuries) was filed before the Philippine National Police-National Capital Region (PNP-NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others, namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the private complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed as I.S. No. 08E-09512.

On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III, all relevant documents and evidence in relation to said case to the Office of the Deputy Ombudsman for appropriate administrative adjudication.6 Subsequently, Case No. OMB-P-A-08-0670-H for Grave Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers, who filed their respective verified position papers as directed.

Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed7 upon a finding that the material allegations made by the complainant had not been substantiated "by any evidence at all to warrant the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the PNP issued a Resolution8 dated October 17, 2008 recommending the dismissal without prejudice of the administrative case against the same police officers, for failure of the complainant to appear in three (3) consecutive hearings despite due notice.

However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a Decision9 in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of said Decision reads:

WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen. Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1 NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEÑA of Manila Police District, Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil Service, with the accessory penalties of forfeiture of retirement benefits and perpetual disqualification from reemployment in the government service pursuant to Section 58, Rule IV of the same Uniform Rules of Administrative Cases in the Civil Service, for having committed GRAVE MISCONDUCT.

On November 5, 2009, they filed a Motion for Reconsideration10 of the foregoing Decision, followed by a Supplement to the Motion for Reconsideration11 on November 19, 2009. On December 14, 2009, the pleadings mentioned and the records of the case were assigned for review and recommendation to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who released a draft Order12 on April 5, 2010 for appropriate action by his immediate superior, Director Eulogio S. Cecilio, who, in turn, signed and forwarded said Order to petitioner Gonzalez's office on April 27, 2010. Not more than ten (10) days after, more particularly on May 6, 2010, petitioner endorsed the Order, together with the case records, for final approval by Ombudsman Merceditas N. Gutierrez, in whose office it remained pending for final review and action when P/S Insp. Mendoza hijacked a bus-load of foreign tourists on that fateful day of August 23, 2010 in a desperate attempt to have himself reinstated in the police service.

In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public outcry against the blundering of government officials prompted the creation of the Incident Investigation and Review Committee (IIRC),13 chaired by Justice Secretary Leila de Lima and vice-chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to determine accountability for the incident through the conduct of public hearings and executive sessions. However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC proceedings on the assertion that the Office of the Ombudsman is an independent constitutional body.

Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner Gonzales to be among those in whom culpability must lie. In its Report,14 the IIRC made the following findings:

Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction precipitated the desperate resort to hostage-taking.

More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not without legal and compelling bases considering the following:

(a) PSI Mendoza and four policemen were investigated by the Ombudsman involving a case for alleged robbery (extortion), grave threats and physical injuries amounting to grave misconduct allegedly committed against a certain Christian Kalaw. The same case, however, was previously dismissed by the Manila City Prosecutors Office for lack of probable cause and by the PNP-NCR Internal Affairs Service for failure of the complainant (Christian Kalaw) to submit evidence and prosecute the case. On the other hand, the case which was filed much ahead by Mendoza et al. against Christian Kalaw involving the same incident, was given due course by the City Prosecutors Office.

(b) The Ombudsman exercised jurisdiction over the case based on a letter issued motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR - without citing any reason - to endorse the case against Mendoza and the arresting policemen to his office for administrative adjudication, thereby showing undue interest on the case. He also caused the docketing of the case and named Atty. Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the nominal complainant, in lieu of Christian Kalaw. During the proceedings, Christian Kalaw did not also affirm his complaint-affidavit with the Ombudsman or submit any position paper as required.

(c) Subsequently, Mendoza, after serving preventive suspension, was adjudged liable for grave misconduct by Deputy Ombudsman Gonzales (duly approved on May 21, 2009) based on the sole and uncorroborated complaint-affidavit of Christian Kalaw, which was not previously sustained by the City Prosecutor's Office and the PNP Internal Affairs Service. From the said Resolution, Mendoza interposed a timely motion for reconsideration (dated and filed November 5, 2009) as well as a supplement thereto. No opposition or comment was filed thereto.

(d) Despite the pending and unresolved motion for reconsideration, the judgment of dismissal was enforced, thereby abruptly ending Mendoza's 30 years of service in the PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief by sending several hand-written letter-requests to the Ombudsman for immediate resolution of his motion for reconsideration. But his requests fell on deaf ears.

x x x x

By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without any justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete and wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of Procedure). The inaction is gross, there being no opposition to the motion for reconsideration.

Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily enforced the judgment of dismissal and ignored the intervening requests for immediate resolution, thereby rendering the inaction even more inexcusable and unjust as to amount to gross negligence and grave misconduct.

SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard of due process, manifest injustice and oppression in failing to provisionally suspend the further implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved motion for reconsideration.

By enforcing the judgment of dismissal without resolving the motion for reconsideration for over nine months, the two Ombudsman officials acted with arbitrariness and without regard to due process and the constitutional right of an accused to the speedy disposition of his case. As long as his motion for reconsideration remained pending and unresolved, Mendoza was also effectively deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of dismissal before the higher courts and seek a temporary restraining order to prevent the further execution thereof.

As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should have provisionally suspended the further enforcement of the judgment of dismissal without prejudice to its re-implementation if the reconsideration is eventually denied. Otherwise, the Ombudsman will benefit from its own inaction. Besides, the litigant is entitled to a stay of the execution pending resolution of his motion for reconsideration. Until the motion for reconsideration is denied, the adjudication process before the Ombudsman cannot be considered as completely finished and, hence, the judgment is not yet ripe for execution.

x x x x

When the two Ombudsman officials received Mendoza's demand for the release of the final order resolving his motion for reconsideration, they should have performed their duty by resolving the reconsideration that same day since it was already pending for nine months and the prescribed period for its resolution is only five days. Or if they cannot resolve it that same day, then they should have acted decisively by issuing an order provisionally suspending the further enforcement of the judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may have ended peacefully, without necessarily compromising the integrity of the institution. After all, as relayed to the negotiators, Mendoza did express willingness to take full responsibility for the hostage-taking if his demand for release of the final decision or reinstatement was met.

But instead of acting decisively, the two Ombudsman officials merely offered to review a pending motion for review of the case, thereby prolonging their inaction and aggravating the situation. As expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding Php150,000 in exchange for favorably resolving the motion for reconsideration - rejected and branded as trash ("basura") the Ombudsman [sic] letter promising review, triggering the collapse of the negotiations. To prevent the situation from getting out of hand, the negotiators sought the alternative option of securing before the PNP-NCRPO an order for Mendoza's provisional reinstatement pending resolution of the motion for reconsideration. Unfortunately, it was already too late. But had the Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may have ended differently.

The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the Office of the President (OP) for further determination of possible administrative offenses and for the initiation of the proper administrative proceedings.

On October 15, 2010, the OP instituted a Formal Charge15 against petitioner Gonzales for Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil

Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft and Corrupt Practices Act.16 Petitioner filed his Answer17 thereto in due time.

Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law" under Section 3(b) of the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of gifts under Section 7(d) of the Code of Conduct and Ethical Standards.18 In a Joint Resolution19 dated February 17, 2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was dismissed, as follows:

WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A. Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the complaint is hereby be [sic] DISMISSED.

Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the same is likewise DISMISSED.

Meanwhile, the OP notified20 petitioner that a Preliminary Clarificatory Conference relative to the administrative charge against him was to be conducted at the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged,21 however, that on February 4, 2011, he heard the news that the OP had announced his suspension for one year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence, believing that the OP had already prejudged his case and that any proceeding before it would simply be a charade, petitioner no longer attended the scheduled clarificatory conference. Instead, he filed an Objection to Proceedings22 on February 7, 2011. Despite petitioner's absence, however, the OP pushed through with the proceedings and, on March 31, 2011, rendered the assailed Decision,23 the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and hereby meted out the penalty of DISMISSAL from service.

SO ORDERED.

Hence, the petition.

G.R. No. 196232

In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal Case No. 28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan.

On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010, however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit ("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the PLEBARA compliant with jurisprudential guidelines.

Outraged by the backroom deal that could allow Major General Garcia to get off the hook with nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his culpability for serious public offenses, the House of Representatives' Committee on Justice conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the Committee on Justice passed and adopted Committee Resolution No. 3,24 recommending to the President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate charges against her Deputies and Assistants before the appropriate government office for having committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and grounds for removal from office under the Ombudsman Act.

The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of the OP with respect to the administrative disciplinary proceeding against her. The OP, however, still proceeded with the case, setting it for preliminary investigation on April 15, 2011.

Hence, the petition.

The Issues

In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:

(A)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.

(B)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.

(C)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF MENDOZA'S MOTION FOR RECONSIDERATION.

(D)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S CASE.

(E)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.

(F)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT PETITIONER DEMANDED A BRIBE FROM MENDOZA.25

On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question -

AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE?26

Re-stated, the primordial question in these two petitions is whether the Office of the President has jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special Prosecutor who belong to the constitutionally-created Office of the Ombudsman.

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.

It is true that the authority of the Office of the Ombudsman to conduct administrative investigations proceeds from its constitutional mandate to be an effective protector of the people against inept and corrupt government officers and employees,27 and is subsumed under the broad powers "explicitly conferred" upon it by the 1987 Constitution and R.A. No. 6770.28

The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term, which literally means "agent" or "representative," communicates the concept that has been carried on into the creation of the modern-day ombudsman, that is, someone who acts as a neutral representative of ordinary citizens against government abuses.29 This idea of a people's protector was first institutionalized in the Philippines under the 1973 Constitution with the creation of the Tanodbayan, which wielded the twin powers of investigation and prosecution. Section 6, Article XIII of the 1973 Constitution provided thus:

Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court or body.

The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with authority to "act in a quick, inexpensive and effective manner on complaints against administrative officials", and to function purely with the "prestige and persuasive powers of his office" in correcting improprieties, inefficiencies and corruption in government freed from the hampering effects of prosecutorial duties.30 Accordingly, Section 13, Article XI of the 1987 Constitution enumerates the following powers, functions, and duties of the Office of the Ombudsman, viz:

(1)    Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

(2)    Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3)    Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(4)    Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

(5)    Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

(6)    Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

(7)    Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

(8)    Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.31

Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of 1989, to shore up the Ombudsman's institutional strength by granting it "full administrative disciplinary power over public officials and employees,"32 as follows:

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.(Emphasis supplied)

In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was explicitly conferred the statutory power to conduct administrative investigations under Section 19 of the same law, thus:

Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

3. Are inconsistent with the general course of an agency's functions, though in accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of justification.

While the Ombudsman's authority to discipline administratively is extensive and covers all government officials, whether appointive or elective, with the exception only of those officials removable by impeachment, the members of congress and the judiciary, such authority is by no means exclusive. Petitioners cannot insist that they should be solely and directly subject to the disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's disciplinary authority over all government officials, Section 8(2), on the other hand, grants the President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus:

Section 8. Removal; Filling of Vacancy.-

x x x x

(2) 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.

It is a basic canon of statutory construction that in interpreting a statute, care should be taken that every part thereof be given effect, on the theory that it was enacted as an integrated measure and not as a hodge-podge of conflicting provisions. A construction that would render a provision inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled whenever possible as parts of a coordinated and harmonious whole.33 Otherwise stated, the law must not be read in truncated parts. Every part thereof must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.34

A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special

Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter are quite insightful, viz:

x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy Tanodbayan may only be removed for cause and after due process. He added that the President alone has the power to remove the Deputy Tanodbayan.

