The antithesis of the law

If you are a public servant, and you receive an obviously wrong order, what will you do? Should you follow it? Some of us, or perhaps many of us, will say: That depends. If there is no real harm done, we will comply. To get along, go along. But what if the order was not only wrong, but also unconstitutional? That is to say, it is an act of subversion against the fundamental law that governs your conduct in public service. Following the order would inflict real harm—on the Constitution. If you believe that the founding law is not a mere piece of paper, that it is a living thing, a vital document that gives shape to our system and guarantees our freedoms and imposes limits on the exercise of power, what will you do?

Ombudsman Conchita Carpio Morales gives us the right answer. You refuse to comply with the order; you explain your reasoning clearly and forcefully; you stand your ground. When the Office of the President suspended Overall Deputy Ombudsman Melchor Arthur Carandang for 90 days, after charging him with administrative cases for supposedly disclosing President Duterte’s alleged bank records, Morales said she will “not enforce” the “patently unconstitutional” suspension.

Morales, a former justice of the Supreme Court with a formidable legal reputation, knows her law. The Office of the Ombudsman is a constitutional agency; by the very design of the Constitution, it is independent of the three branches of government. The executive branch has no business telling it what to do. But this is not only political theory. It is also the law of the land, confirmed by jurisprudence. In 2014, the Supreme Court ruled, in Gonzales III vs Office of the President, that the Chief Executive has no disciplinary authority over the Ombudsman’s deputies.

Thus: Morales’ ringing defense of both her office and the Constitution. She said “the Ombudsman will … not allow herself to betray her sworn duty to uphold the Constitution by recognizing what is patently unconstitutional as ordained by the Supreme Court.” She added: “The Ombudsman cannot … seriously place at risk the independence of the very office [that] she has pledged to protect on the strength of the constitutional guarantees which the high court has upheld.”

It is clear that the law is on the Ombudsman’s side. Why would the President, acting through his Executive Secretary, deliberately issue an order against the law? We can think of at least two reasons.

First, Carandang stands accused of divulging classified information about the President’s bank accounts—which were proven to exist in 2016 through the simple device of deposit slips. The suspension order does not offer any evidence that it was indeed Carandang who was the source of the bank documents. In fact, he has strenuously denied this. But to the President’s handlers in Malacañang, Carandang’s name has been linked to the accounts and that is enough.

Second, Malacañang believes it will win any case filed over the suspension order at the Supreme Court. Not only was the 2014 decision a close one, but the Palace can also now rely on a simple majority of justices on almost any legal controversy. In fact, presidential spokesperson Harry Roque, himself a lawyer, said the Palace was “confident” that the Court would reverse itself on the issue.

This is disturbing conduct from a lawyer-led administration.

Former solicitor general Florin Hilbay had the clearest explanation why: “True, the Supreme Court can reverse its 2014 decision. But that is also beside the point. No public official, not even the President, can adopt a ‘violate-the-law-now, seek-reversal-later’ attitude when it comes to decisions of the SC. That attitude is incompatible with his constitutional obligation to enforce the law; it is the anti-thesis of the rule of law.”

Thus, as both Morales and Hilbay said, the legal issue involves not only the independence of the Ombudsman but also the authority of the Court. The order, Morales said, “was not an inadvertent error but a clear affront to the Supreme Court and an impairment of the constitutionally enshrined independence of the Office of the Ombudsman.”

But the real issue is something else: The Palace order confirms that those bank accounts do exist.