Pressure on Duterte SC appointees

A standoff looms over the order of the Office of the President suspending Overall Deputy Ombudsman Arthur Carandang for allegedly disclosing false information about the bank accounts of President Duterte and his family.

Ombudsman Conchita Carpio Morales has served notice that she would not implement the order. She cited as legal basis for her refusal the 2014 decision of the Supreme Court declaring unconstitutional a provision in the Ombudsman Act that authorizes the president to remove a deputy ombudsman on the same grounds that justify the removal of the Ombudsman.

Although Chief Presidential Legal Counsel Salvador Panelo does not dispute the effectivity of this decision, he said the order enjoys the presumption of regularity and should be obeyed by Carandang.

Based on this premise, Panelo wants Carandang to comply with the order first and then challenge its validity at the high court. He said the decision, which was decided on an 8-7 vote, may be reversed because some of the justices who voted to nullify the president’s disciplinary power over a deputy ombudsman have already retired.

It’s doubtful, however, if Carandang or Morales would take the initiative to give the high court a chance to take a second look at the decision. No lawyer in his or her right mind would file an action that may result in the setting aside or modification of a decision in his or her favor that is already final and executory.

Perhaps, the only way Malacañang can force them to do that is to send police officers to the Office of the Ombudsman to physically bar Carandang from reporting for work. If that happens, the image of the Philippines in the international legal community would drop to its lowest depth.

If at all, regardless of the manner this issue may reach the high court, Panelo’s expression of “optimism” about a turnaround on the decision assumes that the seven dissenting justices will stand pat on their position, and that at least one of the four justices who replaced the justices who voted in favor will join them.

Although it is reasonable to expect the seven justices to maintain their stand, a lot of things have happened in the political and judicial arenas between 2014 and today that may influence some of them to have a change of mind.

For one, Chief Justice Maria Lourdes Sereno, who is one of the dissenting justices, may not be inclined to give the president a pass in disciplining a deputy ombudsman in the light of the impeachment moves against her by President Duterte’s political allies.

It will be easy for Sereno to justify a U-turn on this issue based on circumstances that have recently arisen, which is an excuse the high court has cited in the past to explain its setting aside or modification of earlier decisions. Besides, as the saying goes, only fools do not change their mind.

Thus, Panelo’s expectation on the administration’s ability to secure a reversal of the 2014 decision would depend primarily on the four justices appointed by President Duterte: Associate Justices Samuel Martirez, Noel Tijam, Andres Reyes Jr. and Alexander Gesmundo.

For this purpose, the administration should get at least two, if not all, of them to vote in favor of overturning that decision. Sadly, because of the brouhaha over this issue, the four justices have found themselves in a damned-if-you-and-damned-if-you-don’t situation.

If they vote to reverse the decision, their action could be interpreted as kowtowing to the President or an expression of gratitude to him for their appointment; on the other hand, if they vote to maintain its validity, their endorsement may be looked at as an effort to show their independence from the appointing power regardless of their true stand on the issue.

Ahead of the expected involvement of the high court in Carandang’s suspension, there are already concerns about extralegal or extraneous considerations influencing its resolution.

This could have been avoided had some of the President’s legal advisers been less voluble in commenting on legal issues that have strong political color.

Raul J. Palabrica (rpalabrica@inquirer.com.ph) writes a weekly column in the Business section of the Inquirer.