G.R. No. 196231 September 4, 2012 the President in OP-DC-Case No.
the President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR M.
AMORANDO, Officer in Charge, Office of the Deputy Executive Secretary for Legal Affairs, ATTY.
RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ, and ATTY. CARLITOD.
CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT, Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN MONTALBAN,
.JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF MALACAANG LEGAL
AFFAIRS, Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case
These two petitions have been consolidated not because they stem from the same factual milieu
but because they raise a common thread of issues relating to the President's exercise of the power
to remove from office herein petitioners who claim the protective cloak of independence of the
constitutionally-created office to which they belong - the Office of the Ombudsman.
The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for
issuance of temporary restraining order or status quo order) which assails on jurisdictional grounds
the Decision1 dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-
460 dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other
Law Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross
Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition
primarily seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770,
otherwise known as the Ombudsman Act of 1989, which gives the President the power to dismiss
a Deputy Ombudsman of the Office of the Ombudsman.
The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with
application for issuance of a temporary restraining order or status quo order) seeking to annul,
reverse and set aside (1) the undated Order2 requiring petitioner Wendell Barreras-Sulit to submit
a written explanation with respect to alleged acts or omissions constituting serious/grave offenses
in relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F.
Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation,3 both issued by the Office of
Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as
unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special
Prosecutor of the Office of the Ombudsman.
The facts from which these two cases separately took root are neither complicated nor unfamiliar.
In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a
hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial
news accounts were fragmented it was not difficult to piece together the story on the hostage-
taker, Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer
attempting to secure his reinstatement in the police force and to restore the benefits of a life-long,
and erstwhile bemedaled, service. The following day, broadsheets and tabloids were replete with
stories not just of the deceased hostage-taker but also of the hostage victims, eight of whom died
during the bungled police operation to rescue the hapless innocents. Their tragic deaths triggered
word wars of foreign relation proportions. One newspaper headline ran the story in detail, as
follows:
MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed
with tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national
television until last night.
Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m.
Mendoza hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to
the police force.
The hostage drama dragged on even after the driver of the bus managed to escape and told police
that all the remaining passengers had been killed.
Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead
hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of
the bus to immobilize it.
Police used hammers to smash windows, door and wind-shield but were met with intermittent fire
from the hos-tage taker.
Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive.
When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza
was killed by a sniper.
Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders
scampering for safety.
It took the policemen almost two hours to assault the bus because gunfire reportedly rang out
from inside the bus.
Mendoza hijacked the tourist bus in the morning and took the tourists hostage.
Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of
the hostages during the drama that began at 10 a.m. and played out live on national television.
Live television footage showed Mendoza asking for food for those remaining in the bus, which was
delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was
reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.
Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3
p.m. today." Another sign stuck to another window said "3 p.m. today deadlock."
Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake
to correct a big wrong decision." A larger piece of paper on the front windshield was headed,
"Release final decision," apparently referring to the case that led to his dismissal from the police
force.
Negotiations dragged on even after Mendoza's self-imposed deadline.
Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the
police force. "His problem was he was unjustly removed from service. There was no due process,
no hearing, no com-plaint," Gregorio said.
Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his
brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in
front of national television. This triggered the crisis that eventually forced Mendoza to carry out his
threat and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk
Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos,
including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to
allow communications with Mendoza in-side the bus, which was parked in front ofthe Quirino
Grandstand.
Children could be seen peeking from the drawn curtains of the bus while police negotiators
hovered near the scene.
Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the
deployment of crack police teams and snipers near the scene. A crisis man-agement committee
had been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.
Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss
Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus
said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not
elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter
to Mendoza.
MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the
slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-
Internal Affairs Service and the Manila Regional Trial Court had already dismissed crim-inal cases
against him.
The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-
799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros
when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching
the Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken
hostage. "Having worn his (police) uniform, of course there is no doubt that he already planned
the hostage taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda
Fisher, Cecille Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage, The Philippine Star,
Updated August 24, 2010 12:00 AM, Val Rodri-guez.4
In a completely separate incident much earlier in time, more particularly in December of 2003, 28-
year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States
smuggling $100,000 from Manila by concealing the cash in their luggage and making false
statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and
agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the
rest of the charges against them and for being sentenced to time served. Inevitably, however, an
investigation into the source of the smuggled currency conducted by US Federal Agents and the
Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys'
father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed
Forces, had accumulated more than 300 Million during his active military service. Plunder and
Anti-Money Laundering cases were eventually filed against Major General Garcia, his wife and
their two sons before the Sandiganbayan.
G.R. No. 196231
Sometime in 2008, a formal charge5 for Grave Misconduct (robbery, grave threats, robbery
extortion and physical injuries) was filed before the Philippine National Police-National Capital
Region (PNP-NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and
four others, namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police
Officer III Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the
private complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed
as I.S. No. 08E-09512.
On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the
National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales
III, all relevant documents and evidence in relation to said case to the Office of the Deputy
Ombudsman for appropriate administrative adjudication.6 Subsequently, Case No. OMB-P-A-08-
0670-H for Grave Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police
officers, who filed their respective verified position papers as directed.
Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed7 upon a finding that the material
allegations made by the complainant had not been substantiated "by any evidence at all to
warrant the indictment of respondents of the offenses charged." Similarly, the Internal Affairs
Service of the PNP issued a Resolution8 dated October 17, 2008 recommending the dismissal
without prejudice of the administrative case against the same police officers, for failure of the
complainant to appear in three (3) consecutive hearings despite due notice.
However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a
Decision9 in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police
officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of
said Decision reads:
WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL ROSARIO
MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen. Salipada K.
Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1 NESTOR REYES
DAVID and PO2 RODERICK SALVA LOPEA of Manila Police District, Headquarters, United Nations
Avenue, Manila, be meted the penalty of DISMISSAL from the Service, pursuant to Section 52 (A),
Rule IV, Uniform Rules on Administrative Cases in the Civil Service, with the accessory penalties of
forfeiture of retirement benefits and perpetual disqualification from reemployment in the
government service pursuant to Section 58, Rule IV of the same Uniform Rules of Administrative
Cases in the Civil Service, for having committed GRAVE MISCONDUCT.
On November 5, 2009, they filed a Motion for Reconsideration10 of the foregoing Decision,
followed by a Supplement to the Motion for Reconsideration 11 on November 19, 2009. On
December 14, 2009, the pleadings mentioned and the records of the case were assigned for review
and recommendation to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who released
a draft Order12 on April 5, 2010 for appropriate action by his immediate superior, Director Eulogio
S. Cecilio, who, in turn, signed and forwarded said Order to petitioner Gonzalez's office on April 27,
2010. Not more than ten (10) days after, more particularly on May 6, 2010, petitioner endorsed
the Order, together with the case records, for final approval by Ombudsman Merceditas N.
Gutierrez, in whose office it remained pending for final review and action when P/S Insp. Mendoza
hijacked a bus-load of foreign tourists on that fateful day of August 23, 2010 in a desperate
attempt to have himself reinstated in the police service.
In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight
HongKong Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando
Mendoza, a public outcry against the blundering of government officials prompted the creation of
the Incident Investigation and Review Committee (IIRC),13 chaired by Justice Secretary Leila de Lima
and vice-chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to
determine accountability for the incident through the conduct of public hearings and executive
sessions. However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC
proceedings on the assertion that the Office of the Ombudsman is an independent constitutional
body.
Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner
Gonzales to be among those in whom culpability must lie. In its Report,14 the IIRC made the
following findings:
Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation
of their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for
more than nine (9) months without any justification, in violation of the Ombudsman prescribed
rules to resolve motions for reconsideration in administrative disciplinary cases within five (5) days
from submission. The inaction is gross, considering there is no opposition thereto. The prolonged
inaction precipitated the desperate resort to hostage-taking.
More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not
without legal and compelling bases considering the following:
(a) PSI Mendoza and four policemen were investigated by the Ombudsman
involving a case for alleged robbery (extortion), grave threats and physical
injuries amounting to grave misconduct allegedly committed against a certain
Christian Kalaw. The same case, however, was previously dismissed by the
Manila City Prosecutors Office for lack of probable cause and by the PNP-NCR
Internal Affairs Service for failure of the complainant (Christian Kalaw) to
submit evidence and prosecute the case. On the other hand, the case which
was filed much ahead by Mendoza et al. against Christian Kalaw involving the
same incident, was given due course by the City Prosecutors Office.
(b) The Ombudsman exercised jurisdiction over the case based on a letter
issued motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing
the PNP-NCR - without citing any reason - to endorse the case against
Mendoza and the arresting policemen to his office for administrative
adjudication, thereby showing undue interest on the case. He also caused the
docketing of the case and named Atty. Clarence V. Guinto of the PNP-CIDG-
NCR, who indorsed the case records, as the nominal complainant, in lieu of
Christian Kalaw. During the proceedings, Christian Kalaw did not also affirm
his complaint-affidavit with the Ombudsman or submit any position paper as
required.
