MANILA— Solicitor General Jose Calida on Friday reiterated that President Rodrigo Duterte had the authority to “discipline” a deputy ombudsman.
Calida issued the statement after Ombudsman Conchita Carpio Morales claimed that the chief executive’s directive “disrespected” a 2014 Supreme Court ruling.
Calida reminded Morales of “previously ignoring” the so-called “Aguinaldo doctrine” in indicting former Makati City Mayor Junjun Binay for graft three years ago.
“When the Ombudsman skewered then Mayor Junjun Binay by finding him guilty of graft over the Makati Parking Building, did she respect the Aguinaldo doctrine, which was the prevailing jurisprudence at that time? No. Now, she chides the Office of the President for ordering the preventive suspension of Overall Deputy Ombudsman Melchor Carandang (ODO), which she characterized as “a clear affront to the Supreme Court”. Look who’s talking?” Calida said.
Calida insisted that Morales should not cite the tribunal’s decision on the case of Emilio Gonzales III, who had challenged before the Supreme Court the order of then President Benigno Aquino III to sack him as deputy ombudsman for gross neglect of duty.
The high court had ruled then that Section 8(2) of Republic Act No. 6770, or the Ombudsman Act, was unconstitutional “by granting disciplinary jurisdiction to the President over a deputy Ombudsman, in violation of the independence of the Office of the Ombudsman.”
However, the government’s top lawyer maintained that Gonzales’ case was different since the preventive suspension of Morales’ deputy was not a penalty.
“The Ombudsman was supposed to investigate the fraudulent claims against the President. She, however, recused herself and passed the baton to ODO Carandang to do this task. But ODO bungled his job by exposing the President’s fake bank accounts,” he explained.
“She sanctimoniously invoked a distorted interpretation of the Ombudsman’s independence to shield her office from accountability. This is a travesty of justice,” Calida added.
Inhibiting from probe
The solicitor general said Morales’ decision to not to take part in the investigation on the president’s supposed bank records only created a “procedural, legal and ethical vacuum.”
“The Ombudsman cannot also discipline (Carandang) for acts committed in a case where she inhibited herself as she will contradict herself. Neither can (Carandang) be disciplined by the other deputy Ombudsmen due to lack of legal basis,” he explained.
“(W)ho will now discipline Carandang who was acting under Ombudsman Morales’ fiat?” he asked.
In defending the order suspending Carandang, Calida said Section 2, Article 11 of the 1987 Constitution did not include the deputy ombudsman as among the public officials who may be unseated only through an impeachment.
“Section 2, Article 11 of the Constitution states, “The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and 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. All other public officers and employees may be removed from office as provided by law, but not by impeachment,” Calida noted.
Under Section 20, Chapter 7, Title 1, Book III, of the Code, “Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. ”
Calida said the president, whose duty is to execute the laws, was forced to exercise his residual authority to “discipline officials” under the executive department.
Not a penalty
Calida added that preventive suspension is not a penalty, which further differentiates this case from the Gonzales ruling.
“The president, in issuing the preventive suspension, merely filled the vacuum left by the Ombudsman’s masquerade, and enforced accountability in public service. Otherwise, we will just be paying lip service to the constitutional precept that public officers shall remain accountable at all times. One thing is clear: The Office of the Ombudsman is not a fourth branch of government,” Calida explained.
The solicitor general further stressed that the president had the inherent power to discipline a Deputy Ombudsman, being the appointing authority.
“The Supreme Court has held that the power to discipline is lodged in the same authority in whom the power to appoint is vested,” Calida said.
On Wednesday, the SC released the entry of judgment of the 2014 final decision in the case of former deputy ombudsman for the military and other law enforcement offices Emilio Gonzales III, which provided for this jurisprudence that the Palace reportedly violated in ordering the suspension of Carandang.
The two-page order dated May 7, 2014, which was sent via e-mail to reporters by SC spokesman Theodore Te, stated that the Jan. 28, 2014 ruling on the Gonzales case has already become “final and executory.”
Under court rules, this means the decision was already recorded in the High Court’s Book of Entries of Judgments and can no longer be appealed or revised.
Calida said Carandang was free to seek legal remedy in any court, noting that he was ready to defend the Office of the President.
“Deputy Ombudsman Carandang is free to seek redress before the competent court. Nonetheless, my office is ready to defend the action of the Office of the President in suspending Carandang. We are confident that the Supreme Court will reverse its 2014 ruling,” Calida explained.
On Monday, Presidential Spokesperson Harry Roque said the Office of the Executive Secretary (OES) has formally charged Carandang for “grave misconduct and grave dishonesty for misuse of confidential information and disclosing false information” on the alleged bank transactions of President Rodrigo Duterte and his family.
Roque said Carandang had violated Section 3A of Republic 3019 “causing any undue injury to any party, including government, or giving any private party any unwarranted benefits, advantage of preference in the discharge of his official administrative or judicial function through manifest partiality, evident bad faith or gross inexcusable negligence.”
Carandang has also violated Section 3K of RA 3019 in relation to Section 2, Rule 5 of the Office of the Ombudsman, Administrative Order No. 7 for divulging valuable information of confidential character acquired by his office or by him on account of his official position.
Pursuant to the formal complaint filed by lawyers Manolito R. Luna and Elijo P. Mallari, Roque said the OES had placed Carandang under preventive suspension for a period of 90 days “effective immediately”.
Carandang, who was tasked to investigate the alleged bank transactions of the First Family, confirmed to the media in September 2017 that the Ombudsman had received information on the alleged bank transactions through the Anti-Money Laundering Council (AMLC).