An all too powerful Ombudsman

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TO many of our colleagues in the legal profession, the recent resolution of Ombudsman Conchita Carpio-Morales ordering the dismissal of suspended Makati Mayor Junjun Binay as well as the latter’s perpetual disqualification from holding public office has made the anti-graft agency chief more powerful than PNoy.

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Why? Because under our laws, not even the President has the power or authority to remove erring elective local officials. It is only the courts, particularly the Sandiganbayan or the Regional Trial Court (depending on the salary grade of the accused government official) who can impose the penalty of dismissal on wayward elective officials.

As the SC said in the case of Pablico vs. Villapando, which involves an elected mayor who was ordered removed by the Office of the President: “The pertinent portion of Section 60 of the Local Government Code of 1991 provides: Grounds for Disciplinary Actions. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:…An elective local official may be removed from office on the grounds enumerated above by order of the proper court.”

“It is clear from the last paragraph of the aforecited provision [Section 60] that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law. Thus, in Salalima, et al. v. Guingona, et al., we held that [t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts, as expressly provided for in the last paragraph of the aforequoted Section 60,” declared the SC.

The SC also said that Congress intended to limit the power of the President to remove an elected mayor because “what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. [The people’s] will must not be put to naught by the caprice or partisanship of the disciplining authority.”

This explains why Morales’ decision in Mayor Binay’s case has led several legal scholars to question the Ombudsman’s power of dismissal over elected officials.

And apparently, even allies of PNoy like Liberal Party (LP) vice-chairman and Senate President Franklin Drilon share the view that the Ombudsman has no power to remove public officials from public office and/or perpetually disqualify a public official to hold public office.

We recall that sometime in 2007, Drilon – who was then Chairman of the Senate Committee on Public Order and Illegal Drugs, and member of the Senate Committee on Local Government – conducted a legislative inquiry on the forcible removal from the provincial capitol of lloilo Governor Niel Tupas, who was administratively dismissed and perpetually disqualified by the Ombudsman for grave misconduct.

In the Committee Report No. 258 which he submitted to the Senate, Drilon’s committee concluded: “…after having closely examined the powers and functions of the Ombudsman as provided under the 1987 Constitution, it is hereby clearly established that the Office of the Ombudsman has no power to remove public officials from office. And that the Office of the Ombudsman is vested only with an advisory and recommendatory function.”

“This is because the Ombudsman being the lawyer of the complainant cannot be the judge at the same time. The Ombudsman, by virtue of…Section 21 [of RA 6670 granting disciplinary authority to the Ombudsman over elective and appointive officials], will become the complainant‘s counsel (lawyer), the prosecutor (the Special Prosecutor being his subordinate) and the judge (disciplinary authority) rolled into one. Such a situation is abhorred in a democratic society like ours,” the report said.

“Moreover, Republic Act No. 6770 or the Ombudsman Act does not provide the Ombudsman the power to perpetually disqualify a public official to hold public office,” the committee report said.

“The penalty of perpetual disqualification is punitive in nature and therefore can be imposed only in criminal cases such as violations of the Anti-Graft and Corrupt Practices Act. While the Ombudsman may have the power to recommend the removal of a public official pursuant to RA 6770, the said law does not provide him the power to perpetually disqualify a public official to hold public office.”

“Also, the penalty of perpetual disqualification is an accessory penalty. There should first be a conviction by the proper court and the imposition of a principal penalty carrying with it a perpetual disqualification to hold public office. It necessarily follows that before the accessory penalty of perpetual disqualification may be properly imposed, the accused should first be found guilty of a crime committed in relation to public office,” the report further stated.

For many Filipinos, Morales’ decision has attracted public scrutiny due to her inconsistent treatment of politically sensitive cases.

For instance, they point out that the Ombudsman immediately absolved PNoy on the Disbursement Acceleration Program (DAP) scandal on the ground that he could not be impeached for malversation.

Yet, in the case of the ruling Liberal Party (LP)’s political foe, Vice President Jojo Binay, who, like PNoy, is an impeachable officer, Morales not only pursued the investigation but even ordered the Vice President’s indictment for malversation and graft even though she admits he also cannot be impeached on said charges.

It will be interesting to learn how the SC will rule once the Binays raise this matter to the High Court.

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30 Comments

  1. obviously, all is political. nothing is based on merits. it’s all about politics, money and commitments. check how she reversed previous decision on a perpetual disqualification of Pasay City’s former mayor… Read the transcript then decide for yourselves. A classic case of Justice system going to the dogs.

  2. its fine. i’d rather close my eyes to legal infirmities if it means faster dismissal of well-know corrupt officials. waiting for Sandiganbayan to dismiss officials takes a decade.

  3. usman D. Aragasi on

    Rene Catalasan is ignorant of the law, he should not suppose joining discussion on matters he does not know, so obvious in his language! What a shame!

  4. Small kids who had not graduated from UP skul bukol knows that one can not be prosecutor and judge at the same time. The dumbest creature in town knows that penalty can not be imposed with out first convicting an enemy guilty of crime even imaginary crime. What everybody can not comprehend is that laws interpreted with out morals is crime of immoral interpreter. The Ombudsman committed crime against the Makati dwellers who voted a Mayor. Ombudsman Morales must be kick out immediately NOW. Otherwise PH law school graduates are morons beyond measure of S2pidity by lapping the back sewer pipe of DICTATOR C. Morales.

