The Termination of Deputy Ombudsman Gonzalez: An Analysis of Procedures

President Aquino’s termination of Deputy Ombudsman (DO) Gonzalez last Friday, April 1, 2011 brought another blow to the Office of the Ombudsman in the ongoing battle against Malacañang. The termination, per the Office of the President, was grounded on Gonzalez’s gross neglect, among others, in the resolution of the motion for reconsideration of hostage-taker Mendoza’s case. The dismissal was the result of the recommendation of the Incident Investigation Review Committee (IIRC) formed by President Aquino to investigate on the hostage-taking crisis of several Chinese citizens last year.

Meanwhile, on February 17, 2011 or more than a month before Malacañang’s dismissal of Gonzalez, the Internal Affairs Board (IAB) of the Office of the Ombudsman recommended the exoneration of Gonzalez from any administrative and criminal liability arising from the hostage-taking incident. The recommendation was approved by Ombudsman Gutierrez.

In the Ombudsman press conference, Assistant Ombudsman Jose de Jesus questioned Malacañang’s authority to sack Gonzalez since the Ombudsman’s Internal Affairs Board had already cleared him of any offense. The Ombudsman, he said, is independent from any other office of government as shown in Sec. 4, Art. XI, 1987 Constitution and Section 21 of Republic Act 6770 [Ombudsman Act].

The section reads: “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 the Judiciary.” This provision of the Constitution and the Ombudsman Act are interpreted as the Ombudsman having preferred jurisdiction over all other agencies with respect to administrative cases filed against government officials. The ruling of the Ombudsman ‘with finality’ on a particular case on any government officials, will bar other agencies or branches of the government to re-open or decide on the case, except maybe the Supreme Court and the Court of Appeals upon petition for review. The dispositive portion of the decision by the IAB clearly declared that, “this Office [Ombudsman] has considered the matter of DO Gonzales’ culpability in the hijacking episode as legally final and closed.” This declaration closes all other venues for the litigation or prosecution of Ombudsman Gonzalez by other government agencies.

On the other hand, the Office of the President (OP) cites Section 8(2) of the very same law, the Ombudsman Act (RA 6770) for its authority to remove Gonzalez from his position. The Section reads: “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.” The recommendation for the dismissal was made not by IAB but by another body – the IIRC. The clearing of Gonzalez from liabilities was made February 17, 2011 while the dismissal from the OP came April 1, 2011.

Analysis

It is always a principle in statutory construction [interpretation of laws] that, “Two statutes which are closely interrelated must be read and construed together and effect given to all of their provisions.” Both provisions of the law must be harmonized to give full effect. Therefore, there should be no conflict in the interpretation of Section 8 (2) vis-a-vis Section 21 of Republic Act 6770.

With respect to the discipline and removal of its officers and employees, it is generally the appointing authority who shall have the power to discipline and dismiss the erring employee. This is true even in private companies. The rule however changes, or there will be exceptions, when the rules itself provide for it. One major example are the impeachable officials under the Constitution. In any logical and ordinary reasoning, the person who shall have the power to remove Gonzalez shall be the Ombudsman herself. It is because Gonzalez is under the direct control and supervision of the Ombudsman. However, the Section 8 (2) of the Ombudsman Act says differently. It shall be the President of the Philippines who shall have the authority to remove the Deputy Ombudsman. This provision is logical because the President is the person who appoints the Deputy Ombudsman via the Judicial and Bar Council (JBC). But the questions is, “Is this power of the President over the DO excludes the Ombudsman from doing the function herself?” Can the Ombudsman terminate the Deputy Ombudsman and make the dismissal final without the approval or concurrence of the President? Section 8 (2) of RA 6770 will be a hurdle to the question. It seems that the said provision gives the President the exclusive authority to terminate the DO.

The next issue likewise will be as equally important as the previous one. If the President has the exclusive power to dismiss the DO, does he have the exclusive power to exculpate (acquit) the DO of administrative liabilities? It means that the President himself has the sole power to acquit or clear the DO of any administrative liability, and the Ombudsman shall have no participation to such authority except maybe to recommend only. Does the President have that exclusive power not only to dismiss but also to clear the DO of any administrative liability by virtue of Section 8 (2) of RA 6770?

The usual due process in the Office of the Ombudsman in the discipline of employees and officers is through the Internal Affairs Board (IAB) which is a body composed of officers and employees. The findings and recommendation of the IAB is then forwarded to the Ombudsman, who may affirm said findings and recommendation, or may modify or reverse it. In the case of regular employees, it is the Ombudsman who decides. But for the DO, there should be a different procedure. The question would be, “Should it be proper for the Ombudsman to refer to the Office of the President the findings and recommendation of the IAB on DO Gonzalez, and not act on the same alone?

In February of 2010, former Special Prosecutor Villa-Ignacio, occupying a co-equal position with the DOs was also the subject of an IAB proceeding. He was found by the IAB to have been dishonest in his declarations and recommended his termination. The termination however was not acted upon by Ombudsman Gutierrez but was forwarded and recommended to then President Arroyo for approval. The question would be, “Could the said process have been followed in the case of DO Gonzalez?”

The foregoing analysis can now give you much insights to come up with your own opinion on the present issue.

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