Episode 9: You’re Fired!

In the latest of capers of the Office of the Ombudsman, they have openly defied the order of the President, firing Deputy Ombudsman Emilio Gonzales III based on a substantial finding of serious and inexcusable negligence and of extortion. This refers of course to Gonzales’ involvement in the Luneta Hostage Incident, where former Senior Insp. Rolando Mendoza was gunned down by the police after he hijacked a tourist bus and opened fire on his hostages. The charge of serious and inexcusable negligence stems from the fact that Gonzales allowed Mendoza’s motion for reconsideration to languish for nine months, when by the rules of the Office of the Ombudsman itself, such a motion must have been resolved within 5 days.

But more interesting was the finding that there was substantial evidence to support an allegation that Gonzales tried to extort P150k from Mendoza. Mendoza claimed this while berating Gonzales over the phone during the hostage negotiations. This was seen by many, including the IIRC that investigated the incident, as the turning point in the hostage situation. Prior to this, Mendoza was calm and even cheerful to his hostages; after the phone call, Mendoza was extremely agitated. The rest is history.

In relation to this, Gonzales was also said to have encroached on the jurisdiction of the PNP’s Internal Affairs Service. Prior to the Ombudsman taking up the Mendoza’s case, the case was already dismissed by the PNP IAS and by the Manila Prosecutor’s Office due to the failure of his accuser, Christian Kalaw, to appear in the proceedings and corroborate his accusations.

Sack a guy for being incompetently and negligently lazy, for extorting money from defendants for a bogus case, and for grabbing a case from another agency’s jurisdiction? Sounds good to me!

The Ombudsman now claims that they will not execute the order of the President, claiming only they have disciplinary authority over all appointive officials of the government. Going further, they also said that they have already exonerated Deputy Gonzales of any wrongdoing.

The Office of the Ombudsman may do well to recall Villaluz v. Zaldivar and Ang-Angco v. Castillo, where the Court ruled that the power to appoint officials includes the power to fire them. The reasoning is simple. Appointed officials serve at the pleasure of the President. When these officials are no longer performing satisfactorily, then the President must be allowed authority to replace them with someone who may be able to perform better. That authority is made clear in the Ombudsman Act of 1988, as it clearly provides the President with the authority to remove Deputies and Special Prosecutors. Sec. 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.”

Another important doctrine from the Villaluz case is that such investigations done by the President in support of the act of dismissal can be done motu proprio, that is, the Office of the President itself can initiate such proceedings without the need of a complainant, if the gravity of the case warrants. A Deputy Ombudsman, sitting on cases, extorting money from defendants for a favorable ruling, and encroaching on the jurisdiction of another quasi-judicial body that had already gained jurisdiction of the case? I’d say that counts as a grave case.

Assistant Ombudsman Jose de Jesus claims that under the law, the Office of the Ombudsman has disciplinary authority over all appointive officials of the government, except over officials who may be removed only by impeachment and over members of Congress or the judiciary. This is to justify their claim that the Ombudsman’s own finding that Gonzales committed no wrongdoing in relation to the Mendoza case is “final and closed.”

While the statement on disciplinary authority is an accurate literal reading of Sec. 21 of the Ombudsman Act, it must be read in harmony with Sec. 8 (2). In other words, the jurisdiction that De Jesus asserts must be understood as neither exclusive nor exhaustive. The provision giving the President the power and authority to remove Deputies and Special Prosecutors after due process is clear.

(Curiously enough, one of these exceptions listed in another part of the law, Sec. 20 (1) is when the complainant has an adequate remedy in another judicial or quasi-judicial body (Sec. 20 (1), Ombudsman Act), which clearly the Internal Affairs Service of the PNP provided complainant Kalaw and which the Kalaws disrespected by absenting themselves from the administrative proceedings against Mendoza that they themselves started. Yet the Ombudsman took jurisdiction when the Kalaws suddenly filed the same complaint on the same evidence with their office. Spell “f-o-r-u-m s-h-o-p-p-i-n-g.”)

And now they say that the order is not final and executory, as it can be appealed to the Court of Appeals or the Supreme Court. They could try, but I doubt if the Court would side on them in this one, especially given the jurisprudence. At best, they can try to file a petition for review on certiorari (meaning they’ll claim that the Office of the President committed grave abuse of discretion when they fired Gonzales), but really, when that discretion is provided for by law, and if due process was followed, how can a co-equal branch of government question the wisdom of the acts of another?

The Office of the Ombudsman is trying its damnest to fight this war against President Aquino, but this is one battle they will not win.

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