Gutierrez’s resignation is void, not valid

FIRST, I would like to say that Merceditas Gutierrez deserves praise for resigning as ombudsman, although she should have done it much earlier. She saved everybody, herself most of all, the pain, time and expense of a long, tedious and useless impeachment trial. It also saved the people time that could have been wasted watching on television a “moro-moro” that is totally unnecessary. And it denied politicians an opportunity to grandstand and the senators to wear those silly togas. Togas do not make their wearers any wiser. Senate President Juan Ponce Enrile would still be a competent lawyer while Senators Lito Lapid and Bong Revilla would still be ignorant of the finer points of the law whether they are wearing silly togas or ordinary clothes. (The same is true with Supreme Court justices.)

On the other hand, I would like to add that her resignation as ombudsman is not valid, according to Ateneo law professor Alan Paguia, to which I agree. That resignation, said Paguia, is void ab initio.

How can she relinquish an office she no longer holds? Her term had expired in 2009, he said.

“Her resignation, like her impeachment, is a cover-up for thousands of illegal indictments and acquittals she has signed without jurisdiction after the automatic expiration of her inherited constitutional term,” Paguia said.

“In other words, in spite of her dubious resignation, she still has to account for such acts of bad faith, not only to the sovereign Filipino people but also to the individual victims of her sham indictments and acquittals.

“Those who were illegally indicted would do well to move to have their cases against them dismissed. Those who were illegally acquitted should be re-investigated for possible indictment. The common ground for such courses of action would be lack of jurisdiction on the part of Gutierrez.”

Why is Merci’s resignation void? Why was she no longer ombudsman since 2009? Here’s why:

The Constitution is very clear on the term of the ombudsman: seven years without reappointment. Simeon Marcelo was appointed ombudsman in 2002. His original term would have expired on Nov. 23, 2009. But Marcelo resigned in 2005 and Merci was appointed to replace him. Therefore, Merci could serve only the unexpired term of Marcelo, which is until 2009.

Merci claims, on the other hand, that she was appointed by President Gloria Macapagal-Arroyo to a new seven-year term, or until 2012. However, even a presidential signature cannot change the term mandated by the Constitution, which has been ratified by the people. So Merci’s term as ombudsman automatically expired in 2009 by operation of law. No one is above the law. Not the ombudsman, not even the President. The Constitution says the ombudsman’s term is seven years. So the term of the latest ombudsman is from 2002 to 2009—exactly seven years. Marcelo served the first half; Merci served the second half. The full term expired in 2009. Merci ceased to be ombudsman by that time.

But Merci continued to act as though she was still the ombudsman until she “resigned” a few days ago. During that time, she continued to issue orders, indict some public officials and acquit others. Those orders, indictments and acquittals are void, according to Paguia, as though they were never issued. Because she issued them when she no longer had any jurisdiction as ombudsman, her term having already expired since 2009.

Doesn’t that fact—that she ceased to be ombudsman beginning 2009—need a judicial declaration?

“That would be convenient,” answered Paguia, “but it is not necessary. The law inexorably takes its course without interference from anything or anybody. It doesn’t need anybody to say that ‘the term is over’ for the term to be really over. When the date for the expiration of the term arrives, the term expires automatically. The term is over, whether or nor you like it. Nobody, not even the President, can change the term provided by the Constitution. Only the sovereign people can do that in a plebiscite.”

Noynoy could have appointed a new ombudsman as soon as he was sworn in as President in 2010, the position having been vacant already, and allowed Merci to question her replacement in the Supreme Court.

The trouble is the President’s legal advisers are not giving him the correct legal advice: not the justice secretary, not the solicitor general, not the presidential legal adviser. Not being a lawyer himself, the President doesn’t know these things.

Now I read in the newspapers that Justice Secretary Leila de Lima is giving the President the wrong advice. She said the new ombudsman should be appointed to a new seven-year term. Wrong.

The term of the new ombudsman is from 2009 to 2016. Merci illegally served two years; the new appointee to the position has five years left. President Aquino must follow our Constitution. If he follows the advice of Secretary De Lima, he, the whole Philippine government, would be the laughingstock of the world legal community.

Maybe there is an oversight here, maybe the legal advisers forgot to study their law more meticulously and was not able to advice the President better. But here is a chance to correct the series of blunders committed earlier and stop the world from laughing at us.

I suggest the President consult other constitutional experts and order Secretary De Lima to study the issue further so that the wrongs committed in 2005 (when Merci was appointed to a new seven-year term) and in 2009 (when she did not relinquish the position despite the expiration of the term as mandated by the Constitution) can be set aright.