Showdown over suspension

Palace clashes with Morales, SC over deputy ombudsman

MANILA, Philippines — Battle lines are drawn as Malacañang insists on its authority to suspend a deputy ombudsman despite a Supreme Court (SC) rebuff and defiance from the ombudsman.

The showdown was triggered by Malacañang’s order for the immediate 90-day suspension of Overall Deputy Ombudsman Melchor Arthur Carandang for releasing bank records of President Duterte and his family, which Sen. Antonio Trillanes IV used as basis to accuse the Chief Executive of plunder.

Solicitor General Jose Calida defended the legality of the suspension order, saying the Constitution does not bar the President from disciplining a deputy ombudsman. Calida had expressed confidence that the SC would uphold the suspension order.

In a statement, Ombudsman Conchita Carpio-Morales declared she would “not enforce” the suspension issued through the Office of the Executive Secretary.

Reacting to Morales’ statement, chief presidential legal counsel Salvador Panelo warned she could be held administratively and criminally liable – or even face another impeachment complaint.

Belying Calida’s claim, Supreme Court spokesman Theodore Te e-mailed to reporters the entry of judgment in a 2014 final decision of the SC in the case of former deputy ombudsman for the military and other law enforcement offices (MOLEO) Emilio Gonzales III.

The case provided the jurisprudence that the Palace reportedly violated in ordering the suspension of Carandang.

The two-page order dated May 7, 2014 stated that the Jan. 28 ruling in the same year on the Gonzales case had become “final and executory.”

This means the decision was already recorded in the high court’s book of entries of judgments and can no longer be appealed or revised.

In the Gonzales case, the high tribunal took away the disciplinary power of the President over the deputy ombudsman post.

Voting 8-7, the high court ruled then that the administrative authority exercised by the Office of the President over the position of deputy ombudsman was unconstitutional.

The SC specifically voided Section 8 (2) of the Ombudsman Act of 1989, which granted the president the power to remove a deputy ombudsman.

It ruled that such provision diminished the authority and independence of the ombudsman’s office.

It held that of the appointed officials in the Office of the Ombudsman, only the special prosecutor was covered by the Palace’s power of discipline.

Morales – an appointee of the previous Aquino administration – was at the helm of the Office of the Ombudsman when Gonzalez was dismissed sometime in 2012. 

She took over the place vacated by her predecessor Merceditas Gutierrez after the latter’s resignation.

Gonzales was dismissed in 2011 by then president Benigno Aquino III over the bloody hostage-taking incident in Rizal Park on Aug. 23, 2010, but was later reinstated by the SC.  

Unconstitutional

In her statement, Morales slammed the suspension order as “unconstitutional” and an “impairment” of the Office of the Ombudsman’s constitutionally enshrined independence.

“Like any government official, the ombudsman has sworn to uphold the Constitution and the laws of the land,” Morales said.

“The ombudsman cannot, therefore, seriously place at risk the independence of the very Office which she has pledged to protect on the strength of the constitutional guarantees which the high court has upheld,” she added.

Asked by reporters what Morales meant by this statement, the Public Information and Media Relations Bureau (PIMRB) of the ombudsman categorically answered that Morales “will not enforce” the suspension order.

The PIMRB, however, has yet to confirm if Morales’ office will file an appeal before the Office of the President or elevate the matter before the SC.

Carandang’s suspension was for administrative offenses of grave misconduct and grave dishonesty for allegedly disclosing false information about the bank transactions of Duterte and his family.

Presidential spokesman Harry Roque said the suspension order is “immediately executory.”

The suspension stemmed from a complaint filed by lawyers Manolito Luna and Elijio Mallari, who accused Carandang of “falsely and maliciously claiming” that the Anti-Money Laundering Council (AMLC) had released a report on Duterte’s alleged bank deposits.

The AMLC denied releasing a report on the President’s bank accounts. The AMLC further said it has yet to evaluate if there is ground to initiate an investigation on Duterte’s bank transactions.

Carandang, in an interview in September last year, said that Morales had authorized him to probe Duterte’s bank transactions when the latter was still mayor of Davao City.

He claimed that his office had obtained bank documents from AMLC showing Duterte’s and his family’s over P1 billion worth of transactions in several banks from 2006 to 2016.