Reacting thereto, Senator Guingona observed that this might impair the independence of the Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he can be removed not by the President but by the Ombudsman.

However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman may try to protect one another. The Chair suggested the substitution of the phrase "after due process" with the words after due notice and hearing with the President as the ultimate authority.

Senator Guingona contended, however, that the Constitution provides for an independent Office of the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan Deputies would be an encroachment on the independence of the Tanodbayan.

Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however, considering the Chair's observation that vesting such authority upon the Tanodbayan itself could result in mutual protection, it is necessary that an outside official should be vested with such authority to effect a check and balance.35

Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section 21 - in the same Organic Act was to provide for an external authority, through the person of the President, that would exercise the power of administrative discipline over the Deputy Ombudsman and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the Ombudsman over all government officials and employees. Such legislative design is simply a measure of "check and balance" intended to address the lawmakers' real and valid concern that the Ombudsman and his Deputy may try to protect one another from administrative liabilities.

This would not be the first instance that the Office of the President has locked horns with the Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor of shared authority in Hagad v. Gozo Dadole.36 In said case, the Mayor and Vice-Mayor of Mandaue City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his authority to conduct administrative investigations over said local elective officials by virtue of the subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent provision of which states:

Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President.

The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No. 7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the Ombudsman Act was inferred therefrom. Thus said the Court:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are not favored, and that courts must generally assume their congruent application. The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject.37

While Hagad v. Gozo Dadole38 upheld the plenary power of the Office of the Ombudsman to discipline elective officials over the same disciplinary authority of the President under R.A. No. 7160, the more recent case of the Office of the Ombudsman v. Delijero39 tempered the exercise by the Ombudsman of such plenary power invoking Section 23(2)40 of R.A. No. 6770, which gives the Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees." The Court underscored therein the clear legislative intent of imposing "a standard and a separate set of procedural requirements in connection with administrative proceedings involving public school teachers"41 with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for Public School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary authority over a public school teacher is concurrent with the proper investigating committee of the Department of Education, it would have been more prudent under the circumstances for the Ombudsman to have referred to the DECS the complaint against the public school teacher.

Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete out administrative sanctions upon them, including the extreme penalty of dismissal from the service. However, it is equally without question that the President has concurrent authority with respect to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified conditions. Considering the principles attending concurrence of jurisdiction where the Office of the President was the first to initiate a case against petitioner Gonzales, prudence should have prompted the Ombudsman to desist from proceeding separately against petitioner through its Internal Affairs Board, and to defer instead to the President's assumption of authority, especially when the administrative charge involved "demanding and soliciting a sum of money" which constitutes either graft and corruption or bribery, both of which are grounds reserved for the President's exercise of his authority to remove a Deputy Ombudsman.

In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge of graft and corruption against petitioner could not have the effect of preventing the Office of the President from proceeding against petitioner upon the same ground of graft and corruption. After all, the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers.42 In Montemayor v. Bundalian,43 the Court sustained the President's dismissal from service of a Regional Director of the Department of Public Works and Highways (DPWH) who was found liable for unexplained wealth upon investigation by the now defunct Philippine Commission Against Graft and Corruption (PCAGC). The Court categorically ruled therein that the prior dismissal by the Ombudsman of similar charges against said official did not operate as res judicata in the PCAGC case.

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.

Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the Ombudsman and his Deputies, viz:

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

While the removal of the Ombudsman himself is also expressly provided for in the Constitution, which is by impeachment under Section 244 of the same Article, there is, however, no constitutional provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in the law without running afoul of any provision in the Constitution or existing statutes. In fact, the Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to impeachment.

That the Deputies of the Ombudsman were intentionally excluded from the enumeration of impeachable officials is clear from the following deliberations45 of the Constitutional Commission, thus:

MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform his duties because he is something like a guardian of the government. This recalls the statement of Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies", who will guard the guardians? I understand here that the Ombudsman who has the rank of a chairman of a constitutional commission is also removable only by impeachment.

MR. ROMULO. That is the intention, Madam President.

MR. REGALADO. Only the Ombudsman?

MR. MONSOD. Only the Ombudsman.

MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of". We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and read our discussions into the Record for purposes of the Commission and the Committee.46

x x x

THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the Ombudsman among those officials who have to be removed from office only onimpeachment. Is that right?

MR. DAVIDE. Yes, Madam President.

MR. RODRIGO. Before we vote on the amendment, may I ask a question?

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. The Ombudsman, is this only one man?

MR. DAVIDE. Only one man.

MR. RODRIGO. Not including his deputies.

MR. MONSOD. No.47 (Emphasis supplied)

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

Under the doctrine of implication, the power to appoint carries with it the power to remove.48 As a general rule, therefore, all officers appointed by the President are also removable by him.49 The exception to this is when the law expressly provides otherwise - that is, when the power to remove is expressly vested in an office or authority other than the appointing power. In some cases, the Constitution expressly separates the power to remove from the President's power to appoint. Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of lower courts shall be appointed by the President. However, Members of the Supreme Court may be removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges of lower courts may be removed only by the Supreme Court by virtue of its administrative supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall likewise be appointed by the President, but they may be removed only by impeachment (Section 2, Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9, Article XI) but may also be removed only by impeachment (Section 2, Article XI).

In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor, Congress simply laid down in express terms an authority that is already implied from the President's constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman.

The Office of the Ombudsman is charged with monumental tasks that have been generally categorized into investigatory power, prosecutorial power, public assistance, authority to inquire and obtain information and the function to adopt, institute and implement preventive measures.50 In order to ensure the effectiveness of his constitutional role, the Ombudsman was provided with an over-all deputy as well as a deputy each for Luzon, Visayas and Mindanao. However, well into the deliberations of the Constitutional Commission, a provision for the appointment of a separate deputy for the military establishment was necessitated by Commissioner Ople's lament against the rise within the armed forces of "fraternal associations outside the chain of command" which have become the common soldiers' "informal grievance machinery" against injustice, corruption and neglect in the uniformed service,51 thus:

In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association outside the chain of command proposing reformist objectives. They constitute, in fact, an informal grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El Diablo and other organizations dominated by enlisted men function, more or less, as grievance collectors and as mutual aid societies.

This proposed amendment merely seeks to extend the office of the Ombudsman to the military establishment, just as it champions the common people against bureaucratic indifference. The Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance to higher authorities. This deputy will, of course work in close cooperation with the Minister of National Defense because of the necessity to maintain the integrity of the chain of command. Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may not have to fall back on their own informal devices to obtain redress for their grievances. The Ombudsman will help raise troop morale in accordance with a major professed goal of the President and the military authorities themselves. x x x

The add-on now forms part of Section 5, Article XI which reads as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise be appointed. (Emphasis supplied)

The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog looking into abuses and irregularities that affect the general morale and professionalism in the military is certainly of primordial importance in relation to the President's own role asCommander-in-Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the President concurrent disciplinary authority over the Deputy Ombudsman for the military and other law enforcement offices.

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

The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with was intended to free it from political considerations in pursuing its constitutional mandate to be a protector of the people. What the Constitution secures for the Office of the Ombudsman is, essentially, political independence. This means nothing more than that "the terms of office, the salary, the appointments and discipline of all persons under the office" are "reasonably insulated from the whims of politicians."52 And so it was that Section 5, Article XI of the 1987 Constitution had declared the creation of the independent Office of the Ombudsman, composed of the Ombudsman and his Deputies, who are described as "protectors of the people" and constitutionally mandated to act promptly on complaints filed in any form or manner against public officials or employees of the Government Section 12, Article XI. Pertinent provisions under Article XI prescribes a term of office of seven years without reappointment Section 11, prohibits a decrease in salaries during the term of office Section 10, provides strict qualifications for the office Section 8, grants fiscal autonomy Section 14 and ensures the exercise of constitutional functions Section 12 and 13. The cloak of independence is meant to build up the Office of the Ombudsman's institutional strength to effectively function as official critic, mobilizer of government, constitutional watchdog53 and protector of the people. It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its officials to escape administrative discipline.

Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political influences and the discretionary acts of the executive, Congress laid down two restrictions on the President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that the removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman, or a Special Prosecutor for that matter, would diminish or compromise the constitutional independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the independence of the Ombudsman's Deputies and Special Prosecutor in the discharge of their duties that their removal can only be had on grounds provided by law.

In Espinosa v. Office of the Ombudsman,54 the Court elucidated on the nature of the Ombudsman's independence in this wise -

The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To insulate the Office from outside pressure and improper influence, the Constitution as well as RA 6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from legislative, executive or judicial intervention. This Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of public service.

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

Having now settled the question concerning the validity of the President's power to remove the Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy Ombudsman Emilio A. Gonzales, III.

At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP proceeded with the administrative case against him despite his non-attendance thereat. Petitioner was admittedly able to file an Answer in which he had interposed his defenses to the formal charge against him. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process.55 Due process is simply having the opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of.56

The essence of due process is that a party is afforded reasonable opportunity to be heard and to submit any evidence he may have in support of his defense.57 Mere opportunity to be heard is sufficient. As long as petitioner was given the opportunity to explain his side and present evidence, the requirements of due process are satisfactorily complied with because what the law abhors is an absolute lack of opportunity to be heard.58 Besides, petitioner only has himself to blame for limiting his defense through the filing of an Answer. He had squandered a subsequent opportunity to elucidate upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory Conference despite notice. The OP recounted as follows -

It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities to explain his side and answer the Formal Charge against him.

In the first instance, respondent was given the opportunity to submit his answer together with his documentary evidence, which opportunity respondent actually availed of. In the second instance, this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman refused to appear for said conference, interposing an objection based on the unfounded notion that this Office has prejudged the instant case. Respondent having been given actual and reasonable opportunity to explain or defend himself in due course, the requirement of due process has been satisfied.59

In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial evidence,60 which is more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.61 The fact, therefore, that petitioner later refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability based on substantial evidence, which only requires that a decision must "have something upon which it is based."62

Factual findings of administrative bodies are controlling when supported by substantial evidence.63 The OP's pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding penalty of removal from office was based on the finding of gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust, which is a constitutional ground for the removal by impeachment of the Ombudsman (Section 2, Article XI, 1987 Constitution), and a statutory ground for the President to remove from office a Deputy Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act.

The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained action in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his failure to verify the basis for requesting the Ombudsman to take over the case; his pronouncement of administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp. Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency of the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of available remedies against the immediate implementation of the Decision dismissing him from the service.

Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1) petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S Insp. Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by effectively depriving the latter of the right to challenge the dismissal before the courts and prevent its immediate execution, and (2) petitioner showed undue interest by having P/S Insp. Mendoza's case endorsed to the Office of the Ombudsman and resolving the same against P/S Insp. Mendoza on the basis of the unverified complaint-affidavit of the alleged victim Christian Kalaw.

The invariable rule is that administrative decisions in matters within the executive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error of law.64 In the instant case, while the evidence may show some amount of wrongdoing on the part of petitioner, the Court seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that petitioner's offenses, as they factually appear, weigh heavily enough to constitute betrayal of public trust would be to ignore the significance of the legislature's intent in prescribing the removal of the Deputy Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for the most serious violations that justify the removal by impeachment of the highest officials of the land.

Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties constitute betrayal of public trust warranting immediate removal from office? The question calls for a deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman and a Special Prosecutor vis-a-vis common administrative offenses.

Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and other high crimes. While it was deemed broad enough to cover any violation of the oath of office,65 the impreciseness of its definition also created apprehension that "such an overarching standard may be too broad and may be subject to abuse and arbitrary exercise by the legislature."66 Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office"67 could be easily utilized for every conceivable misconduct or negligence in office. However, deliberating on some workable standard by which the ground could be reasonably interpreted, the Constitutional Commission recognized that human error and good faith precluded an adverse conclusion.

MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I am not a lawyer so I can anticipate the difficulties that a layman may encounter in understanding this provision and also the possible abuses that the legislature can commit in interpreting this phrase. It is to be noted that this ground was also suggested in the 1971 Constitutional Convention. A review of the Journals of that Convention will show that it was not included; it was construed as encompassing acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers. I understand from the earlier discussions that these constitute violations of the oath of office, and also I heard the Honorable Davide say that even the criminal acts that were enumerated in the earlier 1973 provision on this matter constitute betrayal of public trust as well. In order to avoid confusion, would it not be clearer to stick to the wording of Section 2 which reads: "may be removed from office on impeachment for and conviction of, culpable violation of the Constitution, treason, bribery, and other high crimes, graft and corruption or VIOLATION OF HIS OATH OF OFFICE", because if betrayal of public trust encompasses the earlier acts that were enumerated, then it would behoove us to be equally clear about this last provision or phrase.

MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words "betrayal of public trust" in the 1986 Constitution. But I would like him to know that we are amenable to any possible amendment. Besides, I think plain error of judgment, where circumstances may indicate that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will allay the fears of difficulty in interpreting the term."68 (Emphasis supplied)

The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of public trust to refer to "acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers."69 In other words, acts that should constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment.

A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by providing for their removal from office on the same grounds as removal by impeachment, the legislature could not have intended to redefine constitutional standards of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment, this should remain true even for purposes of removing a Deputy Ombudsman and Special Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could not suddenly "overreach" to cover acts that are not vicious or malevolent on the same level as the other grounds for impeachment.

The tragic hostage-taking incident was the result of a confluence of several unfortunate events including system failure of government response. It cannot be solely attributed then to what petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official acts in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution of his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records show that petitioner took considerably less time to act upon the draft resolution after the same was submitted for his appropriate action compared to the length of time that said draft remained pending and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and denied P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release of any final order on the case was no longer in his hands.

Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the same cannot be considered a vicious and malevolent act warranting his removal for betrayal of public trust. More so because the neglect imputed upon petitioner appears to be an isolated case.

Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking cognizance of cases upon the request of concerned agencies or private parties is part and parcel of the constitutional mandate of the Office of the Ombudsman to be the "champion of the people." The factual circumstances that the case was turned over to the Office of the Ombudsman upon petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even without the private complainant verifying the truth of his statements; that the decision was immediately implemented; or that the motion for reconsideration thereof remained pending for more than nine months cannot be simply taken as evidence of petitioner's undue interest in the case considering the lack of evidence of any personal grudge, social ties or business affiliation with any of the parties to the case that could have impelled him to act as he did. There was likewise no evidence at all of any bribery that took place, or of any corrupt intention or questionable motivation.

Accordingly, the OP's pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust. Hence, the President, while he may be vested with authority, cannot order the removal of petitioner as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind amounting to a betrayal of public trust.

This is not to say, however, that petitioner is relieved of all liability for his acts showing less than diligent performance of official duties. Although the administrative acts imputed to petitioner fall short of the constitutional standard of betrayal of public trust, considering the OP's factual findings of negligence and misconduct against petitioner, the Court deems it appropriate to refer the case to the Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and the imposition of the corresponding administrative sanctions, if any.

Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled to reinstatement to his former position as Deputy Ombudsman and to the payment of backwages and benefits corresponding to the period of his suspension.

The Office of the President is vested
with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.

Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove her from office upon the averment that without the Sandiganbayan's final approval and judgment on the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions "tantamount to culpable violations of the Constitution and betrayal of public trust," which are grounds for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989; and which also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) - causing undue injury to the Government or giving any private party any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent, petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take administrative disciplinary proceeding against her must depend on the final disposition by the Sandiganbayan of the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA, there would no longer be any cause of complaint against her; if not, then the situation becomes ripe for the determination of her failings.

The argument will not hold water. The incidents that have taken place subsequent to the submission in court of the PLEBARA shows that the PLEBARA has been practically approved, and that the only thing which remains to be done by the Sandiganbayan is to promulgate a judgment imposing the proper sentence on the accused Major General Garcia based on his new pleas to lesser offenses. On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea under the PLEBARA was warranted and that it complied with jurisprudential guidelines. The Sandiganbayan, thereafter, directed the accused Major General Garcia to immediately convey in favor of the State all the properties, both real and personal, enumerated therein. On August 11, 2010, the Sandiganbayan issued a resolution, which, in order to put into effect the reversion of Major General Garcia's ill-gotten properties, ordered the corresponding government agencies to cause the transfer of ownership of said properties to the Republic of the Philippines. In the meantime, the Office of the Special Prosecutor (OSP) informed the Sandiganbayan that an Order70 had been issued by the Regional Trial Court of Manila, Branch 21 on November 5, 2010 allowing the transfer of the accused's frozen accounts to the Republic of the Philippines pursuant to the terms of the PLEBARA as approved by the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its May 4, 2010 Resolution had been substantially complied with, Major General Garcia manifested71 to the Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the criminal information against his wife and two sons. Major General Garcia's Motion to Dismiss,72 dated December 16, 2010 and filed with the Sandiganbayan, reads:

1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining Agreement executed by the Principal Accused, the charges against the Co-Accused should likewise be dismissed since the charges against them are anchored on the same charges against the Principal Accused.

On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended. Upon Major General Garcia's motion, and with the express conformity of the OSP, the Sandiganbayan allowed him to post bail in both cases, each at a measly amount of ₱ 30,000.00.

The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an administrative finding of liability against petitioner Barreras-Sulit. While the court's determination of the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the disciplinary authority's determination of the prosecutor's administrative liability is based on whether the plea bargain is consistent with the conscientious consideration of the government's best interest and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes against the State. Consequently, the disciplining authority's finding of ineptitude, neglect or willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an agreement which the government finds "grossly disadvantageous," could result in administrative liability, notwithstanding court approval of the plea bargaining agreement entered into.

Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval.73 The essence of a plea bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the procedure therefor, to wit:

SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)

Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the guilt of the accused of the crime charged.74 However, if the basis for the allowance of a plea bargain in this case is the evidence on record, then it is significant to state that in its earlier Resolution75 promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented by the prosecution is viewed by the Court to be of strong character that militates against the grant of bail."

Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard of judicial probable cause which is sufficient to initiate a criminal case."76 Hence, in light of the apparently strong case against accused Major General Garcia, the disciplining authority would be hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case.

The Court need not touch further upon the substantial matters that are the subject of the pending administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to the complete and effective resolution of the administrative case before the Office of the President.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the law of the land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the Ombudsman Act; and (b) the validity of the administrative action of removal taken against petitioner Gonzales. While the Court voted unanimously to reverse the decision of the OP removing petitioner Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed statutory provision in its two deliberations held on April 17, 2012 and September 4, 2012. There being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of the Internal Rules of the Court.

Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the Members of the Court actually taking part in the deliberation to sustain any challenge to the constitutionality or validity of a statute or any of its provisions.

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of backwages corresponding to the period of suspension effective immediately, even as the Office of the Ombudsman is directed to proceed with the investigation in connection with the above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of the Ombudsman Act of 1989.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO
Chief Justice

ANTONIO T. CARPIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
BIENVENIDO L. REYES
Associate Justice

C E R T I F I C A T I O N

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

Ma. LOURDES P. A. SERENO
Chief Justice


Footnotes

1 Annex "A," rollo ( G.R. No. 196231), pp. 72-86.

2 Annex "A," rollo (G.R. No. 196232), p. 26.

3 Annex "C," id. at 33.

4 Val Rodriguez, Grandstand Carnage, The Philippine Star, August 24, 2010 <http://www.philstar.com/Article.aspx?articleId=605631&publicationSubCategoryId=63> (visited January 5, 2011).

5 Charge Sheet, rollo (G.R. No. 196231), p. 87.

6 Id. at 231.

7 Resolution dated August 26, 2008, id. at 233-235.

8 Id. at 128.

9 Id. at 153-158.

10 Id. at 203-216.

11 Annex "F," id. at 132-136.

12 Annex "N," id. at 244-249.

13 The President issued Joint Department Order No. 01-2010 creating the IIRC.

14 As quoted in the Petition in G.R. No. 196231, rollo, pp. 17-20.

15 Annex "Q," id. at 322.

16 R. A. No. 3019.

17 Rollo (G.R. No. 196231), pp. 324-346.

18 R.A. No. 6713.

19 Annex "W," rollo (G.R. No. 196231), pp. 386-408.

20 Annex "S," id. at 377.

21 Petition, id. at 8.

22 Annex "V," id. at 380-383.

23 Annex "A," id. at 72-86.

24 Annex "B," rollo (G.R. No. 196232), pp. 27-30.

25 Petition, rollo (G.R. No. 196231), pp. 23-24.

26 Petition, rollo (G.R. No. 196232), p. 10.

27 Ledesma v. Court of Appeals, 503 Phil. 396 (2005).

28 Office of the Ombudsman v. Masing and Tayactac, G.R. No. 165416, January 22, 2008, 542 SCRA 253.

29 De Leon, 2 Philippine Constitutional Law Principles and Cases, 855 (2004).

30 Bernas, S.J., The Intent of the 1986 Constitution Writers, 771 (1995).

31 Id. at 143-144.

32 Office of the Ombudsman v. Delijero, Jr., G.R. No. 172635, October 20, 2010, 634 SCRA 135.

33 Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) v. Executive Secretary Romulo, G.R. No. 160093, July 31, 2007, 528 SCRA 673, 682.

34 Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517, June 22, 2010, 621 SCRA 461, citing Land Bank of the Philippines v. AMS Farming Corporation, 569 SCRA 154, 183 (2008) and Mactan-Cebu International Airport Authority v. Urgello, 520 SCRA 515, 535 (2007).

35 See Comment of the Office of the Solicitor General, rollo (G.R. No. 196231), pp. 709-710.

36 321 Phil. 604 (1995).

37 Id. at 613-614

38 Id.

39 Supra note 31.

40 Section 23. Formal Investigation.-

x x x x

(2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be determined within the period prescribed in the civil service law. x x x

41 Supra note 31, at 146.

42 Montemayor v. Bundalian, G.R. No. 149335, July 1, 2003, 405 SCRA 264.

43 Id.

44 Sec.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.

45 As quoted in Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, 493 Phil. 63, 77-80 (2005).

46 Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274.

47 Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, p. 305.