(c) Subsequently, Mendoza, after serving preventive suspension, was
adjudged liable for grave misconduct by Deputy Ombudsman Gonzales (duly
approved on May 21, 2009) based on the sole and uncorroborated complaint-
affidavit of Christian Kalaw, which was not previously sustained by the City
Prosecutor's Office and the PNP Internal Affairs Service. From the said
Resolution, Mendoza interposed a timely motion for reconsideration (dated
and filed November 5, 2009) as well as a supplement thereto. No opposition
or comment was filed thereto.
(d) Despite the pending and unresolved motion for reconsideration, the
judgment of dismissal was enforced, thereby abruptly ending Mendoza's 30
years of service in the PNP with forfeiture of all his benefits. As a result,
Mendoza sought urgent relief by sending several hand-written letter-requests
to the Ombudsman for immediate resolution of his motion for
reconsideration. But his requests fell on deaf ears.
xxxx
By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without
any justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete
and wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of
Procedure). The inaction is gross, there being no opposition to the motion for reconsideration.
Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily
enforced the judgment of dismissal and ignored the intervening requests for immediate resolution,
thereby rendering the inaction even more inexcusable and unjust as to amount to gross negligence
and grave misconduct.
SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard
of due process, manifest injustice and oppression in failing to provisionally suspend the further
implementation of the judgment of dismissal against Mendoza pending disposition of his
unresolved motion for reconsideration.
By enforcing the judgment of dismissal without resolving the motion for reconsideration for over
nine months, the two Ombudsman officials acted with arbitrariness and without regard to due
process and the constitutional right of an accused to the speedy disposition of his case. As long as
his motion for reconsideration remained pending and unresolved, Mendoza was also effectively
deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment
of dismissal before the higher courts and seek a temporary restraining order to prevent the further
execution thereof.
As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should
have provisionally suspended the further enforcement of the judgment of dismissal without
prejudice to its re-implementation if the reconsideration is eventually denied. Otherwise, the
Ombudsman will benefit from its own inaction. Besides, the litigant is entitled to a stay of the
execution pending resolution of his motion for reconsideration. Until the motion for
reconsideration is denied, the adjudication process before the Ombudsman cannot be considered
as completely finished and, hence, the judgment is not yet ripe for execution.
xxxx
When the two Ombudsman officials received Mendoza's demand for the release of the final order
resolving his motion for reconsideration, they should have performed their duty by resolving the
reconsideration that same day since it was already pending for nine months and the prescribed
period for its resolution is only five days. Or if they cannot resolve it that same day, then they
should have acted decisively by issuing an order provisionally suspending the further enforcement
of the judgment of dismissal subject to revocation once the reconsideration is denied and without
prejudice to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the
crisis may have ended peacefully, without necessarily compromising the integrity of the institution.
After all, as relayed to the negotiators, Mendoza did express willingness to take full responsibility
for the hostage-taking if his demand for release of the final decision or reinstatement was met.
But instead of acting decisively, the two Ombudsman officials merely offered to review a pending
motion for review of the case, thereby prolonging their inaction and aggravating the situation. As
expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding
Php150,000 in exchange for favorably resolving the motion for reconsideration - rejected and
branded as trash ("basura") the Ombudsman [sic] letter promising review, triggering the collapse
of the negotiations. To prevent the situation from getting out of hand, the negotiators sought the
alternative option of securing before the PNP-NCRPO an order for Mendoza's provisional
reinstatement pending resolution of the motion for reconsideration. Unfortunately, it was already
too late. But had the Ombudsman officials performed their duty under the law and acted
decisively, the entire crisis may have ended differently.
The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the
Office of the President (OP) for further determination of possible administrative offenses and for
the initiation of the proper administrative proceedings.
On October 15, 2010, the OP instituted a Formal Charge15 against petitioner Gonzales for Gross
Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22
of the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil
Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft
and Corrupt Practices Act.16 Petitioner filed his Answer17 thereto in due time.
Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated
October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal
Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly
requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the Government and any other
party, wherein the public officer in his official capacity has to intervene under the law" under
Section 3(b) of the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of
gifts under Section 7(d) of the Code of Conduct and Ethical Standards.18 In a Joint
Resolution19 dated February 17, 2011, which was approved by Ombudsman Ma. Merceditas N.
Gutierrez, the complaint was dismissed, as follows:
WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A.
Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the
complaint is hereby be [sic] DISMISSED.
Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct,
the same is likewise DISMISSED.
Meanwhile, the OP notified20 petitioner that a Preliminary Clarificatory Conference relative to the
administrative charge against him was to be conducted at the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged,21 however,
that on February 4, 2011, he heard the news that the OP had announced his suspension for one
year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence,
believing that the OP had already prejudged his case and that any proceeding before it would
simply be a charade, petitioner no longer attended the scheduled clarificatory conference. Instead,
he filed an Objection to Proceedings22 on February 7, 2011. Despite petitioner's absence, however,
the OP pushed through with the proceedings and, on March 31, 2011, rendered the assailed
Decision,23 the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III
guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and
hereby meted out the penalty of DISMISSAL from service.
SO ORDERED.
Hence, the petition.
G.R. No. 196232
In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged
Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo
Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal Case No.
28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan.
On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail
holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit
("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea
Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On
May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the
PLEBARA compliant with jurisprudential guidelines.
Outraged by the backroom deal that could allow Major General Garcia to get off the hook with
nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of
his culpability for serious public offenses, the House of Representatives' Committee on Justice
conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the
Committee on Justice passed and adopted Committee Resolution No. 3, 24recommending to the
President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate
charges against her Deputies and Assistants before the appropriate government office for having
committed acts and/or omissions tantamount to culpable violations of the Constitution and
betrayal of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and
grounds for removal from office under the Ombudsman Act.
The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In
her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction
of the OP with respect to the administrative disciplinary proceeding against her. The OP, however,
still proceeded with the case, setting it for preliminary investigation on April 15, 2011.
Hence, the petition.
The Issues
In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:
(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO SUBJECT
PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER ORDER HIS REMOVAL
AS DEPUTY OMBUDSMAN.
(B)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN
VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.
(C)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS,
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING
THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF MENDOZA'S MOTION FOR
RECONSIDERATION.
(D)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS,
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING
THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S CASE.
(E)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS,
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON MENDOZA'S MOTION FOR
RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S DISMISSAL FROM SERVICE DURING THE
HOSTAGE CRISIS.
(F)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS,
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING
THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT PETITIONER DEMANDED A BRIBE FROM
MENDOZA.25
On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question -
AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE
DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE?26
Re-stated, the primordial question in these two petitions is whether the Office of the President has
jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special
Prosecutor who belong to the constitutionally-created Office of the Ombudsman.
The Court's Ruling
Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate
that the President has no disciplinary jurisdiction over them considering that the Office of the
Ombudsman to which they belong is clothed with constitutional independence and that they, as
Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes
of said office.
 The Court is not convinced.
The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special
Prosecutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct administrative
investigations proceeds from its constitutional mandate to be an effective protector of the people
against inept and corrupt government officers and employees,27 and is subsumed under the broad
powers "explicitly conferred" upon it by the 1987 Constitution and R.A. No. 6770.28
The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish
term, which literally means "agent" or "representative," communicates the concept that has been
carried on into the creation of the modern-day ombudsman, that is, someone who acts as a
neutral representative of ordinary citizens against government abuses. 29 This idea of a people's
protector was first institutionalized in the Philippines under the 1973 Constitution with the
creation of the Tanodbayan, which wielded the twin powers of investigation and prosecution.
Section 6, Article XIII of the 1973 Constitution provided thus:
Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate complaints relative to public office, including
those in government-owned or controlled corporations, make appropriate recommendations, and
in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or
administrative case before the proper court or body.
The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with
authority to "act in a quick, inexpensive and effective manner on complaints against administrative
officials", and to function purely with the "prestige and persuasive powers of his office" in
correcting improprieties, inefficiencies and corruption in government freed from the hampering
effects of prosecutorial duties.30 Accordingly, Section 13, Article XI of the 1987 Constitution
enumerates the following powers, functions, and duties of the Office of the Ombudsman, viz:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any government-
owned or controlled corporation with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of
duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee at
fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and
ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may
be provided by law, to furnish it with copies of documents relating to contracts or transactions
entered into by his office involving the disbursement or use of public funds or properties, and
report any irregularity to the Commission on Audit for appropriate action.
(5) Request any government agency for assistance and information necessary in the discharge of
its responsibilities, and to examine, if necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when circumstances so warrant and with due
prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high
standards of ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such other powers or perform such functions
or duties as may be provided by law.31
Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of
1989, to shore up the Ombudsman's institutional strength by granting it "full administrative
disciplinary power over public officials and employees,"32 as follows:
Sec. 21. 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 the Judiciary.(Emphasis
supplied)
In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was
explicitly conferred the statutory power to conduct administrative investigations under Section 19
of the same law, thus:
Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's functions, though in accordance with
law;
4. Proceed from a mistake of law or an arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers but for an improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.
