The Ombudsman’s awesome powers

The current legal entanglement of an elected senator over alleged misuse of his pork barrel when he was a congressman brings the awesome powers of the Ombudsman to the fore. The Ombudsman exercises disciplinary and investigatory powers, which are derived from the 1987 Constitution and Republic Act No. 6770, or the Ombudsman Act of 1989.

Section 13 (3) of Article XI of the Constitution empowers the Ombudsman to “direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.” The constitutional disciplinary authority of the Ombudsman is merely recommendatory. On the other hand, Section 21 of RA 6770 vests the Ombudsman with “disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or -controlled corporations and their subsidiaries, except officials who may be removed only by impeachment or over members of Congress, and the Judiciary.”  This statutory disciplinary authority of the Ombudsman is “executory.”

Due to the supremacy of the Constitution over laws or statutes, the limitation on the disciplinary powers of the Ombudsman under Section 21 of RA 6770 cannot diminish the disciplinary powers conferred by the Constitution. In the same vein, RA 6770 cannot expand the constitutional disciplinary powers of the Ombudsman to make it “executory” instead of being merely recommendatory.

Thus, the Ombudsman can investigate a sitting member of Congress and recommend his or her removal to the Speaker or the Senate President. However, neither the Speaker nor the Senate President exercises disciplinary authority over his colleagues. That power is vested by the chamber rules in the ethics committee.

Their recourse would be to endorse the recommendation for disciplinary measure to the ethics committee, which will then act on the Ombudsman referral on the basis of its own rules and independent determination of facts and issues. It is doubtful if an ethics committee will ever act on a complaint or referral involving inappropriate conduct of a congressperson or senator outside of his or her current tenure.

Section 13 (1) of Article XI of the 1987 Constitution vests the Ombudsman with the power to “investigate any act or omission of any public official, employee, office or agency, xxx.”  This constitutional power to investigate does not include the power to prosecute.  The Ombudsman’s prosecutorial powers are conferred by Section 15 of RA 6770, which vests the Ombudsman the power to “investigate and prosecute any act or omission of any public official, employee, xxx.” This power to investigate and prosecute is constricted by Section 22 of RA 6770, which limits the investigation of impeachable officials only for the purpose of filing a complaint for impeachment. Since the members of Congress are not impeachable officials, they can be investigated and prosecuted by the Ombudsman during their tenure.

The disciplinary power of the Ombudsman generates an “administrative case,” while the prosecutorial power of the Ombudsman generates a “criminal case.” To initiate prosecution at the Sandiganbayan, the Ombudsman must make a finding of probable cause. It requires more than “substantial evidence.”  To sustain a conviction in an administrative case, substantial evidence is sufficient. The Ombudsman has to make a finding of substantial evidence in an administrative case if she finds probable cause to indict a respondent at the Sandiganbayan.

Otherwise, the accused can expediently argue that the absence of substantial evidence to support a conviction in an administrative case negates the presence of probable cause for criminal prosecution.

Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student of San Beda College Graduate School of Law in Manila.