(Privilege Speech of Rep. Edcel C. Lagman of the First District of Albay)
Mr. Presiding Officer and Distinguished Colleagues:
Deputy Speaker Gwendolyn Garcia in a privilege speech last Valentine’s Day, scored repeatedly this Representation for being critical of the position of Speaker Pantaleon Alvarez of not enforcing her dismissal as ordered by the Ombudsman on the grounds that (1) he is going to determine the validity of the Ombudsman decision; and (2) only the House of Representatives can discipline or dismiss its Members.
Since Deputy Speaker Garcia refused to be interpellated, I reserved my right last Wednesday to deliver today a rebuttal in the nature of a personal and collective privilege.
The speech of Deputy Speaker Garcia gives me the opportunity to further expound on my position against the common stance of Speaker Alvarez and Deputy Speaker Garcia.
Allow me to cite a few antecedents. Towards the end of the regular weekly media briefing of the Magnificent 7 opposition group last Tuesday, a question sought the reaction of the group to the Speaker’s announcement that he would not implement the Ombudsman’s decision dismissing Representative Garcia for grave misconduct with perpetual disqualification for re-employment in the government service.
My reaction consisted of two brief points without mentioning the name of Deputy Speaker Garcia or insisting that she should be removed, contrary to what she alleged in her speech. I said: (1) Under the Rules of Procedure of the Office of the Ombudsman, its decision is immediately executory even when the respondent has a pending motion for reconsideration or appeal; and (2) the Constitution does not exempt Members of the Congress and Judiciary from the investigatory jurisdiction of the Ombudsman, even as the power of the House to discipline or expel its Members is not exclusive. It is in this context that I asked, “What Constitution is Speaker Alvarez referring to?”
To my knowledge, the SunStar Cebu was the only newspaper which published my comments. I do not know the political or partisan inclination of SunStar Cebu.
I have nothing personal against Deputy Speaker Gwen Garcia. What we are discussing are purely legal and ethical questions.
Let me now go to the pertinent provisions of the 1987 Constitution.
Section 5 of Article XI created the independent Office of the Ombudsman. Foremost among its powers, functions and duties as provided in Section 13(1) of Article XI is to:
“Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.” (Emphasis supplied).
This provision was quoted verbatim by Deputy Speaker Garcia.
It must be underscored that the investigatory jurisdiction of the Ombudsman under Section 13(1) of Article XI does not exclude Members of the Congress and the Judiciary. This all-encompassing jurisdiction cannot be delimited or impaired by an ordinary statute like the Ombudsman Act of 1989.
The power to investigate must logically end in either dismissal of the complaint or a finding of culpability of the respondent. In the present issue, the Ombudsman found Rep. Gwen Garcia culpable of grave misconduct.
A diligent reading of the proceedings of the 1986 Constitutional Commission does not show any intention on the part of the Commissioners to exempt Members of the Congress and the Judiciary from the jurisdiction of the Office of the Ombudsman.
While it is true that Section 16(3) of Article VI provides that “each House may … punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member”, such grant of authority is not the “exclusive domain” of the House to the exclusion of the Supreme Court and Ombudsman in proper cases.
For example, under the expanded judicial power of the Supreme Court under Section 1 of Article VIII, a suspended or expelled Member of the House can file a petition for certiorari challenging the action of the House on the ground of grave abuse of discretion as an exemption to the doctrine of political question.
OMBUDSMAN ACT OF 1989 (RA NO. 6770)
The Ombudsman Act was enacted almost 30 years ago. House Bill No. 13646, which subsequently became the Ombudsman Act of 1989, was approved on second and third readings in one day, June 8, 1989, presumably because it was certified as urgent. This was the same day the House adjourned sine die.
The aforesaid bill had a very brief but aptly relevant explanatory note, which reads:
“Article XI of the 1987 Constitution creates the independent Office of the Ombudsman as the guardian of public accountability and public trust. To ensure success of the Ombudsman, this Bill is proposed.” (Emphasis supplied).