While the Ombudsman's authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the judiciary, such authority is by no
means exclusive. Petitioners cannot insist that they should be solely and directly subject to the
disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus:
Section 8. Removal; Filling of Vacancy.-
xxxx
(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.
It is a basic canon of statutory construction that in interpreting a statute, care should be taken that
every part thereof be given effect, on the theory that it was enacted as an integrated measure and
not as a hodge-podge of conflicting provisions. A construction that would render a provision
inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole.33Otherwise stated, the law
must not be read in truncated parts. Every part thereof must be considered together with the
other parts, and kept subservient to the general intent of the whole enactment.34
A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to
the inevitable conclusion that Congress had intended the Ombudsman and the President to
exercise concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special
Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which
prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter
are quite insightful, viz:
x x x 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 Tanodbayan.
Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he
can be removed not by the President but by the Ombudsman.
However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman
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 that an outside official should be vested with
such authority to effect a check and balance.35
Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section
21 - in the same Organic Act was to provide for an external authority, through the person of the
President, that would exercise the power of administrative discipline over the Deputy Ombudsman
and Special Prosecutor without in the least diminishing the constitutional and plenary authority of
the Ombudsman over all government officials and employees. Such legislative design is simply a
measure of "check and balance" intended to address the lawmakers' real and valid concern that
the Ombudsman and his Deputy may try to protect one another from administrative liabilities.
This would not be the first instance that the Office of the President has locked horns with the
Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor
of shared authority in Hagad v. Gozo Dadole.36 In said case, the Mayor and Vice-Mayor of Mandaue
City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal
Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his
authority to conduct administrative investigations over said local elective officials by virtue of the
subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent
provision of which states:
Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local
elective official shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President.
The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General
that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on
an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No.
7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the
Ombudsman Act was inferred therefrom. Thus said the Court:
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other. Well settled is the rule that repeals of laws by implication
are not favored, and that courts must generally assume their congruent application. The two laws
must be absolutely incompatible, and a clear finding thereof must surface, before the inference of
implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare
legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into
accord with other laws as to form a uniform system of jurisprudence. The fundament is that the
legislature should be presumed to have known the existing laws on the subject and not to have
enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all
efforts should be exerted in order to harmonize and give effect to all laws on the subject. 37
While Hagad v. Gozo Dadole38 upheld the plenary power of the Office of the Ombudsman to
discipline elective officials over the same disciplinary authority of the President under R.A. No.
7160, the more recent case of the Office of the Ombudsman v. Delijero39 tempered the exercise by
the Ombudsman of such plenary power invoking Section 23(2)40 of R.A. No. 6770, which gives the
Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the
institution of appropriate administrative proceedings against erring public officers or employees."
The Court underscored therein the clear legislative intent of imposing "a standard and a separate
set of procedural requirements in connection with administrative proceedings involving public
school teachers"41 with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for
Public School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary
authority over a public school teacher is concurrent with the proper investigating committee of the
Department of Education, it would have been more prudent under the circumstances for the
Ombudsman to have referred to the DECS the complaint against the public school teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and
mete out administrative sanctions upon them, including the extreme penalty of dismissal from the
service. However, it is equally without question that the President has concurrent authority with
respect to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under
specified conditions. Considering the principles attending concurrence of jurisdiction where the
Office of the President was the first to initiate a case against petitioner Gonzales, prudence should
have prompted the Ombudsman to desist from proceeding separately against petitioner through
its Internal Affairs Board, and to defer instead to the President's assumption of authority,
especially when the administrative charge involved "demanding and soliciting a sum of money"
which constitutes either graft and corruption or bribery, both of which are grounds reserved for
the President's exercise of his authority to remove a Deputy Ombudsman.
In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a
subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge
of graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After
all, the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the
exercise of administrative powers.42 In Montemayor v. Bundalian,43 the Court sustained the
President's dismissal from service of a Regional Director of the Department of Public Works and
Highways (DPWH) who was found liable for unexplained wealth upon investigation by the now
defunct Philippine Commission Against Graft and Corruption (PCAGC). The Court categorically
ruled therein that the prior dismissal by the Ombudsman of similar charges against said official did
not operate as res judicata in the PCAGC case.
By granting express statutory power to the President to remove a Deputy Ombudsman and a
Special Prosecutor, Congress merely filled an obvious gap in the law.
Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the
Ombudsman and his Deputies, viz:
Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for
every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be
filled within three months after they occur.
While the removal of the Ombudsman himself is also expressly provided for in the Constitution,
which is by impeachment under Section 244 of the same Article, there is, however, no
constitutional provision similarly dealing with the removal from office of a Deputy Ombudsman, or
a Special Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a
gap in the law without running afoul of any provision in the Constitution or existing statutes. In
fact, the Constitution itself, under Section 2, authorizes Congress to provide for the removal of all
other public officers, including the Deputy Ombudsman and Special Prosecutor, who are not
subject to impeachment.
That the Deputies of the Ombudsman were intentionally excluded from the enumeration of
impeachable officials is clear from the following deliberations45 of the Constitutional Commission,
thus:
MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been
concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform
his duties because he is something like a guardian of the government. This recalls the statement of
Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies",
who will guard the guardians? I understand here that the Ombudsman who has the rank of a
chairman of a constitutional commission is also removable only by impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of".
We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate
Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and
read our discussions into the Record for purposes of the Commission and the Committee. 46
xxx
THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the
Ombudsman among those officials who have to be removed from office only onimpeachment. Is
that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask a question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.47 (Emphasis supplied)
The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is Implied
from his Power to Appoint.
Under the doctrine of implication, the power to appoint carries with it the power to remove.48 As a
general rule, therefore, all officers appointed by the President are also removable by him.49 The
exception to this is when the law expressly provides otherwise - that is, when the power to remove
is expressly vested in an office or authority other than the appointing power. In some cases, the
Constitution expressly separates the power to remove from the President's power to appoint.
Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and
judges of lower courts shall be appointed by the President. However, Members of the Supreme
Court may be removed after impeachment proceedings initiated by Congress (Section 2, Article XI),
while judges of lower courts may be removed only by the Supreme Court by virtue of its
administrative supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons
and Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on
Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall
likewise be appointed by the President, but they may be removed only by impeachment (Section
2, Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President
(Section 9, Article XI) but may also be removed only by impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the
President's constitutional authority to appoint the aforesaid officials in the Office of the
Ombudsman.
The Office of the Ombudsman is charged with monumental tasks that have been generally
categorized into investigatory power, prosecutorial power, public assistance, authority to inquire
and obtain information and the function to adopt, institute and implement preventive
measures.50 In order to ensure the effectiveness of his constitutional role, the Ombudsman was
provided with an over-all deputy as well as a deputy each for Luzon, Visayas and Mindanao.
However, well into the deliberations of the Constitutional Commission, a provision for the
appointment of a separate deputy for the military establishment was necessitated by
Commissioner Ople's lament against the rise within the armed forces of "fraternal associations
outside the chain of command" which have become the common soldiers' "informal grievance
machinery" against injustice, corruption and neglect in the uniformed service,51 thus:
In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association
outside the chain of command proposing reformist objectives. They constitute, in fact, an informal
grievance machinery against injustices to the rank and file soldiery and perceive graft in higher
rank and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement
of RAM has kept precincts for pushing logistics to the field, the implied accusation being that most
of the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El
Diablo and other organizations dominated by enlisted men function, more or less, as grievance
collectors and as mutual aid societies.
This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference. The
Ombudsman can designate a deputy to help the ordinary foot soldier get through with his
grievance to higher authorities. This deputy will, of course work in close cooperation with the
Minister of National Defense because of the necessity to maintain the integrity of the chain of
command. Ordinary soldiers, when they know they can turn to a military Ombudsman for their
complaints, may not have to fall back on their own informal devices to obtain redress for their
grievances. The Ombudsman will help raise troop morale in accordance with a major professed
goal of the President and the military authorities themselves. x x x
The add-on now forms part of Section 5, Article XI which reads as follows:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise be
appointed.(Emphasis supplied)
The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog
looking into abuses and irregularities that affect the general morale and professionalism in the
military is certainly of primordial importance in relation to the President's own role asCommander-
in-Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the
President concurrent disciplinary authority over the Deputy Ombudsman for the military and other
law enforcement offices.
Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the
Independence of the Office of the Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy
Ombudsman from office totally frustrates, if not resultantly negates the independence of the
Office of the Ombudsman is tenuous. The independence which the Office of the Ombudsman is
vested with was intended to free it from political considerations in pursuing its constitutional
mandate to be a protector of the people. What the Constitution secures for the Office of the
Ombudsman is, essentially, political independence. This means nothing more than that "the terms
of office, the salary, the appointments and discipline of all persons under the office" are
"reasonably insulated from the whims of politicians."52 And so it was that Section 5, Article XI of
the 1987 Constitution had declared the creation of the independent Office of the Ombudsman,
composed of the Ombudsman and his Deputies, who are described as "protectors of the people"
and constitutionally mandated to act promptly on complaints filed in any form or manner against
public officials or employees of the Government Section 12, Article XI. Pertinent provisions under
Article XI prescribes a term of office of seven years without reappointment Section 11, prohibits a
decrease in salaries during the term of office Section 10, provides strict qualifications for the office
Section 8, grants fiscal autonomy Section 14 and ensures the exercise of constitutional functions
Section 12 and 13. The cloak of independence is meant to build up the Office of the Ombudsman's
institutional strength to effectively function as official critic, mobilizer of government,
constitutional watchdog53 and protector of the people. It certainly cannot be made to extend to
wrongdoings and permit the unbridled acts of its officials to escape administrative discipline.