  5. Mariano Patalinjug on

    Yonkers, New York
    20 October 2015

    I do not think Ombudsman Conchita Carpio-Morales is what you call a “two-bit” lawyer. She happens to be a former Justice of the Supreme Court and, as such, can be assumed to be an expert in the Law.

    Her decision to dismiss Makati Mayor Junjun Binay and to disqualify him from holding public office in perpetuity must be safely anchored on the Law.

    Junjun Binay is not without recourse. He can go to the Supreme Court and question the order of the Ombudsman as arbitrary and without any basis in Law.

    MARIANO PATALINJUG
    patalinjugmar@gmail.com

  6. Conchita has abused her power or has become inutile due to being old and senile. With her decisions as an ombudswoman, I am at a wonder whether she was deserving if being a justice of the supreme court. Her office is just a fiscal probing whether a government official i guilty and thereafter recommends the filing of cases to the proper court where prosecutors and defense lawyers argue the case.

  7. That is why there is a age limit for Supreme Justices. But when they passed retirement age they become assinine and they should not hold sensitive positions anymore. Stay retired.

  8. “Where…injustice is the norm,” said Bongbong when he filed his candidacy. But is injustice always wrong? For me, not if somebody like Binay is at the receiving end of it. After all, its not only injustice but double standards that is the norm under this yellow hypocrites, right?

    • What callous remark. Injustice is injustice, regardless of who is in the receiving end, the same way that the rule of law should apply for everyone.

  9. rene catalasan on

    I concur with the decision of Ombudsman Conchita Carpio-Morales suspending for life the political career of Jun-jun Binay than your opinion as far as legality is concerned.
    My point is very simple and practical. The Binays as you know and evidence shows that they are corrupt politicians who’d been milking the city of Makati for decades.

    • Hijo, hintayin na lang natin ang resulta ng imbestigasyon. Wag tayong mag pre judge while the investigation is ongoing. Kung may kasalan siya eh di tanggalin sa puwesto. Maliwanag?

    • they are corrupt politicians
      ———————————–

      So are the majority of the senate

      18 out of 23 senators gave their pork barrel allocations to Napoles, only 3 opposition senators arrested.

      100 members of the house gave their pork barrel to Napoles, zero arrested.

    • How can a legal entity such as the ombudsman be the prosecutor and judge at the same time? There is no way that such an individual vested with such powers be acceptable in a democratic society.

    • Who are you to judge? As a matter of fact, you are also corrupt,your mind is corrupt,you even conciously or unconciously corrupted your family with the words that comes out from your mouth. Be carefull the next time you open your mouth,,if it spew hell,you will eternally suffer the consequences . Better choose to say prayersfor those people whom you think are dumb. Dont be selfrightheous. Dont judge me wrong,km not die hard binay. Stay neutral.

  10. Yes, we do have government appointees exceeding their authority and not following the law. Morales is clearly wrong in issuing orders that only a court can issue. Now we have have two kangaroo courts.

    • rene catalasan on

      Did the Binays follow the law? If they did as evidence shows they won’t find themselves in an embarrassing position they’re in right now.

    • The Binay’s have not been to trial but they are convicted without a trial by Aquino’s lapdog the Ombudsman.

      It’s more fun in the Failippines

    • The problem here is that people who do not like the Binays always say that they are guilty but never act on it. If you are sure they are guilty and have evidence to back it up, then by all means, bring them to court. But no, these people prefer to just to point a finger and say “your guilty”, why “because I don’t like your face, because your skin is dark, because your ugly, because you made millions and I cannot, because, because, because…”. Really now…

    • She does what Aquino wants, that’s why he got rid of the last Ombudsman and appointed Morales.
      Aquino wants Binay out of the election and attacking his family is all part of the plan.

  11. Nancy Bulok Cake on

    The Ombudsman’s decision is the same if the Philippines will have the so-called “Peoples Court”. There should be an end to the perpetual greediness of the Binays to amassed more wealth through corruption. Everything should and must have an END. The Ombudsman is not stupid to make a decision without any evidences. The only way for the Binay family to avoid lifetime imprisonment (or family execution) due to plunder(graft and corruption) is to reach a settlement from the government is to return all the money they have stolen for lesser imprisonment (punishment) and admission of guilt. Further, even if Binay wins the presidency, there will be People’s Power (in this scenario that’s the reason why he chose Honasanto be his VP candidate-on the assumption that Honasan can still control the military). Pati si Bongbong Marcos, ayaw sa kanya. Bibitayin ng buong Pilipino ang pamilya ni Binay pag nanalo siya. Bale wala ang g NPA na kapanalig pag buong kapuluan ang bibitay sa pamilya Binay.

    • hahaha!! talaga nga naman e2ng bulok na cake nato pakawala ng dilawan ang kulay ng dugo dumadaloy sa katawan nito. alam mo na pala mananalo si binay sa eleksyon, kaya naman nagtutulong tulong ang abnoy ,ombudsman, liberal party at ikaw bulok na cake !! na gibain si binay at all cost, GO ! BINAY GO !!!!!!!

  12. At last, somebody pointed this too powerful ombudsman who thinks she’s an executioner that she’s hallucinating and must be impeach for such acts!

    • Tsaka mag-iissue siya ng comments na puwede si Binay na kasuhan after his term as VP dahil sa immunity pero ang tanong ko BAKIT THIS TIME OF ELECTION? Hindi ba niya puwedeng ipagpaliban ito. It shows only pure political. Only in the Philippines.

    • Who will impeach her ?

      Not the Aquino controlled senate or house, If they do anything they will do what he says or face charges from stealing their pork barrel allocations.