48 Aguirre, Jr. v. De Castro, 378 Phil. 714 (1999).

49 Cruz, Carlo L., The Law of Public Officers, 154-155 (1992).

50 Sec. 13, Article XI; De Leon, Hector, 2 Philippine Constitutional Law, 860 (2004), citing Concerned Officials of the MWSS v. Velasquez, 310 Phil. 549 (1995) and Garcia-Rueda v. Pascasio, 344 Phil. 323 (1997).

51 Bernas, S.J., The Intent of the 1986 Constitution Writers, 773-774 (1995).

52 De Leon, 2 Philippine Constitutional Law Principles and Cases, 857 (2004), citing Del. R.D. ROBLES, The Ombudsman, in C.R. Montejo, On the 1973 Constitution, 232.

53 Id. at 859-860.

54 397 Phil. 829, 831 (2000), cited in Angeles v. Desierto, 532 Phil. 647, 656 (2006).

55 Cayago v. Lina, 489 Phil. 735 (2005).

56 Libres v. NLRC, 367 Phil. 180 (1999).

57 Concerned Officials of MWSS v. Vasquez, 310 Phil. 549 (1995).

58 AMA Computer College-East Rizal v. Ignacio, G.R. No. 178520, June 23, 2009, 590 SCRA 633, 654 citing Casimiro v. Tandog, 498 Phil. 660, 666 (2005).

59 OP Decision, p. 7, rollo (G.R. No. 196231), p. 78.

60 Funa, Dennis B., The Law on the Administrative Accountability of Public Officers, 509 (2010), citing Office of the Court Administrator v. Bucoy, A.M. No. P-93-953, August 25, 1994, 235 SCRA 588; Tolentino v. CA, 234 Phil. 28 (1987), Biak na Bato Mining Co. v. Tanco, 271 Phil. 339 (1991).

61 Rules of Court, Rule 133, Sec.5; Nicolas v. Desierto, 488 Phil. 158 (2004); Ang Tibay v. Court of Industrial Relations, 69 Phil 635 (1940).

62 Supra note 60, at 511.

63 Dadubo v. CSC, G.R. No. 106498, June 28, 1993, 223 SCRA 747.

64 Assistant Executive Secretary for Legal Affairs of the Office of the President v. Court of Appeals, 251 Phil. 26 (1989), citing Lovina v. Moreno, 118 Phil. 1401 (1963).

65 Joaquin G. Bernas, The 1987 Constitution of the Philippines: A Commentary, 992 (1996).

66 Records of the 1986 Constitutional Commission, Vol. II, p. 286.

67 Supra note at 65.

68 Records of the 1986 Constitutional Commission, Vol. II, pp. 283-284.

69 Id. at 286.

70 Annex "2" of the Supplemental Comment on the Petition, rollo (G.R. No. 196232), p. 212.

71 Annex "1," id. at 210-211

72 Annex "3," id. at 213-215.

73 Daan v. Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008, 550 SCRA 233, citing People v. Villarama, Jr., 210 SCRA 246, 251-252 (1992).

74 People v. Villarama, Jr., G.R. No. 99287, June 23, 1992, 210 SCRA 246; People v. Parohinog, 185 Phil. 266 (1980); People v. Kayanan, 172 Phil. 728 (1978).

75 Annex "7" of the Supplemental Comment on the Petition, rollo (G.R. No. 196232), pp. 225-268.

76 Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 608; Cabrera v. Marcelo, 487 Phil. 427 (2004).


The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

CARPIO, J.:

Our Constitution does not impart a fixed and rigid concept of independence among the offices that it creates. While it declares certain bodies as "'independent", we cannot assume that the independence of the Ombudsman1 is the same as the independence of the Judiciary. Neither is the independence of the Constitutional Commissions the same as that of the National Economic and Development Authority, the Bangko Sentral ng Pilipinas or the Commission on Human Rights2. This Court cannot make a "one size fits all" concept of independence because the Constitution itself differentiates the degree of independence of these bodies.

In this case, the petitions seek to strike down Section 8(2) of Republic Act No. 6170 or the Ombudsman Act of 1989 which delegates to the President the power to remove a Deputy Ombudsman or the Special Prosecutor "for any of the grounds provided for the removal of the Ombudsman, and after due process." The provision allegedly compromises the independence of the Ombudsman by imposing an external disciplinary authority, namely the President.

I agree with the ponencia that Section 8(2) of the Ombudsman Act does not violate the Constitution. The constitutional principle of independence does not obviate the possibility of a check from another body. After all, one of the constitutive principles of our constitutional structure is the system of checks and balances- a check that is not within a body, but outside of it. This is how our democracy operates - on the basis of distrust.3

I.

Section 2, Article XI of the 1987 Constitution prescribes how all public officers and employees, both impeachable and non-impeachable, may be removed. Section 2 provides:

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. (Boldfacing and underscoring supplied)

Section 2 of Article XI consists of two parts. The first sentence identifies the public officials who are subject to removal only by impeachment. The second sentence explicitly leaves to the discretion of Congress, through an implementing law, the removal of all other public officers and employees. In other words, by stating that all other non- impeachable officers and employees "may be removed from office as provided by law" - the Constitution expressly grants to Congress the power to determine the manner and cause of removal, including who will be the disciplinary authority, of non-impeachable officers and employees. Clearly, Section 8(2) of the Ombudsman Act is valid and constitutional since Congress is expressly empowered to legislate such law pursuant to Section 2, Article XI of the Constitution.

The original text of Section 24 of Article XI did not include the second sentence.5 Its subsequent inclusion was only meant to exclude "all other public officers and employees" from removal through impeachment. Otherwise, Congress would have the plenary power to remove public officers and employees through impeachment or through any other mode of removal. Thus, at the outset, the framers of the 1987 Constitution saw no need to textualize this power- for it was already taken for granted as part of the plenary power of Congress. However, to limit this plenary power of Congress, the framers expressly excluded impeachment as a mode of removing "all other public officers and employees."

This Court has repeatedly declared that the Constitution "confers plenary legislative x x x powers subject only to limitations provided in the Constitution."6 Thus, in inserting the second sentence in Section 8(2), Article XI of the 1987 Constitution, the framers intended to limit impeachment only to public officers enumerated in the first sentence of Section 2:

MR. REGALADO. I propose to add in Section 2 as a last sentence thereof as already amended the following: ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY BE REMOVED FROM OFFICE AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT. The reason for the amendment is this: While Section 2 enumerates the impeachable officers, there is nothing that will prevent the legislature as it stands now from providing also that other officers not enumerated therein shall also be removable only by impeachment, and that has already happened.

Under Section 1 of P.D. No. 1606, the Sandiganbayan Decree, justices of the Sandiganbayan may be removed only by impeachment, unlike their counterparts in the then Court of Appeals. They are, therefore, a privileged class on the level of the Supreme Court. In the Committee on Constitutional Commissions and Agencies, there are many commissions which are sought to be constitutionalized - if I may use the phrase - and the end result would be that if they are constitutional commissions, the commissioners there could also be removed only by impeachment. What is there to prevent the Congress later - because of the lack of this sentence that I am seeking to add - from providing that officials of certain offices, although nonconstitutional, cannot also be removed except by impeachment?

THE PRESIDING OFFICER (Mr. Treñas). What does the Committee say on the proposed amendment of Commissioner Regalado?

MR. MONSOD. May we ask Commissioner Regalado a few questions?

Does this mean that with this provision, the other officers in the case of the Sandiganbayan would not be removable by impeachment?

MR. REGALADO. For the present and during the interim and until the new Congress amends P.D. No. 1606, that provision still stands. But the proposed amendment will not prevent the legislature from subsequently repealing or amending that portion of the law. Also, it will prevent the legislature from providing for favoured public officials as not removable except by impeachment.

MR. MONSOD. Mr. Presiding Officer, the Committee is willing to accept the amendment of Commissioner Regalado.

THE PRESIDING OFFICER (Mr. Treñas). The proposed amendment of Commissioner Regalado has been accepted by the Committee.7 (Emphasis supplied)

Clearly, Congress has the power and discretion to delegate to the President the power to remove a Deputy Ombudsman or the Special Prosecutor under Section 8(2) of the Ombudsman Act. While the 1987 Constitution already empowers the Ombudsman to investigate8 and to recommend to remove9 a Deputy Ombudsman and the Special Prosecutor, this does not preclude Congress from providing other modes of removal.

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.

However, the Ombudsman Act also grants the Ombudsman the authority to remove a Deputy Ombudsman and the Special Prosecutor through the general grant of disciplinary authority over all elective and appointive officials, in reiteration of Sections 13(1) and (2), Article XI of the Constitution:10

Section 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.11

In view of Section 8(2) and Section 21 of the Ombudsman Act, the legislative intent is to grant concurrent jurisdiction to the President and the Ombudsman in the removal of the Deputy Ombudsman and the Special Prosecutor. An "endeavor should be made to harmonize the provisions of a law x x x so that each shall be effective."12 This is not a hollow precept of statutory construction. This is based not only on democratic principle but also on the separation of powers, that this Court should not be so casual in voiding the acts of the popularly elected legislature unless there is a clear violation of the Constitution.

II.

When the 1987 Constitution speaks of "independent" bodies, it does not mean complete insulation from other offices. The text, history and structure of the Constitution contemplate checks and balances that result in the expansion, contraction or concurrence of powers, a coordinate functioning among different bodies of government that is not limited to the executive, legislative and judicial branches, but includes the "independent" constitutional bodies. The very structure of our government belies the claim that "independent" bodies necessarily have exclusive authority to discipline its officers.

Not all constitutional declarations are enforceable by courts.13 We declared some of them as not self-executing such as the Declaration of Principles and State Policies under Article II.14 However, the independence of constitutional bodies is a judicially enforceable norm. Textually, the Constitution does not define the term "independent" and thus, the contours of this principle may not be immediately clear. The question therefore arises: to what extent can this Court enforce the independence of bodies like the Ombudsman? Can we impose a particular notion of independence, amidst the silence of the constitutional text, to the extent of nullifying an act of Congress?

The answer lies in the Constitution itself which circumscribes the exercise of judicial power. The Constitution clearly intended different degrees of independence among the "independent" bodies that it created. For some, such as the National Economic and Development Authority, Bangko Sentral ng Pilipinas and Commission on Human Rights, the operationalization of independence is constitutionally committed to the discretion of Congress.15 For the others, like the Civil Service Commission, the Commission on Audit and the Commission on Elections, legislative power is decidedly more limited,16 with express guarantees like fiscal autonomy17 and rule-making power on pleadings and practice.18

The Constitution does not enumerate in detail all the possible legislative powers. The Constitution has vested Congress with plenary powers- as the general repository of the police power of the State- to fill-in gaps in the Constitution for the governance of this country. However, when the Constitution expressly empowers Congress to do a specific act - like expressly empowering Congress to provide the mode of removal of all non-impeachable government officers and employees, there can be no doubt whatsoever that Congress can enact such a law.

Any reading of the 1987 Constitution does not warrant the conclusion that all bodies declared by the Constitution as "independent" have exclusive disciplinary authority over all their respective officials and employees. Unlike the Judiciary where such exclusivity is expressly provided for in the Constitution,19 there is no reason to read such provision in the Ombudsman where the Constitution is silent. On the contrary, the constitutional provision that non-impeachable officers and employees "may be removed from office as provided by law" removes any doubt that Congress can determine the mode of removal of non-impeachable officers and employees of "independent" bodies other than the Judiciary. An "independent" body does not have exclusive disciplinary authority over its officials and employees unless the Constitution expressly so provides, as in the case of the Judiciary.