Being aware of the constitutional imperative of shielding the Office of the Ombudsman from
political influences and the discretionary acts of the executive, Congress laid down two restrictions
on the President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that
the removal of the Deputy Ombudsman must be for any of the grounds provided for the removal
of the Ombudsman and (2) that there must be observance of due process. Reiterating the grounds
for impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section
8 of R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same
grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation
of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public
trust." Thus, it cannot be rightly said that giving the President the power to remove a Deputy
Ombudsman, or a Special Prosecutor for that matter, would diminish or compromise the
constitutional independence of the Office of the Ombudsman. It is, precisely, a measure of
protection of the independence of the Ombudsman's Deputies and Special Prosecutor in the
discharge of their duties that their removal can only be had on grounds provided by law.
In Espinosa v. Office of the Ombudsman,54 the Court elucidated on the nature of the Ombudsman's
independence in this wise -
The prosecution of offenses committed by public officers is vested in the Office of the
Ombudsman. To insulate the Office from outside pressure and improper influence, the
Constitution as well as RA 6770 has endowed it with a wide latitude of investigatory and
prosecutory powers virtually free from legislative, executive or judicial intervention. This Court
consistently refrains from interfering with the exercise of its powers, and respects the initiative
and independence inherent in the Ombudsman who, 'beholden to no one, acts as the champion of
the people and the preserver of the integrity of public service.
Petitioner Gonzales may not be removed from office where the questioned acts, falling short of
constitutional standards, do not constitute betrayal of public trust.
Having now settled the question concerning the validity of the President's power to remove the
Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative
findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy
Ombudsman Emilio A. Gonzales, III.
At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP
proceeded with the administrative case against him despite his non-attendance thereat. Petitioner
was admittedly able to file an Answer in which he had interposed his defenses to the formal
charge against him. Due process is satisfied when a person is notified of the charge against him
and given an opportunity to explain or defend himself. In administrative proceedings, the filing of
charges and giving reasonable opportunity for the person so charged to answer the accusations
against him constitute the minimum requirements of due process. 55 Due process is simply having
the opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or
ruling complained of.56
The essence of due process is that a party is afforded reasonable opportunity to be heard and to
submit any evidence he may have in support of his defense.57 Mere opportunity to be heard is
sufficient. As long as petitioner was given the opportunity to explain his side and present evidence,
the requirements of due process are satisfactorily complied with because what the law abhors is
an absolute lack of opportunity to be heard.58 Besides, petitioner only has himself to blame for
limiting his defense through the filing of an Answer. He had squandered a subsequent opportunity
to elucidate upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory
Conference despite notice. The OP recounted as follows -
It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate
opportunities to explain his side and answer the Formal Charge against him.
In the first instance, respondent was given the opportunity to submit his answer together with his
documentary evidence, which opportunity respondent actually availed of. In the second instance,
this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express
election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman
refused to appear for said conference, interposing an objection based on the unfounded notion
that this Office has prejudged the instant case. Respondent having been given actual and
reasonable opportunity to explain or defend himself in due course, the requirement of due
process has been satisfied.59
In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial
evidence,60 which is more than a mere scintilla and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.61 The fact, therefore, that petitioner later
refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability
based on substantial evidence, which only requires that a decision must "have something upon
which it is based."62
Factual findings of administrative bodies are controlling when supported by substantial
evidence.63 The OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of removal from office was based on the finding
of gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust,
which is a constitutional ground for the removal by impeachment of the Ombudsman (Section 2,
Article XI, 1987 Constitution), and a statutory ground for the President to remove from office a
Deputy Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act.
The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained
action in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his
failure to verify the basis for requesting the Ombudsman to take over the case; his pronouncement
of administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza
based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp.
Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the
subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency
of the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of
available remedies against the immediate implementation of the Decision dismissing him from the
service.
Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence
of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1)
petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S
Insp. Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp.
Mendoza by effectively depriving the latter of the right to challenge the dismissal before the courts
and prevent its immediate execution, and (2) petitioner showed undue interest by having P/S Insp.
Mendoza's case endorsed to the Office of the Ombudsman and resolving the same against P/S
Insp. Mendoza on the basis of the unverified complaint-affidavit of the alleged victim Christian
Kalaw.
The invariable rule is that administrative decisions in matters within the executive jurisdiction can
only be set aside on proof of gross abuse of discretion, fraud, or error of law.64 In the instant case,
while the evidence may show some amount of wrongdoing on the part of petitioner, the Court
seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross
neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that
petitioner's offenses, as they factually appear, weigh heavily enough to constitute betrayal of
public trust would be to ignore the significance of the legislature's intent in prescribing the
removal of the Deputy Ombudsman or the Special Prosecutor for causes that, theretofore, had
been reserved only for the most serious violations that justify the removal by impeachment of the
highest officials of the land.
Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties
constitute betrayal of public trust warranting immediate removal from office? The question calls
for a deeper, circumspective look at the nature of the grounds for the removal of a Deputy
Ombudsman and a Special Prosecutor vis-a-vis common administrative offenses.
Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to
the existing grounds of culpable violation of the Constitution, treason, bribery, graft and
corruption and other high crimes. While it was deemed broad enough to cover any violation of the
oath of office,65 the impreciseness of its definition also created apprehension that "such an
overarching standard may be too broad and may be subject to abuse and arbitrary exercise by the
legislature."66 Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not
punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in
office"67 could be easily utilized for every conceivable misconduct or negligence in office. However,
deliberating on some workable standard by which the ground could be reasonably interpreted, the
Constitutional Commission recognized that human error and good faith precluded an adverse
conclusion.
MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public
trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I
am not a lawyer so I can anticipate the difficulties that a layman may encounter in understanding
this provision and also the possible abuses that the legislature can commit in interpreting this
phrase. It is to be noted that this ground was also suggested in the 1971 Constitutional
Convention. A review of the Journals of that Convention will show that it was not included; it was
construed as encompassing acts which are just short of being criminal but constitute gross
faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty,
favoritism, and gross exercise of discretionary powers. I understand from the earlier discussions
that these constitute violations of the oath of office, and also I heard the Honorable Davide say
that even the criminal acts that were enumerated in the earlier 1973 provision on this matter
constitute betrayal of public trust as well. In order to avoid confusion, would it not be clearer to
stick to the wording of Section 2 which reads: "may be removed from office on impeachment for
and conviction of, culpable violation of the Constitution, treason, bribery, and other high crimes,
graft and corruption or VIOLATION OF HIS OATH OF OFFICE", because if betrayal of public trust
encompasses the earlier acts that were enumerated, then it would behoove us to be equally clear
about this last provision or phrase.
MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words
"betrayal of public trust" in the 1986 Constitution. But I would like him to know that we are
amenable to any possible amendment. Besides, I think plain error of judgment, where
circumstances may indicate that there is good faith, to my mind, will not constitute betrayal of
public trust if that statement will allay the fears of difficulty in interpreting the term."68 (Emphasis
supplied)
The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal
of public trust to refer to "acts which are just short of being criminal but constitute gross
faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty,
favoritism, and gross exercise of discretionary powers."69 In other words, acts that should
constitute betrayal of public trust as to warrant removal from office may be less than criminal but
must be attended by bad faith and of such gravity and seriousness as the other grounds for
impeachment.
A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by
providing for their removal from office on the same grounds as removal by impeachment, the
legislature could not have intended to redefine constitutional standards of culpable violation of
the Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of
public trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of
impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of
judgment, this should remain true even for purposes of removing a Deputy Ombudsman and
Special Prosecutor from office. Hence, the fact that the grounds for impeachment have been made
statutory grounds for the removal by the President of a Deputy Ombudsman and Special
Prosecutor cannot diminish the seriousness of their nature nor the acuity of their scope. Betrayal
of public trust could not suddenly "overreach" to cover acts that are not vicious or malevolent on
the same level as the other grounds for impeachment.
The tragic hostage-taking incident was the result of a confluence of several unfortunate events
including system failure of government response. It cannot be solely attributed then to what
petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of
the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official
acts in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the
Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution
of his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records
show that petitioner took considerably less time to act upon the draft resolution after the same
was submitted for his appropriate action compared to the length of time that said draft remained
pending and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and
denied P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned
from the time the draft resolution was submitted to him on April 27, 2010 until he forwarded his
recommendation to the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final
action. Clearly, the release of any final order on the case was no longer in his hands.
Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an
unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the
same cannot be considered a vicious and malevolent act warranting his removal for betrayal of
public trust. More so because the neglect imputed upon petitioner appears to be an isolated case.
Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the
Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of
his undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking
cognizance of cases upon the request of concerned agencies or private parties is part and parcel of
the constitutional mandate of the Office of the Ombudsman to be the "champion of the people."
The factual circumstances that the case was turned over to the Office of the Ombudsman upon
petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even
without the private complainant verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for reconsideration thereof remained pending for
more than nine months cannot be simply taken as evidence of petitioner's undue interest in the
case considering the lack of evidence of any personal grudge, social ties or business affiliation with
any of the parties to the case that could have impelled him to act as he did. There was likewise no
evidence at all of any bribery that took place, or of any corrupt intention or questionable
motivation.
Accordingly, the OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as
the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust.
Hence, the President, while he may be vested with authority, cannot order the removal of
petitioner as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious
kind amounting to a betrayal of public trust.
This is not to say, however, that petitioner is relieved of all liability for his acts showing less than
diligent performance of official duties. Although the administrative acts imputed to petitioner fall
short of the constitutional standard of betrayal of public trust, considering the OP's factual findings
of negligence and misconduct against petitioner, the Court deems it appropriate to refer the case
to the Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460
and the imposition of the corresponding administrative sanctions, if any.
Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is
entitled to reinstatement to his former position as Deputy Ombudsman and to the payment of
backwages and benefits corresponding to the period of his suspension.
The Office of the President is vested with statutory authority to proceed administratively against
petitioner Barreras-Sulit to determine the existence of any of the grounds for her removal from
office as provided for under the Constitution and the Ombudsman Act.
Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove
her from office upon the averment that without the Sandiganbayan's final approval and judgment
on the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions
"tantamount to culpable violations of the Constitution and betrayal of public trust," which are
grounds for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989;
and which also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-
Graft and Corrupt Practices Act) - causing undue injury to the Government or giving any private
party any unwarranted benefits, advantage or preference through manifest partiality, evident bad
faith or gross inexcusable negligence. With reference to the doctrine of prejudicial procedural
antecedent, petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take
administrative disciplinary proceeding against her must depend on the final disposition by the
Sandiganbayan of the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA,
there would no longer be any cause of complaint against her; if not, then the situation becomes
ripe for the determination of her failings.
The argument will not hold water. The incidents that have taken place subsequent to the
submission in court of the PLEBARA shows that the PLEBARA has been practically approved, and
that the only thing which remains to be done by the Sandiganbayan is to promulgate a judgment
imposing the proper sentence on the accused Major General Garcia based on his new pleas to
lesser offenses. On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change
of plea under the PLEBARA was warranted and that it complied with jurisprudential guidelines. The
Sandiganbayan, thereafter, directed the accused Major General Garcia to immediately convey in
favor of the State all the properties, both real and personal, enumerated therein. On August 11,
2010, the Sandiganbayan issued a resolution, which, in order to put into effect the reversion of
Major General Garcia's ill-gotten properties, ordered the corresponding government agencies to
cause the transfer of ownership of said properties to the Republic of the Philippines. In the
meantime, the Office of the Special Prosecutor (OSP) informed the Sandiganbayan that an
Order70 had been issued by the Regional Trial Court of Manila, Branch 21 on November 5, 2010
allowing the transfer of the accused's frozen accounts to the Republic of the Philippines pursuant
to the terms of the PLEBARA as approved by the Sandiganbayan. Immediately after the OSP
informed the Sandiganbayan that its May 4, 2010 Resolution had been substantially complied with,
Major General Garcia manifested71 to the Sandiganbayan on November 19, 2010 his readiness for
sentencing and for the withdrawal of the criminal information against his wife and two sons. Major
General Garcia's Motion to Dismiss,72 dated December 16, 2010 and filed with the Sandiganbayan,
reads:
1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused
MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the
act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining
Agreement executed by the Principal Accused, the charges against the Co-Accused should likewise
be dismissed since the charges against them are anchored on the same charges against the
Principal Accused.
On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty
to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended.
Upon Major General Garcia's motion, and with the express conformity of the OSP, the
Sandiganbayan allowed him to post bail in both cases, each at a measly amount of 30,000.00.
The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an
administrative finding of liability against petitioner Barreras-Sulit. While the court's determination
of the propriety of a plea bargain is on the basis of the existing prosecution evidence on record,
the disciplinary authority's determination of the prosecutor's administrative liability is based on
whether the plea bargain is consistent with the conscientious consideration of the government's
best interest and the diligent and efficient performance by the prosecution of its public duty to
prosecute crimes against the State. Consequently, the disciplining authority's finding of ineptitude,
neglect or willfulness on the part of the prosecution, more particularly petitioner Special
Prosecutor Barreras-Sulit, in failing to pursue or build a strong case for the government or, in this
case, entering into an agreement which the government finds "grossly disadvantageous," could
result in administrative liability, notwithstanding court approval of the plea bargaining agreement
entered into.
Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval.73 The essence of a plea
bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that
charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the
procedure therefor, to wit:
SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial,
the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of
not guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)
11-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions
tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance
with Section 8(2) of the Ombudsman Act of 1989.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.
SO ORDERED.

Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish
the guilt of the accused of the crime charged.74 However, if the basis for the allowance of a plea
bargain in this case is the evidence on record, then it is significant to state that in its earlier
Resolution75 promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of
twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented
by the prosecution is viewed by the Court to be of strong character that militates against the grant
of bail."

Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea
bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to
secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard
of judicial probable cause which is sufficient to initiate a criminal case."76Hence, in light of the
apparently strong case against accused Major General Garcia, the disciplining authority would be
hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case.

The Court need not touch further upon the substantial matters that are the subject of the pending
administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to the
complete and effective resolution of the administrative case before the Office of the President.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless,
failed to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the
law of the land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section
8(2) of the Ombudsman Act; and (b) the validity of the administrative action of removal taken
against petitioner Gonzales. While the Court voted unanimously to reverse the decision of the OP
removing petitioner Gonzales from office, it was equally divided in its opinion on the
constitutionality of the assailed statutory provision in its two deliberations held on April 17, 2012
and September 4, 2012. There being no majority vote to invalidate the law, the Court, therefore,
dismisses the challenge to the constitutionality of Section 8(2) of the Ombudsman Act in
accordance with Section 2(d), Rule 12 of the Internal Rules of the Court.

Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the
Members of the Court actually taking part in the deliberation to sustain any challenge to the
constitutionality or validity of a statute or any of its provisions.

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-
460 isREVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with
payment of backwages corresponding to the period of suspension effective immediately, even as
the Office of the Ombudsman is directed to proceed with the investigation in connection with the
above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No.
G.R. No. 196231 January 28, 2014
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED BY
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE
AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY EXECUTIVE SECRETARY
FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY.
CARLITO D. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D. MONTALBAN,
JR., IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF MALACANANG LEGAL
AFFAIRS,Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4,
2012 Decision1which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and
Special Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of
Section 8(2) of Republic Act (RA) No. 6770.2
In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770
and ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on
him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary
proceedings against her, solely questioned the jurisdiction of the OP to subject her to disciplinary
proceedings. The Court affirmed the continuation of the proceedings against her after upholding
the constitutionality of Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-J-
460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with
payment of backwages corresponding to the period of suspension effective immediately, even as
the Office of the Ombudsman is directed to proceed with the investigation in connection with the
above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No.
ll-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions
tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance
with Section 8(2) of the Ombudsman Act of 1989.3
In view of the Courts ruling, the OP filed the present motion for reconsideration through the
Office of the Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of the petitions and the present motion for
reconsideration.
I. ANTECEDENTS
A. Gonzales petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police
Internal Affairs Service (PNP-IAS) and with the Manila City Prosecutors Office against Manila Police
District Senior Inspector Rolando Mendoza and four others (Mendoza, et al.) for robbery, grave
threat, robbery extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative
charge for grave misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO
against Mendoza, et al. based on the same allegations made by Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers
(MOLEO), directed the NAPOLCOM to turn over the records of Mendozas case to his office. The
Office of the Regional Director of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al.
