SC’s Ombudsman decision in 2014 directed vs Aquino’s abuse of power

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BEFORE the Yellow Cultists jump up and down shrieking indignation that President Duterte’s move to suspend and remove from his post Deputy Ombudsman Arthur Carandang is proof of his drift to dictatorship and violates the Constitution, they better do some research first.

They’ll discover the embarrassing fact that what made the Supreme Court rule in a split decision in 2014 that the President has no power to suspend or dismiss a Deputy Ombudsman was its anger over then President Aquino’s blatant abuse of power, even made in a petty manner.

Aquino in 2010 suspended and later dismissed Emilio Gonzales 3rd, the deputy ombudsman for the military and police. For what?

Officially for “neglect of duty” for not acting for several months on an appeal of one police officer, Rolando Mendoza, to reverse his dismissal from the service for grave misconduct, including robbery and extortion.

And who was Rolando Mendoza?

He was the deranged ex-policeman who took hostage a bus full of mostly Hong Kong tourists in August 2010, just a few weeks after Aquino took office Aquino and his officials utterly mishandled the crisis, which resulted in Mendoza’s killing eight hostages and seriously injuring more than a dozen more.

Aquino’s scapegoat
Aquino was livid because of the universal condemnation of his new government’s ineptness—even captured on TV—and needed a scapegoat. Remembering that Mendoza claimed in a radio interview that all he was demanding was for his case to be dismissed, Aquino found his scapegoat: deputy ombudsman Gonzales on whose desk the killer’s appeal had landed. The deputy ombudsman was first suspended for a year, and then dismissed for various charges made by Aquino.

Gonzales appealed his case with the Supreme Court. Aquino thought that his removal of Chief Justice Renato Corona from his post in May 2012 would strike fear in the hearts the high court’s justices, and that his handpicked new Chief Justice Maria Lourdes Sereno could lead it to where he wanted to.

The court indeed ruled that the President had the constitutional power to remove a deputy ombudsman. However, it decided that Aquino’s removal of Gonzales was unwarranted since the President had not provided enough evidence to prove that the deputy ombudsman had “betrayed the public trust,” one of the grounds for removal. The court ordered Gonzales reinstated with payment of back wages.

Aquino probably jumped up and down seething in anger at the Court. He asked it to reverse its decision. He most likely hoped that the justice he appointed on November 2012, Marvic Leonen, would cast the crucial vote to tip the balance in his favor. Indeed, the 55-year-old Leonen, an academic for his entire legal career, wouldn’t have been appointed to the court in a million years if not as a reward from Aquino for having served the President him well in drafting the Bangsamoro Basic Law.

For some reason, for which I myself am shocked, the yellow-blooded Leonen voted to rule unconstitutional Aquino’s dismissal of the deputy ombudsman.

Eight against seven
Instead of getting what he wanted from the court, Aquino got a worse decision — for him — than the first. The majority, or eight justices,—seven justices who voted against Aquino in the first decision in 2012 plus the new justice Leonen — ruled that the President does not have any power over the deputy ombudsman.

With Duterte’s move against Carandang, handpicked by Aquino for the post in 2013, the court will have to rule again on this major constitutional issue. Its spokesman Theodore Te’s claim that it can’t is pure rubbish. The current Supreme Court won’t be the Supreme Court if it cannot reverse a decision by a previous court.

The numbers show that Duterte will likely win the case. Ironically, the remaining six justices who voted to defend Aquino and upheld his authority over the deputy ombudsman —among them Chief Justice Maria Lourdes Sereno and Senior Associate Justice Antonio Carpio—will this time be defending Duterte’s move against Carandang, a Yellow Cultist.

They can’t reverse 180-degree their arguments in their 2012 and 2014 votes, unless they want to be branded as patently partisan. Duterte’s appointees, Martires and Tijam, are most likely to vote the president’s move as constitutional

That totals eight, a majority voting for Duterte.

Of the justices who voted against Aquino in 2014, that his power to discipline a deputy ombudsman was unconstitutional, only five remain, as three have already retired: Arturo Brion, Roberto Abad and Jose Portugal Perez.

Aquino’s appointees Jardeleza and Caguioa might even vote in favor of Duterte, to demonstrate their independence. If that happens, and I bet it will, those upholding Duterte’s move will total 10, against only five dissenting.

The Luneta hostage crisis in August 2010 that Aquino bungled, resulting in eight Hong Kong tourists killed. He blamed it on the Deputy Ombudsman whom he fired, which led to the Supreme Court ruling that Duterte is now trying to put right.

Luneta crisis
If not for Aquino’s glaring abuse of power in going after his scapegoat, Gonzales, for his bungling of the Luneta hostage crisis, the President’s power is clearly constitutional, as may be gleaned from just two logical steps:

1. The Constitution’s Article XI, Dection 2 provides: “The President, the Vice President, the members of the Supreme Court, the members of the constitutional commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.”

2. The Ombudsman Law (RA 6770, passed two decades ago and never challenged except in the Aquino case) with respect to the deputies and other officials of the Ombudsman, is that law referred to by the Constitution. Its Section 8 (2) provides: “A Deputy, or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process.”

The justices who claimed this provision of the Ombudsman Law is unconstitutional argued that this would threaten the Ombudsman’s independence. But as one of the framers of the Constitution framed the issue using the phrase of the ancient Roman poet Juvenal: “Who will guard the guards themselves?”

The Ombudsman is one of the most powerful officials in the country, so powerful he or she can remove from office any elected official (except for the President and the Vice President) even a Senator, elected by hundreds of thousands and even millions of voters, by a process its office undertakes, without supervision by a regular court of justice.

The Constitution given the Ombudsman’s Office such a power as it is the most powerful guardian against corruption.

But Deputy Ombudsman Carandang used his power as a partisan political weapon, and claimed last year that he and Ombudsman Conchita Carpio-Morales have “a copy of bank records from the Anti-Money Laundering Council (AMLC) of President Duterte and his family and that these contained P1 billion.”*

He has not denied that he made these statements. The AMLC has denied ever giving him such records.

How could the No. 2 official in a crucial agency tasked to rid the nation of corruption so brazenly lie that the AMLC gave him confidential information that painted the Chief Executive of the country as a big grafter? How could the head of the agency itself, Ombudsman Conchita Carpio-Morales, back up what is an utter lie?

Whether he is lying or he stole the AMLC’s records, both are crimes we cannot allow a deputy of the Ombudsman to commit and continue unpunished.

Ombudsman Morales has refused to discipline her deputy. The President of the Republic wouldn’t be doing his sworn duty if he doesn’t move to guard against this rogue guard.

*Aghast at the deputy ombudsman’s lies and politicizing of his post, I wrote two consecutive columns on his crime: “Liar Deputy Ombudsman Carandang must be fired, and criminally charged,” October 2, 2017 and “Deputy Ombudsman Carandang’s lies upon lies,” October 4, 2017.