There are other constitutional bodies declared "independent,"20 but disciplinary authority is statutorily lodged somewhere else.21 Under the New Central Bank Act (Republic Act No. 7653), the President also has the power to remove a member of the Monetary Board on specified grounds.22 There is nothing anomalous in this mode of removal because the Constitution expressly authorizes the legislature to provide for such mode of removal. This Court cannot enforce a speculative notion of independence - that an "independent" body has exclusive disciplinary authority - for doing so would be a species of judicial legislation or a disguised constitutional amendment.

III.

This Court has no business limiting the plenary power of Congress unless the Constitution expressly so limits it. The fact that different constitutional bodies are treated differently under the Constitution shows that independence is a broadly delineated norm. With this level of generality, the constitutional meaning of independence is only that of independent decision-making that is free from partisanship and political pressures. It does not even mean fiscal autonomy unless the Constitution says so.23 Thus, it is generally left to Congress to particularize the meaning of independence, subject only to specific constitutional limitations. Nothing in the Constitution tells us that an "independent" body necessarily has exclusive disciplinary authority over its officials and employees.

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.24

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 disciplinary cases, the 1987 Constitution empowers the Ombudsman to direct the proper disciplinary authority "to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith."25 This is further implemented by the Ombudsman Act which provides that "at its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be determined within the period prescribed in the civil service law."26

Clearly, the Ombudsman is not constitutionally empowered to act alone. Congress can even authorize the Department of Justice or the Office of the President to investigate cases within the jurisdiction of the Ombudsman. Similarly, the Ombudsman can investigate public officers and employees who are under the disciplinary authority of heads of other bodies or agencies.27 The cases cited in the ponencia, i.e. Hagad v. Gozo-Dadofe28 and Office of the Ombudsman v. Delijero, Jr.29 - illustrate that concurrent jurisdiction does not impair the independence of the Ombudsman. Duplication of functions may not at all times promote efficiency, but it is not proscribed by the Constitution.

Accordingly, I vote to DENY the petition in G.R. No. 196232, and to GRANT in part the petition in G.R. No. 196231, in accordance with the ponencia of Justice Estela M. Perlas-Bemabe.

ANTONIO T. CARPIO
Associate Justice


Footnotes

1 CONSTITUTIONS, Art. XI, Sec. 5: There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

2 There are the bodies that the 1987 Constitution considers as "independent." See CONSTITUTIONS, Art. XI-A, Sec. 1; Art. XII, Secs. 9 and 20: Art. XIII, Sec. 17.

3 See J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (2002).

4 As amended and consolidated by the Committee on Accountability of Public Officers of the 1986 Constitutional Commission.

5 II RECORD, CONSTITUTIONAL COMMISSION 263 (26 July 1986).

6 Marcos v. Manglapus, 258 Phil. 479, 499 (1989); Vera v. Avelino, G.R. No. L-543, 31 August 1946, 77 Phil. 192; Ople v. Torres, G.R. No. 127685, 23 July 1998, 354 Phil. 948.

7 II RECORD, CONSTITUTIONAL COMMISSION 356-357 (28 July 1986).

8 CONSTITUTION, Art. XI, Sec. 13(1): Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

9 CONSTITUTION, Art. XI, Sec. 13(3): Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis supplied)10  See notes 8 and 9.

11 R.A. No. 6770, Sec. 21.

12 Valera v. Tuason, Jr., 80 Phil. 823, 827 (1948). See also Mactan-Cebu International Airport Authority v. Urgello, G.R. No. 162288, 4 April 2007, 520 SCRA 515, 535, citing Civil Service Commission v. Joson, Jr., G.R. No. 154674, 27 May 2004, 429 SCRA 773, 786.

13 Tañada v. Angara, 338 Phil. 546 (1997); Manila Prince Hotel v. Government Service Insurance System, 335 Phil. 82 (1997); Kilosbayan, Inc. v. Morato, 316 Phil. 652 (1995).

14 Id.

15 CONSTITUTION, Art. XII, Secs. 9 and 20; Art. XIII, Sec. 17.

16 See CONSTITUTION, Art. IX-A, Sec. 3 (the salaries of the Chairman and the Commissioners are fixed by law but shall not be decreased during their tenure), Sec. 4 (appointment of other officials and employees in accordance with law) and Sec. 8 (the constitutional commissions may perform other functions as may be provided by law).

17 CONSTITUTION, Art. IX-A, Sec. 5.

18 CONSTITUTION, Art. IX-A, Sec. 6.

19 CONSTITUTION, Art. VIII, Sec. 6 ("The Supreme Court shall have administrative supervision over all courts and the personnel thereof.") and Sec. 11 ("x x x The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.").

20 Supra, note 2.

21 Id.

22 R.A. No. 7653, Sec. 10. Removal. - The President may remove any member of the Monetary Board for any of the following reasons:

(a) If the member is subsequently disqualified under the provisions of Section 8 of this Act; or

(b) If he is physically or mentally incapacitated that he cannot properly discharge his duties and responsibilities and such incapacity has lasted for more than six (6) months; or

(c) If the member is guilty of acts or operations which are of fraudulent or illegal character or which are manifestly opposed to the aims and interests of the Bangko Sentral; or

(d) If the member no longer possesses the qualifications specified in Section 8 of this Act.

See also III RECORDS, CONSTITUTIONAL COMMISSION 611 (22 August 1986):

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. Madam President, may I ask a question for clarification? The section says, "The Congress shall establish an independent central monetary authority." My question has reference to the word "independent." How is independence of this authority supported by the Constitution?

In the case of the judiciary, the Members are independent because they have a fixed term and they may not be removed except by impeachment or some very difficult process. This applies to the different constitutional commissions. But in the case of this central monetary authority which we call "independent", how is this independence maintained?

MR. VILLEGAS. The thinking is: Congress, in establishing that independent central monetary authority, should provide a fixed term. Actually that was contained in the original Davide amendment but we thought of leaving it up to Congress to determine that term- a fixed term of probably five years or seven years serving in the monetary board.

MR. RODRIGO. Does this include that they may not be removed except by impeachment by the Congress?

MR. VILLEGAS. Exactly.

MR. RODRIGO. Just like the members of the other constitutional commissions?

MR. VILLEGAS. Yes. That is why we say that they shall be subject to the same disabilities or disqualifications as the members of the constitutional commissions.

MR. RODRIGO. Are we leaving that to Congress?

MR. VILLEGAS. That is right.

MR. RODRIGO: Thank you.

23 Commission on Human Rights Employees' Association v. Commission on Human Rights, G.R. No. 155336, 21 July 2006, 496 SCRA 226.

24 See CONSTITUTION, Art. VIII, Sec. 3; Art. IX-A, Sec. 5; Art. XI, Sec. 14.

25 CONSTITUTION, Art. XI, Sec. 13, par. (3). Emphasis supplied.

26 R.A. No. 6770, Sec. 23(2).

27 The Administrative Code of 1987 (Executive Order No. 292) provides that the heads of agencies are generally empowered to investigate and decide matters involving disciplinary actions against officers and employees under their jurisdiction. ADMINISTRATIVE CODE, BOOK V, Title I, Subtitle A, Chapter 7, Secs. 47, par. (2) and 48, par. (1).

28 G.R. No. 108072, 12 December 1995, 251 SCRA 242.

29 G.R. No. 172635, 20 October 2010, 634 SCRA 135.


The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

BRION, J.:

The present case consists of two consolidated petitions, G.R. No. 196231 and G.R. No. 196232.

I concur with the ponencia's main conclusion that petitioner Emilio Gonzales III (in G.R. No. 196231, referred to as Gonzales or petitioner Gonzales) is not guilty of the charges leveled against him. But with due respect, I disagree with the conclusion that Section 8(2) of Republic Act (RA) No. 6770 (which empowers the President to remove a Deputy Ombudsman or a Special Prosecutor) is constitutionally valid.

The petition of Wendell Barreras-Sulit (G.R. No. 196232, referred to as Sulit or petitioner Sulit) commonly shares with G.R. No. 196231 the issue of the constitutionality discussed below, the administrative proceedings against Sulit should be halted and nullified as she prays for in her petition.

G.R. No. 196231 is a petition questioning the validity of the administrative proceedings conducted by the Office of the President against Gonzales who was the Deputy Ombudsman for Military and Other Law Enforcement Offices.

The action against him before the Office of the President consists of an administrative charge for Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duty (under Section 22, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 and other pertinent Civil Service laws, rules and regulations), and of Misconduct in Office (under Section 3 of the Anti-Graft and Corrupt Practices Act [RA No. 3019).1 The administrative case against Gonzales was recommended by the Incident Investigation and Review Committee (IIRC) in connection with the hijacking of a tourist bus resulting in the death of the hijacker and of some passengers; the hijacker then accused Gonzales of illegal exactions and of delaying the disposition of his Ombudsman case.

On March 31, 2011, the Office of the President found2 Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and penalized him with dismissal from office.

In G.R. No. 196232, petitioner Sulit, a Special Prosecutor in the Office of the Ombudsman, seeks to halt and nullify the ongoing administrative proceedings conducted by the Office of the President against her. Sulit was charged with violating Section 3(e) of RA No. 3019 and for having committed acts and/or omissions tantamount to culpable violations of the Constitution, and betrayal of public trust.

In behalf of the Office of the Ombudsman, Sulit entered into a plea bargain with Major General Carlos F. Garcia who had been charged with Plunder and Money Laundering. Because of the plea bargain, Sulit was required to show cause why an administrative case should not be filed against her. She raised in her Written Explanation of March 24, 2011 the impermissibility and impropriety of administrative disciplinary proceedings against her because the Office of the President has no jurisdiction to discipline and penalize her.3

The two petitions - G.R. No. 196231 and G.R. No. 196232 - share a common issue: whether the President has the power to discipline or remove a Deputy Ombudsman or a Special Prosecutor in the Office of the Ombudsman from office. While the ponencia resolves this issue in favor of the President, it is my considered view that the power to discipline or remove an official of the Office of the Ombudsman should be lodged only with the Ombudsman and not with the Office of the President, in light of the independence the Constitution guarantees the Office of the Ombudsman.

The Office of the Ombudsman is a very powerful government constitutional agency tasked to enforce the accountability of public officers. Section 21 of The Ombudsman Act of 1989 (RA No. 6770) concretizes this constitutional mandate by providing that:

Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis ours)

The Ombudsman's duty to protect the people from unjust, illegal and inefficient acts of all public officials emanates from Section 12, Article XI of the Constitution. These broad powers include all acts of malfeasance, misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their tenure.

To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan politics4 and from fear of external reprisal by making it an "independent" office. Section 5, Article XI of the Constitution expressed this intent, as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. (Emphasis ours)

It is in this light that the general authority of the Office of the President to discipline all officials and employees the President has the authority to appoint,5 should be considered.

