President vs Ombudsman power to discipline deputy

There are no ifs or buts about it. The President can discipline subordinates of the Ombudsman. The latter has no choice but to enforce Malacañang’s order to dismiss Deputy Ombudsman Emilio Gonzalez. For officers of the Ombudsman to defy the order is to themselves invite disciplinary action.

Gonzalez was found guilty of gross neglect and grave misconduct constituting betrayal of public trust. This, in bungling the case of Insp. Rolando Mendoza. The mess had incited the police officer last August to hostage and kill Chinese tourists, for which the SWAT took him down too. Executive Secretary Paquito Ochoa ordered Gonzalez’s dismissal last week, by authority of President Noynoy Aquino.

Gonzalez is Deputy Ombudsman for the Military and Other Law Enforcement Agencies. In 2009 he had removed Mendoza from the police service for extortion. During the hostaging Mendoza revealed injustices being done him. His motion for reconsideration had been dragging for nine long months, in breach of the Ombudsman’s own rule to act within five days. Gonzalez allegedly had demanded P150,000-bribe to rule on the plea.

Aquino formed an Incident Investigation and Review Committee, under the justice and interior secretaries, to probe the hostaging. Invited to answer Mendoza’s claims, Ombudsman Merceditas Gutierrez and Gonzalez declined on grounds that they were independent of the IIRC.

At any rate, new details surfaced. It turned out that the justice department had dropped the criminal rap against Mendoza. The Philippine National Police-Internal Affairs Service was hearing the administrative case when, on request of the complainant’s father, Gonzalez ordered the files turned over to him. Then Gonzalez ordered Mendoza dismissed, effective immediately, even before the latter could receive a copy of the ruling. Thus, Mendoza’s cry that, though already deprived of position and pay, he could not contest the ruling. Only much later, when he got hold of the ruling, was he able to plea for reversal. Still the Ombudsman let it drag for nine months. In fact, Gonzalez issued a ruling — affirming Mendoza’s sacking — weeks after the hostaging, when the latter already was dead.

The IIRC recommended, among others, Gonzalez penalized. The Office of the Deputy Executive Secretary for Legal Affairs undertook the disciplinary hearings. It was empowered to do so starting November, when the Presidential Anti-Graft Commission was abolished.

Malacañang also holds constitutional authority. The President has power to name the Ombudsman, as with Supreme Court justices. But the Ombudsman, like SC members, can be removed only “by impeachment, for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” The President also names the Ombudsman’s deputies, as with judges of lower courts. The Constitution assigns to the SC the disciplining of judges, say, for gross neglect, inefficiency, or grave misconduct. It is silent on the Ombudsman deputies. Still, Section 8-(2) of the Ombudsman Act (R.A. 6770), states: “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.”

For due process, the IIRC and the ODESLA gave Gonzalez many chances to reply to accusations. While he snubbed the former, he asked the latter in November to subject him to formal investigation. He denied the P150,000-extortion story, and having mishandled Mendoza’s case. Purportedly his reviewing assistant had caused five of the nine-month lag, and the rest by the evaluation process of Gutierrez. His takeover from the PNP-IAS allegedly stemmed from the Ombudsman’s job to undertake investigations motu propio, or on its own.

Subsequently, Gonzalez questioned the authority of the ODESLA to try him. Supposedly such power lied with the Ombudsman-Internal Affairs Service. This supposedly is due to Section 21 of the Ombudsman Act. The proviso gives the Ombudsman disciplinary authority over all elective and appointive government officials, except impeachable ones. For Gonzalez the higher authority in Section 8 didn’t matter. Malacañang should not have superseded the Ombudsman-IAS — in contrast to the Ombudsman superseding the PNP-IAS.

In February Gonzalez boycotted the ODESLA conference. Allegedly it was pointless. Citing a tabloid column item (retracted the next day) that the office was about to suspend him for a year, Gonzalez said Malacañang had prejudged him. The ODESLA proceeded without him.

Last Friday Ochoa relayed to Gutierrez the sanction to sack Gonzalez, effective immediately. At once Gutierrez defied it. Through Deputy Ombudsman Jose de Jesus, she said Gonzalez had prior right to appeal to higher courts. This is in contrast to Gonzalez’s earlier dismissal of Mendoza, effective even before receipt of copy.

De Jesus claimed that the Ombudsman-IAS already had cleared Gonzalez in February, so Malacañang no longer can touch him. This is yet another inconsistency. Against former Special Prosecutor Dennis Villa-Ignacio with whom she feuded for two years, Gutierrez had initiated IAS proceedings in 2008. She submitted the findings to then-President Gloria Arroyo, with a recommendation for dismissal, just that the latter failed to act on it till Villa-Ignacio retired.

Malacañang reminded Gutierrez over the weekend that the law requires her to dismiss Gonzalez. Gonzalez, if he opts to, can move for reconsideration by the ODESLA — without any aid or abetting by the Ombudsman. If Gutierrez disobeys, she will have another impeachment case to answer. Her equally insubordinate deputies can be dismissed too, like Gonzalez.

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