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End games

President Rodrigo Roa Duterte’s resignation challenge to the two remaining “furies,” Chief Justice Ma. Lourdes Sereno and Ombudsman Conchita Carpio Morales, makes for interesting theater. It is also a timely opportunity for an academic revisit of an esoteric field of public law, the resignation of public officials.

The general rule is that an appointee resigns to the appointer unless there is a law that provides for a specific procedure.  The principle is a vestige from English common law. Public office was a burden that the office holder was obliged to bear, under pain of punishment. A modern example would be the inescapable jury duty in western justice systems.

Abhorring vacuums. Other jurisdictions might term this involuntary servitude but in England, at least in the 19th century, government office was obligatory once assumed. Irrevocable resignations were unheard of. The appointing power would accept the resignation as it was empowered to replace the resigning official. But there is an equally compelling rationale: the appointing power also retained the power to remove.  

Should the same rule apply when speaking of independent impeachable officials? There is no constitutional nor statutory guidance on who a President resigns to. We believe it should be to Congress as this is the branch which directly represents the People and has the power to call elections to fill the vacancy. Of course, there is the Supreme Court’s imaginative constructive resignation doctrine where your resignation is inferred from other people’s actions. As to the Chief Justice and the Ombudsman, once the President appoints, the power over them is turned over to Congress which removes by impeachment. To his credit, the President’s dare was for all three of them to proceed to Congress. 

Leave me tender. In practice and consistent with their independence, Justices tender their letters to the Supreme Court en banc though mostly by early retirement and not by resignation. As for the Ombudsman, for some reason, former Ombudsman Simeon Marcelo tendered his resignation to President Arroyo. 

Its about time that we pass a law to cover these eventualities. The US Code mandates that it is the submission by the President or Vice President of their letter of resignation or refusal to accept office to the Secretary of State that is the operative act.

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Quis custodiet ipsos custodes. We have a President intent on “guarding the guards” as he investigates the men and women of the Office of the Ombudsman. This is the implicit purpose behind the creation by Executive Order of the Presidential Anti Corruption Commission (PACC). This PACC is in the same mold as previous commissions of Pres. Joseph E. Estrada to Benigno C. Aquino III.

We expect the same litany of constitutional, statutory and judgment call challenges, specially on the necessity of creating the PACC. After all, the President already has a Department of Justice and the People, an Ombudsman. This was the same justification behind the abolition by President Aquino III of the Presidential Anti Graft Commission. Redundancies. And then he proceeded to create an equally redundant Philippine Truth Commission (PTC).

The Supreme Court clarified that issue when it ruled that while the creation of the PTC violated the Constitution on equal protection grounds, the powers of the Commission itself was not a problem. The power to investigate is not equivalent to the power to prosecute.  Clearly, it will not supplant but complement the DoJ and the Ombudsman. “Its power to investigate is limited to obtaining facts so that it can advise and guide the President in the performance of his duties relative to the execution and enforcement of the laws of the land.”

A man dismayed. With inveterate incivility, US President Donald Trump admonished the New York City Police Force to drop the nice. When thrusting thugs inside a police car, he said, be rough. Don’t bother to cover heads with hands. This was the Presidential message.

For Chuck Rosenberg, Acting Head of the US Drug Enforcement Administration (US DEA), it was the last straw. Resigning his position, he spoke to the values of the DEA code: respect, compassion and rule of law. Whether victim or suspect, this is what the DEA was about. And he could not serve under a President that condoned police misconduct.

The difference is stark.  Here, nobody believes the statistic that self defense has become the leading cause of deaths. It has become painfully evident that an alarming number of men in uniform can’t be inconvenienced with compassion, rule of law and respect when wearing the blinders of a drug war quota.

Dr. Machiavelli, I presume. It doesn’t help when we have a Philippine National Police (PNP) Chief who would expect us to just say thank you rather than question him about the means by which the peace and order we enjoy has been secured.

Like other government functionaries, the PNP are employed by the people. How did their chief assimilate the sense of entitlement to believe that job success begets debts of gratitude and freedom from scrutiny? This is the opposite of altruism and certainly not the understanding of public service we would have our children imbibe.

Passages. Reymund Luna. Few knew him. A lawyer who became a Prosecutor. He was assigned to one of the toughest government postings in far flung and rebel infested Infanta, Quezon. A self-effacing man with a naturally sunny disposition, he did his job virtuously and effectively.  Last Sept. 29, he was gunned down with five bullets at close range. He was the latest victim in the series of attacks on our public servants and on the legal profession. Reymund is a product of the Pamantasan ng Lungsod ng Maynila College of Law and I am honored to have been his teacher. He chose to tread the path of public service for no other reward than the chance to fulfill a childhood dream to help the downtrodden. Now, he can no longer serve. But for the brief moment that he was with us, he lived his dream. Because of colleagues like Reymund Luna, I am proud that I am a lawyer and a public servant.

 

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