filed their position papers with Gonzales, in compliance with his Order.7
Pending Gonzales action on Mendoza, et al.s case (on August 26, 2008), the Office of the City
Prosecutor of Manila City dismissed Kalaws complaint against Mendoza, et al. for his failure to
substantiate his allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the
dismissal without prejudice of the administrative case against Mendoza, et al. for Kalaws failure to
prosecute.9
On February 16, 2009, after preparing a draft decision on Mendoza, et al.s case, Gonzales
forwarded the entire records to the Office of then Ombudsman Merceditas Gutierrez for her
review.10 In his draft decision, Gonzales found Mendoza, et al. guilty of grave misconduct and
imposed on them the penalty of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsmans decision that approved Gonzales
recommendation on October 30, 2009. Mendoza, et al. filed a motion for reconsideration12 on
November 5, 2009, followed by a Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.s case records to
the Criminal Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14,
2009, the case was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for
review and recommendation.14
GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for
appropriate action on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales
office on April 27, 2010. Gonzales reviewed the draft and endorsed the order, together with the
case records, on May 6, 2010 for the final approval by the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board
as hostages. While the government exerted earnest attempts to peacefully resolve the hostage-
taking, it ended tragically, resulting in the deaths of Mendoza and several others on board the
hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the
Department of Interior and Local Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order No. 01-2010, creating an Incident
Investigation and Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable
for their "gross negligence and grave misconduct in handling the case against Mendoza."17 The IIRC
stated that the Ombudsman and Gonzales failure to promptly resolve Mendozas motion for
reconsideration, "without justification and despite repeated pleas" xxx "precipitated the desperate
resort to hostage-taking."18 The IIRC recommended the referral of its findings to the OP for further
determination of possible administrative offenses and for the initiation of the proper
administrative proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect
of Duty and/or Inefficiency in the Performance of Official Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the
service.21According to the OP, "the inordinate and unjustified delay in the resolution of
[Mendozas] Motion for Reconsideration [that spanned for nine (9) long months] xxx amounted
to gross neglect of duty" and "constituted a flagrant disregard of the Office of the Ombudsmans
own Rules of Procedure."22
c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a
Deputy Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises
administrative disciplinary jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April
27, 2010. On May 6, 2010, he completed his review of the draft, approved it, and transmitted it to
the Office of the Ombudsman for final approval. Since the draft order on Mendozas motion for
reconsideration had to undergo different levels of preparation, review and approval, the period it
took to resolve the motion could not be unjustified, since he himself acted on the draft order only
within nine (9) calendars days from his receipt of the order.23
B. Sulits petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several
others, before the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia
filed an Urgent Petition for Bail which the prosecution opposed. The Sandiganbayan denied
Garcia's urgent petition for bail on January 7, 2010, in view of the strength of the prosecutions
evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff,
entered into a plea bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i)
withdraw his plea of not guilty to the charge of plunder and enter a plea of guilty to the lesser
offense of indirect bribery; and (ii) withdraw his plea of not guilty to the charge of money
laundering and enter a guilty plea to the lesser offense of facilitating money laundering. In
exchange, he would convey to the government his ownership, rights and other interests over the
real and personal properties enumerated in the Agreement and the bank deposits alleged in the
information.25
The Sandiganbayan approved the Agreement on May 4, 201026 based on the parties submitted
Joint Motion for Approval.27
The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee
on Justice of the House of Representatives to conduct an investigation. After public hearings, the
Committee found that Sulit, her deputies and assistants committed culpable violations of the
Constitution and betrayal of public trust grounds for removal under Section 8(2) of RA No.
6770.28The Committee recommended to the President the dismissal from the service of Sulit and
the filing of appropriate charges against her deputies and assistants before the appropriate
government office.
Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit. 29 On March
24, 2011, Sulit filed her Written Explanation, questioning the OPs jurisdiction. 30 The question of
jurisdiction notwithstanding, the OP set the case for preliminary investigation on April 15, 2011,
prompting Sulit to seek relief from this Court.
II. COURTS RULING
On motion for reconsideration and further reflection, the Court votes to grant Gonzales petition
and to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Courts vote describes below, this conclusion does not
apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman
which does not include the Office of the Special Prosecutor under the Constitution. The prevailing
ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario
Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the petitioners
At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of
the Courts September 4, 2012 Decision; only the OP, through the OSG, moved for the
reconsideration of our ruling reinstating Gonzales.
This omission, however, poses no obstacle for the Courts review of its ruling on the whole case
since a serious constitutional question has been raised and is one of the underlying bases for the
validity or invalidity of the presidential action. If the President does not have any constitutional
authority to discipline a Deputy Ombudsman and/or a Special Prosecutor in the first place, then
any ruling on the legal correctness of the OPs decision on the merits will be an empty one.
In other words, since the validity of the OPs decision on the merits of the dismissal is inextricably
anchored on the final and correct ruling on the constitutional issue, the whole case including the
constitutional issue remains alive for the Courts consideration on motion for reconsideration.
b. The justiciability of the constitutional issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the
administrative disciplinary jurisdiction of the President (concurrently with that of the Ombudsman)
is a justiciable not a political question. A justiciable question is one which is inherently
susceptible of being decided on grounds recognized by law,31 as where the court finds that there
are constitutionally-imposed limits on the exercise of the powers conferred on a political branch of
the government.32
In resolving the petitions, we do not inquire into the wisdom of the Congress choice to grant
concurrent disciplinary authority to the President. Our inquiry is limited to whether such statutory
grant violates the Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core
constitutional principle of the independence of the Office of the Ombudsman as expressed in
Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA
No. 6770 grants where the Constitution confers none. When exercised authority is drawn from a
vacuum, more so when the authority runs counter to a core constitutional principle and
constitutional intents, the Court is duty-bound to intervene under the powers and duties granted
and imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.33
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD)
No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to
be known as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio,
any administrative act of any administrative agency, including any government-owned or
controlled corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was
given the exclusive authority to conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control the prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article
II35 and the standard of accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive
and effective measures against graft and corruption.
Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned
to be the "protector of the people" against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau. 36 This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to directly check and guard
against the ills, abuses and excesses of the bureaucracy. Pursuant to Section 13(8), Article XI of the
1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official 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 the Judiciary. [emphasis
ours, italics supplied]
As the Ombudsman is expected to be an "activist watchman,"37 the Court has upheld its actions,
although not squarely falling under the broad powers granted it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and consistent with the law
and the Constitution.38
The Ombudsmans broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit
to insulate the Office of the Ombudsman from the pressures and influence of officialdom and
partisan politics and from fear of external reprisal by making it an "independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies."39 It has powers, both constitutional and statutory, that are commensurate
with its daunting task of enforcing accountability of public officers. 40
b. "Independence" of constitutional bodies vis-a-vis the Ombudsmans independence
Under the Constitution, several constitutional bodies have been expressly labeled as
"independent."41The extent of the independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations in mind: first, the functions
performed or the powers involved in a given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of checks and balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these "independent" bodies be
insulated from political pressure to the extent that the absence of "independence" would result in
the impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the
interference that the President may bring and maintained that the independence and the flexibility
of the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to
our legal system.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions
and constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only the
express mandate of the Constitution but especially as regards the Supreme Court, of the
independence and separation of powers upon which the entire fabric of our constitutional system
is based.
The constitutional deliberations explain the Constitutional Commissions need for independence.
In the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service Commission, instead of one created by law, on
the premise that the effectivity of this body is dependent on its freedom from the tentacles of
politics.43 In a similar manner, the deliberations of the 1987 Constitution on the Commission on
Audit highlighted the developments in the past Constitutions geared towards insulating the
Commission on Audit from political pressure.44
Notably, the Constitution also created an "independent" Commission on Human Rights, although it
enjoys a lesser degree of independence since it is not granted fiscal autonomy in the manner fiscal
autonomy is granted to the constitutional commissions. The lack of fiscal autonomy
notwithstanding, the framers of the 1987 Constitution clearly expressed their desire to keep the
Commission independent from the executive branch and other political leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him
our concept, he can advise us on how to reconcile his position with ours. The position of the
committee is that we need a body that would be able to work and cooperate with the executive
because the Commissioner is right. Many of the services needed by this commission would need
not only the cooperation of the executive branch of the government but also of the judicial branch
of government. This is going to be a permanent constitutional commission over time. We also
want a commission to function even under the worst circumstance when the executive may not be
very cooperative. However, the question in our mind is: Can it still function during that time?
Hence, we are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this.
We realize the need for coordination and cooperation. We also would like to build in some
safeguards that it will not be rendered useless by an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go
to a country, the most credible organizations are independent human rights bodies. Very often
these are private organizations, many of which are prosecuted, such as those we find in many
countries in Latin America. In fact, what we are proposing is an independent body on human
rights, which would provide governments with credibility precisely because it is independent of the
present administration. Whatever it says on the human rights situation will be credible because it
is not subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in power yesterday are
in opposition today and those who are in power today may be in the opposition tomorrow.
Therefore, if we have a Commission on Human Rights that would investigate and make sure that
the rights of each one is protected, then we shall have a body that could stand up to any power, to
defend the rights of individuals against arrest, unfair trial, and so on.45
These deliberative considerations abundantly show that the independent constitutional
commissions have been consistently intended by the framers to be independent from executive
control or supervision or any form of political influence. At least insofar as these bodies are
concerned, jurisprudence is not scarce on how the "independence" granted to these bodies
prevents presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been
characterized under the Constitution as "independent," are not under the control of the President,
even if they discharge functions that are executive in nature. The Court declared as
unconstitutional the Presidents act of temporarily appointing the respondent in that case as
Acting Chairman of the Comelec "however well-meaning"47 it might have been.