“It has become clear that the act of the Office of the President in taking cognizance of the complaints against the Overall Deputy Ombudsman and ordering his preventive suspension was not an inadvertent error but a clear affront to the Supreme Court and an impairment of the constitutionally enshrined independence of the Office of the Ombudsman,” Morales said in her statement.

Morales maintained that the SC, in a previous ruling, had already declared that the Office of the President has no administrative disciplinary jurisdiction over deputy ombudsmen.

She also cited the SC’s ruling on the case of Gonzales.

“The ombudsman will thus not allow herself to betray her sworn duty to uphold the Constitution by recognizing what is patently unconstitutional as ordained by the Supreme Court en banc in Gonzales III v. Office of the President,” Morales said.

“In Gonzales III, the Supreme Court categorically declared unconstitutional the administrative disciplinary jurisdiction of the President over deputy ombudsmen,” she pointed out.

Morales also took a swipe at Calida for voicing confidence “that the Supreme Court will reverse its 2014 ruling.”

“In a society founded on the rule of law, the arbitrary disregard of a clearly worded jurisprudence coupled with a confident stance that it will be changed should never be countenanced,” Morales maintained.

Presumed right

 Panelo, meanwhile, said Morales should give the President the presumption of regularity.

“Until a competent court declares that such official act is in violation of the law and the Constitution, President Duterte’s order of preventive suspension from office of Deputy Ombudsman Carandang is presumed to be valid and legal,” Panelo said.

“It behooves therefore the public official authorized to implement the order to enforce the same against respondent Carandang. Any willful refusal to do so or any deliberate act impeding such enforcement may open the said official to administrative and criminal sanctions,”  Panelo said in a statement.

Roque, for his part, maintained that the President has jurisdiction over Carandang, a presidential appointee.

“The Office of the President has given Overall Deputy Ombudsman Melchor Arthur Carandang 10 days to file his answer on the ‘Resolution and Order’,” Roque said in a statement. He had earlier said the order was final and executory.

A lawyer like the President, Roque underscored the importance of Carandang being accorded due process.

“It is incumbent upon Mr. Carandang to submit his answer within the required period,” he said. “After the lapse of the period provided, the Office of the President shall decide on the matter.”

Panelo emphasized the President respects the independence of the judiciary.

“The President has no desire or intention to intrude upon the constitutionally enshrined independence of the Office of the Ombudsman,” he said.

In suspending Carandang, Panelo explained that the President was in fact protecting and preserving the constitutional provision on public accountability.

“Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives,” he said.

“Thus, the President is just adhering to his mandate to ensure that all laws are faithfully executed, including the Constitution,” Panelo said.

Panelo explained that the circumstances behind Carandang’s suspension were different from the case involving Gonzales.

“As to the validity of the suspension of ODO Carandang, while the Supreme Court may have previously ruled on the circumstances of Deputy Ombudsman Emilio Gonzales III in 2014, the circumstances of ODO Carandang differ,” Panelo said.

He also called on Carandang to contest his dismissal before the proper courts.

“Thus, prior to any determination by a court of competent jurisdiction as regards the suspension of ODO Carandang, such suspension should be treated as a lawful and operative act,” Panelo added.

“Anyone who disagrees with the suspension is free to question the same before the courts,” he said. “In the meantime, the suspension should be implemented by the Office of the Ombudsman. Otherwise, its officials risk violating the same legal process that they assume to adhere to.”

Meanwhile, senators called on Malacañang and the ombudsman to work on breaking the impasse as soon as possible to avert a constitutional crisis.

“The SC, as the final arbiter of all questions of law, has the power to decide between the competing interests/interpretations of the government and an independent constitutional body,” Sen. Francis Escudero said.

He said bringing the matter to the SC is the legal, peaceful and best course of action on the part of either or both the government and the ombudsman “instead of sending the police to serve and effect the suspension order, given the ombudsman’s divergent interpretation of the law from that of government.”

“This is the best course of action on the part of either or both the government and the ombudsman to avert a standoff or constitutional crisis,” Escudero said.

Sen. Francis Pangilinan, a member of the minority bloc, said Morales was simply enforcing an SC decision that says the president cannot suspend the ombudsman nor his or her deputies.

He said Supreme Court rulings form part of the law of the land.

“She (Morales) is upholding the rule of law and for this she has our support,” Pangilinan said. – With Delon Porcalla, Paolo Romero