In more concrete terms, subjecting the officials of the Office of the 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 Ombudsman and her officials, and must consequently run counter to the independence that the Constitution guarantees the Office of the Ombudsman. What is true for the Ombudsman must be equally true, not only for her Deputies but for other lesser officials of that Office who act as delegates and agents of the Ombudsman in the performance of her duties. The Ombudsman can hardly be expected to place her complete trust in 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. 67706 (providing that the President may remove a Deputy Ombudsman) clearly runs against the constitutional intent and should, thus, be declared void.

Significantly, the possible unconstitutional effects of Section 8(2) of RA No. 6770 were not unknown to the framers of this law. These possibilities were brought by then Senator Teofisto Guingona to the framers' attention as early as the congressional deliberations:

Reacting thereto, Senator Guingona observed that this might impair the independence of the Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan xxx be not by the President but by the Ombudsman.

x x x x

Senator Guingona contended, however, that the Constitution provides for an independent Office of the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan Deputies would be an encroachment on the independence of the Tanodbayan.7

Despite Senator Guingona's objections, Congress passed RA No. 6770 and the objected Section 8(2) into law.8 While it may be claimed that the congressional intent is clear after the Guingona objection was considered and rejected by Congress, such clarity and the overriding congressional action are not enough to insulate the assailed provision from constitutional infirmity if one, in fact, exists. This is particularly true if the infirmity relates to a core constitutional principle - the independence of the Ombudsman - that belongs to the same classification as the constitutionally-guaranteed independence that the Judiciary enjoys. To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) grants where the Constitution confers none.9 When exercised authority is drawn from a vacuum, more so when the authority runs counter to constitutional intents, this Court is obligated to intervene under the powers and duties granted and imposed on it by Article VIII of the Constitution.10 The alternative for the Court is to be remiss in the performance of its own constitutional duties.

More compelling and more persuasive than the reason expressed in the congressional deliberations in discerning constitutional intent should be the deliberations of the Constitutional Commission itself on the independence of the Ombudsman. Commissioner Florenz Regalado of the Constitutional Commission openly expressed his concerns on the matter, fearing that any form of presidential control over the Office of the Ombudsman would diminish its independence:

In other words, Madam President, what actually spawned or caused the failure of the justices of the Tanodbayan insofar as monitoring and fiscalizing the government offices are concerned was due to two reasons: First, almost all their time was taken up by criminal cases; and second, since they were under the Office of the President, their funds came from that office. I have a sneaking suspicion that they were prevented from making administrative monitoring because of the sensitivity of the then head of that office, because if the Tanodbayan would make the corresponding reports about failures, malfunctions or omissions of the different ministries, then that would reflect upon the President who wanted to claim the alleged confidence of the people.

x x x x

It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is not necessarily so. If he is toothless, then let us give him a little more teeth by making him independent of the Office of the President because it is now a constitutional creation, so that the insidious tentacles of politics, as has always been our problem, even with PARGO, PCAPE and so forth, will not deprive him of the opportunity to render service to Juan de la Cruz. x x x. There is supposed to be created a constitutional office- constitutionalized to free it from those tentacles of politics- and we give it more teeth and have the corresponding legislative provisions for its budget, not a budget under the Office of the President.

x x x x

x x x. For that reason, Madam President, I support this committee report on a constitutionally created Ombudsman and I further ask that to avoid having a toothless tiger, there should be further provisions for statistical and logistical support.11 (Emphases ours.)

The intention of the Constitutional Commission to keep the Office of the Ombudsman independent from the President could not have been made any clearer than when Commissioner Christian Monsod vehemently rejected the recommendation of Commissioner Blas Ople who had suggested to the Committee that the Office of the Ombudsman be placed under the Executive:

MR. OPLE. x x x

May I direct a question to the Committee? xxx Will the Committee consider later an amendment xxx, by way of designating the office of the Ombudsman as a constitutional arm for good government, efficiency of the public service and the integrity of the President of the Philippines, instead of creating another agency in a kind of administrative limbo which would be accountable to no one on the pretext that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we prepared the report, it was the opinion of the Committee- and I believe it still is- that it may not contribute to the effectiveness of this office of the Ombudsman precisely because many of the culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the President, it was an ineffectual body and was reduced to the function of a special fiscal.

The whole purpose of the our proposal is precisely to separate those functions and to produce a vehicle that will give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the proposition.12

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive power to remove and discipline members of the Office of the Ombudsman, or to exercise any power over them, would result in an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on the integrity and competence of the very persons who can remove or suspend its members. Equally relevant is the impression that would be given to the public if the rule were otherwise. A complainant with a grievance against a high-ranking official of the Executive, who appears to enjoy the President's favor, would be discouraged from approaching the Ombudsman with his complaint; the complainant's impression (even if misplaced), that the Ombudsman would be susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the constitutional intent of creating an Office of the Ombudsman as champion of the people against corruption and bureaucracy.

These views, to my mind, demolish the concern raised in Congress to justify Section 8(2) of RA No. 6770- i.e., that vesting the authority to remove the Tanodbayan on the Ombudsman would result in mutual protection.13 This congressional concern, too, is a needless one as it is inconsistent with the system of checks and balance that our legal structure establishes.

At the practical constitutional level, the Tanodbayan (now the Office of the Special Prosecutor) cannot protect the Ombudsman who is an impeachable officer, as the power to remove the Ombudsman rests with Congress as the representative of the people.14 On the other hand, should the Ombudsman attempt to shield the Tanodbayan from answering for any violation, the matter may be raised with the Supreme Court on appeal15 or by Special Civil Action for Certiorari,16 whichever may be applicable, in addition to the impeachment proceedings to which the Ombudsman may be subjected. For its part, the Supreme Court is 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. In these lights, the checks and balance principle that underlies the Constitution can be appreciated to be fully operational.

I find it significant that the Office of the Ombudsman is not the only governmental body labeled as "independent" in our Constitution. The list includes the Judiciary,17 the Constitutional Commissions (Commission on Elections, Commission on Audit, and the Civil Service Commission),18 the Commission on Human Rights,19 a central monetary authority,20 and, to a certain extent, the National Economic Development Authority.21 These bodies, however, are granted various degrees of "independence" and these variations must be clarified to fully understand the context and meaning of the "independent" status conferred on the office of the Ombudsman.

The independence enjoyed by the Office of the Ombudsman, by the Constitutional Commissions, and by the Judiciary 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.22

For most, if not for all of these "independent" bodies, the framers of the Constitution intended that they be insulated from political pressure. As a checks and balance mechanism, the Constitution, the Rules of Court, and their implementing laws provide measures to check on the "independence" granted to the Constitutional Commissions and the Office of the Ombudsman; the Supreme Court, as the final arbiter of all legal questions, may review the decisions of the Constitutional Commissions and the Office of the Ombudsman, especially when there is grave abuse of discretion.23 Of course, foisted over the Members of the Supreme Court is the power of impeachment that Congress has the authority to initiate, and carry into its logical end a meritorious impeachment case.24 Such is the symmetry that our Constitution provides for the harmonious balance of all its component and "independent" parts.

In Bengzon v. Drilon,25 we ruled on the fiscal autonomy of the Judiciary, and ruled against the interference that the President may bring. In doing so, we maintained that the independence, and the flexibility of the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to our legal system:

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based.

As in the case of the Office of the Ombudsman, the constitutional deliberations explain the Constitutional Commissions' need for independence.

In the deliberations for the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a constitutionally-created Civil Service Commission, instead of one created by law, based on the precept that the effectivity of this body is dependent on its freedom from the tentacles of politics:

DELEGATE GUNIGUNDO x x x

(b) because we believe that the Civil Service created by law has not been able to eradicate the ills and evils envisioned by the framers of the 1935 Constitution; because we believe that the Civil Service created by law is beholden to the creators of that law and is therefore not politics-free, not graft-free and not corruption-free; because we believe that as long as the law is the reflection of the will of the ruling class, the Civil Service that will be created and recreated by law will not serve the interest of the people but only the personal interest of the few and the enhancement of family power, advancement and prestige.26

The deliberations of the 1987 Constitution on the Commission on Audit, on the other hand, highlighted the developments in the past Constitutions geared towards insulating the Commission on Audit from political pressure:

MR. JAMIR. x x x

When the 1935 Constitution was enacted, the auditing office was constitutionalized because of the increasing necessity of empowering the auditing office to withstand political pressure. Finding a single Auditor to be quite insufficient to withstand political pressure, the 1973 Constitution established the Commission consisting of three members- a chairman and two commissioners.27

In Brillantes, Jr. v. Yorac,28 we pointedly emphasized that the Constitutional Commissions, which have been characterized under the Constitution as "independent," are not under the control of the President, even if they discharge functions that are executive in nature. Faced with a temporary presidential appointment in the Commission on Elections, this Court vigorously denied the President the authority to interfere in these constitutional bodies:

The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending the temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the Commission on Elections themselves without the participation of the President, however well-meaning.

x x x x

x x x. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution.

The Commission on Human Rights, also created by the Constitution as an "independent" office,29 enjoys lesser independence since it was not granted fiscal autonomy, in the manner fiscal autonomy was granted to the offices above-discussed. The lack of fiscal autonomy notwithstanding, the framers of the 1987 Constitution clearly expressed their desire to keep the Commission independent from the executive branch and other political leaders:

MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him our concept, he can advise us on how to reconcile his position with ours. The position of the committee is that we need a body that would be able to work and cooperate with the executive because the Commissioner is right. Many of the services needed by this commission would need not only the cooperation of the executive branch of the government but also of the judicial branch of government. This is going to be a permanent constitutional commission over time. We also want a commission to function even under the worst circumstance when the executive may not be very cooperative. However, the question in our mind is: Can it still function during that time? Hence, we are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize the need for coordination and cooperation. We also would like to build in some safeguards that it will not be rendered useless by an uncooperative executive.

x x x x

MR. GARCIA. Thank you very much, Madame President.

Before we address the procedural question which Commissioner Rodrigo requested, I would like to touch on a very important question which I think is at the very heart of what we are trying to propose- the independence of this Commission on Human Rights. xxx

When I was working as a researcher for Amnesty International, one of my areas of concern was Latin America. I headed a mission to Colombia in 1980. I remember the conversation with President Julio Cesar Turbay Ayala and he told me that in Colombia, there were no political prisoners. This is a very common experience when one goes to governments to investigate human rights. From there, we proceeded to the Procuraduria General to the Attorney-General, to the Ministry of Justice, to the Ministry of Defense, and normally the answers that one will get are: "There are no political prisoners in our country"; "Torture is not committed in this country." Very often, when international commissions or organizations on human rights go to a country, the most credible organizations are independent human rights bodies. Very often these are private organizations, many of which are prosecuted, such as those we find in many countries in Latin America. In fact, what we are proposing is an independent body on human rights, which would provide governments with credibility precisely because it is independent of the present administration. Whatever it says on the human rights situation will be credible because it is not subject to pressure or control from the present political leadership.

Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if we have a Commission on Human Rights that would investigate and make sure that the rights of each one is protected, then we shall have a body that could stand up to any power, to defend the rights of individuals against arrest, unfair trial, and so on.30 (Emphases ours.)

