LAST FRIDAY, May 6, the resignation of Merceditas Gutierrez as ombudsman took effect. After she made her announcement, the reactions were varied. The Senate president felt relieved for various reasons. An impeachment trial would take up much of the Senate’s time and money and at the expense of other important matters the Senate has to attend to. Some of those who had pushed for her impeachment were disappointed but for different reasons. Some thought that she should have stayed on to fight her battle in the Senate while others missed the opportunity of gaining political capital from the drama of an impeachment trial. Some also saw humor in the fact that the senators would not be able to wear the robes they had ordered for the occasion. (I recall that on the first day of the Estrada impeachment trial the senators wore robes. Realizing perhaps that the spectacle would border on the ridiculous, they soon enough gave up the idea.)
Now that she has resigned, what else can be done? The clear law on the subject is that “judgment in cases of impeachment shall not extend further than the removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment, according to law.” Since, however, there was no impeachment trial and Ms Gutierrez has chosen to be just another citizen, with greater reason, whatever it was that she was charged with in the impeachment case can be brought up in a criminal or administrative case.
I cannot pretend to know what her reasons were for deciding to avoid impeachment through resignation and face prosecution instead. I can see some good reason in favor of her choice. For one, in a criminal prosecution proof beyond reasonable doubt is needed for conviction. In an impeachment trial, the quantum of proof needed for conviction is not very clear and can be colored very much by political consideration. For another, live television coverage is not allowed in criminal prosecution; hence she would not be a victim of political grandstanding which can take place in an impeachment trial.
An interesting question, however, is whether the impeachment trial can still proceed even after her resignation. There is opinion to the effect that, since the possible penalties in an impeachment are removal and disqualification, impeachment can still proceed for the purpose of the penalty of disqualification. I recall that there is American state jurisprudence to this effect; but there are good reasons for not following this opinion for our purposes. For one, an essential requisite for a person to be made subject to impeachment is that he or she must be an impeachable officer under the Constitution. So strict is this requirement that the Court has ruled that Congress may not by law add any more to the constitutional list of impeachable officers. Having already resigned from a constitutionally impeachable office, Ms Gutierrez is no longer an impeachable officer. Another reason is that disqualification can also be achieved through criminal or administrative process. Trying to obtain a disqualification is not worth all the trouble and expense that it will entail for Congress. (Allowing an opportunity for the senators to wear their red robes is not reason enough for the trouble!)
Without wishing to make any judgment on the performance of Ms Gutierrez or of past ombudsmen, I suggest that the recent experience of trying to impeach an ombudsman should be a lesson for those who have the responsibility of choosing who the next ombudsman will be. The responsibility belongs to the Judicial and Bar Council and, of course, to the President. They should reread what the qualities should be of the person to whom the responsibility is to be given. I suggest a reading of the deliberations of the Constitutional Commission on the office of Ombudsman.
Beyond the academic and experience qualifications required, the most important is what Section 8, Article XI calls “recognized probity and independence.” When the sponsor of this provision in the Constitutional Commission was describing what the qualities of the ombudsman should be, he practically said that he should not only be a saint but should also be known as such. He should be one who can command the confidence and respect of everyone. Let’s hope the JBC and the President will give us one such.