However, this salutary objective of the bill failed to disclose that embedded in the then proposed measure were provisions which could be in conflict with the Constitution. Not even the sponsorship speeches of Rep. Isidro Zarraga and Rep. Raul Roco highlighted that Members of the Congress and Judiciary are excluded from the disciplinary jurisdiction of the Ombudsman.
I truly regret that I had allowed my affirmative vote to be recorded. On hindsight, I should have objected on record to some provisions which could be constitutionally infirm. But as a legislator gains experience and steadfast advocacies hone his outlook, his sharpened critical mind could subsequently comprehend more easily the import and complications of a proposed legislation or an enacted statute.
I now challenge the constitutionality of at least two (2) provisions of the Ombudsman Act of 1989, namely:
- Section 8(2) which provides that “A Deputy or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, after due process.” This provision was struck down as unconstitutional by the Supreme Court in Gonzales vs. Office of the President wherein is was held that:
“[S]ubjecting the Deputy Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the Office of the Ombudsman itself.”
- Another provision in the Ombudsman Act, which must be challenged and struck down as unconstitutional, is Sec. 21, which Deputy Speaker Garcia also quoted, in so far as it exempts Members of the Congress and the Judiciary from the disciplinary authority of the Ombudsman. Section 21 reads:
“The Office of the Ombudsman shall have 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 over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.” (Emphasis supplied).
The foregoing provision is constitutionally infirm when it excluded Members of the Congress and Judiciary from the disciplinary authority or jurisdiction of the Ombudsman because:
- Under Section 13 of Article XI of the 1987 Constitution, the investigatory jurisdiction of the Office of the Ombudsman covers all public functionaries and employees without any exception. The constitutional jurisdiction of the Office of the Ombudsman encompasses Members of the Congress and the Judiciary. This plenary jurisdiction as mandated by the Constitution cannot be diluted by the Ombudsman Act of 1989, an ordinary statute.
- Section 21 also constricts the independence of the Ombudsman as it curtails its jurisdiction over Members of the Congress and the Judiciary.
- Section 21 is class legislation. It is an affront to the equal protection clause because it arbitrarily favors Members of the Congress and the Judiciary, who all germanely belong to the general class of public officials and employees who must maintain honesty and integrity in the public service.
There is neither rhyme nor reason for Members of the Congress and the Judiciary to be excluded from the jurisdictional authority of the Office of the Ombudsman. Members of the Congress and the Judiciary do not have any unique or peculiar attributes which would make them a class distinct from other public functionaries and employees who are enjoined to uphold public office as a public trust.
In fact, there is more reason for Members of the Congress and the Judiciary to be under the jurisdiction of the Ombudsman because Members of the Congress wield powers and enjoy privileges which are prone to abuse and members of the Judiciary should be exemplars of the tenet that public office is a public trust.
It is a self-serving exclusion which was extended to the members of the Judiciary to conceal the congressional wayward intent to singularly shield Representatives and Senators from the Ombudsman’s scalpel.
- Three current Members of the House have submitted, with the acquiescence of the House leadership, to the jurisdiction of the Office of the Ombudsman. They voluntarily served their respective preventive suspensions imposed by the Ombudsman. These three Gentlemen, albeit professing their innocence and demurring from the Ombudsman’s jurisdiction, had the decency to submit to the jurisdiction of the Ombudsman.
- It must not be overlooked that the Ombudsman resolved an administrative case against Representative Gwen Garcia for acts she committed when she was Provincial Governor. With respect to the jurisdiction of the Ombudsman over administrative cases, there is a separate provision under Section 19 of the Ombudsman Act which is apart from Section 21.
Section 19 provides:
“Administrative Complaints. — The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:
- Are contrary to law or regulation;
- Are unreasonable, unfair, oppressive or discriminatory;
xxx xxx xxx
and grounds of similar import.