Similarly, the Constitution grants Congress the authority to establish an independent central monetary authority.31 Under these terms, this office is not constitutionally-created nor does it possess fiscal autonomy. When asked what "independence" means in this provision, Commissioner Bernardo Villegas again reiterated the intention of various framers for it to be independent of the executive branch:

MR. VILLEGAS. No, this is a formula intended to prevent what happened in the last regime when the fiscal authorities sided with the executive branch and were systematically in control of monetary policy. This can lead to disastrous consequences. When the fiscal and the monetary authorities of a specific economy are combined, then there can be a lot of irresponsibility. So, this word "independent" refers to the executive branch.32

The National Economic Development Authority, nominally designated as "independent," differs from the other similarly-described agencies because the constitutional provision that provides for its creation immediately puts it under the control of the executive.33 This differing shade of "independence" is supported by the statements made during the constitutional deliberations:

MR. MONSOD. I believe that the word "independent" here, as we answered Commissioner Azcuna, was meant to be independent of the legislature because the NEDA under the present law is under the Office of the President.

MR. COLAYCO. Yes. In other words, the members of that agency are appointed by the President?

MR. VILLEGAS. That is right.

MR. MONSOD. Yes.

MR. VILLEGAS. The President heads the NEDA.34

Commissioner Monsod continues by explaining that they did not constitutionalize the National Economic Development Authority, and, in accordance with the second paragraph of Section 9, Article XII of the 1987 Constitution, even left to Congress the discretion to abolish the office:

MR. MONSOD. During the Committee hearings, there were proposals to change the composition of the governing body not only of the Monetary Board but also of the NEDA. That is why if we notice in this Article, we did not constitutionalize the NEDA anymore unlike in the 1973 Constitution. We are leaving it up to Congress to determine whether or not the NEDA is needed later on. The idea of the Committee is that if we are going for less government and more private sector initiative, later on it may not be necessary to have a planning agency. Thus, it may not be necessary to constitutionalize a planning agency anymore.

So this provision leaves room for the legislature not only to revise the composition of the governing body, but also to remove the NEDA once it is no longer needed in its judgment.35

These deliberative considerations make it abundantly clear that with the exception of the National Economic Development Authority, the independent constitutional bodies were consistently intended by the framers to be independent from executive control or supervision or any form of political influence.

This perspective abundantly clarifies that the cases cited in the ponencia - Hon. Hagad v. Hon. Gozodadole36 and Office of the Ombudsman v. Delijero, Jr.37 - are not in point. These cases refer to the disciplinary authority of the Executive over a public school teacher and a local elective official. Neither of these officials belongs to independent constitutional bodies whose actions should not even be tainted with any appearance of political influence.

In my view, the closest and most appropriate case to cite as exemplar of independence from executive control is Bautista v. Senator Salonga,38 where this Court categorically stated, with respect to the independent Commission on Human Rights, that the tenure of its Commissioners could not be placed under the discretionary power of the President:

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent - as the Commission on Human Rights - and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional.39

Also in point as another "independence" case is Atty. Macalintal v. Comelec,40 this time involving the Commission on Elections, which gave the Court the opportunity to consider even the mere review of the rules of the Commission on Elections by Congress a "trampling" of the constitutional mandate of independence of these bodies. Obviously, the mere review of rules places considerably less pressure on these bodies than the Executive's power to discipline and remove key officials of the Office of the Ombudsman. The caution of, and the strong words used by, this Court in protecting the Commission on Elections' independence should - in addition to those expressed before the Constitutional Commissions and in Congress in the course of framing RA No. 6770 - speak for themselves as reasons to invalidate the more pervasive authority granted by Section 8(2) of RA No. 6770.

Thus, in the case of independent constitutional bodies, with the exception of the National Economic Development Authority, the principle that the President should be allowed to remove those whom he is empowered to appoint (because of the implied power to dismiss those he is empowered to appoint41) should find no application. Note that the withholding of the power to remove is not a stranger to the Philippine constitutional structure.

For example, while the President is empowered to appoint the Members of the Supreme Court and the judges of the lower courts,42 he cannot remove any of them; the Members of the Supreme Court can be removed only by impeachment and the lower court judges can be removed only by the Members of the Supreme Court en banc. This is one of the modes by which the independence of the Judiciary is ensured and is an express edge of the Judiciary over the other "independent" constitutional bodies.

Similarly, the President can appoint Chairmen and Commissioners of the Constitutional Commissions, and the Ombudsman and her Deputies,43 but the Constitution categorically provides that the Chairmen of the Constitutional Commissions and the Ombudsman can only be removed by impeachment.44 The absence of a constitutional provision providing for the removal of the Commissioners and Deputy Ombudsmen does not mean that Congress can empower the President to discipline or remove them in violation of the independence that the Constitution textually and expressly provides.45 As members of independent constitutional bodies, they should be similarly treated as lower court judges, subject to discipline only by the head of their respective offices and subject to the general power of the Ombudsman to dismiss officials and employees within the government for cause. No reason exists to treat them differently.

While I agree with Justice Carpio's opinion that the Constitution empowered Congress to determine the manner and causes for the removal of non-impeachable officers, we cannot simply construe Section 2, Article XI of the Constitution to be a blanket authority for Congress to empower the President to remove all other public officers and employees, including those under the independent constitutional bodies. When the Constitution states that Congress may provide for the removal of public officers and employees by law, it does not mean that the law can violate the provisions and principles laid out in the Constitution. The provision reads:

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. (emphasis and underscoring ours)

The deliberations of the Constitutional Commissions, as quoted by Justice Carpio, explain an important aspect of the second sentence of Section 2, Article XI of the Constitution- that it was not the intent to widen the discretion of Congress in providing for the removal of a public officer; the intent was to limit its powers. The second sentence of Section 2, Article XI was provided to limit the public officers who can only be removed by impeachment. This limitation is one made necessary by past experiences. In an earlier law, Presidential Decree No. 1606, Congress provided, by law, that justices of the Sandiganbayan (who are not included in the enumeration) may only be removed by impeachment. Commissioner Regalado insisted on adding the second sentence of Section 2, Article XI of the Constitution to prevent Congress from extending the more stringent rule of "removal only by impeachment" to favored public officers.46

Ultimately, the question now before this Court goes back to whether the Constitution intended to allow political entities, such as the Executive, to discipline public officers and employees of independent constitutional bodies. If this is the intent, then Congress cannot have the authority to place the power to remove officers of these "independent constitutional bodies" under executive disciplinary authority unless otherwise expressly authorized by the Constitution itself. I firmly take this position because the drafters repeatedly and painstakingly drafted the constitutional provisions on the independent constitutional bodies to separate them from executive control. Even after the other delegates made it clear that the easier path would be to place these bodies under the control of the President, the majority nevertheless voted against these moves and emphatically expressed its refusal to have these offices be made in any way under the disciplinary authority of the Executive.

This constitutional intent rendered it necessary for the Constitution to provide the instances when executive interference may be allowed. In the case of the National Economic Development Authority, the Constitution explicitly provided that the President may exert control over this body. The Constitution was also explicit when it empowered the President to appoint the officers of the other "independent" bodies, and even then, this power was qualified: (1) in the cases of the Constitutional Commissions, by giving the chairmen and the members staggered terms of seven years to lessen the opportunity of the same President to appoint the majority of the body;47 and

(2) in the case of the Ombudsman and his Deputies, by limiting the President's choice from a list prepared by the Judicial and Bar Council.48

Thus, we cannot maintain a light and cavalier attitude in our constitutional interpretation and merely say that the "independence" of the constitutional bodies is whatever Congress would define it at any given time. In the cases I have cited - Bautista v. Senator Salonga,49 Atty. Macalintal v. Comelec,50 and Brillantes, Jr. v. Yorac51 - this Court did not merely leave it to the Legislature or the Executive to freely interpret what "independence" means. We recognized in the term a meaning fully in accord with the intent of the Constitution.

This intent was the same guiding light that drove this Court to rule that the President cannot determine the tenure of the Commission on Human Rights Chairman and Members; that Congress cannot enact a law that empowers it to review the rules of the Commission on Elections; and that the President cannot even make interim appointments in the Commission on Elections.

After halting these lesser infractions based on the constitutional concept of "independence," it would be strange - in fact, it would be inconsistent and illogical for us - to rule at this point that Congress can actually allow the President to exercise the power of removal that can produce a chilling effect in the performance of the duties of a Special Prosecutor or of the Deputy Ombudsman.

I draw attention to the fact that Sections 9, 10, 11 and 12, Article XI of the Constitution do not only refer to the Ombudsman, but also to the Ombudsman's Deputies. Section 9 provides for their appointment process. While the President can appoint them, the appointment should be made from the nominations of the Judicial and Bar Council and the appointments do not require confirmation. Section 10 gives the Ombudsman and the Deputies the same rank and salary as the Chairmen and Members of the Constitutional Commission. The salary may not be diminished during their term. Section 11 disqualifies them from reappointment and participation in the immediately succeeding elections, in order to insulate them further from politics. Section 12 designates the Ombudsman and the Deputies as "protectors of the people" and directs them to act promptly on all complaints against public officials or employees.1‚wphi1

Under this structure providing for terms and conditions fully supportive of "independence," it makes no sense to insulate their appointments and their salaries from politics, but not their tenure. One cannot simply argue that the President's power to discipline them is limited to specified grounds, since the mere filing of a case against them can result in their suspension and can interrupt the performance of their functions, in violation of Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or Special Prosecutor removable by the President can be reduced to the very same ineffective Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these offices independent constitutional bodies.

At the more practical level, we cannot simply turn a blind eye or forget that the work of the Office of the Ombudsman, like the Constitutional Commissions, can place the officers of the Executive branch and their superior in a bad light. We cannot insist that the Ombudsman and his Deputies look into all complaints, even against those against Executive officials, and thereafter empower the President to stifle the effectiveness of the Ombudsman and his or her Deputies through the grant of disciplinary authority and the power of removal over these officers. Common and past experiences tell us that the President is only human and, like any other, can be displeased. At the very least, granting the President the power of removal can be counterproductive, especially when other less political officers, such as the Ombudsman and the Judiciary, already have the jurisdiction to resolve administrative cases against public officers under the Office of the Ombudsman.

Given the support of the Constitution, of the Records of the Constitutional Commission, and of previously established jurisprudence, we cannot uphold the validity of Section 8(2) of RA No. 6770 merely because a similar constitutionally-unsupported provision exists under RA No. 7653. Under our legal system, statutes give way to the Constitution, to the intent of its framers and to the corresponding interpretations made by the Court. It is not, and should not be, the other way around.

I join the ponente in declaring that the Deputy Ombudsmen and Special Prosecutors should not escape accountability for their wrongdoing or inefficiency. I differ only in allowing the President, an elective official whose position is primarily political, to discipline or remove members of independent constitutional bodies such as the Office of the Ombudsman. Thus, the administrative proceedings conducted by the Office of the President against petitioner Gonzales should be voided and those against petitioner Sulit discontinued.

Lastly, while I find the proceedings before the Office of the President constitutionally infirm, nothing in this opinion should prevent the Ombudsman from conducting the proper investigations and, when called for, from filing the proper administrative proceedings against petitioners Gonzales and Sulit. In the case of Gonzales, further investigation may be made by the Ombudsman, but only for aspects of his case not otherwise covered by the Court's Decision.