In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the
commissioners of the independent Commission on Human Rights could not be placed under the
discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created
by the Constitution to be independent as the Commission on Human Rights and vested with
the delicate and vital functions of investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as remedial measures therefor, can truly
function with independence and effectiveness, when the tenure in office of its Chairman and
Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence for the Commission on Human Rights
has to be declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of
the Commission on Elections by Congress a "trampling" of the constitutional mandate of
independence of this body. Obviously, the mere review of rules places considerably less pressure
on a constitutional body than the Executives power to discipline and remove key officials of the
Office of the Ombudsman, yet the Court struck down the law as unconstitutional.
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior
but is similar in degree and kind to the independence similarly guaranteed by the Constitution to
the Constitutional Commissions since all these offices fill the political interstices of a republican
democracy that are crucial to its existence and proper functioning.50
c. Section 8(2) of RA No. 6770 vesting disciplinary authority in the President over the
Deputy Ombudsman violates the independence of the Office of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Courts expressed caution against presidential interference with
the constitutional commissions, on one hand, and those expressed by the framers of the 1987
Constitution, on the other, in protecting the independence of the Constitutional Commissions,
speak for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for
violating the independence of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal
by the President, whose own alter egos and officials in the Executive Department are subject to
the Ombudsmans disciplinary authority, cannot but seriously place at risk the independence of
the Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional
mandate, includes its key officials, all of them tasked to support the Ombudsman in carrying out
her mandate. Unfortunately, intrusion upon the constitutionally-granted independence is what
Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably
with the principle of checks and balances that the creation of an Ombudsman office seeks to
revitalize.
What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials who are not as independent as
she is, if only because they are subject to pressures and controls external to her Office. This need
for complete trust is true in an ideal setting and truer still in a young democracy like the Philippines
where graft and corruption is still a major problem for the government. For these reasons, Section
8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be
declared void.
The deliberations of the Constitutional Commission on the independence of the Ombudsman fully
support this position. Commissioner Florenz Regalado of the Constitutional Commission expressed
his apprehension that any form of presidential control over the Office of the Ombudsman would
diminish its independence.51 The following exchanges between Commissioners Blas Ople and
Christian Monsod further reveal the constitutional intent to keep the Office of the Ombudsman
independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment
xxx, by way of designating the office of the Ombudsman as a constitutional arm for good
government, efficiency of the public service and the integrity of the President of the Philippines,
instead of creating another agency in a kind of administrative limbo which would be accountable
to no one on the pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee and I believe it still is that it may
not contribute to the effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the tremendous influence of
the President, it was an ineffectual body and was reduced to the function of a special fiscal. The
whole purpose of our proposal is precisely to separate those functions and to produce a vehicle
that will give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot
accept the proposition.52
The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any
power over them, would result in an absurd situation wherein the Office of the Ombudsman is
given the duty to adjudicate on the integrity and competence of the very persons who can remove
or suspend its members. Equally relevant is the impression that would be given to the public if the
rule were otherwise. A complainant with a grievance against a high-ranking official of the
Executive, who appears to enjoy the Presidents favor, would be discouraged from approaching
the Ombudsman with his complaint; the complainants impression (even if misplaced), that the
Ombudsman would be susceptible to political pressure, cannot be avoided. To be sure, such an
impression would erode the constitutional intent of creating an Office of the Ombudsman as
champion of the people against corruption and bureaucracy.
d. The mutual-protection argument for crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of
an external check against the Deputy Ombudsman would result in mutual protection between the
Ombudsman and her Deputies.
While the preceding discussion already suffices to address this concern, it should be added that
this concern stands on shaky grounds since it ignores the existing checks and balances already in
place. On the one hand, the Ombudsmans Deputies cannot protect the Ombudsman because she
is subject to the impeachment power of Congress. On the other hand, the Ombudsmans 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 non-
political 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.
In these lights, the appeal, if any, of the mutual protection argument becomes distinctly
implausible. At the same time, the Court remains consistent with its established rulings - that the
independence granted to the Constitutional Commissions bars any undue interference from either
the Executive or Congress and is in full accord with constitutional intent.
e. Congress power determines the manner and causes for the removal of non-impeachable officers
is not a carte blanch authority
Under Section 2, Article XI of the 1987 Constitution,53 Congress is empowered to determine the
modes of removal from office of all public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll other public officers and
employees may be removed from office as provided by law, but not by impeachment" in the
second sentence of Section 2, Article XI is to prevent Congress from extending the more stringent
rule of "removal only by impeachment" to favored public officers.54 Understandably so,
impeachment is the most difficult and cumbersome mode of removing a public officer from office.
It is, by its nature, a sui generis politico-legal process55 that signals the need for a judicious and
careful handling as shown by the process required to initiate the proceeding;56 the one-year
limitation or bar for its initiation;57 the limited grounds for impeachment;58 the defined
instrumentality given the power to try impeachment cases;59 and the number of votes required for
a finding of guilt.60 All these argue against the extension of this removal mechanism beyond those
mentioned in the Constitution.
On the practical side, our nation has witnessed the complications and problems an impeachment
proceeding entails, thus justifying its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few, some of the negative practical
effects of impeachment are: it stalls legislative work; it is an expensive process in terms of the cost
of prosecution alone; and, more importantly, it is inherently divisive of the nation. 61 Thus, in a
cost-benefit analysis of adopting impeachment as a mechanism, limiting Congress power to
otherwise legislate on the matter is far more advantageous to the country.
It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should
be read. Contrary to the implied view of the minority, in no way can this provision be regarded as
blanket authority for Congress to provide for any ground of removal it deems fit. While the
manner and cause of removal are left to congressional determination, this must still be consistent
with constitutional guarantees and principles, namely: the right to procedural and substantive due
process; the constitutional guarantee of security of tenure; the principle of separation of powers;
and the principle of checks and balances.62
In short, the authority granted by the Constitution to Congress to provide for the manner and
cause of removal of all other public officers and employees does not mean that Congress can
ignore the basic principles and precepts established by the Constitution.
In the same manner, 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. In other words, while the
Constitution itself vested Congress with the power to determine the manner and cause of removal
of all non-impeachable officials, this power must be interpreted consistent with the core
constitutional principle of independence of the Office of the Ombudsman. Our observation in
Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."
While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy Ombudsman and Special Prosecutor since
these grounds are not intended to cover all kinds of official wrongdoing and plain errors of
judgment - this argument seriously overlooks the erosion of the independence of the Office of the
Ombudsman that it creates. The mere fact that a statutorily-created sword of Damocles hangs
over the Deputy Ombudsmans head, by itself, opens up all the channels for external pressures
and 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.
That a judicial remedy is available (to set aside dismissals that do not conform to the high standard
required in determining whether a Deputy Ombudsman committed an impeachable offense) and
that the Presidents power of removal is limited to specified grounds are dismally inadequate
when balanced with the constitutional principle of independence. The mere filing of an
administrative case against the Deputy Ombudsman and the Special Prosecutor before the OP can
already result in their suspension and can interrupt the performance of their functions, in violation
of Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a
Deputy Ombudsman or Special Prosecutor, if removable by the President, can be reduced to the
very same ineffective Office of the Ombudsman that the framers had foreseen and carefully tried
to avoid by making these offices independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its
decision finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust is patently erroneous. The OPs decision perfectly illustrates why the
requirement of impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered, even
at a minimum, a measure of protection of the independence of the Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the Presidents finding of gross negligence has no legal and factual leg to stand on
The OPs decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The
assailed Decision of the OP reads:
Upon consideration of the First Report, the evidence and allegations of respondent Deputy
Ombudsman himself, and other documentary evidence gathered, this Office finds that the
inordinate and unjustified delay in the resolution of Captain Mendozas Motion for
Reconsideration timely filed on 5 November 2009 xxx amounted to gross neglect of duty and/or
inefficiency in the performance of official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of
the Ombudsman,65 which was followed by a Supplement to the Motion for
Reconsideration;66
2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions and
make his recommendation for the appropriate action, received the records of the case;
3. April 5, 2010 GIPO Garcia released a draft order to be reviewed by his immediate
superior, Dir. Cecilio;68
4. April 27, 2010 Dir. Cecilio signed and forwarded to Gonzales this draft order;69
5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) Gonzales
endorsed the draft order for the final approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the slightest care, acting
or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences insofar as other persons may be
affected. In the case of public officials, there is gross negligence when a breach of duty is flagrant
and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales guilty, the OP72 relied on Section 8, Rule III
of Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should have acted on Mendozas Motion for
Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds Whenever allowable, a motion
for reconsideration or reinvestigation may only be entertained if filed within ten (10) days from
receipt of the decision or order by the party on the basis of any of the following grounds:
a) New evidence had been discovered which materially affects the order, directive or
decision;
b) Grave errors of facts or laws or serious irregularities have been committed prejudicial
to the interest of the movant.
Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer
shall resolve the same within five (5) days from the date of submission for resolution. [emphasis
and underscore ours]
Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales
since he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing
Officer tasked with the initial resolution of the motion. In Section 6 of Administrative Order No. 7
on the resolution of the case and submission of the proposed decision, the period for resolving the
case does not cover the period within which it should be reviewed:
Section 6. Rendition of decision. Not later than thirty (30) days after the case is declared
submitted for resolution, the Hearing Officer shall submit a proposed decision containing his
findings and recommendation for the approval of the Ombudsman. Said proposed decision shall
be reviewed by the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned. With
respect to low ranking public officials, the Deputy Ombudsman concerned shall be the approving
authority. Upon approval, copies thereof shall be served upon the parties and the head of the
office or agency of which the respondent is an official or employee for his information and
compliance with the appropriate directive contained therein. [italics and emphases supplied]
Thus, the OPs ruling that Gonzales had been grossly negligent for taking nine days, instead of five
days, to review a case was totally baseless.
c. No actionable failure to supervise subordinates
The OPs claims that Gonzales could have supervised his subordinates to promptly act on
Mendozas motion and apprised the Tanodbayan of the urgency of resolving the same are similarly
groundless.
The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases
that involve the potential loss of employment of many other public employees. We cannot
conclusively state, as the OP appears to suggest, that Mendozas case should have been prioritized
over other similar cases.
The Court has already taken judicial notice of the steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates against the OSGs observation that there was
"a grossly inordinate and inexcusable delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of cases" before, among
others, quasi-judicial bodies,75 like the Office of the Ombudsman, is itself a relative
concept.76 Thus, the delay, if any, must be measured in this objective constitutional sense.
Unfortunately, because of the very statutory grounds relied upon by the OP in dismissing
Gonzales, the political and, perhaps, "practical" considerations got the better of what is legal and
constitutional.
The facts do not show that Gonzales subordinates had in any way been grossly negligent in their
work. While GIPO Garcia reviewed the case and drafted the order for more than three months, it is
noteworthy that he had not drafted the initial decision and, therefore, had to review the case for
the first time.77 Even the Ombudsman herself could not be faulted for acting on a case within four
months, given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved: examination of the
records, research on the pertinent laws and jurisprudence, and exercise of legal judgment and
discretion. If this Court rules that these periods per se constitute gross neglect of duty, the
Ombudsmans constitutional mandate to prosecute all the erring officials of this country would be
subjected to an unreasonable and overwhelming constraint. Similarly, if the Court rules that these
periods per se constitute gross neglect of duty, then we must be prepared to reconcile this with
the established concept of the right of speedy disposition of cases something the Court may be
hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in Mendozas case by having the case
endorsed to the Office of the Ombudsman and by resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendozas case endorsed to his office lies within his mandate, even if it
were based merely on the request of the alleged victims father. The Constitution empowers the
Ombudsman and her Deputies to act promptly on complaints filed in any form or manner against
any public official or employee of the government.78 This provision is echoed by Section 13 of RA
No. 6770,79 and by Section 3, Rule III of Administrative Order No. 7, series of 1990, as amended.80
Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the
unverified affidavit of Kalaw. Based on the prosecution officers recommendations, the finding of
guilt on the part of Mendoza, et al. was based on their admissions as well. Mendoza, et al.
admitted that they had arrested Kalaw based on two traffic violations and allowed him to stay the
whole night until the following morning in the police precinct. The next morning, Kalaw was
allowed to leave the precinct despite his failure to show a valid license and based merely on his
promise to return with the proper documents.81 These admissions led Gonzales and his staff to
conclude that Mendoza, et al. irregularly acted in apprehending Kalaw, since the proper procedure
for the apprehension of traffic violators would be to give them a ticket and to file a case, when
appropriate.82
Lastly, we cannot deduce undue interest simply because Gonzales decision differs from the
decision of the PNP-IAS (which dismissed the complaint against Mendoza). To be sure, we cannot
tie the hands of any judicial or quasi-judicial body by ruling that it should always concur with the
decisions of other judicial or quasi-judicial bodies which may have also taken cognizance of the
case. To do so in the case of a Deputy Ombudsman would be repugnant to the independence that
our Constitution has specifically granted to this office and would nullify the very purpose for which
it was created.
e. Penalty of dismissal totally incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by
the OP necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be
held liable for our own misdeeds; we can be made to account only for lapses in our
responsibilities. It is notable that of all the officers, it was Gonzales who took the least time nine
days followed by Cecilio, who took 21 days; Garcia the writer of the draft took less than
four months, and the Ombudsman, less than four months until the kidnapping incident rendered
Mendozas motion moot.
In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does
not preclude the Ombudsman from looking into any other possible administrative liability of
Gonzales under existing Civil Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the Ombudsman. The existing
Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987
Constitution. While the composition of the independent Office of the Ombudsman under the 1987
Constitution does not textually include the Special Prosecutor, the weight of the foregoing
discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the
Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as
expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to create the Office of the
Ombudsman, known as the Tanodbayan, with investigative and prosecutorial powers. Accordingly,
on June 11, 1978, President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive
authority" to conduct preliminary investigation and to prosecute cases that are within the
jurisdiction of the Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of Justice the power
of control and supervision over the Special Prosecutor.88 Consistent with this grant of power, the
law also authorized the Secretary of Justice to appoint or detail to the Office of the CSP "any
officer or employee of Department of Justice or any Bureau or Office under the executive
supervision thereof" to assist the Office of the CSP.
In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away
from it by the Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the
Chief Special Prosecutor" under the Tanodbayans control,90 with the exclusive authority to
conduct preliminary investigation and prosecute all cases cognizable by the Sandiganbayan. Unlike
the earlier decree, the law also empowered the Tanodbayan to appoint Special Investigators and
subordinate personnel and/or to detail to the Office of the CSP any public officer or employees
who "shall be under the supervision and control of the Chief Special Prosecutor."91 In 1979, PD No.
1630 further amended the earlier decrees by transferring the powers previously vested in the
Special Prosecutor directly to the Tanodbayan himself.92
This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987
Constitution, an "independent Office of the Ombudsman" is created.93 The existing Tanodbayan is
made the Office of the Special Prosecutor, "who shall continue to function and exercise its powers
as now94 or hereafter may be provided by law."95
Other than the Ombudsmans Deputies, the Ombudsman shall appoint all other officials and
employees of the Office of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution
provides that the Ombudsman may exercise "such other powers or perform such functions or
duties as may be provided by law." Pursuant to this constitutional command, Congress enacted RA
No. 6770 to provide for the functional and structural organization of the Office of the Ombudsman
and the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the
Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but
the Office of the Special Prosecutor as well. In terms of appointment, the law gave the President
the authority to appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list of
nominees prepared by the Judicial and Bar Council. In case of vacancy in these positions, the law
requires that the vacancy be filled within three (3) months from occurrence. 97
The law also imposes on the Special Prosecutor the same qualifications it imposes on the
Ombudsman himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The requirement on disclosure102 is
imposed on the Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy
in the Office of the Ombudsman, the Overall Deputy cannot assume the role of Acting
Ombudsman; the President may designate any of the Deputies or the Special Prosecutor as Acting
Ombudsman.103 The power of the Ombudsman and his or her deputies to require other
government agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by
the Special Prosecutor.104
Given this legislative history, the present overall legal structure of the Office of the Ombudsman,
both under the 1987 Constitution and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority of the OP and yet expose the
Special Prosecutor to the same ills that a grant of independence to the Office of the Ombudsman
was designed for.
Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the
Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by granting the Ombudsman control and
supervision over that office.105 This power of control and supervision includes vesting the Office of
the Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem fit.
Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate but
one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which
include investigation and prosecution of officials in the Executive Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal
cases within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-
ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and
removal powers of the President, whose own alter egos and officials in the Executive Department
are subject to the prosecutorial authority of the Special Prosecutor, would seriously place the
independence of the Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of
the Office of the Ombudsman, the role it performs as an organic component of that Office
militates against a differential treatment between the Ombudsmans Deputies, on one hand, and
the Special Prosecutor himself, on the other. What is true for the Ombudsman must be equally
true, not only for her Deputies but, also for other lesser officials of that Office who act directly as
agents of the Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at
bottom, the Office of the Special Prosecutor is not a subordinate agency of the Office of the
Ombudsman and is, in fact, separate and distinct from the latter. In debunking that argument, the
Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate
that the intent of the framers of the 1987 Constitution was to place the Office of the Special
Prosecutor under the Office of the President. Xxx
In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to
be henceforth known as the Office of the Special Prosecutor, "shall continue to function and
exercise its powers as now or hereafter may be provided by law, except those conferred on the
Office of the Ombudsman created under this Constitution." The underscored phrase evidently
refers to the Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It
follows then that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers
under P.D. N0. 1630 or grant it other powers, except those powers conferred by the Constitution
on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that by express mandate of paragraph
8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by law," it is indubitable then that Congress has
the power to place the Office of the Special Prosecutor under the Office of the Ombudsman.107
Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at
par with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is
concerned, and must also enjoy the same grant of independence under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its
September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). 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.
However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of
RA No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special
Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled
to the independence the latter enjoys under the Constitution.

WHEREFORE, premises considered, the Court resolves to declare Section 8(2)

UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the power of the
Ombudsman to conduct an administrative investigation, if warranted, into the possible
administrative liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service
laws, rules and regulations.

SO ORDERED.