Does the Office of the President have administrative and disciplinary jurisdiction over a deputy ombudsman?

A Supreme Court decision dated Jan. 28, 2014 (G.R. 196231) says no.

The administrative juridiction of the Office of the President’s administrative jurisdiction became an issue again with Malacañang’s decision to preventively suspending Overall Deputy Ombudsman Melchor Arthur Carandang.

Carandang was suspended for 90 days for making public the documents related to President Rodrigo Duterte’s bank accounts. He said the documents came from the Anti-Money Laundering Council (AMLC), but the AMLC denied being the source of the documents.

In its Jan. 28, 2014 decision, the Supreme Court declared as unconstitutional Section 8 (2) of the Ombudsman Act (Republic Act 6770), which provides that “a Deputy or the Special Prosecutor may be removed from office by the President or any of the grounds provided for the removal of the Ombudsman and after due process.”

“We declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation of the independence of the Office of the Ombudsman,” the 2014 decision read.

The high court said that, in crafting Section 8(2) of the Ombudsman Act, Congress probably wanted to address the issue on who would check against the Deputy Ombudsman as it noted on the possibility that the deputy will would be protected by the Ombudsman.

But the high court said Congress, in creating the provision, ignored the already existing checks and balance.

“On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari. The same attempt can likewise subject her to impeachment,” the high court said in its Jan. 28, 2014 decision penned by Associate Justice Arturo Brion.

Judicial recourse, the high court said, meant a petition via certiorari before them, a “non-political independent body mandated by the Constitution to settle judicial disputes.”

It added that while Congress is mandated to determine the manner and causes for removal of non-impeachable officers, such authority is not carte blanche.

“The congressional determination of the identity of the disciplinary authority is not a blanket authority for Congress to repose it on whomsoever Congress chooses without running afoul of the independence enjoyed by the Office of the Ombudsman and without disrupting the delicate check and balance mechanism under the Constitution. Properly viewed from this perspective, the core constitutional principle of independence is observed and any possible absurdity resulting from a contrary interpretation is avoided,” the high court said.

It pointed out that the said provision created a “sword of Damocles” hanging over the head of the deputy ombudsman, exposing himself to all channels of external pressures and the influence of officialdom and partisan politics.

“The fear of external reprisal from the very office he is to check for excesses and abuses defeats the very purpose of granting independence to the Office of the Ombudsman,” the high court said.

In this case, Deputy Ombudsman for Military and Other Law Enforcement Officers (MOLEO) Emilio Gonzales III, who was dismissed by Malacañang during the time of President Benigno Aquino III, was reinstated without prejudice to a possible administrative liability that will be imposed by the Ombudsman. /atm

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