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.
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.