Senators foresaw likely abuse by Ombudsman

Go to court, a senator and an election lawyer suggest. There settle whether the President or the Ombudsman has disciplinary power over the latter’s Deputies.

Ombudsman Merceditas Gutierrez is defying the dismissal by Malacañang of her Deputy Emilio Gonzalez. They cite contradictory provisions of the Ombudsman Act (R.A. 6770 of 1987) to bolster their respective positions. Supposedly only the court can break the stalemate.

But before anyone rushes to clog the dockets with yet another case, shouldn’t they first check the intention of legislators? From congressional files, senators gave the President disciplinary weight precisely to prevent abuse by the Ombudsman.

The lawmakers were very deliberate in writing the two provisions:

• Section 8, which Malacañang invokes, states: “Removal; Filing of Vacancy. — (1) In accordance with provisions of Article XI of the Constitution, the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. (2) 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.”

Based on this, Executive Secretary Paquito Ochoa, by authority of President Noynoy Aquino, is dismissing Gonzalez. The latter was found guilty of gross neglect and grave misconduct in the case of police captain Rolando Mendoza. So incensed was Mendoza that he hostaged and slew Chinese tourists last August, before himself being killed by the SWAT.

• Section 21, which the Ombudsman cites, says: “Officials Subject to Disciplinary Authority; Exceptions.  — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government, and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and of the Judiciary.”

Using this provision, the Ombudsman-Internal Affairs Service cleared Gonzalez of the Mendoza affair. This, while Malacañang was conducting its own inquiry, which Gonzalez at first recognized but later boycotted.

Senators in 1989 were creating a super-body, the Ombudsman (Tanodbayan), to implement the Constitution. There was unease that the Ombudsman and his Deputies could abet each other in illicit acts. A curb needed to be put in place. So was inserted the President’s disciplinary clout over the Deputies and (later) the Special Prosecutor, under Section 8. As recorded in Congress deliberations:

“Senator Angara explained that the phrase was added to highlight the fact that the Deputy Tanodbayan may only be removed for cause and after due process. He added that the President alone has the power to remove the Deputy Ombudsman.

“Reacting thereto, Senator Guingona observed that this might impair the independence of the Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan . . . be not by the President but by the Ombudsman.

“However, the Chair expressed apprehension that the Ombudsman and the Deputy may try to protect one another. The Chair suggested the substitution of the phrase ‘after due process‘ with the words ‘after due notice and hearing with the President as the ultimate authority’.

“Senator Guingona contended, however, that the Constitution provides for an independent Office of the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan Deputies would be an encroachment on the independence of the Tanodbayan.

“Replying thereto, Senator Angara stated that originally he was not averse to the proposal; however, considering the Chair’s observation that vesting such authority upon the Tanodbayan itself could result in mutual protection, it is necessary to effect a check and balance.”

In another portion of the records is an exchange between Senators Laurel and Enrile. Laurel worried that the bill “vests the Ombudsman with all powers of government . . . (We) might be unconsciously creating a fairy tale monster who, instead of being the protector of the people, could be their oppressor and abuser . . . Those who have been appointed Ombudsman and Deputy Ombudsman are men of unquestioned integrity; however, subsequent appointees may not be of the same mold and character such that the grant of vast powers would be tantamount to opening the door for abuse.”

To allay such fear, Enrile said: “Congress is not really powerless to protect the people should the Ombudsman become oppressive because it can limit the budget of the office, initiate impeachment proceedings against the officials of the Ombudsman, and even amend the law should it become necessary.”

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Sorry, two words in my piece Monday need correcting. First, “plea” should be “plead” in the sentence: “Only much later, when he got hold of the ruling, was he able to plea for reversal.” Second, “lied” should be “lies” (or “lay”) in another: “Supposedly such power lied with the Ombudsman-Internal Affairs Service.”

Not simple misspellings, but ungrammatical. “Plea” is a noun, “plead” the verb. “Lied” is the past tense of “lie”, as in “to fib”; different from “lay”, the past tense of “lie”, as in “to be in a position” or “to rest”.

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