Obstruction of justice

The 1987 Constitution clothed the Office of the Ombudsman with such powers and ironclad autonomy that it may well be seen as the fourth branch of government — even if, by constitutional design, it is not. Run by individuals of unassailable integrity and irrepressible courage, this office could effectively function, when everything else fails, as the nation’s last defense against grave abuse of public office. That’s how crucial its work is. Any attempt, therefore, by a political branch of government to interfere in the conduct of its work rightly raises alarm.

One such attempt has recently come from no less than the Office of the President. Exercising the chief executive’s “residual” disciplinary authority over officials in the executive branch, Malacañang has acted on a complaint filed against Overall Deputy Ombudsman Melchor Arthur Carandang, subjecting him to a 60-day preventive suspension. The fact that Carandang is conducting an investigation into allegations of the President’s unexplained wealth is not irrelevant. He is accused of improperly revealing bank documents purporting to show large transactions made by President Duterte and members of his family. The President’s lawyers have called these documents “fake.”

Beyond the constitutional question of whether the President has the authority to discipline an erring deputy ombudsman, one must raise the ethical propriety of suspending a public official who is in the middle of an investigation of the President. In functioning democracies, a move like that would be seen as “obstruction of justice.”

We are a young democracy. We do find ourselves constantly reassessing the lofty principles and norms laid out in our Constitution in the light of rapid changes in politics and governance. When confronted with laws that appear to clash with constitutional provisions, we ask the Supreme Court to step in and resolve the issue. The high court may sometimes be divided and change its mind on some questions of law. That’s to be expected.

In fact, that’s what happened in the case that’s before us today. The 1987 Constitution explicitly provides that the Ombudsman can only be removed by impeachment. It is, however, silent on the applicability of the same rule to deputy ombudsmen. When Republic Act No. 6770, the law that laid down the “Functional and Structural Organization of the Office of the Ombudsman,” was passed, a crucial sentence gave the President the power to discipline officials in the Office of the Ombudsman other than the Ombudsman herself.

Section 8 (2) of RA 6770 reads thus: “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.” It was this provision that President Benigno Aquino III invoked in March 2011 when he dismissed then Deputy Ombudsman Emilio Gonzales III for “gross neglect of duty and grave misconduct.”

The case against Gonzales arose from the investigation triggered by the botched rescue of Hong Kong tourists who had been held at gunpoint by a dismissed Manila police officer inside a bus on a Luneta parking lot. It’s a long story. The government was keen to find people to blame for the fiasco. Poor Ombudsman Gonzales became a target when it was found that it was he who might have been the cause of the policeman’s despair, for failing to act promptly on the latter’s pending motion for reconsideration of his dismissal from the service.

Gonzales contested his dismissal and brought the case to the Supreme Court. In September 2012, the high court found no factual basis for his dismissal by the Office of the President and ordered him reinstated, even as it affirmed the President’s right to discipline him under RA 6770. The OP appealed the court’s ruling.

Two years later, in January 2014, in a separate decision penned by Justice Arturo Brion, the high court zeroed in on the law itself and struck down as unconstitutional that very provision in RA 6770 which gave the president the right to discipline deputy ombudsmen. The magistrates were split by a vote of 8-7.

That’s where the law stands at the moment: Between the President’s disciplinary authority and the Ombudsman’s autonomy, the high court has decided to assign a higher value to the need to protect the autonomy of the Ombudsman and insulate it from political pressure. Solicitor General Jose Calida has opted to ignore this ruling, arguing that, because Ombudsman Conchita Carpio Morales had inhibited herself from the unexplained wealth complaint against the President, she was no longer in any position to discipline Overall Deputy Ombudsman Carandang. That’s a conclusion that I’m sure can be disputed.

As though anticipating such leaps in legal argumentation, Justice Brion’s ponencia offers a lesson on the principle of checks and balances should the Ombudsman fail to discipline her deputies: “[T]he 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 judicial recourse available is only consistent with the nature of the Supreme Court as a nonpolitical independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose judges and employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less questionable. The Members of the Court themselves may be subjected to the impeachment power of Congress.”

I agree with Justice Brion. But, not being a lawyer, I can only hope the high court doesn’t change its mind too often.