SINGAPORE — Deputy Ombudsman Melchor Arthur Carandang’s preventive suspension is genius. It is indubitably not legal. But it could be made legal.
In April 2010, Senior Insp. Rolando Mendoza held a bus of Hong Kong tourists at gunpoint. He asked to speak to then Deputy Ombudsman Emilio Gonzales III, before whom his case was pending.
He cursed him for extorting P150,000. He shot eight hostages.
In March 2011, President Benigno Aquino III removed Gonzales for “inordinate and unjustified delay.” Mendoza’s case was pending for nine months. (Ombudsman Merceditas Gutierrez resigned before her impeachment trial, replaced by just retired Justice Conchita Carpio Morales.)
Gonzales challenged Section 8(2) of the Ombudsman Act of 1989 allowing the president to remove a deputy ombudsman.
The Supreme Court’s 2012 Gonzales decision split 7-7, upholding Section 8(2) by default (but ruled 14-0 Aquino had no “substantial basis” to remove Gonzales).
The Constitution’s text and structure can collide with great intellectual beauty.
Renowned textualist Senior Associate Justice Antonio Carpio invoked the Constitution’s Article XI, Section 2: removal of all nonimpeachable officials is prescribed by law.
Since the deputy ombudsman is not impeachable and Congress passed Section 8(2), the high court must enforce it and not question its underlying policy.
Justice Arturo Brion countered, structurally, that the Ombudsman cannot be independent if her deputies can be removed by the president. When the Constitution was drafted, authors such as Christian Monsod emphasized insulating Ombudsman personnel from the president, given Marcos-era abuses.
On reconsideration in 2014, the high court revoted 8-7 that Section 8(2) is unconstitutional. Brion’s philosophy won by one vote.
In 2017, Carandang announced that bank accounts of President Duterte’s family showed tens of millions of pesos in transfers. He never elaborated.
The President never waived bank secrecy. The Anti-Money Laundering Council denied disclosing bank records.
Carandang was suspended for spreading false information. This time, Morales cited Gonzales and ignored the president’s order.
A new Supreme Court decision may reverse doctrine. But the Constitution requires an “actual case,” a real conflict to force the high court to rule again.
All bluster aside, this is why Carandang’s suspension is genius.
It is clearly illegal. But if one is ready to bear the consequences, this is in fact how to force the Supreme Court to revote Section 8(2), setting aside whether an unconstitutional provision still exists.
Remember, the Constitution itself does not explicitly say who may remove a deputy ombudsman.
Six from Team Carpio (including Chief Justice Maria Lourdes Sereno) and five from Team Brion are still on the bench. If two new justices — Francis Jardeleza, Benjamin Caguioa, Samuel Martires, Noel Tijam — join Team Carpio, Section 8(2) could be legal again.
But I prefer a third theory: stability.
At some point, it is more important that a rule is clear and agreed than what the actual rule is.
Beyond politics, no dramatic change in our national values merits a revote after only four years. It is prudent to respect Gonzales given our many other legal dilemmas from martial law to Charter change. Worse, the perceived conflict of interest — precisely what Gonzales cautioned — is so great the President could end up wrong even if he is right.
Morales recounted to me how she indignantly became Ombudsman after a predecessor told her she was too old for the job. But she is far from too old to inspire millions of idealistic young Filipinos, including dozens of new Ombudsman lawyers. When our most beloved lola retires this July, a woke new generation honors her 47 years in government service.
Law ultimately turns on the conviction of the people who live by it.
The real question is: Can Morales’ adoring fans ever turn from crucial national issues, such as Isabelle Duterte’s debut, James Deakin’s video with Bongbong Marcos and whether Mayon volcano is in Naga, to ponder trivialities such as institutional independence and Morales’ legacy?
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Welcome to the Club, Senator Faeldon