Culpable violations

Clearly questionable and quite controversial is Malacanang’s order for the immediate 90-day preventive suspension of Overall Deputy Ombudsman Melchor Arthur Carandang because he released the bank records of Duterte and his family. The motive alone is immediately suspicious. Obviously, it is a sort of retaliatory move on the part of the President for exposing his unusual and anomalous wealth and that of his family which has been the talk of the town for quite some time already.

More questionable is its constitutionality. It goes against the very essence of the Office of the Ombudsman whose independence is expressly and constitutionally guaranteed because it is envisioned as the “protector of the people against inept, abusive and corrupt government officials” with broad investigative powers on all acts of malfeasance, misfeasance and non feasance of all public officials including members of the Cabinet and key executive officers during their tenure.” So the Constitution “saw it fit to insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan politics and from fear of reprisal by making it an independent office “composed of the Ombudsman known as the Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas and Mindanao, as well as for the military establishment. (Section 5, Article XI).  Clearly therefore, pursuant to this provision, not only the Ombudsman but the Deputies are insulated from influence of other government departments and from partisan politics.

This preventive suspension of Deputy Ombudsman Carandang by the Office of the President even defies the well entrenched and final ruling of the Supreme Court in the case of Gonzales vs Office of the President of the Philippines etc, at.al, G.R. 196231, and Barreras-Sulit vs Ochoa Jr. etc, et.al., G.R. 196232, both dated Jan. 28, 2014. Said cases involve the constitutionality of Section 8(2) of R.A. No. 6770 granting the President disciplinary jurisdiction over a Deputy Ombudsman and a Special Prosecutor. But the Supreme Court in said cases indubitably and categorically ruled as follows:

“In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s disciplinary action, cannot but seriously place at risk the independence of the Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally granted independence is what Section 8(2) of RA 6770 exactly did. By so doing, the law directly collided not only with the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and balances.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her complete trust in her 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. 6770 (providing that the President may remove a Deputy Ombudsman) should be declared void.”

It is beyond the shadow of any doubt therefore that the 90-day preventive suspension order issued by the Office of the President against Deputy Ombudsman Carandang is in complete defiance of the Supreme Court ruling in G.R. Nos. 196231 and 196232 both dated Jan. 28, 2014. It does not likewise adhere to the rule of law because the Supreme Court decisions are considered part of the law of the land.

Furthermore, such suspension is also an infringement of the principle of separation of powers and the system of checks and balances enshrined in our Constitution. In the first place, by issuing such suspension order, the Office of the President and the Solicitor General have interpreted and determined the constitutionality of a law (RA 6770) which is a judicial power that exclusively belongs to the Judicial Department particularly the Supreme Court and such lower courts established by law. In doing so, they have arrogated unto themselves the power of judicial review belonging exclusively to the judiciary.

Worse in this case is the warped and twisted argument of Presidential counsel Salvador Panelo that the suspension order is presumed valid until a court ruling has been issued declaring it invalid and unconstitutional. The logic of such contention is indeed so absurd because there is already a Supreme Court decision precisely declaring that the President cannot discipline or remove a Deputy Ombudsman for it will undermine the independence of the Office of the Ombudsman which is guaranteed by the Constitution. In short there is no more need for a court ruling on this issue because it has already been settled by the Supreme Court way back on Jan. 28, 2014 which has long become final and an established jurisprudence that is part of the law of the land. Defying said decision by issuing such suspension order is in effect a culpable violation of the Constitution which is an impeachable offense.

So Ombudsman Conchita Carpio Morales is correct in declaring that she would not enforce the suspension order issued through the Office of the Executive Secretary. By doing so she cannot be held administratively or criminally liable, or even impeached. Her stand here is in accordance with the Constitution and in observance of the principles of separation of powers and checks and balances deeply enshrined therein.

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