Section 19 does not exclude Members of the House from the administrative jurisdiction of the Ombudsman.
RULES OF PROCEDURE OF THE
OFFICE OF THE OMBUDSMAN
Section 18 of the Ombudsman Act authorizes the Office of the Ombudsman to adopt its Rules of Procedure. Section 7 of said Rules makes the decision of the Ombudsman immediately executory even pending a motion for reconsideration or appeal by the respondent. Section 7 pertinently provides:
“xxx xxx xxx
“An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.
“A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer. (Emphasis supplied).
The executory nature of the decision of the Ombudsman despite the pendency of a motion for reconsideration or appeal has been confirmed by the Supreme Court in a catena of cases, to wit:
- Villaseñor vs. Ombudsman (G.R. No. 202303, June 4, 2014)
- Ombudsman vs. Valencerina (G.R. No. 178343, July 14, 2014)
- Ganaden vs. Court of Appeals (G.R. Nos. 170500 & 170510-11, June 1, 2011)
- Ombudsman vs. Court of Appeals (G.R. No. 159395, May 7, 2008)
- In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong, Secretary of DPWH (G.R. No. 150274, August 4, 2006)
ANTI-GRAFT AND CORRUPT PRACTICES ACT
(RA 3019, AS AMENDED)
The Anti-Graft and Corrupt Practices Act covers all public officers and employees including Members of the Congress, without any exception. Under the Act, a “public officer” includes “elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the Government”.
An offense in violation of RA 3019 is cognizable by the Office of the Ombudsman for preliminary investigation and filing, once warranted, of the requisite information before the Sandiganbayan.
A Member of the Congress is not exempt from the jurisdiction of the Ombudsman and the Sandiganbayan with respect to cases involving the violation of the Anti-Graft and Corrupt Practices Act. Verily, in indictments and convictions under the Anti-Graft Law, a Member of the Congress cannot argue that he is outside the jurisdiction of the Ombudsman and the Sandiganbayan.
In fact, under the Anti-Graft Law, more particularly Section 6 thereof, there is a special prohibition with respect to Members of the Congress, which reads:
“Section 6. Prohibition on Members of Congress. It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term.”
Considering that the Anti-Graft and Corrupt Practices Act covers Members of the Congress, any conviction for an offense under said Act which involves removal from office cannot be defied by an invocation that only the House can remove its Members.
By parity of reasoning, the adverse effect of the Ombudsman’s finding of culpability for grave misconduct against a Member of the House for acts committed by the respondent in a previous position as Provincial Governor cannot be defied because such removal is the logical consequence of the accessory penalty of disqualification from holding public office.
The fundamental question is not who shall discipline Rep. Gwen Garcia. The transcendental issue is whether she would submit to the decision of the Ombudsman pending motion for reconsideration or appeal?
The election of a former local chief executive to the position of Member of the House of Representatives is not an inoculation of immunity from the effects of a perpetual disqualification from reemployment to government service as an accessory penalty for grave misconduct.
PUBLIC OFFICE IS A PUBLIC TRUST
In the current impeachment proceedings against the Chief Justice, the constitutional tenet that “public office is a public trust” has been repeatedly invoked, with the concurrence of Rep. Gwen Garcia. This beneficent principle is provided for under Section 1 of Article XI which reads:
“SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.”
This is the same constitutional precept which is invoked in the declaration of policy in the Ombudsman Act of 1989, and this is the same constitutional admonition which is restated in the statement of policy under the Anti-Graft Law.
When Rep. Gwen Garcia called on the Members of the House to stand together for the immunity of Representatives from the “encroachment” of the Ombudsman, is she calling for the exemption of the Members of the Congress from the salutary principle that public office is a public trust?
Should this Chamber be the sanctuary of malefactors or the refuge of those found culpable by the Ombudsman?
The ball is now in the court of Speaker Alvarez. Whether he freezes the ball or throws it out of bounds, is his accountability.