Is Carpio-Morales usurping the Office of the Ombudsman?



IN a sudden twist of events, the junked impeachment complaint against Commission on Elections (Comelec) Chairman Andres Bautista suddenly breathed life on Wednesday. The House plenary reversed the decision of the committee on justice and will be sending soon the articles of impeachment to the Senate.

I wrote almost a month ago that the Senate should gear up for the impeachment trial of Chief Justice Ma. Lourdes Sereno. It turned out that the trial of Bautista will be prioritized—unless he immediately tenders his irrevocable resignation.

What about Ombudsman Conchita Carpio-Morales? Will the projected impeachment complaint-to-be against her prosper? I believe that the Senate will be too busy with two impeachment trials and will not be able to handle a third one. I suggest that instead of impeaching Carpio-Morales, just take the matter to the Supreme Court.

Intent of the law should be followed
Carpio-Morales relies heavily on the Section 8 (3) provision of Republic Act 6770 which mandates that in case of a vacancy, a newly appointed Ombudsman shall serve for a full term. However, this was not the intent of the legislature.

In a long line of cases, which I will not belabor and cite, it has been shown that the intent of the legislature is what matters, and not the letter of the law.Legislative intent is part and parcel of the law. It is the controlling factor in interpreting a statute. In fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid.

There are instances when the final version of the bill, which is enacted into law, for one reason or another does not necessarily reflect the actual intentions of the lawmakers. The recourse to this kind of a situation is to ascertain the intent of the drafters during the deliberations of the bill.

What lawmakers intended
The intent of lawmakers that deliberatedHouse Bill 13646, which eventually became RA6770, was that the new appointee should serve only the unexpired term of the predecessor.

I did my legal research and explored the archives for the deliberations of the House relative to HB 13646. I found that they had ample debates on that particular item during their February 2, 1989 committee hearing.

The real intent of Congress, in setting the term of office of the appointed Ombudsman, in case of vacancy, in Section 8, paragraph (3) of RA 6770 can be seen in the exchange of dialogue between then congressmen Tito Espinosa, Antonio Abaya, Raul Roco, and Isidro Zarraga, the justice committee chairman. Interestingly, the sponsor of the bill, Abaya, intended that the new appointeeserve only the unexpired term of his predecessor.

Their discussion went like this –

Espinosa: May I suggest that only the remainder of the unexpired term to be served by this new appointee and he can get re-appointed later after the expiration of the …

Abaya: For another seven years?

Espinosa: For another seven years.

Abaya: I don’t think so.

Espinosa: The unexpired term.

Roco: Why don’t we leave it like this: whatever the state of jurisprudence says because I think there are…maraming cases yan, eh.So, you can relate this, you can debate this. The Comelec maybe a model x xx

Chairman: Does that satisfy the gentleman from Isabela?

Abaya: With the indulgence of the handsome gentleman, can he repeat the statement again?

Roco: I am saying that whatever the current state of jurisprudence on appointment and term, di ba?

What follows is the prophetic pronouncement of Abaya, which is worth revisiting. It is as if he knew that some 30 years later someone would ask the Supreme Court, which in turn would go back to their discussions to clarify the questioned term of office.

Abaya said: “I just brought that matter up, Mr. Chairman, because maybe in the future they will go back to what we discussed in this room and maybe they will be clarified what this particular section would mean. So maybe this will have some relevance in the future.”

Section 8 (3) of RA 6770 is unconstitutional
After studying the committee hearingdeliberations, it can be safely concluded that the legislative intent was for the new appointee, in case of vacancy in the Office of the Ombudsman, to serve only the remainder of the unexpired term of the predecessor. So it would seem that the present provision of the law mandating that a new Ombudsman, in case of a vacancy,should be appointed for a full term of seven years is unconstitutional and must be struck down.

Roco even emphasized that the Comelec could become a model for the Ombudsman Act of 1989. If we consult the Constitution, we can see that its Paragraph 2, Section 1, Article IX-C, The Commission on Elections, mandates that, “appointment to any vacancy shall be only for the unexpired term of the predecessor.”

So, there you are. When then President Benigno Aquino 3rd announced the appointment of Carpio-Morales as Ombudsman on July 25, 2011, and she assumed the position of Ombudsman three days later, it should have been only for the remainder of the unexpired term of resigned Ombudsman Merceditas Gutierrez. Not for a full term of seven years!

Quoting the Supreme Court, constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of government and the people who run it.


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