ARTURO D. BRION
Associate Justice


Footnotes

1 Rollo, Vol. 1, p. 322.

2 Id. at 72-86.

3 Rollo, Vol. 2, p. 8.

4 See Department of Justice v. Hon. Liwag, 491 Phil. 270, 283 (2005); and Deloso v. Domingo, G.R. No. 90591, November 21, 1990, 191 SCRA 545, 550-551.

5 Atty. Aguirre, Jr. v. De Castro, 378 Phil. 714, 726 (1999); Hon. Bagatsing v. Hon. Melencio-Herrera, 160 Phil. 449, 458 (1975); and Lacson v. Romero, 84 Phil. 740, 749 (1949).

6 Section 8. Removal; Filling of Vacancy.-

x x x x

(2) 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.

7 Ponencia, p. 22.

8 Id. at 22-23.

9 Bautista v. Senator Salonga, 254 Phil. 156, 179 (1989).

10 CONSTITUTION, Article VIII, Sections 1 and 5(2).

11 Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294.

12 Id. at 294.

13 Ponencia, p. 22.

14 CONSTITUTION, Article XI, Section 2.

15 RA No. 6770, Section 27.

16 RULES OF COURT, Rule 65.

17 CONSTITUTION, Article VIII, Sections 1, 2, 3, 6, 10 and 11.

18 Id., Article IX(A), Section 1.

19 Id., Article XIII, Section 17(1).

20 Id., Article XII, Section 20.

21 Ibid.

22 Id., Article VIII, Section 3; Article IX(A), Section 5; and Article XI, Section 14.

23 Id., Article VIII, Section 5.

24 Id., Article XI, Section 2.

25 G.R. No. 103524 and A.M. No. 91-8-225-CA, April 15, 1992, 208 SCRA 133, 150.

26 Speech, Session of February 18, 1972, as cited in "The 1987 Constitution of the Republic of the Philippines: A Commentary" by Joaquin Bernas, 2003 ed., p. 1009.

27 Record of the Constitutional Commission, Vol. 1, July 15, 1986, pp. 532-533.

28 G.R. No. 93867, December 18, 1990, 192 SCRA 358, 361.

29 Section 17(1), Article XIII of the 1987 Constitution reads:

Section 17. (1) There is hereby created an independent office called the Commission on Human Rights.

30 Records of the Constitutional Commission, Vol. 3, August 27, 1986, pp. 748-749.

31 Section 20, Article XII of the 1987 Constitution reads:

Section 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector.

32 Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 268.

33 Section 9, Article 12 of the 1987 Constitution reads:

Section 9. The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development.

Until Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.

34 Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 263.

35 Id. at 263-264.

36 321 Phil. 604 (1995).

37 G.R. No. 172635, October 20, 2010, 634 SCRA 135.

38 Supra note 9.

39 Id. at 183-184.

40 453 Phil. 586, 658-659 (2003).

41 Supra note 5. Section 17, Article VII, and Section 4, Article X of the Constitution likewise provide that:

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

Section 4. The President of the Philippines shall exercise general supervision over local governments.

42 CONSTITUTION, Article VIII, Section 9.

43 Id., Article IX(B), Section 1(2); Article IX(C), Section 1(2); Article IX(D), Section 1(2); and Article XI, Section 9.

44 Id., Article XI, Section 2.

45 Id., Article IX(A), Section 1 and Article XI, Section 5 read:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

46 Record of the Constitutional Commission, Vol. 2, July 28, 1986, p. 356 reads:

MR. REGALADO. xxx The reason for the amendment is this: While Section 2 enumerates the impeachable officers, there is nothing that will prevent the legislature as it stands now from providing also that other officers not enumerated therein shall also be removable only by impeachment, and that has already happened.

Under Section 1 of P.D. No,, 1606, the Sandiganbayan Decree, justices of the Sandiganbayan may be removed only by impeachment, unlike their counterparts in the then Court of Appeals. They are, therefore, a privileged class xxx

xxxx

MR. REGALADO. xxx But the proposed amendment with not prevent the legislature from subsequently repealing or amending that portion of the law PD No. 1606. Also, it will prevent the legislature from providing for favored public officials as not removable except by impeachment.

47 CONSTITUTION, Article IX-B, C, and D, Section 1(2).

48 Id., Article XI, Section 9.

49 Supra note 9.

50 Supra note 39.

51 Supra note 27.


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DISSENTING OPINION

ABAD, J.:

This case is not too complicated. Section 8(2) of Republic Act (R.A.) 6770 gave the Office of the President (OP) the power to investigate and remove from office the Deputies Ombudsman and the Special Prosecutor who work 9irectly under the supervision and control of the Ombudsman. Using this power, the OP investigated and found petitioner Emilio Gonzales III, Deputy I Ombudsman . for the Military and Other Law Enforcement Offices, guilty of gross neglect in handling the pending case against a police officer who subsequently hijacked a tourist bus. Using the same power, the OP initiated a similar investigation of a case against petitioner Wendell Barreras-Sulit, the Special Prosecutor, for alleged corruption, she having allowed her I office to enter into a plea-bargaining agreement with Major General Carlos F. Garcia who had been charged with plunder.

Gonzales and Sulit filed separate petitions, the first in G.R. 196231 and the second in G.R. 196232. Gonzales assails the correctness of the OP decision that dismissed him from the service. Both challenges the constitutionality of Section 8(2) of R.A. 6770 which gave the President the power to investigate and remove them.

The ponencia would have the Court uphold the constitutionality of Section 8(2 , R.A. 6770 that empowers the President to investigate and remove Deputy Ombudsman Gonzales and Special Prosecutor Sulit from office. It argues that, although the Constitution expressly provides for the removal of (e Ombudsman himself, which is by impeachment, it fails to provide a procedure for the removal from office of a Deputy Ombudsman or Special Prosecutor. By enacting Section 8(2) of R.A. 6770, Congress simply filled in a void that the Constitution itself authorizes.

The ponencia relies on Section 2, Article XI of the Constitution for support:

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. (Emphasis ours)

The removal from office of a Deputy Ombudsman or a Special Prosecutor, says the ponencia, falls in the category of public officers and employees that "may be removed from office as provided by law."

True enough, the above Section 2 above provides that only the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed by impeachment and that other public officers and employees may be removed by law. But this cannot literally be taken to mean that Congress may authorize the President to investigate and remove all non-impeachable public officers and employees.

Surely, Congress may not authorize the President to exercise this power against those that the Constitution expressly or implicitly shields from his influence or intervention. For instance, Congress cannot authorize the President to remove lower court judges, although they are not subject to impeachment, since such authority is reserved by the Constitution to the Supreme Court.1 Further, as the Court held in Bautista v. Salonga,2 although the Chairman and Members of the Commission on Human Rights are not impeachable public officials, their terms cannot be made to depend on the pleasure of the President since the Constitution perceives them as exercising functions independent of him.

Actually, there was no existing "void" in the matter of the removal of the Deputy Ombudsman and the Special Prosecutor when Congress enacted R.A. 6770. Administrative Code of 1987, then in force, already vested in heads of offices, including the Ombudsman, the power to investigate and take disciplinary action against all officers and employees under him, the Deputy Ombudsman and the Special Prosecutor included.3

In subsequently enacting R.A. 6770, Congress in effect removed such power of investigation and removal, insofar as the Deputy Ombudsman and the Special Prosecutor were concerned, from the Ombudsman and transferred the same to the President. As will shortly be shown below, such wresting of power from the Ombudsman is an appalling blow to his constitutionally mandated independence from the influence and threats of the other departments and agencies of government.

Section 5, Article XI of the 1987 Constitution provides:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed. (Emphasis supplied)

The Constitution has reasons for making the Office of the Ombudsman "independent." Its primordial duty is to investigate and discipline all elective and appointive government officials.4 Specifically, Section 13, Article XI of the Constitution vests in that Office the absolute power to investigate any malfeasance, misfeasance, or non-feasance of public officers or employees. This function places it a notch higher than other grievance-handling, investigating bodies. With the exception of those who are removable only by impeachment, the Office of the Ombudsman can investigate and take action against any appointive or elected official for corruption in office, be they Congressmen, Senators, Department Secretaries, Governors, Mayors, or Barangay Captains.

Thus, the Office of the Ombudsman needs to be insulated from the pressures, interventions, or vindictive acts of partisan politics.5 The Court has itself refrained from interfering with the Office of the Ombudsman's exercise of its powers. It is not the Court but the Ombudsman who is the champion of the people and the preserver of the integrity of public service.6 The Office of the Ombudsman, which includes the Deputy Ombudsman and the Special Prosecutor, cannot be beholden to or fearful of any one, the President included.7

The power to impeach is a function of check and balance under the Constitution. But the power to remove "public officers and employees" from office, in the realm of administrative law, is a function of supervision, if not control. Keeping the Deputies in the Office of the Ombudsman and the Special Prosecutor independent as the Constitution commands and subjecting them to the President's control or supervision are incompatible ideas.

To say that the Deputy Ombudsman and the Special Prosecutor will remain independent of the President notwithstanding that he can investigate and remove them from office at any time is the equivalent of saying that monkeys grow out of trees. If there is any one that the holder of public office fears, it is that person who has the power to remove him.

If the Court were to uphold the Constitutionality of Section 8(2) of R.A. 6770, then the Deputy Ombudsman and the Special Prosecutor will be able to openly defy the orders of the Ombudsman and disregard his policies without fear of disciplinary sanction from him. The law makes them subject to investiga4on and removal only by the President. It is him they have to obey and will obey. Surely, this is not what the Constitution contemplates in an "independent" Office of the Ombudsman.

The present cases are precisely in point. The Ombudsman did not herself appear to regard Gonzales and Sulit's actuations in the subject matters of the cases against them worthy of disciplinary action. But, given that the Secretary of Justice, an alter ego of the President, took an opposite view, the President deigned to investigate them. In effect, the President is able to substitute his judgment for that of the Ombudsman in a matter concerning function of the latter's office. This gives the President a measure of control over the Ombudsman's work.

From here on, if the Court chooses to uphold the constitutionality of Section 8(2 of R.A. 6770, the Deputy Ombudsman and the Special Prosecutor should be consulting the Office of the President or the Secretary of Justice before they act in any case in which the latter has an interest. This is the ludicrous and unpalatable situation that the framers of the Constitution envisaged and sought to avoid when they granted the Office of the Ombudsman independence from others who wield governmental powers.8

I, therefore, vote to grant the petitions, declare Section 8(2) of Republic Act 6770 that empowers the President to remove the Deputy Ombudsman and the Special Prosecutor unconstitutional and void, annul the decision of he Office of the President against Deputy Ombudsman Emilio Gonzales III dated March 31, 2011, and permanently enjoin that Office from further proceeding with the administrative case against Special Prosecutor Wendell Barreras-Sulit.

ROBERTO A. ABAD
Associate Justice


Footnotes

1 Section 11, Article VIII of the 1987 Constitution -

"The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon." (Emphasis ours)

2 254 Phil. 156, 183-184 (1989).

3 Sec. 47, par. (2), Chapter 6, Subtitle A, Title IX.

4 The Ombudsman Act of 1989, Section 21.

5 Department of Justice v. Liwag, 491 Phil. 270, 283 (2005).

6 Dimayuga v. Office of the Ombudsman, 528 Phil. 42, 48 (2006).

7 Id.

8 Section 12, Article XI of the 1987 Constitution.


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